Health and Safety Reforms Incoming

Carve out for small, low-risk businesses

The Government plans to add a carve out for small, low-risk businesses from general HSWA requirements. The intention is that these businesses will only have to focus on managing critical risks (being those that could cause death, serious injury or illness) and provide first aid, emergency plans and basic facilities to ensure worker welfare.

It is unclear at this stage which businesses will fall within the scope of this carve out. The Minister has used ‘a small clothing shop’ as an example and has noted the term will be defined.

Clarifying directors’ duties

Officer liability has been front of mind recently, following the conviction of Tony Gibson, the former CEO of Port of Auckland Limited, who was found guilty of breaching his due diligence duties under the HSWA following the death of a stevedore at the port.

The proposed reforms will clarify the distinction between governance and operational management health and safety responsibilities. Changes to the legislation are proposed to specify “day-to-day management of health and safety risks is to be left to managers so that directors and boards can focus on governance and the strategic oversight of the business.”

Do-it-yourself approach to Approved Codes of Practice

Approved Codes of Practice (ACOPs) are practical guidelines to help people in specific sectors and industries comply with their health and safety duties. Currently, WorkSafe is solely responsible for leading the ACOP process. However, the proposed reforms will introduce a change to allow individuals and groups (such as industry organisations) to initiate work on ACOPs which would then be approved by the Minister herself against a set of standards. This is intended to create greater efficiency in the process and to ensure the ACOPs reflect what will work in practice for those who deal with the risks every day.

The Minister has also gone further to say that if a person has complied with an ACOP, they will have done enough to met their obligations under the HSWA.

Landowners’ obligations

In line with the recent High Court decision in Whakaari Management Ltd v WorkSafe New Zealand, the reforms will clarify the law for landowners who allow others to access their land for recreational activities.

The proposed change will clarify that landowners will not be responsible if someone is injured on their land while undertaking recreational activities. Health and safety responsibilities will sit with the organisation running the activities. A landowner will only need to consider the risks from their work where that work is happening in the immediate vicinity of the recreational activity.

This represents a change from the current status of responsibilities under the HSWA, where landowners’ obligations in relation to the recreational activity depend on the degree of influence and control they have over the risks presented by the recreational activity.

Other changes

• Focus on critical risk: the primary purpose of the HSWA is to be sharpened to focus on “critical risk”.
• Reducing “overcompliance”: the boundaries between the HSWA and other regulatory systems which address the same risks are to be clarified in the hope of reducing “overcompliance”.
• Notification of events: requirements to notify the regulator are to be amended to only reporting “significant workplace events” (being those involving death, serious injury, illness and incidents).
• Road cones: one non-legislative change (meaning it will not have to be voted on by Parliament) is a direction to WorkSafe to confirm and provide guidance on instances of road cone “overcompliance”. A hotline is to be set up for members of the public to report overzealous road cone use.

We will continue to watch this space as further details regarding these reforms are provided over the coming months.

If you would like to know more, or for a discussion of your own health and safety matters, get in touch with our Health and Safety Team at [email protected] or +64 (03) 441 2743.