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
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
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.
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
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
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
difficulty of compliance for small businesses; and
some populations are at greater risk than others.
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.
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
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.
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
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.