Health and Safety Reform Bill

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Health and Safety Reform Bill

Government Bill

192—2

As reported from the Transport and Industrial Relations Committee

Commentary

Recommendation

The Transport and Industrial Relations Committee has examined the Health and Safety Reform Bill and recommends by majority that it be passed with the amendments shown.

Introduction

This omnibus bill seeks to reform New Zealand’s work health and safety system by creating a new Act and amending several others. Parts 1 to 5 are intended to become the Health and Safety at Work Act, to provide a new framework for ensuring the health and safety of workers and workplaces. Part 6 of the bill seeks to amend several Acts, relating variously to hazardous substances, accident compensation, and protecting employees from discrimination for raising health and safety issues.

Current health and safety legislation is based on the employee/employer relationship. The bill would broaden this to include “workers” and “persons conducting a business or undertaking” (PCBUs). The proposed definition of “worker” is somebody who “carries out work in any capacity for a PCBU”. It would include employees, contractors, trainees, those gaining work experience, and volunteers.

A PCBU would have a primary duty to ensure, so far as reasonably practicable, the health and safety of workers and others affected by its work. Workers would also have responsibilities regarding the health and safety of themselves and of those around them.

The engagement, participation, and representation of workers are central to the bill.

Clauses 25 to 27 acknowledge and clarify overlapping duties, for example among multiple contractors on a building site, or multiple suppliers.

The bill would repeal the Health and Safety in Employment Act 1992 and the Machinery Act 1950.

We understand that the proposed legislation is intended to be underpinned by regulations, approved codes of practice that provide detailed guidance, and safe work instruments.

Information about this legislation

We recognise that the changes to health and safety law proposed by this bill are many, and that businesses and workers are interested to learn of the changes and the new requirements that will be placed on them. We want New Zealanders to receive full, accurate information about the bill’s consequences for workplaces. We welcome and encourage the development of guidance and other material to accompany this legislation, and trust that it will be clear, accurate, and helpful to users. We expect that the development of regulations to accompany the bill will also help to clarify the practical implications of the obligations the bill imposes for specific industries and businesses.

We are aware that WorkSafe New Zealand has been publishing information on its website about the bill, and we encourage it to continue engaging and educating the public by this and other means. Such guidance will be particularly important for small PCBUs without dedicated health and safety staff.

Proposed amendments

We have set out below our main recommendations, and those we believe would benefit from explanation. We recommend many other amendments, including minor, technical, and consequential amendments, and improvements to drafting. Some of them look more complicated than they are, such as our recommendation to move clauses 54 to 59, which relate to authorisations, into Part 5, new subpart 1A. Most are self-explanatory.

We consulted the Regulations Review Committee on the proposed regulation-making powers in the bill, and made changes where we considered it appropriate.

Commencement

In clause 2(3), we recommend making 31 October 2017 the last date on which any element of the bill could come into force. Some of the hazardous substances elements of the bill in particular may need a long lead-time, as corresponding regulations will be needed.

We also recommend amending clause 2(1)(b) and inserting clause 2(1A) to allow certain hazardous substances amendments to come into effect the day after the Royal assent is granted. These provisions would improve the review and issuing of group standards, allow the Environmental Protection Authority (EPA) to undertake its new enforcement function by prescribing certain notices, meet international obligations regarding persistent organic pollutants, improve the EPA’s method of public notification, and prevent the public disclosure of sensitive information about applications for moving hazardous substances.

We recommend removing clause 2(1)(c), so that provisions relating to the transfer of EPA employees, contracts, and information to WorkSafe would not commence immediately after the Royal assent. This transfer should occur in tandem with the transfer of workplace hazardous substance controls from the existing to a new legislative framework.

Application to the Crown

We recommend replacing clause 5 with new clauses 5 and 5A. This would make it clear that a Crown organisation could be a PCBU in its own right for the purposes of the bill. For other instruments of the Crown that are not Crown organisations or body corporates, the appropriate PCBU, for the purposes of the bill, would be the Crown itself.

Armed Forces

We recommend changing the bill’s application to the Armed Forces. We recommend inserting clause 6(1AA), to make it clear that nothing in the bill would require or permit anything that would prejudice the defence of New Zealand; and inserting clause 6(4) to require the Chief of Defence Force to promote the purpose of the bill to the greatest extent consistent with New Zealand’s defence.

Under clause 6(2), the bill would not apply to members of the Armed Forces on operational service. We recommend amending clause 6(2)(a) to also prevent the bill applying to civilians working in support of the Armed Forces in an area of operational service. We also recommend amendment to improve the definition of “operational service” in clause 6(3).

We consider the bill should be brought into line with existing legislation that excludes members of the Armed Forces from requirements for employee engagement and participation. We recommend inserting clause 10A(1) to prevent members of the Armed Forces asking for health and safety representatives or health and safety committees under the bill. The Chief of Defence Force would be able to establish (or continue current) participation practices regarding health and safety that meet the specific requirements of the Armed Forces.

We recognise the Armed Forces’ special need for discipline with respect to carrying out orders. We also recognise that prevailing assumptions about safety cannot be applied to many tasks routinely undertaken on active service. We recommend inserting clause 10A(2), so that a worker’s right to cease unsafe work would not authorise a member of the Armed Forces to refuse to do work that they had been lawfully ordered to do.

Intelligence and security

To help protect New Zealand’s security, we recommend inserting clause 6A. Subclause (1) would give national security, national defence, and international relations priority over the requirements of the bill.

Under subclauses (2) and (3), specified provisions of the bill could be declared not to apply to, or to be modified in relation to, intelligence workers. Under subclause (4), such declarations could be made only with ministerial approval, and would be reviewable under subclause (7).

Subclause (6) would require the New Zealand intelligence community to promote the purpose of the bill to the greatest extent consistent with the maintenance of New Zealand’s defence, security, and international relations.

We recommend inserting clause 180A and Schedule 2A to provide for the secure handling of classified information in legal proceedings.

High-risk plant

We recommend amending clause 10(1) to ensure that the legislation would apply to every operator of high-risk plant, even if the operator were not a PCBU. This would widen the bill to include operators such as volunteers.

What constitutes high-risk plant would be set out in regulations. We would like to see amusement devices such as inflatable slides included; this would mean the bill would apply even if the operator were not a PCBU.

Volunteers

Casual volunteers are treated differently from other employees in existing health and safety legislation; we consider this distinction should be maintained in the bill. We recommend amending clause 14, which defines “worker”, by inserting subclause (3) to differentiate “volunteer workers” from casual volunteers. Paragraph (a) would define “volunteer workers” as those who work for a PCBU with its knowledge or consent on an “ongoing and regular” basis, and whose work is integral to the business or undertaking. Paragraph (b) would exclude all volunteers from the category of worker when they were undertaking specified voluntary activities:

  • participating in fund-raising activities

  • assisting an educational institute, sports club, or recreation club with sports or recreation

  • assisting with activities for an educational institute outside its premises

  • caring for another person in the volunteer’s home.

Although casual volunteers and volunteers participating in the above activities would not be “volunteer workers” under the bill, their health and safety would be covered by a PCBU’s duty to look out for the health and safety of other people affected by the conduct of its business or undertaking under clause 30(2).

We also recommend inserting new clause 10B so that Part 3 of the bill, which deals with worker engagement, does not apply to volunteer workers. This carries over the existing exclusion of volunteers from employment participation requirements. Volunteers could still raise health and safety matters with the organisations they volunteer for.

Volunteer associations

Clause 13 excludes volunteer associations that do not employ any workers from the definition of a PCBU. We recommend changing clause 13(2) to make it clear that the exclusion would apply whether or not the volunteer association was incorporated.

Definitions of “risk” and “hazard”

In clause 12, we recommend removing subclause (a) from the definition of “hazard”, and the entire definition of “risk”. We prefer the common meanings of “risk” and “hazard”, to encourage people to consider what risk means to them, in their particular circumstances. Subclause (b) of the definition of “hazard” should be retained. This is an area where clarity has been required in the past; we want to make it clear that someone’s behaviour can constitute a hazard.

Domestic violence

Fear, fatigue, and other responses to domestic violence can cause hazardous behaviour by some workers.

We are aware that the Ministry of Social Development has produced resources for businesses and workers about the effects of domestic violence at work. We hope to see this issue also addressed in the guidance materials that are intended to accompany this bill. We encourage the ministry, businesses, and regulators such as WorkSafe to work to mitigate the effects of domestic violence on work health and safety.

Officers

We recommend amending the definition of “officer” in clause 12, and moving it into new clause 13A to improve the structure of the bill. The designation “officer” should be confined to people in very senior governance roles, such as directors and chief executives. Subclause (b) of the definition as introduced includes those who make decisions affecting the whole or a substantial part of a PCBU’s business; we recommend narrowing this to those in positions that allow them to “exercise significant influence over the management of the business or undertaking”. We also recommend inserting clause 13A(d) to make it clear that those who merely advise or make recommendations would not themselves be officers.

Experts engaged to advise a PCBU on health and safety issues would not be considered officers of the PCBU in question. They might, however, themselves be a PCBU with duties under the bill, and specifically under clauses 30(1)(b) and 30(2). We note that there would also usually be a contractual relationship between a PCBU and such an adviser, and in that case, the PCBU would have contractual remedies for any poor advice.

Statutory officers

Broadly speaking, statutory officers are those who hold or perform the duties of an office established or conferred by an enactment. We recommend inserting a definition of “statutory officer” into clause 12, and inserting clause 13(1)(b)(iiia) to provide that statutory officers are not PCBUs if they are an officer or worker in the business or undertaking.

Personal protective equipment

For the sake of clarity, we recommend inserting a definition of “personal protective equipment” into clause 12, and using the phrase where appropriate.

Worker must be an individual

In clause 14, we recommend replacing the word “person” with “individual” to make it clear that a “worker” would always be a natural person, rather than a corporation or a group of people. We also recommend inserting into clause 12 a definition of “person” that would include corporations and groups of people as well as individuals.

Notifiable injuries, illnesses, incidents, and events

Clause 18 defines “notifiable injury or illness”. In clause 18(1), we recommend amending paragraph (a) to make it clear that “immediate treatment” would not include first aid. Under paragraphs (b) and (c) respectively, an injury or illness would be notifiable if the worker required either hospitalisation for immediate treatment, or medical treatment within 48 hours of exposure to a substance. We recommend amending these paragraphs by adding the words “or would usually require” after the word “requires”, so that the paragraphs would apply whether or not the person was actually admitted to hospital or given medical treatment. This would mean that the illness or injury remained notifiable even if a worker refused treatment, or was too far away for hospitalisation, for example on a ship at sea.

We also recommend amending clause 18(1)(d) so that infections must be serious to be notifiable. We recommend deleting clause 18(1)(e) and referring instead to occupational zoonoses (diseases carried by animals) in clause 18(1)(d). We expect details on zoonoses to be published in guidance to accompany the bill.

In clause 19, we recommend narrowing the meaning of “notifiable incidents” to those that are uncontrolled or unplanned. This avoids inadvertently including activities that form part of the normal work of a business or undertaking.

We recommend amending clauses 20 and 215 to make it clear that a matter required to be notified must have arisen from work.

PCBU must not levy workers

Clause 28 prohibits PCBUs from levying or charging a worker for health and safety arrangements. The PCBU must ensure that the appropriate equipment is available and worn, and the worker would have duties under clause 40 to wear it. However, clause 28(3) would exclude arrangements where a worker buys their own protective gear and is reimbursed by the PCBU. To ensure that such arrangements could continue, we recommend removing clause 28(3).

Duties of PCBUs

We recommend moving (and renumbering, and in some cases, renaming) clauses 22 to 27 (which set out key principles relating to health and safety duties) from Part 1 to Part 2, bringing them closer to other provisions about such duties. We note that clauses 26 and 27 would still apply to the duties of PCBUs set out in Part 3 (worker engagement, participation, and representation).

Clause 26—which would become new clause 29D—would apply in situations where there was more than one duty holder; it would require each duty holder to discharge their duty to the extent to which they have the capacity to influence or control the matter. We recommend changing the phrase “capacity to influence or control” to “ability to influence and control”, to limit consideration of the duty holder’s influence and control to the actions that they would in practice be able to take.

Clause 27—which would become new clause 29E—would require people with overlapping duties to consult, co-operate and co-ordinate to ensure the overlapping duties were discharged. We recommend making it clear in new clause 29E that this duty would apply only to PCBUs and not to other duty-holders. We consider that PCBUs are best placed to discharge this duty so as to ensure good health and safety outcomes.

PCBU’s primary duty of care

We recommend making clause 30(1)(a) clearer by making a PCBU’s primary duty to ensure health and safety apply simply to workers “who work for” the PCBU.

Accommodation

Clauses 30(4) and 30(5) would protect workers’ health and safety in accommodation that is provided by the PCBU. We envisage these clauses applying to situations such as farm workers’ accommodation. We recommend amending clause 30(4)(b) so that these clauses would apply only if the occupancy were necessary for the work because other accommodation was not reasonably available. We note that the Residential Tenancies Act 1986 would also apply to this accommodation.

Self-employed workers

We recommend moving clause 31 into clause 30. This would make it clear that a self-employed person was a PCBU with the primary duty of care, including the duty to ensure, so far as is reasonably practicable, their own health and safety at work.

Workplace

We recommend amending the definition of “workplace” in clause 15 to include places where work is “being” carried out (for example, on a power pole), or is “customarily” carried out (for example, a workshop). This would make it clear that a workplace does not remain a workplace indefinitely, once work has been carried out there.

We recommend amending clauses 32 and 33, which set out the duties of PCBUs who manage or control workplaces, or fixtures, fittings, or plant at workplaces. We recommend making the language in these clauses active. The duties should apply to PCBUs who manage or control workplaces, fixtures, fittings, or plant in a practical sense, rather than PCBUs who merely have an ability to manage these things.

We also recommend inserting new subclause 1B into clause 32 to make it clear that for the purposes of subclause (1), a workplace includes farm buildings and structures necessary for the operation of the farm, and the areas immediately surrounding them, but not other parts of the farm when work is not being carried out there.

We note that some farmers deny access to recreational walkers because of concern about their liability for potential accidents. Our proposed amendment should encourage farmers to allow walkers on their land without being unduly concerned about their liability. We encourage the Walking Access Commission and WorkSafe to continue to publish information for walkers and landowners about their respective obligations in this area.

We also recommend inserting clauses 32(1A) and 33(1A), to make it clear that the duties in these clauses would not apply in respect of a person who was in the workplace for an unlawful purpose, including trespassing.

Clauses 138 and 185 (which relate to notices and inspections) refer to the person with “management or control” of the workplace. This could be the PCBU, but we would not want it to be interpreted to mean only the PCBU. We want to make sure it includes those who would be present and overseeing operations, such as a foreman on a construction site. We recommend making these clauses clearer by referring instead to the person “in charge” of the workplace.

Local councils and school boards

We recommend amending clause 47 to make it clear that the limitation on liability that would apply to appointed or elected members of a local authority or a board of trustees would apply only while they were acting in that capacity. This would be useful when office holders had split responsibilities in relation to the same PCBU.

An elected local authority representative should not owe duties in relation to activities undertaken by a council-controlled organisation unless they are also an officer of that organisation. Then, they should have the officer duty when acting in their capacity as an officer of the council-controlled organisation. We recommend inserting in clause 39, new subclause (3) to make this clear.

Liability of unincorporated associations

We recommend removing clause 48 as it is not consistent with New Zealand common law, which recognises that in some cases unincorporated bodies can be prosecuted.

Duty to preserve sites and notify events

We recommend re-ordering clauses 51 to 53 to reflect more logically the steps in the process following a notifiable event: preserve the site; notify the event; keep records. We also recommend that the option in new clause 52(2) of notifying the regulator by fax be removed, as fax machines are no longer common.

Clause 53—which would become new clause 51—would require the preservation of a site where a notifiable event had occurred. We recommend making it clear in new clause 51(1) that the PCBU who managed or controlled the workplace would be responsible for preserving the site.

Engagement, worker participation, and representation

We recommend removing clause 60, which is an outline of Part 3. As it contains no duties or obligations, it could create confusion. We believe that Part 3 should focus only on the overarching duties relating to engagement, worker participation, and representation.

Clause 62 sets out what would be required from PCBUs in engaging workers. Under clause 62(1)(a), relevant information about matters relating to work health or safety would have to be shared with workers. We recommend amending subclause (1)(a) to require this information to be shared in a timely manner.

We recommend amending clause 64(1) to make it clear that the duty to have worker participation practices would apply only to workers who carried out work for the business or undertaking.

Clauses 69 to 86 and 89 to 91 set out the procedural details for health and safety representatives and committees respectively. We recommend moving clauses 69 to 76, 78 to 86, and 89 to 91 into new Schedule 1A. This would raise the prominence of the two remaining duties in Part 3—to engage and to have effective practices—as the primary obligations on PCBUs. It would also help to make it clear that representatives and committees would not be required in some cases.

We recommend moving clause 88 into Part 3, subpart 2, as new clause 86A, thus combining the subparts relating to representatives and committees.

We also recommend inserting new clauses 7A to 7D into Schedule 1, so that existing participation systems could be transitioned.

Health and safety representatives

Worker participation requirements should be flexible and simple to comply with, especially for smaller, low-risk businesses which could find more formal worker participation practices costly.

We recommend amending clause 65 by inserting new subclause (1A) to make it clear that when an election was requested for a health and safety representative, the PCBU would have to initiate one within a certain time. However, we also recommend inserting new subclause (3) to make it optional for PCBUs in low-risk sectors, with fewer than 20 workers, to hold an election. The amendment to clause 224(b)(iva) would allow high-risk sectors or industries to be specified in regulations. We note that any PCBU could organise an election on its own initiative, under clause 65(2).

We recommend making it clear in clause 65(4) that the obligation to hold an election would apply only in relation to the work group to which the worker belonged.

We recommend inserting clause 65(5) to make it an offence for a PCBU to fail to facilitate an election when required to do so, attracting the same penalties as failing to establish a health and safety committee.

To reduce unnecessary prescription and cost in worker participation practices, we recommend removing clause 77, which provides for deputy health and safety representatives. We recommend inserting new clause 6 into new Schedule 1A, to allow health and safety representatives to help and cover for each other. This would help to ensure that pertinent knowledge and experience was shared.

We have recommended moving clause 80 into new Schedule 1A, where it would become new clause 12. We recommend amending new clause 12(1)(a)(i) to allow health and safety representatives two days’ paid leave each year to attend health and safety training. New clause 12(1)(a)(ii) would allow more days to be set by regulation for specific industries.

We recommend amending clause 224(b) by inserting subparagraph (ivc), to allow regulations to specify the number of days’ paid leave that a PCBU must allow for health and safety representatives in specific industries. New Schedule 1A, clause 12(2) would provide for a “cap”, to be set in regulations, on the total number of paid days’ leave a PCBU would be required to allow health and safety representatives across its entire business or undertaking. We also recommend inserting clause 224(b)(ivb) to authorise the making of regulations to specify the cap.

Clause 5 of new Schedule 1A (previously clause 73 in the bill as introduced) would allow a health and safety representative to be accompanied or assisted by another person. We recommend amending this clause, to require that the person accompanying the representative comply with any reasonable procedures and requirements related to work health and safety. We also recommend amending subclauses (2) and (4) in clause 3 of Schedule 1A to require that prior reasonable notice be given to the PCBU that somebody will accompany the representative, unless the situation involved such a serious risk that prior notice was not practical.

We have recommended moving clauses 85 and 86 to new Schedule 1A, where they would become clauses 17 and 18. Under clause 17, a regulator would be able to remove a health and safety representative from office for not performing or exercising their functions or powers satisfactorily. Under clause 18, a representative could appeal to a District Court against such a decision.

We recommend inserting Schedule 1A, clause 17(2), which would require the regulator to notify the health and safety representative and the PCBU of its decision. We also recommend inserting Schedule 1A, clause 19, to allow the PCBU to request the regulator to use its discretion to remove a health and safety representative under clause 17. If the health and safety representative were not removed after such a request, the PCBU could appeal to a District Court under subclause (4).

Work groups

We propose a number of changes to clause 66 to clarify the concept of work groups. We recommend amending subclause (2), to provide that a work group is, by default, all the workers in the business or undertaking.

When the default understanding of work group does not fit well with the structure of the business or undertaking, the PCBU should be able to determine alternative groupings of workers. We recommend inserting subclause (3) to this effect. If a PCBU decided to determine work groups under this option, it should have to do so appropriately rather than arbitrarily. We therefore recommend inserting subclause (4), requiring the PCBU to ensure that the workers are grouped in a way that

  • most effectively enables representation of the health and safety interests of the workers, and

  • has regard to the need for health and safety representatives to be accessible to those they represent.

We recommend inserting new subclause (5) into clause 66 to make it clear that, by agreement, two or more PCBUs could determine work groups comprising workers carrying out work for any PCBU that is party to the agreement.

We recommend inserting clause 66A to require PCBUs, when determining work groups, to also determine the number of health and safety representatives to be elected per work group. Subclause (1) would require PCBUs to determine how many health and safety representatives would be needed where the default work group arrangement was selected, and a minimum ratio of representatives to workers would be set out in regulations.

Subclause (2) would require a PCBU with a work group other than the default arrangement to determine the number of health and safety representatives per work group in accordance with any requirements prescribed in regulations.

Health and safety committees

We have recommended replacing clause 88 with new clause 86A. New subclause (3) would exclude PCBUs in low-risk sectors with fewer than 20 workers from the requirement to respond to a request to establish a health and safety committee. However, we note that subclause (7) would allow a small, low-risk PCBU to establish a health and safety committee on its own initiative.

When a health and safety committee was asked for, a PCBU could either confirm that they would establish a committee (subclause 2), or could decline to do so on the basis that its existing worker participation practices sufficiently met the requirements of the bill (new subclause 4). New subclause (5) would require PCBUs to give notice of such a decision to interested workers, within a reasonable time; and new subclause (6) would require PCBUs to state why they had not established a committee, and to advise workers that they might raise this under the issue resolution process set out in the bill.

Cessation of work

We recommend inserting clause 109(2) to require the regulator, when asked to help resolve an issue relating to the cessation of work, to assist as soon as practicable after agreeing to do so.

Notices

We recommend under Schedule 1, new clauses 7B(5) and (6), that existing health and safety representatives be required to undergo training before being allowed to issue provisional improvement notices or direct unsafe work to cease.

We recommend inserting clause 92(5) to require health and safety representatives to give their PCBU a copy of any provisional improvement notice they issue.

We recommend amending clause 139 to require notices such as improvement notices or prohibition notices to be displayed “as soon as practicable” rather than “as soon as possible” because the display of a notice is not so urgent as to require it to be given the highest possible priority. We also recommend inserting clause 139A to allow (but not require) inspectors to put up notices at the workplace where they considered this was advisable, such as places where the risk is imminent and notification is urgently required, or where it is not certain that the person to whom the notice is issued can or will display it as required.

Functions of the regulator

We recommend amending clause 310(3), which would amend the functions of WorkSafe under the WorkSafe New Zealand Act 2013, to require WorkSafe’s published information to include information about its approach to enforcement and its performance standards for its investigation process. We recommend corresponding changes to clause 206, which sets out the proposed functions of regulators other than WorkSafe.

Enforceable undertakings

Clause 145(2) would require the regulator to publish notices of any decision to accept an enforceable undertaking, and reasons for the decision. We consider that it is also important that court-ordered enforceable undertakings be publicised. We recommend inserting clause 174(6) to require the regulator to publish them on an internet site unless the court orders otherwise.

Prosecutions

We recommend removing clause 164(2). It is unnecessary, as the Summary Proceedings Act 1957 governs proceedings when an infringement notice is issued.

Private prosecutions

Clause 165 sets out the circumstances in which a prosecution can be brought by a person other than the regulator. We recommend changes to set out clearly the process that should operate where a prosecution has been brought under another enactment (not the bill) by another regulator. In such cases a private prosecutor would require the leave of the court to bring a prosecution under the bill.

We recommend changing the phrase “any possible defendant” in clause 165(1) to “any person”. This would mean that the potential defendant in a prosecution by a regulatory agency need not be a duty holder before the requirement to seek leave for private prosecution would be triggered.

New clause 165(3) provides that where a person applies for leave of the court to bring a private prosecution, the registrar may not accept the private prosecution for filing, but must refer it to the court for direction. New clause 165(4) would require the court, before granting leave to bring such a prosecution, to be satisfied that the evidence was sufficient and that the prosecution was not an abuse of process. As regards potential abuse of process, the prosecution should be consistent with the purpose of the legislation, and in the public interest. This is similar to the test the courts apply when considering whether to accept a charging document for a private prosecution brought under the Criminal Procedure Act 2011.

We recommend inserting clause 165(1A) to require leave for private prosecution to be sought if a regulatory agency would have prosecuted a person but cannot because the person has died.

Limitation period for prosecutions

We recommend deleting clause 167, which sets out limitation periods for prosecutions, and replacing it with new clauses 167 (limitation period for the regulator), 167A (extensions to the limitations period for regulator), 167B (limitation period for private prosecutions), and 167C (extensions for certain proceedings).

We consider that a two-year period would not provide enough certainty for PCBUs and would not incentivise the regulator to conclude investigations promptly. New clause 167(1)(a) would reduce to 12 months the limitation period for prosecutions brought by the regulator. Maintaining the approach in current health and safety legislation, the 12 months would be counted from the date on which the incident, situation, or set of circumstances to which the offence relates first became known, or ought to have become known, to the regulator.

In new clause 167(1)(b), we recommend reducing the limitation period to six months after a coroner’s findings. We consider that six months is more appropriate than one year because the regulator would probably already be working with the coroner during the coroner’s investigation.

New clause 167A would allow the regulator to seek an extension from the District Court of up to 12 months. It sets out an extension process and criteria for extensions, modelled on the provisions of current health and safety legislation.

We note that under clause 165, private prosecutions could not be brought unless the regulator had decided not to prosecute. If an extension of the full 12 months were to be granted, this would allow a private prosecutor to bring a prosecution only if they filed on the very last day of the 12 months. A court may grant a shorter period than the full 12 months to allow time for others to bring prosecutions, and we anticipate that extensions for the full 12 months would only be granted in very unusual cases.

Clause 167(2), which we would move into new clause 167C, would allow an extension of the limitation period when fresh evidence had been discovered, and the offence fell under clause 42 (reckless conduct in respect of health and safety duty). We recommend also including offences under clause 43 (failure to comply with health and safety duty that exposes individual to risk of death or serious injury or illness), for contraventions where death has resulted.

Health and Safety at Work Strategy

In clause 211(3), we recommend extending to 24 months the period by which the Minister must aim to publish the first Health and Safety at Work Strategy. This is a more workable timeframe for all parties, considering that in the same period those involved would also be adjusting to the new legislative regime. Too short a timeframe would risk diverting resources from the implementation of the bill.

Fines

We believe the bill’s maximum fines for offences against regulations should be aligned better with those in other safety regimes, such as the maritime and civil aviation sectors. In clause 221(1)(q) we recommend increasing from $30,000 to $50,000 the maximum fine for an offence created by regulation. In clause 221(1)(s), we recommend reducing the maximum infringement fee from $20,000 to $12,000. In Schedule 1, clauses 2(2) and 3(2), we recommend reducing the maximum fine from $250,000 to $50,000.

Costs

We recommend removing clause 148(4) and amending clause 170, to allow the regulator to keep prosecution costs. The removal of clause 148(4) would also allow the regulator to keep any costs awarded for monitoring compliance with an enforceable undertaking.

