Academic journal article New Zealand Journal of Employment Relations (Online)

New Zealand and the Proposed Australian Model Workplace Health and Safety Act

Academic journal article New Zealand Journal of Employment Relations (Online)

New Zealand and the Proposed Australian Model Workplace Health and Safety Act

Article excerpt

Introduction

This paper compares the scope and coverage of the proposed Australian Model Workplace Health and Safety Act (MWHS Act) with the New Zealand Health and Safety in Employment Act 1992 (HSE Act). It contrasts broader coverage of "workers" and "others" under the primary duties of the MWHS Act, including volunteers, children and other people in the workplace with coverage under the HSE Act. It identifies other key points of difference, including:

(a) Key "General" or "Primary" Duties of the HSE and MWHS Acts;

(b) The Requirement for Risk Management;

(c) Directors' and Officers' Duties; and

(d) Consultation, Worker Participation and Discrimination / Victimisation.

The Scope of "General" or "Primary" Duties

Key General or Primary Duties

The MWHS Act imposes very broad duties in comparison with the HSE Act, some of which seem very open-ended and undefined.1 The new duties pursuant to the MWHS Act will be held by a "Person Conducting a Business or Undertaking" (PCBU) rather than an "Employer" pursuant to the HSE Act.

The "General" or "Primary" Duties are to protect the health and safety of "employees" (in the HSE Act) or "workers" (in the MWHS Act), framed in terms of what is "reasonably practicable."

Section 19 of the MWHS Act provides that a PCBU must ensure, as far as is reasonably practicable, the health and safety of workers who are: 2

(a) directly engaged to carry out work for their business or undertaking;

(b) placed with another person to carry out work for that person; or

(c) influenced or directed in carrying out their work activities by the person, while workers are at work in the business or undertaking.

Pursuant to s 19(2), a PCBU must also ensure, as far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking. The employer's primary duty under the HSE Act does not extend to "other persons" like the duty in the MWHS Act. Rather, s 15 of the HSE Act merely sets out that every employer shall take "all practicable steps" to ensure that no action or inaction of any employee while at work harms any other person.

The key things a person must do to satisfy the duty of care are listed, and includes providing and maintaining a work environment without risks to health and safety, and provision and maintenance of safe systems of work and safe plant and structures. The phrase "put at risk" is similar to "expose to risks." A United Kingdom case applying duties not to "expose [the public] to risks" has held that bacteria causing legionnaire's disease which escaped from a cooling tower could expose members of the public within 450 metres to risks to their health and safety. The prosecutor did not have to show that members of the public actually inhaled the bacteria, it was sufficient that there was a risk the bacteria were in the 450m range.3 The HSE Act would probably not allow this outcome as the requirement is that the hazard does not harm any person therefore, actual harm must be proven.

A limiting factor in the MWHS Act may be the Object of the Act of "protecting workers and others against harm. . .through the elimination and minimisation of risks." This may be interpreted as requiring actual harm to be shown in order to obtain a remedy pursuant to the MWHS Act. Section 17 of the MWHS Act sets out that a duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks as far as is reasonably practicable.

Duty of a "Person Who Controls a Place of Work"

Pursuant to s 20 of the MWHS Act, a "person with management or control of a workplace" must ensure so far as is reasonably practicable that the workplace, the means of entering or exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.