The proposed amendments to the Health and Safety Reform Bill will dilute the compliance requirements on small businesses in lower risk industries, and narrow the scope of various definitions and duties.
The Government says the changes, with more to be introduced via Supplementary Order Paper (SOP), will deliver workplace safety without unnecessary red tape. Opponents say they betray the vision of the Independent Health and Safety Taskforce, and break the Government’s reform promises in the wake of the Pike River disaster.
We comment in detail on the changes and the future of the Bill.
Rights and responsibilities
Definition and responsibilities of 'officers'
The Transport and Industrial Relations Committee (the Committee) has recommended a further narrowing of the definition of ‘officers’. It still includes company directors, partners in partnership, and any person occupying a comparable role to a company director in any other incorporated or unincorporated body. The difference is in relation to the treatment of senior management.
Previously an ‘officer’ included a person who makes decisions affecting the whole or a substantial part of a PCBU’s (Person Conducting a Business or Undertaking) business. The Committee recommends this be narrowed to a person in a position to exercise significant influence over the management of the business or undertaking (for example, a chief executive). The definition expressly excludes those who ‘merely advise’ or ‘make recommendations’ to officers.
The Government intends to clarify by SOP that the extent of the officer’s duty will:
- depend on the nature of the business or undertaking
- take into account the position of the officer and the nature of their responsibilities, and
- be limited to what is within the ability of the officer to influence and control when managing the risk.
The further narrowing of the definition of ‘officer’ is consistent with an intention only to hold those at the very top of organisations criminally responsible for breaches of duty. Opposition parties contend this watering down will mean management would not be required to lead the charge on health and safety.
But it is important to remember a key part of the duty of an officer is to ensure management is doing just that, and to hold management to account.
The obligation on multiple duty holders to consult and co-ordinate with each other has been confined to PCBUs only, and not to officers and workers.
Further clarity will be provided by specifying PCBUs’ obligations to manage risk are limited to doing what is within their ability to control and manage. This fairly reflects that a PCBU should not be liable for a breach of duty if other PCBUs take different approaches, or where one PCBU attempts to comply and another PCBU does not.
Clarification on what is a 'workplace'
There are helpful amendments to the definition of ‘workplace’ in the Bill. Among these is:
- alignment with the current position that a workplace does not remain a workplace all of the time (this recognises that work may have finished in a certain location, and so the obligations attaching to that place will also cease), and
- an express provision that no obligations are owed by the PCBU to anyone who is on the premises unlawfully.
A number of submissions were made on both these points and the Committee has taken those into account. The confirmation that duties are not owed to trespassers is a particularly welcome clarification for those in rural, forestry, or coastal areas where access may be more difficult to control.
In response to concerns raised by the agricultural sector, the Committee has recommended a further amendment to limit the duty of PCBUs to farm buildings, their immediate vicinity, and areas where work is in fact being carried out at that time. The Government will also by SOP exclude the family home from the farm workplace.
Sensible amendments to the duty to notify incidents
A number of submitters observed the definition of ‘notifiable incident’ did not in fact require an ‘event’ to have occurred. It simply required a worker be exposed to a hazard of a certain type (e.g. a fall, or release from height of any substance).
This would have exposed those many businesses which undertake such activities as part of normal operations to significant notification obligations.
Submitters requested that ‘uncontrolled’ be added back into the definition (it had been in the exposure draft of the Bill). The Committee agreed and has recommended exactly that.
Rational reduction in rights and responsibilities
The Committee has recommended the Bill distinguish between volunteer workers and truly casual volunteers.
PCBUs are still required to engage with volunteer workers, now defined as those who work for a PCBU on an ‘ongoing and regular’ basis and whose work is integral to the business or undertaking. Exclusions are available when the volunteer worker is carrying out certain functions, such as fund-raising or assisting with sports or recreational activities.
Both casual and volunteer workers are still required to be considered by the PCBU as persons who may be affected by the business or undertaking. Volunteers, whether casual or volunteer workers, are still responsible for taking reasonable care of themselves while at work and ensuring that their actions or omissions do not adversely affect the health and safety of other persons in the workplace.
The Committee is recommending small businesses (20 employees or fewer) in low-risk sectors can refuse a request by employees to elect a health and safety (H&S) representative and/or a health and safety committee.
The proposed carve-out recognises the statutory paid leave training entitlements for H&S representatives could be onerous for small business. A further driver for this change is that the presence in a small workplace of a specially delegated H&S representative may engender an attitude among the other workers that responsibility rests with the elected representative only.
This loss of representation is meaningful as H&S representatives have powers to order the cessation of unsafe work, attend investigations, raise issues with the employer, call an inspector, and enter and inspect a workplace.
However, there are a number of balancing factors, and significant rights remain:
- workers themselves are empowered under the Bill to cease unsafe work and to refuse to carry out work until the matter has been resolved with the PCBU, and
- a small business can only refuse a request for an H&S representative or committee if satisfied that the worker participation practices it has in place are effective (all PCBUs, whatever their size or risk factor, will have a duty under the Bill to engage with their workers on health and safety matters).
High-risk vs low-risk industries
The issue of which industries are high risk will be settled by regulation, although Workplace Safety Minister Michael Woodhouse has said that these will not be drafted until after the Bill becomes law. Prime Minister John Key has indicated that they will include construction, agriculture, forestry, and mining.
Limitation period reduced
We have previously commented the Bill proposed a comparatively long period for bringing prosecutions – up to two years after the breach first comes to WorkSafe’s notice, and up to one year after the coroner releases findings indicating that an offence may have occurred.
These timeframes have now been halved – to twelve and six months respectively. Specific criteria have been introduced for any application WorkSafe might make to the District Court to extend those time periods in any particular case, and limiting any extension to no more than a further twelve months.
Private prosecutions may still be brought up to two years after the breach first came to WorkSafe’s attention.
The Bill from here
The Bill is now more focused than earlier drafts, and many of these amendments sensibly assist with compliance. The Bill still represents a significant improvement on the existing regime.
There will be time for duty holders to prepare for the changes, but the key will be attending to this sooner rather than later.
Our thanks to Jenna Riddle for writing this Brief Counsel. For futher information please contact the lawyers featured.