Health and Safety Reform Bill – the Select Committee finally reports

Monday 27 July 2015

Authors: Rachael Brown and Tim Clarke

​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 signalled.

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 representatives.

  • 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.

Other changes

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 responsibilities.

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 force.

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.


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
  • Rachael Brown

    Partner Wellington
  • Tim Clarke

    Partner Auckland
  • Rob Towner

    Partner Auckland
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