New Zealand: New Zealand Health And Safety Act Proposed Changes To The Existing Law

The Paper follows the Government’s policy of focussing on prevention rather than cure. The aim of the proposed changes is to bring systems into the workplace which will be effective in creating a safe working environment, as well as making employers aware of, and fulfil, their obligations.

The Paper proposes the introduction of Health and Safety Representatives in those workplaces where the employees request their presence. The employer must facilitate the election of the representatives. However, the Paper does accept that some employees may not be interested.

The role of representatives would be to consult with employers, work alongside them, and to encourage and implement a safe work environment.

Rather than leaving the representatives simply to advocate safe workplace theories, the Paper proposes that they may have some enforcement functions, including the right to issue a Provisional Improvement Notice ("PIN") and a Provisional Prohibition Notices ("PPN").

A PIN is intended to highlight a hazardous situation that exists in the workplace. The first step is for the perceived problem to be raised with the employer. If no agreement or resolution can be reached, the representative could issue a PIN. The employer must either resolve the issue or request an OSH inspector to resolve the problem. Where an employer believes the equipment or process is not a hazard, the employer may apply to an OSH inspector to revoke the PIN.

A PPN, as its name suggests, would prohibit any continuation of the alleged unsafe practice until the problem was resolved. It is intended to highlight and correct hazardous situations quickly. The ability to issue a PPN confers substantial power on the representative.

The Paper proposes higher maximum penalties for breaches of the Act. This increase is intended to catch the attention of larger employers and to reinforce the policy that workplace safety must be taken seriously. The maximum fines would increase fivefold to $250,000 or $500,000, and possible prison terms would increase to three months or two years, depending on the category of offence.

Whether this particular proposal would have any actual effect on workplace safety remains to be seen. However, the change would bring the penalties under health and safety law into line with the maximum penalties for breach of the Hazardous Substances and New Organism Act 1996, or the Resource Management Act 1991.

The concern for smaller businesses will be the trend to higher fines. However, under the present regime, the average fines imposed are well below the maximum available and this is of concern to the Government.

Another proposed changes which is likely to be contentious is the proposal that private individuals may lay a prosecution for breaches of the Act. At present, only an OSH inspector may institute a prosecution under the Act. The proposal would mean that any person is free to do so when OSH decides not to prosecute. Although this proposal may seem quite dramatic, it would bring health and safety law into line with other public welfare legislation.

However this proposal raises many concerns. The Paper itself raises the possibility that the right to prosecute sue could be used as a lever in employment agreement bargaining. It is possible to foresee an employment dispute being exacerbated by the ability of an employee to prosecute over workplace safety issues.

Proposed changes in relation to the limitation period attempt to tackle the problems caused when a workplace injury or illness does not become apparent for some time, often years. At present, the limitation period is six months. This period is measured between when the injury is sustained and when a prosecution must be commenced. This precludes a prosecution in those cases where the symptoms of the illness take some time to appear. To remedy this problem, the Paper proposes that the limitation period will start to run when the injury or illness is discovered instead of when it occurred.

This delay would aid those suffering from illnesses such as asbestos poisoning or OOS. However we consider that time should start to run when a reasonable person would discover that harm has occurred.

Extending the limitation period does create difficulties for the employer where there are substantial delays. Personnel change, memories fade and it becomes increasingly difficult to defend any prosecution as time goes by.

This article outlines some of the more controversial proposals contained within the Paper and highlights issues which may arise in the future. Submissions on the Paper closed on 28 February 2001. It is expected that a Bill will be brought before Parliament later in the year. It will be possible to make further submissions on the Bill at the Select Committee stage.