Costs related to authorisation

We consider that the regulator should also be able to recover the costs of providing regulatory oversight of specialised work or workplaces, such as major hazard facilities. We recommend inserting new clause 224A to allow regulations to be made prescribing levies for the purposes of recovering costs related to the regulation of work or workplaces requiring authorisation.

Regulations

We recommend amending clause 227(1), which contains general provisions relating to regulations, so that it applies to all regulations made under the bill. We recommend inserting clause 227(1)(aa), to make it clear that regulations may specify similar or additional duties to those in the bill, and clauses 227(1)(e) and (f), to allow flexibility in the way regulations are formulated.

We recommend amending Schedule 1 by inserting clause 2(1A) so that various regulations may be amended if necessary, and may continue to operate until revoked.

Regulations relating to hazardous substances

We recommend amending clause 222(d) to ensure that the scope for regulating laboratories is not inadvertently constrained, and clause 222(h), to allow character and other requirements to be prescribed.

We recommend inserting clause 236A to set out the relationship between the Resource Management Act 1991 and hazardous substances regulations made under the bill.

Exemptions

We recommend inserting clauses 228A and 228B, to allow the regulator to grant exemptions from compliance with any regulations made under the proposed Health and Safety at Work Act. Under proposed clause 228A(1), exemptions could be for a person or a class of persons. Under clause 228A(2), the regulator would have to be satisfied that the exemption is not broader than is reasonably necessary and is not inconsistent with the purposes of the bill. The regulator would also have to state the reasons for the exemption, under new clause 228B(4). These would have to be notified in the Gazette and published on the regulator’s internet site (clause 228B(3)). Under proposed clause 228A(4)(b), an exemption would expire after five years, unless it was replaced sooner.

We recommend inserting clauses 221(2) and 223(4) to require the reasons for an exemption granted by regulations to be stated in the explanatory note of the regulations.

We recommend amending clause 221(1)(p), to allow regulations to be made imposing additional requirements on the exemption power, or specifying that exemptions may not be granted in respect of a particular regulation.

We also recommend inserting new clauses 4A and 4B into Schedule 1, to allow exemptions under existing regulations to be transitioned or saved.

Mining sector

In Schedule 2, which relates to the mining sector, we recommend inserting several clauses and amending others. Our changes would make it clearer how the legislation would apply to the mining sector. In relation to transitional provisions for mining, we recommend amending Schedule 1, clause 9.

Workplace incentive programmes

We recommend amending clause 244, which would insert new section 174A into the Accident Compensation Act 2001. New section 174A(3) would allow the Accident Compensation Corporation to charge fees for participation in workplace incentive programmes (the fees and charges being set in regulations). Incentive programmes would be optional for businesses. Increasing the flexibility of funding would allow more flexible programme design.

We recommend amending Schedule 4, which would insert new Schedule 1AA, containing transitional and savings provisions, into the Accident Compensation Act 2001. Among other things, we recommend extending to 30 June 2019 the date on which the clauses in Schedule 1AA would be repealed. This would ensure the continuation of incentive programmes started before the commencement of the schedule.

Injury prevention

Although reduction in ACC levies is not the only driver of injury prevention programmes, we were concerned that such programmes would be constrained to only achieving reductions to levies, when some programmes should raise awareness and therefore increase the number of ACC claims being made. We were assured that WorkSafe’s injury prevention programmes can continue to be funded by WorkSafe and that such funding would not be dependent on a need to achieve a reduction to ACC levies as a criteria.

Amendments to the Hazardous Substances and New Organisms Act 1996

We recommend a number of changes to clause 253, which would amend the interpretation section of the Hazardous Substances and New Organisms Act 1996. These changes are intended to reduce ambiguity in definitions relating to hazardous substances.

We recommend removing clause 256 and amending clause 290 so that the process for making decisions about hazardous substances would remain in regulations rather than being moved into tertiary legislation in the form of EPA notices.

We recommend inserting clause 258A to amend requirements relating to the EPA’s register of applications received, to include all applications for hazardous substance and new organism approval, including pending and withdrawn applications. New subclause (4) would allow the authority to withhold from the register information about transhipment applications that could pose a risk to national safety and security.

Clause 259 would allow the EPA to keep a register of all importers and manufacturers of hazardous substances. We recommend removing this clause, as such a register would not provide any clear benefit to the public or the EPA. The EPA would still be able to collect information on importers and manufacturers through an EPA notice.

We recommend amending clause 271 to allow reference to an international hazardous substance classification system.

We recommend amending clause 273, new section 76B(2)(a), to require the EPA to have regard to the benefits alongside costs before issuing an EPA notice.

We recommend inserting clause 275(2B), to provide that controls on hazardous substances may be set to limit the circumstances in which a substance can be used where the benefits of the restriction outweigh the adverse effects.

We recommend inserting clause 284(1B) to give the Civil Aviation Authority responsibility for enforcing controls relating to the discharge of hazardous substances in, on, and from aircraft.

We recommend further amendments to clause 284 to set out more clearly the enforcement roles of the EPA and of WorkSafe in relation to hazardous substances. Clause 284(1), new section 97(1)(a) would require WorkSafe to enforce disposal and ecotoxic controls (and equivalent conditions in group standards) in any workplace. Clause 284(2), new section 97(3)(d) would require the EPA to enforce certain matters relating to hazardous substances that are prescribed in an EPA notice. We recommend inserting clause 285C, to set out powers of entry for inspection relating to hazardous substances, and amending clause 286, to improve the offence provisions in section 109 of the Hazardous Substances and New Organisms Act.

We recommend inserting clause 287A to amend section 113 of the Hazardous Substances and New Organisms Act. New section 113(2) would allow regional councils to retain infringement fees that they collect, as territorial authorities are already allowed to do. New section 113(3) would require that all other infringement fees (those enforced by central Government agencies) be deposited in a Crown bank account.

We recommend inserting clause 289(2A) to increase the maximum hazardous substances infringement fee from $1,000 to $3,000. The current maximum is too low to deter non-compliance. Stronger deterrence is appropriate as the potential for harm can be significant.

Fireworks

We recommend amending clause 273 by inserting new section 76(1)(j), to allow the technical requirements for managing fireworks to be transferred from regulation to an EPA notice. We recommend inserting clause 274(4), new section 77(7) of the Hazardous Substances and New Organisms Act to specify that these controls are additional to those controlling their explosive properties.

We recommend inserting clause 284(1A) to make the Commissioner of Police the principal enforcer of fireworks sales restrictions instead of WorkSafe. The New Zealand Police have agreed to take on the primary responsibility from 2016, with operational and technical support from WorkSafe.

Dogs

It has been suggested that utility companies should be given access to a register established under the Dog Control Act 1996, which lists addresses where dogs are kept. We acknowledge that the risk to workers entering a property could be reduced if they knew whether or not a dog is likely to be present. However, amending the Dog Control Act is outside the scope of the bill.

Maritime Operator Safety System

The Maritime Operator Safety System (MOSS) is derived from the Maritime Transport Act 1994. It requires commercial ship operators to develop systems for managing the hazards associated with their operation. The bill sets out high-level, performance-based duties which are complementary to MOSS requirements. As there are overlaps, for example in requirements regarding identifying hazards and risks, new clause 29F (clause 23 in the bill as introduced) provides for compliance with other enactments. This would allow MOSS requirements to be considered when determining compliance with the legislation.

We understand it is intended that Maritime New Zealand continue to enforce health and safety legislation on board ships, as well as the requirements of the Maritime Transport Act. This would help to avoid duplication for ship operators. To keep it simple for them, we would expect Maritime New Zealand to keep a list of health and safety obligations that are additional to MOSS requirements.

New Zealand Labour Party minority view

With regret, Labour cannot continue to support this bill.

Labour strongly supported the bill as it was introduced to Parliament. It was based on sound international evidence, a law that is working well in Australia, and the recommendations of two New Zealand reports - the Royal Commission on the Pike River Coal Mine Tragedy, and the Independent Taskforce on Workplace Health and Safety. It was an overdue reversal of the ideology of deregulation that is the driver of New Zealand’s extremely poor workplace health and safety record that sees more people killed and injured at work per capita than in any other comparable nation.

It is regrettable that poor communication of the bill’s intentions and content by the Government has resulted in rampant fear-mongering about what its impact will be on businesses. Concern amongst the business community has been fuelled by Government MPs repeating claims about the implementation of health and safety law by WorkSafe officials, and questionable statements about the potential impact of the new law. An inexplicable delay in reporting the bill back to the House has only caused further consternation amongst business people and working people alike who desire certainty about their obligations under the new law.

Significant changes have been made to the bill at select committee. Many of these are based on anecdotal assertions, a lack of appreciation for evidence and outright fear-mongering by a minority of employers who hold exceptionally negative opinions of the people who work for them. The changes substantially water down the bill. As a result, the bill is considerably less aligned with evidence and best practice. The changes amount to a massive blow to the prospect of high quality health and safety reform.

Mainstream businesses have expressed their support for improved health and safety regulation and for the bill as it was introduced. The majority of employers values health and safety. Legislation must ensure that those who do not can be held to account and encouraged to change their practices. Good employers should not have to compete with businesses prepared to cut corners on health and safety. Sadly, the changes made to appease those who submitted against making necessary reform seriously undermine efforts to encourage positive change.

Health and safety representatives

Studies overwhelmingly demonstrate that elected health and safety representatives not only improve workplace health and safety, they improve workplace relationships and foster a more proactive approach to health and safety. It is noteworthy that the most forthright opposition to health and safety representatives came from employers and representatives of industries with some of the poorest safety records. Labour is opposed to any exclusion from the requirement to hold an election for health and safety representatives if requested by workers. The proposed exclusion for businesses in low-risk sectors with fewer than 20 workers would exclude over 300,000 working people from access to one of the most effective ways they can make themselves safer at work.

Work groups

The committee has made changes to the way in which work groups are determined that would grant ultimate authority to the PCBU to determine the structure of work groups. When combined with the limitation on health and safety representatives to only represent workers in their work group, this creates an opportunity for the PCBU to structure their workplace in such a way that deliberately limits the influence of health and safety representatives and denies workers an elected representative. This could be overcome by requiring work groups to be structured in a way that is agreed by both the PCBU and the workers.

Request to remove health and safety representative

The bill contains provisions for WorkSafe to remove a health and safety representative if it considers that person has failed to satisfactorily discharge their duties. The representative may appeal such a decision to the District Court. The committee has added the ability for a PCBU to request the removal of a health and safety representative and to appeal a decision by WorkSafe not to remove them. This represents a gross lack of appreciation for the inherent imbalance of power between the PCBU and workers. The added provisions are likely to be used by employers who do not value elected health and safety representatives to punish those who challenge management decisions by exposing them to lengthy and expensive legal action and to deter people from standing for the role.

Industry health and safety representatives

The bill allows for the appointment of industry health and safety representatives by a union or other group of workers in the underground coal mining industry to represent their interests across their industry. They have particular powers and are required to have considerable training and experience working in the industry. The Independent Taskforce on Workplace Health and Safety recommended that industry health and safety representatives operate in quarries and tunnelling operations, but that proposal has been repeatedly dismissed by the Government. Recent tragedies at quarries demonstrate that failing to implement the taskforce recommendations was a grievous error. We strongly urge the Government to consider expanding the industry health and safety representative model not only to quarrying and tunnelling operations but also to other high risk, isolated workplaces with small numbers of workers on site. This should include, but not be limited to, farming, forestry, fishing, and construction. The admission by WorkSafe that the number of quarries in New Zealand is unknown, and that an unknown number of them are operated without proper certification, demonstrates the challenges that WorkSafe will face in effectively enforcing this law, and the value of having trained and experienced support from those working within high-risk industries.

Definition of officer

The meaning of officer of a PCBU has been watered down in this bill to the point that few if any senior office holders other than a Chief Executive will carry the responsibilities that come with being defined as an officer. This is disappointing because evidence supports encouraging senior management to lead the health and safety agenda in their workplace. Leadership from management is critical to positive safety outcomes.

Private prosecutions

The bill allows for private prosecutions in the event that WorkSafe decides not to prosecute for offences. The ability to take such prosecutions is an important check on the Government regulator. Previous cases are rare but have been successful, demonstrating that WorkSafe (and formerly the Department of Labour) does not always make the right call on whether or not to prosecute. However, the interaction of the limitation periods for prosecutions brought by WorkSafe and those brought by persons other than the regulator creates a small but real possibility that there could be no time left for a private prosecution to be brought in the event that WorkSafe takes a full two years to decide not to prosecute. Extending the limitation period for private prosecutions to six months after WorkSafe decides not to prosecute would overcome this issue.

Engagement with workers

Under the bill, workers must be given a reasonable opportunity to express their views, raise issues and contribute to the decision-making process in relation to a health and safety matter. We recommend, for clarification, the bill state that workers are also given the opportunity to seek any advice they need to appropriately address the matter. This is particularly important in workplaces that do not have trained health and safety representatives where workers may need to seek further advice.

Training for health and safety committee members

The bill does not provide for training of health and safety committee members. Training is vital if members are to be effective in discharging their responsibilities. The role of a committee member is distinct from the role of a health and safety representative, so training would need to be specific to the functions and duties of committee membership.

Green Party of Aotearoa New Zealand minority view

The Green Party supports the overall purpose of this bill which is “to provide for a balanced framework to secure the health and safety of workers and workplaces.” There are, however, many instances where we feel that this bill, as amended, undermines that intention.

Worker engagement overall

The evidence from the Independent Taskforce on Workplace Health and Safety is clear that worker representation is one of the most important tools for improving worker health and safety—especially through properly constituted health and safety committees and empowered health and safety representatives. We note that the Australian model law on which this bill was originally based supports worker participation and engagement in regards to health and safety—however, the bill provides less opportunity for worker engagement than the provisions of the laws that this bill seeks to reform.

Examples of this are:

  • health and safety representatives are optional for low-risk workplaces where fewer than 20 workers are employed and may be isolated to small workgroups in all other circumstances if the PCBU decides

  • health and safety committees are optional for all PCBUs

  • unions have a greatly reduced role in setting up health and safety committees, the election of health and safety representatives, or even in offering assistance to workers; and

  • the system is not cohesive: health and safety representatives and health and safety committees have separate and distinct roles. Both functions are needed but the system allows neither, one, or both.

Meaning of PCBU

The Greens believe that the absence of home occupiers in some instances from the definition of PCBU is deeply problematic. It means that persons employed or engaged by them to do residential work are not their workers, nor are the places that they do work workplaces. This creates a raft of problems, ranging from inconsistency with the Employment Relations Act 2000, to lack of duties on the workers. We are also concerned that as the home care workforce is predominately female, this bill legalises gendered discrimination to rights to workplace health and safety for this group of workers.

Duty to consult with other duty holders

The Greens believe that the legislation should be clear in its guidance as to how PCBUs engage with each over health and safety measures. The committee has rejected the concept of “good faith” that is used in the Employment Relations Act but the principles that underpin good faith have only been partially translated to how PCBUs should interact with each other. We believe that PCBUs’ duty to consult, co-operate, and co-ordinate activities could still be guided by the principles of good faith—particularly the duties to deal fairly with one another, not to mislead or deceive one another, and to be active and constructive in discharging their duty.

Duty of officers

We remain concerned about the whittling down of the definition of officer to capture a narrower and narrower set of persons. The most significant narrowing of the definition is the removal of those who participate in making decisions that affect the whole or a substantial part of the PCBU. This means that those who advise the decision-maker would not be required to acquire and keep up to date knowledge of health and safety matters.

Work groups

As well as our concern that PCBUs can determine whether or not to separate their workplaces into work groups without negotiation and agreement with their employees we also believe that the bill’s limitations on health and safety representatives to operate outside their own work groups will prevent health and safety representatives from being able to assist other work groups adequately. As well as offering advice, we believe health and safety representatives, when they are needed by another work group, should be able to act on their behalf and utilise their powers fully.

Training for health and safety committees

There is no legislative requirement for PCBUs to have health and safety committees and the Green Party is disappointed that where PCBUs have elected to have them, training for those health and safety committee members is not required. In some scenarios we believe this will lead to health and safety committees being set up as simply a tick-box exercise and not assist in creating a culture of health and safety in the workplace.

Industry health and safety representatives

We believe that the bill misses the opportunity to create a better framework for health and safety by enabling industry health and safety representatives. Currently we do have some concession to their benefits in the coal mining industry; however, they could be extended to other high hazard industries like forestry or agriculture.

Adverse, coercive, or misleading conduct provisions

Under the bill a worker must use the employment relations institutions if their employer undertakes adverse, coercive, or misleading conduct. If, however, it concerns a PCBU who is not their employer, the worker must use the District Court. There are large differences between the two jurisdictions in terms of process and remedies available and, while the employment institutions are cheaper and less formal, workers are likely to get much lower remedies. We believe that this system could disadvantage employees relative to other kinds of workers.

Health and safety offences

We remain concerned that the sentences for breaches of the bill are significantly out of step with those under the general criminal law. While we acknowledge that sentencing under the general criminal law can be haphazard, bands of similar crimes are discernible and the most serious health and safety offence of “reckless conduct” fits most closely into an offence punishable by a maximum of 10 years’ imprisonment. Similarly, “failing to comply with a duty” is most comparable to a range of offences punishable by a maximum of three years’ imprisonment under criminal law.

Limitation period for prosecutions

We are concerned that the removal of the ability for the judge to allow extensions for the filing of prosecutions where the regulator has failed to bring an effective case within the relevant time period may disadvantage some workers and their families—particularly in especially complicated cases. The short time limits also contrast with the treatment of similar offences in the general criminal law.

New Zealand First minority view

New Zealand First strongly supports the intent of the Health and Safety Reform Bill which is to reduce by 25 percent workplace fatalities and serious injury by 2020.

New Zealand First also accepts and acknowledges this legislation has been modelled on Australia’s health and safety model law. We recognise that Australia has a significantly lower record of incidents of harm in the workplace compared to New Zealand.

New Zealand First, however, cannot support this legislation in its current form as there are a number of “unintended consequences” which could create some major problems for some employers and employees if they are not properly addressed before the bill is passed.

Appendix

Committee process

On 13 March 2014, the Health and Safety Reform Bill was referred to the Transport and Industrial Relations Committee of the 50th Parliament. That committee called for submissions with an original closing date of 11 April 2014, which was later extended to 9 May 2014.

The previous committee received and considered 226 submissions from interested groups and individuals. It heard 42 of these as oral submissions in Wellington. In the 51st Parliament, we heard the remaining 63 oral submissions in Wellington and Auckland. We also reheard evidence from three major witnesses who had already made oral submissions to the previous committee.

We received advice from the Ministry of Business, Innovation and Employment. The Regulations Review Committee reported to the committee on the powers contained in clauses 2, 221, 223, 225, 228, 229, and 235, and in clause 5 of Schedule 2.

Committee membership

Jonathan Young (Chairperson)

Andrew Bayly

Sarah Dowie

Iain Lees-Galloway

Clayton Mitchell

Sue Moroney

Dr Parmjeet Parmar

Denise Roche

Alastair Scott

Phil Twyford

Hon Maurice Williamson

Key to symbols used

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Hover your cursor over an amendment for information about that amendment. Download the PDF version to see this information in a form that can be printed out.

