The Health and Safety at Work Amendment Bill (the Bill) has been introduced to Parliament and is the centrepiece of the Government’s reform of New Zealand’s health and safety regulatory framework. The changes proposed in the Bill represent the most significant reform to New Zealand’s health and safety regime since the Health and Safety at Work Act 2015 (HSWA) came into force in 2016.

The Bill’s stated aims are to reduce unnecessary compliance costs, to increase certainty for businesses and organisations about their health and safety obligations, and to support continued reductions in workplace fatalities, injuries, and illnesses. 

PCBUs and officers should understand these changes now to prepare for their implementation, and to inform any submissions on the Bill as it progresses through the House.

We summarise the most significant changes below.

Purpose section re-written to focus on critical risk

The Bill proposes replacing the purpose provision in the HSWA, with a new purpose provision that describes a “main purpose” (focussed on critical risk) and a series of other purposes.

The proposed main purpose is that HSWA will provide a balanced framework for securing the health and safety of workers and workplaces that prioritises the critical risks that arise from work. While a need to prioritise critical risks has always arguably been implicit, and reflected in guidance documents from WorkSafe and others, the explicit recognition and elevated status as the Act’s “main purpose” is new. Most of the other listed purposes also already exist in the current HSWA. That said, the Bill proposes one new purpose: “to give PCBUs certainty about the scope of their obligations to comply with this Act and regulations made under this Act.” 

While this change signals the Government’s intention to direct attention and resources towards critical risks and improve certainty for businesses, the proposed new purpose provision lists several other purposes, which may overlap and compete with the main purpose depending upon the circumstances. There is some uncertainty about how the Courts will interpret and apply these purposes and how they will balance the main purpose with the other purposes and the other purposes with one another. The need for clarity as to what is ‘critical’ will also be key (as to which, see below).

Critical risk defined 

The Bill introduces a new defined term: “critical risk”. This concept is fundamental to a number of changes proposed in the Bill.

Critical risk is defined as a risk associated with either a hazard described in new Schedule 1A (including adventure activities and risks such as those connected with remote or isolated work), or a hazard of any kind that is likely to result in death, a notifiable injury or illness, a notifiable incident, or an occupational disease listed in Schedule 2 of the Accident Compensation Act 2001. 

When determining whether a risk is critical, a PCBU must base its assessment on what it knows, or ought reasonably to know, about:


its business or undertaking; 
the hazard with which the risk is associated; and 
whether the hazard is likely to result in one or more of the specified serious consequences.

Determining likelihood of the specified consequences is likely to be challenging in practice, given the Bill does not address how that assessment is made and given it is already problematic in practice.

Subject to one exception (relating to the provision of adequate facilities for the welfare at work of workers), all PCBUs will be required to prioritise critical risks when complying with the HSWA.

Under the Bill, “prioritise” means managing critical risks before managing other risks, monitoring, reviewing, and revising controls relating to critical risks more often than controls relating to other risks, and applying a higher proportion of risk management resources to the management of critical risks compared with other risks.

Importantly, a PCBU’s failure to prioritise critical risks is not an offence. The intention appears to be to create a permission to put less time and effort into non-critical risks, in line with Minister van Velden’s comments about uncertainty regarding the breadth of the duty and over-compliance. In that regard, the explanatory note suggests the intention is to clarify that no specific offence is created for failing to prioritise critical risks (but that a failure to prioritise critical risks might nevertheless form part of the prosecution case against a PCBU charged with breaching the duties in the Act – such as failing to ensure, so far as reasonably practicable, the health and safety of workers by, among other things, failing to prioritise a critical risk). However, the drafting potentially goes further than this. By stating outright that failing to prioritise critical risks is not an offence, the Bill suggests that the offences relating to duties (i.e. ss 47-49) should not apply at all in circumstances where the essence of the breach of duty is a failure to prioritise critical risks (i.e. in situations where a particular control might have made a difference to a health and safety outcome, but would not have been reasonably practicable to have that control in place, without prioritising critical risks at the expense of non-critical risks because resources are finite). 

The Bill’s focus on critical risks is consistent with the Government’s policy intention of focussing the regulatory framework on matters that will reduce workplace fatalities and serious injuries/illnesses. It also echoes the judgment in Maritime New Zealand v Gibson in which the Court emphasised the importance of officers exercising due diligence with respect to critical risks and critical controls. These changes reflect a change in approach to how the regulatory framework directs decision-making around health and safety and will inevitably result in PCBUs directing more resources towards critical risks (and possibly at the expense of other risks). However, whether or not this change will help drive down New Zealand’s stubbornly high workplace harm statistics remains to be seen.

Safe harbours for small PCBUs

The Bill creates a new category of “small PCBU” which, subject to limited exceptions, are required to discharge core health and safety duties only in relation to critical risks.

A small PCBU is a PCBU with fewer than 20 workers. Where worker numbers fluctuate due to the nature of the business or undertaking, the relevant PCBU can still be small a PCBU provided that they reasonably expect to have fewer than 20 workers for 9 out of 12 months.

The safe harbours apply to the primary duty of care, the workplace management and control duty, and other duties imposed on upstream PCBUs. They also apply to certain duties under the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016. Again, there is a limited exception for section 36(3)(e), meaning small PCBUs must still provide adequate facilities for workers’ welfare whether or not critical risks are involved.

This also reinforces that other (i.e. not small) PCBUs do not have a free pass in relation to non-critical risks. They have to comply with the duties in HSWA according to their terms, but while prioritising critical risks over non-critical risks.

