Health and safety reforms: a legal perspective

Throughout this week the Minister of Workplace Relations and Safety, Hon Brooke van Velden, has announced a host of health and safety reforms that Cabinet has agreed to progress. At this stage, there remains a lot of uncertainty as to how these proposed changes will be implemented.  

Carve-out for small businesses 

The Minister announced there will be a carve-out for small low-risk businesses from general Health and Safety at Work Act requirements. This would amend the primary duty of care so the exempt businesses only need to manage critical risks (those that could cause death, serious injury or serious illness) and provide basic workplace facilities. The Minister explained this would require the likes of a small clothing shop to provide first aid, emergency plans and basic facilities such as drinking water, suitable lighting and ventilation, but would not need to have a psychosocial harm policy in place.

While the Minister used a small clothing shop as an example to illustrate the proposed change, it is curious that despite the narrow focus on critical risks, these exempt businesses would still be required to keep first aid kits (which would imply they need to address even minor risks that might cause strains, sprains, cuts and bruises). 

Further, despite it being used as an example by the Minister, there is currently no express obligation on a PCBU to have a psychosocial harm policy (however PCBUs do have obligations to address psychosocial harms: see our article here). It is unclear which businesses would fall within the scope of this new carve out, but the Minister has said that over the coming months, what is a ‘small low-risk business’ will be defined. 

Removing liability for landowners 

The Minister proposed a change that would ensure landowners would not be responsible for those using their land for recreational activities. Health and safety responsibilities would lie squarely on the organisation running the activities. 

The Minister provided an example of a farmer, who might worry they are responsible for the risks associated with a horse-trekking business on their land. In those circumstances, the health and safety duties would sit with the horse-trekking business. The farmer would only need to consider the risks posed by the horse-trekking business when that work is being carried out in the immediate vicinity of the farmer’s work. 

This change would essentially codify in statute the High Court’s decision which quashed the conviction of Whakaari Management Limited for its activities on White Island (see our article on the decision here). That decision confirmed that the section 37 duty does not apply to a landowner who is merely allowing access to bare land. 

There are a few questions that arise in connection with this proposed change, including:

• Would this change only apply to bare land? If yes, what qualifies as bare land?
• What if the landowner exercises some influence and control over the land, such as making decisions about the daily work of the horse-trekking business? Where is the line drawn?

Clarifying director duties

A clarification of director duties may be on the horizon. The Minister is proposing to make amendments to the Act to make clear that “day-to-day management of health and safety risks will be left to managers so that directors and boards can focus on governance and the strategic oversight of the business”. 

The recent prosecution and sentencing of ex-Port of Auckland CEO Tony Gibson undoubtedly influenced this move (see our article on the prosecution here). Interestingly, that decision already affirmed what the Minister appears to be promoting. That is, that an officer in a large PCBU does not need to be involved in day-to-day operations in a hands-on way. 

However, the Gibson decision also noted that an officer cannot simply rely upon others within the organisation to discharge their duties of oversight and due diligence. Further clarity on this proposed change will come, and it is possible the Minister intends to limit the officer duties further than the Gibson decision. 

It remains to be seen whether this will mean that directors no longer need to be proactive by making enquiries with the person they have delegated their health and safety duties to and ensuring the delegate is suitably skilled and qualified for the role. 

Approved Codes of Practice 

The Minister is also proposing to adopt a do-it-yourself approach to the Approved Codes of Practice (ACOPs) model. Rather than WorkSafe leading the ACOP process exclusively, the Minister is proposing to allow individuals and groups (such as industry organisations) to initiate work on ACOPs, which the Minister herself would then approve against a set of standards. This is intended to speed things up and ensure ACOPs make sense for those who deal with these risks every day and will work in practice.

The Minister said if people have complied with an ACOP, they will have done enough to meet their health and safety duties. Much will depend on the criteria the Minister uses to decide which ACOPs are approved, but it could amount to a charter for soft law.

Other proposed changes 

Over the course of the week, the Minister also announced the following proposed changes:

• Focus on critical risk: the primary purpose of the Act would be sharpened to focus on critical risk, with the aim it would reduce ‘tick-box activities’ that don’t protect workers from harm. 
• Notification requirements: Notification to the regulator would only apply to ‘significant workplace events’ involving ‘deaths, serious injury, illness and incidents’. It is unclear how this will differ from the current Act, which requires PCBUs to notify the regulator of ‘notifiable events’. 
• Clarification of boundaries: the boundaries between the Act and regulatory systems that manage the same risk are to be clarified. The Minister considers these boundaries have long been the source of overcompliance and confusion. Again, how these boundaries are clarified and whether the changes will bring simplicity or create more confusion remains to be seen. 

Finally, the Minister announced a road cone hotline to address what she called ‘the sea of road cones’ in ‘Going for growth: cutting health & safety red tape’. While the hotline has not yet been set up, the Minister said she would direct WorkSafe to confirm and provide guidance on instances of road cone overcompliance. She said for WorkSafe to focus on this will be a ‘culture shift’ for the agency. It is not clear as yet how reducing road cones will improve health and safety outcomes or reduce compliance costs. 

Whether these changes will “bring back common sense”, as the Prime Minister has said, and reduce the confusion, uncertainty and cost associated with compliance remains to be seen. We will be watching this space as these changes are fleshed out in the coming weeks.