Health and Safety at Work Act 2015

• The Health and Safety at Work Act 2015 (HSWA) is New Zealand’s key work health and safety law.
• WorkSafe New Zealand is the work health and safety regulator – although other agencies can be designated functions for certain sectors.
• HSWA, regulations, safe work instruments, approved codes of practices, and WorkSafe information and guidance work together to support duty holders to improve work health and safety.
• HSWA is largely based on the Australian work health and safety law but with changes to reflect the differences between the New Zealand and Australian working environments. It recognises that a well-functioning health and safety system relies on participation, leadership, and accountability by government, business and workers.

• A guiding principle of HSWA is that workers and other persons should be given the highest level of protection against harm to their health, safety, and welfare from work risks as is reasonably practicable.
• The main purpose of HSWA is to provide for a balanced framework to secure the health and safety of workers and workplaces by:
  • Protecting workers and other persons against harm to their health, safety and welfare by eliminating or minimising risks arising from work
  • Providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues
  • Encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices and assisting PCBUs and workers to achieve a healthier and safer working environment
  • Promoting the provision of advice, information, education, and training in relation to work health and safety
  • Securing compliance with the Act through effective and appropriate compliance and enforcement measures
  • Ensuring appropriate scrutiny and review of actions taken by persons performing functions or exercising powers under the Act
  • Providing a framework for continuous improvement and progressively higher standards of work health and safety.

• HSWA applies to nearly all work in New Zealand.
• All types of modern business and working relationships are covered under HSWA (eg the relationship between franchisors and franchisees).
• Focus on work. Most duties under HSWA relate to the conduct of work. However, while the focus is on the work being carried out and how it can affect workers and others, there are certain duties that relate to the physical workplace. A workplace is a place where a worker goes or is likely to be while at work, or where work is being carried out or is customarily carried out. It includes a vehicle, vessel, aircraft, ship or other mobile structure, and any waters and any installation on land, on the bed of any waters, or floating on any waters.
• Focus on both work-related illnesses and injuries:  Whoever creates the risk manages the risk. HSWA requires health and safety work risks to be managed. This means consideration of the potential work-related health conditions as well as the injuries that could occur. Health conditions include both physical and psychological acute and long term illnesses.
• Four types of duty holders:  There are four types of duty holders that have work health and safety duties:
  • persons conducting a business or undertaking (PCBUs) – these may be individuals or organisations
  • workers
  • officers
  • other persons at workplaces.

• The primary duty of care requires a PCBU to ensure health and safety ‘so far as is reasonably practicable’. When used in this context, something is reasonably practicable if it is reasonably able to be done to ensure health and safety, having weighed up and considered all relevant matters, including:
  • How likely are any hazards or risks to occur?
  • How severe could the harm that might result from the hazard or risk be?
  • What a person knows or ought to reasonably know about the risk and the ways of eliminating or minimising it (eg by removing the source of the risk or using control measures such as isolation or physical controls to minimise it).
  • What measures exist to eliminate or minimise the risk (control measures)?
  • How available and suitable is the control measure(s)?

•  HSWA, regulations, safe work instruments (SWIs), approved codes of practice (ACOPs), and WorkSafe information, guidance and advice work together to improve work health and safety.
• HSWA is the key work health and safety law. It sets out the health and safety duties that must be complied with. Health and safety regulations sit under HSWA, and prescribe certain requirements to be met for certain duties under HSWA. For example, there are regulations about what workplace facilities are required. SWIs set out further technical rules in relation to matters covered by regulations (eg variations to control measures for specific substances). Other legislation may affect work health and safety (eg the Gas Act 1992 and the Building Act 2004). Where two pieces of legislation apply, the duty holder needs to follow both. HSWA addresses such overlaps by providing that other legislative requirements can be considered when deciding if health and safety duties are being met. However, duty holders may need to do more than what other legislation requires to meet HSWA duties.

•  A PCBU is a ‘person conducting a business or undertaking’.
• In most cases the PCBU will be an organisation (eg a business entity such as a company).
• A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers, and that other persons are not put at risk by its work – this is called the ‘primary duty of care’.
• PCBUs have a number of duties under HSWA.
• Examples of PCBUs Individuals or organisations can be PCBUs. A PCBU will usually be a legal entity, but HSWA also makes it clear that it could be a body of persons. Examples of PCBUs are:
  • A business in the form of a limited liability company.
  • A sole trader or self-employed person.
  • A limited partnership.
  • A partner in a partnership (if the partnership is not a limited partnership).
  • An entity created by legislation (eg a statutory body such as an university).

