The Health and Safety Reform Bill (‘the Bill’) proposes amendments to our current health and safety regime. One proposal is the replacement of the Health and Safety in Employment Act 1992 (‘current Act’), with a new Health and Safety at Work Act (‘proposed Act’). This article focuses on three major proposed changes for employers.
1. Duties of a “person conducting a business or undertaking” (PCBU)
The proposed Act introduces the broad concept of a PCBU to cover the many different working relationships in the New Zealand workplace. It follows the Australian health and safety model, and requires a PCBU to ensure the health and safety of their workers and other people affected, as far as is “reasonably practicable”, replacing the current requirement to take “all practicable steps”.
“Reasonably practicable” means, “that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters”, and the proposed Act also outlines relevant matters for consideration. It is considered that this will provide PCBUs with greater clarity as to their duties.
The proposed Act also introduces the concept of an officer of a PCBU. People who come under the definition of an officer include: directors of a company, partners in a partnership, people making decisions affecting the whole or a substantial part of the business of a PCBU, and people in similar positions to a director or partner. Officers will be under a positive and personal duty to undertake necessary due diligence and ensure the PCBU complies with its health and safety obligations. Employers and others who come under the definition of an officer will need to take particular care to ensure they make the positive steps necessary to fulfil this duty.
2. Worker consultation
The proposed Act promotes worker participation in health and safety in the workplace. It requires all PCBUs to have worker participation practices – at present this is only a requirement where there are 30 or more employees, or where an employee or union has requested it. The PCBU can satisfy this requirement by having a health and safety representative elected, or having a health and safety committee established.
Health and safety representatives have powers outlined under the proposed Act, for example, they can issue provisional improvement notices – at present, only health and safety inspectors can do this. This will change workplace health and safety dynamics, as a member of staff will now have the same power as an independent inspector to require health and safety changes to be made in the workplace. PCBUs may also request that an inspector, who may confirm, change or cancel the notice, be appointed to review a notice.
3. Harsher penalties for breaches
The proposed Act increases the maximum penalty for offending by a body corporate to a fine of $3,000,000, while for an individual the maximum penalties are a fine of $600,000 and/or five years imprisonment. The Bill is expected to be introduced to Parliament early this year, where it will begin the select committee process, and related public consultation. This process may see amendments made to the proposed Act, which at this stage is scheduled to come into force by 1 April 2015.
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