Health and Safety Law in 2015 – have we moved forward?

The tragedy often cited for sparking the overhaul of New Zealand’s workplace health and safety law – the Pike River mine explosion in November 2010 – lasted a number of seconds. The legal reform it brought about has so far taken almost five years.

Dr Heather Mckenzie

The Health and Safety Reform Bill could be seen as the final product or distillation of the Royal Commission on the Pike River Coal Mine Tragedy, from which was born the Independent Taskforce on Workplace Health and Safety, and then finally came “Working Safer: A blueprint for health & safety at work”.

The omnibus Act will repeal the Health and Safety in Employment Act 1992 and the Machinery Act 1950, as well as make amendments to other Acts. A series of detailed supporting regulations will underpin it.

The Act will introduce a health and safety regime based on Australian Model Law with necessary modifications to respond to New Zealand’s unique setting. The Hon Simon Bridges said at the Bill’s first reading on 13 March 2014:

“The Government is committed to improving health and safety at work. This Bill represents the most significant law reform in this area for 20 years.

“The Bill’s main purpose is to provide for a balanced framework to secure the health and safety of workers and workplaces.

“The new law will play a major role in helping us meet our target of reducing New Zealand’s workplace death toll by 25 percent by 2025.”

The Act will introduce major changes including placing the primary duty of care towards workers (and certain others) on persons conducting a business or undertaking (PCBU), imposing a positive duty of due diligence on directors and certain others in senior management, and a tiered penalty regime with significantly increased penalties.

In addition, there are many changes which will affect the day-to-day operations of businesses.

The Act was widely anticipated to come into effect in April 2015 (see the earlier article on this topic in Law News Issue 11, 17 April 2014). However, it has suffered a series of delays.

The Transport and Industrial Relations Select Committee was to consider the Bill and due to report back on 30 March 2015, then on 29 May, and now 24 July. The Select Committee received 290 submissions or supplementary submissions (commonly where a submitter was asked for further information).

The submissions are many and very widely varied (note: submissions can be readily viewed on Parliament’s website.

Recurring thematic concerns include: compliance costs for small to medium businesses, farms and volunteer organisations; compliance requirements such as those relating to worker engagement, participation, and representation; the status of elected officials; and the delineation of responsibilities where there are multiple PCBUs. Some of these areas of uncertainty or concern exist under the current Act also.

Safety

For example, as drafted the Bill requires all businesses to have a health and safety representative. However, there is a theme in the submissions that such requirement should only be engaged where a business has more than, say, 20 people.

Further, volunteer organisations are not PCBUs under the Bill and hence do not have a PCBU’s duties. However, if a volunteer association employs one or more persons to carry out work, it becomes a PCBU and inherits compliance requirements. These could be onerous on a volunteer organisation that only employs one person but has multiple volunteers.

Exposure draft regulations are being developed. Phase one regulations are anticipated to come into effect in tandem with the Act and relate to:

  • general risk and workplace management – basic minimum standards needed to provide the necessary clarity about how to meet the duty of care under the new Act (submissions were due on 15 May 2015);
  • major hazard facilities (15 May 2015);
  • asbestos (15 May 2015);
  • infringement offences and fees (2 June 2015); and
  • transfer of recently made health and safety regulations (in the mining, petroleum, and adventure activities sectors) (15 May 2015).

The exposure draft of regulations relating to worker participation, engagement and representation are anticipated to be released when the Bill is finally reported back to Parliament and those relating to work involving hazardous substances in approximately November 2015.

For a law reform many have said was long overdue, the time this Bill has taken to make its way through Parliament has perhaps been surprising.

This is all the more so given it is closely modelled on the Australian example.

We will await the Select Committee’s changes and then the Government’s response.

Whether the Act will be passed before the fifth anniversary of the Pike River tragedy remains to be seen.

Dr Heather McKenzie is a Crown prosecutor at Raymond Donnelly & Co in Christchurch. She specialises in regulatory prosecution, including for WorkSafe New Zealand, and proceeds of crime litigation for the Commissioner of Police. She is the author of Proceeds of Crime Law in New Zealand (LexisNexis 2015) and the forthcoming handbook to the new Act, Health and Safety Reform: A Practical Guide (LexisNexis, 2015). 

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