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Safety First – Watch Your Step At Work
The new regime
The Health and Safety at Work Act 2015 (“the Act”) follows serious health and safety incidents in New Zealand such as the Pike River Coal Mine Tragedy and other workplace deaths. The Act will come into effect in April 2016. There are a series of regulations yet to be finalised to accompany the new Act. Once the regulations are finalised, WorkSafe NZ will issue formal guidance to support the Act and regulations so at this stage you only need to get up to speed with the changes in the Act.
The underlying theme of the Act is to impose positive duties on broad categories of persons over a vast array of activities. Liability in relation to these duties may be imposed even where no accident or injury has occurred. The enforcement authority has the ability to assess high risk practices when undertaking audits. The definition of “workplace,” where work is being carried out or is customarily carried out, includes anywhere that a worker goes or is likely to be while at work. This will be situation specific but can include vehicles and workers on breaks.
Core duty holders – PCBUs and Officers
The Act describes core duty holders as a “Person Conducting a Business or Undertaking” (“PCBU”). Volunteer associations have been excluded from the core duty holder obligations but businesses that work on not-for-profit-projects are captured. Entities and individuals will need to be careful when undertaking business work without remuneration (for example carrying out pro bono work or work for a friend) as they can still be held personally accountable.
For the purposes of the Act, directors, partners, general partners, other corporate and unincorporated bodies, chief executives, contractors and senior managers working under an entity categorised as a PCBU can be a deemed “officer.” Officers have a positive duty in relation to due diligence to ensure the PCBU complies with its duties.
We reiterate the Act has been drafted widely to capture a multitude of entities, individuals and situations. It’s timely to determine whether you personally or your business will be a duty holder for the purposes of the Act. If you or your business will be considered a duty holder then you should be reviewing your business practices to ensure the duties required under the Act can be discharged.
After 2 April 2016 the Act will replace the current standard under the Health and Safety in Employment Act 1992 with a new “reasonably practicable” standard in relation to a duty of a PCBU. The PCBU must ensure so far as reasonably practicable the health and safety of workers and other persons is not put at risk while work is carried out. Where the new standard differs to the existing concept of “All Practicable Steps” is that costs can only take precedence over safety when the cost of taking a step is “grossly disproportionate” to the risk.
The Act creates three different levels of offences in relation to core duty holders as follows:
- Reckless conduct (has a duty and exposes any person to whom the duty is owed to risk of death or serious injury/illness and is reckless as to that risk) – fines have increased sharply, up to $3 million (or $600,000 and/or up to five years’ imprisonment for individuals);
- Failure to comply with a duty (with exposure to risk of death or serious injury/illness) – fines up to $1.5 million (or $300,000 for individuals); and
- Failure to comply with a duty (no exposure to death or serious injury/illness) – fines up to $500,000 (or $100,000 for individuals).
If you are an employer or you occupy a senior role in a business you should start to familiarise yourself with the keys concepts of the legislation and how they differ from the previous legislation. The legislation could be as far reaching as to capture lessors and chairpersons of body corporate developments; you will need to monitor the regulations yet to be finalised to determine just how far reaching the legislation will be.
In addition, you should review your health and safety practices and take immediate steps to ensure your practices will meet your duties under the new Act and if in doubt take advice.
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