Brace yourself! The much-publicised, major changes around all things health and safety in the workplace – are now, officially, upon us.
Unfortunately, the Health and Safety in the Workplace Act has taken a number of twists and turns on its way to implementation, and I’m seeing a few misconceptions, quite understandably, have crept in, as a result.
Let’s look at the background of this new legislation, which came into effect on April 4, what it means, and where you should be at in terms of implementing the upcoming requirements in your own workplace.
So, firstly, why did these changes come about?
The review, and subsequent changes, arose from some alarming statistics on our country’s health and safety record. Worksafe New Zealand says that every year 52 people die on the job, hundreds more are seriously injured and 600-900 die from work-related diseases. The changes are an attempt to significantly improve those statistics.
The overhaul stems from the recommendations of an independent workplace health and safety taskforce, which produced “Working Safer: A blueprint for health and safety at work”.
Working Safer was aimed at reducing New Zealand’s workplace injury and death toll by 25 per cent by 2020, and recognised that it required leadership and action from business, workers and Government to achieve that goal. The new legislation’s emphasis is on ensuring that everyone in the workplace is responsible for health and safety.
Among other changes, the new Act introduces the concept of what’s “reasonably practicable”; in terms of risk assessment, what would be considered “reasonable” for a business to do in terms of managing safety in line with what it could be expected to control.
What are the key changes?
In short, the new legislation’s most significant change is in who is responsible for workplace health and safety, which is now … everyone. Yes, every single person carries some level of duty of care. Even workplace visitors and customers.
Firstly, the business itself has responsibilities. It has a primary duty under the new law to ensure the health and safety of workers and others affected by the work carried out. In addition, “officers” (including directors and other people who make governance decisions that significantly affect the business) have duties to ensure their business complies with health and safety obligations. Then, workers must take reasonable care to ensure the health and safety of themselves and others, and are obliged to comply with business’ reasonable instructions and policies. And, finally, other people who come to the workplace, such as visitors and customers, also have some health and safety duties. It’s all about taking responsibility for what you can control.
In what could potentially be one of the biggest challenges for business, another significant shift sees the focus move away from monitoring and recording health and safety incidents to proactively identifying and managing risks so that everyone is safe and healthy. That might not necessarily mean major changes, but it’s the duty of the business to think about who may be affected. As a business, communication is going to be vital. You need to engage workers in health safety matters and implement effective practices that allow workers to contribute to health and safety on an on-going basis.
PCBU … what?
With all the to-ing and fro-ing along the parliamentary path with this legislation, there was bound to be a thing or two get lost in translation. Perhaps the most fog has descended around the new terminology, “PCBU”.
Simply put, PCBU stands for “person conducting a business or undertaking”. What does the law mean by that? The law means an individual person or organisation conducting some sort of business or undertaking: a sole trader, an incorporated company, partnership, or some sort of organisation (but not all organisations).
PCBUs are not organisations which are entirely voluntarily, and neither are they householders who engage someone to do work around the home for them.
The law specifies particular duties to “officers”; however, there’s a bit of confusion around who’s deemed an officer. While it’s reasonably clear that everyone knows that directors, partners in a partnership, etc, are “officers”, there’s a misconception that team leaders, supervisors and health and safety managers may also be defined as “officers”. For the record: not correct.
It’s here!
With the legislation now officially here, the question I’m most commonly being asked by business is what they should already have in place.
Here goes:
Each business should be aware that the changes are now in force, and how they are going to meet their primary duty of care. The primary duty of care is that they need, as far as reasonably practicable, to ensure the health and safety of workers while they are at work and that other persons are not put at risk by their work.
Specifically, that primary duty of care includes, as far as reasonably practicable:
- Providing and maintaining a working environment that is without risk to health and safety
- Providing and maintaining safe plant and structures
- Providing and maintaining safe systems at work
- Ensuring safe use, handling and storage of plant, structures and substances
- Providing adequate facilities for the welfare at work of workers carrying out work
- Providing information, training, instructions and supervision to everyone
- Monitoring the health of workers and the conditions of the workplace
Businesses should also ensure that they have a process to allow everyone the reasonable opportunity to participate in improving workplace and safety, including identifying, assessing and addressing hazards.
Officers need to exercise due diligence to ensure the organisation complies with its health and safety duties. The test for this? They must exercise the care, diligence, and skill a reasonable officer would exercise in the same circumstances taking into account the type of business and the officer’s position and nature of responsibilities.
Businesses could also give consideration to whether or not they want to have a health and safety representative. That is a person who has been elected by a workgroup to have someone who represents them on health and safety matters. Note, though, businesses with 20 or more workers, or who work in one of the “high risk” sectors, must arrange the election of a health and safety representative, if requested, and consider whether existing practices are sufficient and effective to establish a health and safety committee, if asked.
The biggest risk I see for businesses with this new legislation is that they don’t take the time to understand its requirements and ramifications. These are laws you really don’t want to find yourself on the wrong side of, and let’s not forget employees will be looking to employers for guidance and education, too.