Hon Michael Woodhouse

Health and Safety Reform Bill

Government Bill

192—2

Contents

Commentary
Key
1Title
2Commencement
3Purpose
4Provisions affecting application of Act Transitional, savings, and related provisions
5Application of Act to the Crown
5Application of Act to the Crown
5AEnforcement of Act against the Crown
6Application of Act to Armed Forces
6AApplication of Act to intelligence and security agencies
7Application of Act to aircraft in operation
8Application of Act to ships
9Application of Act in exclusive economic zone and in or on continental shelf
10Application of Act to prescribed high-risk plant
10ACertain provisions of Part 3 do not apply to members of Armed Forces
10BPart 3 does not apply to volunteer workers
11Application of Part 3 does not apply to prisoners
12Interpretation
13Meaning of PCBU
13AMeaning of officer
14Meaning of worker
15Meaning of workplace
16Meaning of supply
17Meaning of reasonably practicable
18Meaning of notifiable injury or illness
19Meaning of notifiable incident
20Meaning of notifiable event
21Status of examples
22Duty to manage risk
23Compliance with other enactments
24Duties not transferable
25Person may have more than 1 duty
26More than 1 person may have same duty
27Duty to consult other duty holders
28PCBU must not levy workers
29No contracting out
29AAInsurance against fines unlawful
29AManagement of risks
29BDuties not transferable
29CPerson may have more than 1 duty
29DMore than 1 person may have same duty
29EPCBU must consult other PCBUs with same duty
29FCompliance with other enactments
30Primary duty of care
31Duty of self-employed persons
32Duty of PCBU who manages or controls workplace
33Duty of PCBU who manages or controls fixtures, fittings, or plant at workplaces
34Duty of PCBU who designs plant, substances, or structures
35Duty of PCBU who manufactures plant, substances, or structures
36Duty of PCBU who imports plant, substances, or structures
37Duty of PCBU who supplies plant, substances, or structures
38Duty of PCBU who installs, constructs, or commissions plant or structures
39Duty of officers
40Duties of workers
41Duties of other persons at workplace
42Offence of reckless conduct in respect of health and safety duty
43Offence of failing to comply with health and safety duty that exposes individual to risk of death or serious injury or serious illness
44Offence of failing to comply with health and safety duty
45Liability of officers
46Liability of volunteers
47Liability of certain office holders
48Liability of unincorporated associations
49Actions taken to prevent harm
50Proof of intention not required for certain offences
51Duty to notify notifiable event
52Requirement to keep records
53Duty to preserve sites
51Duty to preserve sites
52Duty to notify notifiable event
53Requirement to keep records
54Meaning of authorised
55Requirements for authorisation of workplaces
56Requirements for authorisation of plant or substance
57Requirements for authorisation of work
58Requirements for prescribed qualifications or experience
59Requirement to comply with conditions of authorisation
60Outline of this Part
61Duty to engage with workers
62Nature of engagement
63When engagement is required
64Duty to have worker participation practices
65Request for election Election of health and safety representatives
65ARequirements for conducting elections
66Requirement for PCBU to facilitate determination work groups Determination of work groups
66ADetermination of numbers of health and safety representatives for work groups
67Purpose of determining work groups
68Requirements for conducting elections
69Functions of health and safety representatives
70Health and safety representative may attend interview
71Health and safety representative may enter and inspect workplace
72Health and safety representative may request information
73Health and safety representative may be assisted by another person
74Health and safety representative may accompany inspector
75Health and safety representative may consult regulator or inspector
76Functions and powers of health and safety representative generally limited to particular work group
77Deputy health and safety representatives
78Obligations of PCBU to health and safety representative
79Exceptions to sections 72(1) and 78(1)
80Requirement to allow health and safety representatives to attend certain training
81Functions and powers for health and safety purposes only
82Information to be used by health and safety representative for health and safety purposes only
83No duty on health and safety representative
84Immunity of health and safety representatives
85Regulator may remove health and safety representative
86Appeal against removal from office
86AHealth and safety committees
86BFurther provisions relating to health and safety representatives and health and safety committees
87Further provisions relating to mining sector
88Health and safety committees
89Functions of health and safety committee
90Obligations of PCBU in relation to health and safety committees
91Information to be used by health and safety committee for health and safety purposes only
92Provisional improvement notices
93Training requirements relating to issue of provisional improvement notice
94Requirements relating to provisional improvement notices
95Provisional improvement notice may include recommendations to remedy contravention
96Minor changes to provisional improvement notice
97Issue of provisional improvement notice
98Cancellation of provisional improvement notice
99Display of provisional improvement notice
100Irregularities or defects in notice
101Offence relating to breach of provisional improvement notice
102Review of provisional improvement notice
103Regulator must ensure inspector reviews notice
104Decision of inspector on review of provisional improvement notice
105Meaning of cease work
106Right of worker to cease unsafe work
107Health and safety representative may direct unsafe work to cease
107ATraining requirements relating to giving direction to cease work
108Alternative work
109Regulator may assist to resolve issues relating to cessation of work
110Meaning of adverse conduct
111Meaning of prohibited health and safety reason
112Prohibition on adverse conduct
113Prohibition on requesting, instructing, inducing, encouraging, authorising, or assisting adverse conduct
114Prohibition on coercion or inducement
115Misrepresentation
116Proof of adverse conduct
117Civil proceedings in relation to engaging in or inducing adverse or coercive conduct
118Procedure for civil proceedings for adverse conduct
119General provisions
120Resolution of work health and safety issues
121Regulator may appoint inspector to assist parties in resolving issue
122Meaning of notice
123Power to issue improvement notices
124Content of improvement notices
125Compliance with improvement notice
126Extension of time for compliance with improvement notices
127Power to issue prohibition notice
128Content of prohibition notice
129Compliance with prohibition notice
130Power to issue non-disturbance notice
131Content of non-disturbance notice
132Compliance with non-disturbance notice
133Issue of subsequent non-disturbance notices
134General provisions relating to notices
135Changes to notice by inspector
136Regulator may vary or cancel notice
137Formal irregularities or defects in notice
138Issue and giving of notice
139Display of notice at workplace by person issued with notice
139AInspector may display notice
140When regulator may carry out remedial action
141Power of regulator to take other remedial action
142Costs of remedial or other action
143Order relating to Civil proceedings relating to non-compliance with notice
144Regulator may accept enforceable undertakings
145Notice of decision and reasons for decision
146When enforceable undertaking is enforceable
147Compliance with enforceable undertaking
148Contravention of enforceable undertaking
149Withdrawal or variation of enforceable undertaking
150Proceedings for alleged contravention
151Interpretation
152Application for internal review
153Decision of regulator
154Notice of decision on internal review
155Stay of reviewable decision on internal review
156Application for appeal
157Interpretation
158Proceedings for infringement offence
159Infringement notices
160Revocation of infringement notice
161Payment of infringement fees
162Interpretation Meaning of enforcement action
163Person may notify regulator of interest in knowing of enforcement action taken by regulator
164Prosecutions by regulator
165Private prosecutions
166Continuing or repeated matters
167Limitation period for prosecutions
167Limitation period for prosecutions brought by regulator
167AExtension of time if regulator needs longer to decide whether to bring prosecution
167BLimitation period for private prosecutions
167CExtension of time for certain proceedings
168Application of subpart
169Sentencing criteria
170Order for payment of regulator’s costs in bringing prosecution
171Adverse publicity orders
172Orders for restoration
173Work health and safety project orders
174Release on giving of court-ordered enforceable undertaking
175Injunctions
176Training orders
177Offence to fail to comply with order
178Insurance against fines unlawful
179State of mind of directors, employees, or agents attributed to body corporate or other principal
180Conduct of directors, employees, or agents attributed to body corporate or other principal
178State of mind of directors, employees, or agents attributed
179Conduct of directors, employees, or agents attributed
180AProceedings involving classified security information
181Appointment of inspectors
182Identity cards
183Suspension and ending of appointment of inspectors
184Inspectors subject to regulator’s directions
185Powers of entry and inspection
186Powers of inspectors Power to enter homes
187Power of inspectors to deal with cause of imminent danger
188Notice of entry
189Powers Power to take samples and other objects and things
190Powers Power of regulator to authorise making of applications for search warrants
191Continuation of inspectors’ powers of entry and inspection without search warrants
192Power to require name and address
193Duty to assist inspectors
194Immunity of inspectors and persons assisting inspectors or regulator
195Offence for failing to provide inspector with correct name and residential address
196Offence to hinder or obstruct inspector
197Offence to impersonate inspector
198Appointment of health and safety medical practitioners
198ASuspension and ending of appointment of health and safety medical practitioners
199Powers of entry and inspection of health and safety medical practitioners
200Health and safety medical practitioners may require workers to be medically examined
201Health and safety medical practitioners may suspend workers in certain cases
202Immunity of health and safety medical practitioners and persons assisting health and safety medical practitioners
203Offence to hinder or obstruct health and safety medical practitioner
204Offence to impersonate health and safety medical practitioner
205Role of WorkSafe
206Functions and powers of regulator other than WorkSafe
207Designated agency agencies
208Role of designated agencies
209Proceedings not to be questioned for want of form
210Designated agency must give effect to joint policy directions
211Health and Safety at Work Strategy
212Workplace injury prevention
213Sharing of information between regulator and regulatory agencies
214Requirement of other regulator to notify WorkSafe of notifiable event
215Requirement of medical officer of health to notify regulator of work-related notifiable disease or hazardous substances injury
216Coroner may call for report on fatal accident
217Funding levy
218Consultation requirement relating to funding levy
218AMeaning of authorised
218BRequirements for authorisation of workplaces
218CRequirements for authorisation of plant or substance
218DRequirements for authorisation of work
218ERequirements for prescribed qualifications or experience
218FRequirement to comply with conditions of authorisation
219Offence to give false or misleading information
220Confidentiality of information
221Regulations relating to health and safety
222Regulations relating to hazardous substances
223Regulations relating to exemptions in respect of Armed Forces
224Regulations relating to worker engagement, participation, and representation
224ARegulations relating to levies
225Regulations providing for transitional matters
226Consultation requirements for making certain regulations
227Further provisions relating to regulations
228Procedure for making regulations relating to definitions, exclusions, or exemptions
228ARegulator may grant exemption from compliance with regulations
228BStatus and publication of exemptions granted by regulator
229Approval of codes of practice
230Publication and commencement of approved code of practice
231Access to approved codes of practice
232Proof of codes of practice
233Use of approved codes of practice in proceedings
234Minister may approve safe work instruments
235Legal effect of safe work instruments
236Minister may delegate approval of codes of practice and safe work instruments to regulator
236ARelationship between regulations relating to hazardous substances under this Act and Resource Management Act 1991
237Transitional and savings provisions
238Repeals and revocations
239Consequential amendments
240Principal Act
241New section 5A inserted (Provisions affecting application of amendments to this Act)
5AProvisions affecting application of amendments to this Act Transitional, savings, and related provisions
241ASection 6 amended (Interpretation)
242Section 167 amended (Application and source of funds)
243Section 169 amended (Rates of levies)
244New sections 174A to 174F inserted
174ACorporation may develop and establish workplace incentive programmes
174BProcess to develop workplace incentive programme
174CMinister’s approval of certain workplace incentive programmes
174DEstablishment of workplace incentive programmes
174EAmendments to workplace incentive programme
174FCorporation must report on effectiveness of workplace incentive programmes
245Section 175 amended (Risk adjustment of Work Account levies)
246Section 176 amended (Incorporation by reference)
247Section 190 amended (Purchase of weekly compensation by shareholder-employees)
248Section 263 amended (Prevention of personal injury)
249New sections 264A and 264B inserted
264AWorkplace injury prevention action plan
264BInjury prevention measures undertaken by WorkSafe and funded by Corporation or jointly undertaken
249ASection 280 amended (Disclosure of information to Corporation)
249BSection 286 amended (Corporation to provide information to Ministry of Business, Innovation, and Employment and to WorkSafe)
250New section 402 and cross-heading inserted
402Application, savings, and transitional provisions relating to amendments to Act
251New Schedule 1AA inserted
252Principal Act
253Section 2 amended (Interpretation)
254Section 3 amended (Act to bind the Crown)
255New section 3A inserted (Transitional and savings provisions relating to amendments to Act)
3ATransitional and savings provisions relating to amendments to Act
256Section 9 amended (Methodology to be used)
257Section 11 amended (Powers, functions, and duties of Authority)
258Section 19 amended (Delegation by Authority)
258ASection 20 amended (Obligation to prepare and maintain register)
259New section 20B inserted (Register of importers and manufacturers)
20BRegister of importers and manufacturers
260Section 26 replaced (Determination of new organism or hazardous substance)
26Determination of new organism or hazardous substance
261Section 33 amended (Exemptions from Act for small-scale research on hazardous substances)
262Section 53 amended (Applications required to be publicly notified)
263Section 53A amended (Method of public notification)
263Section 53A repealed (Method of public notification)
264Section 58 amended (Further information)
265Section 59 amended (Time limits and waivers)
265ASection 62 amended (Grounds for reassessment of a substance or organism)
266Section 63A amended (Modified reassessment procedure for amendments to approvals of hazardous substances)
267New section 63C inserted (Modified reassessment to change controls in other cases)
63CModified reassessment to change controls in other cases
268Section 65 amended (No compensation following reassessment)
269New section 67B inserted (Revoking duplicated approvals)
67BRevoking duplicated approvals
270Section 68 amended (Minister’s power to call in applications with significant effects)
271Section 74 replaced (Establishment of hazard classification system)
74Establishment of hazard classification system
272Section 75 amended (Regulations prescribing hazard classification control)
273Section 76 replaced (Requirements for containers, identification, disposal, emergencies, tracking, and fireworks)
76Authority may prescribe controls and requirements relating to hazardous substances
76AAuthority may prescribe other matters relating to hazardous substances
76AAAuthority may prescribe transitional and savings provisions
76BProcedure for issuing EPA notices
76CApplication of Legislation Act 2012 to EPA notices
274Section 77 amended (Controls on hazardous substances)
275Section 77A amended (Authority’s power to impose controls and vary specified controls)
276Section 77B amended (Exposure limits for substances with toxic or ecotoxic properties)
277Section 78 amended (Codes of practice)
278Section 82 replaced (Issue of test certificates by test certifiers)
82Certificates
279Sections 82A to 86 repealed
279Sections 82A, 82B, and 83 to 86 repealed
279ASection 82C amended (Revocation of test certificates)
280Cross-heading above section 95A amended
281Section 95B repealed (Licences)
282Section 96B amended (Group standards)
283Section 96C amended (When group standards may be issued or amended)
283ASection 96D amended (Revocation of group standards)
284Section 97 amended (Enforcement of Act)
285Section 97B amended (Enforcement of Act in respect of hazardous substances in place of work)
285Section 97B replaced (Enforcement of Act in respect of hazardous substances in place of work)
97BEnforcement of Act in respect of hazardous substances in workplace
285ASection 99 amended (Supervision of inspection)
285BSection 103 amended (Powers of entry for inspection)
285CNew section 103A inserted (Powers of entry for inspection relating to hazardous substances)
103APowers of entry for inspection relating to hazardous substances
286Section 109 amended (Offences)
287Section 111 amended (Commission of infringement offence)
287ASection 113 amended (Entitlement to infringement fees)
287BSection 117 amended (Strict liability and defences)
288Section 125 amended (Appeals)
289Section 140 amended (Regulations)
290Section 141 amended (Procedure for making Orders in Council)
290ASection 142 amended (Relationship to other Acts)
290BSection 144 amended (Reporting of incidents)
291Schedule 2A amended
292Schedule 7 replaced
293Consequential and other amendments to principal Act
294Amendments to other enactments
295Principal Act
296Section 67B amended (Effect of trial provision under section 67A)
297Section 103 amended (Personal grievance)
298Section 104 amended (Discrimination)
299Section 107 amended (Definition of involvement in activities of union for purposes of section 104)
300New section 110A inserted (Adverse conduct for prohibited health and safety reason)
110AAdverse conduct for prohibited health and safety reason
301Section 111 amended (Definitions relating to personal grievances)
302Section 137 amended (Power of Authority to order compliance)
303Section 138 amended (Further provisions relating to compliance order by Authority)
304Schedule 1A amended
305Principal Act
306Section 3 amended (Interpretation)
307Section 7 amended (WorkSafe New Zealand’s board)
308Section 8 amended (Advisory groups)
309Section 9 amended (WorkSafe New Zealand’s main objective)
310Section 10 amended (WorkSafe New Zealand’s functions)
311New section 21A and cross-heading inserted
21ATransfer of EPA employees and contracts to WorkSafe New Zealand
312New Schedule 2 inserted
Legislative history

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Health and Safety Reform Act 2014.

2 Commencement

(1)

The following provisions come into force on the day after the date on which this Act receives the Royal assent:

(a)

subpart 3 of Part 5:

(b)

sections 271 to 273253(5), (6), (8), and (9), 258, 258A(4), 262, 263, 265, 283, 283A, 286(1AB), 290, and 291.

(c)

sections 311 and 312 and Schedule 8.

(1A)

The following provisions also come into force on the day after the date on which this Act receives the Royal assent:

(a)

section 253(1), but only as it relates to the definition of EPA notice:

(b)

section 273, but only as it relates to sections 76A(d), (f), (g), and (h), 76AA, 76B, and 76C of the Hazardous Substances and New Organisms Act 1996:

(c)

section 292, but only as it relates to clause 7 of Schedule 7 of the Hazardous Substances and New Organisms Act 1996 (which clause is set out in Schedule 5):

(d)

section 293, but only as it relates to the items about sections 63B, and 141 to 141I of the Hazardous Substances and New Organisms Act 1996 (which items are set out in Schedule 6).

(2)

The rest of this Act comes into force on a date appointed by the Governor-General by Order in Council, and 1 or more Orders in Council may be made bringing different provisions into force on different dates and appointing different dates for different purposes.

(3)

Any provision that has not earlier been brought into force comes into force on 1 July 2016 31 October 2017.

Part 1 Health and safety at work

Subpart 1—Preliminary provisions

3 Purpose

(1)

The main purpose of this Act is to provide for a balanced framework to secure the health and safety of workers and workplaces by—

(a)

protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant; and

(b)

providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues in relation to work health and safety; and

(c)

encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting PCBUs and workers to achieve a healthier and safer working environment; and

(d)

promoting the provision of advice, information, education, and training in relation to work health and safety; and

(e)

securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f)

ensuring appropriate scrutiny and review of actions taken by persons performing functions or exercising powers under this Act; and

(g)

providing a framework for continuous improvement and progressively higher standards of work health and safety.

(2)

In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety, and welfare from hazards and risks arising from work or from specified types of plant as is reasonably practicable.

Compare: Model Work Health and Safety Act (Aust) s 3

4 Provisions affecting application of Act Transitional, savings, and related provisions

Schedule 1 contains transitional and savings provisions that affect this Act’s other provisions as from time to time amended or repealed, or repealed and replaced (see section 237).

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

Subpart 2—Application of Act

5 Application of Act to the Crown

(1)

Except as provided in this section, this Act binds the Crown.

Notices issued under this Act

(2)

Despite section 17(1)(a) of the Crown Proceedings Act 1950, a notice issued under this Act may be issued against an instrument of the Crown, in accordance with this Act, but only if

(a)

it is a Crown organisation; and

(b)

it is issued against the Crown organisation in its own name.

Injunctions

(3)

Despite section 17(1)(a) of the Crown Proceedings Act 1950, an injunction may be granted or another order made against an instrument of the Crown, in accordance with this Act, but only if

(a)

it is a Crown organisation; and

(b)

the order or injunction is made against the Crown organisation in its own name.

Infringement notices

(4)

An infringement notice may be served on an instrument of the Crown, in accordance with this Act, but only if

(a)

it is a Crown organisation; and

(b)

it is liable to be proceeded against for the alleged offence under subsection (5); and

(c)

the notice is served on the Crown organisation in its own name.

Prosecution of offences

(5)

An instrument of the Crown may be prosecuted for an offence against this Act, but only if

(a)

it is a Crown organisation; and

(b)

the proceedings are commenced

(i)

against the Crown organisation in its own name and the proceedings do not cite the Crown as a defendant; and

(ii)

in accordance with the Crown Organisations (Criminal Liability) Act 2002.

Crown organisations that are not body corporates

(6)

If a Crown organisation is not a body corporate, it must be treated as if it were a separate legal personality for the purposes of

(a)

issuing a notice under this Act against it; and

(b)

granting an injunction or making any other order against it; and

(c)

serving an infringement notice on it; and

(d)

enforcing a notice, an order, an injunction, or an infringement notice in relation to it.

Compare: 1992 No 96 s 3

5 Application of Act to the Crown

(1)

This Act binds the Crown.

(2)

An instrument of the Crown that is a Crown organisation (whether or not a body corporate)

(a)

must be treated as if it were a separate legal personality for the purpose of complying with this Act; and

(b)

may be a PCBU in its own right.

(3)

An instrument of the Crown that is not a Crown organisation or a body corporate

(a)

does not have separate legal personality; and

(b)

may not be a PCBU in its own right.

(4)

This section is subject to section 5A.

Compare: 1992 No 96 s 3

5A Enforcement of Act against the Crown

(1)

This Act may be enforced against the Crown only in the manner provided in this section.

Prosecution of offences

(2)

An instrument of the Crown may be prosecuted for an offence against this Act, but only if

(a)

it is a Crown organisation; and

(b)

the proceedings are commenced

(i)

against the Crown organisation in its own name and the proceedings do not cite the Crown as a defendant; and

(ii)

in accordance with the Crown Organisations (Criminal Liability) Act 2002.

Issue of infringement notices

(3)

An infringement notice may be served on an instrument of the Crown, in accordance with this Act, but only if

(a)

it is a Crown organisation; and

(b)

it is liable to be proceeded against for the alleged offence under subsection (2); and

(c)

the notice is served on the Crown organisation in its own name.

Injunctions

(4)

Despite section 17(1)(a) of the Crown Proceedings Act 1950, an injunction may be granted or another order made against an instrument of the Crown, in accordance with this Act, but only if

(a)

it is a Crown organisation; and

(b)

the order or injunction is made against the Crown organisation in its own name.

Notices issued under this Act

(5)

A notice issued under this Act may be issued against an instrument of the Crown, in accordance with this Act, but only if

(a)

it is a Crown organisation; and

(b)

it is issued against the Crown organisation in its own name.

Compare: 1992 No 96 s 3(2), (3)

6 Application of Act to Armed Forces

(1AA)

Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to the defence of New Zealand.

(1)

Subject to subsection (2) this section, section 10A, and any regulations made under section 223, this Act applies to the Armed Forces and any military aircraft or naval ship.

(2)

This Act does not apply to—

(a)

a worker who is a member of the Armed Forces while the worker is on operational service; or

(a)

a worker who

(i)

is a member of the Armed Forces while the worker is on operational service; or

(ii)

is carrying out work for the Armed Forces at a place outside New Zealand to which the Armed Forces are deployed on operational service:

(b)

any military aircraft or naval ship operating in an area in which the deployment of the aircraft or ship is operational service.

(3)

In subsection (2), operational service means service that is declared by the Minister of Defence by notice in the Gazette to be operational service.

(3)

In subsection (2), operational service means

(a)

service in time of war or other like emergency or in the event of any actual or imminent emergency involving the deployment of the Armed Forces outside New Zealand:

(b)

any other service by the Armed Forces overseas that is authorised by the Government of New Zealand and that involves peacekeeping, the maintenance or restoration of law and order or functioning of government institutions, or any other activity in respect of which the Government of New Zealand wishes to provide assistance (whether or not in conjunction with personnel from 1 or more other countries):

(c)

any service or activity, or a class of service or activity, that is declared by the Minister of Defence by notice in the Gazette to be operational service.

(4)

In commanding the New Zealand Defence Force, the Chief of the Defence Force must take into account the need to promote the purpose of this Act to the greatest extent consistent with maintaining the defence of New Zealand.

Compare: Work Health and Safety Act 2011 (Aust) s 12D

6A Application of Act to intelligence and security agencies

(1)

Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to the security or defence of New Zealand or the international relations of the Government of New Zealand.

(2)

Without limiting subsection (1),

(a)

the Director of Security may, by notice in writing, declare that specified provisions of this Act or regulations do not apply (or apply with modifications) in relation to any worker carrying out work for the Security Intelligence Service:

(b)

the Director of the Government Communications Security Bureau may, by notice in writing, declare that specified provisions of this Act or regulations do not apply (or apply with modifications) in relation to any worker carrying out work for the Bureau.

(3)

Without limiting subsection (2), a declaration may apply to:

(a)

a specified worker or class of workers:

(b)

a specified workplace or class of workplaces:

(c)

a specified type of work.

(4)

A declaration under subsection (2) may only be made with the approval of the Minister.

(5)

A declaration made under subsection (2) is not a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

(6)

In administering the Security Intelligence Service or the Bureau and in exercising the power under subsection (2), the Director of Security or Director of the Bureau (as the case requires) must take into account the need to promote the purpose of this Act to the greatest extent consistent with maintaining the security or defence of New Zealand or the international relations of the Government of New Zealand.

(7)

A worker who is an employee of the Security Intelligence Service or the Bureau may ask the Inspector-General to review a declaration made under subsection (2) to determine whether, in making the declaration, the Director of Security or Director of the Bureau (as the case requires) met the criteria in subsection (6).

(8)

A request by a worker under subsection (7) for a review of a declaration must be made within 14 days of the date on which the worker becomes aware, or reasonably ought to have been aware, of the declaration.

(9)

In this section,

Government Communications Security Bureau or Bureau means the Government Communications Security Bureau continued by section 6 of the Government Communications Security Bureau Act 2003

Inspector-General

(a)

means the Inspector-General of Intelligence and Security holding office under section 5 of the Inspector-General of Intelligence and Security Act 1996; and

(b)

includes the Deputy Inspector-General of Intelligence and Security holding office under section 5 of that Act

Minister,

(a)

in relation to the Security Intelligence Service, has the same meaning as in section 2(1) of the New Zealand Security Intelligence Service Act 1969:

(b)

in relation to the Bureau, has the same meaning as in section 4 of the Government Communications Security Bureau Act 2003

Security Intelligence Service means the New Zealand Security Intelligence Service continued by section 3 of the New Zealand Security Intelligence Service Act 1969.

Compare: Work Health and Safety Act 2011 (Aust) s 12C

7 Application of Act to aircraft in operation

(1)

This Act applies to an aircraft in operation, wherever it may be, while the aircraft—

(a)

is operating on a flight beginning at a place in New Zealand and ending at that same place or at another place in New Zealand; or

(b)

is operating outside New Zealand, if any workers employed or engaged to work on board the aircraft are employed or engaged under an employment agreement or contract for services governed by New Zealand law.

(2)

For the purposes of subsection (1)(b), an aircraft operating in New Zealand as part of a flight beginning or ending outside New Zealand must be treated as operating outside New Zealand.

(3)

To avoid doubt, where this Act applies outside New Zealand, the provisions relating to offences apply even if an act or omission that constitutes an offence occurs in respect of an aircraft outside New Zealand.

(4)

In this section, in operation, in relation to an aircraft, means while the aircraft is taxiing, taking off, flying, or landing.

Compare: 1992 No 96 s 3A(2), (4) (3), (5)

8 Application of Act to ships

(1)

This Act applies to a New Zealand ship wherever it may be.

(2)

This Act applies to a foreign ship on demise charter to a New Zealand-based operator when it is operating in New Zealand.

(3)

To avoid doubt, where this Act applies outside New Zealand, the provisions relating to offences apply even if an act or omission that constitutes an offence occurs in respect of a ship outside New Zealand.

(4)

This section does not limit or affect—

(a)

section 6 (which relates to the application of this Act to the Armed Forces); or

(b)

section 9 (which relates to the application of this Act in the exclusive economic zone or in or on the continental shelf).

Compare: 1992 No 96, s 3B(1), (4)

9 Application of Act in exclusive economic zone and in or on continental shelf

(1)

This Act applies to—

(a)

a workplace in the exclusive economic zone or in or on the continental shelf if an activity that is regulated under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 or the Crown Minerals Act 1991 is carried out at the workplace; and

(b)

any aircraft or ship (including a foreign ship) operating between New Zealand and the workplace in connection with an activity to which paragraph (a) applies.

(2)

In this section,—

continental shelf has the same meaning as in section 2(1) of the Continental Shelf Act 1964

exclusive economic zone means the exclusive economic zone of New Zealand as defined in section 9 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977.

10 Application of Act to prescribed high-risk plant

(1)

This Act applies to the operation or use of prescribed high-risk plant even if the plant is not situated, operated, or used at a workplace or for use in carrying out work.

(1)

This Act applies to

(a)

the operation or use of prescribed high-risk plant even if the plant is not situated, operated, or used at a workplace or used in carrying out work:

(b)

every operator of high-risk plant even if the operator would not otherwise be a PCBU as defined in section 13.

(2)

For the purposes of subsection (1), a reference in this Act—

(a)

to carrying out work includes a reference to the operation and use of prescribed high-risk plant; and

(b)

to a workplace includes a reference to any prescribed high-risk plant and the place at or in which the plant is situated, operated, or used; and

(c)

to work health and safety (however expressed) includes a reference to public health and safety.

(3)

This section applies subject to any prescribed exclusions or modifications.

Compare: Model Work Health and Safety Act (Aust), Schedule 1

Disapplication of Part 3

10A Certain provisions of Part 3 do not apply to members of Armed Forces

(1)

The following provisions of Part 3 do not apply to members of the Armed Forces:

(a)

section 65(1) (which relates to requests for the election of health and safety representatives); and

(b)

section 86A(1)(b) (which relates to requests for the establishment of a health and safety committee).

(2)

Sections 106 and 107 (which relate to the right of a worker to cease unsafe work and a health and safety representative to direct unsafe work to cease), do not authorise a member of the Armed Forces to cease work where a lawful order has been issued that requires the work to be undertaken.

10B Part 3 does not apply to volunteer workers

Nothing in Part 3 applies to a volunteer worker (as defined in section 14(3)).

11 Application of Part 3 does not apply to prisoners

(1)

Nothing in Part 3 applies to a worker who is a prisoner who is carrying out work inside a prison.

(2)

In subsection (1), prison and prisoner have the same meanings as in section 3(1) of the Corrections Act 2004.

Compare: Model Work Health and Safety Act (Aust) s 103

Subpart 3—Interpretation

General

12 Interpretation

In this Act, unless the context otherwise requires,—

aircraft has the same meaning as in section 2(1) of the Civil Aviation Act 1990

ACC means the Accident Compensation Corporation continued by section 259 of the Accident Compensation Act 2001

adverse conduct has the meaning given in section 110

aircraft has the same meaning as in section 2(1) of the Civil Aviation Act 1990

approved code of practice means a code of practice approved by the Minister under section 229

Armed Forces has the same meaning as in section 2(1) of the Defence Act 1990

authorised has the meaning given in section 54 section 218A

CAA means the Civil Aviation Authority of New Zealand established by section 72A of the Civil Aviation Act 1990

cease work has the meaning given in section 105

Chief of Defence Force means the officer appointed under section 8 of the Defence Act 1990

compliance power means the functions and powers conferred on an inspector or a health and safety medical practitioner (as relevant) under this Act

constable has the same meaning as in section 4 of the Policing Act 2008

construct includes assemble, erect, reconstruct, reassemble, and re-erect

Crown organisation has the same meaning as in section 4 of the Crown Organisations (Criminal Liability) Act 2002

defence area has the same meaning as in section 2(1) of the Defence Act 1990

demise charter has the same meaning as in section 2(1) of the Ship Registration Act 1992

demolition includes deconstruction

design, in relation to plant, a substance, or structure includes—

(a)

the design of part of the plant, substance, or structure; and

(b)

the redesign or modification of a design

designated agency means an agency designated under section 207

employee has the same meaning as in section 6 of the Employment Relations Act 2000

employment agreement has the same meaning as in section 5 of the Employment Relations Act 2000

enforceable undertaking means an undertaking accepted by the regulator under section 144

enforcement officer has the same meaning as in section 135 of the Hazardous Substances and New Organisms Act 1996

engage in conduct means to do an act or omit to do an act

EPA means the Environmental Protection Authority established by section 7 of the Environmental Protection Authority Act 2011

EPA control has the same meaning as in section 2(1) of the Hazardous Substances and New Organisms Act 1996

foreign ship has the same meaning as in section 2(1) of the Maritime Transport Act 1994

handle includes transport

hazard

(a)

means a situation or thing that has the potential to cause death, injury, or illness to a person; and

(b)

includes a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour)

hazard includes a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour)

hazardous substance has the same meaning as in section 2(1) of the Hazardous Substances and New Organisms Act 1996

health means physical and mental health

health and safety duty means a duty imposed on a person under subpart 1 or 2 of Part 2

health and safety medical practitioner means a person for the time being appointed under section 198

health and safety representative, in relation to a worker, means the health and safety representative elected under subpart 2 of Part 3 for the work group of which the worker is a member

health and safety representative means a worker elected as a health and safety representative in accordance with subpart 2 of Part 3

home

(a)

means a place occupied as a dwelling house; and

(b)

includes any garden, yard, garage, outhouse, or other appurtenance of a home

homeworker has the same meaning as in section 5 of the Employment Relations Act 2000

importation has the same meaning as in section 2(1) of the Customs and Excise Act 1996, and import has a corresponding meaning

improvement notice means a notice issued under section 123

inspector means an inspector appointed under section 181

issuing officer means a person within the meaning of has the same meaning as in section 3(1) of the Search and Surveillance Act 2012

local authority has the same meaning as in section 5(1) of the Local Government Act 2002

Maritime New Zealand means the authority continued by section 429 of the Maritime Transport Act 1994

medical officer of health

(a)

has the same meaning as in section 2(1) of the Health Act 1956; and

(b)

includes the officers referred to in section 22 of that Act

medical practitioner means a health practitioner who—

(a)

is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine; and

(b)

holds a current practising certificate

military aircraft means an aircraft of, or pertaining to, the Armed Forces

Minister, except in section 6A, means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

naval ship has the same meaning as in section 2(1) of the Defence Act 1990

New Zealand

(a)

means the land and the waters enclosed by the outer limits of the territorial sea of New Zealand (as described in section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977); and

(b)

includes—

(i)

all airspace within the territorial limits of New Zealand:

(ii)

the Ross Dependency

New Zealand Fire Service means the New Zealand Fire Service established by section 3 of the Fire Service Act 1975

New Zealand ship has the same meaning as in section 2(1) of the Maritime Transport Act 1994

New Zealand Transport Agency means the Agency established by section 93 of the Land Transport Management Act 2003

non-disturbance notice means a notice issued under section 130

notifiable event has the meaning given in section 20

notifiable incident has the meaning given in section 19

notifiable injury or illness has the meaning given in section 18

notifiable incident has the meaning given in section 19

officer, in relation to a PCBU,

(a)

means, if the PCBU is

(i)

a company, any person occupying the position of a director of the company by whatever name called:

(ii)

a partnership (other than a limited partnership), any partner:

(iii)

a limited partnership, any general partner:

(iv)

a body corporate or an unincorporated body, other than a company, partnership, or limited partnership, any person occupying a position in the body that is comparable with that of a director of a company; and

(b)

includes any other person who makes decisions that affect the whole, or a substantial part, of the business of the PCBU (for example, the chief executive); but

(c)

does not include a Minister of the Crown acting in that capacity

officer has the meaning given in section 13A

person includes the Crown, a corporation sole, and a body of persons, whether corporate or unincorporate

person conducting a business or undertaking or PCBU has the meaning given in section 13

personal information has the same meaning as in section 2(1) of the Privacy Act 1993

personal protective equipment

(a)

means anything used or worn by a person (including clothing) to minimise risks to the person’s health and safety:

(b)

includes air-supplied respiratory equipment

plant includes—

(a)

any machinery, vehicle, vessel, aircraft, equipment (including personal protective equipment), appliance, container, implement, or tool; and

(b)

any component of any of those things; and

(c)

anything fitted or connected to any of those things

prescribed high-risk plant means plant prescribed by regulations as high-risk plant

prohibited health and safety reason has the meaning given in section 111

prohibition notice means a notice issued under section 127(3)

reasonably practicable, in relation to a duty to ensure health and safety, in relation to a duty of a PCBU set out in subpart 1 of Part 2, has the meaning given in section 17

regulations means regulations made under this Act

regulator means, as the case requires,—

(a)

WorkSafe; or

(b)

the relevant designated agency

regulatory agency means any of the following:

(a)

a regulator under this Act:

(b)

the CAA:

(c)

the New Zealand Police:

(d)

the New Zealand Transport Agency:

(e)

Maritime New Zealand:

(f)

the EPA:

(g)

a local authority:

(h)

the New Zealand Fire Service:

(i)

a medical officer of health:

(j)

the Ministry of Health:

(k)

ACC:

(ka)

the Ministry of Business, Innovation, and Employment, including any statutory officer who carries out work for that business or undertaking:

(l)

a prescribed agency:

(m)

any department of State that is responsible for

(i)

the Building Act 2004:

(ii)

the Crown Minerals Act 1991

relevant health and safety legislation means—

(a)

this Act and regulations made under this Act:

(b)

any provisions of the following Acts (or any regulations made under those Acts) under which the regulator has functions:

(i)

Electricity Act 1992:

(ii)

Gas Act 1992:

(iii)

Hazardous Substances and New Organisms Act 1996:

(iv)

WorkSafe New Zealand Act 2013

representative, in relation to a worker, means—

(a)

the health and safety representative for the worker; or

(b)

a union representing the worker; or

(c)

any other person the worker authorises to represent the worker

residential work means work done by a person employed or engaged by the occupier of a home of either or both of the following kinds:

(a)

domestic work done or to be done in the home:

(b)

work done or to be done in respect of the home

risk means the possibility that death, injury, or illness might occur when a person is exposed to a hazard

ship has the same meaning as in section 2(1) of the Maritime Transport Act 1994

statutory officer means a person

(a)

holding or performing duties of an office established by an enactment; or

(b)

performing duties expressly conferred on the person by virtue of his or her office by an enactment; or

(c)

holding office as the chief executive of a Crown organisation

structure

(a)

means anything that is constructed, whether fixed, moveable, temporary, or permanent; and

(b)

includes—

(i)

buildings, masts, towers, frameworks, pipelines, quarries, bridges, and underground works (including shafts or tunnels); and

(ii)

any component of a structure; and

(iii)

part of a structure

substance

(a)

means any natural or artificial substance in any form (for example, a solid, liquid, gas, or vapour); and

(b)

includes a hazardous substance

supply has the meaning given in section 16

suspension notice means a notice issued under section 201

union has the same meaning as in section 5 of the Employment Relations Act 2000

volunteer means a person who is acting on a voluntary basis (whether or not the person receives out-of-pocket expenses)

work group means a work group determined under section 66

worker has the meaning given in section 14

workplace has the meaning given in section 15

WorkSafe means WorkSafe New Zealand established by section 5 of the WorkSafe New Zealand Act 2013.