• A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers, and that other people are not put at risk by its work. This is called the ‘primary duty of care’.
• A PCBU who is a self-employed person must also ensure, so far as is reasonably practicable, his or her own health and safety while at work.
• PCBUs must, so far as is reasonably practicable, provide and maintain a work environment that is without health and safety risks.
• PCBUs must, so far as is reasonably practicable, provide safe plant and structures, and maintain them in good condition.
• PCBUs must, so far as is reasonably practicable, provide and maintain safe systems of work (eg work processes).
• PCBUs must, so far as is reasonably practicable, make sure that plant, structures, and substances are safely used, handled and stored.
• PCBUs must, so far as is reasonably practicable, provide adequate facilities (that are clean, safe, accessible, in good working order and maintained to stay that way) for the welfare of workers.
• PCBUs must, so far as is reasonably practicable, make sure its workers and others are provided training, information, instruction or supervision to protect them from risks to health and safety.
• A PCBU must, so far as is reasonably practicable, monitor its workers’ health and the workplace conditions. Monitoring is not a control measure to manage risk and does not replace the need for control measures to reduce exposure. Results from monitoring should be used to improve control measures where needed.
• Where a PCBU provides it’s workers with accommodation then the PCBU must, so far as is reasonably practicable, maintain the worker accommodation so that workers are not exposed to health and safety risks arising from the accommodation.
• A PCBU who manages or controls a workplace must ensure that, so far as is reasonably practicable, the workplace, the means of entering and exiting the workplace, and anything else arising from the workplace are without health and safety risks to any person.
• PCBUs who manage or control fixtures, fittings or plant at a workplace must, so far as is reasonably practicable, ensure that the fixtures, fittings or plant are without risks to the health and safety of any person. This could include consideration of the potential health effects from using the plant (eg the long-term use of a vibrating tool causing damage to nerves or blood vessels in the arms or hands).
• PCBUs who are designers, manufacturers, importers or suppliers (Upstream’ PCBU’s) must, so far as is reasonably practicable, make sure that the plant, substances, and structures designed, manufactured, imported or supplied (as relevant) are without health and safety risks when they are used for their intended purpose in a workplace..

• All PCBUs must involve their workers in workplace health and safety. A safe workplace is more easily achieved when everyone involved in the work communicates with each other to identify hazards and risks, talks about any health and safety concerns and works together to find solutions.
• PCBUs have two duties:
  • to engage with workers who carry out work for them on health and safety matters that may directly affect them
  • to have practices that give their workers reasonable opportunities to participate effectively in improving health and safety in the business or undertaking on an ongoing basis (these are known as worker participation practices).
• These duties only extend to workers who carry out work for the business or undertaking. Worker engagement and worker participation practices can be direct or through representation.
• Health and Safety Representatives (HSRs) and Health and Safety Committees (HSCs) are two well established methods of representation.
• Workers can also be represented by unions, community or church leaders, lawyers, respected members of ethnic communities, or people working on specific projects.

• To meet health and safety duties, risks that arise from work must be effectively managed.
• Risks to health and safety arise from people being exposed to hazards. A hazard is anything that can cause harm. HSWA clarifies that ‘hazard’ includes behaviour that has the potential to cause death, injury or illness (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock or another temporary condition that affects behaviour).
• Before deciding how to manage work risks PCBUs should think about risks more broadly across the work being conducted and the contributing factors.
• Risks must be eliminated so far as is reasonably practicable. If a risk cannot be eliminated, it must be minimised so far as is reasonably practicable. PCBUs must take these steps to the extent within their ability to influence and control the matter to which the risks relate.
• The processes or equipment put in place to eliminate or minimise risk are called control measures. For minimising risk, if the risk is well-known and if there are commonly accepted ways to manage it, these control measures should usually be used.
• PCBUs with overlapping duties must, so far as is reasonably practicable, work together to manage work risks.

• PCBUs must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other PCBUs who have health and safety duties in relation to the same matter (overlapping duties) e.g. on a shared worksite or in a contracting chain.

A notifiable event is when the following occurs as a result of work:

• a death
• a notifiable illness or injury or
• a notifiable incident.

Notifiable injuries, illnesses and incidents are specified in HSWA. The regulator must be informed of all notifiable events. This notification allows the regulator to investigate or follow up on significant events immediately.

