Changes to Health and Safety at Work Act incoming – managing critical risk

The Health and Safety at Work Amendment Act will come into force in April 2027, with the purpose of providing greater clarity to New Zealand’s health and safety framework. It will amend the Health and Safety at Work Act 2015, WorkSafe New Zealand Act 2013 and the Health and Safety at Work Regulations 2016.

Publicly the reforms have largely been promoted to reduce compliance costs and provide greater certainty for businesses. Beyond this however, they shift the focus of health and safety, rather than relax compliance measures for PCBUs (Persons Conducting a Business or Undertaking).

Critical risk

A key feature within the amendments is the introduction of, and an associated emphasis on, the concept of critical risk. Critical risks are those hazards that likely result in death, serious injury, notifiable events or occupational diseases as well as hazards specified in Schedule 1A of the Act.

In addition to highlighting critical risk, the amendments direct smaller PCBUs (under 20 workers) to prioritise managing those risks over others. The intention is to ensure there is greater attention placed on those risks that are capable of causing the most serious harm rather than all risks being treated equally in the workplace.

Large PCBUs with over 20 workers must manage critical and other risks equally as part of their health and safety obligations.

For many organisations these changes will not fundamentally change how health and safety is managed in practice. Most businesses have safeguards surrounding certain risks which require greater oversight and control than others.

Risk assessment

The notable change, however, is how regulators, investigators and ultimately how the courts will in turn assess whether the risks have been identified as critical risks and consequently managed in an appropriate way.

The practical implication is that organisations (especially smaller PCBUs) should be able to clearly identify their critical risks and demonstrate these risks having been appropriately identified and managed.

It is becoming increasingly important for organisations to have systems in place whilst also demonstrating how these systems operate in practice and how the critical controls are monitored and reviewed.

By distinguishing between larger and smaller PCBUs, the amendment Act seeks to provide a more proportionate approach to health and safety obligations, particularly for a smaller business whilst ensuring that the risks most likely to cause serious harm are prioritised.

Approved Codes of Practice

Another significant change is the strengthening of the Approved Codes of Practice (ACOPS).

While ACOPs are not mandatory, the extent to which PCBUs comply with them will be subject to greater scrutiny in the event of a regulatory investigation and/or prosecution. Accordingly, ACOPs should be regarded as of greater importance than they have been historically, as they will provide a good template for businesses to conduct themselves from a health and safety perspective within their particular industry.

PCBUs which fail to align with an ACOP may find themselves having to explain to the regulator why they have not aligned themselves with the respective code to identify and manage their critical risks; this makes ACOPs an important health and safety, and operational, factor for PCBUs to consider.

Subject to approval, industry groups, unions, representatives and employer organisations will be able to facilitate their own development of ACOPs. This greater focus on ACOPs is intended to provide industry sectors with greater agency, scope, and guidance in in terms of the practical implementation of health and safety compliance within their industry.

Other regimes

The amendment further encompasses other regimes such as the Building Act 2004, Maritime Transport Act 1994 and the Land Transport Act 1998, providing greater certainty for the obligations under these compliance frameworks.

Where a duty holder complies with another legislative requirement that manages the same risks, they will be considered to be compliant under HSWA.

This amendment aims to reduce supplication and provide greater certainty for duty holders operating within multiple regulatory regimes.

Clarity around roles

The amendments further clarify the roles of officers, partners and chief executives. The focus of officer’s duties is laid out as governance rather than day-to-day operational management. In doing so, greater clarity is provided over the scope of officer duties whilst simultaneously not diminishing the importance of active oversight and engagement with health and safety matters.

These changes, taken together, reinforce a broader direction of reforms within New Zealand’s health and safety framework.

The amendment Act focuses on providing certainty around what compliance requires, reducing duplications and directing attention towards the risks that are most likely to cause serous harms. For most organisations, the challenge is not building entirely new systems, but to ensure that existing systems place a greater focus on the risks and provide clearer controls on them working in practice.

Dawson & Associates regularly advise clients on their Health and Safety at Work Act obligations, and are highly experienced in the regulatory investigation process. This experience ranges from the reporting of notifiable incidents to investigations by Maritime New Zealand, WorkSafe New Zealand, and the New Zealand Police, and through to acting for clients in prosecution and sentencing matters under the Act.

If you have any questions about HSWA compliance for your business, need advice on your existing health and safety operations, or need advice and representation in a regulatory investigation, please contact Peter Dawson on +64 27 229 9624 or peter@maritimelaw.co.nz, Troy Stade on +64 27 368 6730 or troy@maritimelaw.co.nz.