A Comparison of the Australian Model WHS Laws and the New Zealand Health and Safety at Work (HSW) Laws.

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1 A Comparison of the Australian Model WHS Laws and the New Zealand Health and Safety at Work (HSW) Laws. Introduction: In 2008 all Australian governments committed to the development and adoption of Model WHS Laws (Act, Regulations and supporting Codes of Practice) with an effective date of 1 January 2012, subject to any transitional arrangements that were specified within the Act and Regulations. The Model WHS Act was endorsed by the Workplace Relations Ministers Council (WRMC) in December 2009; the Model WHS Regulations were subsequently endorsed in August Model WHS Laws in Australia The Commonwealth, Queensland, New South Wales, Northern Territory and ACT adopted their WHS Acts and Regulations with an effective date of 1 January South Australia and Tasmania had an implementation date of 1 January At March 2016, Western Australia are still progressing their Act through the parliament. Victoria have stated they will not adopt the harmonised laws; work is currently underway to review the OHS Regulations which sunset on 30 June 2017; it is hoped that this work will create greater alignment. Ai Group has previously developed a separate document which compares the Victorian laws (at 1 January 2012) to the Model WHS Laws. The Model WHS Laws in New Zealand The New Zealand Health and Safety at Work (HSW) Act 2015 will become effective on 4 April The NZ Act is based on Australia s Model WHS Laws, but there have been some variations. This document is designed to assist Australian employers with operations in New Zealand to understand the similarities and differences between the Model WHS laws and those adopted in New Zealand. It will also be valuable for New Zealand employers operating in any of the Australian jurisdictions that have adopted the Model WHS Laws. This document will be updated as the Regulations are progressively finalised. It is important to note that individual Australian jurisdictions have also made some amendments to the Model; hence the relevant legislation for each Australian state should be referenced for specific detail about compliance requirements. Disclaimer: Whilst every care has been taken to provide accurate information no warranty is given. Ai Group and the authors of this paper shall in no event accept liability arising from any errors or omissions or the use of or reliance on the material contained in this document. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 1 of 28 All rights reserved 2016.The Australian Industry Group

2 Introduction: It should be noted that Schedule 5 of the Health and Safety at Work Act 2015 also made substantive amendments to other legislation, including: Electricity Act 1992 and Electricity (Safety) Regulations 2010 Gas Act 1992 and Gas (Safety and Measurement) Regulations 2010 Maritime Transport Act 1994 Plumbers, Gasfitters, and Drainlayers Act 2006 Railways Act 2005 Hazardous Substances (Packaging) Regulations 2001 Key provisions of the Acts Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Part 1 Application of the Act (other than Division 3 definitions and important terms) Section 9 Examples and Notes An example at the foot of a provision forms part of this Act. A note at the foot of a provision forms part of this note. [In the Australian application of the laws, this could vary from state to state]. Part 1 Application of the Act Section 26 Status of Examples An example is only illustrative of the provisions to which it relates. It does not limit those provisions. If an example and a provision to which it relates are inconsistent, the provision prevails. Application provisions are different and need to be specifically addressed in individual jurisdictions. Examples and Notes need to be considered in the context of the laws as applied in each jurisdiction. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 2 of 28 All rights reserved 2016.The Australian Industry Group

3 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 13 to 16 Principles that apply to duties Sections 31 to 33 Duties not transferrable A person can have more than one duty More than one person can concurrently have the same duty; each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. Provisions are identical. Section 17 Section 30 A duty to ensure health and safety requires the person to eliminate or minimise risks so far as is reasonably practicable. Provisions are identical. Section 18 Section 22 Reasonably practicable is outlined as taking into account and weighing up all relevant matters: Likelihood Degree of harm What is known about the hazard/risk and ways of eliminating or minimising it Availability and suitability of ways to eliminate or minimise the risk After assessing the above, the cost associated with eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk Provisions are identical. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 3 of 28 All rights reserved 2016.The Australian Industry Group

