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Important Changes in Health and Safety Law
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Important Changes in Health and Safety Law
Reform Initiatives
• Plan for improved service delivery by MBIE
Legislative ReformHealth and Safety at Work Bill
• Based on the Australian Model Work Health and Safety Act.
• Object is to ensure workers’ health and safety
• New offences and increased penalties
• New duty to take “reasonably practicable steps”
Health and Safety at Work BillFeatures
• A broader duty on “persons conducting a business or undertaking”
• A presumption in favour of the highest level of protecting workers from harm
• Comprehensive regulation of major hazard facilities
• Increased interaction between new regulator, other government agencies, and work places.
Health and Safety at Work BillFeatures
• Increased worker consultation and involvement in health and safety
• The new regulation will be underpinned by regulations, approved codes of practice, and guidance materials
• New due diligence duty on directors and officers
Health and Safety at Work BillTimeframe
• WorkSafe currently being established and will be operational in December 2013
• The Bill will be introduced to Parliament in December 2013 and enacted by the end of 2014
• A funding review of WorkSafe will be conducted in December 2015
Implications of changeWhat will be required?
• HSEA requires all practicable steps to be taken to safeguard health and safety
• All steps that it is reasonably practicable to take in the circumstances having regard to prescribed matters
• MHSL imposes a test of reasonably practicable steps
• A step which is, or was at a particular time, reasonably able to be done taking into account prescribed matters
Implications of changeWho will be affected?
• HSEA contains separate but parallel obligations for different duty holders
• Australian MHSL imposes a single obligation on all “persons in control of a business undertaking”
• Increased emphasis on upstream suppliers, e.g. designers, manufacturers, and suppliers of plant, substances, and structures
• Additional due diligence obligation on those in governance roles
Implications of changeDue diligence role for those in governance
• Individual liability for directors and officers under the HSEA
• As an officer, director, or agent who authorised, assented to, acquiesced in, or participated in a corporate failure
• More direct liability under the MHSL
• Officers must exercise due diligence to ensure the PCBU complies with its obligations
• Due diligence requirements prescribed by statute
Implications of changeDue diligence role for those in governance
• Institute of Directors Guideline
Implications of changeEnforcement : PenaltiesNew Zealand AustraliaOffences and Penalties
• Action/inaction knowing that it is reasonably likely to cause death or serious injury – fine of up to NZ$500k and/or two years’ imprisonment
• Failure to comply with duties – fine of up to NZ$250k
Offences and Penalties
• Category 1 (reckless conduct) $A3million : corporate $A300k/600k : individual/officer
and/or five years’ imprisonment
• Category 2 (conduct causing / exposing person : serious harm)
$A1.5 million : corporate $A150k/300k : individual/officer
• Category 3 (breach of duty) $A500k : corporate $A50k/100k : individual/officer
Implications of changeEnforcement : Penalties
• Changes will drive the new regime to be similar to Australia
• Introduction of the three-tier system Reckless conduct Exposure to risk of death or serious harm Other failures
• Individual fines proposed to range from $50k to $600k, with increase in maximum prison term to 5 years
• Fines will also dramatically increase for corporates (up to $3m)