Compare: 1992 No 96 s 2(1); Model Work Health and Safety Act (Aust) s 4

Key terms

13 Meaning of PCBU

(1)

In this Act, unless the context otherwise requires, a person conducting a business or undertaking or PCBU

(a)

means a person conducting a business or undertaking—

(i)

whether the person conducts a business or undertaking alone or with others; and

(ii)

whether or not the business or undertaking is conducted for profit or gain; but

(b)

does not include—

(i)

a person conducting a business or undertaking to the extent that the person is employed or engaged solely as a worker in, or as an officer of, the business or undertaking:

(ii)

a volunteer association:

(iii)

an occupier of a home to the extent that the occupier employs or engages another person solely to do residential work:

(iiia)

a statutory officer to the extent that the officer is a worker in, or an officer of, the business or undertaking:

(iv)

a person, or class of persons, that is declared by regulations not to be a PCBU for the purposes of this Act or any provision of this Act by regulations.

(2)

In subsection (1)(b)(ii), volunteer association means a group of volunteers (whether incorporated or unincorporated) working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

Compare: Model Work Health and Safety Act (Aust) s 5

13A Meaning of officer

In this Act, unless the context otherwise requires, officer, in relation to a PCBU

(a)

means, if the PCBU is

(i)

a company, any person occupying the position of a director of the company by whatever name called:

(ii)

a partnership (other than a limited partnership), any partner:

(iii)

a limited partnership, any general partner:

(iv)

a body corporate or an unincorporated body, other than a company, partnership, or limited partnership, any person occupying a position in the body that is comparable with that of a director of a company; and

(b)

includes any other person occupying a position in relation to the business or undertaking that allows the person to exercise significant influence over the management of the business or undertaking (for example, a chief executive); but

(c)

does not include a Minister of the Crown acting in that capacity; and

(d)

to avoid doubt, does not include a person who merely advises or makes recommendations to a person referred to in paragraph (a) or (b).

Compare: Model Work Health and Safety Act (Aust) s 4

14 Meaning of worker

(1)

In this Act, unless the context otherwise requires, a worker means a person an individual who carries out work in any capacity for a PCBU, including work as—

(a)

an employee; or

(b)

a contractor or subcontractor; or

(c)

an employee of a contractor or subcontractor; or

(d)

an employee of a labour hire company who has been assigned to work in the business or undertaking; or

(e)

an outworker (including a homeworker); or

(f)

an apprentice or a trainee; or

(g)

a person gaining work experience or undertaking a work trial; or

(h)

a volunteer worker; or

(i)

a person of a prescribed class.

(2)

For the purposes of subsection (1),—

(a)

a constable is—

(i)

a worker; and

(ii)

at work throughout the time when the constable is on duty or is lawfully performing the functions of a constable, but not otherwise:

(b)

a member of the Armed Forces is—

(i)

a worker; and

(ii)

at work throughout the time when the member is on duty or is lawfully performing the functions of a member of the Armed Forces, but not otherwise:

(c)

a PCBU is also a worker if the PCBU is an individual who carries out work in that business or undertaking.

(3)

In subsection (1)(h), a volunteer worker

(a)

means a volunteer who carries out work in any capacity for a PCBU

(i)

with the knowledge or consent of the PCBU; and

(ii)

on an ongoing and regular basis; and

(iii)

that is an integral part of the business or undertaking; but

(b)

does not include a volunteer undertaking any of the following voluntary work activities:

(i)

participating in a fund-raising activity:

(ii)

assisting with sports or recreation for an educational institute, sports club, or recreation club:

(iii)

assisting with activities for an educational institute outside the premises of the educational institution:

(iv)

providing care for another person in the volunteer’s home.

Compare: 1992 No 96 s 3C(1), (3); Model Work Health and Safety Act (Aust) s 7

15 Meaning of workplace

(1)

In this Act, unless the context otherwise requires, a workplace

(a)

means a place where work is being carried out, or is customarily carried out, for a business or undertaking; and

(b)

includes any place where a worker goes, or is likely to be, while at work.

(2)

In subsection (1), place includes—

(a)

a vehicle, vessel, aircraft, ship, or other mobile structure; and

(b)

any waters and any installation on land, on the bed of any waters, or floating on any waters.

Compare: Model Work Health and Safety Act (Aust) s 8

16 Meaning of supply

(1)

In this Act, unless the context otherwise requires, supply, in relation to a thing,—

(a)

includes the supply (or resupply) of the thing by way of sale, exchange, lease, hire, or hire purchase, whether as a principal or an agent; but

(b)

does not include—

(i)

the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or

(ii)

the supply of a thing by a person who does not control the supply or has no authority to make decisions about the supply (for example, a registered auctioneer who auctions a thing without having possession of the thing or a real estate agent acting in his or her capacity as a real estate agent); or

(iii)

a prescribed supply.

(2)

The supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied.

(3)

A financier is taken not to supply any plant, substance, or structure for the purposes of this Act if—

(a)

the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance, or structure on behalf of a customer of the financier; and

(b)

the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer.

(4)

If subsection (3) applies, the person (other than the financier) who had possession of the plant, substance, or structure immediately before the financier’s customer obtained possession of the plant, substance, or structure is taken for the purposes of this Act to have supplied the plant, substance, or structure to the financier’s customer.

(5)

In this section,—

financier means a financial services provider registered in accordance with Financial Service Providers (Registration and Dispute Resolution) Act 2008 that is in the business of providing a financial service within the meaning of section 5(e) of that Act

real estate agent has the same meaning as agent in section 4(1) of the Real Estate Agents Act 2008

registered auctioneer has the same meaning as in section 4(1) of the Auctioneers Act 2013.

real estate agent has the same meaning as agent in section 4(1) of the Real Estate Agents Act 2008.

Compare: Model Work Health and Safety Act (Aust) s 6

17 Meaning of reasonably practicable

In this Act, unless the context otherwise requires, reasonably practicable, in relation to a duty to ensure health and safety of a PCBU set out in subpart 1 of Part 2, means that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including—

(a)

the likelihood of the hazard or the risk concerned occurring; and

(b)

the degree of harm that might result from the hazard or risk; and

(c)

what the person concerned knows, or ought reasonably to know, about—

(i)

the hazard or risk; and

(ii)

ways of eliminating or minimising the risk; and

(d)

the availability and suitability of ways to eliminate or minimise the risk; and

(e)

after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Compare: Model Work Health and Safety Act (Aust) s 18

18 Meaning of notifiable injury or illness

(1)

In this Act, unless the context otherwise requires, a notifiable injury or illness, in relation to a person, means—

(a)

an injury or illness requiring the person to have immediate treatment for any of the following: any of the following injuries or illnesses that require the person to have immediate treatment (other than first aid):

(i)

the amputation of any part of his or her body:

(ii)

a serious head injury:

(iii)

a serious eye injury:

(iv)

a serious burn:

(v)

the separation of his or her skin from an underlying tissue (such as degloving or scalping):

(vi)

a spinal injury:

(vii)

the loss of a bodily function:

(viii)

serious lacerations:

(b)

an injury or illness that requires, or would usually require, the person to be admitted to a hospital for immediate treatment:

(c)

an injury or illness that requires, or would usually require, the person to have medical treatment within 48 hours of exposure to a substance:

(d)

any serious infection (including occupational zoonoses) to which the carrying out of work is a significant contributing factor, including any infection that is attributable to carrying out work—

(i)

with microorganisms; or

(ii)

that involves providing treatment or care to a person; or

(iii)

that involves contact with human blood or bodily substances; or

(iv)

that involves handling or contact with animals, animal hides, animal skins, animal wool or hair, animal carcasses, or animal waste products:; or

(v)

that involves handling or contact with fish or marine mammals:

(e)

the following occupational zoonoses contracted in the course of work involving handling or contact with animals, animal hides, animal skins, animal wool or hair, animal carcasses, or animal waste products:

(i)

leptospirosis:

(ii)

anthrax:

(iii)

brucellosis:

(iv)

non-seasonal influenza of animal or avian origin:

(v)

psittacosis:

(f)

any other injury or illness prescribed declared by regulations to be a notifiable injury or illness for the purposes of this section.

(2)

Despite subsection (1), notifiable injury or illness does not include any injury or illness declared by regulations not to be a notifiable injury or illness for the purposes of this section.

(3)

In this section,—

animal has the same meaning as in section 2(1) of the Animal Welfare Act 1999

fish has the same meaning as in section 2(1) of the Fisheries Act 1996

marine mammal has the same meaning as in section 2(1) of the Marine Mammals Protection Act 1978.

Compare: Model Work Health and Safety Act (Aust) s 36

19 Meaning of notifiable incident

(1)

In this Act, unless the context otherwise requires, 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 arising from an immediate or imminent exposure to—

(a)

an escape, a spillage, or a leakage of a substance; or

(b)

an implosion, explosion, or fire; or

(c)

an escape of gas or steam; or

(d)

an escape of a pressurised substance; or

(e)

an electric shock; or

(f)

the fall or release from a height of any plant, substance, or thing; or

(g)

the collapse, overturning, failure, or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with regulations; or

(h)

the collapse or partial collapse of a structure; or

(i)

the collapse or failure of an excavation or any shoring supporting an excavation; or

(j)

the inrush of water, mud, or gas in workings in an underground excavation or tunnel; or

(k)

the interruption of the main system of ventilation in an underground excavation or tunnel; or

(l)

a collision between 2 vessels, a vessel capsize, or the inrush of water into a vessel; or

(m)

any other incident prescribed declared by regulations to be a notifiable incident for the purposes of this section.

(2)

Despite subsection (1), notifiable incident does not include an incident declared by regulations not be a notifiable incident for the purposes of this section.

Compare: Model Work Health and Safety Act (Aust) s 37

20 Meaning of notifiable event

In this Act, unless the context otherwise requires, a notifiable event means any of the following events that arise from work:

(a)

the death of a person; or

(b)

a notifiable injury or illness; or

(c)

a notifiable incident.

Compare: Model Work Health and Safety Act (Aust) s 35

Examples

21 Status of examples

(1)

In this Act, an example is only illustrative of the provisions to which it relates. It does not limit those provisions.

(2)

If an example and a provision to which it relates are inconsistent, the provision prevails.

Subpart 4Key principles relating to duties General provisions

22 Duty to manage risk

A duty imposed on a person under this Act to ensure health and safety requires the person

(a)

to eliminate risks to health and safety, so far as is reasonably practicable; and

(b)

if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

Compare: Model Work Health and Safety Act (Aust) s 17

23 Compliance with other enactments

In determining whether a health and safety duty is being or has been complied with, a person or a court may have regard to the requirements imposed under any other enactment (whether or not those requirements have a purpose of ensuring health and safety) that apply in the circumstances and that affect, or may affect, the health and safety of any person.

24 Duties not transferable

A duty under this Act may not be transferred to another person.

Compare: Model Work Health and Safety Act (Aust) s 14

25 Person may have more than 1 duty

A person may have more than 1 duty under this Act if the person belongs to more than 1 class of duty holder.

Compare: Model Work Health and Safety Act (Aust) s 15

26 More than 1 person may have same duty

(1)

More than 1 person may have the same duty under this Act at the same time.

(2)

Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3)

If more than 1 person has a duty for the same matter, each person

(a)

retains responsibility for that person’s duty in relation to the matter; and

(b)

must discharge that person’s duty to the extent to which the person has the capacity to influence or control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

Compare: Model Work Health and Safety Act (Aust) s 16

27 Duty to consult other duty holders

(1)

If more than 1 person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities with all other persons who have a duty in relation to the same matter.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $20,000:

(b)

for any other person, to a fine not exceeding $100,000.

Compare: Model Work Health and Safety Act (Aust) s 46

28 PCBU must not levy workers

(1)

A PCBU must not impose a levy or charge on a worker (or permit a levy or charge to be imposed on a worker) for anything done, or provided, in relation to health and safety.

(2)

For the purposes of subsection (1), a PCBU will be treated as having levied or charged a worker who is an employee of the PCBU if the PCBU requires the employee to provide his or her own protective clothing or personal protective equipment—

(a)

as a pre-condition of employment; or

(b)

as a term or condition in an employment agreement.

(3)

Subsection (2) applies whether or not the PCBU pays the worker an allowance or extra salary or wages instead of providing protective clothing or equipment.

(4)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: Model Work Health and Safety Act (Aust) s 273

29 No contracting out

A term of any agreement or contract that purports to exclude, limit, or modify the operation of this Act, or any duty owed under this Act, or to transfer to another person any duty owed under this Act—

(a)

has no effect to the extent that it does so; but

(b)

is not an illegal contract under the Illegal Contracts Act 1970.

Compare: Model Work Health and Safety Act (Aust) s 272

29AA Insurance against fines unlawful

(1)

To the extent that an insurance policy or a contract of insurance indemnifies or purports to indemnify a person for the person’s liability to pay a fine or infringement fee under this Act,

(a)

the policy or contract is of no effect; and

(b)

no court or tribunal has jurisdiction to grant relief in respect of the policy or contract, whether under section 7 of the Illegal Contracts Act 1970 or otherwise.

(2)

A person must not

(a)

enter into, or offer to enter into, a policy or contract described in subsection (1); or

(b)

indemnify, or offer to indemnify, another person for the other person’s liability to pay a fine or an infringement fee under this Act; or

(c)

be indemnified, or agree to be indemnified, by another person for that person’s liability to pay a fine or an infringement fee under this Act; or

(d)

pay to another person, or receive from another person, an indemnity for a fine or an infringement fee under this Act.

(3)

A person who contravenes subsection (2) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $50,000:

(b)

for any other person, to a fine not exceeding $250,000.

Compare: 1992 No 96 s 56I

Part 2 Health and safety duties

Subpart 1AAKey principles relating to duties

29A Management of risks

A duty imposed on a person by or under this Act requires the person

(a)

to eliminate risks to health and safety, so far as is reasonably practicable; and

(b)

if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

Compare: Model Work Health and Safety Act (Aust) s 17

29B Duties not transferable

A duty imposed on a person by or under this Act may not be transferred to another person.

Compare: Model Work Health and Safety Act (Aust) s 14

29C Person may have more than 1 duty

A person may have more than 1 duty imposed on the person by or under this Act if the person belongs to more than 1 class of duty holder.

Compare: 1992 No 96 s 2(2); Model Work Health and Safety Act (Aust) s 15

29D More than 1 person may have same duty

(1)

More than 1 person may have the same duty imposed by or under this Act at the same time.

(2)

Each duty holder must comply with that duty to the standard required by or under this Act even if another duty holder has the same duty.

(3)

If more than 1 person has a duty for the same matter, each person

(a)

retains responsibility for that person’s duty in relation to the matter; and

(b)

must discharge that person’s duty to the extent to which the person has the ability to influence and control the matter or would have had that ability but for an agreement or arrangement purporting to limit or remove that ability.

Compare: 1992 No 96 s 2(2); Model Work Health and Safety Act (Aust) s 16

29E PCBU must consult other PCBUs with same duty

(1)

If more than 1 PCBU has a duty in relation to the same matter imposed by or under this Act, each PCBU with the duty must, so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities with all other PCBUs who have a duty in relation to the same matter.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $20,000:

(b)

for any other person, to a fine not exceeding $100,000.

Compare: Model Work Health and Safety Act (Aust) s 46

29F Compliance with other enactments

In determining whether a duty imposed on a person by or under this Act is being or has been complied with, a person or a court may have regard to the requirements imposed under any other enactment (whether or not those requirements have a purpose of ensuring health and safety) that apply in the circumstances and that affect, or may affect, the health and safety of any person.

Subpart 1—Duties of persons conducting business or undertaking PCBUs

30 Primary duty of care

(1)

A PCBU must ensure, so far as is reasonably practicable, the health and safety of—

(a)

workers employed or engaged, or caused to be employed or engaged, by the PCBU who work for the PCBU, while the workers are at work in the business or undertaking; and

(b)

workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.

(2)

A PCBU must ensure, so 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 conduct of the business or undertaking.

(3)

Without limiting subsection (1) or (2), a PCBU must ensure, so far as is reasonably practicable,—

(a)

the provision and maintenance of a work environment that is without risks to health and safety; and

(b)

the provision and maintenance of safe plant and structures; and

(c)

the provision and maintenance of safe systems of work; and

(d)

the safe use, handling, and storage of plant, substances, and structures; and

(e)

the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f)

the provision of any information, training, instruction, or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g)

that the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.

(4)

Subsection (5) applies if—

(a)

a worker occupies accommodation that is owned by, or under the management or control of, a PCBU; and

(b)

the occupancy is necessary for the purposes of the worker’s employment or engagement by the PCBU because other accommodation is not reasonably available.

(5)

The PCBU must, so far as is reasonably practicable, maintain the accommodation so that the worker is not exposed to risks to his or her health and safety arising from the accommodation.

(6)

A PCBU who is a self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

Compare: Model Work Health and Safety Act (Aust) s 19(1)(4)

31 Duty of self-employed persons

A self-employed person must, so far as is reasonably practicable, ensure his or her own health and safety while at work.

Compare: Model Work Health and Safety Act (Aust) s 19(5)

32 Duty of PCBU who manages or controls workplace

(1)

A PCBU with management or control of who manages or controls a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person.

(1A)

Despite subsection (1), a PCBU who manages or controls a workplace does not owe a duty under that subsection to any person who is at the workplace for an unlawful purpose.

(1B)

For the purposes of subsection (1), if the workplace is a farm, the duty owed by the PCBU under that subsection

(a)

applies only in relation to the farm buildings and any structure or part of the farm immediately surrounding the farm buildings that are necessary for the operation of the business or undertaking:

(b)

does not apply in relation to any other part of the farm unless work is being carried out in that part at the time.

(2)

In subsection (1) this section, a PCBU with management or control of who manages or controls a workplace

(a)

means a PCBU to the extent that the business or undertaking involves the management or control (in whole or in part) of the workplace; but

(b)

does not include—

(i)

the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(ii)

a prescribed person.

Compare: Model Work Health and Safety Act (Aust) s 20

33 Duty of PCBU who manages or controls fixtures, fittings, or plant at workplaces

(1)

A PCBU with management or control of who manages or controls fixtures, fittings, or plant at a workplace must, so far as is reasonably practicable, ensure that the fixtures, fittings, or plant are without risks to the health and safety of any person.

(1A)

Despite subsection (1), a PCBU who manages or controls fixtures, fittings, or plant at a workplace does not owe a duty under that subsection to any person who is at the workplace for an unlawful purpose.

(2)

In subsection (1) this section, a PCBU with management or control of who manages or controls fixtures, fittings, or plant at a workplace

(a)

means a PCBU to the extent that the business or undertaking involves the management or control of fixtures, fittings, or plant (in whole or in part) at a workplace; but

(b)

does not include—

(i)

the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(ii)

a prescribed person.

Compare: Model Work Health and Safety Act (Aust) s 21

34 Duty of PCBU who designs plant, substances, or structures

(1)

This section applies to a PCBU (a designer) who conducts a business or undertaking that designs—

(a)

plant that is to be used, or could reasonably be expected to be used, as or at a workplace; or

(b)

a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)

a structure that is to be used, or could reasonably be expected to be used, as or at a workplace.

(2)

The designer must, so far as is reasonably practicable, ensure that the plant, substance, or structure is designed to be without risks to the health and safety of persons—

(a)

who, at a workplace, use the plant, substance, or structure for a purpose for which it was designed; or

(b)

who handle the substance at a workplace; or

(c)

who store the plant or substance at a workplace; or

(d)

who construct the structure at a workplace; or

(e)

who carry out any reasonably foreseeable activity (such as inspection, cleaning, maintenance, or repair) at a workplace in relation to—

(i)

the manufacture, assembly, or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling, or disposal of the plant; or

(ii)

the manufacture or use of the substance for a purpose for which it was designed, or the proper handling, storage, or disposal of the substance; or

(iii)

the manufacture, assembly, or use of the structure for a purpose for which it was designed, or the proper demolition or disposal of the structure; or

(f)

who are at or in the vicinity of a workplace and who are exposed to the plant, substance, or structure at the workplace or whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (e).

(3)

The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing, or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4)

The designer must give to each person who is provided with the design for the purpose of giving effect to it adequate information concerning—

(a)

each purpose for which the plant, substance, or structure was designed; and

(b)

the results of any calculations, analysis, testing, or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)

any conditions necessary to ensure that the plant, substance, or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2)(a) to (e).

(5)

The designer, on request, must, so far as is reasonably practicable, The designer must, on request, make reasonable efforts to give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

Compare: Model Work Health and Safety Act (Aust) s 22

35 Duty of PCBU who manufactures plant, substances, or structures

(1)

This section applies to a PCBU (a manufacturer) who conducts a business or undertaking that manufactures—

(a)

plant that is to be used, or that could reasonably be expected to be used, as or at a workplace; or

(b)

a substance that is to be used, or that could reasonably be expected to be used, at a workplace; or

(c)

a structure that is to be used, or that could reasonably be expected to be used, as or at a workplace.

(2)

The manufacturer must, so far as is reasonably practicable, ensure that the plant, substance, or structure is manufactured to be without risks to the health and safety of persons—

(a)

who, at a workplace, use the plant, substance, or structure for a purpose for which it was designed or manufactured; or

(b)

who handle the substance at a workplace; or

(c)

who store the plant or substance at a workplace; or

(d)

who construct the structure at a workplace; or

(e)

who carry out any reasonably foreseeable activity (such as inspection, cleaning, maintenance, or repair) at a workplace in relation to—

(i)

the assembly or use of the plant for a purpose for which it was designed or manufactured, or the proper storage, decommissioning, dismantling, or disposal of the plant; or

(ii)

the use of the substance for a purpose for which it was designed or manufactured, or the proper handling, storage, or disposal of the substance; or

(iii)

the assembly or use of the structure for a purpose for which it was designed or manufactured, or the proper demolition or disposal of the structure; or

(f)

who are at or in the vicinity of a workplace and who are exposed to the plant, substance, or structure at the workplace or whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (e).

(3)

The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing, or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4)

The manufacturer must give to each person to whom the manufacturer provides the plant, substance, or structure adequate information concerning—

(a)

each purpose for which the plant, substance, or structure was designed or manufactured; and

(b)

the results of any calculations, analysis, testing, or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)

any conditions necessary to ensure that the plant, substance, or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e).

(5)

The manufacturer, on request, must, so far as is reasonably practicable, The manufacturer must, on request, make reasonable efforts to give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

Compare: Model Work Health and Safety Act (Aust) s 23

36 Duty of PCBU who imports plant, substances, or structures

(1)

This section applies to a PCBU (an importer) who conducts a business or undertaking that imports—

(a)

plant that is to be used, or that could reasonably be expected to be used, as or at a workplace; or

(b)

a substance that is to be used, or that could reasonably be expected to be used, at a workplace; or

(c)

a structure that is to be used, or that could reasonably be expected to be used, as or at a workplace.

(2)

The importer must, so far as is reasonably practicable, ensure that the plant, substance, or structure is without risks to the health and safety of persons—

(a)

who, at a workplace, use the plant, substance, or structure for a purpose for which it was designed or manufactured; or

(b)

who handle the substance at a workplace; or

(c)

who store the plant or substance at a workplace; or

(d)

who construct the structure at a workplace; or

(e)

who carry out any reasonably foreseeable activity (such as inspection, cleaning, maintenance, or repair) at a workplace in relation to—

(i)

the assembly or use of the plant for a purpose for which it was designed or manufactured, or the proper storage, decommissioning, dismantling, or disposal of the plant; or

(ii)

the use of the substance for a purpose for which it was designed or manufactured, or the proper handling, storage, or disposal of the substance; or

(iii)

the assembly or use of the structure for a purpose for which it was designed or manufactured, or the proper demolition or disposal of the structure; or

(f)

who are at or in the vicinity of a workplace and who are exposed to the plant, substance, or structure at the workplace or whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (e).

(3)

The importer must—

(a)

carry out, or arrange the carrying out of, any calculations calculation, analysis, testing, or examination that may be necessary for the performance of the duty imposed by subsection (2); or

(b)

ensure that the calculations calculation, analysis, testing, or examination have has been carried out.