4 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 19 Primary duty of care (1) A person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of: (a) Workers engaged, or caused to be engaged by the person; and (b) Workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking (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 business or undertaking. Notes: A PCBU is defined in s.5 of the Act A worker is defined in s.7 of the Act A workplace is defined in s.8 of the Act Section 20 Duty of persons conducting a businesses or undertaking involving management or control of workplaces that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace, are so far as is reasonably practicable, without risk to the health and safety of any person. Duty holder is abbreviated to person with management or control of a workplace Section 36 Notes: A PCBU is defined in s. 17 of the Act A worker is defined in s.19 of the Act A workplace is defined in s.20 of the Act Section 37 Duty holder is abbreviated to a PCBU who manages or controls workplace. Provisions are almost identical. There are some minor variations of definitions, but they are mostly the same. Almost identical; but with a few more specific inclusions and exclusions. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 4 of 28 All rights reserved 2016.The Australian Industry Group

5 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces. Duty holder is abbreviated to person with management or control of fixtures, fittings or plant at a workplace. Section 38 Duty holder is abbreviated to PCBU who manages or controls fixtures, fittings or plant at a workplace. Almost identical; but with a few more specific inclusions and exclusions. Duties of persons conducting businesses or undertakings that: design plant or structures (section 22) manufacture plant, substances or structures (section 23) import plant, substances or structures (section 24) supply plant, substances or structures (section 25) install, construct or commission plant or structures (section 26) Note: Supply is defined in s. 6 of the Act Duty of PCBU who: designs plant or structures (section 39) manufactures plant, substances, or structures (section 40) imports plant, substances, or structures (section 41) supplies plant, substances, or structures (section 42) installs, constructs or commissions plant or structures (section 43) Note: Supply is defined in s. 21 of the Act Provisions are mostly identical, except that the definition of supply is different. Section 42 (6) & (7) of the NZ Act have some exclusions relating to the supply of second hand plant. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 5 of 28 All rights reserved 2016.The Australian Industry Group

6 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 27 Section 44 Duty of officer An officer must exercise due diligence to ensure that the person conducting the business or undertaking complies with their duties under the Act. An officer has the same meaning as in the Corporations Act 2001, with some additional detail to clarify the application to governments, statutory bodies and partnerships (see s.4 of the Act for the specific definition). Due diligence includes, taking reasonable steps: to acquire and keep up-to-date knowledge of work health and safety matters to gain an understanding of the hazards and risks to ensure appropriate resources and processes to eliminate or minimise risk to ensure appropriate processes for receiving and considering information to ensure the PCBU has and implements processes for complying with duties to verify the provision and use of the resources and processes referred to above. There are some additional words in this Act that refer to the care, diligence, and skills that a reasonable officer would exercise in the same circumstances. An officer is defined in section 18 of the Act. Officer (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). Principles are basically the same; some slight wording change; definition basis is obviously different as the Australian definition is reliant on the Australian Corporations Act. The due diligence description is identical. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 6 of 28 All rights reserved 2016.The Australian Industry Group

7 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 34 Section 51 Volunteer officers cannot be convicted for failing to meet their due diligence obligations. Provisions are similar. Section 28 Section 45 Duties of workers take reasonable care for own health and safety take reasonable care that acts or omissions do not adversely affect the health and safety of and other persons comply so far as reasonably able with any reasonable instruction related to health and safety cooperate with any reasonably policy related to safety Provisions are identical. Section 29 Section 46 Duties of other persons at the workplace take reasonable care for own health and safety take reasonable care that acts or omissions do not adversely affect the health and safety of and other persons comply so far as reasonably able with any reasonable instruction related to health and safety Provisions are identical. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 7 of 28 All rights reserved 2016.The Australian Industry Group

8 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 31 Offence Reckless conduct Category 1 Conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness and the person is reckless as to the risk. Section 47 There is a specific clarification of how an officer would be considered in this provision. Penalty levels are the same. Provisions are almost identical; penalties are the same. Penalties: Individual: $ / 5 years jail Officer: $ / 5 years jail Body corporate $ Section 32 and Section 33 offences Breach of safety duty lower maximum penalty for offences that do not create a risk of serious injury or death Individual: $ / $ Officer: $ / $ Body Corporate: $ / $ Section 48 & Section 49 offences Provisions are identical; penalties are the same. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 8 of 28 All rights reserved 2016.The Australian Industry Group

