Health & Safety update - changes coming

Proposed Changes to Health and Safety - update
 
The Minister of Labour, Simon Bridges, recently announced that the biggest health and safety reforms in 20 years are now one step closer with the introduction of the Health and Safety Reform Bill, expected to become the new Act next year.
 
The new Crown entity (WorkSafe New Zealand) has been created to take over responsibility for health and safety from the Ministry of Business, Innovation and Employment (MBIE).
The Bill is being shaped on the Australian Model Work Health and Safety Act 2011.
 
While it is possible and likely that there may be some amendments before the Bill becomes the Act, it is widely accepted some of the changes in the pipeline include:
 
The Reform Bill requires the undertaking of “reasonably practicable” steps, being a step that a person could reasonably take at a particular time to ensure health and safety measures are in place.  In other words there is a paradigm shift from hazard identification to risk management. This is a higher test weighing up what a person knows or ought reasonably to know.  It means one can’t hide behind “I wasn’t aware of that” excuse.
 
The present Act requires the taking of “all practicable steps” to ensure the safety of employees while at work and “elimination, isolation or minimisation of hazards”. The Bill removes “isolation” as a term.
 
Moving from the current concept and obligations of employers and employees, future workplace safety will be about businesses and workers, with the allocation of a general duty to keep all workers safe at work.  The duty would primarily fall on “a person who conducts a business or undertaking (PCBU)”.  A PCBU must ensure, so far as is reasonably practicable, the health and safety of:
a. Workers engaged, or caused to be engaged by the person; and
b. Workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.
 
The Bill refers to ‘worker’ as being a person who carries out work.  There is no longer a reference to employee, principals, contractors, visitors, subcontractors.  In other words, you can’t arbitrarily differentiate between this group.  There is more onus on providing a safe workplace no matter who is the working group.
 
The Bill imposes a duty on PCBU’s for those in governance roles to assume a positive duty of “Due Diligence” to ensure the health and safety of people at the work site. An officer of a PCBU is any person who is a director, partner, general partner, or any person occupying a position in a body that is comparable with that of a director.  This is a new concept that includes any other person who makes decisions that affect the whole or a substantial part of the PCBU e.g. Chief Executive Officer, General Manager and possibly senior managers (although it is not clear how far this may go).
 
Due diligence requirements for Company Officers are:- 
1. To keep up to date with health and safety matters of the PCBU.
2. To analyse/assess the risks associated with the business.
3. To ensure that the business has appropriate resources and processes in place.
4. To ensure that communication and reportage are in place.
5. General duties to comply with the Act.
 
The current term “Serious harm” is being replaced by “notifiable injuries”. Some of the terms of the specified injuries needs clarification - one example is ‘a serious head injury’ - what is classed as a serious head injury? More explanations will be forthcoming.
 
A new concept is a “Notifiable incident” being an incident that exposes the worker or any other person to a serious risk to that person’s health and safety. They include, for example, exposure to spillage or leakage of substances, gas, fire, collapse or malfunction of plant that is required to be authorised by regulations and a fall from height of any objects or substances.
If requested by WorkSafe NZ, businesses must give written notice of the injury or incident within 48 hours of the request. 
PCBU’s must keep records of all notifiable injuries/incidents for 5 years.
 
There is going to be a far greater focus on the duty to engage workers in the management of health and safety through work groups and worker representation.
 
For breach of the duty to keep workers safe at work, penalties will significantly increase.
 
The Government’s intention is that the Bill will be passed in 2014, with the new Act coming into force from 1 April 2015.  The Act will be supported by regulations and codes of practice.  The latter have not yet been made available. 
 
How the Courts may apply the new penalties when the Reform Bill is passed into Law will remain uncertain until we have clear regulations and codes of practice.
 
This overview is designed to give you a flavour of some of the changes being aired in the Reform Bill.  Those businesses who are not doing enough already in the health and safety area will find the new law more onerous than those who are already managing health and safety in a systematic way and meeting their current obligations.
 
Those in the know are telling us these changes will be costly to businesses so start budgeting now. There is much work to be done by many employers.  How does your business measure up?

Paddy Battersby ; www.battersbyhr.com ; Phone 09 838 1455 ; Email paddy@battersbyhr.com

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