PKF Francis Aickin Limited, Far North, New Zealand
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03 Sep 2015
Our first article on workplace safety reforms was on 25 June, and is available on our website www.pkffa.co.nz. This second article is intended to update you on developments in the new legislation.
The latest position is that the proposed legislation as outlined in an amended Bill, has now been passed into law. The Act will become known as the Health and Safety at Work Act 2015, and it will come into force on 4 April 2016.
Recent media and political hysteria and squabbling about the relative risks of worm and cattle farming has done nothing to inform small business owners as to their emerging responsibilities, nor to advance the cause of workplace safety.
Low risk industry sectors: One would think from the media and public outcry that the so called low risk industries have been exempted from workplace safety altogether. This is far from true. Whilst it does seem odd to me that cattle farming, for example, is classified as low risk, in reality, the practical effect of this is minor. All it means is that small businesses (under 20 employees) in low-risk sectors are not required to initiate elections for employee health and safety representatives or committees. However, ALL employers, whether they are large, low- risk or high-risk, will still be required to engage with their workers on matters of health and safety that effect them. They will have to have worker participation practices that give their workers reasonable opportunities to participate effectively in improving work health and safety. Further, these small low risk sector employers will still be liable under all other provisions of the Act.
The list of proposed high risk sectors, which brought Minister Woodhouse into such public derision, can be found on our website www.pkffa.co.nz/news.
This list is now up for review and there should be a draft of the relevant Regulation available shortly.
Health and safety representatives: Provided that they have had appropriate training, health and safety reps will have quite wide powers, including the issuing of unsafe practice improvement notices, and directing that unsafe work be stopped.
The duties of officers and PCBUs: The respective duties of officers (directors, CEO's etc) and PCBUs have been clarified. The "PCBU" is the business itself, and it is the organisation itself that has the primary duty of care for the health and safety of its workers. The duty of the officers is to exercise due diligence to ensure that the employer meets it's health and safety obligations. These duties are separate, and it means that if a PCBU has failed to meet its duty, but the directors satisfied the due diligence requirements, then the directors may not be personally liable for the health and safey failings.
Incidentally, the term "officers' has been clarified, such that the term does not include advisers to the business and its officers, which comes as some comfort to me as a business adviser!
Elected officers: It is also to be noted that officers who are local body councillors, elected school or community board members, whilst they still have a due diligence duty, are exempt from prosecution for a breach of duty.
Multiple PCBUs: New provisions have been included to cover the situation where the duties of one PCBU may overlap with the duties of others. For example in shared workplaces, like a building site. In these situations the PCBUs are required to consult, cooperate and coordinate with each other, so far as is reasonably practicable.
Farm houses: The definition of a workplace has been clarified to include anywhere where work is carried out, including anywhere a worker goes or is likely to be while at work. The changes further clarify the workplace definition to ensure that the duty of farmers only extends to the farm buildings, their immediate surroundings, and places on the farm where work is being carried out on the farm at the time. These changes mean that the farmer's duty does not apply to the farm house or recreational users (apart from when farm work is being carried out on that part of the farm at the time).
Future guidance: Worksafe advise me that they will be issuing guidance to support the Act and Regulations in the New Year. See www.business.govt.nz/worksafe
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