9 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 34 Exemptions and special provisions relating to volunteers and unincorporated associations. Part 3 and Regulation 699 Incident Notification Obligation rests with a PCBU who becomes aware of the notifiable incident arising out of the conduct of the business or undertaking to notify the regulator and preserve the incident site. Section 50 to 52 Specific provisions relating to liability of certain persons. Section 53 creates an exemption if offence occurs whilst trying to protect another person from harm. Section 54 relates to the need to prove intent not required for some offences. Part 2, Subpart 3 Notifiable incidents are defined in: Section 23 (notifiable injury or illness) Section 24 (meaning of notifiable incident) Section 25 (meaning of a notifiable event) Some variations. NZ provisions in ss.53 and 54 do not have equivalents in Model WHS Laws. Provisions are generally the same; however, as this is a very specific legal issue it is essential that the New Zealand provisions are referred to for specific detail. Part 4 Authorisations General provisions outlining when authorisations are required and that it is an offence to direct or allow work to be undertaken if the relevant authorisations are not held. No equivalent provisions. Conclusion: No equivalent provisions. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 9 of 28 All rights reserved 2016.The Australian Industry Group

10 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 46 Section 34 Duty to consult, cooperate and coordinate with other duty holders who have a duty in relation to the same matter. Provisions are almost identical. Sections 47 to 49 Creates an obligation to consult with workers (47); outlines the nature of consultation (48); and determines when consultation must occur (49). Specifies that, if there is an HSR, they must be involved in the consultation. Nature of consultation: provide relevant information; and give a reasonable opportunity to: express views and raise WHS issues in relation to the matter; and contribute to the decision-making process relating to the matter; and take views into account; and advise of outcome of consultation in a timely manner Sections 58 to 60 Duty to engage with workers (58); nature of engagement (59); when engagement is required (60); duty to have participation practices (61). Although terminology is different consultation vs engagement, the requirements are almost identical. Section 61 of the NZ Act provides some more specific information about how to engage; could be seen as similar to agreed procedures in Australian Model WHS laws. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 10 of 28 All rights reserved 2016.The Australian Industry Group

11 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Sections 50 to 74 and Regulations 16 to 21 Health and Safety Representatives These sections and related regulations establish the manner in which HSRs are established; their powers and functions; and access to training. There is provision for HSRs to issue Provisional Improvement Notices (PINs) and direct a cessation of work. The Act allows for an inspector to be called in to determine PINs and work cessations. The PCBU must ensure that a list of HSRs is prepared, kept up-to-date and displayed in an appropriate location in the business. This list must also be provided to the regulator as soon as practicable after it is prepared (s.74). Note: HSRs are only required if requested by a worker. Section 62 to 65 62(4) A PCBU is not required to initiate the election of HSR(s) if the work is carried out by fewer than 20 workers and not within the scope of any high-risk sector. 64(2) & (3) give more control to the PCBU about how the work groups are formed; it is not about negotiation. 64(5) has a general reference to multi-employer HSRs; addressed in (55-59) of the Australian WHS laws. Specific rights/powers/obligation relating to HSRs are outlined in Part 1 of Schedule 2 of the NZ Act. There are no provisions for deputy HSRs. The Mining Sector have additional requirements outlined in Part 3 of Schedule 2 of the NZ Act General principles are the same; but there are some very specific variations. Training is required before an HSR can issue a provisional improvement notice or a cessation of work. NZ training requirements will be specified in the regulations. Additional requirements are outlined in the WHS (Worker Engagement, Participation, and Representation) Regulations 2016 (see detail outlined later in this document). Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 11 of 28 All rights reserved 2016.The Australian Industry Group

12 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Sections 75 to 79 Health and Safety Committees Must establish within 2 months of a request from: a HSR; or 5 or more workers. If there is a HSR, and they consent, he or she will be a member of the committee; if 2 or more HSRs, those HSRs may chose 1 or more of their number to be on the committee. At least half of the members must be workers who are not nominated by the PCBU. Section 66 66(3) A PCBU is not required to establish a committee if work is carried out by few than 20 workers and work is not within the scope of any high-risk sector. 66(5) May refuse to establish a committee if the PCBU considers the worker participation practices are sufficient. Details about the operation of committees are provided in Part 2 of Schedule 2 of the NZ Act. General principles are the same; but there are some very specific variations. Sections 80 to 82 and Regulations 22 to 23 Issue Resolution The Act establishes a requirement to have an agreed procedure to deal with WHS issues or to apply the default procedure outlined in the regulations. The Regulations provide both a default procedure and minimum requirements for an agreed procedure. It is stated that an agreed procedure must include all of the requirements in the default procedure. Sections 98 to 99 Section 98 establishes a requirement to make reasonable efforts to achieve a resolution. No specific requirements for issue resolution procedures, but may interlink with obligation to have participation practices under section 61. A very different approach across the jurisdictions. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 12 of 28 All rights reserved 2016.The Australian Industry Group

