The Select Committee was split, with Government members issuing a majority report and recommending the Bill be passed with various amendments, and Labour, the Greens and New Zealand First issuing minority reports criticising the Government for ‘watering down’ the Bill.
The Majority’s recommendations will now become part of the HSW Act.
The key amendments made by the Select Committee are:
Despite lobbying for a new corporate manslaughter offence and considerable media hype, the Select Committee has not introduced such an offence, apparently because the penalty provisions in the HSW Act make it unnecessary. The Government is, however, indicating that the Court will be directed to take account of death or other serious harm when setting the sentence for offenders.
The Government is also going to clarify that the duty to manage risk will only apply to the extent a business or undertaking has the ability to influence or control that risk.
All ‘persons conducting a business or undertaking’ (PCBUs), whether large or small, are required to engage with workers on issues relating to health and safety in the workplace and to ensure they have appropriate mechanisms in place to allow all workers to participate in health and safety.
In order to provide flexibility about how this worker participation is achieved, particularly in smaller (less than 20 workers) businesses in low-risk sectors, the Select Committee has recommended these businesses:
All other PCBUs (including small businesses in high-risk sectors) will need to appoint health and safety representatives if requested by workers and have a health and safety committee unless the PCBU is satisfied that existing worker participation practices meet the requirements of the HSW Act.
Regulations will be released to give guidance to businesses about what low-risk sectors are. There is currently no indication of timing for this and it seems prudent to assume that extractives, farming, fisheries, forestry and manufacturing – at a minimum – will all be considered high-risk and that low-risk sectors will include office work, retail etc.
The Select Committee has recommended changes so the HSW Act continues rules for volunteers as already exist under the Health and Safety in Employment Act (HSE Act).
This means protections will differentiate between ‘volunteer workers’ and casual volunteers. PCBUs will need to focus on ‘volunteer workers’, who work for the PCBU on an ongoing and regular basis and who are integral to the business of the PCBU, addressing their safety in the same way they do paid workers.
Volunteer workers undertaking certain activities will not receive the protections the HSW Act gives workers, if they:
The health and safety of casual volunteers will be addressed by the duty on the PCBU to ensure the health and safety of other people affected by the PCBU’s operations.
One of the most significant amendments to the HSW Act will be a change of the definition of ‘officer’. The Select Committee has recommended limiting the scope of this term to ensure only those in very senior governance roles within a PCBU are officers.
Instead of ‘any person who makes decisions affecting the whole or a substantial part of the business of the PCBU’, the duty will now apply only to those in roles that allows them to ‘exercise significant influence over the management of the business or undertaking’. The example given is of a Chief Executive. Time will tell how WorkSafe New Zealand and the courts interpret this new wording.
The Government is also clarifying that people who advise or make recommendations to officers will not themselves be officers.
Definition of a ‘workplace’
The Select Committee has tightened the definition of workplace to make it a place where work is being carried out or is ‘customarily’ carried out for a business or undertaking. This means some areas will not be a workplace all of the time.
In an attempt to meet criticisms from the agricultural sector, the concept of a workplace is also being clarified with respect to farms. Changes mean that only farm buildings and structures necessary for the operation of a farm business, and the areas immediately surrounding them, will be a workplace all the time. Other parts of a farm will only be a workplace when farm work is being carried out on them.
This is intended to remove (or, at least, reduce) the need for farmers to manage and control public use of farm land for recreational purposes.
Limitation period for prosecutions
The Select Committee has recommended a one year time period for the prosecution under the HSW Act. While this is still an extension on the present six month timeframe under the HSE Act, it is better than the originally planned two years and will improve certainty for PCBUs and provide an incentive on WorkSafe New Zealand to ensure investigations are concluded promptly.
To guard against exceptional cases, the Select Committee has recommended WorkSafe New Zealand be able to seek an extension to the limitation period for an additional 12 months, if that becomes necessary.
What do the proposed changes mean?
While these changes will move the HSW Act further away from the Australian ‘model law’, concerns about the new law being ‘watered down’ are largely unfounded. For most businesses the changes will not significantly affect the obligations the HSW Act imposes on them.
What happens next?
Parliament will consider the Select Committee’s report over the next couple of months, and the HSW Act is likely to be passed in around September. At that time Parliament will set a commencement date for the new law – 1 January 2016 seems likely at this stage.
If you are interested in what these changes mean for your business, or want help understanding what you will need to do once the HSW Act becomes law, and how you will do it, please contact one of our health and safety experts.