Insights, ideas and inspiration for modern-day fleet managers
The much awaited Health and Safety Reform Bill has now been introduced into Parliament. The Bill is part of the package of changes that have been introduced following the Pike River Coal Mine Tragedy and various subsequent reviews which have observed a poor health and safety record in New Zealand. The Bill is before the Transport and Industrial Relations Select Committee and submissions closed, 9 May 2014.
The Bill is based on the Australian Model Work Health and Safety Act 2011 with some modifications for the New Zealand context. So what are the key changes proposed by the Bill, and what will be the likely impact of those changes in practice?
A key aspect of the Bill is the creation of a new duty holder, known as a Person Conducting a Business or Undertaking (PCBU). A PCBU means a person conducting a business or undertaking:
The PCBU is a broad concept, which will encompass the existing duty holder categories (such as employers, principals, and persons in control of a place of work) under the Health and Safety in Employment Act 1992 (HSE Act). A PCBU does not include employees or directors of PCBUs (directors are covered as officers – see below), volunteer associations, and occupiers of a home who employ or engage another person solely to do residential work.
A “worker” is defined as a person who carries out work in any capacity for a PCBU, including work as an employee, a contractor or subcontractor, an employee of a contractor or subcontractor or an employee of a labour hire company who has been assigned to work for the PCBU, an outworker, an apprentice or trainee, a person gaining work experience or undertaking a work trial, a volunteer or a person of a prescribed class.
The Bill’s definition is broad, and like the PCBU definition is designed to encompass a number of relationships that are typical in a work environment (such as employees, contractors, subcontractors, employees of contractors or subcontractors, volunteers and trainees).
The Bill will replace the current standard under the HSE Act (“All Practicable Steps”) with a new “reasonably practicable” standard. “Reasonably practicable” is defined as: “…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, including:
- the hazard or risk; and
- ways of eliminating or minimising the risk;
The new standard is broadly similar to the existing concept of “All Practicable Steps”, except that the assessment of costs must only be taken after the assessment of the risk and the ways to eliminate that risk. This means that costs will only take precedence over safety when the cost of taking a step is “grossly disproportionate” to the risk.
The Bill introduces a new general duty on all PCBUs to ensure, so far as reasonably practicable, the health and safety of:
PCBUs must also ensure, so far as reasonably practicable, that the health and safety of other people is not put at risk from work carried out by the PCBU.
There are also specific duties imposed on PCBUs in respect of:
The Bill introduces a positive duty on officers to exercise due diligence to ensure that the PCBU complies with that duty or obligation. This is a key change from the HSE Act, where directors of a company can only be held liable where they have directly participated in, contributed to, or acquiesced in their company’s failure. Under the Bill, officers may be convicted for a breach of due diligence regardless of whether the PCBU has been convicted of an offence.
Due diligence includes taking reasonable steps to:
The Bill creates three offence tiers relating to breaches of the health and safety duties. The offences and the respective maximum penalties can be summarised as follows:
In addition to the fines and imprisonment that may be imposed, the Bill provides for new orders which the court may impose at sentencing:
Progress of the Bill through to legislation is already well under way. The Government has indicated that the Bill will be passed into law by the end of 2014, with an expected start date of 1 April 2016. Regulations necessary to support the new legislation will also be released for consultation this year.
The implementation of the new regime will see more onus placed on managers and company directors to proactively manage workplace health and safety. Together with stronger penalties, and wider enforcement tools for non compliance, it is hoped that this regime will see improvement to New Zealand’s poor health and safety record.