A notifiable incident is an unplanned or uncontrolled incident in relation to a workplace that exposes the health and safety of workers or others to a serious risk arising from immediate or imminent exposure to:

• a substance escaping, spilling, or leaking
• an implosion, explosion or fire
• gas or steam escaping
• a pressurised substance escaping
• electric shock
• the fall or release from height of any plant, substance or object
• damage to or collapse, overturning, failing or malfunctioning of any plant that is required to be authorised for use
• the collapse or partial collapse of a structure
• the collapse or failure of an excavation or any shoring supporting an excavation
• the inrush of water, mud, or gas in workings in an underground excavation or tunnel
• the interruption of the main system of ventilation in an underground excavation or tunnel
• a collision between 2 vessels, a vessel capsize, or the inrush of water into a vessel
• any other incident declared in regulation to be a notifiable incident (eg specified incidents in the Health and Safety at Work (Petroleum Exploration and Extraction) Regulations 2016). Notifiable incidents do not include controlled activities that form part of the business or undertaking (eg the controlled release of water from a dam).

•  STEP 1: The PCBU who manages or controls the workplace must take all reasonable steps to ensure the site of a notifiable event is not disturbed until authorised by an Inspector (ie an Inspector gives permission for normal work to resume at the site of a notifiable event)1 . Note: exceptions to this include where the disturbance is to; help an injured person or make the site safe or minimise the risk of further events.
• STEP 2: A PCBU must ensure the regulator is notified as soon as possible after it becomes aware of a notifiable event arising out of the conduct of the business or undertaking. This notification must be done even if emergency services attend.
• STEP 3: The PCBU must keep records of notifiable events for at least five years from the date the regulator was notified about the event.

Although HSWA does not explicitly state that PCBUs must investigate notifiable events, such investigations form part of good practice to identify and manage work risk.

Certain workplaces, work activities, plant or substances must have appropriate approvals (authorisations). Authorisations are licences, permits, consents, certificates, registrations or other authorities described in health and safety regulations, and must be obtained before relevant work begins. Authorisations may be given by WorkSafe, another regulator or a third party authorised to do this.

WorkSafe needs to be told within specified times before certain work activities are carried out such as certain asbestos removal work.

An officer is a person who occupies a specified position or who occupies a position that allows them to exercise significant influence over the management of the business or undertaking. Organisations can have more than one officer. Each officer has a duty to exercise due diligence because they make policy and investment decisions that can affect workers’ health and safety. Officers are:

• company directors (even if they do not have ‘director’ in the title)
• any partner in a partnership (other than a limited partnership)
• any general partner in a limited partnership
• any person who holds a position comparable to a director in a body corporate or an unincorporated body
• any person who occupies a position that allows them to exercise significant influence over the management of the business or undertaking (eg. the Chief Executive).

People who provide health and safety or other advice, or make recommendations to senior leadership are not officers solely on this basis. Some examples of people who are not officers (unless they also fall into one of the officer categories described above) include:

• health and safety managers, team leaders, line managers and supervisors
• workplace health and safety officers and advisors
• people that have ‘officer’ in their job title, such as Corrections Officer, Police Officer or Administration Officer.

Officers must exercise due diligence to make sure that the PCBU complies with its health and safety duties. They must exercise the care, diligence and skill a reasonable officer would exercise in the same circumstances, taking into account matters including the nature of the business or undertaking, and the officer’s position and nature of their responsibilities. Officers of large PCBUs cannot rely on the fact that their organisation has a health and safety management system in place. They should understand how it works, and take steps to make sure it is working. In smaller PCBUs, officers are more likely to have a hands-on role in health and safety. They might talk directly with workers, supervise health and safety practices and investigate incidents. Officers that only have a passive role or interest in work health and safety are not taking ‘reasonable steps’.

A worker includes:

• an employee
• a contractor or sub-contractor
• an employee of a contractor or sub-contractor
• an employee of a labour hire company who is working in the business or undertaking
• an apprentice or trainee > an outworker (including a homeworker)
• a person on work experience or a work trial
• a volunteer worker (section 6.2 of this Guide)
• other persons defined as workers in regulations under HSWA.

Workers must:

• take reasonable care for their own health and safety
• take reasonable care that what they do or do not do does not adversely affect the health and safety of other persons
• co-operate with any reasonable workplace health and safety policy or procedure that has been notified to workers
• comply, so far as reasonably able, with any reasonable instruction given by the PCBU, so the PCBU can comply with HSWA and regulations.

