Disclaimer
The opinions and options contained in this document are for consultation purposes only and do not
reflect final government policy. Please seek specific legal advice from a qualified professional person
before undertaking any action based on the contents of this publication.
The contents of this discussion document must not be construed as legal advice. The government
does not accept any responsibility or liability whatsoever for an action taken as a result of reading,
or reliance placed because of having read any part, or all, of the information in this discussion
document, or for any error, inadequacy, deficiency, flaw in or omission from this document.
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CONTENTS
GLOSSARY OF TERMS................................................................................................................................................ 6
HOW TO PROVIDE US WITH FEEDBACK ......................................................................................................................... 7
CHAPTER 1:
OVERVIEW .............................................................................................................................. 9
INTRODUCTION AND BACKGROUND INFORMATION ....................................................................................................... 10
Development of the proposed new Act and its implications for this document .......................................... 10
The Australian model Work Health and Safety laws – relationship to this document ................................. 11
Drivers for change – why new regulation is needed .................................................................................... 12
Principles of regulation development .......................................................................................................... 13
Timing and phasing of regulations............................................................................................................... 13
Format of regulations .................................................................................................................................. 15
Regulatory offences ..................................................................................................................................... 16
Developing guidance information to support the proposed new Act and regulations ................................ 17
Transitional arrangements........................................................................................................................... 18
SUMMARY OF POLICY PROPOSALS FOR REGULATION ..................................................................................................... 19
General risk and workplace management ................................................................................................... 19
Worker participation, engagement and representation .............................................................................. 21
Work involving asbestos .............................................................................................................................. 23
Work involving hazardous substances ......................................................................................................... 25
Major hazard facilities ................................................................................................................................. 28
CHAPTER 2:
REGULATING GENERAL RISK AND WORKPLACE MANAGEMENT ........................................... 31
INTRODUCTION ..................................................................................................................................................... 32
Existing regulatory regime for general risk and workplace management ................................................... 32
DRIVERS FOR CHANGE ............................................................................................................................................ 33
DETAILS OF PROPOSALS .......................................................................................................................................... 33
Managing specified risks to health and safety arising from work ............................................................... 34
Information, training, supervision and instruction ...................................................................................... 37
General facilities .......................................................................................................................................... 38
First aid ........................................................................................................................................................ 42
Emergency plans .......................................................................................................................................... 42
Personal protective equipment (PPE) ........................................................................................................... 43
Remote or isolated work .............................................................................................................................. 47
Managing risk from airborne contaminants ................................................................................................ 48
Hazardous atmospheres .............................................................................................................................. 49
Storage of flammable substances ................................................................................................................ 51
Falling objects .............................................................................................................................................. 53
Other general hazards at any workplace ..................................................................................................... 53
Managing health and safety risks to young people ..................................................................................... 55
Duties on limited child care providers .......................................................................................................... 57
CHAPTER 3:
REGULATING WORKER PARTICIPATION, ENGAGEMENT AND REPRESENTATION .................. 59
INTRODUCTION ..................................................................................................................................................... 60
Drivers for change ........................................................................................................................................ 60
The Taskforce’s recommendations .............................................................................................................. 60
The Government’s response ......................................................................................................................... 61
OVERVIEW OF WORKER PARTICIPATION, ENGAGEMENT AND REPRESENTATION................................................................... 62
Worker participation, engagement and representation regulations ........................................................... 64
DETAILS OF THE PROPOSALS..................................................................................................................................... 64
Exercising Government’s ability to regulate more widely ............................................................................ 64
Health and Safety representatives ............................................................................................................... 65
Health and safety committees ..................................................................................................................... 74
Issue resolution ............................................................................................................................................ 76
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CHAPTER 4:
REGULATING WORK INVOLVING ASBESTOS .......................................................................... 79
INTRODUCTION ..................................................................................................................................................... 80
NEED MORE INFORMATION? ................................................................................................................................... 80
THE EXISTING REGULATORY REGIME FOR WORK INVOLVING ASBESTOS .............................................................................. 80
“Work involving asbestos” ........................................................................................................................... 80
Requirements for all work involving asbestos .............................................................................................. 81
Restricted work ............................................................................................................................................ 81
What is not in scope for new regulations .................................................................................................... 82
DRIVERS FOR CHANGE ............................................................................................................................................ 82
Deficiencies with the current asbestos regulations ...................................................................................... 82
OVERVIEW OF PROPOSALS: ADOPTING THE AUSTRALIAN MODEL REGULATIONS FOR NEW ZEALAND ....................................... 84
Prohibitions and authorised conduct (Part 8.1 of Australian model regulations) ........................................ 85
The general duty (Part 8.2 of Australian model regulations) ....................................................................... 86
Setting an appropriate exposure standard .................................................................................................. 87
Management of asbestos and associated risks (Part 8.3 of Australian model regulations) ........................ 88
Management of naturally-occurring asbestos (Part 8.4 of Australian model regulations) ......................... 91
Asbestos at the workplace (Part 8.5 of Australian model regulations)........................................................ 91
Demolition and refurbishment (Part 8.6 of Australian model regulations) ................................................. 93
Asbestos removal work (Part 8.7 of Australian model regulations)............................................................. 94
Asbestos removal requiring Class A licence (Part 8.8 of Australian model regulations) .............................. 96
Asbestos-related work (Part 8.9 of Australian model regulations) .............................................................. 98
Licensing of asbestos removalists and assessors (Part 8.10 of Australian model regulations) .................... 99
Definitions from the Australian model regulations (from the interpretation section) ............................... 100
CHAPTER 5:
REGULATING WORK INVOLVING HAZARDOUS SUBSTANCES.............................................. 103
INTRODUCTION ................................................................................................................................................... 104
What are hazardous substances? .............................................................................................................. 104
Hazards associated with hazardous substances ........................................................................................ 104
The existing regulatory regime .................................................................................................................. 105
DRIVERS FOR CHANGE .......................................................................................................................................... 105
Estimated levels of harm from exposure to hazardous substances ........................................................... 105
Taskforce findings and recommendations ................................................................................................. 106
Government’s response to the Taskforce recommendations..................................................................... 106
OVERVIEW OF PROPOSALS..................................................................................................................................... 107
Future requirements under the HSNO Act ................................................................................................. 107
Integrating requirements ........................................................................................................................... 108
New regulations ......................................................................................................................................... 108
DETAILS OF THE PROPOSALS................................................................................................................................... 109
Hazardous substance approvals ................................................................................................................ 109
Inventory of hazardous substances ............................................................................................................ 109
Management of risk to health and safety .................................................................................................. 111
Management of risk associated with physicochemical hazards (controls on class 1 to 5 substances) ...... 113
Management of risk associated with fireworks, safety ammunition, and other explosives ...................... 113
Management of risk associated with health hazards (controls on class 6 and 8 substances) ................... 114
Management of risk associated with fumigants ........................................................................................ 115
Requirements for labelling ......................................................................................................................... 116
Requirements for safety data sheets ......................................................................................................... 116
Requirements for signage .......................................................................................................................... 118
Requirements applying to compressed gases ............................................................................................ 119
Requirements applying to tank wagons and transportable containers ..................................................... 119
Requirements applying to stationary container systems ........................................................................... 120
Requirements applying to laboratories ...................................................................................................... 120
Tracking highly hazardous substances ....................................................................................................... 121
Emergency Management ........................................................................................................................... 121
Test certification ........................................................................................................................................ 123
Approved handler certification .................................................................................................................. 125
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Monitoring ................................................................................................................................................. 127
CHAPTER 6:
REGULATING MAJOR HAZARD FACILITIES ........................................................................... 131
INTRODUCTION ................................................................................................................................................... 132
Drivers for change ...................................................................................................................................... 132
Regulation of major hazard facilities in other jurisdictions........................................................................ 134
Other relevant legislation .......................................................................................................................... 134
OVERVIEW OF PREFERRED APPROACH ...................................................................................................................... 135
DETAILS OF THE PROPOSALS................................................................................................................................... 136
Key definitions ............................................................................................................................................ 136
Facilities covered by the new regulations .................................................................................................. 137
Notification process ................................................................................................................................... 138
Notification content ................................................................................................................................... 139
Designation ................................................................................................................................................ 140
Review procedure....................................................................................................................................... 141
Checks and balances on designation decisions .......................................................................................... 141
Suitability of facility operator .................................................................................................................... 142
Notification by new operator ..................................................................................................................... 142
Hazardous substances at major hazard facilities and their threshold quantities ...................................... 143
Duties of operators .................................................................................................................................... 149
Land use planning near a major hazard facility ......................................................................................... 163
Cost recovery .............................................................................................................................................. 164
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Glossary of terms
The following explains terms and acronyms used throughout this document. Other terms or
acronyms used exclusively within a particular chapter are explained as they are used.
ACoP - Approved Code of Practice. Under the proposed new Act, Codes of Practice are approved by
the Minister of Labour and outline preferred ways of working to comply with the duties of the Act or
regulations. An ACoP is admissible in Court as evidence of whether or not a duty has been complied
with.
the Australian model Act - the Australian Model Work Health and Safety Act 2011 (see the blue box
on page 12 for further explanation).
the Australian model regulations - the Australian Model Work Health and Safety Regulations 2011
(see the blue box on page 12 for further explanation).
the Australian model Work Health and Safety laws – the collective term used to describe the ‘whole
package’ of the Australian model Act, the Australian model regulations, and the suite of codes of
practice and supporting guidance material (see the blue box on page 12 for further explanation).
the Bill – the Health and Safety Reform Bill. The Bill will, if passed, create the new Health and Safety
at Work Act. It will also make amendments to a range of other Acts to ensure a consistent and
robust health and safety system.
duty holder – a person or legal entity that the Act (whether the proposed new Act or the HSE Act)
places obligations upon by way of a specific duty. In the HSE Act, the primary duty holder is an
employer, but others include principals to a contract, people in control of a workplace, and
employees. In the proposed new Act, the primary duty holder is a PCBU, but others include officers
and workers.
HSE – Health and Safety in Employment, as in the Health and Safety in Employment Act 1992, or the
Health and Safety in Employment Regulations 1995. The existing work health and safety legislative
regime.
HSNO – Hazardous Substances and New Organisms, as in the Hazardous Substances and New
Organisms Act 1996, or various sets of associated regulations. NZ’s legislative regime for the overall
management of hazardous substances (and new organisms, but this aspect of the regime is not
relevant to the focus of this document). Government has decided that the regulation of workplace
use of hazardous substances will move from the HSNO regime to the proposed new Act and
supporting regulations.
MBIE – the Ministry of Business, Innovation, and Employment. MBIE has the role of developing the
proposed new Act and supporting regulations, and is the author of this document.
the proposed new Act – currently parts 1 – 5 of the Health and Safety Reform Bill (introduced into
Parliament in March 2014), which if passed by the House of Representatives, will become the Health
and Safety at Work Act. This is the new work health and safety legislation that Government has
decided will replace the Health and Safety in Employment Act 1992.
PCBU – person conducting a business or undertaking. This is the term used to describe the main duty
holder in the Australian model Act, and the proposed new Act.
PPE - personal protective equipment, anything used or worn by a person to minimise risk to the
person’s health and safety. Examples include helmets, safety boots and glasses, earmuffs and
protective clothing.
the regulator – the agency with the role of regulating (enforcing) any Act. In the context of this
document, this will mainly refer to WorkSafe NZ, although both the HSE Act and the proposed new
Act allow for the designation of other agencies to be the regulator for a particular sector or activity.
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For example, Maritime New Zealand is the regulator of the HSE Act in the maritime sector, and the
Civil Aviation Authority is the regulator of the HSE Act in the aviation sector.
the Royal Commission – the Royal Commission on the Pike River Coal Mine Tragedy. The
Government established the Royal Commission in November 2010 following an explosion at the Pike
River coal mine resulting in the deaths of 29 men. The Royal Commission was asked to investigate
and report on what had happened, and recommend changes to prevent similar tragedies occurring.
the Taskforce - the Independent Taskforce on Workplace Health and Safety. The Taskforce was set
up by the Government in April 2012, partially in response to the Pike River Coal Mine disaster. The
Taskforce was asked to research and critically evaluate the workplace health and safety system in
New Zealand and recommend practical strategies for reducing the high rate of workplace fatalities
and serious injuries by 25% by 2020.
Working Safer - Working Safer: a blueprint for health and safety at work is the Government’s
response to the recommendations of the Taskforce. Working Safer represents the most significant
reform of New Zealand’s work health and safety system in 20 years. (see the blue box on page 10 for
further explanation).
WorkSafe NZ - WorkSafe New Zealand, the newly created work health and safety regulator.
WorkSafe NZ will have the role of enforcing the proposed new Act and supporting regulations, and
developing a suite of codes of practice and supporting guidance material to help duty holders know
how to comply.
How to provide us with feedback
We need to hear what you think about the proposals in this document by no later than
Friday 1 August 2014.
You can download a submission form from the MBIE website http://www.mbie.govt.nz/aboutus/consultation.
The form contains a series of tables bringing together all the questions asked throughout this
document, and a page reference so you can come back and look at the relevant discussion as
necessary. Add your comments in the right hand column of the submission form, and when you’re
finished, email it to HSWregs@mbie.govt.nz.
We know there are a lot of questions – but you don’t have to answer them all if you don’t want. If
you only feel the need to comment on one or two areas of regulation that are relevant to you, that’s
OK.
However, please have a look at the general questions in Chapter 1 regardless, because these are
relevant to all of the new regulations proposed in this document, so we need to know what you
think about them too.
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Chapter 1: overview
Introduction and background information
This document outlines policy proposals about the development of regulations to support the new
Health and Safety at Work Act (the proposed new Act). The proposals have been developed by the
Ministry of Business, Innovation and Employment (MBIE) in conjunction with WorkSafe New Zealand
(WorkSafe NZ) and other health and safety regulators. Guidance groups of external stakeholders
representing the interests of business owners, workers and other relevant parties have also helped
to shape up and refine the proposals in this document.
Proposals about five specific areas of work-related regulation are provided for you to consider and
give feedback on, along with general information about the regulation development process. The
five areas are:

general risk and workplace management

worker participation, engagement and representation

work involving asbestos

work involving hazardous substances; and

major hazard facilities.
Reading this first chapter will provide you with a high-level overview of all the proposals, as well as
important information to support your consideration of them. You can then go to the other
chapters if you wish to read more detail.
Together, the regulations and the proposed new Act (along with supporting approved codes of
practice and guidance information being developed by WorkSafe NZ) will form a new regulatory
framework for work health and safety. This new framework is a key part of the Government’s
Working Safer package of reforms (see below).
What is Working Safer?
Working Safer: a blueprint for health and safety at work is the Government’s response to the
recommendations of the Independent Taskforce. Working Safer represents the most significant
reform of New Zealand’s work health and safety system in 20 years.
The Working Safer reforms are aimed at reducing New Zealand’s workplace injury and death toll
by 25 per cent by 2020. Leadership and action from business, workers and the government will
be needed to achieve this goal.
More detail about the reforms including the Working Safer document, Cabinet papers and
decisions are available at www.mbie.govt.nz/what-we-do/workplace-health-and-safety-reform
Development of the proposed new Act and its implications for this document
Government has decided that the Health and Safety in Employment Act 1992 (the HSE Act) will be
replaced by a new Health and Safety at Work Act. The proposed new Act will be created by the
passage of the Health and Safety Reform Bill (the Bill), which was introduced into Parliament on 10
March 2014. The Bill also includes amendments to related legislation including the Hazardous
Substances and New Organisms Act 1996 (the HSNO Act) and the Accident Compensation Act 2001.
The Bill has been referred to the Transport and Industrial Relations select committee, which has
sought written and oral submissions, and will deliberate on these before reporting back to
Parliament.
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You can view a copy of the Bill at www.legislation.govt.nz. Type ‘Health and Safety Reform Bill’ into
the quick search box on this page.
Information about the select committee process as it progresses is available
http://www.parliament.nz/en-nz/pb/sc/details/transport-industrialrelations/00DBHOH_BBSC_SCTIR_1/business-before-the-transport-and-industrial-relations.
at
Normally, supporting regulations would only begin to be developed after the enabling Act has been
passed. In this instance, however, we need to think about the proposed regulations in parallel to the
passage of the Bill so that the whole regulatory framework can be brought into force at the same
time. There are two main reasons for wanting this to happen.
Firstly, we want to ensure the mistakes of the past are not repeated. Both the Royal Commission and
the Taskforce identified that our current regime has always lacked the breadth and depth of
regulation (and supporting guidance) needed to help duty holders know how to meet their general
obligations under the HSE Act. Government is determined that this will not be the case with the new
regime – and we want to start as we mean to go on.
Secondly, time is against us. If the new regulatory framework is to contribute towards Government’s
target to reduce serious work-related injury and death by 2020, it needs to be in place as soon as
practicable.
We have written the proposals in this discussion document based on the Bill at the time of its
introduction to Parliament, so that you can see how the proposed new Act and supporting
regulations would work together.
Wherever we refer to a provision of the proposed new Act as context for our proposals, we have
put this information in a green text box to differentiate it. We are unable to receive submissions
from you about the content of the green boxes, because the Bill is a matter for consideration by
the Select Committee.
If the select committee process results in changes to the Health and Safety at Work Act that will
have an effect on the regulations, we will make the necessary adjustments before the regulations
are made. In the meantime, please engage with the proposals for regulation as outlined, and
provide us with your feedback on that basis.
The Australian model Work Health and Safety laws – relationship to this document
Many of the proposals about regulation in this document make reference to the Australian model
regulations. This is because Government has already decided that the proposed new Act should be
based on the Australian Model Work Health and Safety Act 2011 (the Australian model Act), with
modifications to take account of differences in the New Zealand context.
This decision makes the Australian model regulations — developed alongside the Australian model
Act as part of a complete package — the logical starting point for our work here as well, although
we want to ensure that regulations are relevant for New Zealand businesses and workers.
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What are the Australian model Work Health and Safety laws?
In 2008-9, Australia undertook an extensive national review to determine the optimal content of
work health and safety legislation.
The findings of this review led to the development of the Australian Model Work Health and
Safety Act 2011 (the Australian model Act); the Australian Model Work Health and Safety
Regulations 2011 (the Australian model regulations), and a suite of codes of practice and
supporting guidance material.
In a bid to achieve national harmonisation of legislative provisions, each of the nine Australian
jurisdictions were to use the model Work Health and Safety laws as a template for new State
legislation, making adaptations as necessary for their context. To date, seven have done so.
More information on the Australian model Work Health and Safety laws can be found at:
http://www.safeworkaustralia.gov.au/sites/swa/model-whs-laws/pages/model-whs-laws
Throughout the other chapters in this document, references are provided in square brackets to the
specific Australian model regulations being described. This is to help those of you who prefer to look
at the detail of the actual requirement, but it should not generally be necessary for you to look at
the Australian model regulations to understand what we are proposing and provide us with your
feedback.
There are likely to be differences in drafting styles between regulations in Australia and New
Zealand, so you won’t be able to rely on the finished regulations being worded exactly the same as
they are in Australia. That’s why we have generally described the intent of the regulations we think
should be made in this document, rather than talk about the specific wording. Our job is to work out
what the regulations ought to require of people – and that’s why we’re asking for your feedback
now, so we can get that right.
Drivers for change – why new regulation is needed
Submissions to the Taskforce and the Royal Commission identified that the current regulatory
framework is too complicated, not comprehensive, and is insufficiently underpinned by regulations
and guidance to make the HSE Act as effective as intended.
Other problems identified in submissions to the Taskforce about regulations include:

regulations not providing clarity and certainty, and therefore being easily misinterpreted or
incorrectly applied

duty holders having difficulty knowing their responsibilities, how they can comply with duties
and whether they have done enough to comply

duty holders not doing enough to ensure the health and safety of those in the workplace or
conversely, being over-cautious because of a lack of understanding of the requirements; and

a lack of general awareness of health and safety issues by business owners, directors,
managers and workers.
Government has accordingly agreed to the development of a suite of regulations to sit alongside the
new legislation so that we do not repeat the mistakes of the past. However, the Government has
also indicated that a balance needs to be struck between providing the information necessary for
people to comply (especially in high-risk areas) and ensuring that regulation is not overlyprescriptive.
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Each chapter of this document provides additional information about drivers for change specific to
the area of regulation being discussed.
Principles of regulation development
We know that there are a range of different views on what to regulate, why, and to what level or
standard.
To be effective, regulations need to follow certain general principles and also keep a focus on their
overarching objective. Adapting the Treasury’s general principles of best practice regulation1 to the
particular requirements of this case, we have devised the following objective and criteria:
The main objective of regulations to support the proposed new Act is to contribute (where relevant2)
towards the Government’s target of a reduction in workplace serious injuries and fatalities of 25% by
2020. This means that they need to:

