The Bill overhauls how the Health and Safety at Work Act 2015 is applied by distinguishing ‘critical risks’ from lower‑level hazards, carving out lighter obligations for small PCBUs, and enabling a Schedule of hazards (new Schedule 1A) to be maintained by secondary legislation. It also narrows officer due‑diligence duties to governance activities, makes compliance with other enactments count towards HSW Act duties, gives two newer ACOPs a temporary ‘safe harbour’ status and creates a process for third parties to draft ACOPs for regulator review.
These changes are designed to reduce unnecessary compliance costs and increase certainty for businesses by prioritising regulator attention and PCBU effort on risks most likely to cause death or notifiable injury. The Bill shifts both the legal architecture (new definitions and thresholds) and regulatory practice (priority functions for WorkSafe and designated agencies), which will change how compliance teams, lawyers, and regulators allocate time and resources.
At a Glance
What It Does
The Bill defines 'critical risk' (hazards listed in a new Schedule 1A or any hazard likely to cause death, notifiable injury, illness or occupational disease), requires small PCBUs (fewer than 20 workers for 9 of 12 months) to manage only those critical risks under specified provisions, and empowers amendment of Schedule 1A by Order in Council subject to a statutory consistency test. It also gives approved codes of practice (ACOPs) stronger evidential value by creating a safe‑harbour presumption for compliance where an ACOP is followed.
Who It Affects
Small PCBUs (sub‑20 workers), medium and large PCBUs, officers of PCBUs, WorkSafe and other designated regulators (Maritime NZ, CAA), and organisations that develop or rely on ACOPs (industry groups, unions). The amendments to regulations 9, 15(2) and 19 make the small‑PCBU carve‑out operational for specific workplace management duties.
Why It Matters
The Bill is a structural re‑set: it reduces the compliance footprint for many small businesses while concentrating regulatory enforcement on higher‑harm risks. That changes risk management priorities for duty holders, alters the weight of ACOPs in court and enforcement settings, and constrains how regulators allocate resources and advise duty holders.
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What This Bill Actually Does
The Bill introduces a legal concept called 'critical risk' and makes that the organising principle of the HSW Act. Critical risks are either hazards explicitly linked to regulations listed in a new Schedule 1A, or any hazard a PCBU reasonably ought to know is likely to cause death, a notifiable injury or illness, or an occupational disease.
PCBUs must first check Schedule 1A and then apply a catch‑all test for other hazards that meet the serious‑harm threshold. The schedule is kept current by Orders in Council, but any additions or changes must meet the statutory consistency test tied to the catch‑all definition.
A major practical change is the treatment of small PCBUs. The Bill defines a small PCBU as an undertaking with fewer than 20 workers for at least nine months in a 12‑month period, and limits the scope of several specific duties (the primary duty and certain provisions in the General Risk and Workplace Management Regulations) so that small PCBUs have to address only critical risks under those provisions.
Small PCBUs still must provide basic worker welfare facilities and are required to prioritise critical risks when applying other duties, but they are relieved of having to systematically manage lower‑level hazards under the named provisions.The Bill also clarifies overlaps with other legislation by stating that complying with relevant external statutory regimes (for example, maritime safety or Building Act seismic requirements) counts as compliance with equivalent HSW Act duties, subject to any specific HSW regulations. It narrows the scope of officer due diligence to governance activities by converting the previously non‑exhaustive list of due diligence steps into a defined, exhaustive set and by excluding activities the officer performs in another operational role from their officer duty.On the regulatory side, the Bill elevates certain functions for WorkSafe and other designated regulators—placing guidance, ACOP development, safe work instrument creation, and monitoring/enforcement at the top of their function lists—to give regulators clearer statutory direction about priorities.
The Bill strengthens ACOPs by allowing third parties to prepare drafts for regulator consideration and by providing that complying with an ACOP is deemed compliance with the relevant duty; however, only two existing ACOPs receive immediate safe‑harbour status, with others requiring review and Ministerial reapproval to gain that status.
The Five Things You Need to Know
The Bill defines a 'small PCBU' as one with fewer than 20 workers for at least nine months in any 12‑month period, and limits several statutory duties so small PCBUs must manage only 'critical risks' under those duties.
A new Schedule 1A lists hazards linked to regulations; it can be amended by Order in Council only if the change satisfies the Bill’s catch‑all consistency test for critical risks.
If a person complies with relevant requirements under another enactment that address the same subject matter, that compliance will be treated as compliance with the HSW Act duty (but specific HSW regulations still apply).
The Bill gives persons who act in accordance with an approved code of practice (ACOP) a statutory presumption of compliance, and allows third parties to draft ACOPs for regulator review and Ministerial approval.
WorkSafe’s (and designated agencies’) main functions are reordered and prioritised to emphasise guidance, development of ACOPs and safe work instruments, and monitoring and enforcement.
Section-by-Section Breakdown
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Rewrites the Act’s purpose to prioritise critical risks
Clause 4 separates the Act’s main purpose (explicit prioritisation of critical risks) from other purposes such as providing certainty to PCBUs. That rewording is consequential across multiple provisions and signals that statutory interpretation and regulator action should give primacy to preventing serious harm when balancing health and safety priorities.
New definitions: 'prioritise' and 'small PCBU'
Clause 7 inserts a working definition of 'prioritise' for critical risks — it includes allocating greater resource, monitoring controls more frequently, and managing those risks before others. Clause 8 creates the small‑PCBU threshold (<20 workers, with a 9‑of‑12‑months test), which is the trigger for reduced duties under later provisions and will be consequential for businesses with seasonal or variable workforces.
