Health and Safety at Work Act 2015
30 March 2016This Act finally comes into force on 4 April 2016. Much has already been said about its specific provisions.
Our view is that legislation and a strict compliance regime will not protect your people, or your business. We are concerned that too many people are focused on ticking the boxes and protecting their butts, rather than genuine improvements in health and safety. What makes the critical difference is the attitude and commitment of all people in the business. If we are serious about improving health and safety we must develop lasting behavior change by creating a culture that is collectively mindful of safety and well-being.
Those of you who attended our recent seminar with Gina Carlon-Tozer of Safety Mind were treated to a first class presentation on this point.
Management of Risks
- All risks to health and safety must be eliminated, so far as is reasonably practicable.
- If it is not reasonably practicable to eliminate such risks, they must be minimised so far as is reasonably practicable.
Duty of PCBUs
A PCBU must ensure so far as is reasonably practicable, the health and safety of:
- Workers who work for the PCBU.
- Workers whose activities in carrying out work are influenced by the PCBU.
- Other persons who may be affected by the conduct of the business or undertaking.
In this context "workers" means more than employees of the PCBU as it extends to other persons performing work for the PCBU such as contractors and their employees.
Where there is more than one PCBU involved in a workplace they must consult, cooperate with and co-ordinate their activities.
Duty of Officers
- An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its obligations under the Act.
- Due diligence is a positive obligation requiring officers to ensure their PCBU complies with its obligations.
- In this context "officer" means a director of a company (or a partner of a partnership) or any person exercising significant influence over the management of the business, such as a CEO.
Duty of Workers
Workers must:
- Take all reasonable care for their own safety
- Ensure that their acts or omissions do not adversely affect the health and safety of other persons.
- Comply with any reasonable instruction or policy of the PCBU.
In this context "worker" means an individual who carries out work in any capacity for a PCBU, including work as:
- An employee
- Contractor
- An employee of a contractor or subcontractor
- An employee of a hire company and so on.
Duty to Engage with Workers
All PCBUs must, so far as is reasonably practicable, engage with workers about health and safety in the workplace. “Workers” means direct employees, contractors and subcontractors and their employees and any person working in the business who is likely to be directly affected by a matter relating to workplace health or safety.
The penalty for failing to comply with the above obligation is a fine of up to $20,000 for an individual and up to $100,000 for any other person.
This obligation requires:
- Sharing relevant information with workers.
- Providing a reasonable opportunity for workers to express their views and to raise health and safety issues in relation to the matter.
- Allowing workers to contribute to the decision-making process relating to the matter.
- Taking their views into account.
- Advising workers of the outcome in a timely manner.
“Engagement” in this context applies in relation to:
- Identifying hazards and assessing risks.
- Making decisions about ways to eliminate or minimise those risks.
- Making decisions about facilities for the welfare of workers.
- Proposing changes that may affect the health or safety of workers.
- Making decisions about the procedures for engaging with workers, monitoring their health and safety, monitoring the conditions at the workplace, providing information and training for workers and developing worker participation practices, including when determining the size of work groups.
Health and Safety Representatives
Note: A PCBU is not required to initiate the election of health and safety representatives if:
- The business or undertaking is carried out by fewer than 20 workers, and
- The business is not in a specified high risk sector or industry.
A PCBU may on its own initiative, initiate the election of 1 or more health and safety representatives to represent workers.
Alternatively a worker may notify the PCBU that they wish to have 1 or more health and safety representatives elected to represent workers in the workplace. The workers can nominate themselves or nominate other candidates. If the PCBU receives such notification the election must be initiated within the time prescribed in the regulations (currently within 2 months). There must be a secret ballot if requested by a member of the work group, a candidate or the PCBU.
The default ratio is a minimum of 1 representative for every 19 workers.
The PCBU must:
- Provide the resources, facilities and assistance necessary to conduct the election. Note that this includes payment of any costs associated with providing information about the candidates, determining how and when the election will be conducted, calculating the results and communicating the outcome.
