The Health and Safety at Work Amendment Bill has been reported back by the Education and Workforce Committee. The Committee has recommended, by majority, that the Bill be passed with amendments.

The Bill is intended to make the health and safety regime clearer and more focused on serious risks. It does this by introducing the concept of “critical risk”, changing some duties for smaller businesses, clarifying officer and landowner responsibilities, strengthening Approved Codes of Practice, and addressing how the Health and Safety at Work Act interacts with other laws.

If passed, the amendments will be relevant not only to day-to-day compliance, but also to how responsibility is assessed after an incident.

What would change

Critical risks

The Act would be reframed around the management of “critical risks”.

A critical risk would include a risk associated with death, notifiable injury or illness, a notifiable incident, or certain occupational diseases listed in Schedule 2 of the Accident Compensation Act 2001. The Committee has recommended wording to make clear that the question is not simply how likely the risk is to occur, but whether serious harm is likely to result if it does occur.

This would make the identification and recording of serious risks more important. After an incident, there is likely to be closer focus on whether the risk was properly identified and treated as critical.

Small PCBUs

The Bill would create a new category of “small PCBU”, generally meaning a business or undertaking with fewer than 20 workers.

For small PCBUs, some duties would be limited to critical risks. That does not remove health and safety obligations, but it changes the scope of some duties and makes the critical/non-critical risk distinction more important.

Directors and officers

The Bill would clarify the duties of officers, including directors.

The proposed position is that officer duties are governance-focused. Directors and other officers would not be expected to manage every operational detail unless they have a clear operational role. They would, however, still need to exercise due diligence at an appropriate level.

In practice, directors and officers should ensure that health and safety reporting is pitched at the right level and that serious risks are being brought to their attention.

Landowners and recreational access

The Bill would change the position for PCBUs who manage or control outdoor spaces used for recreation. Recreational access alone would not necessarily make a landowner responsible under the Act. The duty would be more likely to apply where the recreational activity is part of the PCBU’s business or undertaking, or where work is occurring in the same place and time.

Landowners and occupiers who allow recreational access would still need to consider how that access is arranged and whether it overlaps with any work being carried out on the land.

Shared duties between PCBUs

The new wording would address how those duties operate between small and large PCBUs. It would also allow PCBUs to agree, by contract or arrangement, how they will co-operate, provided that agreement does not exclude or avoid duties under the Act. In practice, this may include a small PCBU agreeing to co-operate on non-critical risks with a large PCBU, over and above the small PCBU’s own duties under the Act.

This would be relevant where principals, contractors, subcontractors, tenants, occupiers, or landowners are involved in the same work or site.

Other legislation

The Bill would also change how the Act interacts with other statutory regimes.

Where another enactment requires action that manages the same health and safety risk in the same situation or circumstances, compliance with that other requirement may be treated as compliance under the Act.

This may reduce duplication, but it will still be necessary to consider whether the other regime addresses the same risk.

Approved Codes of Practice

Industry groups would have a greater role in developing Approved Codes of Practice, and those codes would carry greater weight.

In some circumstances, a person who acts in accordance with an applicable code would be deemed to have complied with the Act for the relevant risk and circumstances.

That may provide clearer guidance for duty holders. It may also make it more important to identify whether an applicable code exists, whether it was followed, and whether it covered the relevant risk.

Why the Bill matters

The Bill is not yet law, but it indicates the likely direction of reform.

The amendments are aimed at reducing unnecessary compliance costs and giving businesses clearer guidance about what they need to do. In practice, the changes may make it more important to identify the critical risks in an operation, who is responsible for managing them, and what records show that those risks were properly considered.

The changes may also be relevant after an incident. Key questions may include whether the risk was a critical risk, whether the business was a small PCBU, whether other PCBUs were involved, whether any Approved Code of Practice applied, and whether the role of any director, officer, landowner or occupier is properly understood.

The Bill will now continue through the remaining Parliamentary stages. Businesses should keep an eye on developments and consider how the changes might affect their operations.

Resources

Report on Health and Safety Amendment Bill Released

Fee Langstone