13 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Sections 84, 86, 87, 88 and 89 A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker s health or safety, emanating from an immediate or imminent exposure to a hazard. A worker must notify the PCBU they have ceased work and remain available for alternative work; continuity of engagement is specified; an inspector may be called to assist. Sections 85 to 89 Powers of HSRs Work cessation Once an HSR has attended the approved training (or as otherwise determined through transitional arrangements), a HSR may direct a worker to cease work if the HSR has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker s health or safety, emanating from an immediate or imminent exposure to a hazard. Must first consult and attempt to resolve the matter using the issue resolution process, unless the risk is so serious and immediate or imminent that it is not reasonable to consult. The HSR must advise the PCBU of the cessation; workers must remain available to undertake alternative work; continuity of engagement is specified. An inspector may be called to assist. Section 83 83(5) restricts the cessation of work if the work because of its nature, inherently or usually caries an understood risk to health and safety unless the risk has materially increased beyond the understood risk. Sections 82 to 87 84(6) restricts the cessation of work if the work because of its nature, inherently or usually caries an understood risk to health and safety unless the risk has materially increased beyond the understood risk. Provisions are similar, but NZ has more restrictions on ability to cease work. Provisions are very similar but NZ has greater restriction on the ability to direct a cessation of work. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 13 of 28 All rights reserved 2016.The Australian Industry Group

14 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Section 90 to 102 Sections 69 to 81 Provisional Improvement Notices (PINs) issued by HSRs Provisions are almost identical. Can only be issued after HSR has attended the approved training (or as otherwise determined through transitional arrangements). Can be issued if there is a contravention; must consult with PCBU first; and must give a required date for remedy that is at least 8 days after the notice. An HSR can make minor modifications and can cancel a PIN. PIN must be displayed in the workplace. PCBU must comply or seek review by inspector. Part 6 Prohibition on discriminatory, coercive and misleading conduct due to their activities in relation to health and safety. Part 7 Workplace entry by WHS entry permit holders Entry for the purposes of inquiring into a suspected contravention consulting and advising workers in relation to WHS Sections 88 to 97 Prohibition of adverse, coercive or misleading conduct. There are no union right of entry powers under the HSW Act in NZ. Very similar provisions; important to clearly understand exact provisions in the relevant jurisdiction. Not relevant to NZ Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 14 of 28 All rights reserved 2016.The Australian Industry Group

15 Australian Model WHS Laws New Zealand HSW Act 2015; effective 6 April 2016 Comments Part 8 The Regulator Part 9 Securing Compliance Part 10 Enforcement Measures Part 11 Enforceable Undertakings Part 12 Review of Decisions Part 13 Legal Proceedings Part 14 General offence to give false or misleading information Act does not affect legal professional privilege Immunity from liability (inspectors) Confidentiality of information No contracting out Person not to levy workers Codes of Practice Regulation making powers Part 4 Enforcement and Other Matters Subpart 1: Enforcement Measures Subpart 2: Remedial Action Subpart 3: Civil proceedings for non-compliance with notices Subpart 4: Enforceable undertakings Subpart 5: Review and Appeals Subpart 6: Infringement Notices Subpart 7: Criminal Proceedings Subpart 8: Sentencing for Offences Subpart 9: General provisions relating to offences Part 5 Miscellaneous Provisions Subpart 1: Administration Subpart 2: Authorisations Subpart 3: General Provisions incl. regulations, exemptions, Codes of Practice, Safe Work Instruments Many of the provisions are the same. As legal constructs, NZ provisions should be considered in detail. Important to note that the NZ Act establishes a general ability to issue infringement notices. Under WHS laws, the right is often established under separate laws. S.27: not to levy worker a bit more specific detail in relation to personal protective equipment S.28: no contracting out S.29: offence to take out insurance against fines. No equivalent Schedule 3 of the Act establishes specific provisions for the mining sector No equivalent in the Model WHS Laws. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 15 of 28 All rights reserved 2016.The Australian Industry Group

