The Health and Safety Reform Bill 2014 (HSRB 2014) has been introduced into Parliament earlier this year in order to repeal the Health and Safety in Employment Act 1992 (HSEA 1992).
The fact is that more workers in New Zealand are killed or injured than other similar jurisdictions. The total cost to New Zealand is around an estimated $3.5 billion per year.
The Independent Task Force on Workplace Health and Safety delivered a critical report on current workplace health and safety system. This was augmented with the Royal Commission on the Pike River Coal Mine Tragedy. The basic conclusion was that the existing system involved a weak regulator with poor worker engagement and confusing regulation.
As part of this process, the HSRB 2014 based on the Australian “Model” Work Health and Safety Act 2011 will focus on systemic risk based regulation. New Zealand will be able to draw upon the Australian experience in interpreting and applying the Bill. To start with, the Ministry of Business, Innovation and Employment’s Health and Safety Group has now been reformed into WorkSafe New Zealand.
A main purpose of the Bill is that workers and other persons are to be given the highest level of protection against harm to their health, safety, and welfare from hazards and risks arising from work or from specified types of plant as is reasonably practicable. What is reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters. In short, there must be the protection of workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant.
A key term in the new Bill is “a person conducting a business or undertaking” (PCBU). It provides for a wider liability than that under the HSEA 1992. This includes employers, those who manage or control a workplace, fixtures, fitting or plant. It also includes those persons that design, manufacture, import, supply, install, construct, or commission of plant, substances or structures.
There are workers duties to take reasonable care for his or her own health and safety, that his or her acts or omissions do not adversely affect the health and safety of other persons, comply with any reasonable instruction in order to comply with the legislation and cooperate with reasonable policy or procedures relating to notified health or safety at the workplace.
The focus changes from identification of risks rather than hazards. This means that the legislation is designed in a performance based way with objectives to be reached rather than phrased in the negative as to how a particular way in which a particular risk should be controlled.
A feature of the Bill concerns uplift in worker participation. Previously, workers are subject to the pressure of work and faced production demands that were inconsistent with a safe and healthy workplace. This could, for instance, be as it was a Pike River where the workers have productivity bonuses which require cutting health and safety corners in order to maintain incomes.
The Bill addresses these concerns with the creation of health and safety representative for workers and otherwise provides for work groups where there is representation of workers. The health and safety representative is to be consulted by the PCBU about health and safety matters, conferred with when requested, allowed time off to perform functions, provided with information along with an overarching duty to provide resources, facilities and assistance. When a health and safety representative makes a recommendation, the PCBU must adopt it or provide written reasons why such a recommendation has not been adopted. If a health and safety representative provides that there are criteria to stop work, there are sufficient grounds to stop work.
The Bill brings about another raft of welcome changes to simplify health and safety law in New Zealand. There are dramatic increases in the category of offences with a three tiered hierarchy being introduced. The introduction of the Model Work Health and Safety Act into New Zealand law will bring with it interpretative and judicial guidance from the Australian provisions which will be useful. However, the true test will be when the Act is passed and put into practice.
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