New Zealand: Big changes to Health & Safety Reform Bill with more to come

Brief Counsel

The select committee is proposing significant amendments to the Health and Safety Reform Bill, with the prospect of more to come through Supplementary Order Paper.

The scale of the proposed change has cost the Bill the support of the Labour Party and of New Zealand First and has the potential to cost it the support of the Greens and the Maori Party (although as of now, the Maori Party has not issued a comment).

We provide you with a quick summary of the key changes. We will produce a more detailed commentary next week.

Key changes

The duty of officers

An officer is a director, a partner or a person in senior management whose responsibility it is to exercise due diligence in ensuring that the Person Conducting the Business or Undertaking (PCBU) complies with its duties.

Recommended by the select committee

Other than those named persons occupying specific roles in the organisation (director, partner), the officer duty will apply only to people with a very senior governance role who exercise significant influence over the management of the business or undertaking (for example a chief executive).

This definition is in contrast to the current draft of the Bill where an officer is a person who makes decisions that affect the whole, or a substantial part of the business of the PCBU.

To be promoted by the Cabinet through SOP

Clarification that:

  • the extent of the officer's duty takes into account the nature of the business, the position of the officer and the nature of their responsibilities, and
  • an officer's responsibility is bounded by what is within their ability to influence and control when managing risks.

Duty of PCBU

The primary duty of care of a PCBU has been 'simplified' from ensuring the health and safety of those employed or engaged or caused to be employed or engaged, to covering those who "work for the PCBU".

Multiple PCBUs

These provisions apply to sites where there are multiple PCBUs and there is an overlap in some of their duties.

Recommended by the select committee

  • As currently drafted, the Bill provides that PCBUs must discharge their overlapping responsibilities to the extent they have the "capacity" to influence and control the matter. The committee proposes to substitute the word "ability" for the word "capacity".
  • Clarification that the duty to consult, cooperate and coordinate activities sits with the PCBU, not all of the duty holders.

SOP

  • To specify that the duty holder's obligations to manage risk are limited to doing what is in their ability to control and manage.
  • To require the Courts to consider actual and potential death or harm caused by a breach of duty when handing down sentence (although there has been no specific suggestion yet that an offence of corporate manslaughter will be introduced).

Definition of workplace

Recommended by the select committee

  • Workplace to be defined as a place where work is being carried out or is customarily carried out (to reflect the fact that some areas are not workplaces all of the time).
  • A workplace includes any place a worker goes or is likely to be at work.
  • In the case of farms, the PCBU and officer duties of the farmers will only extend to farm buildings and structures necessary for the operation of the business and the areas immediately surrounding them. Other parts of the farm will not be a workplace except when farm work is being carried out. This means that the farmer's health and safety responsibilities do not extend to recreational users coming on to farmland.

SOP

  • Specification in the Bill that the family home is not part of the farm workplace.

Worker engagement and participation

Recommended by the select committee

  • Small businesses with fewer than 20 workers in low risk sectors will not be required to have a health and safety representative or a health and safety committee, even where requested by the workforce.
  • The PCBU, which will generally be the employing organisation, will have the right to decline a request to set up a health and safety committee "if satisfied that its existing worker participation practices meet the requirements of the new law".
  • Health and safety representatives will have the power to direct unsafe work to stop where there is serious risk. The select committee recommends adding a requirement that WorkSafe NZ assist in resolving an issue in relation to cessation of work as soon as practicable after it has agreed to a request for help.

Volunteer workers

Recommended by the select committee

The committee recommends that the Bill distinguish between casual volunteers and volunteer workers who work regularly for a PCBU and are integral to the PCBU's operations. The volunteer worker will have the same status as any other worker.

Those exempt from the definition of volunteer worker would include persons engaged in:

  • fund raising activities
  • assistance with sports or recreation for an educational institute, sports or recreation club
  • assistance with educational activities outside the premises of an educational institution, and
  • home care within the volunteer's home.

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.

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