16 The Regulations The Act establishes a general duty to eliminate or minimise risks, so far as is reasonably practicable. Specific detail is then provided in the Regulations in relation to risks and/or industries that it has been agreed could benefit from more detail about how to manage these risks. If a risk is not covered in the regulations, it does not mean that an employer does not need to manage the issue, just that they can apply their own approach to the management of that risk. New Zealand is issuing regulations on an evolving basis, and using legislative instruments to make minor amendments to existing regulations and make them effective under the HSW Act. It should also be noted that Schedule 1 of the HSW Act establishes that Codes of Practice issued under s.20 of the HSE Act 1992 continue in force as if made under this Act. The following regulations have had minimal changes to align terminology and concepts with the HSW Act. The title remains unchanged, other than to replace Health and Safety in Employment with Health and Safety at Work: Health and Safety at Work (Adventure Activities) Regulations 2016 Health and Safety at Work (Mining Operations and Quarrying Operations) Regulations 2016 Health and Safety at Work (Petroleum Exploration and Extraction) Regulations 2016 Health and Safety at Work (Rates of Funding Levy) Regulations 2016 Schedule 1 of the HSW Act establishes that many existing Regulations are to be treated as regulations made under the HSW Act Amusement Devices Regulations 1978 Health and Safety in Employment (Pipelines) Regulations 1999 (with amendments in Schedule 5) Health and Safety in Employment (Pressure Equipment, Cranes, and Passenger Ropeways) Regulations 1999 (with amendments in Schedule 5) Health and Safety in Employment Regulations 1995 (as amended by Schedule 5 and the HSW Regulations 2016) Lead Process Regulations 1950 Spray Coating Regulations 1962 Geothermal Energy Regulations 1961 Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 16 of 28 All rights reserved 2016.The Australian Industry Group

17 As reported on the WorkSafe NZ website, at 9 March 2016: Regulations specifying infringement offences and fees will be finalised shortly. The regulations for work involving hazardous substances will be finalised later this year. Regulations to support the power in the new Act for the regulator to grant exemptions from regulatory requirements (clause 228A) will be developed this year. Phase two regulations will be developed over the next two years. In February 2016, four new Regulations were made under the HSW Act. An overview of these Regulations is provided below, with more detail provided in subsequent information later in this document. Regulations under the Health and Safety at Work Act 2015 Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 Health and Safety at Work (Worker Engagement, Participation and Representation) Regulations 2016 Health and Safety at Work (Asbestos) Regulations 2016 Health and Safety at Work (Major Hazard) Regulations 2016 Covering a range of issues that apply broadly to workplaces, and encompass some of the provisions previously in the HSE Regulations It should be noted that some provisions of the HSE Regulations continue to be in place. Providing information about requirements for elections of health and safety representatives (HSRs), establishment of committees, and training entitlements for HSRs Revoking the Health and Safety in Employment (Asbestos) Regulations 1998; these new Regulations largely replicate the Model WHS Regulations, with some areas of variation. Establishing a regime for WorkSafe NZ to oversight the operation of facilities with specified quantities of hazardous substances (see schedule 2 of the Regulations for more information). Transitional arrangements are in place for the MHF Regulations with compliance required by 4 April Employers who believe that the MHF Regulations may apply to them should access the dedicated section of the WorkSafe NZ website here. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 17 of 28 All rights reserved 2016.The Australian Industry Group

18 New Zealand Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 The majority of these regulations are based on Chapter 3 of the Australian Model WHS Laws. Many of the definitions included in this NZ Regulation are outlined in Chapter 1 of the Australian Model WHS regulations. Australian Model WHS Laws New Zealand HSW Regulations 2016 Comment/Action The Act establishes the obligation to eliminate or minimise risk so far as is reasonably practicable. The Act establishes the obligation to eliminate or minimise risk so far as is reasonably practicable Same provisions. Regulation 34 creates a specific obligation to identify all reasonably foreseeable hazards that relate to the risks or industries covered by the regulations. Regulation 5 Slightly different wording, but same intent. Regulation 35 establishes a requirement to eliminate or minimise risks so far as reasonably practicable. There is no equivalent regulation, the NZ regulations rely on the general duty in the Act. No real difference in intent or application. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 18 of 28 All rights reserved 2016.The Australian Industry Group