(4)

The importer must give to each person to whom the importer provides the plant, substance, or structure adequate information concerning—

(a)

each purpose for which the plant, substance, or structure was designed or manufactured; and

(b)

the results of any calculations calculation, analysis, testing, or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)

any conditions necessary to ensure that the plant, substance, or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e).

(5)

The importer, on request, must, so far as is reasonably practicable, The importer must, on request, make reasonable efforts to give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

Compare: Model Work Health and Safety Act (Aust) s 24

37 Duty of PCBU who supplies plant, substances, or structures

(1)

This section applies to a PCBU (a supplier) who conducts a business or undertaking that supplies—

(a)

plant that is to be used, or could reasonably be expected to be used, as or at a workplace; or

(b)

a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)

a structure that is to be used, or could reasonably be expected to be used, as or at a workplace.

(2)

The supplier must, so far as is reasonably practicable, ensure that the plant, substance, or structure is without risks to the health and safety of persons—

(a)

who, at a workplace, use the plant, substance, or structure for a purpose for which it was designed or manufactured; or

(b)

who handle the substance at a workplace; or

(c)

who store the plant or substance at a workplace; or

(d)

who construct the structure at a workplace; or

(e)

who carry out any reasonably foreseeable activity (such as inspection, cleaning, maintenance, or repair) at a workplace in relation to—

(i)

the assembly or use of the plant for a purpose for which it was designed or manufactured, or the proper storage, decommissioning, dismantling, or disposal of the plant; or

(ii)

the use of the substance for a purpose for which it was designed or manufactured, or the proper handling, storage, or disposal of the substance; or

(iii)

the assembly or use of the structure for a purpose for which it was designed or manufactured, or the proper demolition or disposal of the structure; or

(f)

who are at or in the vicinity of a workplace and who are exposed to the plant, substance, or structure at the workplace or whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (e).

(3)

The supplier must—

(a)

carry out, or arrange the carrying out of, any calculations calculation, analysis, testing, or examination that may be necessary for the performance of the duty imposed by subsection (2); or

(b)

ensure that the calculations calculation, analysis, testing, or examination have has been carried out.

(4)

The supplier must give to each person to whom the supplier supplies the plant, substance, or structure adequate information concerning—

(a)

each purpose for which the plant, substance, or structure was designed or manufactured; and

(b)

the results of any calculations, analysis, testing, or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)

any conditions necessary to ensure that the plant, substance, or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e).

(5)

The supplier, on request, must, so far as is reasonably practicable, The supplier must, on request, make reasonable efforts to give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

(6)

This section does not apply to the sale of plant, whether or not in trade, if the plant—

(a)

is secondhand; and

(b)

is sold as is.

(7)

In subsection (6)(b), as is means that the plant is sold without any representations or warranties about its quality, durability, or fitness, and with the entire risk in those respects to be borne by the buyer.

Compare: 1992 No 96 s 18A(4), (5); Model Work Health and Safety Act (Aust) s 25

38 Duty of PCBU who installs, constructs, or commissions plant or structures

(1)

This section applies to a PCBU who installs, constructs, or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as or at a workplace.

(2)

The PCBU must, so far as is reasonably practicable, ensure that the way in which the plant or structure is installed, constructed, or commissioned ensures that the plant or structure is without risks to the health and safety of persons—

(a)

who install or construct the plant or structure at a workplace; or

(b)

who use the plant or structure at a workplace for a purpose for which it was installed, constructed, or commissioned; or

(c)

who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning, or dismantling of the plant or demolition, or disposal of the structure; or

(d)

who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (c).

Compare: Model Work Health and Safety Act (Aust) s 26

Subpart 2—Duties of officers, workers, and other persons

39 Duty of officers

(1)

If a PCBU has a duty or an obligation under this Act, an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty or obligation.

(2)

In this section, due diligence includes taking reasonable steps—

(a)

to acquire, and keep up to date, knowledge of work health and safety matters; and

(b)

to gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations; and

(c)

to ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

(d)

to ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks and for responding in a timely way to that information; and

(e)

to ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under this Act; and

(f)

to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

(3)

Despite subsection (1), a member of the governing body of a territorial authority or regional council elected in accordance with the Local Electoral Act 2001, does not have a duty to exercise due diligence to ensure that any council-controlled organisation (as defined in section 6 of the Local Government Act 2002) complies with its duties or obligations under this Act unless that member is also an officer of that council-controlled organisation.

Compare: Model Work Health and Safety Act (Aust) s 27(1), (5)

40 Duties of workers

While at work, a worker must—

(a)

take reasonable care for his or her own health and safety; and

(b)

take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c)

comply, as far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with this Act or regulations; and

(d)

co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

Compare: Model Work Health and Safety Act (Aust) s 28

41 Duties of other persons at workplace

A person at a workplace (whether or not the person has another duty under this Part) must—

(a)

take reasonable care for the person’s his or her own health and safety; and

(b)

take reasonable care that the person’s his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c)

comply, as far as the person he or she is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with this Act or regulations.

Compare: Model Work Health and Safety Act (Aust) s 29

Subpart 3—Offences relating to health and safety duties

42 Offence of reckless conduct in respect of health and safety duty

(1)

A person commits an offence against this section if the person—

(a)

has a health and safety duty under subpart 1 or 2; and

(b)

without reasonable excuse, engages in conduct that exposes any individual to whom that duty is owed to a risk of death or serious injury or serious illness; and

(c)

is reckless as to the risk to an individual of death or serious injury or serious illness.

(2)

For the purposes of subsection (1), if the person is an officer of a PCBU, the individual to whom the duty is owed is an individual to whom the PCBU owes the duty.

(3)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

for an individual who is not a PCBU or an officer of a PCBU, to a term of imprisonment not exceeding 5 years or a fine not exceeding $300,000, or both:

(b)

for an individual who is a PCBU or an officer of a PCBU, to a term of imprisonment not exceeding 5 years or a fine not exceeding $600,000, or both:

(c)

for any other person, to a fine not exceeding $3 million.

Compare: Model Work Health and Safety Act (Aust) s 31

43 Offence of failing to comply with health and safety duty that exposes individual to risk of death or serious injury or serious illness

(1)

A person commits an offence against this section if the person—

(a)

has a health and safety duty under subpart 1 or 2; and

(b)

fails to comply with that duty; and

(c)

that failure exposes any individual to a risk of death or serious injury or serious illness.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

for an individual who is not a PCBU or an officer of a PCBU, to a fine not exceeding $150,000:

(b)

for an individual who is a PCBU or an officer of a PCBU, to a fine not exceeding $300,000:

(c)

for any other person, to a fine not exceeding $1.5 million.

Compare: Model Work Health and Safety Act (Aust) s 32

44 Offence of failing to comply with health and safety duty

(1)

A person commits an offence against this section if the person—

(a)

has a health and safety duty under subpart 1 or 2; and

(b)

fails to comply with that duty.

(2)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

for an individual who is not a PCBU or an officer of a PCBU, to a fine not exceeding $50,000:

(b)

for an individual who is a PCBU or an officer of a PCBU, to a fine not exceeding $100,000:

(c)

for any other person, to a fine not exceeding $500,000.

(3)

Despite subsection (2), if the duty or obligation of a PCBU is imposed under a provision other than a provision of subpart 1 or 2, the maximum penalty under subsection (2) for an offence by an officer against subsection (1) in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

Compare: Model Work Health and Safety Act (Aust) ss 27(3), 33

Specific provisions relating to liability of certain persons

45 Liability of officers

An officer of a PCBU may be convicted or found guilty of an offence against section 39 whether or not the PCBU has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

Compare: Model Work Health and Safety Act (Aust) s 27(4)

46 Liability of volunteers

A volunteer does not commit an offence under section 42, 43, or 44 for a failure to comply with a health and safety duty imposed by subpart 1 or 2, except a duty under—

(a)

section 40 (duties of workers); or

(b)

section 41 (duties of other persons at workplaces).

Compare: Model Work Health and Safety Act (Aust) s 34(1)

47 Liability of certain office holders

(1)

An office holder listed in subsection (2), when acting in that capacity, does not commit an offence under section 42, 43, or 44 for a failure to comply with the duty imposed by section 39 (duties of officers).

(2)

The office holders are

(a)

a member of a community board appointed or elected under the Local Electoral Act 2001:

(b)

a member of the governing body of a local authority elected under the Local Electoral Act 2001:

(c)

a member of a local board elected under the Local Electoral Act 2001:

(d)

a trustee of board of a school appointed or elected under the Education Act 1989.

(2)

The office holders are

(a)

a member of the governing body of a territorial authority or regional council elected in accordance with the Local Electoral Act 2001:

(b)

a member of a local board elected or appointed under the Local Electoral Act 2001:

(c)

a member of a community board elected or appointed in accordance with the Local Electoral Act 2001:

(d)

a trustee of a board of a school appointed or elected under the Education Act 1989.

(3)

In subsection (2)

board and trustee, in relation to a school, have the same meanings as in section 92(1) of the Education Act 1989

community board means a board established under section 49(1) of the Local Government Act 2002

local authority and local board has the same meaning have the same meanings as in section 5(1) of the Local Government Act 2002.

local board has the same meaning as in section 4(1) of the Local Government (Auckland Council) Act 2009

board and trustee, in relation to a school, have the same meanings as in section 92(1) of the Education Act 1989.

48 Liability of unincorporated associations

(1)

An unincorporated association does not commit an offence under this Act for a failure to comply with a duty or an obligation imposed on the unincorporated association under this Act.

(2)

However,

(a)

an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 39 (duties of officers); and

(b)

a member of an unincorporated association may be liable for failure to comply with a duty under section 40 or 41 (duties of workers and duties of other persons at workplaces).

Compare: Model Work Health and Safety Act (Aust) s 34

Other matters relating to offences

49 Actions taken to prevent harm

Where a person (person A) harms another person (person B) by taking any action necessary to protect person B or any other person from harm,—

(a)

person A does not commit an offence against this Part under this Act; and

(b)

if person A is a worker, the PCBU for whom person A carries out work does not commit an offence against this Part under this Act.

Compare: 1992 No 96 s 51

50 Proof of intention not required for certain offences

In a matter involving a prosecution for an offence against section 43 or 44, it is not necessary to prove that the defendant—

(a)

intended to take the action alleged to constitute the offence; or

(b)

intended not to take the action, the failure to take which an action, where the failure to take that action is alleged to constitute the offence.

Compare: 1992 No 96 s 53

Subpart 4—Duties to notify notifiable events and preserve sites preserve sites and notify notifiable events

51 Duty to notify notifiable event

(1)

A PCBU must, immediately after becoming aware that a notifiable event arising out of the conduct of the business or undertaking has occurred, ensure that the regulator is notified of the event.

(2)

A notification under subsection (1)

(a)

may be given by telephone or in writing (including by fax, email, or other electronic means); and

(b)

must be given by the fastest possible means in the circumstances.

(3)

For the purposes of subsection (2), a person giving notice by telephone must

(a)

give the details of the incident requested by the regulator; and

(b)

if required by the regulator, give a written notice of the incident within 48 hours of being informed of the requirement.

(4)

Notice given in writing under subsection (2) or (3) must be in a form, or contain the details, approved by the regulator.

(5)

If the regulator receives notice by telephone and a written notice is not required, the regulator must give the PCBU

(a)

details of the information received; or

(b)

an acknowledgement of having received notice.

(6)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: Model Work Health and Safety Act (Aust) s 38(1)(6)

52 Requirement to keep records

(1)

A PCBU must keep a record of each notifiable event for at least 5 years from the date on which notice of the event is given to the regulator under section 51.

(2)

A record kept under subsection (1) must contain the particulars prescribed by regulations (if any).

(3)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: Model Work Health and Safety Act (Aust) s 38(7)

53 Duty to preserve sites

(1)

A person with management or control of a workplace at which a notifiable event has occurred must, so far as is reasonably practicable, ensure that the site where the event occurred is not disturbed until authorised by an inspector.

(2)

Subsection (1) does not prevent any action

(a)

to assist an injured person; or

(b)

to remove a deceased person; or

(c)

that is essential to make the site safe or to minimise the risk of a further notifiable event; or

(d)

that is done by, or under the direction of, a constable; or

(e)

for which an inspector or the regulator has given permission.

(3)

Subsection (1) does not apply if the notifiable event is being investigated under the Armed Forces Discipline Act 1971 or the Transport Accident Investigation Commission Act 1990.

(4)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

(5)

For the purposes of this section, a site

(a)

includes any plant, substance, structure, or thing associated with the notifiable event; but

(b)

does not include any particular site in prescribed circumstances.

Compare: Model Work Health and Safety Act (Aust) s 39

51 Duty to preserve sites

(1)

A PCBU who manages or controls a workplace at which a notifiable event has occurred must take all reasonable steps to ensure that the site where the event occurred is not disturbed until authorised by an inspector.

(2)

Subsection (1) does not prevent any action

(a)

to assist an injured person; or

(b)

to remove a deceased person; or

(c)

that is essential to make the site safe or to minimise the risk of a further notifiable event; or

(d)

that is done by, or under the direction of, a constable acting in execution of his or her duties; or

(e)

for which an inspector or the regulator has given permission.

(3)

Subsection (1) does not apply if the notifiable event is being investigated under the Armed Forces Discipline Act 1971 or the Transport Accident Investigation Commission Act 1990.

(4)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

(5)

For the purposes of this section, a site

(a)

includes any plant, substance, structure, or thing associated with the notifiable event; but

(b)

does not include any particular site in prescribed circumstances.

Compare: Model Work Health and Safety Act (Aust) s 39

52 Duty to notify notifiable event

(1)

A PCBU must, as soon as possible after becoming aware that a notifiable event arising out of the conduct of the business or undertaking has occurred, ensure that the regulator is notified of the event.

(2)

A notification under subsection (1)

(a)

may be given by telephone or in writing (including by email, or other electronic means); and

(b)

must be given by the fastest possible means in the circumstances.

(3)

For the purposes of subsection (2), a person giving notice by telephone must

(a)

give the details of the incident requested by the regulator; and

(b)

if required by the regulator, give a written notice of the incident within 48 hours of being informed of the requirement.

(4)

Notice given in writing under subsection (2) or (3) must be in a form, or contain the details, approved by the regulator.

(5)

If the regulator receives notice by telephone and a written notice is not required, the regulator must give the PCBU

(a)

details of the information received; or

(b)

an acknowledgement of having received notice.

(6)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: Model Work Health and Safety Act (Aust) s 38(1)(6)

53 Requirement to keep records

(1)

A PCBU must keep a record of each notifiable event for at least 5 years from the date on which notice of the event is given to the regulator under section 52.

(2)

A record kept under subsection (1) must contain the particulars prescribed by regulations (if any).

(3)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: Model Work Health and Safety Act (Aust) s 38(7)

Subpart 5Authorisations

54 Meaning of authorised

In this subpart, authorised means authorised by a licence, permit, registration, consent, certificate, or other authority (however described) as required by regulations.

Compare: Model Work Health and Safety Act (Aust) s 40

55 Requirements for authorisation of workplaces

(1)

A person must not conduct a business or an undertaking at a workplace or direct or allow a worker to carry out work at a workplace if

(a)

regulations require the workplace, or class of workplaces, to be authorised; and

(b)

the workplace is not authorised in accordance with regulations.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $50,000:

(b)

for any other person, to a fine not exceeding $250,000.

Compare: Model Work Health and Safety Act (Aust) s 41

56 Requirements for authorisation of plant or substance

(1)

A person must not use plant or a substance at a workplace if

(a)

regulations require the plant or substance or its design to be authorised; and

(b)

the plant or substance or its design is not authorised in accordance with regulations.

(2)

A PCBU must not direct or allow a worker to use plant or a substance at a workplace if

(a)

regulations require the plant or substance or its design to be authorised; and

(b)

the plant or substance or its design is not authorised in accordance with regulations.

(3)

A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $20,000:

(b)

for any other person, to a fine not exceeding $100,000.

Compare: Model Work Health and Safety Act (Aust) s 42

57 Requirements for authorisation of work

(1)

A PCBU must not carry out work at a workplace if

(a)

regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and

(b)

the person, or the person on whose behalf the work is carried out, is not authorised in accordance with regulations.

(2)

A PCBU must not direct or allow a worker to carry out work at a workplace if

(a)

regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and

(b)

the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with regulations.

(3)

A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $20,000:

(b)

for any other person, to a fine not exceeding $100,000.

Compare: Model Work Health and Safety Act (Aust) s 43

58 Requirements for prescribed qualifications or experience

(1)

A person must not carry out work at a workplace if regulations require the work, or class of work, to be carried out

(a)

by a person who has prescribed qualifications or experience and the person does not have the prescribed qualifications or experience:

(b)

under the supervision of a person who has prescribed qualifications or experience and the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

(2)

A PCBU must not direct or allow a worker to carry out work at a workplace if regulations require the work, or class of work, to be carried out

(a)

by a worker who has prescribed qualifications or experience and the worker does not have the prescribed qualifications or experience:

(b)

under the supervision of a person who has prescribed qualifications or experience and the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

(3)

A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $20,000:

(b)

for any other person, to a fine not exceeding $100,000.

Compare: Model Work Health and Safety Act (Aust) s 44

59 Requirement to comply with conditions of authorisation

(1)

A person must comply with the conditions of any authorisation given to that person that are prescribed in or under regulations.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $20,000:

(b)

for any other person, to a fine not exceeding $100,000.

Compare: Model Work Health and Safety Act (Aust) s 45

Part 3 Engagement, worker participation, and representation

60 Outline of this Part

(1)

In general terms, this Part

(a)

requires PCBUs to engage with workers on matters relating to work health and safety:

(b)

requires PCBUs to have practices that provide reasonable opportunities for workers to participate in improving work health and safety:

(c)

requires the election of health and safety representatives and the establishment of health and safety committees, but only if

(i)

workers request it; or

(ii)

a PCBU initiates it:

(d)

specifies the functions and powers of health and safety representatives and functions of health and safety committees:

(e)

allows trained health and safety representatives to issue provisional improvement notices:

(f)

provides the right for a worker to cease unsafe work and the right of trained health and safety representatives to direct the cessation of unsafe work:

(g)

prohibits adverse, coercive, or misleading conduct in respect of work health and safety, and provides for offences and civil actions in respect of such conduct:

(h)

specifies how issues relating to work health and safety must be dealt with by the parties to the issue.

(2)

This section is intended only as a guide to the general scheme and effect of this Part.

Subpart 1—Engagement with workers and worker participation practices

Engagement with workers

61 Duty to engage with workers

(1)

A PCBU must, so far as is reasonably practicable, engage with workers—

(a)

who carry out work for the business or undertaking; and

(b)

who are, or are likely to be, directly affected by a matter relating to work health or safety.

(2)

If the PCBU and the workers have agreed to procedures for engagement, the engagement must be in accordance with those procedures.

(3)

The agreed procedures must not be inconsistent with section 62.

(4)

A person who contravenes this section commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $20,000:

(b)

for any other person, to a fine not exceeding $100,000.

Compare: Model Work Health and Safety Act (Aust) s 47

62 Nature of engagement

(1)

Engagement with workers under this subpart requires—

(a)

that relevant information about the matter be shared with workers in a timely manner; and

(b)

that workers be given a reasonable opportunity—

(i)

to express their views and to raise work health or safety issues in relation to the matter; and

(ii)

to contribute to the decision-making process relating to the matter; and

(c)

that the views of workers be taken into account by the PCBU; and

(d)

that the workers be advised of the outcome of the engagement in a timely manner.

(2)

If the workers are represented by a health and safety representative, the engagement must involve that representative.

Compare: Model Work Health and Safety Act (Aust) s 48

63 When engagement is required

Engagement with workers under this subpart is required in relation to the following work health and safety matters in the following circumstances:

(a)

when identifying hazards and assessing risks to work health and safety arising from the work carried out or to be carried out as part of the conduct of the business or undertaking:

(b)

when making decisions about ways to eliminate or minimise those risks:

(c)

when making decisions about the adequacy of facilities for the welfare of workers:

(d)

when proposing changes that may affect the health or safety of workers:

(e)

when making decisions about the procedures for the following:

(i)

engaging with workers:

(ii)

monitoring the health of workers:

(iii)

monitoring the conditions at any workplace under the management or control of the PCBU:

(iv)

providing information and training for workers:

(f)

when making decisions about the procedures (if any) for resolving work health or safety issues at the workplace:

(g)

when developing worker participation practices:

(h)

when carrying out any other activity prescribed by regulations for the purposes of this section.

Compare: Model Work Health and Safety Act (Aust) s 49

Worker participation practices

64 Duty to have worker participation practices

(1)

A PCBU must have practices that provide reasonable opportunities for workers who carry out work for the business or undertaking to participate effectively in improving work health and safety in the business or undertaking on an ongoing basis.

(2)

In complying with subsection (1), the PCBU must—

(a)

comply with prescribed requirements relating to worker participation, including requirements relating to a particular industry, sector, or kind of workplace:

(b)

take into account any relevant approved code of practice.

(3)

In subsection (1), reasonable opportunities means opportunities that are reasonable in the circumstances, having regard to relevant matters, including—

(a)

the number of workers working in the business or undertaking; and

(b)

the number of different places of work workplaces of the business or undertaking, and the distance between them; and

(c)

the likely risks to work health and safety in the business or undertaking and the level of those risks; and

(d)

the nature of the work that is performed and the way that it is arranged or managed; and

(e)

the nature of the employment arrangements or contracting arrangements, including the extent and regularity of employment or engagement of temporary workers; and

(f)

the willingness of workers and their representatives to develop worker participation practices; and

(g)

in relation to employers and employees, the duty to act in good faith as required by section 4 of the Employment Relations Act 2000.

(4)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $20,000:

(b)

for any other person, to a fine not exceeding $100,000.

Compare: 1992 No 96 s 19B

Subpart 2—Health and safety representatives and health and safety committees

Request for Election of health and safety representative representatives

65 Request for election Election of health and safety representatives

(1)

A worker who carries out work for a business or undertaking may notify the PCBU that the worker wishes 1 or more health and safety representatives to be elected to represent workers who carry out work for that business or undertaking.

(1A)

If a PCBU receives a notification under subsection (1), the PCBU must initiate the election of 1 or more health and safety representatives to represent workers who carry out work for that business or undertaking, within the time prescribed by regulations.

(2)

A PCBU may initiate the election of 1 or more health and safety representatives to represent workers who carry out work for that business or undertaking on the PCBU’s own initiative.

(2)

A PCBU may, on the PCBU’s own initiative, initiate the election of 1 or more health and safety representatives to represent workers who carry out work for that business or undertaking.

(3)

Despite subsection (1A), a PCBU is not required to initiate the election of 1 or more health and safety representatives, if the work of the business or undertaking

(a)

is carried out by fewer than 20 workers; and

(b)

is not within the scope of any prescribed high-risk sector or industry.

(4)

The PCBU’s obligation to hold an election in response to a worker’s request for the election of 1 or more health and safety representatives under subsection (1) applies only in relation to holding an election for the work group to which that worker belongs.

(5)

A person who contravenes subsection (1A) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: Model Work Health and Safety Act (Aust) s 50

65A Requirements for conducting elections

An election for 1 or more health and safety representatives (whether following the request of a worker or on the initiative of the PCBU under section 65) must comply with any prescribed requirements.

Compare: 1992 No 96 s 19V; Model Work Health and Safety Act (Aust) s 61(2)

Determination of work groups

66 Requirement for PCBU to facilitate determination work groups Determination of work groups

(1)

If a worker makes a request or the PCBU initiates the election of a health and safety representative under section 65, the PCBU must facilitate the determination of determine 1 or more work groups, in accordance with either subsection (2) or (3) for the purpose of deciding the matters set out in section 67.

(2)

For the purposes of subsection (1), the PCBU must comply with any prescribed requirements relating to the determination of 1 or more work groups.

(2)

Unless a PCBU determines otherwise in accordance with subsection (3), a work group comprises all the workers in the business or undertaking.

(3)

A PCBU may determine 1 or more work groups if the PCBU considers that the work group described in subsection (2) would be inappropriate having regard to the structure of the business or undertaking.

(4)

If subsection (3) applies, the PCBU must

(a)

ensure that the workers are grouped in a way that

(i)

most effectively enables the health and safety interests of the workers to be represented; and

(ii)

takes account of the need for a health and safety representative to be accessible to the workers that he or she represents; and

(b)

have regard to any prescribed requirements.

(5)

Two or more PCBUs may, by agreement, determine 1 or more work groups that comprise workers who carry out work for any PCBU who is party to the agreement (a multiple PCBU work group arrangement)

(a)

in accordance with subsection (3); and

(b)

subject to any prescribed requirements.

Compare: Model Work Health and Safety Act (Aust) s 51(1), (2), (3)

66A Determination of numbers of health and safety representatives for work groups

(1)

A PCBU who determines a work group under section 66(2), must determine the number of health and safety representatives who may be elected for that work group in accordance with the prescribed minimum ratio of health and safety representatives to workers.

(2)

A PCBU who determines a work group under section 66(3), must determine the number of health and safety representatives who may be elected for that work group in accordance with any prescribed requirements.

67 Purpose of determining work groups

(1)

The purpose of determining a work group is to facilitate the representation of workers by deciding

(a)

the number and composition of work groups to be represented by health and safety representatives; and

(b)

the number of health and safety representatives and deputy health and safety representatives (if any) to be elected for each work group; and

(c)

the workplace or workplaces to which the work groups will apply.

(2)

If a work group is determined for workers carrying out work for 2 or more PCBUs, the purpose of determining work groups also includes deciding the businesses or undertakings to which the work groups will apply.

Compare: Model Work Health and Safety Act (Aust) s 51(2)

68 Requirements for conducting elections

An election for 1 or more health and safety representatives and deputy health and safety representatives (whether following the request of a worker or on the initiative of the PCBU under section 65) must comply with any prescribed requirements.

Functions and powers of health and safety representatives

69 Functions of health and safety representatives

The functions of a health and safety representative for a work group are

(a)

to represent the workers in the work group in matters relating to health and safety:

(b)

to investigate complaints from workers in the work group regarding health and safety:

(c)

if requested by a worker in the work group, to represent the worker in relation to a matter relating to health and safety (including a complaint):

(d)

to monitor the measures taken by the PCBU that are relevant to health and safety:

(e)

to inquire into anything that appears to be a risk to the health or safety of workers in the work group arising from the conduct of the business or undertaking:

(f)

to make recommendations relating to work health and safety:

(g)

to provide feedback to the PCBU about whether the requirements of this Act or the regulations are being complied with:

(h)

to promote the interests of workers in the work group who have been harmed at work, including in relation to arrangements for rehabilitation and return to work.

Compare: 1992 No 96 s 19W; Model Work Health and Safety Act (Aust) s 68

70 Health and safety representative may attend interview

(1)

With the consent of the worker concerned, a health and safety representative may attend an interview concerning work health and safety between a worker whom the health and safety representative represents and

(a)

an inspector; or

(b)

the PCBU at that workplace or the PCBU’s representative.

(2)

With the consent of the workers concerned, a health and safety representative may attend an interview concerning work health and safety between a group of workers whom the health and safety representative represents and

(a)

an inspector; or

(b)

the PCBU at that workplace or the PCBU’s representative.

(3)

If subsection (1)(a) or (2)(a) applies, an inspector may refuse to allow a health and safety representative to be present

(a)

during any discussion in which personal information may be disclosed (unless the person who is the subject of the information has expressly consented to the health and safety representative being present):

(b)

if the inspector believes that the presence of the health and safety representative would prejudice the maintenance of the law, including the investigation and prosecution of offences.