provide greater certainty to duty holders about how to meet their primary duty of care in
specific circumstances, or in relation to specific hazards/risks. Accordingly, obligations should
be stated as absolutes whenever possible, avoiding qualifying statements

enable compliance and encourage behavioural and cultural change (as part of the whole
package of Working Safer reforms)

focus on what matters/what will make the most difference; and

lift standards above those provided for under the status quo.
Like all regulations, they will be most effective if they are enforceable (taking into account the
powers, skills and resources available to the regulator) and do not impose unnecessary and
disproportionate costs on business.
Timing and phasing of regulations
There is a lot of work to be done to deliver a complete suite of regulations to support the proposed
new Act. And, we don’t want to overload the people able to provide critical input into getting the
regulations right – you. Therefore, we intend to develop regulations in two phases.
Phase one
The first phase (which is the subject of this document) involves:

developing new regulations about:
o
general risk and workplace management (based on the Australian model regulations
and relevant existing requirements from the 1995 HSE regulations)
o
worker participation, engagement and representation (based on the Australian
model regulations, being mindful of the differences that Government have already
agreed to in the worker participation, engagement and representation part of the
proposed new Act)
o
work involving hazardous substances (based on the Australian model regulations
and existing HSNO regulations being transferred to the work health and safety
regime); and
o
major hazard facilities (based on the Australian model regulations).
1
see page 9 of http://www.treasury.govt.nz/economy/regulation/bestpractice/bpregmodel-jul12.pdf
2
Not all of the regulations to be made will contribute directly to the Government’s time-bound target. For
example, regulations for Major Hazard Facilities and work involving asbestos are about preventing long term
catastrophic process safety failure and disease respectively.
13 | P a g e

reviewing existing regulations about:
o


work involving asbestos (taking into account the Australian model regulations).
transferring over recently-made HSE regulations (with only the necessary drafting
amendments) about:
o
mining
o
petroleum exploration and extraction
o
adventure activities; and
o
levy funding rates.
enabling the remainder of the existing work health and safety regulations (some made
under other Acts) under the new Health and Safety at Work Act so they can continue in
force until being more systematically reviewed in phase 2, namely the:
o
Health and Safety in Employment Regulations 1995 (other than the provisions
proposed in this document to be replaced by regulations relating to general risk and
workplace management)
o
Health and Safety in Employment (Pressure Equipment, Cranes and Passenger
Ropeways) Regulations 1999
o
Health and Safety in Employment (Pipelines) Regulations 1999
o
Amusement Devices Regulations 1978 (made under the Machinery Act 1950); and
o
Geothermal Energy Regulations 1961 (made under the Geothermal Energy Act
1953).
We plan for all of these supporting regulations to be in place on the same day that the proposed
new Act comes into force and duty holders are subject to its requirements.
The Government’s current intention is for the proposed new Act to come into force on 1 April
2015.
We propose that the Health and Safety in Employment (Prescribed Matters) Regulations 2003 should
be repealed at this time. These existing regulations cover things such as what must be contained in
particular forms and records, and the competency requirements for inspectors. We consider that
many of these can now be more effectively managed operationally by WorkSafe NZ. The form of
infringement notices will continue to be prescribed in the new regulations, and we will make a
decision about where it makes the most sense to place this information.
We will also be working with the Ministry of Defence and the New Zealand Defence Force to develop
specific regulations applying to the Armed Forces, as enabled by the proposed new Act. Government
agreed that regulations may be necessary to specify the operation of the proposed new Act in
respect of the Armed Forces, given the nature of their work and working arrangements.
Part 8 of the Electricity (Safety) Regulations 2010 will remain under the Electricity Act 1992 until they
are reviewed as part of phase two (see below). WorkSafe NZ is the regulator for these regulations
anyway, so there is no benefit in transferring part of the existing regulations into the new regime
until we’re able to do a more thorough review.
Phase two
The second phase of regulations to be developed will be in place within two years of the proposed
new Act coming into force – which, based on the Government’s current intention, would be 1 April
2017. This phase will involve replacing the regulations in the last bullet point above (‘enabling the
remainder of the existing work health and safety regulations’) with regulations about:
14 | P a g e

hazardous work (based on the Australian model regulations along with relevant provisions of
the 1995 HSE regulations and electricity safety regulations)

plant and structures (based on the Australian model regulations along with relevant provisions
of the 1995 HSE; PECPR, pipelines and amusement devices regulations)

geothermal operations (based on a review of existing regulations and looking to other
international jurisdictions for current best practice)

quarries (based on international best practice, as agreed during the implementation of the
Pike River recommendations in 2013).
As part of this second phase, we will also:

further review the HSNO provisions that have been transferred to the work health and safety
regime in phase one, to ensure the regulations for work involving hazardous substances are
fit-for-purpose and to simplify requirements to the extent possible.

consider whether there is a need for further industry-specific regulation. The Australian
model regulations regulate the construction industry separately. We think further discussion
and analysis is needed to decide whether this is appropriate for the New Zealand context, or
the highest priority, or whether approved codes of practice and guidance would be a better
mechanism to support specific industries to comply with their duties under the proposed new
Act and regulations.
Question 1:
Do you have any comment to offer on the proposed approach to phasing
the development of regulations?
Format of regulations
The Australian model regulations are presented as a single ‘set’, made up of multiple chapters that
cover particular areas of regulation (i.e., regulations that apply to particular sectors or hazards). Here
in New Zealand, we have traditionally taken the approach of making multiple sets of regulation, each
with a more singular focus on a particular industry or hazard.
We think there are benefits and drawbacks involved in both approaches. Bearing these in mind,
we’re interested to hear your feedback on how you think the regulations under the proposed new
Act should be presented.
A single set of regulations:

removes the need to duplicate common preliminary provisions (such as definitions,
commencement and application) across multiple sets of regulation

removes the possibility that duty holders might ‘miss’ regulations that they need to comply
with (because they did not know about or find another set of regulations that applied to them
when looking for information about compliance); and

can still be downloaded or printed selectively by duty holders, allowing them to focus on areas
of regulation that apply to them within the wider suite of regulation.
The drawback of this approach is that hard copies of the regulations would go out of date more
frequently as changes are made to particular chapters (or as new chapters are added, as would be
the case over the next few years with the phasing for the development of regulations outlined
earlier).
Having said this, we think that people are increasingly relying on the internet to source the most upto-date information about legislation rather than printed copies purchased from a bookshop. The
creation of the NZ Legislation website means that people are now able to either access the content
of regulation directly (viewing it on computers, tablets or smartphones) or go to the site and print
15 | P a g e
out what they need when they need it, for future reference. But we’d like to check that assumption
with you.
Question 2:
As a duty holder, do you rely on commercially-printed hard copies of
regulations purchased either from Legislation Direct or selected retail
outlets? Or, do you view or print off your own copies of regulations from
the NZ Legislation website as needed?
On the other hand, multiple sets of regulations dealing with a single topic (sector or hazard) may
help people to focus on what they have to do to comply – but with the drawback that they could run
the risk of missing something else that applies to them located in another set of regulations.
Question 3:
What do you think are the relative benefits and drawbacks of either: having
a single set of Health and Safety at Work regulations containing all
regulatory requirements in one place; or having multiple sets of regulations
each focusing on a single topic (some of which will apply to everyone, and
others which will only apply to a select group of duty holders)?
Regulatory offences
The regulation-making power in the proposed new Act allows for regulations to be made that
create offences in respect of the contravention of regulations, and providing for the imposition of
fines not exceeding $30,000.
This means that the new regulations can specify offences and penalties. A contravention of the
regulations will only be an offence if the regulations so provide.
This is slightly different to the regulations currently made under the HSE Act. The HSE Act contains a
provision rendering contravention of any regulation a strict liability offence with a fine of up to
$250,000 where the regulations declare that that provision applies. So, the HSE Act itself contains
the offence and the penalty, but regulations specify how to apply it.
Appropriate offences and penalties (within the $30,000 maximum) will be identified once the
substantive requirements of the regulations are finalised. We intend to use the Australian model
regulations as a guide for this process, but subject to New Zealand regulatory practice.
Question 4:
Do you have any comment to offer on the proposed approach to
identifying regulatory offences?
The proposed new Act also specifically provides that it is an offence to not comply with any
particular authorisations required by regulation (for example, regulations authorising the
operation of major hazard facilities or adventure activity operations, or regulations requiring
particular training or qualifications). In these instances, the proposed new Act provides for
specific penalties, being up to $20,000 for an individual or up to $100,000 for any other person.
16 | P a g e
Infringement notices
The proposed new Act allows for the regulator to issue infringement notices for infringement
offences specified in the regulations.
Infringement notices are a type of ‘on-the-spot fine’. Regulations will set the penalty level for each
infringement offence. Levels will usually be at a level far lower than the maximum penalty a court
could impose. The amount of the penalty may also differ based on whether an individual or a body
corporate has committed the offence.
On-the-spot fines can provide timely deterrence while minimising legal and administrative costs.
However, the recipient of an infringement notice can elect not to pay the penalty and have the
offence heard in the District Court instead.
We have taken our lead from Australia in thinking about which requirements of the new regulations
should be identified as infringement offences (i.e., regulations establishing offences for which an
infringement notice is able to be issued if an inspector finds non-compliance while they are out and
about).
We therefore propose that infringement offences in the new regulations should be limited to those
that:

are a minor breach of the law which warrants more than a warning, but less than the full
sanction of prosecution

