Changes To Health And Safety Reform Bill – What You Need To Know

Late last year we posted the blog "The law is changing - are you ready?" and talked about what the actual changes are going to be and how you can prepare yourself and your business for it.

Since then, the health and safety reform bill was discussed again and this article will give you an update of the current situation.

If you employ staff – or even volunteers – your health and safety responsibilities will change after the Health and Safety Reform Bill becomes law later this year. The Government Select Committee reported back last week. Here's a quick update on what you need to know and why it matters.

What's a PCBU and who's accountable?

PCBU is an important abbreviation for businesses to understand. It means Person Conducting a Business or Undertaking. Under the Bill, a Person Conducting a Business or Undertaking (PCBU) has the primary duty to ensure the health and safety of its workers and others, so far as is reasonably practicable. Volunteer organisations with one or more employees count as PCBUs and have the same responsibilities as employers, but purely volunteer community organisations are exempt.

The new legislation is tougher on PCBUs in three key areas:

• Greater requirement for proactively identifying and minimising risks and hazards
• Cost is no longer an equal consideration when assessing what is reasonably practicable when eliminating or minimising risks
• Ensuring that health and safety systems are understood and applied correctly within the workplace.

The Health and Safety Reform Bill has a new duty for an officer of a PCBU (such as a director, board member or partner) to ensure that the PCBU complies with its duties. They will be held accountable for health and safety breaches. Companies could also be required to pay the costs of investigation and prosecution, which could be substantial.

The changes clarify how far down an organisation a duty applies and to what extent, taking into account the nature of the business, the position of the officer and the nature of their responsibilities. People who merely advise or make recommendations are not responsible for breaches.

The changes make clear that officers must only do what is within their ability to influence and control when managing risks, and PCBUs do not owe a duty to people who are there illegally.

Health & Safety representatives

All PCBUs will have to have worker participation practices that give staff the opportunity to participate in work health and safety decisions. This can be in the form of health and safety representatives, but that's just one option – you don't have to have formal health and safety representatives to show worker participation.

If any worker requests an elected health and safety representative, you must initiate an election UNLESS (if the select committee change is accepted) you have a small business with fewer than 20 workers, and your business is not classified as high risk. Just what constitutes a high risk business has yet to be decided, but regulations due out in late 2015 are likely to include industries like forestry, mining and oil exploration. It's not yet clear whether farming will be classified as high risk.

Health and safety representatives will have the power to direct unsafe work to stop where there is a serious risk. Their powers are limited to the particular work group that they represent, and only for health and safety purposes.

Shared workplaces made clear

The need for PCBUs to work together on health and safety matters is not new and is required under the current law. The Health and Safety Reform Bill now makes it clear how to proceed.

• PCBUs must discharge their overlapping duties to the extent they have the ability to influence and control the matter (the previous wording talked about "capacity" to influence or control)
• The changes to the Bill clarify that the duty to consult, cooperate and coordinate activities sits with the PCBU, not with all duty holders
• A duty holder's obligations to manage risk are limited to doing what is in their ability to control and manage, along with what is reasonably practicable for them to do to manage the risk
• Courts must consider death or harm (both actual and potential) caused by a breach of duty in their sentencing.

With the Bill expected to become law later this year, companies need to take a hard look at whether they will comply with the new laws.

Read in our next blog thoughts and recommendations from our health & safety specialist Chris L'Ecluse.