Compare: 1992 No 96 s 19Z

71 Health and safety representative may enter and inspect workplace

(1)

A health and safety representative may, at any reasonable time, enter and inspect any area of a workplace to perform the functions, or exercise the powers, of the health and safety representative.

(2)

Before exercising the power under subsection (1), the health and safety representative must give reasonable notice to the PCBU at that workplace.

(3)

In exercising the power under this section, the health and safety representative must comply with any reasonable procedures and requirements that relate to work health and safety.

(4)

Despite subsections (1) and (2), a health and safety representative may, at any time and without notice, enter and inspect any area of a workplace in the event of an incident, or any situation involving a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard.

Compare: 1992 No 96 s 19ZA

72 Health and safety representative may request information

(1)

A health and safety representative may request a PCBU to provide any information necessary to enable the health and safety representative to perform his or her functions or exercise his or her powers, including information relating to

(a)

hazards (including associated risks) at the workplace affecting workers in the work group; and

(b)

subject to section 79, the health and safety of workers in the work group.

(2)

The health and safety representative may retain and copy any document containing information provided by the PCBU following a request under subsection (1).

73 Health and safety representative may be assisted by another person

A health and safety representative may, for the purposes of performing or exercising his or her functions or powers under this Act, be accompanied or assisted by another person.

Compare: Model Work Health and Safety Act (Aust) s 68(2)(g)

74 Health and safety representative may accompany inspector

(1)

A health and safety representative may accompany an inspector who has entered a workplace under section 185.

(2)

An inspector may refuse to allow a health and safety representative accompanying the inspector under this section to be present

(a)

during any discussion in which personal information may be disclosed (unless the person who is the subject of the information has expressly consented to the health and safety representative being present):

(b)

if the inspector believes that the presence of the health and safety representative would prejudice the maintenance of the law, including the investigation and prosecution of offences.

Compare: 1992 No 96 s 19ZD

75 Health and safety representative may consult regulator or inspector

A health and safety representative may consult the regulator or an inspector about any work health and safety issue.

Compare: 1992 No 96 s 19ZE

76 Functions and powers of health and safety representative generally limited to particular work group

(1)

A health and safety representative for a work group may perform his or her functions and exercise his or her powers under this Act only in relation to matters that affect, or may affect, the health and safety of workers in that work group.

(2)

Subsection (1) does not apply if

(a)

there is a serious risk to health or safety arising from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or

(b)

a member of another work group asks for the representative’s assistance, and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.

(3)

In this section, another work group means

(a)

another work group carrying out work for a business or undertaking that relates to the work group that the health and safety representative represents:

(b)

for a multiple PCBU arrangement, another work group within that arrangement.

Compare: Model Work Health and Safety Act (Aust) s 69

77 Deputy health and safety representatives

(1)

A deputy health and safety representative may perform the functions and exercise the powers of a health and safety representative if the health and safety representative

(a)

is unable, due to absence or any other reason, to perform or exercise his or her functions or powers; or

(b)

is removed from office under section 85; or

(c)

ceases to hold office for any other reason.

(2)

This Part applies, with any necessary modifications, to a deputy health and safety representative.

Obligations of PCBU to health and safety representatives

78 Obligations of PCBU to health and safety representative

(1)

The PCBU must

(a)

consult, so far as is reasonably practicable, about health and safety matters with any health and safety representative for a work group of workers carrying out work as part of the conduct of the business or undertaking; and

(b)

confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and

(c)

allow a health and safety representative to spend as much time as is reasonably necessary to perform his or her functions or exercise his or her powers under this Act; and

(d)

provide any health and safety representative for a work group with any information necessary to enable the health and safety representative to perform his or her functions or exercise his or her powers, including information relating to

(i)

hazards (including associated risks) at the workplace affecting workers in a work group; and

(ii)

the health and safety of the workers in a work group; and

(e)

allow the health and safety representative to be present at an interview relating to health and safety between a worker and

(i)

an inspector; or

(ii)

the PCBU at that workplace or the PCBU’s representative; and

(f)

allow the health and safety representative to be present at an interview concerning health and safety between a group of workers and

(i)

an inspector; or

(ii)

the PCBU at that workplace or the PCBU’s representative; and

(g)

provide any resources, facilities, and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by regulations to enable the representative to perform his or her functions and exercise his or her powers under this Act; and

(h)

allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided; and

(i)

permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works.

(2)

If a health and safety representative makes a recommendation regarding work health and safety, the PCBU must, within a reasonable time,

(a)

adopt the recommendation; or

(b)

provide a written statement to the health and safety representative setting out the reasons for not adopting the recommendation.

(3)

Any time that a health and safety representative spends for the purposes of performing or exercising his or her functions or powers under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(4)

A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: Model Work Health and Safety Act (Aust) s 70

79 Exceptions to sections 72(1) and 78(1)

(1)

Despite sections 72(1) and 78(1), a PCBU

(a)

must not allow a health and safety representative to have access to any personal information concerning a worker without the worker’s consent unless the information is in a form that

(i)

does not identify the worker; and

(ii)

could not reasonably be expected to identify the worker; and

(b)

is not required to give financial assistance to a health and safety representative for the purpose of the assistance referred to in section 73; and

(c)

may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative.

(2)

A person who contravenes subsection (1)(a) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: Model Work Health and Safety Act (Aust) s 71

80 Requirement to allow health and safety representatives to attend certain training

(1)

If a health and safety representative has been elected to represent workers who carry out work for a business or undertaking, the PCBU must comply with any prescribed requirements relating to access to training for health and safety representatives (including any requirement to meet the costs of that training).

(2)

Any time off work that a health and safety representative is given to attend training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(3)

Subsection (2) does not apply in respect of any day for which the eligible employee is paid weekly compensation under the Accident Compensation Act 2001.

(4)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: Model Work Health and Safety Act (Aust) s 72(1)(4)

Other matters

81 Functions and powers for health and safety purposes only

A health and safety representative must not perform a function or exercise a power under this Part for a purpose other than a health and safety purpose.

Compare: 1992 No 96 s 19ZM

82 Information to be used by health and safety representative for health and safety purposes only

(1)

This section applies to any information obtained by a health and safety representative in the performance of his or her functions or exercise of his or her powers under this Act.

(2)

The health and safety representative may

(a)

disclose or use the information,

(i)

if the information is about a person, only with the person’s consent:

(ii)

only to the extent necessary for the performance or exercise of the health and safety representative’s functions or powers under this Act:

(b)

disclose the information

(i)

to the regulator or a person authorised by the regulator only if the health and safety representative reasonably believes the disclosure is necessary for administering, monitoring, or enforcing compliance with the relevant health and safety legislation:

(ii)

only if the disclosure is authorised or required by law.

(3)

In subsection (2), disclose includes to give any person access to information.

Compare: 1992 No 96 s 19ZN

83 No duty on health and safety representative

Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

Compare: 1992 No 96 s 19X; Model Work Health and Safety Act (Aust) s 68(4)

84 Immunity of health and safety representatives

A health and safety representative is protected from civil and criminal liability for any act done or omitted to be done

(a)

in the performance or intended performance of his or her functions or the exercise or intended exercise of his or her powers; and

(b)

in good faith.

Compare: 1992 No 96 s 19ZP

85 Regulator may remove health and safety representative

(1)

The regulator may, by notice in writing, remove a health and safety representative from office if the regulator considers that the representative has not performed or exercised his or her functions or powers satisfactorily, including if the health and safety representative has

(a)

performed a function or exercised a power as a health and safety representative for an improper purpose; or

(b)

used or disclosed any information he or she acquired as a health and safety representative in contravention of section 82.

(2)

The notice under subsection (1) must state

(a)

the reasons for the regulator’s decision; and

(b)

whether the removal from office is for a specified period or indefinite.

Compare: 1992 No 96 s 19ZR

86 Appeal against removal from office

(1)

A health and safety representative may appeal to a District Court against a decision of the regulator to remove him or her from office.

(2)

The appeal must be brought within 28 days of the date of the notice under section 85(1).

Compare: 1992 No 96 s 19ZT

Health and safety committees

86A Health and safety committees

(1)

The following persons may request that the PCBU at a workplace establish a health and safety committee for the business or undertaking or part of the business or undertaking:

(a)

a health and safety representative for a work group of workers carrying out work at that workplace; or

(b)

5 or more workers at that workplace.

(2)

The PCBU must, within 2 months of receiving a request under subsection (1), decide whether to establish a health and safety committee for the business or undertaking or part of the business or undertaking.

(3)

Despite subsection (2), a PCBU is not required to decide whether to establish a health and safety committee if the work of the business or undertaking

(a)

is carried out by fewer than 20 workers; and

(b)

is not within the scope of any prescribed high-risk sector or industry.

(4)

The PCBU may refuse a request made under subsection (1) if the PCBU is satisfied that existing worker participation practices at the workplace sufficiently meet the requirements of section 64.

(5)

The PCBU must give written notice of its decision under subsection (2)

(a)

as soon as practicable to workers who the PCBU considers have an interest in the decision; and

(b)

no later than any prescribed time.

(6)

If the PCBU refuses a request made under subsection (1), the notice must include

(a)

the reasons for the decision; and

(b)

a statement that workers may raise the refusal as an issue under subpart 7 of this Part.

(7)

A PCBU at a workplace may establish a health and safety committee for the workplace or part of the workplace on the PCBU’s own initiative.

(8)

A person who contravenes subsection (2) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: Model Work Health and Safety Act (Aust) s 75

Further provisions relating to health and safety representatives, health and safety committees, and health and safety in mining sector

86B Further provisions relating to health and safety representatives and health and safety committees

(1)

Part 1 of Schedule 1A contains further provisions that apply to health and safety representatives for a business or undertaking.

(2)

Part 2 of Schedule 1A contains further provisions that apply to health and safety committees for a business or undertaking.

87 Further provisions relating to mining sector

Schedule 2 contains further provisions that apply to health and safety representatives and other matters in the mining sector.

Subpart 3Health and safety committees

88 Health and safety committees

(1)

A PCBU at a workplace must establish a health and safety committee for the business or undertaking or part of the business or undertaking

(a)

within 2 months after being requested to do so by

(i)

a health and safety representative for a work group of workers carrying out work at that workplace; or

(ii)

5 or more workers at that workplace; or

(b)

if required by regulations, within the time prescribed by regulations.

(2)

A PCBU at a workplace may establish a health and safety committee for the workplace or part of the workplace on the PCBU’s own initiative.

(3)

A person who contravenes subsection (1) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: Model Work Health and Safety Act (Aust) s 75

89 Functions of health and safety committee

The functions of a health and safety committee are

(a)

to facilitate co-operation between the PCBU and workers in instigating, developing, and carrying out measures designed to ensure the workers’ health and safety at work; and

(b)

to assist in developing any standards, rules, policies, or procedures relating to health and safety that are to be followed or complied with at the workplace; and

(c)

to make recommendations relating to work health and safety; and

(d)

to perform any other functions that are

(i)

agreed between the PCBU and the committee; or

(ii)

prescribed by regulations.

Compare: Model Work Health and Safety Act (Aust) s 77

90 Obligations of PCBU in relation to health and safety committees

(1)

The PCBU must

(a)

consult, so far as is reasonably practicable, about health and safety matters with a health and safety committee; and

(b)

allow each member of a health and safety committee to spend as much time as is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee; and

(c)

provide the health and safety committee with any information that is necessary to enable the committee to perform its functions, including information relating to

(i)

hazards (including associated risks) at the workplace; and

(ii)

the health and safety of the workers at the workplace.

(2)

If a health and safety committee makes a recommendation regarding work health and safety, the PCBU must, within a reasonable time,

(a)

adopt the recommendation; or

(b)

provide a written statement to the health and safety committee setting out the reasons for not adopting the recommendation.

(3)

Any time that a member of a health and safety committee spends for the purposes set out in subsection (1) must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(4)

Despite subsection (1)(c), the PCBU must not allow the health and safety committee to have access to any personal information concerning a worker without the worker’s consent unless the information is in a form that

(a)

does not identify the worker; and

(b)

could not reasonably be expected to identify the worker.

(5)

A person who contravenes subsection (1), (2), or (4) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: 1996 No 96 s 19B(4); Model Work Health and Safety Act (Aust) s 79

91 Information to be used by health and safety committee for health and safety purposes only

(1)

This section applies to any information obtained by a member of a health and safety committee in the performance of the committee’s functions under this Act.

(2)

The member may

(a)

disclose or use the information,

(i)

if the information is about a person, only with the person’s consent:

(ii)

only to the extent necessary for the performance of the health and safety committee’s functions under this Act:

(b)

disclose the information

(i)

to the regulator or a person authorised by the regulator only if the member reasonably believes the disclosure is necessary for administering, monitoring, or enforcing compliance with the relevant health and safety legislation:

(ii)

only if the disclosure is authorised or required by law.

(3)

In subsection (2), disclose includes to give any person access to information.

Compare: 1992 No 96 s 19ZN

Subpart 4—Provisional improvement notices

92 Provisional improvement notices

(1)

This section applies if a health and safety representative reasonably believes that a person is contravening, or is likely to contravene, a provision of this Act or regulations.

(2)

The health and safety representative may issue a provisional improvement notice requiring the person to—

(a)

remedy the contravention; or

(b)

prevent a likely contravention from occurring; or

(c)

remedy the things or activities causing the contravention or likely to cause a contravention.

(3)

However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.

(4)

A health and safety representative must not issue a provisional improvement notice in relation to a matter if an inspector has already issued an improvement notice or a prohibition notice in relation to the same matter.

(5)

If a health and safety representative issues a provisional improvement notice, he or she must provide a copy of that notice to the PCBU of the work group that the heath and safety representative represents, as soon as practicable.

Compare: Model Work Health and Safety Act (Aust) s 90

93 Training requirements relating to issue of provisional improvement notice

A health and safety representative must not issue a provisional improvement notice unless the representative has—

(a)

completed training prescribed by or under regulations; or

(b)

previously completed that training when acting as a health and safety representative for another work group.

Compare: Model Work Health and Safety Act (Aust) s 90(4)

94 Requirements relating to provisional improvement notices

(1)

A provisional improvement notice must be in writing.

(2)

A provisional improvement notice must state—

(a)

that the health and safety representative believes the person is contravening, or is likely to contravene, a provision of this Act or regulations (as the case may be); and

(b)

the provision the representative believes is being, or is likely to be, contravened; and

(c)

briefly, how the provision is being, or is likely to be, contravened; and

(d)

the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention.

Compare: Model Work Health and Safety Act (Aust) ss 91, 92

95 Provisional improvement notice may include recommendations to remedy contravention

(1)

A provisional improvement notice may include recommendations relating to—

(a)

the measures to be taken to remedy the contravention or prevent the likely contravention; or

(b)

the things or activities causing the contravention, or likely to cause a contravention, to which the notice relates.

(2)

A recommendation included in a provisional improvement notice may—

(a)

refer to an approved code of practice:

(b)

offer the person to whom it is issued a choice of ways in which to remedy the contravention or prevent the likely contravention.

(3)

Subsection (2) does not limit subsection (1).

Compare: Model Work Health and Safety Act (Aust) s 93

96 Minor changes to provisional improvement notice

A health and safety representative may make minor changes to a provisional improvement notice—

(a)

for clarification; or

(b)

to correct errors or references; or

(c)

to reflect changes of address or other circumstances.

Compare: Model Work Health and Safety Act (Aust) s 94

97 Issue of provisional improvement notice

A provisional improvement notice must be issued to a person in accordance with section 138.

Compare: Model Work Health and Safety Act (Aust) s 95

98 Cancellation of provisional improvement notice

(1)

The health and safety representative may, at any time, cancel a provisional improvement notice issued to a person by written notice given to that person.

(2)

A cancellation must be notified in the same way that the notice was issued.

Compare: Model Work Health and Safety Act (Aust) s 96

99 Display of provisional improvement notice

(1)

A person to whom a provisional improvement notice is issued must, as soon as practicable, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.

(2)

A person must not intentionally remove, destroy, damage, or deface a notice displayed under subsection (1) during the period that the notice is in force.

(3)

A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: Model Work Health and Safety Act (Aust) s 97

100 Irregularities or defects in notice

A provisional improvement notice is not invalid merely because of—

(a)

any defect, irregularity, omission, or want of form unless the defect, irregularity, omission, or want of form causes or is likely to cause substantial injustice; or

(b)

a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person.

Compare: Model Work Health and Safety Act (Aust) s 98

101 Offence relating to breach of provisional improvement notice

(1)

This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 102 to review the notice.

(2)

The person must comply with the provisional improvement notice within the time specified in the notice by remedying the contravention or avoiding any likely contravention (as the case may be).

(3)

For the purposes of subsection (2), the person may comply with the notice in a different way from that directed by the health and safety representative as long as the person substantially complies with the requirement to remedy the contravention or avoid any likely contravention.

(4)

A person who contravenes subsection (2) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $50,000:

(b)

for any other person, to a fine not exceeding $250,000.

Compare: Model Work Health and Safety Act (Aust) s 99

102 Review of provisional improvement notice

(1)

A person specified in subsection (2) may, within 7 days after a provisional improvement notice is issued to the person, ask the regulator to appoint an inspector to review the notice.

(2)

The persons are—

(a)

the person to whom the notice was issued; and

(b)

if the person is a worker, the PCBU at the workplace at which the worker carries out work.

(3)

If a request is made under subsection (1), the provisional improvement notice is stayed until the inspector makes a decision on the review.

Compare: Model Work Health and Safety Act (Aust) s 100

103 Regulator must ensure inspector reviews notice

(1)

The regulator must ensure that, as soon as practicable after a request is made under section 102, an inspector—

(a)

reviews the provisional improvement notice; and

(b)

inquires into the circumstances that are the subject of the provisional improvement notice.

(2)

An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired.

Compare: Model Work Health and Safety Act (Aust) s 101

104 Decision of inspector on review of provisional improvement notice

(1)

After reviewing the provisional improvement notice, the inspector must—

(a)

confirm the provisional improvement notice; or

(b)

confirm the provisional improvement notice with changes; or

(c)

cancel the provisional improvement notice.

(2)

The inspector must give a copy of his or her decision in accordance with section 138 to—

(a)

the applicant for the review of the provisional improvement notice; and

(b)

the health and safety representative who issued the notice.

(3)

A provisional improvement notice that is confirmed (with or without changes) by an inspector must be treated as an improvement notice issued by the inspector under this Act.

Compare: Model Work Health and Safety Act (Aust) s 102

Subpart 5—Right to cease or direct cessation of unsafe work

105 Meaning of cease work

In this subpart, unless the context otherwise requires, cease work means—

(a)

to cease or refuse to carry out work under section 106; or

(b)

to cease work on a direction under section 107.

Compare: Model Work Health and Safety Act (Aust) s 83

106 Right of worker to cease unsafe work

(1)

A worker may cease, or refuse to carry out, work if the worker believes that carrying out the work would expose the worker, or any other person, to a serious risk to the worker’s or other person’s health or safety arising from an immediate or imminent exposure to a hazard.

(2)

A worker may continue to refuse to carry out the work if—

(a)

the worker attempts to resolve the matter with the PCBU as soon as practicable after first refusing to do the work; and

(b)

the matter is not resolved; and

(c)

the worker believes on reasonable grounds that carrying out the work would expose the worker or any other person to a serious risk to the worker’s or other person’s health or safety arising from an immediate or imminent exposure to a hazard.

(3)

Without limiting subsection (2)(c), reasonable grounds exist if a health and safety representative has advised the worker that carrying out the work would expose the worker or any other person to a serious risk to the worker’s or other person’s health or safety arising from an immediate or imminent exposure to a hazard.

(4)

A worker who ceases work under subsection (1) must, as soon as practicable, notify the PCBU that the worker has ceased work.

(5)

Subsection (1) does not authorise a worker to refuse to do work that, because of its nature, inherently or usually carries an understood risk to the worker’s health and safety, unless that risk has materially increased beyond the understood risk.

(6)

To avoid doubt, nothing in this section limits or affects an employee’s right to refuse to do work under any other enactment or the general law.

Compare: 1992 No 96 s 28A; Model Work Health and Safety Act (Aust) ss 84, 86

107 Health and safety representative may direct unsafe work to cease

(1)

A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative reasonably believes that carrying out the work would expose the worker, or any other person, to a serious risk to the worker’s or other person’s health or safety, arising from an immediate or imminent exposure to a hazard.

(2)

The health and safety representative must not give a direction under subsection (1) unless the matter is not resolved within a reasonable time after consultation about the matter with the PCBU for whom the workers are carrying out work.

(3)

Despite subsection (2), the health and safety representative may direct the worker to cease work without carrying out that consultation if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

(4)

The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).

(5)

The health and safety representative must immediately inform the PCBU of any direction given by the health and safety representative to a worker under subsection (1).

(6)

Subsection (1) does not authorise a health and safety representative to give a direction to a worker to cease work that, because of its nature, inherently or usually carries an understood risk to health and safety unless the risk has materially increased beyond the understood risk.

(7)

A health and safety representative must not give a direction to cease work under subsection (1) unless the representative has

(a)

completed training prescribed by or under regulations; or

(b)

previously completed the training when acting as a health and safety representative for another work group.

Compare: 1992 No 96 s 28A; Model Work Health and Safety Act (Aust) s 85(1), (2), (4), (5)

107A Training requirements relating to giving direction to cease work

A health and safety representative must not give a direction to cease work unless the representative has

(a)

completed training prescribed by or under regulations; or

(b)

previously completed that training when acting as a health and safety representative for another work group.

Compare: Model Work Health and Safety Act (Aust) s 85(6)

108 Alternative work

(1)

If a worker ceases work, the PCBU may direct the worker to carry out alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties.

(2)

A worker who ceases work must remain available to carry out alternative work as directed by the PCBU under subsection (1).

(3)

For the purposes of this section, alternative work means,—

(a)

for a worker who is an employee, work within the scope of the person’s employment agreement:

(b)

for a worker who is not an employee, work within the scope of the worker’s contract.

(4)

In addition, a worker may agree (but cannot be directed) to do other work that is safe and appropriate for the worker.

Compare: 1992 No 96 s 28A(6); Model Work Health and Safety Act (Aust) s 87

109 Regulator may assist to resolve issues relating to cessation of work

(1)

The health and safety representative, the PCBU, or the worker may ask the regulator to assist in resolving the issue relating to the cessation of work.

(2)

If the regulator agrees to assist in resolving an issue relating to the cessation of work, the regulator must provide the assistance as soon as practicable after agreeing to assist.

Compare: Model Work Health and Safety Act (Aust) s 89

Subpart 6—Prohibition of adverse, coercive, or misleading conduct

110 Meaning of adverse conduct

(1)

For the purposes of this subpart, a person engages in adverse conduct if—

(a)

the person—

(i)

dismisses a worker who is an employee; or

(ii)

terminates a contract for services with a worker; or

(iii)

refuses or omits to employ or engage any person on work of any description that is available and for which that person is qualified; or

(iv)

refuses or omits to offer or afford to the worker the same terms of employment or engagement, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other workers of the same or substantially similar qualifications, experience, or skills who are employed or engaged in the same or substantially similar circumstances; or

(v)

subjects the worker to any detriment, in circumstances in which other workers employed or engaged by the person on work of that description are not or would not be subjected to such detriment; or

(vi)

retires the worker, or requires or causes the worker to retire or resign or terminate a contract for services; or

(b)

the person terminates a commercial arrangement with another person; or

(c)

the person refuses or fails to enter into a commercial arrangement with another person.

(2)

For the purposes of this subpart, a person also engages in adverse conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action.

(3)

For the purposes of subsection (1)(a)(v), detriment includes anything that has a detrimental effect on the worker’s employment or engagement, job performance, or job satisfaction.

Compare: Model Work Health and Safety Act (Aust) s 105

111 Meaning of prohibited health and safety reason

For the purposes of this subpart, adverse conduct is engaged in for a prohibited health and safety reason if it is engaged in because the worker or prospective worker or the person referred to in section 110(1)(b) or (c) (as the case requires)—

(a)

is, has been, or proposes to be a health and safety representative or a member of a health and safety committee; or

(b)

undertakes, has undertaken, or proposes to undertake another role under this Act; or

(c)

performs, has performed, or proposes to perform a function—

(i)

as a health and safety representative or as a member of a health and safety committee; or

(ii)

under this Act; or

(iii)

under this Act in a particular way; or

(d)

refrains from, has refrained from, or proposes to refrain from performing a function under this Act or under this Act in a particular way; or

(e)

exercises, has exercised, or proposes to exercise a power—

(i)

as a health and safety representative; or

(ii)

under this Act; or

(iii)

under this Act in a particular way; or

(f)

refrains from, has refrained from, or proposes to refrain from exercising a power under this Act or under this Act in a particular way; or

(g)

assists, has assisted, or proposes to assist, or gives, has given, or proposes to give, any information to any person performing a function or exercising a power under this Act; or

(h)

raises, has raised, or proposes to raise an issue or concern about health and safety with—

(i)

the PCBU; or

(ii)

the regulator or an inspector; or

(iii)

a worker’s representative; or

(iv)

another worker; or

(v)

a health and safety representative; or

(vi)

a member of a health and safety committee; or

(vii)

any other person who has a duty under this Act in relation to the matter; or

(viii)

any other person performing a function or exercising a power under this Act; or

(i)

is involved in, has been involved in, or proposes to be involved in resolving a health and safety issue under this Act; or

(j)

is taking action, has taken action, or proposes to take action to seek compliance by any person with any duty or obligation under this Act; or

(k)

has ceased work under section 106 or 107.

Compare: Model Work Health and Safety Act (Aust) s 106

112 Prohibition on adverse conduct

(1)

A person must not engage in adverse conduct for a prohibited health and safety reason.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $100,000:

(b)

for any other person, to a fine not exceeding $500,000.

(3)

However, a person commits an offence under subsection (1) only if the prohibited health and safety reason was the dominant reason for the adverse conduct.

Compare: Model Work Health and Safety Act (Aust) s 104

113 Prohibition on requesting, instructing, inducing, encouraging, authorising, or assisting adverse conduct

(1)

A person must not request, instruct, induce, encourage, authorise, or assist another person to engage in adverse conduct in contravention of section 112.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $100,000:

(b)

for any other person, to a fine not exceeding $500,000.

Compare: Model Work Health and Safety Act (Aust) s 107

114 Prohibition on coercion or inducement

(1)

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person,—

(a)

to perform or not to perform, or to propose to perform or not to perform, a function under this Act or a function under this Act in a particular way; or

(b)

to exercise or not to exercise, or propose to exercise or not to exercise, a power under this Act or a power under this Act in a particular way; or

(c)

to refrain from seeking, or continuing to undertake, a role under this Act.

(2)

For the purposes of subsection (1), the following are not to be treated as an action with intent to coerce or induce a person:

(a)

a reasonable direction given by a constable:

(b)

a reasonable direction given by an emergency services worker in an emergency.

(3)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $100,000:

(b)

for any other person, to a fine not exceeding $500,000.

(4)

In this section,—

emergency services worker includes a person who has a legal duty (under any enactment, employment agreement, other binding agreement or arrangement, or other source) to, at the scene of an emergency, provide 1 or more of the following services:

(a)

ambulance services, first aid, or medical or paramedical care:

(b)

services provided by or on behalf of a fire brigade (within the meaning of section 2(1) of the Fire Service Act 1975) to save life or property

organise or take, or threaten to organise or take, any action against a person includes not taking a particular action or threatening not to take a particular action in relation to that person.