relate to actions or omissions that involve straightforward issues of fact; and

do not include qualifying phrases (such as ‘so far as is reasonably practicable’ or ‘as
necessary’).
Based on these principles, on-the-spot fines would be limited to things like failing to keep records as
required by the new regulations, or possibly having the required signage.
Question 5:
Do you have any comment to offer on the principles for identifying which
requirements of the new regulations should be infringement offences?
As you work through the proposals for new regulation in this document, keep these principles in
mind and provide us with any feedback about which new regulations as proposed you think should
be infringement offences.
Question 6:
Are there any proposed requirements in the regulations that you think
should be infringement offences? Which ones, and why?
Developing guidance information to support the proposed new Act and regulations
WorkSafe NZ is working closely alongside us in this process, because they have the important task of
completing the regulatory framework by developing the suite of ACoPs and guidance needed to
support the proposed new Act and regulations. To assist them, WorkSafe NZ have already formed a
number of guidance groups made up of key stakeholders to provide input on what is needed, and
‘road-test’ the guidance as it is developed to ensure it hits the mark with the target audience.
However, the guidance development process has to follow shortly behind the development of the
regulations because WorkSafe NZ (and the guidance group members) needs some certainty about
what the regulations will require before they can start producing further guidance that is relevant to
those requirements. Having the guidance group members well informed about the proposals for
new regulation is one way of ensuring that the process is efficient and the guidance is in place as
17 | P a g e
early as possible. That’s why we have met with these groups as well, and have sought their input to
help shape up the proposals for regulation in this document.
Transitional arrangements
As noted earlier, it is intended that the new regulations described in this document will come into
effect with the proposed new Act (currently proposed on 1 April 2015). However, we are aware that
there may need to be transitional arrangements to allow duty holders time to comply with some of
the new requirements – for example, if compliance involved building new facilities, or is dependent
on the availability of training courses or trained individuals.
We are seeking feedback on any particular new regulations that duty holders will need an extended
period of time to comply with, and the reasons for that.
Question 7:
Do you think any of the new regulations will need an extended period of
time to allow duty holders to comply (i.e. beyond when the proposed new
Act and regulations first come into effect)? Which ones, and why?
Question 8:
Are there any other transitional issues that you think should be
considered? Please explain.
18 | P a g e
Summary of policy proposals for regulation
The following tables provide a quick reference about the proposals for regulation in this document. Go to the
sections indicated in the relevant chapter to read further discussion and our rationale for the proposals.
General risk and workplace management
We propose that regulations covering general risk and workplace management should:
For further
detail, see:

introduce a prescribed risk management process which would be mandatory only in specified Page 34
high-risk situations or activities

introduce a requirement for the provision of information, training, instruction and Page 37
supervision, based on the Australian model regulations, which is similar to existing HSE Act
requirements but clarifies what adequate information, training, instruction and supervision
look like

continue the current requirement to ensure the provision of general workplace facilities, but Page 38
base these on the Australian model regulations with some amendments

continue the current requirement to ensure the provision of adequate and accessible Page 38
facilities, but base these on the Australian model regulations with some amendments

not include the current requirement on employers to avoid the workplace becoming Page 38
overcrowded to the extent that it is hazardous, including the exception to overcrowding in
temporary places of work. This requirement is already sufficiently covered by the Australian
model regulations

not include the current requirements about accommodation and general facilities specifically Page 38
for agricultural employees, as the proposed new Act contains a broader requirement for
PCBUs to ensure any accommodation provided to a worker as part of their job does not
expose the worker to a risk to their health and safety

continue the current requirement to provide first aid facilities in the workplace, but base Page 42
these on the Australian model regulations

introduce an amended definition of personal protective clothing and personal protective Page 43
equipment (PPE) based on the Australian model regulation definition of PPE as anything used
or worn by a person to minimise risk to the person’s health and safety

continue the current requirements on the provision and use of PPE in the workplace, but Page 43
base these on the Australian model regulations with some amendments

continue the provisions (currently in the HSE Act) enabling a worker to genuinely and Page 43
voluntarily choose to provide their own personal protective clothing, so long as this does not
compromise their safety, but broaden this to include PPE

continue the current absolute nature of the requirement on PCBUs and workers for the Page 46
provision and use of PPE, thereby not adopting the qualifying statements in the Australian
model regulations

not include current requirements on designers, manufacturers and suppliers of personal Page 46
protective clothing and equipment in the new regulations, as the intent of these
requirements are covered by general duties proposed to be at the Act level

introduce a requirement to manage risk to the health and safety of workers carrying out Page 47
remote or isolated work, based on the Australian model regulation

continue the current requirements to manage risk from airborne contaminants, but base Page 48
these on the Australian model regulations with some amendments to incorporate existing
requirements to control, treat and carry off airborne contaminants
19 | P a g e
We propose that regulations covering general risk and workplace management should:
For further
detail, see:

Page 48
introduce a requirement based on the Australian model regulations for a PCBU to:
o ensure that no one at the workplace is exposed to a substance or mixture in an
airborne concentration that exceeds the Workplace Exposure Standard;
o ensure that air monitoring is carried out to determine the airborne concentration of
a substance or mixture at the workplace where an exposure standard applies if the
PCBU is not certain whether the relevant exposure standards have been exceeded,
or monitoring is deemed necessary to manage the risk; and
o ensure that the results of air monitoring are readily accessible to people at the
workplace who may be exposed to the substance or mixture

Page 49
introduce a requirement based on the Australian model regulations for a PCBU to:
o manage risks to health and safety associated with a hazardous atmosphere arising
at work; and
o manage risks to health and safety associated with an ignition source in a hazardous
atmosphere arising at work, except if the ignition source is part of a deliberate
process or activity at the workplace

introduce a requirement for PCBUs to ensure that if flammable substances are kept at the Page 51
workplace, then the substances are kept at the ‘lowest practicable quantity’ for the
workplace

continue the current requirement to manage the risk of falling objects, but base these on the
Australian model regulations

continue the current requirements in relation to hazardous containers and loose but Page 53
enclosed materials

continue current requirements covering the employment of young people, with some Page 55
amendments

rationalise the requirements in line with the PCBU concept, as worker covers employee and Page 55
contractor regardless of age

introduce a requirement that prohibits young people from doing work involving the handling Page 56
of hazardous substances

continue the requirement (currently in the HSE Act) for limited child care service providers to Page 57
ensure every worker3 is suitable for that role
3
Page 53
Specifically, every worker – a) whom the service provider employs, or intends to employ, in a position at the limited child care
centre; and b) who is to work at the service during normal opening hours; and c) who is not a registered teacher or holder of a
limited authority to teach.
20 | P a g e
In addition, we are seeking further feedback from you before making decisions about:
For further
detail, see:

what types of businesses should be subject to a requirement in the new regulations to Page 42
prepare, maintain and implement an emergency plan in the workplace, based on the
Australian model regulations

whether or not PCBUs should be required to ensure the results of air monitoring carried out Page 48
to determine the concentration of a substance or mixture are recorded and kept, and what is
a suitable time period for these records to be kept for

whether or not New Zealand should adopt the Australian approach to defining an Page 49
atmosphere as hazardous if the concentration of flammable gas, vapour, mist or fumes
exceeds 5% of the lower explosive limit (LEL) for the gas, vapour, mist or fumes.
Worker participation, engagement and representation
We propose that regulations covering worker participation, engagement and representation
should:
For further
detail, see:

introduce a requirement that a PCBU must negotiate with workers and any worker Page 67
representatives to determine one or more work groups for the workplace

introduce a requirement that the PCBU must commence negotiations for a work group within Page 67
14 days of a worker notifying the PCBU that they want a Health and Safety representative or
of the PCBU telling workers that it would like Health and Safety representatives to be part of
its worker participation practices

specify a procedure for negotiating and varying work groups

introduce criteria for a party to withdraw in certain circumstances where multiple businesses Page 68
or undertakings are negotiating for work groups

specify who can be a Health and Safety representative for a workplace

specify that a Health and Safety representative and any deputy Health and Safety Page 69
representatives must be elected by the members of the work group they represent

introduce a requirement on PCBUs to facilitate an election and to provide the resources, Page 70
facilities and assistance reasonably necessary for the election of Health and Safety
representatives to be carried out

specify an election process for Health and Safety representatives that allows the PCBU and Page 70
workers of the particular work group to decide the process for their work group. Where one
party requests that a secret ballot be conducted as part of the election process, then a secret
ballot will be mandatory in that particular situation. The regulations will allow workers to be
assisted by a representative to help them organise the election, if the majority of workers
wish them to

specify that the person carrying out an election will be responsible for notifying the relevant Page 70
PCBUs of the date of the election as soon as practicable

introduce a term of office of three years for a Health and Safety representative with the Page 71
ability to be re-elected after this period

set a minimum annual entitlement for Health and Safety representatives to attend an Page 71
approved health and safety representative training course

specify relevant matters that the regulator must take into account when approving Health Page 72
and Safety representative training courses, including content and quality of the curriculum
and its relevance to the powers and functions of a Health and Safety representative, and the
knowledge and experience of the training provider

specify a process for Health and Safety representatives to access training
21 | P a g e
Page 68
Page 69
Page 72
We propose that regulations covering worker participation, engagement and representation
should:
For further
detail, see:

specify the types of training Health and Safety representatives must have in order to issue a Page 72
PIN or direct unsafe work to cease

introduce an obligation on the PCBU to allow Health and Safety representatives to attend an Page 73
approved health and safety representative training course, and to pay course fees and
reasonable costs associated with the training. Where there is more than one PCBU, the
PCBUs must pay an equal proportion of the fees and costs, unless agreed otherwise

introduce a requirement that PCBUs must have an up-to-date list of all Health and Safety Page 73
representatives and deputy Health and Safety representatives and display this list so it is
accessible to workers

introduce a requirement that PCBUs must provide an up-to-date list of Health and Safety Page 73
representatives to the regulator, but only when the regulator requests it

specify the ways in which a person may cease to be a Health and Safety representative, other Page 73
than coming to the end of their term in office. This will include a process for workers to
remove a Health and Safety representative

introduce a requirement that at least half of the Health and Safety committee members must Page 75
be workers who are not nominated by the PCBU

introduce a requirement that where there is a Health and Safety representative at the Page 75
workplace, and he or she consents, that representative will be a member of the Health and
Safety committee. If there are two or more Health and Safety representatives at a workplace,
either one, or all who consent, may be members of the Health and Safety committee

introduce a requirement that the Health and Safety committee must meet on a regular basis, Page 75
but at least every three months and at any reasonable time at the request of at least half of
the members of the Health and Safety committee

specify certain circumstances when it is appropriate for an inspector to decide a matter for Page 76
the PCBU and workers if they are unable to reach a resolution between themselves. Namely,
when:
o negotiations to determine a work group have failed
o the Health and Safety representative and PCBU are unable to agree on either the
time or location of a Health and Safety representative training course; or
o the parties cannot reach an agreement on the membership of the Health and Safety
committee
22 | P a g e
Work involving asbestos
We propose that regulations covering work involving asbestos should:
For further
detail, see:

introduce a prohibition on all work activities involving asbestos and asbestos-containing Page 85
materials unless they comply with the regulations or are exempted by the regulations