Workers must be engaged about health and safety issues likely to directly affect them, and be given reasonable opportunities to participate in the ongoing improvement of health and safety of the PCBU they work for. Worker engagement and worker participation practices can be direct or through representation. Health and Safety Representatives (HSRs) and Health and Safety Committees (HSCs) are two well established methods of representation. Workers can also be represented by unions, community or church leaders, lawyers, respected members of ethnic communities, or people working on specific projects. HSRs elected under HSWA have functions and powers including representing workers on health and safety, entering and inspecting workplaces, making recommendations relating to work health and safety and promoting the interest of workers who have been harmed at work. An HSC enables PCBU representatives, workers and other HSC members to meet regularly and work co-operatively to ensure workers’ health and safety. The functions of HSCs include to assist in the development of health and safety standards, rules, policies or procedures, and to make recommendations relating to work health and safety. PCBUs have obligations towards HSRs and HSCs.

A worker can refuse to work, or stop work, if they believe that doing the work would expose them or another person to a serious health or safety risk arising from immediate or imminent exposure to a hazard. A trained HSR may direct unsafe work to cease. The worker needs to tell the PCBU as soon as possible that they have stopped work. The PCBU may direct the worker to carry out alternative work, as long as that work is safe and appropriate, and within the scope of their contract or employment agreement.

Examples of other persons at workplaces are:

• workplace visitors eg: people shopping (ie the shop is the workplace), people on tours of the workplace, people visiting the PCBU or its workers, eg for meetings
• people who pay the PCBU (with money or something else) to do something at the workplace eg: people attending a concert, clients or customers of companies providing adventure activities, people picking strawberries at a commercial ‘pick your own’ strawberry field.
• casual volunteers at workplaces (not volunteer workers).

Other persons at workplaces need to:

• take reasonable care for their own health and safety
• take reasonable care that others are not harmed by something they do, or do not do
• comply, as far as they are reasonably able, with the PCBU’s reasonable health and safety instructions that are given so that the PCBU can comply with HSWA or regulations.

Other persons need to take reasonable care that anything they do (or do not do) will not cause others harm. They can be held legally responsible if they cause someone harm and did not take reasonable care. .

The work health and safety regulator is:

• WorkSafe New Zealand (WorkSafe)
• other government agencies designated to carry out health and safety regulatory functions for certain sectors.

WorkSafe’s functions include to:

• monitor and enforce compliance with work health and safety legislation
• collect, analyse, and publish statistics and other information relating to work health and safety
• provide guidance, advice and information on work health and safety
• foster a co-operative and consultative relationship between the people who have health and safety duties and the persons to whom they owe those duties and their representatives.

The role of Inspectors is to ensure duty holders (eg PCBUs and workers) comply with health and safety law. They do this by:

• providing information and education
• assessing workplaces
• investigating incidents
• enforcing health and safety law.

All Inspectors carry an identity card..

The regulator has a range of tools available. Appropriate tools will be used, depending on the circumstances, including the level of risk or potential risk to health and safety, the willingness of the PCBU to comply with the law, and any harm that has been suffered. These can range from improvement notices and prohibition notices to prosecution. Professional judgement, guided by relevant regulator policies, and the details of each situation will be used to determine which enforcement option is appropriate.

Improvement notices can be issued by an Inspector who reasonably believes that a breach of HSWA or regulations is occurring or is likely to occur. An improvement notice requires changes to be made to remedy the breach or likely breach within a stated (reasonable) time period (the compliance period). Notices must be displayed. A Provisional Improvement Notice (issued by an HSR) that has been confirmed by an Inspector must be treated as an improvement notice issued by an Inspector. The person who has been issued with an improvement notice must comply with the notice within the compliance period or be liable on conviction to a fine. Inspectors may extend the compliance period before it expires.

An Inspector may issue a prohibition notice if they reasonably believe a workplace activity involves or will involve a serious risk to health and safety arising from an immediate or imminent exposure to a hazard. Prohibition notices can also be issued in respect of certain activities or workplaces requiring authorisation (including mining operations) where the Inspector believes there is a serious risk to health and safety or there is likely to be such a risk, because of a failure to comply with HSWA or regulations. Notices must be displayed. Once a prohibition notice has been issued then the activity has to stop until an Inspector is satisfied that the risks have been remedied. A prohibition may be given orally at first, but must be by a written notice as soon as practicable. Remedial action may be taken by the regulator when a person fails to take reasonable steps to comply with the requirements of a prohibition notice, or if a prohibition notice could be issued but the person cannot be found. Remedial action is taken to ensure that a workplace or situation is made safe. The regulator can recover the costs of doing this from the relevant person.

