The Health and Safety at Work Act – now passed
After a number of years in the making, Parliament has now passed the Health and Safety at Work Act 2015 (HSW Act). The HSW Act will come into force on 4 April 2016.
History of the HSW Act
In 2013, the Independent Taskforce on Workplace Health and Safety released a report recommending an overhaul of New Zealand’s health and safety legislation. This resulted in the Government drafting the Health and Safety Reform Bill (HSR Bill) to replace the existing Health and Safety in Employment Act 1992.
The HSR Bill was introduced to Parliament in March 2014. The HSW Act has now been passed into law.
So what does the HSW Act say?
The focus of the HSW Act is to protect workers and other people against harm to their health, safety and welfare by eliminating or minimising risks at work.
The HSW Act starts by placing duties on various categories of people, and goes to on specify how worker participation should take place. It then covers how the new legislation will be enforced, and the penalties for breaching it.
The HSW Act places obligations on:
- a person (which includes an individual, a partnership, and company, and an association) conducting a business or undertaking (PCBU);
- officers of a PCBU;
- workers; and
- other people at a workplace.
A PCBU must ensure the health and safety of its workers and of other workers whose activities are influenced or directed by the PCBU. It must also ensure that the health and safety of any other person isn’t put at risk because of the work being carried out. This includes providing a safe work environment, with safe equipment, and suitable procedures in place. A PCBU who designs, manufactures, or is in any other way involved in the supply of any plant, substances or structures must ensure that not only is their own workplace safe, but also that those plant, substances or structures are without risk to the health and safety of the people who will be working with them.
Officers of a PCBU include the directors of a company and partners of a partnership, and for other types of business, people in a similar role. It also includes any other person occupying a position that allows them to exercise significant influence over the management of the business, such as a chief executive, but does not include a person who merely advises or makes recommendations to the management team. These officers must exercise due diligence to ensure that a PCBU complies with its obligations. This should be done by ensuring that the PCBU has appropriate health and safety policies, which are adhered to, and that hazards are recognised and eliminated or minimised.
Workers (including employees, contractors, volunteers, apprentices and trainees) have their own obligations to take care for their own health and safety, and to ensure that they do not put the health and safety of others at risk. They must also comply with any policies and procedures issued by the PCBU, and any other instructions that they receive from the PCBU.
Any other person at a place of work must also look out for their own health and safety and ensure that their acts or omissions don’t affect the health and safety of others.
Because duties are owed by workers as well as by PCBUs and officers, it is important that workers are involved in the health and safety policies of a business. To facilitate this, the HSW Act sets out a number of requirements for worker participation.
A PCBU will need to consult with their workers when identifying hazards in the workplace, making decisions about how to eliminate or minimise those hazards, developing procedures for anything to do with health and safety, and making decisions about facilities for worker welfare.
A PCBU may decide that one or more health and safety representatives should be elected to represent the workers. If the PCBU does not initiate this, a worker may request that an election for a health and safety representative be held. In addition to or as an alternative for a health and safety representative, a PCBU may establish a health and safety committee, or the establishment of a committee may be requested by five or more workers or by a health and safety representative. A PCBU will have to comply with a request for a health and safety representative or committee if they have 20 or more workers, or are in a high-risk industry.
Details of what will constitute a high-risk industry will be finalised in regulations, but are currently classified as those with potential for catastrophic risk, those with high risk of death or serious injury, and those with exposure to asbestos. The proposed list of 57 industries is based on industries that have had 25 fatalities per 100,000 workers since 2008 or a serious injury rate of more than 25 per 1000 workers since 2008, and includes industrial manufacturing and processing, public transport and freight, fishing and aquaculture, building and construction, mining, and forestry.
A health and safety representative will be entitled to receive additional health and safety training. They also will be able to issue improvement notices against any person who they believe is contravening a provision of the legislation, or to direct a worker to cease work if they believe that the work would expose someone to a serious risk.
A WorkSafe inspector has a number of options under the HSW Act to issue notices, without an incident having taken place. The inspector can issue:
- an improvement notice, requiring a PCBU to take steps to prevent a breach of the legislation or to remedy a current breach, non-compliance with which can result in a fine of up to $250,000 for a company or $50,000 for an individual;
- a prohibition notice, prohibiting the carrying on of an activity that involves a serious risk to a person’s health and safety, where non-compliance can result in a fine of up to $500,000 for a company or $100,000 for an individual; and
- a non-disturbance notice, requiring a site to be preserved, both where a notifiable event has occurred and in other circumstances, where a company can be fined up to $250,000 and an individual up to $50,000 for non-compliance.
For more serious breaches of the legislation, WorkSafe may prosecute a duty holder. Private prosecutions are also an option, although they can only be commenced once WorkSafe has advised that they are not intending to bring a prosecution, or with permission from the court.
If a prosecution for a breach is successful, the court can impose a range of penalties, including:
- fines, which can vary depending on the actual breach, up to a maximum of $300,000 for an individual, $600,000 for an officer, and $3,000,000 for a PCBU;
- reparation payable to a person injured by a breach;
- costs payable to WorkSafe;
- adverse publicity orders;
- orders for restoration, to require an offender to take specified steps to fix a problem;
- project orders, requiring the offender to undertake a specified project to improve health and safety;
- injunctions, to either stop or require specific conduct of the offender; and
- training orders.
A PCBU cannot obtain insurance for any fine ordered to be paid under the HSW Act, although statutory liability cover remains available for any order of reparation.
What happens now?
The HSW Act will come into force on 4 April 2016. There will be a range of regulations and codes of practice released before then, which will provide greater detail and guidance on the practical implementation of these new health and safety requirements.
Before the HSW Act is operational, all PCBUs, and other people who will have duties under the HSW Act will need to review and update their health and safety policies, and ensure that they understand and comply with the new standards.
For more information please contact a member of our health and safety team.
Brian Nathan, Partner
+64 3 539 5402
Mark Lawlor, Partner
+64 9 374 7164
Scott Wilson, Partner
+64 3 372 6511
Disclaimer: the content of these articles is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose