Mark the 1st April 2015 in your diaries now. This is the date that the revised New Zealand Health and Safety at Work Act comes into force. If the NZ government has anything to do with it (and after all, it wrote the thing; well the Australian Government did!) this Act will change the face of Health and Safety as we know it.
With some aggressive targets of reducing work-place deaths by 25% over the next five years, this bill has wide-reaching impact. In summary some of the major changes will be:
An expanding vocabulary
The Act will introduce some new concepts (and words) to the life of virtually everyone involved in enterprise. Firstly there’s the concept of a ‘worker’. Note that this is nothing to do with their employment status. The fact that someone in your office or factory is self-employed has no bearing. They are a worker in your workplace.
A new acronym, the “PCBU” rears its head. This a Person in Charge of a Business or Undertaking and might be a company or corporation. Note the absence of the word ‘employer’. The PCBU’s main responsibility it to ensure the Health and Safety of all people at the worksite, including employees, clients, visitors, contractors (and their subbies). PCBUs can be companies (and any person who is deemed to be in a position of a Director, whatever their actual title), partnerships and body corps.
The PCBU will have some Officers. Officers are people who make decisions that affect the whole business (or a substantial part of it). Generally, Staff are not Officers, nor Line Managers or Supervisors.
However, there is bound to be lots of legal fun when the time comes draw the lines between Directors, CEOs and Senior Managers and how each role is defined within the terms of the Act. The legal constitution of the company will be important here, as will their processes of corporate governance and their Board structure.
Officers will no longer have the power to delegate responsibility. Instead they will inherit a formal positive duty to ensure the whole Governance, Risk and Health & Safety structures are functioning well. This due diligence also includes the need to acquire and maintain a current knowledge of workplace H & S issues. Officers will also need to ensure the PCBU has appropriate resources and process to eliminate or reduce risks.
A culture of safety
A new emphasis in on the word engagement. PCBUs now have a duty to engage workers in the entire Health and Safety culture. Simply informing them is not enough; workers are entitled to contribute to the decision making process, raise issues and express their views.
Workers can be represented by Health and Safety Reps (HSRs) and/or Health and Safety Committees (HSPs), and workers must be provided with reasonable opportunities to engage with these on an ongoing basis. Training for HSPs has become a major new focus, with the PCBU being under a duty to provide that training without cost and at normal pay.
Once an HSR has been trained, they can issue a Provisional Improvement Notice (or PIN) in effect giving notice to the PCBU that an item of equipment, for instance, is in their view unsafe and cannot be used. Although the PCBU has the right to appeal, the PIN may not be removed until after the appeal process has been completed.
PINs can be escalated to the status of Improvement Notices, then onto Prohibition Notices. It is these areas that PCBUs are most likely to come into contact with Worksafe, who will provide a team of inspectors to advise and enforce.
Workers have a right to cease unsafe work, although the PCBU can redirect the worker to other tasks that are appropriate for that worker.
In summary, the new Act seems to be placing a lot of emphasis on the concepts of process, due diligence, verification, transparency and reporting. In fact there seems to be a whole lot of sticks, with the carrots few and far between.
In the ‘stick’ department, the types of offences which can be committed under the Act have been categorised under three headings:
Reckless Conduct (the most serious breach). Penalties include fines of up $3m and/or 5 years in jail for Officers
Failure to Comply with a Duty, Causing an Exposure to Risk. Fines range up to $1.5m, including individual Officer
Failing to Comply with a Duty (a “technical breach”) Fines go up to $500k, again including individual Officers
Remember that Officers can be found guilty of a breach, even if the PCBU has not been convicted.
On the positive (carrot) side, of course lots of this is based on common sense, and the government can be applauded for trying to reduce workplace deaths and harm substantially over the next few years.
They appear to be taking a reasoned approach to the legislation, and Worksafe have indicated that their role will be one of mentors and advisers initially. However, it’s pretty safe to say that the big sticks will come out after the first few years. Being one of their first test cases taken to court will not be a pleasant experience!
Nick Hadley is Sales & Marketing Director of Safetyware Ltd, a New Zealand based software-as-a-service provider. Safetyware helps to keep your workers safe, reduces injuries, lowers operating costs, and helps to ensure regulatory compliance.