This article was originally created for Hayes Knight (now Nexia Auckland).
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The Health & Safety Reform Bill expected to be passed into law by the end of this year and come into force on 1 April 2015 will replace the current Health & Safety in Employment Act 1992.
To many, the overhaul can’t come soon enough. New Zealand has a workplace fatality rate of 4 deaths per 100,000 workers. Twice the rate of Australia and three times the rate of Britain. It took the tragic events of Pike River Mining disaster and the loss of 29 lives, to put health and safety on the agenda.
The government has now set goals to reduce workplace deaths and serious injuries by at least 25% by 2020. Worksafe NZ, was established in late 2013, with the sole mandate to ensure compliance with the Health and Safety Employment Act.
The major changes will affect business owners, directors and senior managers.
The new bill introduces the term “persons conducting a business or undertaking” (PCBU). Primary health and safety duties under the bill fall on the PCBU. This is a large step away from the current legislation and is much broader than an employer or person who manages and controls a workplace. Of particular note are contractors, installers or persons who commission plant or structures are considered a PCBU. Other examples include:
There are a number of primary obligations required by the PCBU’s under the bill including the primary duty of care.
The bill also imposes a due diligence duty on officers of the PCBU. An officer is a director of a company and includes any persons who make decisions as a whole, or a substantial part of the business of the PCBU (eg CEO). The duty of due diligence for officers is very broad.
Risk vs Hazards
The bill requires PCBU’s and other duty holders to eliminate risks to health and safety so far as is reasonably practicable (as well as hazards). If it is not reasonably practicable to eliminate risks then they have a duty to minimise risks so far is reasonably practicable. While risk is not actually defined in the bill, this is a much lower threshold than the current legalisation of identifying, minimising and eliminating hazards.
A critical focus of the bill is around worker engagement. The focus here is to facilitate the development and implementation of health and safety practices.
The bill allows for the election of Health and Safety Representatives. Upon request the PCBU must establish workgroups to facilitate the representation of workers. The health and safety representatives are elected by the workers and are in a position of significant responsibility. These persons must be given training if required which could amount to a considerable amount of time away from the workplace. Any time off to attend training must be paid at the normal rate paid to those workers.
A Health and Safety Committee must also be established by a PCBU once a Health and Safety Representative has been elected or if requested by five or more employees. There are obligations on the PCBU to consult with the Committee and provide time off to attend to duties, meetings and functions and provide relevant information.
There are significant penalties to individuals and companies for non-compliance with obligations owed to Health and Safety Committees and Representatives.
A clear message has been sent by government with significant increases in penalties for breaches to those in place under the current Health & Safety Employment Act. The maximum penalties are listed below:
What do you need to do?
As a business owner or director you have the opportunity to take a proactive approach to the changes. Developing a culture where health and safety is taken seriously and incorporating health and safety into governance frameworks are two ways this can be achieved.
Hayes Knight will be running breakfast briefings over the next few months on the new health and safety obligations under the Health and Safety Reform Bill. To register your interest please email firstname.lastname@example.org or for more information please contact your Hayes Knight Advisor.