On 24 July 2015 the Transport and Industrial Relations Select Committee
finally reported on the Health and Safety Reform Bill. The Bill was introduced
to Parliament in March 2014 (see our previous newsletter here).
There have been some key changes to definitions of roles in the Bill
including to officer and volunteer workers, and to overlapping duties for PCBUs
(Persons Conducting a Business or Undertaking), as well as changes to worker
engagements and participation provisions. Further changes have been
The majority of the Committee recommended that the Bill be passed with
various amendments. However, the Labour and New Zealand First parties have
advised that they do not support the legislation in its current form and the
Green Party, while supporting the overall purpose of the Bill, have expressed
their concern that in many instances the Bill, as amended, undermines the
intention of the Bill.
Officers definition narrowed
The Select Committee has narrowed the definition of officers, stating that
the intention is to confine the designation to people in very senior governance
roles, such as directors and chief executives. The due diligence duty imposed on
officers is unchanged as are the penalties for failing to comply with duties
under the Bill. However, the definition of “officer” has been narrowed. It now
includes “any other person who occupies a position in relation to the business
or undertaking that allows the person to exercise significant influence over the
management of the business or undertaking (for example a chief executive)”. In
addition the Bill now expressly excludes from the definition “a person who
merely advises or makes recommendations”.
Position of volunteers changed
As signalled some months ago, the position of volunteers has been changed in
the Bill. The definition of worker has now been revised to include “volunteer
workers”. A volunteer worker is described as a volunteer who carries out work in
any capacity for a PCBU, with the knowledge and consent of the PCBU, on an
ongoing and regular basis, and that is an integral part of the business or
undertaking. This does not include a volunteer who is participating in a
fundraising activity, assisting with sports or recreation, assisting with
activities for an educational institute outside the premises of that
institution, or providing care for another person in the volunteer’s home.
PCBUs and overlapping duties
A change in wording has been made in the provision about PCBUs with
overlapping duties. The Bill previously stated that where there is more than one
PCBU with the same duty, each PCBU must discharge their duty “to the extent
to which they have the capacity to influence or control the matter, or would
have had that capacity, but for an agreement or arrangement purporting to limit
or remove that capacity.” This concept has not been changed but the word
“capacity” has been replaced with the word “ability” in the Bill. This word
change does not appear to significantly alter the clause despite the fact that
the Select Committee considers that it limits the duty to actions that the PCBU
would in practice be able to take.
Worker engagement and participation
The worker engagement and participation provisions in the Bill have been
amended in a number of ways including:
Businesses with fewer than 20 workers who are not “within the scope of any
prescribed high-risk sector or industry” are not required to have a health and
safety representative at the request of workers. High-risk sectors and
industries are to be specified in regulations.
Similarly, businesses with fewer than 20 workers who are not “within the
scope of any prescribed high-risk sector or industry” are not required to have a
health and safety committee.
Any PCBU can refuse to establish a health and safety committee on the basis
that it is satisfied that existing worker participation practices at the
workplace provide opportunities for worker participation, as required by the
Bill. If the workers wish to do so they can raise this refusal as an issue to be
dealt with in accordance with the issue resolution provisions of the Bill. Under
those provisions the regulator can be asked to appoint an inspector to assist in
resolving the issue if the parties are unable to resolve it themselves.
Some amendments have also been made to the provisions regarding the
establishment of work groups for the purposes of electing health and safety
A number of amendments have been made to the provisions relating to the right
to cease work where it is considered unsafe. These include provisions relating
to the level of training required before a health and safety representative can
require work to stop, and the timeframe for the regulator to resolve any issues
relating to the cessation of work.
Definitions in the Bill
The Select Committee has recommended changes to a number of definitions in
the Bill including:
The term “risk” is removed as a defined term and the definition of “hazard”
has been changed. These changes have been made to encourage people to consider
what risk means to them, in their particular circumstances.
The definition of “workplace” is amended to state that it means “a place
where work is being carried out, or is customarily carried out, for a business
or undertaking”. The Select Committee has stated that the intention of this
amendment is to make it clear that a workplace does not remain a workplace
indefinitely, once work has been carried out there.
Limitation period for prosecutions changed
Proceedings can now be brought within 12 months from the date of the offence
first coming to the notice of the regulator. The Bill previously allowed a
period of two years. Similarly, in a case where the coroner has completed and
signed a certificate of findings, the Bill now provides that the period of time
for bringing proceedings is six months, rather than 12 months. These time
periods have been revised to provide certainty to PCBUs and to incentivise the
regulator to conclude investigations promptly. However, a new provision has also
been added to the Bill regarding extension of time if the regulator needs longer
to decide whether to bring a prosecution.
A number of other changes have been made to the Bill by the Select Committee.
These include various amendments to address the impact of the Bill on farms, and
substantial amendments to Schedule 2 of the Bill which relates to health and
safety in the mining sector.
Further changes to be made by the Government
The Minister has said that he is confident that the Bill has struck the right
balance between safe workplaces for workers and unnecessary red tape on
businesses. However, in addition to the changes recommended by the Select
Committee, the Minister has already announced that the Government intends to
make some further changes to the Bill by way of Supplementary Order Paper.
The Minister has said that these changes will include:
Excluding family farmhouses from being part of a workplace.
Changing the sentencing guidance in the Bill to require that courts must
specifically consider death or the harm (both actual and potential) caused by an
offence in their sentencing.
Clarifying that a duty-holder’s obligation to manage risk is limited to doing
what is within their ability to control or influence.
Confirming that an officer’s duties will take into account the role the
officer has in the business, their position and the nature of their
Where to from here?
The Bill now needs to go through its remaining stages in Parliament. The
Government’s intention is to enact the Health and Safety at Work Act and then
allow a period of time before the new law and supporting regulations come into
In its report on the Bill the Select Committee emphasised the importance of
full and accurate information being made available about the Bill’s consequences
for workplaces. It also welcomed and encouraged the development of guidance and
other material to accompany the legislation. WorkSafe New Zealand has confirmed
that there will be an education and information campaign to support people to
prepare for the new legislation before it comes into force.
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.