Page 85
exempt the following types of work activities from the prohibition:
(a) genuine research and analysis
(b) sampling and identification in accordance with the regulations
(c) maintenance of, or service work on, non-friable asbestos or asbestos-containing material
fixed or installed before [a prescribed date], in accordance with the regulations
(d) removal or disposal of asbestos or asbestos-containing material, including demolition, in
accordance with the regulations
(e) the transport and disposal of asbestos or asbestos waste in accordance with the Resource
Management Act 1991
(f) demonstrations, education or practical training in relation to asbestos or asbestoscontaining material
(g) display, or preparation or maintenance for display, of an artefact or thing that is, or
includes, asbestos or asbestos-containing material
(h) management in accordance with the regulations of in situ asbestos that was installed or
fixed before [a prescribed date]
(i) work that disturbs asbestos during mining operations that involve the extraction of, or
exploration for, a mineral other than asbestos; and
(j) laundering asbestos contaminated clothing in accordance with the regulations

introduce a requirement for PCBUs to ensure that, as far as is reasonably practicable, no Page 86
person at a workplace is exposed to airborne asbestos

revise the exposure standard for chrysotile to be consistent with that for other forms of Page 87
asbestos and with international best practice

require all PCBUs with management or control of a workplace (other than domestic premises) Page 88
to identify any asbestos or asbestos-containing material present, record it in a register and
maintain an Asbestos Management Plan

remove the current distinction between “friable” and “non-friable” asbestos and extend the Page 88
coverage of the regulations to include asbestos-containing materials

introduce more explicit requirements for the health monitoring of workers carrying out Page 91
licensed asbestos removal work, or other on-going removal work or asbestos related work

introduce more explicit training and competency requirements for workers carrying out Page 91
licensed asbestos removal work, or asbestos-related work

continue the current controls on asbestos dust generated from cutting or water blasting Page 91
activities, but placing more emphasis on containment or suppression at source

introduce mandatory controls on demolition and refurbishment work on buildings or plant in Page 93
workplaces that contains asbestos, requiring:
o disclosure of the asbestos register to the contractor, or inspection by a qualified
person (if an asbestos register is not available)
o review of the register by the person completing the work
o prior removal of asbestos that is likely to be disturbed by demolition
o a control plan to be prepared for the work

introduce mandatory controls for the assessment and removal of asbestos from any Page 94
demolition or refurbishment workplaces that are also domestic premises
23 | P a g e
We propose that regulations covering work involving asbestos should:
For further
detail, see:

Page 94
create an exemption from the requirement to use a licensed asbestos removalist for:
o the removal of less than 10 square metres of non-friable asbestos
o the removal of small quantities of asbestos dust that is not associated with asbestos
removal work

introduce a duty for a PCBU that commissions the removal of asbestos to only use a licensed
asbestos removalist

Page 95
introduce a licensing regime for asbestos removal that requires:
o a Class A licence for the removal of friable asbestos
o a Class B licence for the removal of other forms of asbestos
o appointment of an asbestos removal supervisor for Class A and a suitable
competent person for Class B work
o training removal workers for specific types of work, with records kept of training
o access to the asbestos register for the workplace where removal work is occurring
o preparation and maintenance of an asbestos removal control plan for the work
o notification to WorkSafe NZ of the removal work
o informing the PCBU with management or control of the workplace, or the occupier,
owner other others connected with residential premises of the work and when it
will be completed
o providing signage and information to specified persons
o maintaining decontamination facilities and ensuring disposal of the asbestos
removed
o obtaining a clearance inspection and certificate from a licensed assessor or
competent person

introduce processes for the issuing, renewal, suspension or cancellation of licences for:
o class A asbestos removal (to PCBU only)
o class B asbestos removal (to PCBU only)
o asbestos assessor (individual only)

continue and tighten current minimum standards for asbestos-related work that is allowed Page 98
under the regulations, including:
o analysis of samples by accredited laboratories
o information for workers
o separation of work areas
o air monitoring
o decontamination facilities
o labelling and signage
o personal protective equipment
In addition, we are seeking further feedback from you before making decisions about:
Page 94
Page 99
For further
detail, see:

whether or not to exempt plant or structures built, or installed in workplaces after a specified Page 86
date from any or all of the regulations, and if so, what that date should be

whether or not to prohibit all work involving asbestos-containing materials, other than that Page 84
exempted by the regulations

whether or not to remove the current distinction between friable and non-friable asbestos

whether or not to exclude residential premises from some of the duties for PCBUs with Page 94
management or control of a workplace
24 | P a g e
Pages 84, 93
and 94
In addition, we are seeking further feedback from you before making decisions about:
For further
detail, see:

an appropriate workplace exposure standard for asbestos dust, and whether it should be set Page 87
in the regulations themselves

which workplaces should be subject to a requirement to maintain an asbestos management Page 90
plan, including domestic premises

the appropriate level of detail and documentation required for asbestos registers and Page 89 and
90
Asbestos Management Plans

the competencies that need to be accessed by persons managing or controlling workplaces Page 88
to determine whether or not asbestos is present, and, if so, the risk it presents

the content of Asbestos Management Plans required by the regulations

whether or not the regulations should include the provisions for naturally-occurring asbestos Page 91
contained in the Australian model regulations, given the rare and isolated occurrences of
such deposits in New Zealand

whether the “less than 10 square metre” exemption in the Australian model regulations will Page 96
achieve the desired exclusion of small-scale, low-risk asbestos removal work without creating
unsatisfactory gaps in coverage

whether the licensing and accreditation requirements are suitable and appropriate for New Pages 96 and
99
Zealand workplaces and technical and training infrastructure

whether the regulations contain adequate provisions for the completion of asbestos-related Page 98
work
Page 90
Work involving hazardous substances
We propose that regulations covering work involving hazardous substances should:
For further
detail, see:

introduce a requirement to ensure that an inventory of all hazardous substances used, Page 109
handled or stored at the workplace is prepared and maintained at the workplace, based on
the Australian model regulations

specify considerations that should be taken into account when managing the risks to health Page 110
and safety associated with using, handling, generating or storing a hazardous substance at
the workplace, based on the Australian model regulations and good practice

specify circumstances that would trigger a review of control measures implemented to Page 110
control risks in relation to a hazardous substance at a workplace, based on the Australian
model regulations

introduce more specific controls relating to segregation requirements (including isolation Page 114
distances) between class 6 and 8 substances and other hazardous substances; more specific
controls relating to the storage of class 6 and 8 substances; and more specific controls to
manage the risks specifically associated with class 6 and 8 substances

introduce a requirement for a PCBU to obtain the current safety data sheet for a hazardous Page 116
substance from the supplier of the hazardous substance and ensure that it is readily
accessible to: a worker who is involved in using, handling or storing the substance; an
emergency service worker; or anyone else who is likely to be exposed to the substance

introduce a requirement (amending regulation 34 of the HSNO Emergency Management Page 121
regulations) enabling an emergency response plan, or any part of an emergency response
plan, to be part of any other management documentation for an emergency
25 | P a g e
We propose that regulations covering work involving hazardous substances should:
For further
detail, see:

introduce a requirement exempting the operator of a major hazard facility (who is required Page 121
to prepare an emergency plan in accordance with new regulations covering major hazard
facilities) from an emergency plan for the purposes of the new regulations covering work
involving hazardous substances

introduce a requirement (amending regulation 32(1) of the HSNO Emergency Management Page 121
regulations) that if the New Zealand Fire Service gives the PCBU a written recommendation
about the content or effectiveness of the emergency response plan, then the PCBU would be
required to either revise the plan in accordance with the recommendation or identify an
alternative means for achieving the outcome sought by the recommendation

introduce more specific requirements, in addition to the proposed general obligations, for a Page 125
PCBU to provide any information, training, instruction, and supervision to a worker that is
necessary to protect the worker from risks to the worker’s health and safety arising from the
work, if the worker: uses, handles, generates or stores a hazardous substance; operates,
tests, maintains, repairs or decommissions a storage or handling system for a hazardous
substance; or has the potential to be harmed by a hazardous substance

introduce a requirement for a PCBU to carry out workplace exposure monitoring where it is Page 127
necessary to determine the efficiency and effectiveness of measures introduced to control
exposure to the hazardous substances

introduce a requirement, based on the Australian model regulations, for a PCBU to ensure Page 127
that any measures implemented to control risks in relation to the hazardous substance are
reviewed and, as necessary revised, if monitoring determines that the concentration of a
hazardous substance to which the worker is exposed exceeds a relevant workplace exposure
standard or biological exposure index

introduce a requirement for a PCBU to ensure health monitoring is provided for any worker Page 127
who may be exposed to a substance hazardous to health for which: an identifiable disease or
health effect may be related to the exposure; there is reasonable likelihood that the disease
or health effect may occur under the particular conditions of work; and there are valid
techniques for detecting indications of the disease or the effect

introduce requirements for establishing health monitoring and the reporting and storage of Page 127
monitoring results, based on the Australian model regulations

continue and consolidate requirements for the safe use, handling, and storage of explosive, Page 113
flammable, oxidising, toxic, and corrosive substances (based on HSNO approvals - individual,
group standards, transfer notices)

continue requirements for the safe use, handling, and storage of explosive, flammable, and Page 113
oxidising substances (based on the HSNO Classes 1 to 5 Controls regulations); and

review within two years of the new regulations coming into force

continue requirements for the safe use, handling, and storage of fireworks, safety Page 113
ammunition, and other explosives (based on the HSNO Fireworks, Safety Ammunition, and
Other Explosives Transfer regulations); and

review within two years of the new regulations coming into force

continue requirements for the safe use, handling, and storage of toxic and corrosive Page 114
substances (based on the HSNO Classes 6, 8 and 9 Controls regulations); and

review within two years of the new regulations coming into force

continue requirements for the control and safe use of fumigants (based on the HSNO Page 115
Fumigants transfer notice); and

review within two years of the new regulations coming into force
26 | P a g e
We propose that regulations covering work involving hazardous substances should:
For further
detail, see:

continue requirements that apply to a person in charge in relation to labelling (based on Page 116
relevant provisions of the HSNO Identification regulations; HSNO Emergency Management
regulations; and HSNO Disposal regulations)

continue requirements that apply to a person in charge in relation to signage (based on the Pages 116
relevant provisions of the HSNO Identification regulations and the HSNO Emergency and 118
Management regulations); and

review within two years of the new regulations coming into force

continue requirements for the design, manufacture, verification, testing, and filling of Page 119
compressed gas containers (based on the HSNO Compressed Gases regulations); and

review within two years of the new regulations coming into force

continue requirements for the design and operation of tank wagons that are used to Page 119
transport liquid or gaseous hazardous substances by road or rail (based on the HSNO Tank
Wagons and Transportable Containers regulations); and

review within two years of the new regulations coming into force

continue requirements for certification of the design and fabrication of stationary container Page 120
systems (based on Schedule 8 of the HSNO Dangerous Goods and Scheduled Toxic Substances
transfer notice); and

review within two years of the new regulations coming into force

continue requirements applying to laboratories in which small-scale use of hazardous Page 120
substances in research and development or teaching occurs (based on the HSNO Exempt
Laboratories regulations); and

review within two years of the new regulations coming into force

continue requirements for the tracking of highly hazardous substances (based on the HSNO Page 121
Tracking regulations); and

review within two years of the new regulations coming into force

continue requirements for fire extinguishers, emergency response plans, and secondary
containment (based on the HSNO Emergency Management regulations); and

review within two years of the new regulations coming into force

continue the test certification regime (applying the changes agreed to by Government in July Page 123
2013); and

investigate the need for further refinements within two years of the new regulations coming
into force

continue the approved handler regime with respect to those classes of substance that require
a controlled substance licence (but otherwise revoke the approved handler requirement);
and

review the residual approved handler requirements within two years of the new regulations
coming into force
In addition, we are seeking further feedback from you before making decisions about:

Page 121
Page 125
For further
detail, see:
whether or not workplaces storing classes 6.1A, 6.1B, and 6.1C (substances that are acutely Page 114
toxic) and class 6.7A (substances that are known or presumed human carcinogens) should be
required to establish a hazardous substance location and obtain a test certificate for that
location
27 | P a g e
In addition, we are seeking further feedback from you before making decisions about:
For further
detail, see:

whether to retain the current prescriptive list of matters to be addressed in an emergency Page 121
plan (as set out in regulations 29 and 30 of the HSNO Emergency Management regulations) or
adopt the more flexible list of matters used in Australia (as set out in regulation 43 of the
Australian model regulations)

whether or not we should retain the current prescriptive set of requirements in relation to Page 121
fire extinguishers (as set out in regulations 21 – 24 of the HSNO Emergency Management
regulations) or adopt the more performance-based requirements used in Australia (as set out
in regulations 359 and 360 of the Australian model regulations)
Major hazard facilities
The Government already made some decisions in July 2013 about what the regulations for major hazard facilities will
contain [CAB Min (13) 24/11 refers].
Regulations covering major hazard facilities will:
For further
detail, see:

introduce a requirement for WorkSafe NZ to designate a facility to be a major hazard facility, Page 140
if specified hazardous substances are present or likely to be present in a quantity that is equal
to or exceeds the upper threshold quantity

introduce the ability for WorkSafe NZ to designate a facility to be a major hazard facility, if Page 140 and
specified hazardous substances are present or are likely to be present in a quantity that is 141
equal to or exceeds the lower threshold quantity, but is less than the upper threshold, and
WorkSafe NZ considers that there is potential for a major accident to occur at the facility

introduce appropriate checks and balances on WorkSafe NZ’s designation decisions

introduce a requirement for operators of major hazard facilities to prepare an emergency Page 151
plan specific to the facility and the major accident hazards identified

introduce a requirement for operators of major hazard facilities to prepare a safety case for a Page 155
proposed or existing facility that demonstrates to WorkSafe NZ how the control measures will
maintain safe operations and eliminate or minimise the risk of a major accident occurring and
in the event a major accident does occur, minimise its magnitude and the severity of its
health and safety consequences

introduce a requirement for operators of major hazard facilities to notify WorkSafe NZ of any Page 161
incident or near miss event that in different circumstances could have led to a major accident
(dangerous incidents)

introduce a requirement for operators of major hazard facilities to consult with workers in Page 163
relation to the preparation and review of safety assessment, emergency plan, safety
management system, and safety case
Further to these decisions, we propose that regulations covering major hazard facilities should
also:
Page 141
For further
detail, see:

introduce a requirement for operators to notify WorkSafe NZ if specified hazardous Page 138
substances are present or likely to be present in a quantity that is equal to or exceeds the
lower threshold quantity

specify the individual hazardous substances, classes of hazardous substances, and threshold Page 143
quantities that would characterise a workplace as a major hazard facility
28 | P a g e
Further to these decisions, we propose that regulations covering major hazard facilities should
also:
For further
detail, see:

introduce a requirement for operators of major hazard facilities to identify and assess all Page 149
hazards at the facility having the potential to cause a major accident, the risks associated with
those hazards, and the (elimination, prevention, reduction, and mitigation) control measures
that will be implemented to reduce risks so far as is reasonably practicable

introduce a requirement for operators of major hazard facilities to prepare and implement a
safety management system

introduce a requirement for operators of major hazard facilities to prepare a design notice Page 153
for a proposed facility and submit it to WorkSafe NZ after initial design has been completed
and before making a final investment decision

specify a process for the assessment (and formal acceptance/rejection) of safety cases that is Page 155
consistent with the process which already applies to petroleum exploration and extraction
activities in New Zealand

introduce a requirement for operators of major hazard facilities to provide (in their safety Page 155
case) a detailed description of the arrangements in place for independent and competent
persons to verify that safety-critical elements are suitable and will remain in good condition
throughout the asset life cycle

specify circumstances under which operators of major hazard facilities would be required to Page 159
review (and as necessary revise) the safety assessment, emergency plan, safety management
system, and safety case for the facility

introduce a requirement for operators of major hazard facilities to provide the local Page 160
community and council with (general) information about its operations, how the community
would be notified if a major accident occurs, and what actions to take

introduce a requirement for operators of major hazard facilities to implement a safety role Page 162
for workers at the facility that enable them to contribute to processes for the identification
and assessment of major accident hazards (and control measures)
Page 150
In addition, we are seeking further feedback from you before making decisions about:
For further
detail, see:

whether or not the proposed definitions of
o Hazardous Substances
o Major accident
o Facility
o Operator
o Safety critical element
Page 136

are correct and appropriate

whether there are other types of facilities that should be explicitly out of scope and whether Page 138
the proposed current out of scope facilities are appropriate

whether the information required by WorkSafe NZ for the designation process is appropriate Pages 139
and 140
and whether the designation process is appropriate

whether the proposed checks and balances on designation decisions are appropriate
29 | P a g e
Page 141
In addition, we are seeking further feedback from you before making decisions about:
For further
detail, see:

whether the proposed duties of operators are appropriate:
o Formal safety assessment for the operation of a major hazard facility
o Safety Management System
o Emergency preparedness
o Design notices
o Safety case
o Review of risk management
Page 149

whether the proposed duties of operators will impose any additional costs on operators
Page 149

an appropriate way to encourage coordination between councils and WorkSafe NZ in relation Page 163
to potential major hazard facilities and developments in the vicinity of existing major hazard
facilities
30 | P a g e
Chapter 2: Regulating general risk and workplace management
Introduction
This chapter seeks feedback on policy proposals for regulating general risk and workplace
management under the proposed new Act.
In this chapter:


Current regulation refers to relevant provisions of the Health and Safety in Employment
Regulations 1995; and
New regulation refers to regulations to be made under the proposed new Act that cover
general risk and workplace management.
Existing regulatory regime for general risk and workplace management
The management of risk and the general management of workplaces is currently regulated by a
mixture of requirements sitting at Act and regulation level.
The HSE Act provides the only detail about the hierarchy of controls (eliminate, isolate, minimise).
The HSE Act focuses on the tangible management of hazards and does not directly refer to ‘risk’.
However, requiring duty holders to take all practicable steps to manage hazards means that
employers must take into account the likelihood of harm occurring. Risk management is therefore
inherent in the process, even though it is not explicitly referred to.
Relevant provisions of the current regulations cover:

facilities required for the health and safety of employees

precautions to be taken with particular hazards

the work of young people (particularly in hazardous workplaces); and

agricultural workers’ accommodation.
Some of the current regulations have general application to all workplaces (e.g. facilities and
employment of young persons), and others refer to specific matters (e.g. containers of liquids).
32 | P a g e
Drivers for change
The proposed new Act includes a primary duty of care that requires all persons conducting a
business or undertaking (PCBUs) to ensure the health and safety of those carrying out work and
other persons who could be put at risk from the work carried out. This duty would apply to all
types of work and all workplaces.
Specific aspects of this primary duty of care mean that PCBUs need to:

manage risk in the workplace

provide and maintain a safe working environment

provide and maintain safe systems of work

ensure safe use and storage of substances

provide and maintain facilities for the welfare of workers

provide any information, training, instruction or supervision that is necessary to keep
people safe in their workplace; and

ensure that the conditions arising from work are monitored to prevent illness or injury of
workers.
General risk and workplace management regulations are needed to support the proposed new Act
to help remove the guess work for PCBUs in knowing what they need to do to comply with the
primary duty – because the requirements are stated in very broad terms.
In particular, small businesses can spend a lot of time and energy trying to understand what the law
requires of them, and whether or not they have ‘done enough’. This can lead to money being spent
doing things that are either unnecessary or ineffective – which doesn’t help the safety outcomes the
regulatory framework is trying to achieve, and could place workers at increased risk of injury or
illness.
The new regulations will form an important part of the health and safety regulatory regime. They
will apply to all workplaces, and provide the basis for other regulations about specific hazards by
outlining a prescribed risk management process.
Details of proposals
We intend for some of the current requirements to be replaced by new regulations that are based
on the Australian model regulations. We propose that other current regulations should be carried
over into the new regulations. We are proposing that a small number of current regulations are not
continued - where we do so, we give our reasoning.
Note that other parts of the current regulations will be reviewed as part of phase 2 of regulation
development (particularly the regulations for hazardous work, and plant and structures). See the
section entitled ‘phase two’ on page 14 of this document for more detail.
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Managing specified risks to health and safety arising from work
Existing arrangements
A hazard is a situation that has the potential to harm a person. A risk is the possibility that harm (i.e.
death, an injury or an illness) might occur when a person is exposed to a hazard.
Currently the HSE Act and associated regulations focus on the management of hazards, as opposed
to the management of risks, which is the approach taken in the Australian model law and
regulations.
Sections 7 – 10 of the HSE Act detail the steps that an employer must take to manage significant
hazards in the place of work. The process for managing significant hazards is based on the principle
that the workplace should be modified to suit people, not vice-versa. The steps are:




identifying hazards – recognising things which may cause injury or illness (harm) to a person
assessing the hazard – evaluating whether the hazard is significant, based on the likelihood
and degree of harm that will occur if a person is exposed to the hazard
controlling the hazard – by taking all practicable steps to eliminate, isolate, or minimise
significant hazards; and
monitoring exposure – to a significant hazard that can only be minimised.
Proposed change
The proposed new Act requires PCBUs to manage health and safety risks arising from work by
eliminating risks so far as is reasonably practicable. If it is not possible to eliminate risks, the
PCBU is to minimise those risks so far as is reasonably practicable.
Note that the Australian model laws do not distinguish between ‘isolation’ and ‘minimisation’ of
hazards or risks, which the current Act does. Instead, minimisation incorporates the concept of
isolation in describing anything that a duty holder does that does not completely remove
(eliminate) the risk.
To provide further support for this general duty in particular circumstances, we propose to adopt the
risk management process for managing risks to health and safety as set out in regulations 32 – 38 of
the Australian model regulations. We consider that these new regulations will provide clearer
obligations and support for everyone on how to manage risks to health and safety in prescribed
circumstances.
But first, it is important that people understand how they would apply – see the information in the
blue box that follows.
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How the proposed risk management regulations would apply
If we follow the Australian model, the risk management process in the new regulations would
only be mandatory in specified situations - these regulations would not apply in all
circumstances, for all risks. The Australian approach considers it appropriate for these more
detailed steps to only apply in situations where either:

the risk is considered high enough to warrant placing the additional compliance cost on
the duty holder, or

there are a range of ways to control the risk that need to be weighed up by the PCBU on a
case-by-case basis to achieve the best safety outcomes.
In all other situations, the general duty of the Act to eliminate or minimise risks to health and
safety applies. This is because some hazards and their associated risks are well known and have
well established and accepted control measures.
The effect of this approach is that the additional steps of formally identifying the hazard and
assessing the risk by applying the control measures according to the specified hierarchy of
controls, and then maintaining and reviewing their effectiveness are not required in all situations.
Prescribing a blanket process that must be followed in all situations for all risks can be overly
onerous for little benefit, leading to a ‘hazard-spotting’ mentality that diverts attention away
from taking action on the things that really matter. However, it is important to note that the
general duty will mean that taking steps to control the risk will always be required.
It is also important to note that WorkSafe NZ would develop good supporting guidance (see the
Australian Model Code of Practice How to Manage Work Health and Safety Risks for a possible
example) that can go into further detail on how to identify hazards, carry out risk assessments,
and manage risk.
In the Australian model regulations, this prescribed risk management process applies to a total of
eighteen regulated high-risk situations or activities4. Note that the regulatory proposals in this
discussion document cover the first six of these situations (remote and isolated work, hazardous
atmospheres, ignition sources, falling objects, asbestos, and hazardous substances), with the
remainder to be considered in the second phase of regulation development.
Identify hazards
We propose that, in prescribed circumstances, the new regulations should require a PCBU to identify
reasonably foreseeable hazards that could give rise to risks to health and safety - that is, find out
what could cause harm to workers and others affected by the work.
Control risks
We propose that the new regulations should require PCBUs to eliminate the risk so far as is
reasonably practicable, or if that is not possible, minimising risks so far as is reasonably practicable,
by doing one or more of the following:
4
These are: remote and isolated work; hazardous atmospheres; ignition sources for hazardous atmospheres;
falling objects; asbestos; using, handling, generating or storing hazardous chemicals;confined spaces; noise;
musculoskeletal disorders associated with hazardous manual tasks; falls; electrical risks in the workplace;
occupational diving; plant (machinery etc); specific risks associated with powered mobile plant; construction
work; excavation work; transfer of hazardous chemicals through pipelines; and specific risks associated with
construction projects.
35 | P a g e



substituting (wholly or partly) the hazard creating the risk with something that creates a
lesser risk,
isolating the hazard from any person who could be exposed to it, and/or
implementing engineering controls.
If a risk still remains, that remaining risk must be further minimised, so far as is reasonably
practicable, by implementing administrative controls (i.e. work methods and procedures) or
through the use of personal protective equipment (PPE).
Maintain and review effectiveness of control measures
We propose that the new regulations would require the PCBU to ensure that any control measures
put in place remain effective over time.
Controlling health and safety risks is an ongoing process that needs to take into account any changes
which occur at the workplace. This is why procedures and risk controls must be reviewed regularly in
prescribed high-risk circumstances to ensure they are still effective.
We propose that the new regulations will require a review of control measures in certain situations.
The Australian model regulations require that review, and if necessary, revision is required when the
control measure does not control the risk it was implemented to control; before a change5 at the
workplace which is likely to give rise to a new or different health and safety risk that the control
measure may not effectively control; if a new hazard or risk is identified; if the results of consultation
indicate that a review is necessary; or if a health and safety representative requests a review and
they reasonably believe that a circumstance referred to above affects or may affect the health and
safety of a member of the work group they represent.
We are interested to hear whether you think all of these circumstances for review are necessary or
relevant in the New Zealand context.
If problems are found, the PCBU would be required to go back through the risk management steps,
review the relevant information and make further decisions about risk control.
Involving workers in the process for managing risks to health and safety
We note that effective risk management will involve workers and their representatives in each of the
specified steps given their knowledge, experience and proximity to potential risks and hazards. In
that regard, Part 3 of the proposed new Act, and the supporting regulations outlined in Chapter 3 of
this document will complement these regulations.
Impact of change

Builds on the duty in the proposed new Act by providing detail on how to manage risk

Similar obligations on duty holders as in the HSE Act, with a change in terminology to focus
more on ‘risks’

More detail about the hierarchy of risk controls in specific high-risk situations, in particular
how to minimise risks to health and safety, when eliminating the risk is not possible

Greater clarity about how to assess risk, control risks and review measures

Less regulatory detail about how to identify hazards.
5
A change at the workplace could include a change to the workplace itself or any aspect of the work environment
or a change to a system of work, a process or a procedure [see Aust reg 38(3)].
36 | P a g e
Question 9:
Do you have any comment to offer on the regulatory proposal about the
process for managing specified risks to health and safety in the workplace?
Specifically, do you have any comment on the Australian requirements for
reviewing control measures, and which of them may be appropriate here?
Question 10:
What do you think are the main benefits and costs of this proposal? (Please
quantify any impacts identified and express in dollar terms to the extent
practical)
Information, training, supervision and instruction
Existing arrangements
Currently section 13 of the HSE Act places a duty on employers to ensure that employees are either
sufficiently experienced to do their work safely or are supervised by an experienced person. The
employee must be adequately trained in the safe use of all plant, objects, substances, protective
clothing and equipment that they are or may be required to use or handle. If employees do not have
sufficient knowledge or experience themselves, then they must be supervised by someone who has.
Section 13 does not give any detail about what ‘adequate’ training looks like, and there are no
current regulations that provide further clarity in this regard.
Proposed change
The proposed new Act requires PCBUs to ensure the provision of any information, training,
instruction or supervision necessary to protect workers from risks to their health and safety
arising from work.
We propose new regulations, based on the Australian model regulations, for the provision of
information, training, and instruction [see Aust reg 39]. Further, we propose to modify the Australian
model to ensure that the new regulations also provide further clarity about what adequate
supervision looks like, consistent with section 13 of the HSE Act.
The main difference between the new regulations and section 13 of the HSE Act is that the new
regulations will outline the considerations that should be taken into account by PCBUs to ensure
that information, training, instruction, and supervision is ‘adequate’. PCBUs would be required to
take into account:



the nature of the work to be carried out by the worker;
the nature of the risks associated with the work (at the time the information, training,
instruction, or supervision is provided); and
the control measures implemented to deal with these risks.
In addition, the new regulations would also clarify that any information, training and instruction
must be provided in a way that is readily understandable by any person it is provided to.
Impact of change
 Minimal change from what is currently outlined in section 13 of the HSE Act, but improved
clarity, so no additional compliance costs expected for business
 Builds on the PCBU’s primary duty of care in the proposed new Act by clarifying what ‘adequate’
information, training, supervision and instruction looks like
37 | P a g e
Question 11:
Do you have any comment to offer on the regulatory proposal about the
provision of information, training, supervision and instruction?
General facilities
The proposed new Act requires PCBUs to ensure the provision of adequate facilities for the
welfare of workers carrying out work for the business or undertaking, including access to those
facilities.
The provision of adequate and accessible workplace facilities should be thought of as a basic
necessity and, although it may not be immediately obvious to everyone, there is a direct link to
safety. Workers not only need safe workplaces in relation to the work they perform, they also need
to be supported by facilities that take into consideration their welfare, and enable them to carry out
their work to the best of their ability.
The current regulations ensure workers are provided with basic necessities such as toilets, drinking
water, and areas to eat and rest. We are proposing to carry over the majority of what is already in
place. Any proposed variations are largely based on the relevant Australian model regulations and
either enhance or re-package what is currently in place.
The new regulations we are proposing are intended to provide greater clarity about what a duty
holder must do to provide adequate and accessible facilities – our aim is that the regulations will
help PCBUs to better understand what is already being asked of them. The new regulations will offer
more coherent and concise detail about what adequate and accessible facilities look like, in order to
ensure the welfare of workers (as required by the proposed new Act).
We are proposing that some of the current general facilities regulations be separated out in order to
align with the Australian model regulations, for example the requirements about first aid,
emergency plans, exposure standards for substance and mixtures, monitoring airborne
contaminants, and managing hazardous atmospheres. These requirements are all discussed later in
this chapter.
The table that follows provides an overview of current requirements in the left-hand column. In the
right-hand column we have laid out the ‘essence’ of the new regulations – we have tried to make it
clear where similarities and differences occur. The proposed regulations are still a work in progress
and it is not yet clear how many general facilities regulations there will be – New Zealand currently
has nine whereas Australia has just two.
38 | P a g e
Overview of relevant Health and Safety in Overview of proposed new regulations (a hybrid
Employment Regulations 1995
of the current regulations and the Australian
model regulations)
Provision of facilities (regs 4 & 5)
The
proposed
regulations
will
requirements for PCBUs to provide:
include
All employers are required to take all
practicable steps to provide:

toilets

toilets

wholesome drinking water

hand-washing facilities

washing facilities

means of leaving in an emergency

eating facilities

first-aid

meal and rest break facilities

adequate lighting


adequate ventilation

means for controlling humidity that
arises from work
floors and other surfaces designed (where
possible), installed (where possible) and
maintained to allow work to be carried out
without risk to health and safety


means for controlling atmospheric
conditions such as air velocity, radiant
heat and temperature

