June 7, 2016

The Health and Safety At Work Act 2015 Two Months In – How not to be a guinea pig

Published in the Independent Tertiary New Zealand (ITENZ) June 2016 newsletter

The Health and Safety at Work Act 2015 (“HSWA”) came into force on 4 April 2016, heralding an overnight culture shift of health and safety in New Zealand workplaces. Suddenly, everyone in the workplace has a new health and safety title (PCBU and/or Officer and/or Worker) but unfortunately, our new titles did not come with instructions.

While some people across the country have tentatively retrieved their health and safety policy from the bottom of the filing cabinet over the last few weeks, our clients were pro-active in amending their policies, procedures and employment agreements well in advance of the changeover. However, we have found that very few organisations have implemented the actual culture shift required to be compliant with the HSWA.

The HSWA requires more than a paper trail (although that is a good start). It calls, in most cases, for an entire paradigm shift towards full integration of health and safety considerations into everyday business. This means reviewing (amongst other things) governance, recruitment practices, training needs, meeting agendas, reporting lines, worker empowerment, cultural capability and health monitoring practises.

What we are concerned about from a legal perspective is that this Act needs a few years’ case law before organisations can operate with an element of certainty around health and safety practises. The grey areas of the new Act require interpretation including, for example, an educational organisation’s obligations to its students. We are advising our clients to take a conservative approach to such grey areas for the time being and treating students as any other workers.

What we do not want is for PTEs, or any of our clients, to be guinea pigs for case law. In order to minimise the risk of this, we recommend PTEs:

  • audit health and safety practises including culture, policies, procedures and employment agreements;
  • identify each tier of responsibility in the PTE and its associated duties;
  • consider the findings and implement changes;
  • facilitate training at all levels of the PTE; and
  • consult with external parties who will be entering the workplace, or who control external workplaces workers will be entering.

Chen Palmer’s EduSafe team specialises in health and safety of educational organisations, including PTEs. We understand education and we understand health and safety of educational organisations, including PTEs. We understand education and we understand health and safety. If you would like to discuss how our EduSafe team could help your PTE, please contact us at Chen Palmer on (09) 557 0350 or email edusafe@chenpalmer.com

Marina Matthews is a Partner at Chen Palmer New Zealand Public and Employment Law Specialists. She was assisted in drafting this article by Frances Meikleham, an experienced employment lawyer and experienced litigator.

This article provides general information and is not legal advice.