Health And Safety At Work Act 2015 Reform Update

This week, the Government announced the first update in its suite of reforms to the Health and Safety at Work Act 2015 (HSWA).

In the first announcement on Monday, 31 March 2025 Minister for Workplace Relations and Safety, Brooke van Velden, said that the proposed changes were just the start of the reform programme, and further Cabinet decisions would be sought over the coming months that will “further improve WorkSafe and address sector-specific pain points.”

Since then, announcements have been made on Tuesday, 1 April 2025 and today, Wednesday, 2 April 2025. Further details in respect of these announcements are expected later in the week. Legislation to amend the HSWA is expected to be introduced before the end of the year, and the intention is to pass the new legislation in early 2026.

Key features of the announcements:

Clarifying the distinction between governance and operational management

Following the Maritime New Zealand v Gibson (our coverage of this decision can be found here), Officers have been considering the distinction between Officer obligations under HSWA and the role of the person conducting a business or undertaking (PCBU), which primarily impacts chief executive officers of organisations.

The Minister’s announcement Wednesday, 2 April 2025 indicated that the Government would seek to clarify the distinction between governance and operational management health and safety responsibilities.

Specifically, the announcement was that the legislation will be changed to make clear that “day-to-day management of health and safety risks will be left to managers so that directors and boards can focus on governance and the strategic oversight of the business.” Clarity on this change will be announced in the coming weeks.

Focusing on critical risk for small low-risk businesses

The primary change proposed in the Monday, 31 March 2025 announcement is to create a carve-out for small, low-risk businesses from general HSWA requirements. The proposed change would amend the primary duty of care for such businesses so that they are only required to manage critical risks – which the accompanying fact sheet defines as risk that “could cause death, serious injury or serious illness” – and otherwise to provide basic facilities to ensure worker welfare.

In practice, the Minister clarified that this would require small, low-risk businesses to provide first aid, emergency plans, and basic facilities such as drinking water, suitable lighting and ventilation. ‘Exempt’ businesses would no longer be required to provide aspects of health and safety risk management, with the example given being a psychosocial policy (unless, presumably, psychosocial harm presented a critical risk to the business). At this stage, there is no indication as to what will constitute a “small, low-risk” business for the purpose of the carve-out beyond reference in the Minister’s press release to “a small clothing shop” as an example.

Clarifying the responsibilities of landowners where recreational activities occur on their land

Recently, there has been increased interest in the overlap and interaction of the duties under HSWA of landowners and those who use their land for the purpose of providing a recreational activity. This is a feature of the High Court’s judgment in Whakaari Management Ltd v WorkSafe New Zealand (our coverage of this decision can be found here).

In Tuesday, 1 April 2025 announcement, the Minister proposed a change to clarify the law for landowners in those circumstances with the intention to free up private and public land for recreational use.

The proposed change would clarify that landowners would not be responsible where someone is injured on their land while undertaking recreational activities. The Minister provided the example of a farmer worrying about the risks of a horse trekking business on their land. The proposed changes would clarify for that farmer that they would only need to consider the risks of the horse trekking activity where their work happens in the immediate vicinity of that activity.

This is a material change from the current status of the responsibilities under the HSWA, where the responsibilities of the farmer in relation to the recreational activity would depend on the degree of influence and control they had over the various risks presented by the activity.

Other changes to HSWA

The Minister also announced the following proposed changes that have been agreed by Cabinet:

• The primary purpose of the HSWA to be “sharpened” to focus on critical risk. The implications of this are currently unclear, beyond that the intention is to reduce “tick-box health and safety activities”.
• The boundaries between the HSWA and other regulatory systems that manage the same risks to be clarified, to address perceived concerns regarding “over-compliance”.
• Requirements to notify the regulator to be amended to only significant workplace events (deaths, serious injury, illness and incidents).[1]

WorkSafe to address road cones

The Minister also announced a direction to WorkSafe to confirm and provide guidance on instances of road cone “overcompliance”. As a Ministerial direction, this expansion of WorkSafe’s role will not be required to pass through the House of Representatives as part of the proposed changes to HSWA (the Minister has powers to direct WorkSafe to perform additional functions under the WorkSafe New Zealand Act 2013 and the Crown Entities Act 2004). This change includes the creation of a hotline for the public to report “overzealous road cone use” in addition to the confirmation and provision of guidance on instances of over compliance.

We apprehend that this announcement was deliberately made on Monday, 31 March 2025, rather than included in Tuesday, 1 April 2025, to avoid any confusion as to its significance. Further details of the direction are required, but it is possible this change will take effect soon given the absence of any need for legislative amendment.

Our View

The Minister has a difficult job to do, balancing concerns around unnecessary compliance costs potentially stifling economic activity with the need to address New Zealand’s health and safety performance (which still lags a long way behind performance in the UK and Australia).

The focus on critical risk, and efforts to give clarity on obligations under HSWA, and how they interact with other obligations, are positive steps in the right direction. They may also help to ensure effort is focussed in the right places.

However, while acknowledging further announcements for reform are impending, the proposals that have been announced do not capitalise on the calls from leaders in this space, and the opportunity to make real and lasting improvements to our health and safety system. In that regard they are, perhaps, a lost opportunity.

As emphasised by the Business Leaders’ Health and Safety Forum in their media statement on yesterday’s announcement, the Forums’ State of a Thriving Nation report put the cost of New Zealand’s flatlining harm rates at $4.9 billion in 2023 alone. New Zealanders are 60% more likely to be killed at work than workers in Australia, and 500% more likely than those in the United Kingdom. Those are sobering statistics. We expect that the Government will need to focus more on reforms that positively address those concerns, as well as any desire to minimise compliance costs, in future announcements if they are to positively progress health and safety outcomes in the future.

We will continue to watch with interest as the Government continues its work in this space and as Cabinet makes decisions on other aspects of the reform over the coming months. You can follow our coverage for further updates in this space here.

Footnote

[1] Further detail is required on the full extent of this change to clarify how this differs from what currently constitutes a notifiable event under HSWA.

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