Health and Safety at Work Act 2015

POSTED BY Duncan Coats
11 May 2016

posted in Business | Legislation | Employment | Health and Safety

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The new Health and Safety at Work Act 2015 (the Act) became law on 4 April 2016. The Act, along with the various regulations that underpin it, is extensive and lengthy.

We have set out below a reminder of the key concepts under the Act and will of course be happy to assist with any questions you have in connection with this important new law.

Who will owe obligations under the Act?

The short answer is that everyone, one way or another, will owe duties under the Act. The key duty holders in relation to a workplace or work of a business or undertaking will be:

Persons conducting a business or undertaking (PCBUs). A PCBU is the primary duty-holder under the Act. It will include not only employers but also, for example, partnerships, wholesalers, importers, manufacturers, suppliers, a school or a self-employed person. At any one workplace, there might be numerous PCBUs who are carrying out work (e.g. a building site). In such a situation, PCBUs will be required to co-operate, consult and co-ordinate their activities so as to ensure the health and safety of those affected by their work.

Officers. Officers are those who hold senior positions at a PCBU and those who have the ability to exercise significant influence over the management of a PCBU. Officers will include directors of a company (both actual and deemed), partners in partnerships, general partners in limited partnerships and chief executive officers.

Workers. It is important to note that the Act refers to “workers” instead of “employees”. A “worker” includes a broad category of individual and will include not only employees but also contractors, subcontractors, apprentices, outworkers, employees of a labour hire company or a person on work experience.

Other persons. This is effectively everyone else not mentioned above and will include, for example, customers and visitors at a workplace.

What do duty-holders need to do?

PCBUs: A PCBU’s primary duty is to ensure, so far as is reasonably practicable:
  • the health and safety of workers employed, engaged, influenced or directed by a PCBU;
  • that the health and safety of other people is not put at risk from work carried out by the PCBU.

Officers:
An officer has a primary duty to exercise due diligence to ensure the PCBU discharges its health and safety obligations. Exercising due diligence in the health and safety context will include keeping up to date on health and safety matters, understanding the PCBU's risks and hazards and ensuring a PCBU utilises its resources to discharge its health and safety obligations.

Workers and other persons:
Workers have an obligation to take care of their health and safety and ensure their acts or omissions do not harm others. They must also comply with reasonable policies, procedures or instructions issued by a PCBU. Other persons will need to take care of their own health and safety, the health and safety of others and obey a PCBU’s reasonable instructions.

Where will the duties be owed?

Duties will be owed wherever a PCBU carries out work. In particular, duties will be owed in respect of a “workplace”. The definition of a workplace under the Act is intentionally broad and includes a place where work is being carried out, or is customarily carried out, for a business or undertaking and any place that a worker goes, or is likely to be, while at work. This broad definition means that even a vehicle being used by a worker while working for a business will fall within the definition of a workplace.

We’re a small business, do we have to comply with the whole Act?

All PCBUs, regardless of their size, are expected to discharge their duties under the Act. The main exception relates to whether a small business has to allow for a health and safety representative to be elected and/or to establish a health and safety committee.

As long as your business does not fall within a “high risk” industry (the Government has specified which industries are “high risk”) and your business has fewer than 20 workers (note this is wider than just employees), then a PCBU will not be required to have a health and safety representative or to establish a health and safety committee. However, a PCBU will not come across in the best light if it relies on this exemption and a health and safety incident occurs - so in practice we expect most PCBUs will put in place representatives/a committee if required (i.e. even if they are not actually compelled to do so under the Act).

How long do I have to comply with the new Act?

The Act came into force on 4 April 2016. There is no transition period to get up to speed with the Act. Therefore to the extent that you are currently unaware of your duties or obligations, you should understand what is required under the Act as a matter of urgency.

What happens if the Act is breached?

There are numerous enforcement tools available to the principal regulator, WorkSafe, for a breach of the Act. These include infringement notices (i.e. on the spot fines), issuing guidance/warnings/improvement or non-disturbance notices and, in respect of serious breaches of the Act, prosecution.

Broadly speaking, the penalties and enforcement regime under the Act are far more severe than under the Health and Safety in Employment Act 1992. For example, under the Act the maximum penalty that a corporate PCBU could receive is $3million and officers failing in their duties could face fines of up to $600,000 and imprisonment of up to 5 years. The level of penalty imposed will depend on the type of breach committed.

This is all a bit onerous, isn’t it?

From the Government’s perspective, workers’ lives are at risk and New Zealand has a poor health and safety record when compared to other developed countries. The Government is seeking to ensure, through the Act and the accompanying regulations, that workplace accidents and fatalities are reduced by at least 25% by the year 2020.

Any action required?

Are you confident that your business is doing all that is reasonable to ensure that its activities are carried out in a safe manner? If you are an officer, are you exercising your due diligence duties in accordance with the Act. Have you got appropriate policies and systems of work in place and are those policies and systems of work being followed in the workplace?

For more information contact Duncan Coats.

Image courtesy of Chris.

POSTED BY Duncan Coats
11 May 2016

posted in BusinessLegislationEmploymentHealth and Safety

VIEWED 5032 TIMES

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