Working SaferThe building of a new regulatory regime

September 2014

Bronwyn Turley and Susan AdamsMBIE Policy

LegislationProblems Duty holders don’t know how to

comply Duties do not reflect changes in

working arrangements Directors do not have clear health

and safety obligations Gaps in coverage Compliance and enforcement

tools not sufficiently flexible Penalties not providing

sufficient incentive to comply

Solutions: New legislation based on

Australian Model Act More guidance “PCBUs” and workers Due diligence duty on officers

of PCBUs (directors etc) “So far as is reasonably

practicable” More explicit duties for

designers, suppliers etc More enforcement tools Higher penalties

Health and Safety Reform Bill

• Introduced to Parliament in March 2014• Referred to the Transport and Industrial

Relations Committee for consideration• Select Committee is hearing oral submissions on

the Bill

Person Conducting a Business or Undertaking (PCBU)

• Usually a business entity• Business or undertaking?

– Business is an enterprise usually conducted with a view to making a profit and having a degree of organisation, systems and continuity

– Undertaking may have some degree of organisation, systems and continuity, but usually not profit-making or commercial in nature

Person Conducting a Business or Undertaking (PCBU): Exclusions

• Householders – householder that engages or employs someone

solely to do residential work on or in their home• Volunteer associations - a group of volunteers:

– Working together for a community purpose, and – On a voluntary basis, and – Don’t employ any staff

Person Conducting a Business or Undertaking (PCBU): Duty

• A PCBU must ensure, so far as is reasonably practicable, the health and safety of:– workers employed or engaged or caused to be employed or

engaged by the PCBU and– workers whose activities in carrying out work are

influenced or directed by the PCBU, while the workers are carrying out the work

• A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

• Duty to consult other duty holders PCBUs should consult, co-operate and co-ordinate activities to meet their shared responsibilities– Capacity to influence or control – What is reasonably practicable

• Can’t contract out of duties, but can make reasonable arrangements to coordinate responsibilities

• Monitor to ensure doing what’s been agreed

Overlapping duties

Officers, workers & others

• Officers required to exercise due diligence to ensure that the PCBU complies with its duties

• Workers and others in the workplace also required to take a reasonable degree of responsibility for their own health and safety, and that of others

Volunteers under the Bill

• Volunteer association is not a PCBU under the Bill, and will owe no duties

• Volunteer – only a worker if they work for a PCBU• Volunteer officers of a PCBU

– Owe the due diligence duty but not an offence where they fail to meet that duty

Upstream duty holders

A PCBU who:

Designs

(clause 34)

Manufactures

(clause 35)

Imports

(clause 36)

Supplies

(clause 37)

Plant, substances or structures that are used, or could reasonably be expected to be

used, as or at a workplace

Installs, Constructs, or

Commissions

(clause 38)

plant or a structure that is

used, or could reasonably be

expected to be used, as or at

a workplace

Worker participation:The problem

• …the Taskforce found that worker participation in NZ is too often ineffective and often virtually absent

• Our legislation is less rigorous than overseas jurisdictions and excludes non-employees

Worker participation: Proposed requirements

• All workers may

refuse to do unsafe work

All workers have

protections from adverse

conduct

All PCBUs must engage with workers on health and safety matters

Workers or PCBUs may choose to have Health and Safety representatives (HSRs)

Workers or PCBUs may choose to have Health and Safety committees

(HSCs)

All PCBUs must have effective worker participation practices

PCBU may develop its own worker participation practices that meet the two duties above

Further detail about requirements are proposed to sit at the regulation level

Enforcement and penalties

• Range of enforcement tools, enforceable undertakings new, and others improved (infringement notices)

• Wider range of options available to the Court when sentencing (adverse publicity orders, training orders, project orders etc)

• Tiered offence regime with graduated penalties

Development of regulations to support the new Act

• Discussion document containing policy proposals about the first phase of regulations– General risk and workplace management– Worker participation and representation– Work involving hazardous substances– Major hazard facilities– Work involving asbestos

• Guidance/ACoP development process (WorkSafe NZ) will shadow this process

Further information

• www.mbie.govt.nzWorkplace Health and Safety Reform

• www.legislation.govt.nzHealth and Safety Reform Bill

• www.parliament.nzHealth and Safety Reform Bill

Currently before Select Committee