Neil Sands
A planned overhaul of the workplace safety regime appears to prioritise economic issues over harm prevention, ignores mental health and, is unlikely to improve New Zealand’s poor record of workplace fatalities, injuries and illnesses, The Law Association’s Health & Safety Law Committee has warned.
The TLANZ committee, comprised of legal experts in the field, said the Health & Safety at Work Amendment Bill, while well intentioned, risks “a step backwards” for workplace safety, leaving workers with less protection, boosting compliance costs for businesses, and creating confusion for everyone.
“The aims are to cut red tape, reduce compliance costs, and support economic growth. These objectives are primarily economic,” the committee said in a submission to Parliament’s Education & Workforce Select Committee. “Notably, none of the proposed amendments directly target New Zealand’s continued poor workplace health and safety performance.”
It said the bill, which passed its first reading last month, should be redrafted to reflect the core objective of “protect[ing] workers and others against harm to their health, safety and welfare”.
Unveiling the bill in Parliament last month, van Velden said it was a response to feedback from businesses, particularly small businesses that “confusion and a fear of getting it wrong have contributed to a culture of overcompliance that has not delivered better safety outcomes”.
She said bill will shift transform WorkSafe from an enforcement agency into an advice provider and reduce obligations on small business so they can focus on critical risks in the workplace, not paperwork and peripheral issues.
In addition, the role of Approved Codes of Practice (ACOPs) covering specific industry sectors will be strengthened, making them a “safe harbour for compliance”, meaning that if a business has followed the guidance they contain, it has done enough to meet health and safety requirements.
Dire record
The need to improve New Zealand’s workplace safety record is common ground among everyone involved in the area. The TLANZ submission says that we record 60–80 workplace fatalities and an estimated 750–900 deaths from work-related health conditions annually, noting the statistics have either stagnated or declined since the current legislation was introduced in 2015.
Last year’s State of a Thriving Nation report, produced by the Business Leaders’ Health & Safety Forum, estimated the economic cost at $5.4 billion a year and said: “Our workplace death rate is where Australia was 16 years ago, and where the United Kingdom was 40 years ago.”
However, the TLANZ submission said the relevant legislation – the Health & Safety at Work Act (HSWA) 2015 – remains “fundamentally sound”, pointing out that it is modelled on the law in Australia, where workplace death and injury rates are about half New Zealand’s.
“The disparity therefore reflects issues with implementation, resourcing, and enforcement – not with the legislative framework,” it said, adding its own suggestions for improvement: “To meaningfully reduce harm in New Zealand, we need a more comprehensive suite of supporting regulations, stronger WorkSafe guidance, and a better‑resourced inspectorate (with clear directives on how to apply and enforce the law effectively and fairly).”
Addressing specific measures in the bill, the submission raises concerns it will introduce distinctions between different types of businesses – or PCBUs (Person Conducting a Business or Undertaking) in industry jargon – with large ones required to remain fully compliant with HSWA obligations but smaller ones needing to only consider critical risks.
Questioning the two-tier approach, it points out that small businesses often carry out work that has a higher risk profile than performed by larger ones, warning of the risk it will result in reduced legal protection for workers in smaller businesses.
“The intent may be to assist smaller companies and PCBUs, but the practical application of such a regime would likely cause more uncertainty in reality than in theory. Smaller PCBUs will continue to work on a range of work sites with larger PCBUs, and where there are differing liability thresholds and an inability to contract out of duties – workplaces may see confusion rather than certainty.”
‘Missed opportunity’ on mental health
The submission said that small businesses, not just large ones, should continue to manage non-critical risks – which account for a substantial proportion of workplace harm in New Zealand – arguing the definition of critical risk in the bill is subjective and unclear.
“Under the proposed definition, many serious and prevalent harms – such as customer-initiated violence, musculoskeletal injuries (including back injuries), certain occupational diseases, and work-related psychological harm – may not meet the threshold of a ‘critical risk’,” it said.
The TLANZ committee was also concerned that individuals and industry bodies will be allowed to draft the ACOP guidelines that provide safe harbour under the new regime, saying it raises questions about the consistency, robustness and fairness of the documents.
Some of the committee’s strongest criticism was aimed at the bill’s failure to reference mental health and psycho-social risks in the workplace.
“Burnout, stress related illness, anxiety, depression, fatigue-related impairment… are among the most common work-related harms experienced by NZ workers,” it said.
The focus solely on physical hazards in the workplace, combined with the carve-out requiring small businesses to only manage critical risks, leaves the mental health of workers in small businesses unprotected, the submission said.
“Psychosocial risks, such as workload, bullying, fatigue, and poor work design occur irrespective of business size, this creates a significant gap in worker protection,” it said, noting that modern health and safety legislation in Australia, UK, the EU, and Canada increasingly addresses such issues.
“New Zealand has fallen behind. The [bill’s] current drafting does not modernise the Act, does not support WorkSafe’s recent focus on mentally healthy work, does not respond to the strongest emerging risk category and it does not acknowledge the realities of small business workplaces.
“In the committee’s view, this is a missed opportunity.”
The parliamentary select committee is due to report back on the bill by June 13.
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