New Zealand: The new health and safety regime in detail
Brief Counsel

Important detail on how the new Health and Safety at Work Act will perform in the workplace is available in the discussion document released last week to develop the supporting regulations.

We look at the proposals relating to general risk and workplace management and to worker participation and engagement.

Submissions to the Ministry of Business, Innovation and Employment (MBIE) close on 18 July 2014.

Scope

The proposals have been developed by MBIE in conjunction with WorkSafe NZ, after consultation with external stakeholders representing business, workers and other relevant parties. They cover:

• general risk and workplace management
• worker participation, engagement and representation
• work involving asbestos
• work involving hazardous substances, and
• major hazard facilities.

This Brief Counsel looks at the first two topic areas as they are of relevance to all workplaces.

Process

The legislation – the Health and Safety Reform Bill, to be renamed the Health and Safety at Work Bill – is before the select committee for report back by 13 September.

Regulations are generally not developed until the relevant statute is passed into law, but the two are here being done in parallel so that the whole regime can be brought into force at the same time. Officials are focused on the Government's target of reducing New Zealand's death and serious injury rate by 25% by 2020.

If changes are made to the Bill, these changes will be in reflected in the regulations. The third part of the new framework – the codes of practice – are currently being developed by WorkSafe.

Offences

The Bill leaves for the regulations the specification of offences at the lower end of the scale, to which a maximum fine of $30,000 will apply.

MBIE proposes infringement notices with 'on-the-spot' fines for:

• minor breaches that warrant more than a warning but less than a prosecution, and
• actions or omissions that involve straightforward issues of fact, and do not include qualifying phrases (such as 'so far as is reasonably practicable' or 'as necessary').

Examples would be such things as failing to keep records or not having the required signage.

Transitional arrangements

MBIE is seeking feedback on whether transitional arrangements should be provided in relation to any of the regulations so that industry has time to comply.

In our view, that would be sensible, to allow for a graduated and well-publicised identification of the significant changes actually brought about by the new Act.

General risk and workplace management

The Bill creates a primary duty of care that requires PCBUs (persons conducting a business or undertaking) to ensure the health and safety of those carrying out work, and of those who could be put at risk by the work carried out.

The regulations are intended to inform PCBUs in their conduct of those duties, and to reduce the guess work in what they need to do.

MBIE proposes to follow the Australian approach, by requiring a formal risk management process only where:

• the risk is considered high enough to warrant the compliance cost on the duty holder, or
• there is a range of ways to control the risk that the PCBU will need to weigh up on a case by case basis to achieve the best safety outcome.

The Australians have identified 18 work situations which meet one or both of these criteria. MBIE's proposals presently cover the first six of these: remote and isolated work, hazardous atmospheres, ignition sources, falling objects, asbestos and hazardous substances.

The remainder will be covered off in the second phase of regulation development, to take place within two years of the Act coming into effect – hazardous work (including relevant provisions of the electrical safety regulations), quarries, geothermal, plant and structures (pressure equipment, cranes and passenger ropeways, pipelines, amusement devices).

PCBU duties in relation to risk management

Where a formal risk management process is required, the PCBU will be required to:

• identify reasonably foreseeable hazards
• involve workers and their representatives in developing the risk mitigation strategy
• eliminate or minimise the risk so far as reasonably practicable by:
• substituting the hazard with something less hazardous, and/or
• isolating the hazard from any person who could be exposed to it, and/or
• implementing engineering controls, and if a risk still remains
• putting in place administrative controls (work methods or procedures) or providing personal protective equipment
• regularly review the control measures to ensure they remain effective over time.

MBIE proposes that New Zealand should follow Australia and require a formal review when a new hazard is identified or may be introduced as a result of workplace change, or if a consultation suggests one is necessary or if one is sought by an H&S representative who has reason to believe that there are H&S risks to his or her work group.

We consider that a review should be required only in the first of those circumstances and that otherwise it should be left to the discretion of the PCBU . That is more consistent with MBIE's intention to establish at least some bright-line rules in this very difficult environment. And it reduces the risk of unproductive reviews, triggered by concerns rather than substance.

Of course, if there are qualifying H&S risks not addressed by the process, whether or not sought by a H&S representative, the PCBU will be liable for that omission.

Worker participation

All PCBUs have a duty in the Bill to engage with workers and to have effective agreed participation practices. The Bill provides that H&S representatives and/or H&S committees must be appointed if the workers or PCBUs choose to have them.

The regulations are intended to set out, among other things:

• the criteria for electing an H&S representative, the training to be provided, the term of office (three years) and procedures to terminate an appointment
• the process for determining the configuration of work groups (these must be negotiated between the PCBU and workers, and must be designed to ensure that workers' H&S interests are represented effectively and efficiently, and that H&S representatives are readily accessible to each worker in the group), and
• the composition and meeting requirements of H&S committees (they must be at least half composed of workers not nominated by the PCBU, and the committees must meet at least every three months, or at any reasonable time requested by at least half of the committee members).

Where a work group would involve multiple businesses, a party may withdraw from the negotiations by providing reasonable notice in writing. This will not affect the validity of any agreement between the other parties. If a PCBU withdraws from the wider negotiations, it must still negotiate with its workers to determine work groups relating to its own business or undertaking.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.