In New Zealand, 50 to 60 people are killed each year in workplace incidents, with hundreds of others dying as a result of work related ill health. The statistic is even worse when compared with Australia as the number of incidents in New Zealand is nearly twice as high. The Health and Safety at Work Act 2015 (HSWA) is the over-arching law setting out key principles and obligations of everyone in managing safety in the workplace.
The Act came into effect in April 2016, repealing the Health and Safety in Employment Act 1992.
Understanding the Health and Safety at Work Act 2015
The Health and Safety at Work Act 2015 (HSWA) is largely based on the Australian work health and safety law but with changes to reflect the differences between the New Zealand and Australian working environments.
The legislation is flexible and workable for both small and large businesses and undertakings without imposing unncessary compliance costs.
HSWA ensures that everyone has a role to play and makes everyone's responsibilities clear:
- Businesses have the primary responsibility for the health and safety of their workers and any other workers they influence or direct. They are also responsible for the health and safety of people at risk from the work of their business
- Officers (company directors, partners, board members, chief executives) must do due diligence to make sure the business understands and is meeting its health and safety responsibilities
- Workers must take reasonable care for their own health and safety and that their actions don't adversely affect the health and safety of others. They must also follow any reasonable health and safety instruction given to them by the business and cooperate with any reasonable business policy or procedure relating to health and safety in the workplace
- Other people who come into the workplace, such as visitors or consumers, also have some health and safety duties to ensure that their actions don't adversely affect the health and safety of others
Coverage
HSWA applies to nearly all work in New Zealand. However, there are exceptions. HSWA does not apply to:
- members of the Armed Forces carrying out operational activity
- civilians working in support of the Armed Forces overseas in an area of operational activity
- any military aircraft or naval ship carrying out operational activity
All types of modern business and working relationships are covered under HSWA.
What is a PCBU?
A PCBU is a 'person conducting a business or undertaking.' While a PCBU may be an individual person (a sole trader) or an organisation, in most cases the PCBU will be an organisation (business entity such as a company).
A PCBU will usually be a legal entity but HSWA makes it clear it could be a body of persons. Examples of PCBUs are:
- a business in the form of a limited liability company
- a sole trader or self-employed person
- a limited partnership
- a partner in a partnership (if the partnership is not a limited partnership)
- an entity created by legislation (for example a statutory body such as a university)
The following are not PCBUs:
- volunteer associations
- persons to the extent they are solely a worker or an officer in the business or undertaking
- home occupiers who employ or engage someone to do work around the home
- statutory offices to the extent they are officers or workers in the business or undertaking
- other persons declared by regulations not to be PCBUs for the purposes of HSWA or any provision of the Act
Primary duty of care
A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers, and that other people are not put at risk by its work. This is called the 'primary duty of care.'
This means ensuring, so far as is reasonably practicable:
- the health and safety of workers who work for the PCBU (e.g. employees or contractors, including their subcontractors or workers) while they are at work in the business or undertaking
- the health and safety of workers whose work activities are influenced or directed by the PCBU while the workers are carrying out the work (e.g. a franchise company whose franchise requirements influence or direct the workers of the franchisee)
- that other persons are not put at risk by the work of the business or undertaking (e.g. a visitor to the workplace, or members of the public who could be affected by a work activity)
The primary duty of care is a broad overarching duty. It includes, but is not limited to, so far as is reasonably practicable:
- providing and maintaining a work environment that is without risks to health and safety
- providing and maintaining safe plant and structures
- providinh and maintaing safe systems of work
- ensuring the safe use, handling and storage of plant, structures and substances
- providing adequate facilities for the welfare at work of workers in carrying out work for the business of undertaking, including ensuring access to those facilities
- providing any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking
- monitoring the health of workers and the conditions of the workplace for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking
A PCBU who is a self-employed person must also ensure, so far as is reasonably practicable, his or her own health and safety while at work.
What are the obligations of employees in workplace safety?
It is of little surprise that the best outcomes come from mutual effort, so employees should take reasonable care of their own health and safety. This means your employees must ensure their own actions do not cause harm to themselves or others, and they must comply with reasonable instructions, policies or procedures on the way they work to minimise risk.
Safety is a concern for everyone in the workplace, and regardless of the industry you are in there are risks in nearly every daily task. While there are requirements under the Health and Safety at Work Act 2015 for you to take the lead in managing safety, there are also obligations on employees which can be incorporated into your own workplace policies.
Enforcement
New Zealand's work health and safety regulator is WorkSafe New Zealand. There are also other government agencies that are designated to carry out health and safety regulatory functions for certain sectors. WorkSafe will work collaboratively with PCBUs, workers and their representatives to embed and promote good work health and safety practices.
The regulator has a range of tools to:
- promote and achieve compliance with the law
- make sure duty holders take appropriate action to manage risk
- make sure duty holders who breach health and safety requirements are held to account
The regulator has tools such as:
- improvement notices
- prohibition notices
- non-disturbance notices
- infringement notices
- enforceable undertakings
- prosecutions
Offences and penalties
Penalties under HSWA depend on the offence and what type of duty holder the offender is:
- an individual who is not a PCBU (a worker or other person at the workplace)
- an individual who is a PCBU (self-employed) or an officer of a PCBU or
- any other person, such as an organisation that is a PCBU (a company, government department or non-profit organisation)
In addition to court-imposed penalties, infringement notices can be issued by a regulator for specified offences against HSWA or regulations.
There are offences under HSWA for failing to meet or comply with other health and safety obligations. Depending on the offence, maximum penalties range from $5,000-$100,000 fines for an individual (e.g. a self-employed PCBU) and $25,000-$500,000 for other persons (e.g. a company).
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