- Inform the workers of work group they are in and the number of representatives to be elected.
- Provide the representatives of the workers with the same information.
- Call for nominations.
A list of representatives and their contact details must be prominently displayed in the workplace.
Health and Safety Committee
Note: A PCBU is not required to establish a health and safety committee if:
- The business or undertaking is carried out by fewer than 20 workers, and
- The business is not in a specified high risk sector or industry.
A request that the PCBU establish a health and safety committee may be made by:
- A health and safety representative for the group of workers carrying out work at that workplace, or
- 5 or more workers at that workplace.
The PCBU must decide the matter within 2 months of receiving such request. Written notice must be given to workers as soon as practicable but no later than 14 days after the decision is made.
The penalty for failing to comply with the above obligation is a fine of up to $5,000 for an individual and up to $25,000 for any other person.
Note: The PCBU may refuse a request to establish a health and safety committee if it is satisfied that existing worker participation practices at the workplace sufficiently meet the requirements of the Act.
Prohibition on Adverse Conduct
A person must not engage in adverse conduct for a prohibited health and safety reason. In general this means a person may not subject a worker to detriment by virtue of their involvement in health and safety activities.
A person engages in “Adverse Conduct” if they:
- Dismiss a worker who is an employee; or
- Terminate a contract for services with a worker; or
- Refuse or omit to employ or engage any person on work of any description that is available and for which that person is qualified; or
- Refuse or omit to offer or afford to the worker the same terms of employment or engagement, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other workers of the same or substantially similar qualifications, experience, or skills who are employed or engaged in the same or substantially similar circumstances; or
- Subject the worker to any detriment, in circumstances in which other workers employed or engaged by the person on work of that description are not or would not be subjected to such detriment; or
- Retire the worker, or require or cause the worker to retire or resign or terminate a contract for services; or
- The person terminates a commercial arrangement with another person; or
- The person refuses or fails to enter into a commercial arrangement with another person.
Improvement Notices
If a trained health and safety representative reasonably believes a person is contravening the legislation or is about to do so, they may issue a provisional improvement notice to that person requiring them to:
- Remedy the contravention; or
- Prevent a likely contravention from occurring; or
- Remedy the things or activities causing the contravention or likely to cause a contravention.
However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.
A health and safety representative must not issue a provisional improvement notice if an inspector has already issued an improvement notice or a prohibition notice in relation to the same matter.
Note: Only Health and Safety Representatives who have completed NZQA unit standard 29315 may issue a provisional improvement notice or direct unsafe work to cease.
Right to Cease or Refuse to Carry Out Unsafe Work
A worker may cease, or refuse to carry out, work if he/she believes that carrying out the work would expose the worker, or any other person, to a serious risk to health or safety arising from an immediate or imminent exposure to a hazard.
A health and safety representative may direct a worker from the work group he/she represents to cease work if the representative reasonably believes that carrying out the work would expose the worker, or any other person, to a serious risk to health or safety, arising from an immediate or imminent exposure to a hazard.
Such direction must not be given unless the matter remains unresolved within a reasonable time after consultation about the matter with the Operations Manager. However, the health and safety representative may direct the worker to cease work without consulting with the Operations Manager if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.
Note: Only Health and Safety Representatives who have completed NZQA unit standard 29315 may issue a provisional improvement notice or direct unsafe work to cease.
Enforcement
A Labour Inspector may:
- Issue an Infringement Notice if they believe a person is contravening the Act, or
- Issue a Prohibition Notice to stop work if they believe an activity is occurring that involves or will involve a serious risk to health and safety.
The Court may impose significant penalties for a breach of duties.
Reckless Breach with risk of death or serious injury:
- PCBU: $3m
- Officer: 5 years jail and/or $600k
- Worker: 5 years jail and/or $300k
Breach with risk of death or serious injury:
- PCBU: $1.5m
- Officer: $300k
- Worker: $150k
Simple Breach:
- PCBU: $500k
- Officer: $100k
- Worker: $50k