When will WorkSafe intervene

This position sets out WorkSafe New Zealand’s (WorkSafe) approach for determining whether it is appropriate for WorkSafe to intervene in circumstances where WorkSafe and another agency both have a role in promoting work health and safety.

This position provides guidance on what factors WorkSafe will take into account when considering whether to intervene [1] in a matter that falls within the scope of WorkSafe’s functions, but is also influenced by other legislation or regulations.

The purpose of having this position is to minimise confusion for duty-holders about which regulator is responsible and to ensure that WorkSafe is targeting its resources to achieve the greatest benefits across New Zealand’s work health and safety system.

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Application

Section 191 of the Health and Safety at Work Act 2015 (HSWA)(external link) allows the Prime Minister to designate other agencies [2] as being responsible for work health and safety in certain sectors. This position does not apply to the scope of activities covered by the designation, but may apply to matters where there is legislative overlap and which are not covered by a designation.

Background

WorkSafe is New Zealand’s primary health and safety regulator, with the target of reducing workplace deaths and serious injuries by 25% by 2020. To achieve the system-wide work health and safety changes that will be needed to meet this target, WorkSafe needs to ensure that we are focusing our resources on matters connected to the organisational purpose and functions laid out in the WorkSafe New Zealand Act 2013 (WorkSafe Act).

HSWA is a key tool for WorkSafe to achieve its targets. The jurisdiction of HSWA is deliberately broad, in order to avoid regulatory gaps. This creates a number of situations where a PCBU[3] will be subject to regulatory oversight both under HSWA and other pieces of legislation.

This means that there are a number of matters that fall within the jurisdiction of HSWA, but may be more closely connected to the functions of another agency. These matters may be better addressed by that agency exercising their powers to address the matter, because they have particular skills or competencies that would contribute to effective resolution of the matter. 

What does the law say?

Section 10 of the WorkSafe New Zealand Act 2013(external link) lays out the functions of WorkSafe. For the purposes of this document, the key functions are:

  • monitor and enforce compliance with relevant health and safety legislation
  • provide guidance, advice and information to persons who have duties under relevant health and safety legislation and to the public
  • promote and co-ordinate the implementation of health and safety  initiatives  by  establishing partnerships or collaborating with other agencies or interested persons in a coherent, effective and efficient way.

Section 35 of HSWA also allows WorkSafe to have regard for duties imposed under other enactments when deciding whether someone has satisfied their obligations under HSWA[4]

What factors will WorkSafe consider when deciding whether to intervene?

Where there is a matter that falls within the jurisdiction of HSWA along with other legislation or regulations, WorkSafe will consider whether intervening in the matter would assist us to deliver on our purpose and functions. If it would not, then WorkSafe will not take any action.

If an intervention would assist WorkSafe to deliver on its purpose and functions, we will then consider whether WorkSafe or another agency is best placed to intervene.

In this context, ‘best placed’ means:

  • there is legislation or regulations designed and intended to address the matter
  • the functions of another agency make them better suited to address the matter
  • another agency has better tools to influence behaviour with the aim of reducing future risk
  • the other agency has skills or competencies that enable them to better exercise professional judgement about the most effective way to address the matter
  • the other agency has ability, through exercising their powers, to influence the health and safety performance of those duty-holders under their oversight. For instance, do they have a statutory ability to investigate issues?

Where WorkSafe considers that another agency is best placed, we will engage with them. As part of a collaborative regulatory approach, we will also consider whether there are any work health and safety  matters that may not be resolved by the actions of another agency. Where that is the case, WorkSafe will consider whether collaborative or parallel regulatory intervention is required.

The intent of this position is to ensure that any intervention is being carried out by the agency best placed to influence. expectations on PCBUs continue to be set by the responsible regulator.

As the primary work health and safety regulator, WorkSafe may intervene in any matter that falls within the scope of HSWA or other legislation that WorkSafe is responsible for (unless it is covered by a designation). WorkSafe may also revisit any matter where we have previously decided not to intervene depending on the circumstances (for example, if new information is uncovered).

Agreements and Memoranda of Understanding

Where WorkSafe has significant interaction with another agency, it may be appropriate to set up an agreement or Memorandum of Understanding to guide those interactions, balance the priorities of both organisations, and to ensure that any potential gaps or overlaps are accounted for. These agreements will take this position into account.

[1] The term ‘Intervene’ covers the full range of WorkSafe’s activities, from investigations and prosecutions to guidance and educational campaigns.

[2] For the purposes of this document, ‘agency’ means any core government department, Crown entity/Agent other than WorkSafe or oversight body that is empowered by legislation to monitor compliance and carry out enforcement activities.

[3] A ‘Person Conducting a Business or Undertaking’ has a number of duties under HSWA.

[4] WorkSafe also has responsibilities under the Hazardous Substances and New Organisms Act 1996, the Electricity Act 1992 and the Gas Act 1992.