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Brief Counsel

Do you have what it takes to be a health and safety PCBU?

08 August 2013

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If all goes according to plan, we will have a tougher health and safety (H&S) regime in place by the end of next year and an ugly new acronym will have entered the language – the “PCBU”.

The PCBU, or the “person conducting a business or undertaking”, will be responsible for assigning H&S duties to those people in the workplace who are best positioned to control the relevant safety risks. 

The legislation, part of the Pike River legacy, is based on the Australian Model Work Health and Safety Act and will be introduced into the House in December. 

Ambitious goals

The Government has set itself ambitious goals, both numeric and cultural:

  • to achieve a 10% reduction by 2016 in work-related fatalities, serious non-fatal injuries and ACC claims requiring more than a week away from work, and
  • to foster “a New Zealand culture that recognises that health and safety is not a burden but an investment in good business practice, improved productivity and reliability, and an engaged workforce”.

Delivery mechanisms

There will be three layers of responsibility.

  • At the national level will be WorkSafe, the new standalone Crown agency which was announced early this year and will be in place by December.
  • At the company level will be directors and officers, who will have a new, proactive duty of due diligence.
  • At the workplace level will be the PCBUs who will be responsible for putting in place the H&S team on the ground.  

Broad approach

The decision to follow the Australian law was well-telegraphed in advance and was adopted for three broad reasons:
  • it is familiar in that it maintains the Robens model1 which informs the current Health and Safety in Employment Act, but is sufficiently “novel” to alert duty holders and regulators to the idea that change is in the air
  • it will simplify compliance for trans-Tasman businesses, and (importantly)
  • it will allow New Zealand to draw on the Australian experience in developing the Codes of Practice and guidelines which will underpin the new regime.  Submitters identified a lack of adequate guidance as a key weakness of the present structure so these tools are seen as important and the expectation is that WorkSafe will dedicate significant resource and consult widely in developing them.

New standards and broader responsibilities

A change from a “hazard-based” analysis to a broader “risk based” approach that has a presumption in favour of safety.  All PCBUs will owe obligations to anyone affected by the work being done. 

Strong enforcement toolkit

New duty of due diligence for directors and officers

Directors and officers will be required to take an active interest in H&S matters and make enquiries as to compliance, much as their obligations in signing off on a prospectus or annual report. 
The Government sees this as an important change to help set direction and leadership on health and safety at work.
Voluntary officers (e.g. school trustees) will be excluded from this duty.  And the duty is an individual one.
It means that by the end of 2014, directors and officers will be required to:
  • understand the nature of operations and the risks and hazards associated with those operations, and
  • ensure that there are appropriate resources and processes in place to eliminate or minimise hazards (and that they are being used).
We recommend that boards start engaging with the new extended duties now so that they and their companies are well placed to comply when the new Act comes into force. 

Tougher penalties

The Government has adopted the Australian tiered approach and proposes to increase penalties substantially.
  • Category 1 (reckless conduct) – up to $3 million for a corporate and $600,000 for an individual and/or five years’ imprisonment.
  • Category 2 (conduct causing, or exposing a person to serious harm) – up to $1.5 million for a corporate and $300,000 for an individual.
  • Category 3 (breach of duty) – up to $500,000 for a corporate and $100,000 for an individual.
Imprisonment will be reserved for reckless and intentional conduct only.  We welcome that approach which is consistent with the treatment of directors’ duties in the Financial Markets Conduct Bill.
The Government is still considering whether to extend the existing manslaughter laws to include corporate manslaughter.  We remain of the view that this is unnecessary in light of the extended responsibilities of duty holders and the stronger penalty regime.  

New enforcement options

These include:
  • removal of the requirement for prior warning for infringement notices, and
  • enabling judges to order wrong-doers to publicise their failures, take action to remedy those failures and pay for the regulator’s costs in bringing proceedings against them.

A stronger framework for worker participation

A number of measures will be introduced to support worker participation, including:
  • specific obligations on employers
  • expanded powers and responsibilities for H&S representatives
  • protections for workers who raise H&S issues, and
  • a requirement that all workplaces must have worker participation systems appropriate to their size.

Controls to manage hazardous substances

Regulation of workplace hazardous substance use will pass to WorkSafe and the Health and Safety at Work Act.  But firms introducing hazardous substances to the market will continue to deal with the HASNO regime and the Environmental Protection Authority for approvals and compliance.
For further information or assistance, please contact the lawyers featured.
Footnotes
1. The Robens model seeks to increase awareness and competence in identifying and managing workplace risk rather than relying
     on prescriptive requirements which focus on a narrow range of hazards.

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