Defines 'critical risk' and limits small PCBU duties
New section 22A sets out the two‑part definition of critical risk (hazard in Schedule 1A or any hazard likely to cause death or notifiable harm). Sections 25A‑25C operationalise the carve‑out for small PCBUs by specifying which statutory duties and which regulations apply only in relation to critical risks, and by requiring PCBUs to base their critical‑risk assessments on what they know or should know about their operations.
Compliance with other enactments counts for HSW duties
The new provision treats compliance with external regulatory regimes that address the same subject matter as satisfying the HSW Act duty, which reduces duplicative compliance where another specialised system applies. The trade‑off is that specific HSW regulations remain mandatory; the change is a procedural bridge between regimes rather than a wholesale transfer of responsibilities.
Officer duty narrowed and notification requirements clarified
Clause 21 limits an officer’s duty to activities performed as an officer (excluding operational acts in other roles) and replaces the open list of due‑diligence steps with an exhaustive set focusing on governance oversight and up‑to‑date understanding. Separately, the Bill provides examples and definitions to tighten what events must be notified to the regulator, reducing ambiguity about notifiable incidents.
ACOPs: third‑party drafting and safe harbour for compliance
The Bill allows non‑regulator parties (industry groups, unions, employers) to draft ACOPs and submit them to the regulator, who must ensure statutory consultation before recommending Ministerial approval. It elevates compliance with an ACOP into a statutory presumption of compliance and grants safe‑harbour status immediately to two recent ACOPs, while older ACOPs need review and reapproval to gain that same status.
Schedule 1A of hazards and regulatory alignment for small PCBUs
Clause 31 inserts Schedule 1A, which cross‑references regulations that address particular hazards; Part 3 amends regulations 9, 15(2) and 19 so those rules apply to small PCBUs only in relation to critical risks. The Schedule’s content will determine much of the carve‑out’s practical scope, and the Bill constrains how the Schedule may be changed by secondary legislation.
Prioritises WorkSafe and designated regulator functions
These clauses reorder and narrow the main statutory functions of WorkSafe and other designated regulators, putting guidance, ACOP and safe work instrument development, and monitoring/enforcement at the top of the hierarchy. The effect is to give regulators statutory cover to focus resources on higher‑harm areas, but it also changes the basis on which they may decline to act in lower‑risk spaces.
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Explore Employment in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Small PCBUs (fewer than 20 workers): They face a narrower set of mandatory duties under specified provisions, reducing compliance time and cost for lower‑risk work that doesn’t meet the critical‑risk threshold.
- Industry and sector bodies able to draft ACOPs: Groups that develop practical standards can propose codes directly, giving sectors a faster route to shape compliance norms and potentially secure safe‑harbour status for industry practices.
- WorkSafe and designated regulators: The statutory reprioritisation gives regulators clearer authority to focus resources on high‑harm risks and to justify allocating enforcement and advisory effort accordingly.
Who Bears the Cost
- Medium and large PCBUs: They must still manage all risks and now must demonstrably prioritise critical risks, which could require reallocation of health‑and‑safety resources and refreshed risk registers and controls.
- Regulators (implementation burden): WorkSafe and designated agencies must review and approve third‑party ACOP drafts, maintain oversight of Schedule 1A amendments, and recalibrate enforcement strategies—tasks that consume regulatory time and may need additional funding.
- Legal and compliance advisers: Uncertainty about what qualifies as a critical risk, how Schedule 1A will evolve, and how courts will treat the ACOP safe harbour will create advisory demand and potential litigation risk for businesses testing the new boundaries.
Key Issues
The Core Tension
The Bill balances two solid goals—reducing compliance costs and increasing certainty for small employers, and concentrating effort on preventing serious harm—but those aims pull in opposite directions: carving out duties risks under‑managing lower‑frequency hazards, while giving safe‑harbour status to ACOPs increases certainty at the potential cost of discouraging tailored, context‑specific safety solutions.
The Bill’s operational effect depends heavily on the content and maintenance of Schedule 1A and on how the catch‑all test for critical risks is applied in practice. Because the Schedule is amended by Order in Council, regulators and businesses will need a robust, transparent process for deciding which hazards are listed; otherwise the Schedule could become the locus of political or administrative dispute.
The statutory constraint that any added hazard must meet the catch‑all test limits arbitrary additions, but the test itself relies on assessments of likelihood and severity that can be contested in particular workplaces.
Limiting small PCBUs’ duties reduces compliance burdens but risks leaving gaps where low‑probability but still harmful events are not systematically managed by small employers. The Bill attempts to bridge that by requiring small PCBUs to prioritise critical risks in other duties, but without creating an offence for failing to prioritise, enforcement incentives are muted.
The new ACOP safe‑harbour increases certainty for those who follow an ACOP, yet it can also ossify standards: regulators and courts may defer to ACOPs rather than encourage context‑specific risk management, and older ACOPs without immediate safe‑harbour status will create a two‑tier regime until reapproval processes are complete.
Finally, the change that treats compliance with other enactments as compliance with the HSW Act is efficient on paper but raises boundary problems in practice. External regimes differ in aims, enforcement tools and timelines (for example, building seismic remediation timetables), and reliance on those regimes could leave workplace health and safety outcomes dependent on non‑HSW enforcement priorities.
The combined effect of these shifts will depend on how regulators interpret 'prioritise', how quickly Schedule 1A is kept current, and how courts treat the new ACOP evidential rule.
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