Compare: Model Work Health and Safety Act (Aust) s 108

115 Misrepresentation

(1)

A person must not knowingly or recklessly make a false or misleading representation to another person about that other person’s—

(a)

rights or obligations under this Act; or

(b)

ability to initiate, or participate in, a process or proceedings under this Act; or

(c)

ability to make a complaint or an inquiry to a person or body empowered under this Act to seek compliance with this Act.

(2)

Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

(3)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $100,000:

(b)

for any other person, to a fine not exceeding $500,000.

Compare: Model Work Health and Safety Act (Aust) s 110 109

116 Proof of adverse conduct

(1)

This section applies if, in proceedings for an offence of contravening section 112 or 113, the prosecution—

(a)

proves that adverse conduct was engaged in; and

(b)

proves that a prohibited health and safety reason existed at the time the adverse conduct was engaged in; and

(c)

adduces evidence that the adverse conduct was engaged in for a prohibited health and safety reason.

(2)

The prohibited health and safety reason alleged for the adverse conduct is presumed to be the dominant reason for that conduct unless the defendant proves that the reason was not the dominant reason for the conduct.

Compare: Model Work Health and Safety Act (Aust) s 110(1), (2)

Civil proceedings in relation to adverse or coercive conduct

117 Civil proceedings in relation to engaging in or inducing adverse or coercive conduct

(1)

An eligible person may apply to a District Court for 1 or more orders specified in subsection (2) in relation to a person who has—

(a)

engaged in adverse conduct for a prohibited health and safety reason; or

(b)

requested, instructed, induced, encouraged, authorised, or assisted another person to engage in adverse conduct for a prohibited health and safety reason; or

(c)

breached section 114 (which relates to the prohibition on coercion or inducement).

(2)

The orders are—

(a)

an injunction restraining the person from engaging in conduct described in subsection (1); or

(b)

for conduct referred to in subsection (1)(a) or (b), an order that the person pay compensation that the court considers appropriate to the person who was the subject of the adverse conduct; or

(c)

any other order that the court considers appropriate.

(3)

The court may grant an interim injunction restraining a person from engaging in conduct described in subsection (1) if, in its opinion, it is desirable to do so.

(4)

For the purposes of this section, a person may be found to have engaged in adverse conduct for a prohibited health and safety reason only if a prohibited health and safety reason was a substantial reason for the conduct.

(5)

For the purposes of this section, eligible person means—

(a)

a person affected by conduct described in subsection (1), or the person’s representative; but

(b)

does not include an employee (or that employee’s representative) in relation to conduct of that employee’s employer or former employer.

Compare: Model Work Health and Safety Act (Aust) s 112

118 Procedure for civil proceedings for adverse conduct

(1)

A proceeding brought under section 117 must be commenced not more than 1 year after the date on which the action or conduct occurred or came to the notice of the eligible person, whichever is the later.

(2)

In a proceeding under section 117 in relation to conduct referred to in section 117(1)(a) or (b), if a prohibited health and safety reason is alleged for adverse conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(3)

It is a defence to a proceeding under section 117 in relation to conduct referred to in section 117(1)(a) or (b) if the defendant proves that—

(a)

the conduct was reasonable in the circumstances; and

(b)

a substantial reason for the conduct was to comply with relevant health and safety legislation.

Compare: Model Work Health and Safety Act (Aust) s 113

General provisions

119 General provisions

(1)

Subject to subsections (2) and (3), the bringing of a prosecution under section 112, 113, or 114 does not prevent, in respect of the same conduct,—

(a)

the bringing of a civil proceeding under section 117; or

(b)

the raising of a personal grievance under the Employment Relations Act 2000.

(2)

If a District Court orders reparation to be paid under the Sentencing Act 2002 following conviction of a person under section 112, 113, or 114,—

(a)

the court may not order compensation to be payable in respect of the same losses in a civil proceeding under section 117:

(b)

the Employment Relations Authority or Employment Court may not order compensation to be payable in respect of the same losses in relation to a personal grievance under the Employment Relations Act 2000.

(3)

If, in respect of an action referred to in subsection (1)(a) or (b), the court or the Employment Relations Authority or Employment Court orders compensation to be payable for the conduct, the same losses cannot be the subject of an order of reparation under the Sentencing Act 2002.

Compare: Model Work Health and Safety Act (Aust) s 114

Subpart 7—Issue resolution

120 Resolution of work health and safety issues

If an issue about work health and safety arises at a workplace, the parties to the issue (including any representative of the parties) must make reasonable efforts to achieve a timely, final, and effective resolution of the issue in accordance with any relevant procedure for resolving work health and safety issues.

Compare: Model Work Health and Safety Act (Aust) ss s 81

121 Regulator may appoint inspector to assist parties in resolving issue

(1)

This section applies if a work health and safety issue has not been resolved after reasonable efforts have been made under section 120 to achieve a resolution of the issue.

(2)

A party to the issue may ask the regulator to appoint an inspector to assist the parties in resolving the issue.

(3)

The If the regulator agrees to appoint an inspector, the inspector may, after providing assistance to the parties in accordance with subsection (2), decide the issue if it is of a type specified in regulations.

Compare: Model Work Health and Safety Act (Aust) s 82(1), (2)

Part 4 Enforcement and other matters

122 Meaning of notice

In this Part, notice, unless the context otherwise requires,—

(a)

means the following notices issued under this Act:

(i)

an improvement notice:

(ii)

a prohibition notice:

(iii)

a non-disturbance notice:

(iv)

a suspension notice:

(b)

includes a subsequent notice.

Subpart 1—Enforcement measures

Improvement notices

123 Power to issue improvement notices

(1)

This section applies if an inspector reasonably believes that a person—

(a)

is contravening a provision of this Act or regulations; or

(b)

is likely to contravene this Act or regulations.

(2)

The inspector may issue an improvement notice requiring the person to—

(a)

remedy the contravention; or

(b)

prevent a likely contravention from occurring; or

(c)

remedy the things or activities causing the contravention or likely to cause a contravention.

Compare: 1992 No 96 s 39(1), (2); Model Work Health and Safety Act (Aust) s 191

124 Content of improvement notices

(1)

An improvement notice must state—

(a)

that the inspector believes the person—

(i)

is contravening a provision of this Act or regulations; or

(ii)

is likely to contravene this Act or regulations; and

(b)

the provision the inspector believes is being, or is likely to be, contravened; and

(c)

briefly, how the provision is being, or is likely to be, contravened; and

(d)

the a reasonable period within which the person is required to remedy—

(i)

the contravention or likely contravention; or

(ii)

the things or activities causing the contravention or likely to cause a contravention.

(2)

An improvement notice may include recommendations concerning—

(a)

the measures that could be taken to remedy the contravention, or prevent the likely contravention, to which the notice relates; or

(b)

the things or activities causing the contravention, or likely to cause a contravention, to which the notice relates.

Compare: 1992 No 96 s 39(3), (4); Model Work Health and Safety Act (Aust) s 192

125 Compliance with improvement notice

(1)

A person who has been issued with an improvement notice must comply with the notice within the period specified in the notice.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $50,000:

(b)

for any other person, to a fine not exceeding $250,000.

(3)

It is not an offence to fail to comply with recommendations in an improvement notice.

Compare: 1992 No 96 s 39(5); Model Work Health and Safety Act (Aust) s 193

126 Extension of time for compliance with improvement notices

(1)

This section applies if a person has been issued with an improvement notice.

(2)

An inspector may, by written notice given to the person, extend the compliance period for the improvement notice.

(3)

However, the inspector may extend the compliance period only if the period has not ended.

(4)

In this section, compliance period

(a)

means the period stated in the improvement notice under section 125(1); and

(b)

includes any extension of that period under this section.

Compare: Model Work Health and Safety Act (Aust) s 194

Prohibition notices

127 Power to issue prohibition notice

(1)

This section applies if,

(a)

in respect of a workplace that is required to be authorised under subpart 5 of Part 2 or a mining operation (as defined in clause 2 of Schedule 2), an inspector

(i)

believes that there is a serious risk to the health and safety of any person because of a failure to comply with this Act or regulations; or

(ii)

believes on reasonable grounds that it is likely that a person will fail to comply with this Act or regulations, and that failure would be likely to cause a serious risk to the health and safety of any person; or

(b)

an inspector reasonably believes that

(i)

an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard; or

(ii)

an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard.

(1)

This section applies if,

(a)

an inspector reasonably believes that

(i)

an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard; or

(ii)

an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard; or

(b)

in respect of any workplace, plant or substance, or work that is required to be authorised under subpart 1A of Part 5 or a mining operation (as defined in clause 2 of Schedule 2), an inspector

(i)

believes that there is a serious risk to the health and safety of any person because of a failure to comply with this Act or regulations; or

(ii)

believes on reasonable grounds that it is likely that a person will fail to comply with this Act or regulations, and that failure would be likely to cause a serious risk to the health and safety of any person.

(2)

The inspector may give a person who has control over the matter or activity a direction prohibiting the carrying on of the matter or activity, or the carrying on of the matter or activity in a specified way, until an inspector is satisfied that the matter or activity that gives or will give rise to the risk has been remedied.

(3)

The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.

Compare: 1992 No 96 s 41(1); Model Work Health and Safety Act (Aust) s 195

128 Content of prohibition notice

(1)

A prohibition notice must—

(a)

state that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief; and

(b)

describe briefly the matter or activity that the inspector believes gives rise or will give rise to the risk; and

(c)

in respect of a notice to which section 127(1)(b) applies, specify the provision of this Act or regulations that the inspector believes is being, or is likely to be, contravened by that matter or activity.

(2)

A prohibition notice may include recommendations on the measures that could be taken to remedy the risk, activities, or matters to which the notice relates, or the contravention or likely contravention referred to in subsection (1)(c).

(3)

Without limiting section 127, a prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying 1 or more of the following:

(a)

a workplace, or part of a workplace, at which the activity is not to be carried out:

(b)

anything that is not to be used in connection with the activity:

(c)

any procedure that is not to be followed in connection with the activity.

Compare: 1992 No 96 s 41(2), (4); Model Work Health and Safety Act (Aust) s 196

129 Compliance with prohibition notice

(1)

A person to whom a direction is given under section 127(2) or to whom a prohibition notice is issued must comply with the direction or notice.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $100,000:

(b)

for any other person, to a fine not exceeding $500,000.

(3)

It is not an offence to fail to comply with recommendations in a prohibition notice.

Compare: 1992 No 96 s 43; Model Work Health and Safety Act (Aust) s 197

Non-disturbance notices

130 Power to issue non-disturbance notice

An inspector may issue a non-disturbance notice to a person with management or control of PCBU who manages or controls a workplace if the inspector reasonably believes that it is necessary to do so to facilitate the exercise of his or her compliance powers.

Compare: Model Work Health and Safety Act (Aust) s 198

131 Content of non-disturbance notice

(1)

A non-disturbance notice may require a person to—

(a)

preserve the site at which a notifiable event has occurred for a specified period; or

(b)

prevent the disturbance of a particular site (including the operation of plant) in other circumstances for a specified period that is reasonable in the circumstances.

(2)

A non-disturbance notice must specify the period (not exceeding 7 days) for which it applies and set out—

(a)

the obligations of the person to whom the notice is issued; and

(b)

the measures to be taken to preserve a site or prevent the disturbance of a site; and

(c)

the penalty for contravening the notice.

(3)

In subsection (1), a reference to a site includes any plant, substance, structure, or thing associated with the site.

(4)

A non-disturbance notice does not prevent any action—

(a)

to assist an injured person; or

(b)

to remove a deceased person; or

(c)

that is essential to make the site safe or to prevent a further notifiable event; or

(d)

done by, or under direction of, a constable acting in the execution of his or her duties; or

(e)

for which an inspector or the regulator has given permission.

Compare: Model Work Health and Safety Act (Aust) s 199

132 Compliance with non-disturbance notice

(1)

A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $50,000:

(b)

for any other person, to a fine not exceeding $250,000.

Compare: Model Work Health and Safety Act (Aust) s 200

133 Issue of subsequent non-disturbance notices

(1)

If an inspector considers it necessary to do so, he or she may issue 1 or more subsequent non-disturbance notices to a person, whether before or after the expiry of the previous notice.

(2)

A subsequent non-disturbance notice issued under subsection (1) must comply with section 131 (which deals with the content of non-disturbance notices).

Compare: Model Work Health and Safety Act (Aust) s 201

General provisions

134 General provisions relating to notices

(1)

A notice must be in writing.

(2)

A notice may be addressed to any person under the person’s legal name or usual business name or style.

Compare: 1992 No 96 s 44; Model Work Health and Safety Act (Aust) s 203

135 Changes to notice by inspector

An inspector or a health and safety medical practitioner (as the case may be) may make minor changes to a notice—

(a)

for clarification; or

(b)

to correct errors or references; or

(c)

to reflect changes of address or other circumstances.

Compare: Model Work Health and Safety Act (Aust) s 206

136 Regulator may vary or cancel notice

Except as provided in section 135, a notice issued by an inspector or a health and safety medical practitioner may be varied or cancelled only by the regulator.

Compare: Model Work Health and Safety Act (Aust) s 207

137 Formal irregularities or defects in notice

A notice is not invalid merely because of—

(a)

any defect, irregularity, omission, or want of form in the notice unless the defect, irregularity, omission, or want of form causes or is likely to cause substantial injustice a miscarriage of justice; or

(b)

a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued or given to the person in accordance with section 138.

Compare: 1992 No 96 s 44; Model Work Health and Safety Act (Aust) s 208

138 Issue and giving of notice

(1)

A notice may be issued or given to a person—

(a)

by delivering it personally to the person or sending it by post, fax, or electronic transmission to the person’s usual or last known place of residence or business; or

(b)

by leaving it for the person at the person’s usual or last known place of residence or business with a person who appears to be 16 years or over and who appears to reside or work there; or

(c)

by leaving it for the person at the workplace to which the notice relates with a person who is or appears to be the person with management or control in charge of the workplace; or

(d)

in a prescribed manner.

(2)

Regulations may prescribe the steps a person to whom a notice is issued must take to bring it to the attention of other persons.

Compare: 1992 No 96 ss 40, 42; Model Work Health and Safety Act (Aust) s 209

139 Display of notice at workplace by person issued with notice

(1)

A person to whom a notice (other than a suspension notice) is issued must, as soon as possible practicable, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.

(2)

A person must not intentionally remove, destroy, damage, or deface a notice displayed under subsection (1) while the notice is in force.

(3)

A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: Model Work Health and Safety Act (Aust) s 210

139A Inspector may display notice

(1)

An inspector who issues a notice under section 138 may, either before or after issuing the notice, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which the work is being carried out that is affected by the notice.

(2)

A person must not intentionally remove, destroy, damage, or deface a notice displayed under subsection (1) while the notice is in force.

(3)

A person who contravenes subsection (2) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $5,000:

(b)

for any other person, to a fine not exceeding $25,000.

Compare: 1996 No 96 s 42(1)

Subpart 2—Remedial action

140 When regulator may carry out remedial action

(1)

This section applies if a person to whom a prohibition notice is issued fails to take reasonable steps to comply with the notice.

(2)

The regulator may take any remedial action it believes reasonable to make the workplace or situation safe after giving written notice to the person to whom the prohibition notice was issued of—

(a)

the regulator’s intention to take that action; and

(b)

the person’s liability for the costs of that action.

Compare: Model Work Health and Safety Act (Aust) s 211

141 Power of regulator to take other remedial action

(1)

This section applies if the regulator reasonably believes that—

(a)

circumstances in which a prohibition notice can be issued exist; and

(b)

a prohibition notice cannot be issued at a workplace because, after taking reasonable steps, the person with management or control of to whom the notice could be issued the workplace cannot be found.

(2)

The regulator may take any remedial action necessary to make the workplace safe.

Compare: Model Work Health and Safety Act (Aust) s 212

142 Costs of remedial or other action

The regulator may recover as a debt due to the regulator the reasonable costs of any remedial action taken under—

(a)

section 140 from the person to whom a prohibition notice is issued; or

(b)

section 141 from any person to whom a prohibition notice could have been issued in relation to the matter.

Compare: Model Work Health and Safety Act (Aust) s 213

Subpart 3Order relating to Civil proceedings for non-compliance with notices

143 Order relating to Civil proceedings relating to non-compliance with notice

(1)

On an application by the regulator, a District Court may make an order—

(a)

compelling a person to comply with a notice; or

(b)

restraining a person from contravening a notice.

(2)

The court may make an order—

(a)

under subsection (1)(a) if it is satisfied that the person has refused or failed to comply with a notice:

(b)

under subsection (1)(b) if it is satisfied that the person has contravened, is contravening, or is likely to contravene a notice.

(3)

The court may make an order under subsection (1)

(a)

whether or not proceedings have been brought for an offence against this Act or regulations in connection with any matter in relation to which the notice was issued; and

(b)

whether or not the compliance period for the notice has expired.

Compare: Model Work Health and Safety Act (Aust) s 215

Subpart 4—Enforceable undertakings

144 Regulator may accept enforceable undertakings

(1)

The regulator may accept an enforceable undertaking given by a person in writing in connection with a matter relating to a contravention or an alleged contravention by the person of this Act or regulations.

(2)

The regulator may must not accept an enforceable undertaking under subsection (1) if the regulator believes that the contravention or alleged contravention would amount to an offence against section 42.

(3)

The giving of an enforceable undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates.

Compare: Model Work Health and Safety Act (Aust) s 216

145 Notice of decision and reasons for decision

(1)

The regulator must give the person seeking to make an enforceable undertaking written notice of—

(a)

its decision to accept or reject the undertaking; and

(b)

the reasons for the decision.

(2)

The regulator must publish, on an Internet site maintained by or on behalf of the regulator, notice of a decision to accept an enforceable undertaking and the reasons for that decision.

Compare: Model Work Health and Safety Act (Aust) s 217

146 When enforceable undertaking is enforceable

An enforceable undertaking takes effect and becomes enforceable when the regulator’s decision to accept the undertaking is given to the person who made the undertaking, or at any later date specified by the regulator.

Compare: Model Work Health and Safety Act (Aust) s 218

147 Compliance with enforceable undertaking

(1)

A person must not contravene an enforceable undertaking given by that person that is in force.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $50,000:

(b)

for any other person, to a fine not exceeding $250,000.

Compare: Model Work Health and Safety Act (Aust) s 219

148 Contravention of enforceable undertaking

(1)

The regulator may apply to a District Court for an order if a person contravenes an enforceable undertaking.

(2)

If the court is satisfied that the person who made the enforceable undertaking has contravened the undertaking, the court, in addition to imposing any penalty, may make 1 or both of the following orders:

(a)

an order directing the person to comply with the undertaking:

(b)

an order discharging the undertaking.

(3)

In addition to the orders referred to in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including orders directing the person to pay to the regulator—

(a)

the costs of the proceedings; and

(b)

the reasonable costs of the regulator in monitoring compliance with the enforceable undertaking in the future.

(4)

All costs received under subsection (3)(b) must be paid into a Crown Bank Account.

(5)

This section does not prevent proceedings being brought for the contravention or alleged contravention of this Act or regulations to which the enforceable undertaking relates.

Compare: Model Work Health and Safety Act (Aust) s 220

149 Withdrawal or variation of enforceable undertaking

(1)

A person who has given an enforceable undertaking may at any time, with the written agreement of the regulator,—

(a)

withdraw the undertaking; or

(b)

vary the undertaking.

(2)

However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Act or regulations.

(3)

The regulator must publish on an Internet site maintained by or on behalf of the regulator notice of the withdrawal or variation of an enforceable undertaking.

Compare: Model Work Health and Safety Act (Aust) s 221

150 Proceedings for alleged contravention

(1)

Subject to this section, no proceedings (whether civil or criminal) for a contravention or an alleged contravention of this Act or regulations may be brought against a person if an enforceable undertaking is in effect in relation to that contravention.

(2)

No proceedings may be brought for a contravention or an alleged contravention of this Act or regulations against a person who—

(a)

has made an enforceable undertaking in relation to that contravention; and

(b)

has completely discharged the enforceable undertaking.

(3)

The regulator may accept an enforceable undertaking in relation to a contravention or an alleged contravention before proceedings in relation to that contravention have been completed.

(4)

If the regulator accepts an enforceable undertaking before the proceedings are completed, the regulator must take all reasonable steps to have the proceedings discontinued as soon as possible practicable.

Compare: Model Work Health and Safety Act (Aust) s 222

Subpart 5—Reviews and appeals

151 Interpretation

In this subpart, unless the context otherwise requires,—

appealable decision means any of the following:

(a)

a reviewable decision, but only if that decision has been subject to internal review and the regulator has made a decision on the review:

(b)

a decision made by the regulator to issue a notice (including a subsequent notice):

(c)

a decision made by the regulator to cancel or vary a notice:

(d)

a decision made by the regulator to extend the time to comply with an improvement notice:

(da)

a decision made by the regulator to stay the operation of a decision to issue a notice:

(e)

a decision made by the regulator of a type prescribed by regulations for the purposes of this section

eligible person, in relation to an appealable decision or a reviewable decision, means a person affected by the decision or that person’s representative

reviewable decision means a decision made by an inspector—

(a)

to issue a notice (including a subsequent notice) under this Act; or

(b)

to extend the time to comply with an improvement notice; or

(c)

under section 104 in respect of a provisional improvement notice; or

(d)

of a type prescribed by regulations for the purposes of this section.

Internal review

152 Application for internal review

(1)

An eligible person in relation to a reviewable decision may apply to the regulator for review (an internal review) of the decision within—

(a)

the specified time after the day on which the decision first came to the eligible person’s notice; or

(b)

any longer period that the regulator allows.

(2)

The application must be made in the manner and form required by the regulator.

(3)

For the purposes of this section, the specified time is,—

(a)

for a decision to issue an improvement notice, the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser; and

(b)

in any other case, 14 days.

Compare: Model Work Health and Safety Act (Aust) s 224

153 Decision of regulator

(1)

The regulator must review the reviewable decision and make a decision—

(a)

as soon as is reasonably practicable; and

(b)

within 14 days after the application for internal review is received.

(2)

However, the individual who made the reviewable decision must not review the decision.

(3)

The regulator’s decision may—

(a)

confirm or vary the reviewable decision; or

(b)

set aside the reviewable decision; or

(c)

set aside the reviewable decision and substitute another decision that the regulator considers appropriate.

(4)

The regulator may seek further information from the applicant, and, if it does,—

(a)

the period specified in subsection (1)(b) ceases to run until the applicant provides the information to the regulator; and

(b)

the applicant must provide the information within the period (not less than 7 days) specified by the regulator in the request for information.

(5)

If the applicant does not provide the further information within the required time, the regulator may make a decision on the internal review on the basis of the information held by the regulator.

(6)

If the reviewable decision is not varied or set aside within the period specified in subsection (1)(b), the decision is to be treated as having been confirmed by the regulator.

Compare: Model Work Health and Safety Act (Aust) ss 225, 226

154 Notice of decision on internal review

As soon as practicable after an internal review of a decision making a decision in accordance with section 153, the regulator must give the applicant in writing—

(a)

the decision on the internal review; and

(b)

the reasons for the decision.

Compare: Model Work Health and Safety Act (Aust) s 227

155 Stay of reviewable decision on internal review

(1)

If an application is made for an internal review of a decision to issue a notice, the regulator may stay the operation of the decision.

(2)

The regulator may stay the operation of a decision—

(a)

on the regulator’s own initiative; or

(b)

on the application of the applicant for review.

(3)

The regulator must make a decision on an application for a stay within 3 working days after the regulator receives the application.

(4)

If the regulator has not made a decision on an application under subsection (2)(b) within the time set out in subsection (3), the regulator is to be treated as having made a decision to grant a stay.

(5)

A stay of the operation of a decision pending a decision on an internal review continues until the reviewer has made a decision on the review.

Compare: Model Work Health and Safety Act (Aust) s 228

Appeal to District Court

156 Application for appeal

(1)

An eligible person may appeal to a District Court against an appealable decision on the grounds that it is unreasonable.

(2)

The appeal must be lodged within 14 days after the day on which the appealable decision first came to the eligible person’s notice.

(3)

On an appeal under subsection (1), the court must inquire into the decision and may—

(a)

confirm or vary the decision; or

(b)

set aside the decision; or

(c)

set aside the decision and substitute another decision that the court considers appropriate.

Compare: 1992 No 96 s 46; Model Work Health and Safety Act (Aust) s 229

Subpart 6—Infringement offences

157 Interpretation

In this subpart,—

infringement fee, in relation to an infringement offence, means the infringement fee for the offence prescribed for the purposes of this section in regulations

infringement offence means an offence against this Act (except an offence against section 42, 43, or 44) or regulations that is declared by regulations to be an infringement offence for the purposes of this Act.

158 Proceedings for infringement offence

(1)

A person who is alleged to have committed an infringement offence may either—

(a)

be proceeded against by the filing of a charging document under section 14 of the Criminal Procedure Act 2011; or

(b)

be served with an infringement notice under section 159.

(2)

Proceedings commenced in the way described in subsection (1)(a) do not require the leave of a District Court Judge or Registrar under section 21(1)(a) of the Summary Proceedings Act 1957.

159 Infringement notices

(1)

The regulator may issue an infringement notice to a person if the regulator believes on reasonable grounds that the person is committing, or has committed, an infringement offence.

(2)

The regulator may deliver the infringement notice (or a copy of it) in person to the person alleged to have committed an infringement offence or send the notice by post addressed to that person’s last known place of residence or business.

(3)

An infringement notice (or a copy of it) sent by post to a person under subsection (2) is to be treated as having been served on that person when it was posted.

(4)

An infringement notice must be in the prescribed form and must contain the following particulars:

(a)

such details of the alleged infringement offence as are sufficient fairly to inform a person of the time, place, and nature of the alleged offence; and

(b)

the amount of the infringement fee; and

(c)

the address of the place at which the infringement fee may be paid; and

(d)

the time within which the infringement fee must be paid; and

(e)

a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957; and

(f)

a statement that the person served with the notice has a right to request a hearing; and

(g)

a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing; and

(h)

any other particulars that may be prescribed.

(5)

If an infringement notice has been issued under this section, the procedure under section 21 of the Summary Proceedings Act 1957 may be used in respect of the offence to which the infringement notice relates and, in that case, the provisions of that section apply with all necessary modifications.

Compare: 1992 No 96 ss 56B(1)(a), 56E(2)(5)

160 Revocation of infringement notice

(1)

The regulator may revoke an infringement notice issued under section 159 before the infringement fee is paid, or an order for payment of a fine is made or deemed to be made by a court under section 21 of the Summary Proceedings Act 1957.

(2)

An infringement notice is revoked by giving written notice to the person to whom it was issued that the notice is revoked.

Compare: 1992 No 96 s 56B(2), (3)

161 Payment of infringement fees

All infringement fees paid in respect of infringement offences must be paid into a Crown Bank Account.

Compare: 1992 No 96 s 56G

Subpart 7Legal Criminal proceedings

162 Interpretation Meaning of enforcement action

In this subpart, unless the context otherwise requires,—

enforcement action means,—

(a)

in relation to the regulator, the filing of a charging document under section 14 of the Criminal Procedure Act 2011 or the issuing of an infringement notice in respect of an offence under this Act:

(b)

in relation to a person other than the regulator, the filing of a charging document under section 14 of the Criminal Procedure Act 2011 in respect of an offence under this Act.

matter means

(a)

a failure to comply with this Act or regulations; or

(b)

a series of failures arising out of, or relating to, the same incident, situation, or set of circumstances.

