The changes will refocus the health and safety system around critical risks, introduce proportionate duties for small PCBUs, clarify the role of officers, and strengthen the role of approved codes of practice. This article will provide further information on these changes, alongside guidance for HR teams to consider to ensure continued compliance.
Most of the Act’s provisions do not come into force until 1 April 2027. This provides PCBUs with time to understand the changes and prepare their systems, although the legislation could be subject to further change before it comes into force. Whether the Act remains unchanged into 2027 or not, HR teams should consider how the proposed changes would affect their workplace and use the lead-in period to identify any gaps.
What is changing?
One of the most significant changes is the introduction of critical risks as a central concept in the legislation.
A critical risk is a risk associated with a hazard which, if it occurs, is likely to result in death, a notifiable injury or illness, a notifiable incident, or an occupational disease. This includes mental health harm where it is likely to result in serious physical harm. These will need to be considered differently depending on the business, but a crucial element to understand is that a risk is assessed on whether serious harm would result if the risk occurred, not the likelihood of the event happening.
The Act creates the category of small PCBUs, which generally applies to businesses with fewer than 20 workers. For PCBUs whose number of workers fluctuates, they are considered ‘small’ if they reasonably expect the number of workers carrying out work to be fewer than 20 in at least nine months of the year. This also applies to PCBUs who do not operate for the entirety of the financial year.
These ‘small PCBUs’ will have proportionate duties, including managing critical risks and prioritising them when complying with their other health and safety obligations. Larger PCBUs must manage both critical and non-critical risks, but must prioritise critical risks.
In situations where multiple PCBU’s have shared duties, possibly when working on the same site, the Act outlines duties to co-operate. Where a small PCBU is working alongside a larger PCBU, both should manage critical risks and the small PCBU may co-operate to manage non-critical risks.
The reforms also strengthen the role of approved codes of practice (ACOPs). Compliance with an approved code for a particular risk will provide a form of safe harbour, meaning the person is taken to have complied with their HSWA obligations in relation to that risk. Industry groups, unions or other representatives are able to develop draft ACOPs, which can be submitted to WorkSafe for approval by the Minister.
A safe harbour is also available where a PCBU complies with an equivalent requirement under another regulatory regime, such as the Maritime Transport Act. This is intended to clarify how HSWA interacts with other legislation where the same health and safety risk is being managed.
WorkSafe will also have a greater focus on critical risks guidance and codes of practice, with changes intended to support an education-first approach to compliance.
Gibson v Maritime New Zealand brought attention to the obligations of officers in governance roles. The Act distinguishes between an officer’s health and safety obligations when acting in a governance role and those arising from an operational role. An officer’s duty to exercise due diligence is attached to their governance role, with the changes clarifying what this involves, including understanding the operations and risks of the business, ensuring appropriate resources and processes are available, and verifying that those processes are being used.
The Act also clarifies that landowners do not generally have obligations to recreational users of their land, unless the recreation is part of a business or undertaking conducted by a PCBU who owns that land, or work is occurring at the same time and place.
So, what does all that mean for HR?
For HR teams, the key task is to turn the legislative changes into practical changes to the organisation’s systems, responsibilities and training. The following steps can help PCBUs prepare before April 2027.
Identify Officers
HR should first establish who the organisation’s officers are and make sure those people understand what their responsibilities will be.
The changes place greater emphasis on the governance role of officers. Officers should be taking active and ongoing steps to understand what is happening across the PCBU, including the health and safety risks associated with its operations.
This means checking that officers are receiving appropriate information about health and safety, understand the organisation’s critical risks, and have access to the resources and processes they need to manage those risks. HR can support this by reviewing existing board and senior management reporting and considering whether health and safety information is reaching the right people.
Please refer to section 22 of the Health and Safety at Work Amendment Act further information regarding due diligence obligations
Identify your critical risks
Whether you are a small or large PCBU, the first practical step is to identify your critical risks.
Think about all aspects of the work carried out by the organisation and its employees. Importantly, do not simply consider how likely an event is to happen. Consider what the consequences would be if the event occurred and whether it could result in serious harm.
Once critical risks have been identified, review what is currently being done to prevent those risks from occurring and what controls are in place to minimise the severity of the harm if an incident does occur.
This should not necessarily mean starting the organisation’s health and safety system again from scratch. Existing risk assessments, incident data, worker feedback and health and safety records can provide a useful starting point.
Please refer to section 22A for further information regarding critical risks
Non-critical risks for PCBU
Large PCBUs will still need to manage non-critical risks, although critical risks will need to be prioritised.
HR teams should therefore consider whether their existing risk management systems clearly distinguish between critical and other risks. If they do not, this could be a useful opportunity to review how risks are recorded, escalated and reported to management.
The aim should be to ensure that critical risks receive the attention and resources they require without losing sight of other workplace risks.
Review policies and procedures
Once critical risks have been identified, review whether the organisation’s existing policies and procedures are sufficient to manage them.
This could include reviewing:
- health and safety policies and risk registers;
- incident and near-miss reporting processes;
- emergency procedures;
- worker training and induction;
- contractor and visitor processes;
- worker participation arrangements;
- health and safety reporting to senior management and the board; and
- processes for reviewing whether controls are being followed as expected.
Review shared workplace arrangements
If your organisation works alongside another PCBU, review how health and safety responsibilities are currently divided.
This is particularly important where a small PCBU works alongside a larger organisation. The smaller organisation having proportionate duties does not mean the organisations can operate independently of each other where they share health and safety responsibilities.
HR should identify other PCBUs the organisation regularly works with and check that there are clear arrangements for consultation, cooperation and coordination. This could include contractors, labour-hire organisations, landlords, suppliers or businesses sharing the same workplace.
Please refer to section 34 of the Health and Safety at work Amendment Act for further guidance for PCBU’s with shared duties.
Check other legislation that applies to your workplace
Consider whether your organisation is subject to other regulatory requirements that manage the same health and safety risks.
The reforms clarify that compliance with an equivalent requirement under another enactment can satisfy the relevant HSWA obligation. However, this does not mean HR should disregard HSWA. The organisation should understand which requirements apply and whether the relevant risk is sufficiently being managed by the other regulatory framework.
For organisations operating in highly regulated industries, this could be a useful opportunity to map the different health and safety obligations that apply to the business and identify where requirements overlap.
Review worker participation
The changes should also be communicated to workers and health and safety representatives.
HR should ensure workers understand the organisation’s critical risks and how they are expected to contribute to managing them. This is particularly important where risk assessments or procedures are being changed.
Worker feedback can also help identify risks that may not be obvious from a policy or risk register. Reviewing existing consultation processes before the changes come into force can therefore help identify gaps early.
Worker obligations are set out in part 3, subpart 1
Consider Approved Codes of Practice
HR teams should monitor WorkSafe for new or updated approved codes of practice as the reforms approach.
Refer to section 222-226 for more information on ACOPs
WorkSafe has also indicated that further guidance, training and support materials will be available in the lead-up to commencement.
This article is for general information purposes only and should not be considered legal advice
Written by HRNZ Research Analyst Polly Daniels: [email protected]