Health and Safety – More duties, greater accountability

The Independent Taskforce on Workplace Heath and Safety (the Taskforce) delivered its report to the Minister of Labour, Hon Simon Bridges in April 2013. The Taskforce has said there are “significant weaknesses” in New Zealand’s health and safety system coupled with “the absence … of elements to drive major improvements or to raise expectations.^[1]” With the spotlight firmly on health and safety, especially following the Pike River disaster and the Christchurch earthquakes (including the collapse of the CTV Building), it’s likely that the Taskforce’s recommendations will be adopted and implemented within the next 6–12 months.

The Taskforce’s recommendations are wide-ranging and will certainly impact on the rural sector. Recommendations likely to be implemented include:

• The establishment of a single crown agency, WorkSafe New Zealand, to promote, monitor and enforce workplace health and safety. It’s expected that the agency will commence in December 2013. The agency will take over the workplace health and safety investigations and operations role currently performed by the Ministry of Business, Innovation and Employment (MBIE)
• A yet-to-be-named new Act (New Act) based on the Australian Model Work Health and Safety Act 2011 (Australian Act) will replace the Health and Safety in Employment Act 1992 (HSE Act)
• The object of the New Act will be to secure, rather than just promote, the health and safety of workers and workplaces. The object will also contain a principle that “workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work … as is reasonably practicable.”
• The new Act will adopt the concept of a PCBU (a person conducting a business or undertaking). A PCBU will include individual (rural) business owners, trustee (rural) business owners and corporate (rural) business owners. A PCBU must “ensure that, as far as is reasonably practicable, the health and safety of the workers engaged or caused to be engaged by the person; and workers whose activities in carrying out work are influenced or directed by the person, and must also ensure that the health and safety of other persons is not put at risk from work carried out.^[2]”
• Comparable health and safety duties will extend to participants in the supply chain such as designers, manufacturers, importers and suppliers of plant, substances and structures, and commissioners of plant and structures
• Significantly, corporate PCBU officers will have specific duties under the New Act. Officers will generally include company directors, people acting as essentially de facto directors, (farm/rural) managers and other senior personnel who are responsible for strategic management and control. Such officers will have their own independent and positive duty to exercise due diligence and to apply best health and safety practice. In anticipation of the New Act, the MBIE has, with the Directors’ Institute of New Zealand, released a guide entitled “Good Governance Practice Guidelines for Managing Health and Safety Risks”. To obtain a copy, go to www.business.govt.nz
• The New Act will extend the existing manslaughter offence to corporations and revise the corporate liability framework that applies to all offences (including manslaughter), and
• In terms of enforcement, the positive duty on PCBUs and officers of PCBUs means that if an inspector identifies a breach of a health and safety obligation, such as a failure to undertake due diligence, a prosecution may follow even though no harm has eventuated. Further, the New Act will increase penalties for breaching health and safety obligations to comparable Australian Act levels. Under the Australian Act, reckless conduct offences by individuals incur penalties of up to $600,000 or five years’ imprisonment, or both; such offences by a body corporate incur penalties of up to $3 million.

Changes to New Zealand’s health and safety system are inevitable. They are happening and happening soon. It is also inevitable that the rural sector, with its poor health and safety record (noted by the Taskforce at p 10 of its report), will be a targeted by WorkSafe New Zealand. The time for taking steps to implement health and safety due diligence is rapidly approaching, if not here already.