Workplace Health & Safety Reforms Announced

08 August 2013

The government has announced its reform package for workplace health & safety. In this post we outline the key features of the reform package, with particular attention to the new concept of a Person Conducting a Business or Undertaking, the positive duty of due diligence on those with a governance role, and exceptions to the due diligence duty.

The press release from Labour Minister Simon Bridges summarises the reform package as including:1
  • “an overhaul of the law, supported by clear, consistent guidelines and information for business on their requirements;
  • more funding for WorkSafe New Zealand to strengthen enforcement and education and implement the changes;
  • a focus on high risk areas;
  • stronger focus on occupational harm and hazardous substances;
  • better coordination between government agencies;
  • improved worker participation;
  • stronger penalties, enforcement tools and court powers.”

New Act and Regulations

Under the reforms, the current Health and Safety in Employment Act will be replaced by the new Health and Safety at Work Bill. This Bill will be modelled on Australian legislation and will be introduced into Parliament in December 2013. MBIE states that “The new law and key supporting regulations are expected to start coming into force from the end of 2014."2

Person Conducting a Business or Undertaking

Under the new legislation, the separate obligations for employers, principals to a contract, and persons in control of a place of work will be replaced by clearer obligations on a “Person Conducting a Business or Undertaking” (PCBU). There will be:2
  • “a clearer test to determine what is a ‘reasonably practicable’ action for PCBUs to take, given risk and other circumstances;
  • a positive due diligence duty so that those with governance roles in firms and organisations [i.e. directors and chief executives] must actively manage workplace health and safety, and will face consequences if they fail to perform their duties; and
  • a modified penalties structure."

Exceptions in the Due Diligence Regime

The question and answer document released with the reform package notes an important exemption from the due diligence regime: anyone acting on a voluntary basis who receives only out-of-pocket expenses is excluded from the due diligence duty. “As a result, members of a school board of trustees will not have a due diligence duty, nor would an unpaid director of a company.”4

The due diligence duty is also exercised on an individual basis and not collectively. This means that “If the officer exercises due diligence, they cannot be liable regardless of the conduct of the PCBU or other officers.”5

To Find Out More

To read more about the reform package, visit the Ministry of Business, Innovation and Employment webpage at http://www.mbie.govt.nz/what-we-do/workplace-health-and-safety-reform.

If any of these reforms are of concern, or you would like to understand more about how the reforms might affect you, please contact us.


Endnotes
[1] Simon Bridges “Major reform of workplace health and safety”, press release, 7 August 2013. Available online at http://www.beehive.govt.nz/release/major-reform-workplace-health-and-safety
[2] MBIE health and safety reform webpage http://www.mbie.govt.nz/what-we-do/workplace-health-and-safety-reform
[3] Working Safer: A blueprint for health & safety at work, August 2013, p. 15. This document can be downloaded from the MBIE webpage listed above.
[4] "Questions and Answers", undated, page 3. This document can be downloaded from Simon Bridges' online press release and from the MBIE webpage.
[5] See 4 above.