Improving health and safety at work: An effective regulatory framework

In Confidenceexpand and strengthen protections from discrimination for workers (includingnon-employees) who raise health and safety issuesnot adopt requirements in the Model Law that are neither necessary norappropriate in the New Zealand context, for example the Model Law’s provisionson workplace health and safety entry permits7 Another key Taskforce recommendation was to improve the regulation of major hazardfacilities. Consistent with the Taskforce’s recommendations, I propose makingregulations to prevent and mitigate the effects of major accidents at large chemicalproduction and storage facilities; downstream petroleum facilities (e.g. oil refineries);and other facilities (e.g. fertiliser plants) that store or process very large quantities ofdangerous substances.8 In order to address uncertainty and regulatory gaps, regulations, guidance and ACOPswill need to be developed to provide duty-holders and workers with certainty about howthe law and regulations will apply to them, without being unnecessarily prescriptive.This will not only promote better health and safety outcomes, but will make complianceeasier for businesses.Background9 New Zealand’s primary workplace health and safety legislation, the Health and Safetyin Employment Act 1992 (HSE Act), follows a model commonly known as the Robensapproach 1 .10 The Robens approach seeks to increase awareness, knowledge and competence inmanaging workplace health and safety, rather than rely on prescriptive requirementsfocusing on a narrow range of workplace hazards. Performance-based general dutiesensure broad coverage of work and workplaces. Advantages of the all-encompassingnature of these general duties are that they do not quickly date, they support innovationand they provide flexibility. The duties are underpinned by industry- or hazard-specificregulations, approved codes of practice and guidance where further clarity is required.11 The Robens approach remains the preferred method for legislating for workplacehealth and safety across many Commonwealth jurisdictions. Australia and the UnitedKingdom have both confirmed their Robens-based models as the best approach afterrecent reviews of their legislative systems.Duties FrameworkProblem definition12 The HSE Act is now 20 years old. The Royal Commission on the Pike River Coal MineTragedy concluded that our implementation of the Robens approach has beenincomplete – particularly in relation to the relative lack of regulations, Approved Codesof Practice (ACoPs) or guidance to make the HSE Act as effective as intended.13 Other problems identified in submissions to the Independent Taskforce on WorkplaceHealth and Safety and that have been raised by business and stakeholders include:a. duty holders have difficulty knowing what to do in order to meet the generalduties – or knowing whether they have done enough to be considered compliant.This can result in duty holders not doing enough, or being over-cautious in theirinterpretation - effectively increasing the compliance burden on themselves1 So named after its ‘father’, Lord Alfred Robens. His 1972 report to the British government, Safety and Health at Work,transformed the attitudes towards and organisation of occupational health and safety.MBIE-MAKO-146085572