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Working SaferThe building of a new regulatory regime
September 2014
Bronwyn Turley and Susan AdamsMBIE Policy
LegislationProblems Duty holders don’t know how to
comply Duties do not reflect changes in
working arrangements Directors do not have clear health
and safety obligations Gaps in coverage Compliance and enforcement
tools not sufficiently flexible Penalties not providing
sufficient incentive to comply
Solutions: New legislation based on
Australian Model Act More guidance “PCBUs” and workers Due diligence duty on officers
of PCBUs (directors etc) “So far as is reasonably
practicable” More explicit duties for
designers, suppliers etc More enforcement tools Higher penalties
Health and Safety Reform Bill
• Introduced to Parliament in March 2014• Referred to the Transport and Industrial
Relations Committee for consideration• Select Committee is hearing oral submissions on
the Bill
Person Conducting a Business or Undertaking (PCBU)
• Usually a business entity• Business or undertaking?
– Business is an enterprise usually conducted with a view to making a profit and having a degree of organisation, systems and continuity
– Undertaking may have some degree of organisation, systems and continuity, but usually not profit-making or commercial in nature
Person Conducting a Business or Undertaking (PCBU): Exclusions
• Householders – householder that engages or employs someone
solely to do residential work on or in their home• Volunteer associations - a group of volunteers:
– Working together for a community purpose, and – On a voluntary basis, and – Don’t employ any staff
Person Conducting a Business or Undertaking (PCBU): Duty
• A PCBU must ensure, so far as is reasonably practicable, the health and safety of:– workers employed or engaged or caused to be employed or
engaged by the PCBU and– workers whose activities in carrying out work are
influenced or directed by the PCBU, while the workers are carrying out the work
• A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
• Duty to consult other duty holders PCBUs should consult, co-operate and co-ordinate activities to meet their shared responsibilities– Capacity to influence or control – What is reasonably practicable
• Can’t contract out of duties, but can make reasonable arrangements to coordinate responsibilities
• Monitor to ensure doing what’s been agreed
Overlapping duties
Officers, workers & others
• Officers required to exercise due diligence to ensure that the PCBU complies with its duties
• Workers and others in the workplace also required to take a reasonable degree of responsibility for their own health and safety, and that of others
Volunteers under the Bill
• Volunteer association is not a PCBU under the Bill, and will owe no duties
• Volunteer – only a worker if they work for a PCBU• Volunteer officers of a PCBU
– Owe the due diligence duty but not an offence where they fail to meet that duty
Upstream duty holders
A PCBU who:
Designs
(clause 34)
Manufactures
(clause 35)
Imports
(clause 36)
Supplies
(clause 37)
Plant, substances or structures that are used, or could reasonably be expected to be
used, as or at a workplace
Installs, Constructs, or
Commissions
(clause 38)
plant or a structure that is
used, or could reasonably be
expected to be used, as or at
a workplace
Worker participation:The problem
• …the Taskforce found that worker participation in NZ is too often ineffective and often virtually absent
• Our legislation is less rigorous than overseas jurisdictions and excludes non-employees
Worker participation: Proposed requirements
• All workers may
refuse to do unsafe work
All workers have
protections from adverse
conduct
All PCBUs must engage with workers on health and safety matters
Workers or PCBUs may choose to have Health and Safety representatives (HSRs)
Workers or PCBUs may choose to have Health and Safety committees
(HSCs)
All PCBUs must have effective worker participation practices
PCBU may develop its own worker participation practices that meet the two duties above
Further detail about requirements are proposed to sit at the regulation level
Enforcement and penalties
• Range of enforcement tools, enforceable undertakings new, and others improved (infringement notices)
• Wider range of options available to the Court when sentencing (adverse publicity orders, training orders, project orders etc)
• Tiered offence regime with graduated penalties
Development of regulations to support the new Act
• Discussion document containing policy proposals about the first phase of regulations– General risk and workplace management– Worker participation and representation– Work involving hazardous substances– Major hazard facilities– Work involving asbestos
• Guidance/ACoP development process (WorkSafe NZ) will shadow this process
Further information
• www.mbie.govt.nzWorkplace Health and Safety Reform
• www.legislation.govt.nzHealth and Safety Reform Bill
• www.parliament.nzHealth and Safety Reform Bill
Currently before Select Committee