New Laws For A New Decade
Gran t Nicholson reports:
It has been a relatively settled year for the law in the health and safety area, with judges
sharply towards $40,000 per offence.
quickly getting to grips with the approach to sentencing mandated by the High Court in late 2008 and defendants feeling the pinch as average fines rose mmmm
2010 i s shaping up as a more challenging year, due to an impending change in the Health and Safety in Employment Act (‘Act’).
In 2008, the Department of Labour persuaded the then Labour Government to make several changes to the Act, but they were not passed before the election. In December 2009, Minister of Labour, Kate Wilkinson, announced she was going to adopt Labour’s changes, and that National would also change the definition of serious harm.
So, as a health and safety practitioner, what does this mean for you? Probably quite a lot, with the devil being in the detail.
The definition of serious harm
The first important change relates to the definition of serious harm. As most readers will know, the definition is important because it is the threshold for reporting incidents to the Department of Labour. These reports can and often do lead to investigation of workplace accidents by inspectors and to almost all enforcement actions by the Department.
As things stand, the term serious harm is defined in Schedule 1 of the Act. The definition has six parts and is fairly easy to understand. The new law hasn’t been released yet, so we don’t know what it will say.
Labour Minister, Kate Wilkinson has, however, announced that it will be different. All physical injuries will be serious harm if the employee is unable to perform normal duties for ten days or more. This can be contrasted with the current law, which requires the victim to be hospitalised for two days or more.
Other permanent injuries, diagnosed occupational illnesses and one-off events like electrocution or loss of consciousness, will continue to be serious harm as well, regardless of duration of the harm.
Tim e will tell whether this change increases or decreases the burden on employers. According to the Minister, her intention is that employers be spared from the need "to spend an inordinate amount of time dealing with what can be minor matters". It is hard, however, to reconcile this goal with the proposed change, given that Labour’s consultation documents had indicated changing the definition was likely to lead to a potential doubling in the reporting of incidents.
Without a substantial increase in resourcing for the Department of Labour, which appears unlikely in the current political and economic climate, there is a risk that employers will be put to the expense and inconvenience of additional reporting in circumstances where the Department of Labour has little or no ability or enthusiasm to investigate or offer support after the newly notified incidents.