Health and Safety Update September 2024 - Law reform and prosecutions

Government consultation on health and safety regulations 

When forming the new Government in 2023, the National Party entered into coalition agreements with both ACT and NZ First. In these agreements, all three parties aligned on a number of areas of law and regulation that would be reviewed and changed.  

The coalition agreement between National and ACT, contains a number of commitments relating to laws and regulations in the employment space:  

• Repeal the Fair Pay Agreement regime by Christmas 2023. 
• Reform health and safety law and regulations. 
• Expand 90-day trials to apply to all businesses 
• Consider simplifying personal grievances and in particular removing the eligibility for remedies if the employee is at fault, and setting an income threshold above which a personal grievance could not be pursued.  
• Maintain the status quo that contractors who have explicitly signed up for a contracting arrangement can’t challenge their employment status in the Employment Court. 

While a number of these commitments have already been implemented, a number are still being worked through. One of these being the reform of health and safety regulations. The Ministry of Business Innovation and Employment (“MBIE”) is currently seeking broad feedback from the public on the health and safety regulatory system, with areas of particular interest including: 

• How decisions about health and safety are made, the reasons behind these decisions, and their cost. 
• Whether the law strikes the right balance between flexibility and certainty. 
• How businesses or organisations engage with workers, how workers participate in health and safety, and the impact this has on health and safety. 
• Experiences with health and safety regulators. 
• Whether the work health and safety regulatory system is meeting its objective. 

Submissions to MBIE are due by 31 October 2024. We expect the review process will take time. Until MBIE produce recommendations, and the Government indicates if and how those recommendations might be adopted, the current regulatory system remains. 

Recent health and safety prosecutions 

Currently, all PCBUs (Persons Conducting a Business or Undertaking) have the primary responsibility for the health and safety of their workers. In cases of accidents causing fatalities or serious injury, WorkSafe is tasked with investigating and deciding whether to pursue prosecution of the PCBU concerned. Below is a summary of a couple of recent prosecutions in the District Court following WorkSafe investigations. 

WorkSafe New Zealand v Anglo Engineering Limited 

In this case, the worker was operating a heavy duty press that was activated by a foot pedal. The worker was accessing the operational area while her foot was on the pedal. The press was accidentally activated, coming down on the worker’s hand, crushing three fingers. 

Following Anglo’s guilty plea, a fine of $200,000 was imposed, along with reparation and costs totalling $37,951.34.  

The level of fine and reparations were set, in part, due to the finding that the company failed to: 

• Ensure there was an effective risk assessment of the Press. 
• Ensure that the Press was effectively guarded in accordance with industry standards and guidance, including ongoing monitoring of the guard’s effectiveness. 
• Develop, implement, monitor, and train workers in an effective safe system of work for the operation of the Press, including an effective standard operating procedure for the Press. 

WorkSafe New Zealand v BF Foodhub (Highbrook) Limited, and Total Recruitment Limited 

In this case, the worker was a labour hire worker, placed at BF Foodhub. The worker was cleaning a factory floor using strong chemical products, when he suffered chemical burns to his feet, resulting in multiple skin grafts and a toe being amputated.  

This case is interesting, in that both the placement company, and labour hire company, were prosecuted for failings related to their respective health and safety processes and systems.  

BF Foodhub was found to have failed to: 

• Ensure the provision of effective personal protective equipment (“PPE”), as well as failing to ensure this PPE was fit for purpose and actually used by the workers. 
• Effectively consult with Total Recruitment regarding the work being undertaken, including any associated health and safety risks, PPE required, who would supply PPE and ensure it was fit for purpose. 

BF Foodhub was fined $165,000, with reparations and costs of $32,528.55. 

Total Recruitment was found to have failed to: 

• Effectively consult with BF Foodhub regarding the work being undertaken, including any associated health and safety risks, PPE required, who would supply PPE and ensure it was fit for purpose. 

Total Recruitment was fined $7,500, with reparations and costs of $32,333.11. 

Our advice 

These cases act as a reminder to all employers, big or small, to make sure they’re regularly, and genuinely, checking their safety systems and procedures to ensure the likelihood or risk of accidents occurring are minimised as much as possible.  

It is likely, regardless of any changes made by the Government in the future, employers will retain a primary responsibility for health and safety in the workplace, as they are the ones with the ultimate control and ability to enact change. We encourage: 

• Ensuring the person assigned with undertaking a particular task is appropriately trained with a good understanding of the risks involved. 
• Ensuring all tasks have been assessed from a safety perspective, with easily accessible information about the safe operation of any tools, vehicles, or machinery (including standard operating procedures). 
• Making sure workers have access to, and are using, the appropriate PPE.  
• Conducting regular reviews of all workplace systems to ensure the health and safety measures in place remain effective and making improvements where necessary. 
• Regularly consulting and checking in with staff about possible health and safety improvements.  

If you need advice or assistance, the specialist employment law team at DTI Lawyers can be contacted by phone on 07 282 0174 or email Alistair@dtilawyers.co.nz.