Compliance with other enactments results in deemed compliance with the HSWA

The Bill proposes a significant transformation of the relationship between HSWA duties and obligations that arise under other legislation. Where a person is subject to both:


a duty imposed by or under the HSWA to manage a specified risk (regardless of whether regulations also impose specific duties in relation to that risk); and 
one or more requirements imposed by another enactment in relation to the same subject matter, regardless of whether the purpose of the external requirements is to manage risk to work health and safety.

A person who complies with the requirements of the other enactment is taken to have complied with the work health and safety duty. However, if regulations also impose specific duties in relation to that risk, the person must comply with those duties.

The current HSWA provides that the requirements of another enactment that applies in the circumstances and that affect or may affect health and safety “may” be taken into account when determining whether a duty imposed on a PCBU has been complied with. If enacted, this change would represent a sea-change in health and safety regulation. Other health and safety systems (such as the Maritime Rules) generally include prescriptive rules, targeted at particular situations. Where those systems both prescribe specific rules for a particular risk or hazard and fail to anticipate all potential harms arising from that risk or hazard, the proposed new section 35 may create situations where regulators cannot respond to instances of harm to workers’ health, safety, and welfare.

In practice, there will be questions about whether the duty in HSWA and the requirements of other enactments relate to the same subject matter and therefore whether deemed compliance with the HSWA is achieved. While such questions may arise, the proposal will be welcomed particularly by those PCBUs who are subject to sector-specific regulatory requirements under other legislation.

New exceptions to management and control duty

The Bill proposes two exceptions to the duty of a PCBU who manages or controls a workplace under section 37. In both cases, these are singled out in the explanatory note as “areas of confusion” which the Bill aims to clarify. Of these, we have focussed on the exception relating to seismic risk to workplace buildings [1]. 

Where a PCBU manages or controls a workplace that includes all or part of a building and the owner is complying with relevant Building Act 2004 requirements, section 37 does not require the PCBU (owner or tenant) to take further action regarding seismic risk (for example, by directing evacuation) unless an emergency is occurring. Although this is consistent with current WorkSafe guidance, the statutory recognition would address the uncertainty that has arisen for a number of landlords and tenants regarding the way in which the Building Act and HSWA interact with one another where a building they own or occupy has seismic issues. 

Due diligence re-defined for officers

The Bill makes two key changes to the officer due diligence duty under s 44. 

If a person is both an officer and a worker who performs a separate or additional role in the business or undertaking, their duty under section 44 applies only to their role as an officer. To the extent they carry out other work in another capacity, those actions are subject to the (less onerous) duty of workers under section 45.

More fundamentally, to reinforce that the officer duty applies to governance only, the Bill proposes changing the current inclusive definition of due diligence steps into an exhaustive definition of the term. The new due diligence steps are explicitly divided in three steps directed at: 


understanding and keeping up with specified matters (the nature of the PCBU’s operations, hazards and risks associated with them, and health and safety generally);
ensuring the PCBU has available and uses appropriate resources to eliminate or minimise risks, has appropriate processes for receiving and considering information regarding incidents, hazards, and has and implements processes for complying with any duty or obligation under the Act; and
verifying the provision and use of the resources and processes referred to above.

In substantive terms, little has changed when compared to the existing due diligence steps listed in s 44, but making the list exhaustive rather than inclusive will remove ambiguity.

Importantly, s 44 continues to apply in relation to PCBU duties, meaning changes to those duties will have flow-on consequences for officers’ due diligence obligations. For example, officers will need to exercise due diligence to ensure the PCBU is taking appropriate steps to prioritise critical risks (including through the allocation of resources to them).

Increased focus on approved codes of practice (ACoPs)

The Bill authorises any person or organisation to propose a draft ACoP, draft amendment to an ACoP, or draft proposal to revoke an ACoP. This expressly includes (without limitation) the regulator, worker representatives, employer representatives, and industry representatives.

The regulator may recommend its own draft or proposal directly to the Minister. Others may give their draft or proposal to the regulator, who may then recommend it to the Minister after reviewing (and potentially amending) it. In either case, the regulator must comply with existing consultation procedures before recommending the ACoP.

The Bill also strengthens ACoPs by providing that a person with a duty under the HSWA relating to a risk, who acts in accordance with a relevant ACoP, is taken to have complied with the HSWA and regulations in relation to that risk.

This will only apply to new ACoPs which are approved on or after the Bill’s commencement date, as well as to two specific recent ACoPs:


Approved code of practice for loading and unloading cargo at ports and on ships (2024).
Approved code of practice: Safe practice for forestry and harvesting operations (2025).

The use of ACoPs will also remain non-binding, so that PCBUs and officers can still demonstrate compliance through other means.

The new framework for developing ACOPs is welcome. Empowering industry groups to take a more proactive role in developing practical guidance for their sectors should support much-needed modernisation of existing ACOPs and provide a clearer path to achieve compliance with the HSWA.

Next steps

These reforms clearly represent a recalibration of New Zealand’s health and safety framework but the significant changes mainly apply to small PCBUs to the extent they will only be required to comply with duties in relation to critical risks – the threshold for which is a high one. The Bill is expected to be enacted before the House rises on 24 September 2026, with changes commencing the day after Royal Assent. This means PCBUs and officers need to get up to speed with the changes proposed in the Bill in reasonably short order. PCBUs and officers should begin preparing now by:


Where this has not been done already, conducting a critical risk assessment to identify which risks facing your business will fall within the new definition and must be prioritised.
For officers, reviewing governance processes to ensure they align with the clarified due diligence requirements.
Considering whether there are opportunities to develop industry-specific approved codes of practice.

We will continue to monitor the Bill’s progress and provide updates as it moves through the legislative process. Please contact one of our experts if you would like advice regarding these reforms and their implications for your business.

This article was co-authored by Michael O’Brien, a solicitor in our Litigation team. 

Footnotes

[1] The other exception relates to recreational access to an open space.