Improving health and safety at work: An effective regulatory framework

More documents

Recommendations

Info

In Confidence16 As has been the case with each of the Australian States and Territories, we need tocarefully consider the Model Law and areas in which it needs to be modified to eitherreflect the New Zealand-specific context, or where lessons have been learntin Australia since implementation and clear improvements can be made. Having saidthis, I agree with the Taskforce that variations to the Model Law should be kept to aminimum, and only made for good reason.17 The driver for adopting and adapting the Model Law in New Zealand isnot harmonisation or alignment with Australia. It is simply that the Model Law is fit forpurpose in the main, and it will be modified where it is not fit for purpose. Simplifyingworkplace health and safety for trans-Tasman businesses is, however, an importantancillary benefit of implementing a version of the Model Law here.18 Being able to draw upon much of the significant resources and body of knowledge andjurisprudence developed in Australia, and again adapting this to our purposes, isanother strong benefit. This is especially the case when it comes to the suite ofregulations, codes of practice, and guidance material that has been developed inAustralia to support the Model Law. Our limited ability to develop these independentlyin the past was a major contributing factor to our failed implementation of the Robensmodel for workplace health and safety. There is no point reinventing the wheel if anexcellent one already exists; and our Australian colleagues have been very generous inoffering their support in getting it fitted.19 A new law would replace the HSE Act and also replace the Machinery Act 1950, whichcurrently continues only for the purposes of allowing for the regulation of amusementdevices (e.g. fairground rides). These regulations would be brought into the health andsafety system.20 The Taskforce’s recommendation identifies the core elements of the Model Law, andtheir report makes a compelling case for adopting them. The new object (or purpose) isexpressed in more positive language, provides greater clarity about who will beprotected and how, and identifies the principle that workers should receive the highestlevel of protection that is reasonably practicable.Duties of PCBUs21 The core duty is that of a person conducting a business or undertaking (PCBU):A person conducting a business or undertaking must ensure, so far as is reasonablypracticable, the health and safety of:(a) workers engaged, or caused to be engaged by the person; and(b) workers whose activities in carrying out work are influenced or directed by theperson,while the workers are at work in the business or undertaking.22 The PCBU also owes a duty to other people affected by the work being done. Specificduties extend to upstream participants in the supply chain (e.g. PCBUs that aredesigners, manufacturers, importers and suppliers of plant, substances, andstructures).23 PCBU is a broad concept that captures all types of modern working arrangements and,like the HSE Act, is not limited to for-profit businesses. Whether a person conducts abusiness or undertaking is a question of fact to be determined in the circumstances ofeach case. The SafeWork Australia interpretive guide on the meaning of PCBU and itsapplication to particular circumstances is attached as an appendix to this paper. It isimportant that guidance like this is provided on the definition in New Zealand, as it willbe a new concept.MBIE-MAKO-146085574
In Confidence24 If the Model Law is adopted, additional exclusions to being a PCBU will be able to bemade by regulations. This safety valve ensures that the concept can be drawn widelyto ensure there are no gaps, while providing a flexible method of excludingcircumstances where the costs of regulation outweigh the benefits. At this stage, theAustralian regulations exclude most residential unit title bodies corporate.25 It may also prove desirable to provide additional clarification in the Health and Safety atWork Bill to limit uncertainty and reduce concerns of legislative overreach. I will be alertto this issue as the Bill develops.Qualifier – reasonably practicable26 The key to making the duties work in the Model Law is the qualifier of ‘so far as isreasonably practicable’. Without it, duty holders would breach their duty whenever theoutcome was not achieved, regardless of the efforts they took. A qualifier limits thegeneral duty in the interests of fairness and achievability, by introducing the concept ofdoing what is reasonable in the circumstances.27 In the Model Law, reasonably practicable, in relation to a duty to ensure health andsafety, means:…that which is, or was at a particular time, reasonably able to be done in relation toensuring health and safety, taking into account and weighing up all relevant mattersincluding:a. the likelihood of the hazard or the risk concerned occurring; andb. the degree of harm that might result from the hazard or the risk; andc. what the person concerned knows, or ought reasonably to know, about:d. the hazard or the risk; ande. ways of eliminating or minimising the risk; andf. the availability and suitability of ways to eliminate or minimise the risk; andg. after assessing the extent of the risk and the available ways of eliminating orminimising the risk, the cost associated with available ways of eliminating orminimising the risk, including whether the cost is grossly disproportionate to therisk.28 The equivalent qualifier in the HSE Act is ‘all practicable steps’. I agree with theTaskforce that the Australian test is preferable. It is more accessible and gives a bettersense of what is expected of duty-holders. It does a good job of incorporating theconcept of reasonableness based on a risk assessment and cost-benefit analysis.Duties of others, including directors29 The Model Law creates a due diligence duty so that those in governance roles mustproactively manage workplace health and safety. This is in contrast to the HSE Act,which makes directors, officers and agents liable for any failure of the body corporate(as an employer or other duty holder) to comply with the legislation, if they haveparticipated in, contributed to, or acquiesced in that failure.30 The approach in the Model Law is preferable because directors are only liable wherethey fail to perform their due diligence duty. A positive duty supports the framework,because directors and senior management set the direction and provide leadership inhealth and safety for their organisation, including making resource decisions. Thelanguage of due diligence is familiar and consistent with their governance role, andtheir other duties as a director. It clarifies that health and safety of workers is part ofgovernance.MBIE-MAKO-146085575
Page 1 and 2: In ConfidenceOffice of the Minister
Page 3: In Confidenceb. the concept of taki
Page 7 and 8: In ConfidenceCoverage of the NZ Def
Page 9 and 10: In Confidencea. issue guidance, war
Page 11 and 12: In Confidence70 I propose that the
Page 13 and 14: In Confidence84 As with the Model L
Page 15 and 16: In Confidence98 Controls that are s
Page 17 and 18: iv.In Confidenceinvolve members of
Page 19 and 20: In Confidence113 MBIE will report t
Page 21 and 22: In Confidence126 Based on the Austr
Page 23 and 24: In Confidence14. Note that, under t
Page 25 and 26: In Confidence33. Agree that WorkSaf
Page 27 and 28: INTERPRETIVE GUIDELINE—MODEL WORK
Page 29 and 30: A not-for-profit organisation that

Improving health and safety at work: An effective regulatory framework

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?