Important Changes in Health and Safety Law

1. Important Changes in Health
and Safety Law

2. Reform Initiatives
• Plan for improved service delivery by MBIE

3. Legislative Reform
Health and Safety at Work Bill
• Based on the Australian Model Work Health and Safety Act.
• Object is to ensure workers’ health and safety
• New offences and increased penalties
• New duty to take “reasonably practicable steps”

4. Health and Safety at Work Bill
Features
• A broader duty on “persons conducting a business or
undertaking”
• A presumption in favour of the highest level of protecting
workers from harm
• Comprehensive regulation of major hazard facilities
• Increased interaction between new regulator, other
government agencies, and work places.

5. Health and Safety at Work Bill
Features
• Increased worker consultation and involvement in health
and safety
• The new regulation will be underpinned by regulations,
approved codes of practice, and guidance materials
• New due diligence duty on directors and officers

6. Health and Safety at Work Bill
Timeframe
• WorkSafe currently being established and will
be operational in December 2013
• The Bill will be introduced to Parliament in
December 2013 and enacted by the end of
2014
• A funding review of WorkSafe will be
conducted in December 2015

7. Implications of change
What will be required?
• HSEA requires all practicable steps to be taken to
safeguard health and safety
• All steps that it is reasonably practicable to take in the
circumstances having regard to prescribed matters
• MHSL imposes a test of reasonably practicable steps
• A step which is, or was at a particular time, reasonably
able to be done taking into account prescribed matters

8. Implications of change
Who will be affected?
• HSEA contains separate but parallel obligations for
different duty holders
• Australian MHSL imposes a single obligation on all
“persons in control of a business undertaking”
• Increased emphasis on upstream suppliers, e.g.
designers, manufacturers, and suppliers of plant,
substances, and structures
• Additional due diligence obligation on those in
governance roles

9. Implications of change
Due diligence role for those in governance
• Individual liability for directors and officers under the
HSEA
• As an officer, director, or agent who authorised, assented
to, acquiesced in, or participated in a corporate failure
• More direct liability under the MHSL
• Officers must exercise due diligence to ensure the PCBU
complies with its obligations
• Due diligence requirements prescribed by statute

10. Implications of change
Due diligence role for those in governance
• Institute of Directors Guideline

11. Implications of change
Enforcement : Penalties
New Zealand
Australia
Offences and Penalties
Offences and Penalties
• Action/inaction knowing that it is
reasonably likely to cause death or
serious injury – fine of up to
NZ$500k and/or two years’
imprisonment
• Category 1 (reckless conduct)
 $A3million : corporate
 $A300k/600k : individual/officer
and/or five years’ imprisonment
• Category 2 (conduct causing /
exposing person : serious harm)
• Failure to comply with duties – fine
 $A1.5 million : corporate
of up to NZ$250k
 $A150k/300k : individual/officer
• Category 3 (breach of duty)
 $A500k : corporate
 $A50k/100k : individual/officer

12. Implications of change
Enforcement : Penalties
• Changes will drive the new regime to be similar to
Australia
• Introduction of the three-tier system
 Reckless conduct
 Exposure to risk of death or serious harm
 Other failures
• Individual fines proposed to range from $50k to $600k,
with increase in maximum prison term to 5 years
• Fines will also dramatically increase for corporates (up to
$3m)