163 Person may notify regulator of interest in knowing of enforcement action taken by regulator

(1)

A person may notify the regulator in the prescribed manner manner determined by the regulator that the person has an interest in knowing whether a particular matter incident, situation, or set of circumstances has been, is, or is to be subject to the taking of enforcement action by the regulator.

(2)

If the regulator receives a notification under subsection (1), the regulator must—

(a)

establish whether—

(i)

it or any other regulator has made a decision to take any enforcement action in respect of the matter incident, situation, or set of circumstances; or

(ii)

any regulatory agency has made a decision to take prosecution action in respect of the same incident, situation, or set of circumstances; and

(b)

notify the person in writing of that decision, but not the reasons for the decision.

Compare: 1992 No 96 s 54

164 Prosecutions by regulator

(1)

Subject to this section and section 165, proceedings a prosecution for an offence against under this Act may be brought only by the regulator.

(2)

The regulator may not file a charging document in respect of a matter in respect of which an infringement notice has been issued under section 159 unless the infringement notice has been revoked.

Compare: 1992 No 96 s 54A

165 Private prosecutions

(1)

A person other than the regulator may file a charging document in respect of an offence under this Act if—

(a)

the regulator has not taken enforcement action against any possible defendant in respect of the same matter; and

(b)

a regulatory agency has not taken prosecution action under any other Act against any possible defendant in respect of the same incident, situation, or set of circumstances; and

(a)

the regulator has not taken, and does not intend to take, enforcement action against any person in respect of the same incident, situation, or set of circumstances; and

(b)

a regulatory agency has not taken, and does not intend to take, prosecution action under any other Act against any person in respect of the same incident, situation, or set of circumstances; and

(c)

any person has received notification from the regulator under section 163(2)(b) that neither the regulator nor a regulatory agency—

(i)

has taken enforcement action or prosecution action against any possible defendant in respect of the same matter person in respect of the same incident, situation, or set of circumstances; and

(ii)

will take any enforcement action or prosecution action.

(1A)

For the purposes of subsection (1), if the regulator or a regulatory agency is unable to take enforcement action or prosecution action against any person in respect of the same incident, situation, or set of circumstances because the person is dead, the regulator or regulatory agency (as the case may be) must be treated as intending to take enforcement action or prosecution action.

(2)

Despite subsection (1)(b), a person other than the regulator may file a charging document even though a regulatory agency has taken or intends to take prosecution action if—

(a)

the person has leave of the court; and

(b)

subsection (1)(a) and (c) is complied with.

(b)

the person has received notification from the regulator under section 163(2)(b) that the regulator has made a decision not to take enforcement action in respect of the same incident, situation, or set of circumstances.

(3)

If a person applies for leave under subsection (2)(a), the Registrar must refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial, or such part of that evidence that the person considers is sufficient to justify a trial.

(4)

Section 26(2) to (5) of the Criminal Procedure Act 2011 applies to an application for leave under subsection (2)(a) with the following modifications:

(a)

a reference to accepting a charging document for filing must be read as if it were a reference to granting leave:

(b)

in determining whether the proposed prosecution is an abuse of process in accordance with section 26(3)(b) of that Act, the Judge must take into account

(i)

whether allowing the proposed prosecution to proceed would be consistent with the purpose of this Act; and

(ii)

whether the proposed prosecution is in the public interest.

Compare: 1992 No 96 s 54A(2), (3)

166 Continuing or repeated matters

Nothing in this Act prevents the regulator or another person from taking enforcement action in respect of a matter an incident, situation, or set of circumstances despite enforcement action having been taken in respect of the matter that incident, situation, or set of circumstances, if the matter incident, situation, or set of circumstances is continuing or repeated.

Compare: 1992 No 96 s 54E

167 Limitation period for prosecutions

(1)

Despite section 25 of the Criminal Procedure Act 2011, proceedings for an offence against this Act may be brought within the latest of the following periods to occur:

(a)

within 2 years after the offence first comes to the notice of the regulator:

(b)

within 1 year after the date on which a coroner completes and signs a certificate of findings under section 94 of the Coroners Act 2006 if it appears from the certificate of findings (or the proceedings of an inquiry) that an offence has been committed against this Act or regulations:

(c)

if an enforceable undertaking has been given in relation to the offence, within 6 months after

(i)

the enforceable undertaking is contravened; or

(ii)

it comes to the notice of the regulator that the enforceable undertaking has been contravened; or

(iii)

the regulator has agreed under section 149 to the withdrawal of the enforceable undertaking.

(2)

A proceeding for an offence against section 42 may be brought after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period.

Compare: Model Work Health and Safety Act (Aust) s 232

Limitation periods for prosecutions

167 Limitation period for prosecutions brought by regulator

(1)

Despite section 25 of the Criminal Procedure Act 2011, proceedings for an offence under this Act may be brought by the regulator within the latest of the following periods to occur:

(a)

within 12 months after the date on which the incident, situation, or set of circumstances to which the offence relates first became known, or ought reasonably to have become known, to the regulator:

(b)

within 6 months after the date on which a coroner completes and signs a certificate of findings under section 94 of the Coroners Act 2006 if it appears from the certificate of findings (or the proceedings of an inquiry) that an offence has been committed under this Act:

(c)

if an enforceable undertaking has been given in relation to the offence, within 6 months after

(i)

the enforceable undertaking is contravened; or

(ii)

it comes to the notice of the regulator that the enforceable undertaking has been contravened; or

(iii)

the regulator has agreed under section 149 to the withdrawal of the enforceable undertaking.

(2)

Subsection (1)(a) is subject to section 167A.

Compare: 1992 No 96 s 54B; Model Work Health and Safety Act (Aust) s 232

167A Extension of time if regulator needs longer to decide whether to bring prosecution

(1)

This section applies if the regulator considers that it will not be able to file a charging document by the end of the 12 month period specified in section 167(1)(a).

(2)

The District Court may, on application by the regulator made before the end of the 12 month period specified in section 167(1)(a), extend the time available for filing a charging document for a further period not exceeding 12 months from the expiry of the 12 month specified in section 167(1)(a).

(3)

The court must not grant an extension under subsection (2) unless it is satisfied that

(a)

the regulator reasonably requires longer than the 12 month period to decide whether to file a charging document; and

(b)

the reason for requiring the longer period is that the investigation of the events and issues surrounding the alleged offence is complex or time consuming; and

(c)

it is in the public interest in the circumstances that a charging document is able to be filed after the 12 month period expires; and

(d)

filing the charging document after the 12 month period expires will not unfairly prejudice the proposed defendant in defending the charge.

(4)

The court must give the following persons an opportunity to be heard:

(a)

the regulator:

(b)

the proposed defendant:

(c)

any other person who has an interest in whether or not a charging document should be filed, being a person described in section 163(1).

Compare: 1992 No 96 s 54D

167B Limitation period for private prosecutions

Despite section 25 of the Criminal Procedure Act 2011, proceedings for an offence against this Act may be brought by a person other than the regulator within the latest of the following periods to occur:

(a)

within 2 years after the date on which the incident, situation, or set of circumstances to which the offence relates first became known, or ought reasonably to have become known, to the regulator:

(b)

within 6 months after the date on which a coroner completes and signs a certificate of findings under section 94 of the Coroners Act 2006 if it appears from the certificate of findings (or the proceedings of an inquiry) that an offence has been committed under this Act:

(c)

if an enforceable undertaking has been given in relation to the offence, within 6 months after

(i)

the enforceable undertaking is contravened; or

(ii)

it comes to the notice of the regulator that the enforceable undertaking has been contravened; or

(iii)

the regulator has agreed under section 149 to the withdrawal of the enforceable undertaking.

167C Extension of time for certain proceedings

Despite anything in section 167, 167A, or 167B, the following proceedings may be brought after the end of the applicable limitation period if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within that period:

(a)

proceedings for an offence against section 42:

(b)

proceedings for an offence against section 43 that relates to the death of a person.

Compare: Model Work Health and Safety Act (Aust) s 232(2)

Subpart 8—Sentencing for offences

168 Application of subpart

This subpart applies if a court convicts a person (an offender) or finds an offender guilty of an offence against this Act or regulations under this Act.

Compare: Model Work Health and Safety Act (Aust) s 234

169 Sentencing criteria

(1)

This section applies when a court is determining how to sentence or otherwise deal with an offender convicted of an offence under section 42, 43, or 44.

(2)

The court must apply the Sentencing Act 2002 and must have particular regard to—

(a)

sections 7 to 10 of that Act; and

(b)

the purpose of this Act; and

(c)

the risk of, and the potential for, illness, injury, or death that could have occurred; and

(d)

the safety record of the person (including, without limitation, any warning, infringement notice, or improvement notice issued to the person or enforceable undertaking agreed to by the person) to the extent that it shows whether any aggravating factor is present; and

(e)

the degree of departure from prevailing standards in the person’s sector or industry as an aggravating factor; and

(f)

the person’s financial capacity or ability to pay any fine to the extent that it has the effect of increasing the amount of the fine.

Compare: 1992 No 96 s 51A

170 Order for payment of regulator’s costs in bringing prosecution

(1)

On the application of the regulator, the court may order the offender to pay to the regulator, a sum that it thinks just and reasonable towards the costs of the prosecution (including the costs of investigating the offending and any associated costs).

(2)

If the court makes an order under subsection (1), it must not make an order under section 4 of the Costs in Criminal Cases Act 1967.

(3)

If the court makes an order under subsection (1) in respect of a Crown organisation, any costs and fees awarded must be paid from the funds of that organisation.

Compare: 1967 No 129 s 4(5)

171 Adverse publicity orders

(1)

A court may make an order (an adverse publicity order) requiring an offender—

(a)

to take either or both of the following actions within the period specified in the order:

(i)

to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed, and any other related matter:

(ii)

to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed, and any other related matter; and

(b)

to give the regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions have been taken by the offender in accordance with the order.

(2)

The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence.

(3)

If the offender fails to give evidence to the regulator in accordance with subsection (1)(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions specified in the order.

(4)

However, the regulator may apply to the court for an order authorising the regulator, or a person authorised in writing by the regulator, to take the action or actions specified in the order if—

(a)

the offender gives evidence to the regulator in accordance with subsection (1)(b); and

(b)

despite that evidence, the regulator is not satisfied that the offender has taken the action or actions specified in the order in accordance with the order.

(5)

If the court makes an order under subsection (1), the regulator may recover as a debt due to the regulator in any court of competent jurisdiction any reasonable expenses incurred in taking an action under subsection (3) or (4).

Compare: Model Work Health and Safety Act (Aust) s 236

172 Orders for restoration

(1)

A court may make an order requiring an offender to take the specified steps, within a specified period, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender’s power to remedy.

(2)

The period in which an order under this section must be complied with may be extended, or further extended, by order of the court, but only if an application for the extension is made before the expiry of that period.

(3)

The court may not make an order under this section for any matter in respect of which an order for reparation is made under section 32 of the Sentencing Act 2002.

Compare: Model Work Health and Safety Act (Aust) s 237

173 Work health and safety project orders

(1)

A court may make an order requiring an offender to undertake a specified project for the general improvement of work health and safety within the period specified in the order.

(2)

The order may specify conditions that must be complied with in undertaking the specified project.

Compare: Model Work Health and Safety Act (Aust) s 238

174 Release on giving of court-ordered enforceable undertaking

(1)

The court may (with or without recording a conviction) adjourn a proceeding for up to 2 years and make an order for the release of the offender if the offender gives an undertaking with specified conditions (a court-ordered enforceable undertaking).

(2)

A court-ordered enforceable undertaking must specify the following conditions:

(a)

that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned:

(b)

that the offender does not commit, during the period of the adjournment, any offence against this Act or regulations:

(c)

that the offender observes any special conditions imposed by the court.

(3)

An offender who has given a court-ordered enforceable undertaking under this section may be called on to appear before the court by order of the court.

(4)

An order under subsection (3) must be served on the offender not less than 4 days before the time specified in it for the appearance.

(5)

If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court-ordered enforceable undertaking, it must discharge the offender without any further hearing of the proceeding.

(6)

The regulator must publish, on an Internet site maintained by or on behalf of the regulator, notice of a court-ordered enforceable undertaking made in accordance with subsection (1), unless the court orders otherwise.

Compare: Model Work Health and Safety Act (Aust) s 239

175 Injunctions

If a court finds a person guilty of an offence against this Act or regulations, the court may issue an injunction requiring the offender to cease any particular conduct or action that constitutes a contravention of this Act or regulations.

Compare: Model Work Health and Safety Act (Aust) s 240

176 Training orders

The court may make an order requiring an offender to undertake, or arrange for 1 or more workers to undertake, a specified course of training.

Compare: Model Work Health and Safety Act (Aust) s 241

177 Offence to fail to comply with order

(1)

A person must not, without reasonable excuse, fail to comply with an order under this subpart.

(2)

Subsection (1) does not apply to—

(a)

an order made under section 174; or

(b)

an injunction granted under section 175.

(3)

A person who contravenes subsection (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $50,000:

(b)

for any other person, to a fine not exceeding $250,000.

Compare: Model Work Health and Safety Act (Aust) s 242

Insurance against fines unlawful and of no effect

178 Insurance against fines unlawful

(1)

To the extent that an insurance policy or a contract of insurance indemnifies or purports to indemnify a person for the person’s liability to pay a fine or infringement fee under this Act,

(a)

the policy or contract is of no effect; and

(b)

no court or tribunal has jurisdiction to grant relief in respect of the policy or contract, whether under section 7 of the Illegal Contracts Act 1970 or otherwise.

(2)

A person must not

(a)

enter into, or offer to enter into, a policy or contract described in subsection (1); or

(b)

indemnify, or offer to indemnify, another person for the other person’s liability to pay a fine or an infringement fee under this Act; or

(c)

be indemnified, or agree to be indemnified, by another person for that person’s liability to pay a fine or an infringement fee under this Act; or

(d)

pay to another person, or receive from another person, an indemnity for a fine or an infringement fee under this Act.

(3)

A person who contravenes subsection (2) commits an offence and is liable on conviction,

(a)

for an individual, to a fine not exceeding $50,000:

(b)

for any other person, to a fine not exceeding $250,000.

Compare: 1992 No 96 s 56I

Attribution of liability

179 State of mind of directors, employees, or agents attributed to body corporate or other principal

(1)

If, in a proceeding under this Act in respect of any conduct engaged in by a body corporate, being conduct in relation to which any provision of this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that an officer, employee, or agent of the body corporate, acting within the scope of his, her, or its actual or apparent authority, had that state of mind.

(2)

If, in a proceeding (other than a proceeding for an offence) under this Act in respect of any conduct engaged in by a person other than a body corporate, being conduct in relation to which any provision of this Act applies, it is necessary to establish the state of mind of the person, it is sufficient to show that an officer, employee, or agent of the person, acting within the scope of his or her actual or apparent authority, had that state of mind.

(3)

In this section, state of mind, in relation to a person, includes the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention, opinion, belief, or purpose.

180 Conduct of directors, employees, or agents attributed to body corporate or other principal

(1)

Conduct engaged in on behalf of a body corporate by any of the following must be treated, for the purposes of this Act, as having been engaged in also by the body corporate:

(a)

an officer, employee, or agent of the body corporate, acting within the scope of his, her, or its actual or apparent authority:

(b)

any other person at the direction or with the consent or agreement (whether express or implied) of an officer, employee, or agent of the body corporate, given within the scope of the actual or apparent authority of the director, employee, or agent.

(2)

Conduct engaged in on behalf of a person other than a body corporate (person A) by any of the following must be treated, for the purposes of this Act, as having been engaged in also by person A:

(a)

an employee or agent of person A acting within the scope of his, her, or its actual or apparent authority:

(b)

any other person at the direction or with the consent or agreement (whether express or implied) either of person A or of an employee or agent of person A, given within the scope of the actual or apparent authority of the employee or agent.

Subpart 8AGeneral provisions relating to proceedings

178 State of mind of directors, employees, or agents attributed

(1)

If, in any civil proceedings under this Act in respect of any conduct engaged in by an individual, being conduct in relation to which any provision of this Act or regulations applies, it is necessary to establish the state of mind of that individual, it is sufficient to show that an employee or agent of the individual acting within the scope of his, her, or its actual or apparent authority, had that state of mind.

(2)

If, in any civil or criminal proceedings under this Act in respect of any conduct engaged in by a person other than an individual, being conduct in relation to which any provision of this Act or regulations applies, it is necessary to establish the state of mind of the person, it is sufficient to show that an officer, employee, or agent of the person, acting within the scope of his or her actual or apparent authority, had that state of mind.

(3)

In this section, state of mind, in relation to a person, includes the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention, opinion, belief, or purpose.

Compare: Model Work Health and Safety Act (Aust) s 244(2), (3)

179 Conduct of directors, employees, or agents attributed

(1)

Conduct engaged in on behalf of an individual (person A) by any of the following must be treated, for the purposes of this Act, as having been engaged in also by person A:

(a)

an employee or agent of person A, acting within the scope of his, her, or its actual or apparent authority:

(b)

any other person at the direction or with the consent or agreement (whether express or implied) either of person A or an employee or agent of person A, given within the scope of the actual or apparent authority of the employee or agent.

(2)

Conduct engaged in on behalf of a person (other than an individual) by any of the following must be treated, for the purposes of this Act, as having been engaged in also by that person:

(a)

an officer, employee, or agent of the person acting within the scope of his, her, or its actual or apparent authority:

(b)

any other person at the direction or with the consent or agreement (whether express or implied) of an officer, employee, or agent of the person, given within the scope of the actual or apparent authority of the officer, employee, or agent.

Compare: Model Work Health and Safety Act (Aust) s 244(1)

180A Proceedings involving classified security information

Schedule 2A contains provisions that apply in civil and criminal proceedings that involve classified security information.

Subpart 9—Inspectors and health and safety medical practitioners

Inspectors

181 Appointment of inspectors

(1)

The regulator may, by notice in writing, appoint any of the following as an inspector:

(a)

an employee of a department (within the meaning of the State Sector Act 1988):

(b)

an employee of the State services (within the meaning of the State Sector Act 1988):

(c)

a statutory officer:

(d)

a prescribed person:

(e)

an employee of the regulator:

(f)

any other person who the regulator is satisfied—

(i)

is suitably qualified and trained:

(ii)

belongs to a class of persons who are suitably qualified and trained to exercise any or all of the powers of, and carry out any or all of the duties of, an inspector under relevant health and safety legislation.

(2)

An inspector’s compliance powers are subject to any conditions or limitations specified in the notice of the inspector’s appointment.

(3)

However, the exercise of a compliance power by an inspector is not invalid merely because it did not comply with the conditions specified in the notice of the inspector’s appointment.

(4)

The regulator has all the powers that an inspector has under this Act.

Compare: Model Work Health and Safety Act (Aust) ss 156, 161

182 Identity cards

(1)

The regulator must give each inspector an identity card that—

(a)

states the person’s name and appointment as an inspector; and

(b)

includes any other matter prescribed by regulations.

(2)

An inspector must, when exercising compliance powers under this Act, produce his or her identity card for inspection on request.

(3)

A person who ceases to be an inspector must as soon as practicable return the identity card to the regulator.

Compare: Model Work Health and Safety Act (Aust) s 157

183 Suspension and ending of appointment of inspectors

(1)

The regulator may suspend or end the appointment of an inspector at any time.

(2)

To avoid doubt, a person’s appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector.

Compare: Model Work Health and Safety Act (Aust) s 159

184 Inspectors subject to regulator’s directions

(1)

An inspector (whether or not an employee) is subject to directions from the regulator that appointed him or her in the exercise of the inspector’s compliance powers.

(2)

A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.

(3)

A failure to comply with a direction under subsection (1) does not invalidate the exercise of an inspector’s compliance power.

Compare: Model Work Health and Safety Act (Aust) s 162

185 Powers of entry and inspection

(1)

Subject to section 186, for the purpose of performing any function of the regulator or an inspector under relevant health and safety legislation, any inspector may, at any reasonable time, enter any workplace and—

(a)

conduct examinations, tests, inquiries, and inspections, or direct a PCBU or a person who is or appears to be the person with management or control in charge of the workplace to conduct examinations, tests, inquiries, or inspections:

(b)

be accompanied and assisted by any other person and bring into the workplace any equipment necessary to carry out the inspector’s functions:

(c)

take photographs and measurements and make sketches and recordings:

(d)

require the PCBU or a person who is or appears to be the person with management or control in charge of the workplace to ensure that the workplace or any place or thing in the workplace specified by the inspector is not disturbed for a reasonable period pending examination, test, inquiry, or inspection:

(e)

require the PCBU or a person who is or appears to be the person with management or control in charge of the workplace to—

(i)

produce information relating to the work, the workplace, or the workers who work there; and

(ii)

produce information relating to the PCBU’s compliance with relevant health and safety legislation; and

(iii)

permit the inspector to examine and make copies of, or take extracts from, the information:

(f)

require the PCBU or a person who is or appears to be the person with management or control in charge of the workplace to make or provide statements, in any form and manner that the inspector specifies.

(2)

An inspector may do any of the things referred to in subsection (1), whether or not—

(a)

the inspector or the person the inspector is dealing with is in the workplace; or

(b)

the workplace is still a workplace; or

(c)

the workers work in the workplace; or

(d)

the PCBU is still a PCBU in respect of the workplace; or

(e)

the workers still carry out work in any capacity for the PCBU; or

(f)

in respect of any information, the information is—

(i)

in the workplace; or

(ii)

in the place where the inspector is; or

(iii)

in another place.

(3)

Despite subsection (1), an inspector must not enter a defence area except in accordance with a written agreement between the regulator and the Chief of Defence Force that is entered into for the purposes of this section and is for the time being in force.

(4)

Despite subsection (1)(e), if all or any part of the information relates to a person’s health status and identifies the person, an inspector must not, without that person’s consent,—

(a)

require the production of information; or

(b)

examine the information; or

(c)

make a copy of, or take an extract from, the information.

(5)

Nothing in this section affects the application of section 60 of the Evidence Act 2006.

(6)

In this section, information includes any document.

Compare: 1992 No 96 s 31; Model Work Health and Safety Act (Aust) s 163

186 Powers of inspectors Power to enter homes

(1)

Despite section 185(1) and (2), an inspector must not, except with the consent of an occupier or pursuant to a warrant issued under subsection (2),—

(a)

enter a workplace that is, or is within, a home; or

(b)

enter a workplace through a home.

(2)

An issuing officer may, on an application made by an inspector in the manner provided in subpart 3 of Part 4 of the Search and Surveillance Act 2012, issue a warrant to enter a home (or part of a home) if he or she is satisfied that there are reasonable grounds to believe that the home—

(a)

is a workplace or has a workplace within it; or

(b)

is the only practicable means through which the inspector may enter the workplace.

(3)

A warrant issued under subsection (2) authorises an inspector to exercise only the powers specified in section 185.

Compare: 1992 No 96 s 31; Model Work Health and Safety Act (Aust) s 170

187 Power of inspectors to deal with cause of imminent danger

(1)

This section applies if an inspector who enters a workplace under section 185 or 186 reasonably believes that any material, substance, structure, or thing in a workplace is defective or hazardous to a degree that it is likely to imminently cause death or serious injury or illness or a notifiable incident (cause of imminent danger).

(2)

The inspector may seize, destroy, or take any other action to reduce or remove the cause of imminent danger.

(3)

The inspector must,—

(a)

before exercising the power under subsection (2), if it is practicable to do so, take a sample of the cause of imminent danger:

(b)

as soon as practicable after exercising the power under subsection (2), give the PCBU written notice of the action taken in relation to the cause of imminent danger.

(4)

This section is subject to section 186.

Compare: Model Work Health and Safety Act (Aust) s 176; Health and Safety at Work etc. Act 1974 (UK) s 25

188 Notice of entry

(1)

If an inspector enters any workplace under this Act and is unable, despite reasonable efforts, to find any person in charge, the inspector must before leaving the workplace leave a written notice stating—

(a)

the inspector’s identity; and

(b)

the inspector’s contact information; and

(c)

the date and time of entry; and

(d)

the inspector’s reasons for entering.

(2)

In this section, contact information includes—

(a)

the name of the inspector; and

(b)

1 or more of the following:

(i)

telephone number:

(ii)

email address:

(iii)

physical or postal address.

Compare: 1992 No 96 s 32(2); Model Work Health and Safety Act (Aust) s 164

189 Powers Power to take samples and other objects and things

(1)

An inspector who enters a workplace or a former workplace under section 185 or 186 may take or remove a sample of any material, substance, or thing for analysis, or seize and retain any material, substance, or thing, for the purpose of—

(a)

monitoring conditions in the workplace; or

(b)

determining the nature of any material or substance in the workplace; or

(c)

determining whether relevant health and safety legislation has been, is being, or is likely to be complied with; or

(d)

gathering evidence to support the taking of enforcement action.

(2)

This section does not allow an inspector to take a sample from a person’s body unless the inspector has that person’s informed consent to the taking of the sample.

(3)

If an inspector removes or retains any sample, material, substance, or thing under subsection (1), the inspector must,—

(a)

as soon as is reasonably practicable after removing or retaining it, at the time he or she removes or retains the sample, material, substance, or thing or as soon as practicable after doing so, give the PCBU written notice of—

(i)

what has been (or is being) removed or retained; and

(ii)

why it has been (or is being) removed or retained; and

(iii)

where it will be kept in the meantime; and

(b)

subject to subsections (4) and (5), within 5 working days of removing or retaining any sample, material, substance, or thing, give the PCBU written notice of whether the inspector intends to return it or destroy it.

(4)

If it is practicable to do so, the inspector must return the sample, material, substance, or thing to its owner—

(a)

when it is no longer required for any purpose under relevant health and safety legislation (or any other enactment); or

(b)

if a court earlier orders its return.

(5)

The inspector may destroy any removed or retained sample, material, substance, or thing if—

(a)

it is perishable and has become rotten or has otherwise deteriorated; or

(b)

it is perishable and is likely to become rotten or perish before it can be dealt with under subsection (4); or

(c)

it is likely to pose a risk to public health.

(6)

In addition, sections 154, 155, and 159 of the Search and Surveillance Act 2012 apply in relation to any sample, material, substance, or thing removed or retained.

(7)

Those sections of the Search and Surveillance Act 2012 referred to subsection (6) apply as if—

(a)

the reference in section 159(1) of that Act to a person described in section 156(2) was were to—

(i)

any person from whom the sample, material, substance, or thing was seized:

(ii)

the PCBU:

(iii)

any other person who, in the opinion of the inspector, may be affected by the forfeiture of the sample, material, substance, or thing; and

(b)

references to a thing were to any sample, material, substance, or thing; and

(c)

references to seized or produced were to removed or retained; and

(d)

references to the person in whose custody the thing is were to the inspector; and

(e)

all other necessary modifications were made.

(8)

Any sample, material, substance, or thing forfeited to the Crown may be destroyed or otherwise disposed of as the inspector directs.

Compare: 1992 No 96 s 33; Model Work Health and Safety Act (Aust) ss 165, 178, 180

190 Powers Power of regulator to authorise making of applications for search warrants

(1)

A regulator may authorise a specified person to enter and search a place, vehicle, or other thing for the purpose of ascertaining whether a person has engaged in or is engaging in conduct that contravenes or may contravene relevant health and safety legislation if the regulator is satisfied that there are reasonable grounds—

(a)