Important Changes in Health and Safety Law

Reform Initiatives

• Plan for improved service delivery by MBIE

Legislative ReformHealth and Safety at Work Bill

• Based on the Australian Model Work Health and Safety Act.

• Object is to ensure workers’ health and safety

• New offences and increased penalties

• New duty to take “reasonably practicable steps”

Health and Safety at Work BillFeatures

• A broader duty on “persons conducting a business or undertaking”

• A presumption in favour of the highest level of protecting workers from harm

• Comprehensive regulation of major hazard facilities

• Increased interaction between new regulator, other government agencies, and work places.

Health and Safety at Work BillFeatures

• Increased worker consultation and involvement in health and safety

• The new regulation will be underpinned by regulations, approved codes of practice, and guidance materials

• New due diligence duty on directors and officers

Health and Safety at Work BillTimeframe

• WorkSafe currently being established and will be operational in December 2013

• The Bill will be introduced to Parliament in December 2013 and enacted by the end of 2014

• A funding review of WorkSafe will be conducted in December 2015

Implications of changeWhat will be required?

• HSEA requires all practicable steps to be taken to safeguard health and safety

• All steps that it is reasonably practicable to take in the circumstances having regard to prescribed matters

• MHSL imposes a test of reasonably practicable steps

• A step which is, or was at a particular time, reasonably able to be done taking into account prescribed matters

Implications of changeWho will be affected?

• HSEA contains separate but parallel obligations for different duty holders

• Australian MHSL imposes a single obligation on all “persons in control of a business undertaking”

• Increased emphasis on upstream suppliers, e.g. designers, manufacturers, and suppliers of plant, substances, and structures

• Additional due diligence obligation on those in governance roles

Implications of changeDue diligence role for those in governance

• Individual liability for directors and officers under the HSEA

• As an officer, director, or agent who authorised, assented to, acquiesced in, or participated in a corporate failure

• More direct liability under the MHSL

• Officers must exercise due diligence to ensure the PCBU complies with its obligations

• Due diligence requirements prescribed by statute

Implications of changeDue diligence role for those in governance

• Institute of Directors Guideline

Implications of changeEnforcement : PenaltiesNew Zealand AustraliaOffences and Penalties

• Action/inaction knowing that it is reasonably likely to cause death or serious injury – fine of up to NZ$500k and/or two years’ imprisonment

• Failure to comply with duties – fine of up to NZ$250k

Offences and Penalties

• Category 1 (reckless conduct) $A3million : corporate $A300k/600k : individual/officer

and/or five years’ imprisonment

• Category 2 (conduct causing / exposing person : serious harm)

$A1.5 million : corporate $A150k/300k : individual/officer

• Category 3 (breach of duty) $A500k : corporate $A50k/100k : individual/officer

Implications of changeEnforcement : Penalties

• Changes will drive the new regime to be similar to Australia

• Introduction of the three-tier system Reckless conduct Exposure to risk of death or serious harm Other failures

• Individual fines proposed to range from $50k to $600k, with increase in maximum prison term to 5 years

• Fines will also dramatically increase for corporates (up to $3m)