19 Australian Model WHS Laws New Zealand HSW Regulations 2016 Comment/Action Regulation 36 establishes specific requirements to minimise risk, if it is not reasonably practicable to eliminate the risks, by applying the hierarchy of control. In minimising risks a duty holder must implement risk control measures in accordance with this regulation - Must apply one or more of the following: o Substituting (wholly or partly) the hazard giving risk to the risk with something that gives rise to less risk; o Isolation the hazard from any person exposed to it; o Implementing engineering controls - If a risk still remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls - If a risk still remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment In addition to this general hierarchy, specific control measures are detailed in some of the individual regulations. Regulation 6 the hierarchy follows the same format, and definitions are consistent. Conclusion: Effectively the same provisions Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 19 of 28 All rights reserved 2016.The Australian Industry Group

20 Australian Model WHS Laws New Zealand HSW Regulations 2016 Comment/Action Regulation 37 requires that control measures are maintained so that they remain effective. Regulation 38 establishes a range of triggers that will initiate a review of control measures. In addition to these general requirements, some individual regulations establish more triggers for review. Regulation 39 is an avoidance of doubt provision that established that the information, training and instruction provided to a worker is suitable and adequate and is readily understandable. Regulation 40 outlines requirements to provide general workplace facilities, encompassing labour, space, floors, lighting, ventilation, extreme heat or cold, and work near essential services. Regulation 41 outlines the duties to provide and maintain adequate and accessible facilities, such as water, toilets, washing facilities and eating facilities Regulation 42 specifies the requirements to ensure access to appropriate first aid facilities and trained first aiders. Regulation 7 Regulation 8 has some specific additional triggers related to results of health monitoring reports; these would be expected to initiate action under the Model WHS Regulations in line with identifying that the controls were not effective. Regulation 9 has a broader focus; it incorporates supervision and provides more detail about what is required. Regulation 10 covers most of the same issues, but does not address work near essential services. Regulations 11 and 12 cover many of the same topics, but in more detail. Regulation 13 Effectively the same provision. The NZ regulations have more detail than the Australian regulations and need to be considered specifically to ensure compliance. Provisions are very similar. NZ operations will need to reference the NZ laws to ensure compliance. The provisions are the same. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 20 of 28 All rights reserved 2016.The Australian Industry Group

21 Australian Model WHS Laws New Zealand HSW Regulations 2016 Comment/Action Regulation 43 specifies the requirements for ensuring an emergency management plan is prepared for the workplace. Regulations 44 to 47 outline the duties of the PCBU, workers and other persons in relation to the provision and use of personal protective equipment (PPE), including a requirement that the PCBU must provide the workers with the necessary PPE. Regulation 48 requires a PCBU to manage the risk associated with remote and isolated work, including the provision of a system that includes effective communication with the worker. Remote and isolated work is defined within this regulation. Regulation 49 and 50 establish that a PCBU must ensure that no person at the workplace is exposed to a substance at a level above the relevant exposure standard, and must undertake air monitoring if there is doubt about the level of airborne concentration. Regulations 51 and 52 address issues associated with hazardous atmospheres including the presence of ignition sources. Section 53 addresses the management and storage of flammable and combustible substances. Regulation 14 Regulations 15 to 20 address the same issues, but do include a specific ability for a worker to provide their own PPE if the worker genuinely and voluntarily chooses to do so for reasons of comfort or convenience. Regulation 21 The definition is included in Regulation 3 Regulations 28 to 42 cover these requirements and detailed requirements for health monitoring. Regulations 22 and 23 address the same issues, but refer to atmosphere with potential for fire or explosion. No equivalent covered by the Hazardous Substances and New Organisms Act 1996 and supporting Regulations. The provisions are the same. The varying specific requirements mean that each piece of legislation needs to be addressed to identify application in the relevant jurisdictions. Provisions are the same. Provisions are similar, but NZ includes more detail. Provisions are effectively the same. Dealt with through separate legislation. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 21 of 28 All rights reserved 2016.The Australian Industry Group

22 Australian Model WHS Laws New Zealand HSW Regulations 2016 Comment/Action Sections 54 and 55 address the risks associated with falling objects. Section 25 also addresses risks association with falling objects, but the wording is a bit different. There are some minor variations in requirements Additional requirements in the New Zealand Regulations The following topics, which are not address in the Australian Model WHS Regulations, are included in the New Zealand Health and Safety at Work (General Risk and Workplace Management) Regulations Regulation 26 Regulation 27 Containers of liquids - drowning risks Loose but enclosed materials - engulfment risks Regulations 43 to 48 Young persons at work (under 15) - not to carry out certain work - not to be present in certain workplaces - not to perform harmful tasks - not to work at or with machinery - not to drive or ride upon certain vehicles - not to carry out night work Regulations 49 to 52 Limited-attendance child-care centres - police vetting of workers Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 22 of 28 All rights reserved 2016.The Australian Industry Group

