Getting head around health & safety reforms a must for SMEs

The Pike River mine disaster from 2010, which killed 29 miners, sparked an overhaul of the current health and safety ...
MARION VAN DIJK/FAIRFAX NZ

The Pike River mine disaster from 2010, which killed 29 miners, sparked an overhaul of the current health and safety legislation.

The days of relegating health and safety matters to the back of the mind are over with new, more onerous laws coming into effect next year.

The Health and Safety at Work Act 2015 comes into effect on April 4, 2016, which seems some time away, but Davenports Harbour Lawyers associate Bronwen Newcombe says it is imperative for businesses to get their act together early.

Newcombe says the current act has a heavy focus on employers, employees and the employment relationship, whereas the new act has a broader reach.

The new legislation establishes a new term, a person conducting a business or undertaking (PCBU), which is the primary duty holder but there are also other categories like "officers", which includes directors, partners and people who have a significant influence over the management of the PCBU.

"Often you might think, I'm not a director, I don't have any real proactive duties and I'm not going to be as liable as directors. Well, think again," Newcombe says.

The definition of a "worker" is also broader and includes contractors, subcontractors, apprentices, trainees, and many more.

A PCBU is not required to have a health and safety representative if it has 19 or fewer workers and is not within the high-risk industries, the categories of which will be prescribed by regulation. 

Despite this exception, Newcombe says it is best practice for all PCBUs to have a representative.

"It's around creating a safety culture where health and safety is valued. The point is not just to comply. The point is to get onboard, get leadership onboard, create a culture within your workplace where health and safety is improtant," she says.

Personal liability can be found for any of the duty holders (PCBU, officer, worker), with the maximum fine for a PCBU being $3 million and an officer can be fined up to $600,000 or face five years in prison.

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"It's real personal liability. That's where the education of that higher management group needs to happen because they need to know they're personally liable. You can't insure against this, you can't contract out of it. You have to know what your obligations are and it won't be a defence to say, 'I just didn't know'," Newcombe says. 

The reforms to the act were passed amid controversy, with a major dividing issue being the requirements for health and safety representatives in small businesses with fewer than 19 employees and also the definition of "high risk".

Associate professor of employment relations at Auckland University of Technology Felicity Lamm says it was imperative for New Zealand to change its existing health and safety framework for a number of reasons.

One is that health and safety is still not imbedded in the Kiwi psyche.

"In terms of Pike River, for example, there were less than optimal numbers of inspectors who were unable to do their full duties. We just don't have the number of inspectors in New Zealand," Lamm says.

"We have one of the lowest rations [of inspectors to employees] in the OECD countries and so the onus is on the employer to undertake and manage their health and safety."

Another reason New Zealand health and safety legislation needed to change was the changing nature of work and the confusing nature of subcontracting.

Lamm says Pike River, again, was a prime example of this where most of the operation, design of the mine and production of coal was subcontracted out but the old legislation did not deal with subcontracting and the onus of responsibility.

She says more industries are outsourcing and downsizing to try and save costs. Under the current legislation, those contracted for work have little access to the same health and safety training, committees or representatives that an organisation's permanent employees have.

With the fifth anniversary of the Pike River mine disaster coming up on November 19, Lamm says it is a time to question how far we have come.

"I think the new legislation is a great beginning. But it's definitely not the end," she says.

Top tips for ensuring best health and safety practice:

- Look at your business' current health and safety culture. What needs to change? What's missing?
- Identify the leadership team. Who do you need to get on board to created a valued health and safety culture?
- Ensure employment agreements are updated to reflect the new legislation
- Put in place new health and safety policies to reflect obligations and requirements under the next law

Worksafe New Zealand also has plenty of information on its website about the new law.

 - Stuff

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