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Health and safety in the workplace - what the new regulations could mean for you

By Claire Mansell - 14 Mar 2014

"Good health and safety is good for business.  It is an investment in improved productivity"  - So says Simon Bridges MP in announcing the introduction of the Health & Safety Reform Bill to Parliament this week. This Bill is part of the Government's overhaul of the workplace health and safety system in New Zealand, introducing the biggest reforms in this area for 20 years. The Government is targeting a 20% reduction in New Zealand's workplace injury and death toll by 2020.

It remains to be seen whether the Bill will ultimately lead to legislation that provides the balanced framework that the pundits promise. The proposed regime purports to rely on participation, leadership and accountability by Government, business and workers.

According to the media release the Health & Safety Reform Bill will:

  • Put more onus and legal requirements on managers and company directors to manage risks and keep their workers safe.
  • Require greater worker participation so workers are more involved in health safety in their workplace.
  • Establish stronger penalties, enforcement tools, graduated offence categories and court powers.
  • Amend the Work Safe New Zealand Act 2013, Hazardous Organisms Act 1996, Accident Compensation Act 2001, Employment Relations Act 2000 and other acts.

The Bill introduces essential duties for "Persons Conducting a Business or Undertaking" (PCBU) and officers. These changes impose positive duties upon PCBU and officers to ensure, so far as is reasonably practicable, the health and safety of workers. Officers will be subject to due diligence duties which will require them to keep up to date with work health and safety matters and to ensure that the PCBU has and uses appropriate resources and processes to deal with risks. 

The Bill introduces increased fines up to a maximum of $600,000 and/or imprisonment of up to five years for individuals. For corporates there are potential fines of up to $3,000,000. Criminal liability can also follow.

Amendments to the ERA 2000 will extend protection for an employee who is dismissed or otherwise disadvantaged due to raising a health and safety concern. It is anticipated that most of the Bill will not come into force until April next year.

Obligations under current law

The new regulator, WorkSafe NZ, is already up and running and has been for some time. Unfortunately many employers and employees remain unaware of the extent of their rights and obligations under the current law. Employers will do well to ensure that over the next year everyone from senior management down is brought up-to-date in relation to health and safety matters. Educated employees will reduce an employer's risk of exposure under the current Health & Safety in Employment Act 1992 (HSEA). 

The HSEA imposes duties upon an employer to be proactive in relation to hazards in the workplace. An employer is obliged to be analytical and critical in identifying hazards specific to their workplace and anticipating hazards before they arise. Hazards must be eliminated or, if that is not possible and employees cannot be isolated from the hazard, risks must be minimised. Hazards can include things like stress, drug-taking, bullying and even robberies. 

The HSEA is quite specific about some of the steps an employer must take. For example, if protective clothing is necessary to minimise exposure to a hazard, it is usually not enough for an employer to offer an extra allowance for the employee to purchase their own clothing or to make it a term of an employment agreement that the employee provide their own protective clothing. 

As for employees, they often don't appreciate that they can be prosecuted for breaches of the HSEA where they put their own safety or the safety of others at risk even if no one is injured.

Currently, breach of the HSEA by an employer or employee may lead to awards of reparation to a victim coupled with fines of:

  1. Up to $50,000 for low culpability
  2. $50,000 to $100,000 for medium culpability
  3. $100,000 to $175,000 for high culpability
  4. Up to $250,000 for extremely high culpability.

Maximum fines increase to $500,000 for knowingly doing something likely to cause serious harm.

An ounce of prevention is worth a pound of cure - Benjamin Franklin

It is to be hoped that the Bill will lead to consultation and ultimately a new Act and Regulations that will meet the stated objective of ensuring that more workers get home safely every day. If previous years are any indication, the next year before any new legislation comes into force will likely involve hundreds more injuries and deaths in the workplace. 

Money spent today in educating and putting systems in place to prevent those accidents will reduce the risk of having to absorb the high costs of injured employees or fines in the future.

If you would like more information in relation to your health and safety rights and obligations, please contact Claire Mansell.


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