As part of a major workplace law overhaul, Minister for Workplace Relations and Safety, Brooke van Velden, has announced proposed changes to the Health and Safety at Work Act 2015 (HSWA) and the WorkSafe New Zealand Act 2013. The aim? Less red tape, more support.
What are the Issues?
Following 2024 consultations with businessowners, the Minister has identified key concerns:
Businesses need more support to get it right
The application of regulation is inconsistent
WorkSafe’s engagement with business comes across as punitive rather than collaborative
WorkSafe inspectors do not (always) have sufficient knowledge to understand niche industries and therefore cannot provide adequate support.
The issues presented in the paper, raised by businessowners, are not unlike issues that we hear from businessowners regularly. A particular concern raised by the businessowners was that WorkSafe seems to require a “Gold Standard” of practices and recommend changes to comply with that, rather than considering the individualised needs of any one business.
What’s Changing?
Carve-outs for small, low-risk businesses –While the details provided to date are slim, the Minister provides an example of a small clothing shop that would still need to provide first aid, emergency plans, and basic facilities, such as suitable lighting, but wouldn’t need to have a psychosocial harm policy in place.
Reframing the purpose of the HSWA – The Act’s primary focus will shift from the broad “health and safety of workers” to managing critical risks – defined as those with the potential to cause death, serious injury, illness, or catastrophic failure. This narrows the scope of enforcement and obligations for employers
Clarifying WorkSafe’s principal functions – The revised legislation will define WorkSafe’s role as not just enforcing compliance, but also providing guidance, information, safe work instruments, codes of practice, and authorising third parties. The intent is to balance the punitive arm of WorkSafe with a more structured support system, to actually assist businesses with compliance rather than just focussing on enforcement.
New emphasis on worker responsibilities – WorkSafe will be expected to take a firmer stance when workers breach their own duties. This comes in response to employer concerns that even with clear policies and training, employees sometimes ignore safety protocols and cut corners, exposing businesses to liability.
More detailed Approved Codes of Practice (ACOPs) – Increased ACOPs to provide guidance on what is “reasonably practicable” in specific industries, helping businesses apply the theoretical and broad rules in the legislation more appropriately to their own operations. While these already exist, there is a goal to provide more guides and for them to be more specific and relevant.
Improved fiscal transparency at WorkSafe – There are also intended changes at a high level to address fiscal transparency.
What Does This Mean?
On the face of it, these changes are likely to make a big difference to small businesses and safety-sensitive industries, where WorkSafe is often perceived as a bogeyman which will punish businesses for failing to meet imperceptible obligations. The amped up guidance and support measures certainly fit with the belief that the best way to prevent wrongdoing is to help a business with compliance, rather than to scare them out of non-compliance or punish them when they get it wrong.
However, questions remain. The law already considers what is “reasonably practicable” based on a business’s resources and risk level – so the practical need for a small-business carve-out is debatable. Similarly, narrowing the focus to “critical” risks may reduce expectations around psychosocial harm, even without a formal exemption.
For employers, it’s worth noting the Employment Relations Authority does not have any powers in respect of health and safety and cannot make awards for breaches of HSWA. However, there are existing decisions from the Authority which consider the management of risks to the employees as part of an employer’s “good faith” obligations. It will be interesting to see if the Authority considers that the duty is owed to employees under general good faith obligations remains the same regardless of the duties owed under the revised HSWA.
Need Advice?
As part of our Employment Law services and subscription packages, we can advise on health and safety obligations – especially around psychosocial risks and compliance planning.
Contact Abi Borrows our Employment Law specialist for a confidential chat.