Every employer is subject to the Health and Safety in Employment Act 1992 (HSE Act) and the HSE Regulations 1995. The HSE Act requires employers to ensure that employees and members of the public are not harmed by anything that happens in the workplace. Failure to meet these obligations exposes an employer to significant penalties.

The Health and Safety Reform Bill was introduced into Parliament on 10 March this year. The Bill is expected to come into force in April 2015 and create the Health and Safety at Work Act. The Bill presents a major change to the current statutory regime.

The Bill introduces a new concept of a person conducting a business or undertaking as the primary duty holder (PCBU). A person includes a limited liability company as well as individuals who own and operate a business. A PCBU is to ensure, so far as is reasonably practicable, the health and safety of workers and others affected by their work.

A positive duty is imposed on a person who is an officer of the PCBU (such as a company director or senior manager) to exercise due diligence to ensure that the PCBU complies with its duties and obligations. This is a major change from the HSE Act, where directors of a company can only be held liable where they have directly participated in, contributed to, or acquiesced in their company’s failure. The Bill has widened the scope of persons potentially liable for failure to comply with Health and Safety in the workplace.

An officer of a PCBU must discharge the duty personally, and may be convicted or found guilty of an offence whether or not the PCBU has been convicted or found guilty of an offence. The Bill introduces penalties that are substantially higher than the penalties currently available under the HSE Act.

The current legislation has been criticised for encouraging company directors to distance themselves from matters relating to Health and Safety. The provisions of the Bill will demand more active involvement and familiarity with Health and Safety matters.

Directors and employees with sufficient responsibility to influence the decision making of a company, will need to satisfy themselves that the company will be compliant with the new Health and Safety standards. It is anticipated the Ministry of Business Innovation and Employment will release “Best Practice Guidelines” to assist PCBUs and officers in understanding their responsibilities. However PCBUs should be vigilant to ensure that Health and Safety policies and guidelines are tailored to the specific nature of their business.

This post was published in the FMCG Business magazine