At last …
It’s taken untold tragedy, inquiries, a Royal Commission, a taskforce and a rather lengthy – and sometimes jagged – jaunt along the parliamentary process, but the implementation of one of the most significant pieces of workplace legislation in history is nigh.
Yes, it’s the Health and Safety at Work Act 2015 … and I’m liking the way it’s finally shaped up. Big picture, it’s moving us away from what was rather compliance-driven, box-ticking law to, what I consider, is something more user-friendly, inclusive, applicable and, most critically, more likely to achieve the ultimate objective: minimise harm and save lives. We see the sickening headlines all too regularly: workers injured and killed in all manner of ways, in all types of industries. It’s, perhaps, though, not until those numbers are tallied up that the true horror of just how many of us are maimed or die on the job really hits home.
Janice’s Lesson Number 1: According to research out of the University of Otago, going to work in New Zealand, we are twice as likely to die as if we were going to work across the ditch, and four times more at risk than in a British workplace. It doesn’t take a statistician to deduce something has gone very amiss in terms of Kiwi workplace safety.
Given Australia’s far healthier track record, not surprisingly, our new legislation takes a major leaf out of our trans-Tasman neighbour’s book, and is largely modelled on its health and safety laws.
Tools and teeth
Drawing on the “Robens Model”, it provides more “broad-brush” rules, allowing each industry to personalise its approach according to its own specific, unique risks and considerations. These rules, however, are underpinned by approved, industry-specific codes of practice, developed by the regulatory authorities in consultation with the affected sectors.
Janice’s Lesson Number 2: This new legislation strikes a more practical balance between providing proactive tools for businesses to self-manage their workplace safety in a meaningful, individualised way, and “teeth” – appropriate, and suitably significant, consequences for those whose failures cause injury, or worse.
Not surprisingly, I’ve been fielding quite a few calls recently, as my business clients ensure they’re up to speed. One key area of confusion is around exactly who’s who in the zoo – especially the new-fangled “PCBU”. Come the first Monday in April, I along with thousands of others in Kiwi workplaces take on the title of “person conducting a business or undertaking”. What’s that, you say? In short, a PCBU is a sole trader, an incorporated company, partnership, or some sort of organisation – but not all organisations, mind.
Voluntary organisations are exempt, but they must be completely volunteer-based. Add in the likes of a paid event co-ordinator, for example, and ta-ta exemption. There are also liability limitations around school boards and councils: trustees and councillors can be found to have technically broken the law, but can’t be prosecuted; CEOs, principals and staff, however, can still feel the full weight of the law.
Janice’s Lesson Number 3: While the buck ultimately stops with us PCUBs, this legislation represents a significant cultural shift, embracing inclusiveness and collective planning, responsibility and problem-solving. It starts at the top with “office holders”, like directors. But forget covering your directorial butt by ticking off some weighty report at the end of a lengthy meeting. Under the new law, directors are expected to have done the active due diligence necessary to satisfy themselves – and, if needs be, prove – they’ve done all that is practicably reasonable to provide a safe workplace. Oh, and this is not a one-off task … it’s on-going. Leaders should be regularly checking that any health and safety measures agreed are actually happening – and working.
Working together
A key tenet of the incoming law is shifting the workplace safety culture from one of “hazard identification” to one of “managing risk” – and that, say the legislators, must be a team event. Accordingly, quality consultation, collaboration and communication, including information sharing, is expected throughout the workplace, with everyone shouldering a duty to do their bit for keeping themselves, and anyone else who’s in their workplace, safe. Remember, too, staff at businesses with 20-or-more employees can insist on the appointment of a health and safety representative and committee.
The new Act also carefully reflects that not all work sites are neat, modular affairs with one chief. Construction sites are a prime example – as well as the head contractor, there are usually numerous other contractors on site, and that means potentially multiple duty holders, who may very well share the same responsibilities; hence, they carry an obligation to both co-ordinate and co-operate to ensure a joint, cohesive approach to protecting everyone’s health and safety.
With this new spotlight on taking the “reasonably practicable” steps to eliminate – or, where’s that’s not possible, minimise – risk, a question I’m being asked is: Ok, so where is the line … what’s “reasonably practicable”?
A telling test
Janice’s Lesson Number 4: Unfortunately, there is no definitive answer to what’s likely always a subjective call. A presenter at a recent seminar I attended on the new Act, gave one of the most useful litmus tests I’ve heard. Ask yourself the question: In hindsight, would I have done something differently? If so, being realistic, would that alternative action have been practicable?
Like all new laws, we can expect a bedding-in period. However, I am anticipating the crackdown won’t take long to arrive – after all the Government’s hanging its hat on this legislation realising a massive objective: a whopping 25 per cent reduction in workplace deaths by 2020. Now, wouldn’t that be amazing?
If you’d like to know more about the health and safety changes, this piece Janice wrote for our BizClub members is well worth a look.