HEALTH AND SAFETY

New Health and Safety Legislation 2016

On 4 April 2016 the Health and Safety in Employment Act 2015 and associated regulations come into force, and it will affect every business and industry.  Following Pike River, the law reflects the philosophy that we should care for each other, and we should cooperate with each other to keep safe.

This law is designed to change the way we think about keeping employees safe and to hold people who make decisions accountable.  It is the most significant change to health and safety regulation in 20 years, and it effects; directors, senior management, people in advisory and compliance roles, workers, and some voluntary organisations (if they employ people). 

The emphasis of this law is on upholding people’s rights to come home safely from work, preventing injury, and compliance with the new regime.  There are duties and obligations, and there are penalties for not complying.

The Act identifies those who have a positive duty; any Person Conducting a Business or Undertaking (PCBU), and places obligations on the business to identify risks and hazards and take steps to manage them before there is an accident or injury.  Essentially, it moves from a regime of controlling hazards to one of identifying risks. 

There is flexibility to suit a particular business.   All PCBUs must identify hazards in the workplace that are reasonably foreseeable, and then take actions to reduce harm.  However the business may need to concentrate on what matters, based on the type of business, and its size.  The Act allows what is reasonably practicable for the business to do. 

There are duties; a business will have to act diligently to protect the workers.  There are duties to put systems in place to ensure compliance, and there are obligations to engage with the workers.  The PCBU must ensure the workers have information, education and training; or be supervised by someone who does.  The PCBU must share information and allow the workers to respond and contribute.  The workers have duties too, including that they must take reasonable care of their own health and safety, and cooperate with any reasonable instructions, policies or procedures.  There are also duties to keep visitors safe.

There are physical duties, such as to; have a safe workplace, have enough light and air, have  safe entries and exits, keep things in good order, have protective equipment, and have first aid equipment and an emergency plan.  However the focus is on how effective the system is rather than any particular system.

All safety management plans and procedures must be reviewed and revised to ensure they remain effective and emergency procedures must be tested.

The Act establishes three “Notifiable Events”; the death of a person, a notifiable injury or illness (the list is long, but ranges from amputation or head injury to infection), or a notifiable incident.  A notifiable incident means “an unplanned or uncontrolled incident in relation to a workplace that exposes a worker or any other person to a serious risk to that person’s health or safety” and deals with anything from exposure to substances to structural damage. 

The Act sets out what to do when things go wrong, and what will happen next.  There are duties if an incident occurs, and both the PCBU and the workers need to know what role Worksafe NZ plays and what powers they have.

All businesses should take this law as an opportunity to review their health and safety policies and practices, and to be aware that it is time to move from only looking at the physical workplace, to also working together with employees. It is time to have conversations about identifying and managing risk.

Anyone owning or managing a business should ensure they are complying with the new law.  See a lawyer, attend a seminar, read the paper; at the very least look at Workplace NZ website; http://www.business.govt.nz/worksafe/. There you will find advice, information and education, and an understanding of how Workplace NZ enforces breaches of the new law.   

FIXING TRUST TROUBLES

Frustrated beneficiaries of family trusts could be offered new ways to hold trustees to account, and avoid having to resort to court action.

The Law Commission has been investigating how to update trust law and is seeking views on whether the country should have a new ombudsman, a tribunal, or allow beneficiaries to require trustees to attend mediation when problems arise.

The proposals, designed to increase access to justice for beneficiaries without the means to pay for a High Court fight, have been greeted with concern by some trust professionals and lawyers, something the commission acknowledged in a discussion document released last month.

It recognises that, if enacted, such proposals would represent a break in legal tradition, and lead to non-judges deciding cases. But New Zealand boasts a tradition of creating new schemes in areas where governments decide the courts are too slow or costly, such as the Weathertight Homes Tribunal.

In its latest paper, the commission says "the law makes it difficult for beneficiaries to hold trustees to account. Taking an action against a trustee in the High Court, which is currently the only practical option available to beneficiaries ... is likely to be costly, complex and slow. These factors are likely to dissuade beneficiaries from taking action when they may have a well-founded case".

Its suggestions include:

Empowering district courts: Many disputes can be heard only by the high court. Though there are "mixed views within the judiciary and legal profession", that could be altered by giving the lower court powers in cases involving claims of $200,000 or less to remove trustees and to order them to make good financial losses.

Creating an ombudsman: That person could make non-binding recommendations. It would allow disputes to be heard privately and have a similar financial limit to district courts.

Establish a tribunal: Just as the Disputes Tribunal sits below district courts for civil cases, a tribunal would exist for trust cases, and have the same power to make binding rulings, subject to appeal. "A tribunal is likely to be quicker, cheaper, more informal and less adversarial than the high court," the commission said.

Alternative Dispute Resolution: This could include passing laws making mediation or arbitration, which is private, low-cost and informal, available to trust beneficiaries.

Politicians would have to decide how such schemes were funded, and to make some cost-effective there might have to be a mix of taxpayer funding and pay-per-use.

Trusts expert John Brown said: "Conceptually it is a great idea to solve legal issues cheaply. The trouble is the trust area is not an easy legal area."

Even the least controversial of the changes, allowing district courts more power, could be criticised, said Brown, particularly since higher courts frequently overturned district court judgments.

Mr Brown said some of the district court judgments involving trusts made for uncomfortable reading for trust experts, and some have not survived appeals to higher courts.

- Fairfax NZ News

Footnote: There has been rapid growth in the number of family trusts and there is rising concern many are badly managed, and that trustees are ignorant of their obligations. There are now more than 337,000 trusts in New Zealand, ranging from single-home trusts to complex business-owning trusts.