HEALTH AND SAFETY REFORM BILL “Chronic Unease” Presented by Scott Ratuki Partner

Parliamentary Process First reading – 13 March 2014 Submissions received – over 230 Select Committee Report – 24 July 2015 Will come into force on 4 April 2016 Will be known as the Health and Safety at Work Act

Pike River Mine disaster and Royal Commission of Enquiry – a catalyst for reform Creation of Worksafe NZ with more resources 115 – 151 inspectors Aiming for 200 by 2016 75 people killed each year 600 – 900 deaths from work related diseases 200,000 ACC claims Estimated overall costs $3.5 billion

Our reforms based on the Australia Model Laws Risk based, not injury based Focused on prevention Safe Work Australia last year had 82,000 visits to check on work practices 55,000 responses to injury events

Primary Focus is on securing the health and safety of workers and providing a high level of protection against harm to their health, safety and welfare from hazards and risks arising from work.

Individual as an officer Individual as a worker Enforcement Four categories of offences Company Individual as an officer Individual as a worker Category 1 (Reckless conduct) $3 million $600,000 OR five years in jail, OR both $300,000 Category 2 (Failure to comply with a duty exposing to risk of death or serious injury) $1.5 million $150,000 Category 3 (Failure to comply with a duty) $500,000 $100,000 $50,000 Category 4 Breaching other specific requirements – various fines of lesser amounts e.g. section 52 requirement to maintain records of notifiable events - $25,000

Key Changes and Definitions PCBU Person conducting a business or undertaking Primary duty to ensure as far as is reasonably practicable the health and safety of workers at work Currently duties are on these controlling a place of work The definition of PCBU is wider than “employer” “Business” – a business is usually an enterprise conducted with a view to making profit and having a degree of organisation, systems and continuity. “Undertaking” – an undertaking may have some degree of organisation, systems and continuity, but it is not profit making or usually commercial in nature.

PCBUs PCBU is not: A worker An officer of the business or undertaking a volunteer organisation An occupier of a home employing someone in the home PCBU can not be for profit – if it hires staff e.g. admin staff will be a PCBU

Work What is “work” helps inform when it is a business or undertaking Involves physical or mental effort Activities for which people are usually paid Activities that are part of a process Where control is exercised Less likely where it is purely domestic, recreational or social the activity is ad hoc or unorganised

PCBU or Volunteer Association? Are you and all others involved in the business or undertaking acting on a voluntary basis? NO YES The organisation is a PCBU and will owe duties, including to all its workers, (paid or volunteers) Are you working for a community purpose? NO YES YES Do any of you employ someone to carry out work for the business or undertaking? The organisation is a VOLUNTEER ASSOCIATION. It is not a PCBU and does not owe any duties under the Bill. NO

Duties Primary duties all on PCBUs who: Manage or control a workplace Manage or control fixtures, fittings or plant at workplaces Design plant, substances, or structures Import, supply, install, construct or commission plant or structures Duties also fall on officers, non-officers and workers

Workers Workers are a wider group than employees Employees Contractors or subcontractors Employees of a contractor or subcontractor Outworker Apprentices or trainees Persons undertaking work experience or work trials Volunteer workers

Key Principles Duty holders are required to comply with key principles: Eliminate risks as far as is reasonably practicable “Reasonably practicable” means what is or was reasonably able to be done at a particular time to ensure health and safety, taking into account and weighing up all reasonable matters” Replaces the concept of “all practicable steps” If you cannot eliminate, then minimise. Gone is the other option – to isolate

Duties of Officers If a PCBU has a duty or an obligation under the Act, an officer must exercise due diligence to ensure the PCBU complies Gone is Section 56 which placed duties on officers only when officers participate in health and safety management Duty is now to be proactive

If PCBU is: a company, then the directors a partnership, then any partner a body corporate or an unincorporated body or person in a role comparable to a director a board then its board members Includes any other person who makes decisions that affect the whole or a substantial part of a business or undertaking, i.e. Chief Executive, Chairperson etc. Legislation has made it clear it is someone with a “very senior governance role”

A Main Focus of the Legislation Gain an understanding of the risks and hazards associated with the conduct of the business Acquire and keep up to date knowledge of health and safety matters Due Diligence duty Ensuring the PCBU has, and implements processes for complying with duties under the legislation Ensure the PCBU has, and uses, appropriate resources and processes Ensure the PCBU has appropriate resources and processes for responding to information regarding incidents, hazards and risks in a timely way

Practical Considerations for Officers Policy and Planning Delivery of Objectives Monitoring the PCBU’s Policies Effective Review at Board Level

In Practice Cannot insure for penalties Cannot transfer a duty or contract out of a duty Strong paper trail of compliance steps essential First thing WorkSafe inspectors will look at Proactivity, not acquiescence

Delivery of Objectives Does your health and safety management system reflect best practice? Outside appraisal Systems for risk identification Consideration of full range of risks Keep tabs on organisational change Sufficiency of processes when there is an emergency Right people at all levels of delivery Sufficiency of plant and equipment