1. HEALTH AND SAFETY REFORM BILL
“Chronic Unease”
Presented by
Scott Ratuki
Partner

2. Parliamentary Process
First reading – 13 March 2014
Submissions received – over 230
Select Committee Report – 24 July 2015
Will come into force on 4 April 2016
Will be known as the Health and Safety at Work Act

3. Pike River Mine disaster and Royal Commission of Enquiry – a catalyst for reform
Creation of Worksafe NZ with more resources
115 – 151 inspectors
Aiming for 200 by 2016
75 people killed each year
600 – 900 deaths from work related diseases
200,000 ACC claims
Estimated overall costs $3.5 billion

4. Our reforms based on the Australia Model Laws
Risk based, not injury based
Focused on prevention
Safe Work Australia last year had 82,000 visits to check on work practices
55,000 responses to injury events

5. Primary Focus is on securing the health and safety of workers and providing a high level of protection against harm to their health, safety and welfare from hazards and risks arising from work.

6. Individual as an officer Individual as a worker
Enforcement
Four categories of offences
Company
Individual as an officer
Individual as a worker
Category 1
(Reckless conduct)
$3 million
$600,000
OR five years in jail,
OR both
$300,000
Category 2
(Failure to comply with a duty exposing to risk of death or serious injury)
$1.5 million
$150,000
Category 3
(Failure to comply with a duty)
$500,000
$100,000
$50,000
Category 4
Breaching other specific requirements – various fines of lesser amounts
e.g. section 52 requirement to maintain records of notifiable events - $25,000

7. Key Changes and Definitions
PCBU
Person conducting a business or undertaking
Primary duty to ensure as far as is reasonably practicable the health and safety of workers at work
Currently duties are on these controlling a place of work
The definition of PCBU is wider than “employer”
“Business” – a business is usually an enterprise conducted with a view to making profit and having a degree of organisation, systems and continuity.
“Undertaking” – an undertaking may have some degree of organisation, systems and continuity, but it is not profit making or usually commercial in nature.

8. PCBUs PCBU is not: A worker An officer of the business or undertaking
a volunteer organisation
An occupier of a home employing someone in the home
PCBU can not be for profit – if it hires staff e.g. admin staff will be a PCBU

9. Work What is “work” helps inform when it is a business or undertaking
Involves physical or mental effort
Activities for which people are usually paid
Activities that are part of a process
Where control is exercised
Less likely where
it is purely domestic, recreational or social
the activity is ad hoc or unorganised

10. PCBU or Volunteer Association?
Are you and all others involved in the business or undertaking acting on a voluntary basis? NO
YES
The organisation is a PCBU and will owe duties, including to all its workers, (paid or volunteers)
Are you working for a community purpose? NO
YES
YES
Do any of you employ someone to carry out work for the business or undertaking?
The organisation is a VOLUNTEER ASSOCIATION. It is not a PCBU and does not owe any duties under the Bill. NO

11. Duties Primary duties all on PCBUs who: Manage or control a workplace
Manage or control fixtures, fittings or plant at workplaces
Design plant, substances, or structures
Import, supply, install, construct or commission plant or structures
Duties also fall on officers, non-officers and workers

12. Workers Workers are a wider group than employees Employees
Contractors or subcontractors
Employees of a contractor or subcontractor
Outworker
Apprentices or trainees
Persons undertaking work experience or work trials
Volunteer workers

13. Key Principles
Duty holders are required to comply with key principles:
Eliminate risks as far as is reasonably practicable
“Reasonably practicable” means what is or was reasonably able to be done at a particular time to ensure health and safety, taking into account and weighing up all reasonable matters”
Replaces the concept of “all practicable steps”
If you cannot eliminate, then minimise. Gone is the other option – to isolate

14. Duties of Officers
If a PCBU has a duty or an obligation under the Act, an officer must exercise due diligence to ensure the PCBU complies
Gone is Section 56 which placed duties on officers only when officers participate in health and safety management
Duty is now to be proactive

15. If PCBU is:
a company, then the directors
a partnership, then any partner
a body corporate or an unincorporated body or person in a role comparable to a director
a board then its board members
Includes any other person who makes decisions that affect the whole or a substantial part of a business or undertaking, i.e. Chief Executive, Chairperson etc. Legislation has made it clear it is someone with a “very senior governance role”

16. A Main Focus of the Legislation
Gain an understanding of the risks and hazards associated with the conduct of the business
Acquire and keep up to date knowledge of health and safety matters
Due Diligence duty
Ensuring the PCBU has, and implements processes for complying with duties under the legislation
Ensure the PCBU has, and uses, appropriate resources and processes
Ensure the PCBU has appropriate resources and processes for responding to information regarding incidents, hazards and risks in a timely way

17. Practical Considerations for Officers
Policy and Planning
Delivery of Objectives
Monitoring the PCBU’s Policies
Effective Review at Board Level

18. In Practice Cannot insure for penalties
Cannot transfer a duty or contract out of a duty
Strong paper trail of compliance steps essential
First thing WorkSafe inspectors will look at
Proactivity, not acquiescence

19. Delivery of Objectives
Does your health and safety management system reflect best practice? Outside appraisal
Systems for risk identification
Consideration of full range of risks
Keep tabs on organisational change
Sufficiency of processes when there is an emergency
Right people at all levels of delivery
Sufficiency of plant and equipment