23 New Zealand Health and Safety at Work (Worker Engagement, Participation, and Representation) Regulations 2016 The NZ Act provisions for worker engagement, participation and representation apply the same principles as the consultation and representation provisions in the Australian Model WHS Act. To address this different focus, the supporting Regulations are very different. The information below is a summary of the key NZ provisions incorporated in the Regulations. Regulation 5 Regulations 6 to 8 Regulations 9 to 17 Regulations 18 to 19 Regulation 20 Regulation 21 The Act allows an employer to deny a request for the election of Health and Safety Representatives (HSRs) (s.62(4)(b)) and the establishment of Committees (s.66(3)(b)) if the work is undertaken by fewer than 20 workers and the work is not within the scope of any high-risk sector or industry prescribed the Regulations. This Regulation 5 establishes these industries. Outline the specific requirements for establishing work groups, including a ratio of Health and Safety Representatives of 1 representative for every nine workers. Requirements for elections. Office of health and safety representatives. Duty to maintain a list of HSRs (equivalent to s.74 of the Model WHS Act) Training; HSRs must complete initial training, which includes an assessment of competency; HSR can utilise the annual training entitlement to attend initial, additional or transitional training; Choice of training in consultation with PCBU. The maximum total number of days of paid leave that a PCBU is required to allow for training for HSRs, in any one calendar year, is determined by the number of workers, as follows: Workers at specified date in year Maximum total number of day s paid leave required to be provided day for every 8 workers or part thereof 281 or more 35 days plus 5 days for every 100 workers or part thereof Regulations 27 to 29 Provisions related to health and safety committees: Composition; Meeting requirements; Determination by inspectors. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 23 of 28 All rights reserved 2016.The Australian Industry Group

24 Asbestos Australian Model WHS Laws Chapter 8; NZ HSW (Asbestos) Regulations 2016 Management of asbestos Both sets of regulations require the management of insitu asbestos. The Model WHS Regulations require the establishment and maintenance of an asbestos register and an asbestos management plan, for all workplaces built up until 31 December 2003; if there is no asbestos present, this will be a nil register. The NZ HSW Regulations do not specifically require an asbestos register, rolling all the requirements into an asbestos management plan; the trigger for the plan is the identification of asbestos, not a specific date. This means that the specific requirements to seek and provide an asbestos register, that occur at various locations within the Model WHS Regulations do not apply in New Zealand As the specific obligations relating to asbestos registers and asbestos management plans are broader under the WHS laws than that required under the NZ laws, an employer could adopt the approach in the WHS laws and within New Zealand. Reference should be made to the specific items that must be included in the management plan. Asbestos removal The majority of provisions relating to the licensing of asbestos removalists and assessors and the requirements for undertaking asbestos removal work are the same, and they follow the same order in the NZ HSW Regulations as they do in the Model WHS Laws. There are some specific variations due to local requirements, but it is very easy to compare and contrast the specific provisions. Hence, if an Australian employer has a general understanding of the Model WHS Regulations it provides a good base for applying similar approaches in NZ. It should be noted that the 10 square metre rule is written differently in the NZ Regulations, resulting in a tighter application of the Regulations, as illustrated in the following table. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 24 of 28 All rights reserved 2016.The Australian Industry Group

25 Australian Model WHS Regulations R.458 (2) Subregulation (1) ) [requirement to ensure asbestos removalist is licensed] does not apply if the asbestos to be removed is: (a) 10 square metres or less of non-friable asbestos or ACD [asbestos containing dust or debris] associated with the removal of that amount of non-friable asbestos; or (b) ACD that is not associated with the removal of friable or non-friable asbestos and is only a minor contamination. NZ HSW Regulations R.27(2) Subclause (1) [requirement to ensure asbestos removalist is licensed] does not apply if the asbestos to be removed is: (a) Cumulatively over the whole course of the removal project for the site 10 m 2 or less of non-friable asbestos or ACD [asbestos containing dust or debris] associated with the removal of that amount of non-friable asbestos; or (b) ACD that is not associated with the removal of friable or non-friable asbestos that is only a minor contamination. As a regulated industry asbestos removalists will need to refer specifically to the NZ Regulations to ensure compliance but can be confident that most Australian practices will apply in NZ. Major Hazard Facilities Australian Model WHS Laws Chapter 9; NZ HSW (Major Hazard Facilities) Regulations 2016 The approach to major hazard facilities is highly regulated involving notifications, safety cases, safety management systems and licensing. For this reason a detailed comparison of the two sets of laws is not appropriate for this document. As a regulated industry Major Hazard Facilities (MHFs) will need to apply current approaches as required by the regulator. Note: that there are transitional arrangements in place with operators of MHFs required to complete certain requirements by 4 April 2018 Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 25 of 28 All rights reserved 2016.The Australian Industry Group

