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:
- Up to $50,000 for low culpability
- $50,000 to $100,000 for medium culpability
- $100,000 to $175,000 for high culpability
- 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.