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Health and Safety at Work Amendment Bill

The Health and Safety at Work Amendment Bill is currently before Select Committee. It represents the biggest proposed change to health and safety law since 2015.

NZISM’s Law Reform Working Group is currently working on our draft submission on the Bill. We intend to get this submission out in the first week of March if possible for your comment. We want to test our thinking with you early and so have devised this quick survey. For each question, we set out our current thinking and ask whether you agree. Your comments will inform our drafting and we would welcome more in-depth engagement when we send the full draft out for comment.

The survey comprises just 7 multiple-choice questions and will take less than 5 minutes to complete.

(Slides from our recent webinar Unpacking the HSW Amendment Bill)
1.Do you support the proposal to require PCBUs to prioritise critical risk (if a robust and workable definition of critical risk can be developed)?
The Law Reform Working Group is initially in favour of critical risk prioritisation but believes that the definition of critical risk needs significant work. We believe that the definition of 'prioritise' needs further work as it currently suggests non-critical risks are only managed after critical risks have been controlled. Supporting guidance will be needed on what a critical risk management process looks like.
2.Do you support the proposal to exempt small PCBUs from risk management duties (including upstream duties) in relation to non-critical risks?
The Law Reform Working Group opposes the carve out as unprincipled, confusing and likely to result in worse outcomes for workers in small PCBUs.
3.Do you support the proposal that health and safety duties should be subordinate to other legislative and regulatory requirements across the board (i.e. compliance with another enactment is deemed to meet your health and safety duties)?
The Law Reform Working Group does not support a broad and untargeted exemption. Any particular cases that would benefit from greater coherence or clarity should be worked through as particular legislative examples.
4.Do you support the proposal to clarify officer’s due diligence duties where an officer has duties as both a worker and an officer?
The Law Reform Working Group’s view is that this is very unclear and could lead to executive officers being less engaged (especially where no formal board exists). We believe the result of the Gibson appeal may clarify this area without the need for legislative change and in a way that creates clear legal precedent.
5.Do you support the move to enable organisations other than WorkSafe to develop approved codes of practice for Ministerial endorsement?
The Law Reform Working Group supports solutions that will enable the greater development of guidance including where industry identifies a strong need.
6.Do you agree that compliance with an approved code of practice ought to act as a defence against prosecution (a safe harbour)?
The Law Reform Working Group thinks that a proposal that makes compliance with an ACOP a full defence may stifle continuous improvement (and undermine the principle of so far as reasonably practicable) and relies too heavily on WorkSafe and industry’s ability to produce and update ACOPs that represent best practice rather than mediocrity.
7.Would you like to provide further comment on any of the above?
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