Health & Safety Law – The Wheel Turns, and We Can Only Ride It.

How did we get here?

Sometimes, it seems like I’ve spent my entire career doing ‘thought leadership’ about changes to health and safety law. When I first started working in engineering related to health and safety, the country and its industries were still living in the aftermath of Pike River and the Christchurch Earthquakes. The Pike River Royal Commission had reported and issued a damning indictment of the state of worker protection at the mine. The Independent Taskforce on Workplace Health & Safety was underway, working hard on the report it would issue in April 2013, which recommended profound changes to the legal and regulatory framework for health and safety. These events and reports, along with the consensus that ‘something needed to be done’ to improve health and safety performance, led to the Health and Safety at Work Act (HSWA), which came into effect with great fanfare and excitement in 2016.

Where did things go wrong?

That was ten years ago, and the post-Pike consensus has frayed. We’ve now got a new variant of H&S law, which comes into effect in April 2027. This new law is a response to a now-widespread opinion amongst business owners that the existing law was unclear, that there were too many onerous duties, and that it was too hard to know what good looked like. Something needed to be done, and the ‘something’ that has been done is a new law.

In my view, the underlying problem was a real one. I said so myself plenty of times during the Minister’s consultation roadshow after the last election. It wasn’t clear to most businesses what good looked like, or how far H&S was supposed to go. HSWA was meant to be supported by a whole raft of regulations and guidance to provide clarity on what good looked like, but these were never developed. Successive governments dropped the ball and left businesses trying to apply a top-level, principles-based law without any of the underlying architecture that was supposed to make compliance easier (and was supposed to provide day-to-day protection for people).

This led to a situation where many of the ‘rules’ were little more than anecdote, or practices copied from business to business on the basis that ‘if they’re doing it, it must be what needs to be done’. In effect, the regulation-making role was abrogated by the regulators and sat, by default, with the people trying to make things work.

‘Health and safety gone mad’

That led to widespread silly situations, which became widespread anecdotes along the lines of ‘health and safety gone mad’, ultimately contributing to the breakdown of the post-Pike consensus.

As an example, I was told recently about a case where a person was denied entry to an office building because they didn’t have shoes on, and it was only by resorting to a higher power that they could gain access to the people they needed to see. The grounds for this were: ‘People need closed-toe shoes to come into our office; it’s health and safety.’

That sounds stupid, it sounds nonsensical, it sounds like health and safety gone mad. That’s exactly the sort of anecdote that gets people angry and frustrated with health and safety. And people should be angry and frustrated by cases like that, because they are health and safety gone mad.

But is health and safety really the problem?

When confronted with a problem, it’s important that we try to understand what’s really going on. It’s easy to lurch from anecdata about silly things being done in the name of health and safety to the conclusion that H&S needs to be wound back, but that risks throwing the baby out with the bathwater. The problem isn’t health and safety – the problem is that we’ve gone mad.

Think about that office. The organisation is required to protect people from harm ‘so far as is reasonably practicable’. That’s a term that sounds vague to everyone except specialists, but basically it means exactly what it says on the tin – that the controls we implement to reduce risk should be reasonable. We’re expected to think through the risks that our work poses to people, and then do everything we reasonably can to reduce those risks.

What risk are we actually controlling?

What’s the risk being controlled by a rule about closed-toe footwear? In a perfectly normal office environment? I can’t think of one. If I’m at work at the weekends and the weather’s warm, it’s not uncommon for me to be in jandals myself.

I would bet any amount of money that the rule in that office came about because it wound up in a generic document template and was applied unthinkingly to locations where it wasn’t necessary. The rule probably started life in an organisation with actual hazards to control (workshops or labs, for example) and then was propagated mindlessly from there.

If we assume my (admittedly cynical) model for how the rule propagated is real, then the question becomes: was it ‘health and safety’ that was the problem, or just laziness in how it was handled in that organisation? Is the problem that there are obligations to manage risk – or that a lazy shortcut was found?

The real problem: clarity

The truth is, H&S has always been a great excuse to reach for, either to avoid doing something we don’t want to do or as an ex post facto rationalisation for something we do want to do. That’s why there need to be clear regulations and clear guidance to explicitly tell people making decisions what good looks like.

People are busy; we all only have a certain amount of cognitive bandwidth, and outside our own fields, we struggle to get up to speed enough to figure things out from first principles. That’s why we need either expert advice or specific and clear statements of requirements. The gap in knowledge and guidance has always been a real problem, and it needs to be solved.

Does the new law solve the problem?

Does the new law solve this problem? I don’t think so. If anything, it adds confusion by creating new carve-outs and boundaries to the existing duties. The whole process of law change, with consultation and then the parliamentary process, has sucked up months of time and attention from hundreds (probably thousands) of people – time that could have been better spent solving the actual problem. And now business owners need to spend time and attention wrapping their heads around a modified set of obligations – time and attention that could be spent doing things like improving machine guarding or dealing with any of the other things that are causing harm day to day.

What comes next?

Over the next few weeks, we will be regularly posting short essays like this one, exploring each aspect of the new law and highlighting what it’s likely to mean. Our intention is for these to be useful to our clients, so they’ll be written with small businesses in mind, rather than geared towards large corporates. We hope you find them useful.

Next week, I’ll be writing about ‘critical risk’ – what it means, how to manage it, and why it’s actually a pretty good framework for thinking about danger in your workplaces.

The wheel turns, and we have no choice but to ride it through the next revolution – until someone figures out how to break the wheel.

Joe Bain is a Chartered Professional Engineer (CPEng), Fellow of Engineering New Zealand, and Operations Director at Motovated Design & Analysis in Christchurch. With a background spanning mechanical engineering, machinery and mobile plant safety, hazardous substance storage, and expert witness work, Joe brings extensive experience to the practical challenges of engineering and workplace safety.

Joe is also Chair of the New Zealand Society for Engineering Safety, a technical group of Engineering New Zealand. In this article, he shares his perspective on the changing health and safety landscape in New Zealand and what the latest changes could mean for businesses.