Businesses have less than one month to comply with new hazardous substances regulations

Wednesday 22 November 2017

Authors: Tim Clarke, Natasha Garvan, Mike Campbell and Renee Yoon

​​​​​Over 150,000 New Zealand businesses (roughly one-third of all New Zealand businesses) manufacture, use, handle or store hazardous substances. These businesses have less than one month to get up to speed with the Health and Safety at Work (Hazardous Substances) Regulations 2017 (the 2017 Regulations) which come into force on 1 December 2017.

The 2017 Regulations​

The 2017 Regulations are a new, consolidated set of health and safety regulations which govern hazardous substances in the workplace and apply to all businesses that manufacture, use, handle or store hazardous substances. The 2017 Regulations also bring about a formal change in regulator to WorkSafe New ​​​Zealand (WorkSafe), who replaces the Environmental Protection Authority (EPA) as the regulator in charge of protecting people from hazardous substances in the workplace.

The 2017 Regulations largely consolidate existing hazardous substances requirements into one place and makes relatively minor or technical changes to the existing regulations surrounding the handling and storage of hazardous substances (the 2001 Regulations). However, the 2017 Regulations do provide several new duties which businesses need to be aware of.

New general duties for PCBUs

The 2017 Regulations place various duties on PCBUs, who are defined under the Health and Safety at Work Act 2015 as a business or organisation which carries on business or business-like activities. The term "PCBU" is broad enough to cover any modern working arrangements such as joint ventures, principal-contractor, landlord-tenant, employer-employee, and franchise arrangements.

Under the 2017 Regulations, a PCBU must​ manage the health and safety risks associated with hazardous substances in the workplace, with regard to specific factors listed in the 2017 Regulations. Failure to manage these health and safety risks could result in a fine of up to NZ$50,000 for a business.

PCBUs must also now provide information, training, instruction and supervision to workers who work with hazardous substances (above that required by the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016).

New duties for PCBUs with management or control of a workplace

Additionally, new specific duties apply to a PCBUs with "management or control" of a workplace, transit depot, or a hazardous substance location. Under New Zealand's health and safety regime, it is possible for multiple PCBUs (e.g. a landlord and a tenant) to have "management or control" of a workplace. In these circumstances, all PCBUs will be required to meet their obligations under the 2017 Regulations to the extent they can influence or control matters at the workplace.

The specific duties which apply to PCBUs with "management or control" of a workplace include:

  • maintaining an inventory of hazardous substances at the workplace that includes the name, quantity, location, storage requirements of each hazardous substance, and any hazardous waste,
  • obtaining and making available to workers, current safety data sheets for hazardous substances,
  • ensuring that containers of hazardous substances are properly labelled,
  • displaying signage in the workplace for certain quantities of hazardous substances,
  • ensuring hazardous substances are in appropriate containers or packaging, and
  • where specific quantities of hazardous substances are present, ensuring there are sufficient fire extinguishers and preparing a workplace emergency response plan.

PCBUs must also review and change any controls which have been put in place in relation to hazardous substances at the workplace if: there is a significant change to information about a hazardous substance; a notifiable event occurs involving a hazardous substance; or at least once every five years. Failure to comply with this requirement could result in a fine of up to NZ$50,000 for a business.

Overview of classification of hazardous substances

The 2017 Regulations apply to a wide range of hazardous substances which are defined as those with one or more of the following intrinsic properties (with a few exceptions):

  • explosiveness (class 1),
  • flammability (classes 2 to 4),
  • a capacity to oxidise (class 5),
  • toxicity (class 6), and
  • corrosiveness (class 8).

Administration of hazardous substances in the workplace

From 1 December 2017, WorkSafe will be directly responsible for administering the requirements relating to hazardous substances in the workplace. However, this is largely a semantic change as WorkSafe has been administering the 2001 Regulations under delegated authority from the EPA since 2014.

The EPA will continue to be responsible for approving and classifying all hazardous substances for use in New Zealand and will remain responsible for setting the rules regarding hazardous substances generally (e.g. correct labelling, packaging, disposal, forms and information) under new EPA Notices.

The transitional provisions in the 2017 Regulations mean that location test certificates and other certificates issued under the 2001 Regulations will remain current until they expire.

Lastly, administration fees under the 2017 Regulations will increase. Previously, WorkSafe's costs of administration were based on what the EPA had set. However, the 2017 Regulations now enable fees to be set on a "full cost recovery" basis. This will have a flow on effect of increased compliance costs for businesses under the 2017 Regulations.

Please contact us if you would like further information about the new 2017 Regulations and how they may affect your business.


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Tim Clarke

    Partner Auckland
  • Andrew Beatson

    Partner Wellington
  • Natasha Garvan

    Senior Associate Auckland
  • Renee Yoon

    Solicitor Auckland
Related areas of expertise
  • Health and safety
  • Employment and workplace safety
  • Environment and resource management