The Act contains a range of new terms and concepts that we are busy upskilling clients on so that you are all ready come April 2016.
The legislation establishes different duty holders: Person Conducting a Business or Undertaking (PCBU); Directors and Officers; Workers; Other persons. It further introduces a positive obligation on the different duty holders to work together to manage risks in the workplace. A person may fit into more than one category (for example, be both a Director and a worker) and therefore, will have multiple duties. Where there are overlapping obligations, each duty holder retains his/her responsibility and a duty holder cannot contract out of his/her responsibilities.
The new law replaces the current duty to take “all practicable steps” to ensure health and safety with the concept of what is “reasonably practicable”. This means what “is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters”. What a business needs to do with regards to health and safety will therefore depend on the business’ risk, control and size.
A duty of “due diligence” is also introduced in the new law and places a positive duty for “Officers” to actively engage in health and safety matters and ensure compliance. “Officers” will include people in senior governance roles, who exercise significant influence over a PCBU’s management (e.g. a Chief Executive, director, board member or partner). There is no corporate manslaughter provision despite this having been proposed some months ago.
The need for employee engagement and participation in work health and safety matters is strengthened in the new law, emphasising that everyone in the workplace is responsible for health and safety. Engagement simply means talking and listening and may include topics like identifying hazards and risks and making changes to work practices that affect health and safety.
Health and safety representatives will be required in “high risk” industries such as forestry and mining. What is considered “high risk” is yet to be confirmed by Government Regulations but as you may be aware from recent media reports, most types of farming will be able to claim an exemption.
The new law will replace the existing Health and Safety in Employment Act 1992 and the Machinery Act 1950. There are also related amendments to employment, ACC and hazardous substances legislation.
Until April 2016, all existing health and safety laws remain applicable. We are currently working with clients to ensure that their policies and practices are up to speed in preparation for April 2016.