Independent Taskforce recommends urgent and sweeping changes of current workplace health and safety system

Tuesday 21 May 2013

Authors: Rob Towner, Grace Stacey-Jacobs and Anna Holland

Introduction

After a 10-month inquiry process, the Independent Taskforce on Workplace Health and Safety issued its findings last month. It recommends urgent and sweeping changes to the current system which it has described as "not fit for purpose".

The report identifies major and systemic weaknesses that contribute to New Zealand's poor workplace health and safety record under the current legislative framework. The Taskforce has made wide-ranging recommendations, which, if implemented, could result in a complete overhaul of the system. Two recommendations that are of particular interest to employers are the extension of criminal manslaughter to corporations and enabling judges to make adverse publicity orders against businesses that have breached health and safety laws.

It remains to be seen whether all recommendations will be adopted, but the Government has strongly signalled systemic change, having already accepted the Taskforce's early recommendation for a new stand-alone health and safety agency. It will respond to all other recommendations in July.

The Taskforce considers that the Government's "modest" target of a 25 percent reduction in the rate of fatalities and serious workplace injuries by 2020 can easily be met if the full package of recommendations is implemented. However, the Taskforce has set its own ambitious target for New Zealand to be to be among the safest place in the world to work by at least 2023.

Chairman of the Taskforce, Rob Jager, has said that this vision is achievable but it will require an "urgent, board-based step-change in approach and a seismic shift in attitude". "It will also require strong leadership, with business, workers, unions, industry organisation and the Government all having vital and shared roles to play in achieving this vision."

Government, employers and unions agree on the need for change given New Zealand's comparatively poor rates of work related fatalities and injuries. The Government welcomes the report and has recognised the need for a renewed approach. Labour Minister Simon Bridges has said that the report provides "a solid foundation and constructive recommendations for system-wide changes" which the government will consider carefully. Council of Trade Unions President Helen Kelly has called for the recommendations to be adopted in full.

Background to the establishment of the Independent Taskforce

In June 2012 Cabinet established the Taskforce to undertake a strategic review of whether the New Zealand workplace health and safety system is fit for purpose. The review is timely as it has been 20 years since the enactment of the Health and Safety in Employment Act 1992 and 10 years since the last significant review of the regulatory framework.

The objectives of the review were to identify whether the overall workplace health and safety system remains fit for purpose, to provide an assessment of the current performance, and to recommend a package of practical measures that are expected to reduce the rate of fatalities and serious injuries by at least 25 percent by 2020.

Findings

The Taskforce found that there is no single criteria factor behind New Zealand's poor workplace health and safety record. It is a result of systemic failings with a significant number of significant weaknesses across all components of the system. We set out below the major weaknesses identified by the Taskforce:

  • confusing and weak regulation, with multiple pieces of legislation overlapping, and a lack of co-ordination between regulating agencies;

  • poor worker engagement and representation, and inadequate leadership;

  • capacity and capability shortcomings arising from a lack of skill and knowledge of health and safety risks, regulatory requirements, and rights and obligations of workers, managers, health and safety practitioners and business leaders;

  • inadequate incentives and deterrents to drive compliance and foster behaviours that lead to continual improvement;

  • poor data and measurement;

  • a risk-tolerant culture;

  • insufficient oversight of major hazard facilities (such as the offshore petroleum industry);

  • difficulty of compliance for small businesses; and

  • some populations are at greater risk than others.

Recommendations

The Taskforce has recommended an overhaul of the current workplace health and safety system. It divides its recommendations into three groups or "levers": accountability levers, which enable government to set expectations through regulation and provide state agencies with a mandate and function; motivating levers, which enable government to encourage desirable behaviours; and knowledge levers, enabling government to influence behaviours.

Accountability levers

  • Establishing a new and well-resourced Crown agency responsible for workplace health and safety. This agency should be provided with a clear identity and brand, and statutorily defined functions including primary responsibility for workplace harm and prevention strategy, and implementation.

  • Replacing the current Health and Safety in Employment Act 1992 with a new Act based on the Australian model, which extends duties to all relationships between those in control of workplaces and those who are affected, and to those in governance roles. The Taskforce has also recommended that the current "all practicable steps test" be replaced with the Australian "reasonably practicable" test to improve certainty and clarity that risk-based decision making is required, and to create a presumption in favour of health and safety.

  • Strengthening the legal framework for worker participation by placing specific obligations on employers to support worker participation, expanding powers and responsibilities of worker health and safety representatives, and providing stronger protection for workers who raise health and safety matters.

  • Aligning and co-ordinating workplace health and safety activities to make it easier for the new agency guide, co-ordinate and enforce the law, and to reduce complexity and uncertainty for business. This should include the incorporation of current hazardous substances legislation into the new Act, creation of a partnership between the new agency and ACC to oversee funding arrangements for the delivery of workplace injury prevention activities, and the implementation of service-level agreements between the new agency and various transport regulatory agencies to ensure strategic and operational co-ordination of health and safety services.

Motivating levers

  • Implementing measures that reward businesses for better health and safety performance through a levy regime that more meaningfully differentiates based on risk and performance.

  • Implementing measures that increase the costs of poor health and safety performance. This includes increasing penalties and cost recovery, revising the corporate liability framework that applies to all offences and introducing a hierarchy of offences, and extending the existing manslaughter defence to corporations. The Taskforce has warned against introducing a new law on corporate manslaughter because other jurisdictions have had very limited success in establishing an effective approach to the offence. Rather, the Taskforce suggests extending the current criminal manslaughter offence to corporations, which would require attributing criminal liability to a corporation where two or more individuals of the required seniority within the company engaged in conduct that, had that been the conduct of only one of them, would have made them personally liable for the offence.

  • Implementing an adverse publicity order penalty. Judges should be enabled (but not compelled) to make adverse publicity orders, such as requiring a company to publish an advertisement in a newspaper detailing its safety breaches.

Knowledge levers

  • Providing businesses with improved and more readily-available data on workplace injury and occupational health performance by establishing sector-leading research within the new agency and requiring that it lead development and implementation of a workforce development strategy. The new agency's compliance activity will be focused on harm prevention with far greater emphasis placed on root-cause analyses in investigations.


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
  • Rob Towner

    Partner Auckland
  • Tim Clarke

    Partner Auckland
  • Rachael Brown

    Partner Wellington
Related areas of expertise
  • Employment and workplace safety
  • Health and safety