A non-disturbance notice is a written notice issued by an Inspector requiring a PCBU who manages or controls a workplace to preserve a site where a notifiable event has occurred, or prevent a particular site (including the operation of plant) being disturbed for a specified period. A non-disturbance notice may be issued if the Inspector reasonably believes it is necessary to facilitate the exercise of his or her compliance powers. Notices must be displayed. A non-disturbance notice does not prevent any action to assist anyone who has been injured, remove a deceased person, or to make the site safe, or action done or directed by a constable, or authorised by an Inspector. It is important to note that, even without the issue of a non-disturbance notice, the PCBU who manages or controls a workplace where a notifiable event occurs has a duty to take all reasonable steps to ensure that the site where the event occurred is not disturbed until released by an Inspector.

Infringement notices may be issued by the regulator for prescribed offences against HSWA or regulations. The law does not require the regulator to give prior warning before issuing an infringement notice. A person issued with an infringement notice may challenge the notice in court, or otherwise must pay the fee set out in the notice. A notice may be revoked by WorkSafe, but only if the infringement fee has not yet been paid or ordered to be paid by the court.

An enforceable undertaking is an alternative to prosecution. When agreed to by the regulator, it allows a person to voluntarily enter a binding agreement to take action to remedy an alleged breach of the law. Once an enforceable undertaking has been agreed to, it is enforceable against the person who made it. While it is in effect, the regulator cannot bring a prosecution for the relevant breach of the law. A person can, with the regulator’s agreement, vary or withdraw an enforceable undertaking. If the person contravenes an enforceable undertaking, the regulator can apply to the District Court for appropriate orders. The District Court could order the person to comply, or make other orders, including an order for the person to pay the regulator’s costs in applying to the court. A person could also be subject to a prosecution for the contravention.

The regulator may prosecute duty holders for breaches of HSWA or regulations. The decision to prosecute is influenced by a number of factors, as set out in the regulator’s prosecution policy. This includes consideration of whether there is sufficient evidence to provide a reasonable prospect of conviction and if prosecution is in the public interest. HSWA also allows a person to bring a private prosecution.

There are a range of offences and penalties under HSWA and regulations. Imprisonment is reserved for the most serious offences. Penalties depend on the offence and what type of duty holder the offender is:

• an individual who is not a PCBU (eg a worker or other person at the workplace)
• an individual who is a PCBU (eg self-employed) or an officer of a PCBU or
• any other person, such as an organisation that is a PCBU (eg a company, government department or non-profit organisation).

In addition to court-imposed penalties, infringement notices can be issued by a regulator for specified offences against HSWA or regulations. The person receiving the infringement notice is required to pay an infringement fee or may dispute against the notice, which means that the matter turns into a criminal proceeding against that person heard in the District Court.

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The court can make a number of orders when sentencing for offences, in addition to fines and imprisonment as follows:

• Adverse publicity orders (section 153 of HSWA) – requires the offender to publicise or notify particular people of the offence, including the consequences of the offence and the penalty imposed.
• Orders for restoration (section 154 of HSWA) – requires the offender to put right the effects of the offence.
• Work health and safety project orders (section 155 of HSWA) – requires the offender undertake a specified project to improve health and safety.
• Court-ordered enforceable undertaking (section 156 of HSWA) – the court can adjourn a proceeding and release the offender if the offender gives an undertaking with specified conditions.
• Injunctions (section 157 of HSWA) – requires the offender to stop particular actions that are an offence.
• Training orders (section 158 of HSWA) – requires the offender do specified training, or arrange for workers to do specified training. It is an offence not to comply with any of the court-imposed orders (other than injunctions or court-ordered enforceable undertakings) (section 159 of HSWA).
• The maximum penalties are:
  • $50,000 for an individual
  • $250,000 for any other person (eg a company).
• The court can order the offender to pay money towards the regulator’s costs in prosecuting the offence, including investigation and legal costs (section 152 of HSWA).

The table below provides a summary of the work health and safety regulations and what they cover. Some of these regulations are still under development. All regulations can be found at www.legislation.govt.nz