Health and Safety Reform: a new focus on critical risks

A new focus on “critical risks”

• The Bill introduces a new overarching purpose: “to provide a balanced framework for securing the health and safety of workers and workplaces that prioritises the critical risks that arise from work”.
• PCBUs (other than small PCBUs) must manage all risks, but prioritise critical risks, when complying with the provisions of the HSWA.  The Bill includes a definition of “prioritise” which requires PCBUs to essentially consider critical risks first.

This change of focus redirects effort and regulatory attention towards the kinds of risks that lead to death, serious injury, notifiable incidents and occupational disease.

A “critical risk” will be defined as:

1. a hazard already identified in regulations as relating to more hazards, dangerous activities or work e.g. asbestos, adventure activities, mining and hazardous substances; or
2. any other hazard likely to result in:
   
   • a death;
   • a notifiable injury or illness;
   • a notifiable incident; or
   • an occupational disease.

Clearer, simplified duties for smaller businesses

The Bill will differentiate between small PCBUs (PCBUs with fewer than 20 workers but with some recognition for staff number fluctuation due to seasonal work) and other PCBUs.

Small PCBUs must:

1. comply with the material duties under the HSWA only in relation to critical risks; and
2. provide basic work facilities(i.e. first aid, emergency plan, drinking water, adequate lighting).

These material duties include those set out in sections 36 to 43 of the HSWA, as well as the duty to provide information, supervision, training and instruction, and the duty to provide personal protection equipment and to ensure it is worn.

Officers' duties are clarified

This change arguably responds to the recent Maritime NZ v Gibson case, where, after the death of a port worker, the former CEO of Ports of Auckland was successfully prosecuted under the HSWA for failing to exercise due diligence.

Under the Bill:

• if a person is both an officer under the HSWA (e.g. a director) and a worker who performs a separate operational role, the person’s duty of due diligence under the • HSWA will only apply to their role as an officer; and
• a definition of due diligence becomes an exhaustive and targeted list, requiring officers to take reasonable steps to:
  
  • stay up-to-date with health and safety matters as they relate to their PCBU’s operations;
  • ensure the PCBU has adequate health and safety resources and processes; and
  • verify the use of those resources and processes.

New "safe harbour" compliance through approved codes of practice (ACOPs)

ACOPs will no longer need to be developed solely by WorkSafe.  Any business organisation may draft a code of practice for WorkSafe review and Ministerial approval.

If a PCBU complies with an approved ACOP, it will be treated as having complied with its relevant HSWA duties.

This change is expected to:

• improve sector‑specific guidance;
• allow industry‑developed best practice; and
• provide more certainty for PCBUs about compliance obligations.

Clearer boundaries between HSWA duties and requirements under other legislation

Where a PCBU is subject to:

1. a duty under the HSWA; and
2. a requirement under another Act for the same subject matter,

then compliance with the other Act will satisfy the HSWA duty — unless a HSWA regulation imposes specific duties as well.

Exception for earthquake-prone buildings

The Bill introduces an exception or PCBUs who manage or control a workplace in an earthquake-prone building.

Where a workplace is in a building that has been properly assessed under the Building Act 2004 as earthquake-prone and the building owner is complying with its obligations under that Act in regard to the earthquake-prone building, a PCBU will not need to take steps in relation to seismic risk (such as evacuating the building) unless an emergency is occurring that affects the building.

Limited liability for landowners where land is used for recreational activities

This amendment is intended to provide certainty for landowners who are reluctant to allow recreational users to access their land.

The Bill limits liability for PCBUs who manage and control land that includes open space lawfully used for recreational purposes unless:

1. the recreational use is connected to the PCBU’s business; or
2. work is being carried out at the same time and near where the recreational use is occurring.

A reset of WorkSafe’s statutory functions

The Bill also proposes amendments to the WorkSafe New Zealand Act 2013 to reprioritise WorkSafe’s (and other designated regulators’) functions.

Regulators’ main functions will now be:

• providing guidance, advice, and information;
• developing and reviewing ACOPs and safe work instruments; and
• monitoring and enforcing compliance.

This change aims to refocus WorkSafe and other regulators on education and practical guidance, rather than enforcement.

What this means for businesses

Businesses should expect:

• a clearer expectation to prioritise critical risks;
• more practical guidance and (eventually) more industry-led ACOPs;
• clearer duties of due diligence for officers with governance roles; and
• more certainty when obligations overlap with other regulatory regimes.

The Bill has only had its first reading and must still pass through the parliamentary process, including select committee stage.  We will keep you informed of progress with the Bill, and any changes that are made to the proposed reforms.

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Disclaimer: The content of this article is general in nature, does not constitute legal advice and should not be relied upon for that purpose.  Parties should seek specific legal advice tailored to their circumstances before acting on any of the matters discussed.