New Zealand Law Society - Workplace health and safety changes

Workplace health and safety changes

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Most of the Health and Safety at Work Act 2015 comes into force on 4 April 2016, reforming health and safety requirements in all New Zealand workplaces.

Like all businesses, law firms will need to ensure they comply with the extra responsibility for workplace health and safety.

A large number of new regulations have been developed to provide tailored requirements for specific industries and occupations. The new Act, the regulations, safe work instruments (setting out technical rules in relation to matters covered by the regulations) and approved codes of practice will all work together under the new regime.

The new legislation shifts the focus from monitoring and recording health and safety incidents to proactively identifying and managing risks to ensure everyone in the workplace is safe and healthy.

The new requirements have been met with mixed reactions. Sensationalist reports have emerged of bowling clubs taking down coat racks, schools stopping pupils from climbing trees, and school principals putting their houses into trusts.

"Calm down"

WorkSafe Chief Executive Gordon MacDonald has asked people to "calm down" and expressed his disappointment at wild claims about sports events likely to be cancelled.

"If a claim about the impact of the new law sounds far-fetched - then it almost certainly is," he has said in a statement.

"Some people do not understand the law, are being given very dodgy advice or are being wilfully ignorant of its requirements."

Mr MacDonald says there have been clear health and safety duties for over 20 years, many of which are being carried over to the new legislation. The new Act does not mean a whole new list of risks has to be managed - risk management has always been part of workplace health and safety.

He says the new aspects in the legislation clarify duties, and are designed to better protect workers in New Zealand's workplaces.

Workplace Relations and Safety Minister Michael Woodhouse has also criticised "ludicrous" claims about the impact of the new legislation.

"The Act adopts exactly the same legal framework that exists in the current law," he told Parliament on 30 March. "Businesses should be alert to the new law when it comes into effect, but there is no need for the overreaction on things like tree climbing."

Some fundamentals about the new Act

The Act shifts the focus from monitoring and recording health and safety incidents to proactively identifying and managing risks so that everyone is safe and healthy.

It applies to nearly all work in New Zealand, except some matters involving Armed Forces personnel and operations.

The Act covers all types of modern business and working relationships (so the relationship between franchisors and franchisees is included, for example).

Most of the duties under the Act relate to the conduct of work - how it is being carried out and how it can affect workers and others. There are also some duties that relate to the physical workplace (a place where a worker goes or is likely to be while at work, or where work is being carried out or is customarily carried out).

Whoever creates the risk manages the risk. The Act requires health and safety work risks to be managed. This means the potential for work-related health conditions needs to be considered, as well as the injuries that could occur. Health conditions include both physical and psychological acute and long term illnesses.

Who has duties under the Act?

A new legal concept - a Person Conducting a Business or Undertaking (PCBU) - is introduced. Section 17 defines this. It may be individuals or organisations. Sections 36 to 43 outline the duties of PCBUs. In a law firm, a PCBU would certainly include partners and directors.

Workers (section 19), officers (section 18), and other persons at workplaces also have certain duties. These are outlined in section 44 (officers), section 45 (workers) and section 46 (other persons).

 A person can have more than one duty - as both a PCBU and a worker - and more than one person may have the same duty. Duties are not transferable or able to be contracted out of, but reasonable arrangements can be entered to ensure duties are met.

Sections 46 to 49 specify offences relating to duties. These include reckless conduct and failing to comply with a duty. Penalties can be severe, with a maximum fine of $300,000 and/or 5 years imprisonment for reckless conduct. 

Primary duty of care

Under section 36 of the Act, the primary duty of care requires a PCBU to ensure health and safety "so far as is reasonably practicable" of workers who work for the PCBU, while they are at work in the business or undertaking; and of workers whose activities in carrying out work are influenced or directed by the PCBU while the workers are carrying out the work.

"Reasonably practicable" is defined in section 22 of the Act. Something is reasonably practicable if it is reasonably able to be done to ensure health and safety, having weighed up and considered all relevant matters, including:

  • How likely are any hazards or risks to occur?
  • How severe could the harm that might result from the hazard or risk be?
  • What a person knows or ought to reasonably know about the risk and the ways of eliminating or minimising it (eg, by removing the source of the risk or using control measures such as isolation or physical controls to minimise it).
  • What measures exist to eliminate or minimise the risk?
  • After assessing the extent of the risk and available ways of eliminating or minimising it, what is the cost associated with the available ways? Is the cost grossly disproportionate to the risk?

Sources of Information

The new requirements and expectations from businesses and workplaces have been covered in a wide range of information sources.

WorkSafe, the government agency most responsible for health and safety, provides a wealth of resources. This includes a 92-page guide, Introduction to the Health and Safety at Work Act 2015. The guide will be regularly updated and provides a plain English explanation of key requirements under the Act and the role of WorkSafe. Examples are used to explain certain concepts and there is direction for readers to where they can find guidance on how to meet regulatory requirements.

SiteSafe New Zealand Inc, an independent not for profit organisation, has produced A Practical Guide for Small Business Owners to the new Act. This uses checklists and tables to provide information on the most important requirements and changes, along with information on what businesses can do to ensure they comply.

The Institute of Directors has produced a Health and Safety Guide: Good Governance for Directors. This is 42 pages and provides detailed commentary, analysis, guidance and checklists for all matters around the new legislation from the point of view of a director.

The New Zealand Law Society's continuing legal education provider, NZLS CLE Ltd, ran a Health and Safety in Employment Law Intensive in March 2016. Presented by a range of legal experts, the seminar covered:

  • Passage of the New Act (Heather McKenzie, Raymond Donnelly & Co).
  • Recent Cases and Changes in the Law (Heather McKenzie, Raymond Donnelly & Co).
  • The New Act: Principal Provisions and Major Changes (Brent Stanaway and Heather McKenzie, Raymond Donnelly & Co).
  • Directors' Duties (Stephanie Grieve, Duncan Cotterill).
  • Getting Ready (Richard Gibson and Tom Reeves, Impac).
  • Incident Response (Grant Nicholson, Kensington Swan; Mike Hargreaves, WorkSafe; Sue Petricevic, WorkSafe).

A booklet with the text of the seminar may be purchased from NZLS CLE Ltd for $75 plus GST.

A NZLS CLE Ltd Webinar on the topic of Health and Safety in Employment, looking at the new legislation, was delivered in September 2015 by Brent Stanaway and Heather McKenzie of Raymond Donnelly & Co. The webinar package (archived presentation and booklet) may be purchased for $149 plus GST for New Zealand Law Society members.

Various law firms have produced guides and information on the new legislation. This includes Duncan Cotterill, Fortune Manning, Kensington SwanMahony Burrowes Horner, Bell Gully, Russell McVeagh, Anderson Lloyd, Wynn Williams, and Cullen the Employment Law Firm.