26 The following topics are covered in detail in the Australian Model WHS regulations, but not currently covered by the NZ Health and Safety at Work Regulations Noise Australian Model WHS Laws Part 4.1 Continues to be covered in NZ Health and Safety in Employment (HSE) Regulations 1992 (Regulation 10 & 11) Hazardous manual tasks (manual handling) Australian Model WHS Laws Part 4.2 In NZ addressed through the Code of Practice for Manual Handling Confined spaces Australian Model WHS Laws Part 4.3 WorkSafe New Zealand accepts AS 2865 Confined spaces as the current state of knowledge on confined space entry work Falls Australian Model WHS Laws Part 4.4 Duties in relation to heights of more than 3 metres are covered in Regulation 21 of the HSE Regulations In addition there is a Best practice guidelines for working at height in New Zealand High risk work (licensing) Australian Model WHS Laws Part 4.5 New Zealand requirements for Certificates of Competence are outlined in Part 3 of the HSE Regulations Requirements for divers are covered in Part 4 of the HSE Regulations. Where there are no requirements for a certificate of competence, requirements for training and authorisation may be outlined in Codes of Practice, for example Approved Code of Practice for Training Operators and Instructors of Powered Industrial Forklifts Plant and Structures Australian Model WHS Laws Chapter 5 New Zealand regulates specific plant under the HSE (Pressure Equipment, Cranes and Passenger Ropeways) Regulations 1999 and the Amusement Devices Regulations 1978, supported by Approved Codes of Practice for: Cranes; Pressure Equipment; Boilers; and Passenger Ropeways. Scaffolding is addressed in Regulations 22 of the Health and Safety in Employment Regulations Schedule 1 of the HSE Regulations 1992 provides information about protective devices or apparatus for woodworking or abrasive grinding machinery. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 26 of 28 All rights reserved 2016.The Australian Industry Group

27 Construction work Australian Model WHS Laws Chapter 6 There are no general Regulations for construction work. Regulations 50 to 53 of the NZ HSE Regulations 1992 cover requirements associated with power-actuated tool operator and scaffolder. Regulations 23 to 25 deal with excavations. Hazardous Chemicals general Australian Model WHS Laws Part 7.1 In NZ these issues are addressed through the Hazardous Substances and New Organisms Act 1996 and Regulations and Codes of Practice. Consultation on the Draft Health and Safety at Work (Hazardous Substances) Regulations 2016 was completed on 26 February The Regulations are still to be finalised. Hazardous Chemicals lead Australian Model WHS Laws Part 7.2 In NZ the management of lead is covered by the Lead Process Regulations Mines Australian Model WHS Laws Chapter 10 The draft Australian Model WHS Regulations for Mines have not been ratified by Ministers. Some jurisdictions have adopted the Regulations, with significant modifications. In NZ these activities will be covered by the HSW (Mining and Quarrying Operations) Regulations 2016, which replace the HSE (Mining and Quarrying Operations) Regulations 2013, with minimal amendments. Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 27 of 28 All rights reserved 2016.The Australian Industry Group

28 Ai Group Resources to assist you with Work Health and Safety Workplace Advice Line BIZassistManual Free to Members: Available online Ai Group Publications Work Health and Safety Handbook for Officers, Managers and Supervisors Training (Public courses or on site) Seema Khatri: Tailored onsite services Trinette Jaeschke: Designed to meet your organisation s specific needs. General information about Tracey Browne: Australian Model WHS laws Mark Goodsell: and the New Zealand context Comparison of provisions Australian Model WHS Laws and NZ HSW Laws (effective 4 April 2016) at March 2016 Page 28 of 28 All rights reserved 2016.The Australian Industry Group