The Minister for Workplace Relations and Safety, Brooke van Velden, has unveiled much-awaited amendments to the Health and Safety at Work Act 2015 (HSWA).
The proposed reforms are described as cutting red tape, increasing certainty, and reducing compliance costs. The announcements will be of particular interest to company directors, small businesses, and rural landowners.
At this early stage, the announcements are high-level, and the text of the proposed legislation will not be available until later in the year.
The most significant points from the various announcements are below.
Key reforms
- Focus on critical risk
In the first announcement, the Minister advised that HSWA will be focused on critical risks to reduce "box ticking" that has little safety benefit.
The most significant example of that focus is reducing requirements for small businesses in low-risk industries (SLRs). SLRs will be exempt from general HSWA duties but will still be required to manage "critical risks" (risks that cause death, serious injury or illness). - Removing overlap between HSWA and other regulatory systems
The Minister has announced that the changes will clarify the boundaries between HSWA and other regulatory systems that manage the same risk. No further detail is available at this point, but there are a variety of regimes that target specific risks across a range of sectors.
For example, one area that has been of concern to many businesses is the relationship between HSWA and the earthquake prone buildings regime. - Landowners not to be responsible for recreational activities on their land
Landowners who permit people to undertake recreational activities on their land will not be responsible if someone is injured on their land while participating in those recreational activities. Responsibility will lie with the organisation running the activity. Where there is no such organisation, as is often the case for walkers, fishers and others, presumably there would be no Person Conducting a Business or Undertaking (PCBU) responsible.
Landowners would still have obligations to protect people from risks arising from their own work activities.
This announcement appears to reflect WorkSafe's position statement on access to land and is consistent with the High Court's recent ruling in Whakaari Management Ltd (read our insight here). Landowners will, however, no doubt welcome a clear statement of that principle in the HSWA itself. - Distinguishing between governance and operational management
The Government intends to clarify the distinction between governance (which attracts due diligence duties) and operational management (which does not). This responds to feedback that the distinction is unclear leading to directors duplicating the work of management rather than concentrating on governance and strategic oversight. - Safe harbours for Approved Codes of Practice
The Government wants to see increased use of Approved Codes of Practice (ACOPs), which could be initiated by industry groups but would require ministerial approval. ACOPs provide practical sector-specific guidance for duty holders operating in certain industries. Currently, development of ACOPs is led by WorkSafe.
Compliance with an ACOP is already strong evidence of compliance with HSWA. The Government proposes that complying with an ACOP would be deemed to amount to compliance with HSWA.
This proposal could provide well organised industry groups the opportunity to lead health and safety measures on key industry risks.
Comment
Many of the announced reforms are targeted at increasing certainty for businesses. That is a worthwhile goal and could realise real benefits. Increased use of high quality ACOPs, in particular, could lift standards while simplifying compliance for many operators.
The challenge will lie in ensuring that the changes really do increase certainty and do so while improving New Zealand's comparatively poor health and safety record.
Getting critical risks right is critical
It makes sense to focus on critical risks and businesses should already have been doing that. However, if some organisations are to be exempt from compliance with "general" duties, the scope of carve out and exactly who it applies to will need to be very clear.
The fact sheet provided with the announcements suggests that critical risks are those that cause serious injury. A process that is focussed on outcome, rather than the nature of the hazard itself, may prove difficult for SLRs to implement.
The Minister gave the example of a small clothing shop not needing a psychosocial harm policy. That seems reasonable, but the small clothing shop will still need to ensure that bullying and sexual harassment do not occur. Even if SLRs are exempt from having to comply with mental health duties under HSWA, employment law and human rights obligations will continue to apply.
Governance and due diligence
Finally, the distinction between governance and management could also usefully be clarified. However, it can be argued that what would be most useful to officers is confirmation that due diligence obligations are confined to governance activities, regardless of who performs them.
The approach of the courts has been to impose due diligence obligations on all of the activities of officers, even actions that are entirely operational.
This is particularly an issue for smaller businesses where a director may be involved in day-to-day business or in larger organisations where officers such as chief executives have important operational roles.
Watch this space
It is hard to argue with the objectives of the reforms, but the devil will be in the detail. We will therefore need to wait a bit longer to fully understand the changes proposed.