means for controlling and treating
atmospheric contaminants, and

lighting that enables workers to carry out
work and people to move around the
workplace without risk to health and safety,
and allows for safe evacuation in an
emergency

adequate facilities to have meals.
ventilation that enables workers to carry
out work without risk to health and safety.
Workers carrying out work in extremes of heat or
All of the above facilities should be suitable, in
cold should be able to carry out work without risk
good working order, sufficient in number, and
to health and safety.
accessible.
Work in relation to or near essential services (such
Certain employers should also provide
as the supply of gas, water, sewerage,
showering facilities, a place to change wet or
communications, electricity, or pipes containing
contaminated clothes, storage for clean
chemicals, fuel or refrigerant) does not give rise to
clothes, seats, places to rest, and floor
a risk to the health and safety of persons at the
drainage.
workplace.
Facilities at certain places of work are provided,
where necessary, including -
39 | P a g e

facilities for washing the body

a place to change contaminated or wet
clothes

facilities to keep clothes brought to work
but not used at work clean and dry

facilities for sitting to perform work or to
rest, and

facilities to prevent workers from working
on wet floors, e.g. drainage.
Overview of relevant Health and Safety in Overview of proposed new regulations (a hybrid
Employment Regulations 1995
of the current regulations and the Australian
model regulations)
Note: we are not planning to make specific
mention of humidity, air velocity, or radiant heat
in the proposed regulations.
Note: Any additions in this section (for example
work near essential services, and work in
extremes of heat or cold) are taken from the
Australian Model Regulations).
Note: first aid and emergency plans are to be
dealt with separately.
Indisposed employees (reg 6)
All employers are required to take all
practicable steps to ensure that indisposed
employees can either rest at work or leave.
Rest areas must be suitable, sufficient in
number, well maintained and accessible.
Suitability of facilities (reg 7)
Indisposed workers may rest in facilities provided
at the workplace or leave the workplace,
depending on what the PCBU decides is an
appropriate course of action. Note: it is probable
that this issue will not be dealt with as a separate
regulation.
Facilities are maintained so they are in good
working order, clean, safe and accessible.
All facilities should be suitable for the purpose,
sufficient in numbers, maintained in good order Facilities are maintained so they are accessible in
and condition, and accessible.
a way that is convenient to workers and in
sufficient number.
The suitability of facilities are to be measured
against their purpose, the circumstances in When determining if the provision of facilities is
which they’re provided, the number of adequate, PCBUs must have regard to employees, the needs of employees, and the

the nature of the work being carried out
nature of the work and associated hazards.

the nature of the hazards

the size, location and nature of the
workplace, and

the number and composition of the
workforce.
Drinking water (reg 8)
Note: we are not proposing a separate regulation
on drinking water – it will be included with other
Employers must provide enough wholesome
basic facilities.
drinking water for the number of employees,
which must be accessible.
Cleanliness (reg 9)
Workplaces should be clean and hygienic.
Every workplace is kept in a clean and hygienic
state.
Note: it is probable that this issue will not be dealt
with as a separate regulation.
40 | P a g e
Overview of relevant Health and Safety in Overview of proposed new regulations (a hybrid
Employment Regulations 1995
of the current regulations and the Australian
model regulations)
Overcrowding (reg 13)
The layout of the workplace must allow for people
to enter, exit and move about without risk to
Employers must ensure that their workplace is
health and safety, both in normal working
not so overcrowded with people or things that
conditions and in an emergency.
it is hazardous. Employees need to have
sufficient space.
Work areas must have space for work to be
carried out without risk to health and safety.
Temporary places of work or structures erected
for agricultural work or construction work are Note: we do not propose to continue the current
exempt from this regulation.
exemption in relation to overcrowding in
temporary places of work, or places of work with
a structure erected for the purpose of agricultural
work or construction work. We consider the
proposed requirement (which focuses on the
suitability of the layout of the workplace, rather
than overcrowding as such) should be flexible
enough to apply in any situation.
Agricultural accommodation (regs 62 -64)
Employers must ensure that accommodation
provided to agricultural employees is made of
permanent materials, is maintained in good
order and condition, and contains or has access
to facilities for such things as cooking, drinking,
washing and toileting.
Note: no specific regulation relating to agricultural
accommodation is being proposed because the
proposed new Act requires a PCBU to ensure that
any accommodation provided to a worker as part
of their job does not expose the worker to a risk
to their health and safety.
We note that more guidance may be needed about how to determine whether certain requirements
are met. For example, guidance on what situations of extreme heat or cold would be unsafe for
workers in New Zealand and extra guidance on the provision of adequate accommodation for
workers (such as facilities for food preparation, refrigeration and furniture of a reasonable
standard).
Question 12:
Do you have any comments about the proposed regulations for general
workplace facilities?
Question 13:
Do you envisage any impacts (positive or negative) as a result of not
specifically mentioning things such as controlling humidity and air velocity,
over-crowding, and accommodation for agricultural workers in the
proposed regulations?
41 | P a g e
First aid
Existing arrangements
The current regulations make reference to ‘first-aid facilities’ in the requirements for general
facilities to be provided in the workplace (see current regulation 4(1)(d)). The regulation does not
provide enough detail for duty holders to know whether this requirement refers only to physical
facilities (i.e. a first aid kit), or also includes people with the skills to actually deliver first aid when it
is needed.
In addition, the general duty in the HSE Act (section 6(e)) requires employers to develop procedures
for dealing with emergencies that may arise in the workplace.
The combined effect of these two requirements have generally led duty holders to infer that some
form of first aid training is needed in a work situation, but it’s not that clear.
Proposed change
Our proposal relating to first aid recognises that workers who are trained as first aiders perform a
valuable role in reducing the severity of injury or illness at the workplace.
As in the Australian model regulation 42, we propose that the new regulations will require a PCBU to
ensure the provision of and access to first aid equipment and facilities. The PCBU must also ensure
that an adequate number of workers are trained to administer first aid in the workplace, or that
access to other trained first aiders is available to workers.
In determining what adequate provision is, the PCBU must think about the same matters referred to
in the general facilities requirements above (i.e. the nature of work, nature of risks, size of workplace
and workforce).
The proposed regulation simply provides more clarity and detail about what the adequate provision
of first aid in the workplace looks like.
Question 14:
Do you have any comment about the regulatory proposal for the provision
of first aid facilities? Does the proposal differ greatly from how you are
interpreting the current requirements? Please explain.
Emergency plans
An emergency plan is a written procedure that outlines what workers and others at a workplace
should do in an emergency. An emergency or disaster - natural or otherwise - can happen at any
time. Workers therefore need to know what they should do if an emergency occurs. They need to
know things like when and how to exit their workplace, where to go or what to do after they’ve
gotten out safely, and how they will be given any further relevant information after that.
Existing arrangements
Emergency plans are not explicitly covered in current regulations. However, as noted in the previous
section, the general duty of the HSE Act requires employers to develop procedures for dealing with
emergencies that may arise while employees are at work. We think that many businesses particularly larger ones - already have emergency plans based on this existing duty, but are doing so
in the absence of any further direction about what is considered adequate in their particular
circumstances.
Businesses in lower risk industries with fewer workers may not currently have written emergency
plans, but they may well be informally planning for emergencies by sharing mobile telephone
numbers or other contact details, and discussing evacuation procedures to make sure everyone
knows what to do. The experiences of people in the Canterbury earthquakes have significantly raised
awareness amongst all New Zealanders about the importance of this type of forward planning,
whether at work, home or elsewhere.
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Proposed change
We propose that the new regulations should require all PCBUs to prepare, maintain and implement
an emergency plan for their workplaces, based on the Australian model regulation [see Aust reg 43].
However, we are interested to hear more from you about whether the regulations should specify
some kind of threshold below which a business should not be required to have an emergency plan –
and if so, how this threshold should be determined (e.g. business size/number and location of
workers/business risk profile) and why.
Such a requirement would continue the intent of the current duty for employers to develop
procedures to deal with emergencies, but provide more clarity by codifying best practice and making
the exact requirements easier for PCBUs to follow.
Emergency plans do not have to be lengthy or complex, and in the case of small low risk businesses
can be developed easily and quickly using a simple template. Emergency plans should be easy to
understand and tailored to the specific workplace where they apply. When preparing and
maintaining an emergency plan, PCBUs must think about the nature of work, nature of risks, size of
workplace and workforce (the same matters referred to for general facilities).
The proposed regulation would specify that a workplace emergency plan must include:

emergency procedures, including an effective emergency response, evacuation procedures,
plan for notifying emergency services and plan for the PCBU to be able to communicate with
all people at the workplace in an emergency

testing of the emergency procedures and the frequency in which testing will happen; and

information, training and instruction to relevant workers in relation to implementing the
emergency procedures.
Further, we propose that the new regulations would require PCBUs to:

maintain the emergency plan so that it remains effective, and

implement it in the event of an emergency – because that’s when it really matters.
There will be more detailed obligations about emergency planning in regulations covering specific
hazards (see page 121 of Chapter 5 on regulations for work involving hazardous substances and page
151 of Chapter 6 on regulations for major hazard facilities).
Question 15:
Should some businesses not be subject to the requirement to develop,
maintain and implement an emergency plan? If so, on what basis (e.g.
business size/number or location of workers/risk type) and why?
Question 16:
Do you have any other comments to make about the regulatory proposal
for emergency plans?
Personal protective equipment (PPE)
Existing arrangements
The current regulations do not contain requirements about personal protective equipment (PPE),
other than placing duties on designers, manufacturers and suppliers of PPE (see current regulations
65, 68 and 69). Instead, detail is provided in the HSE Act.
43 | P a g e
Where the elimination and isolation of significant hazards is impractical, the HSE Act requires
employers to minimise the risk of harm to employees and to protect employees from harm. One of
the steps employers are required to take in this situation is to provide, and ensure the use of, PPE to
protect employees from any harm that may be caused by the hazard (see HSE Act section 10(2)(b)).
The HSE Act also describes who is responsible for the provision of PPE and how it is to be provided.
An employer is not to: pay an employee an allowance instead of providing PPE; or require an
employee to provide his or her own PPE (see HSE Act section 10(3)). However, it is acceptable for an
employee to genuinely and voluntarily choose to provide their own protective clothing for reasons
of their comfort or convenience, if the employer is satisfied that the protective clothing is suitable in
terms of his health and safety requirements (see HSE Act section 10(4)). Note that the current
regulations make the distinction between protective clothing and protective equipment in relation
to the employee’s ability to provide their own protective clothing.
Where an employee has chosen to provide their own protective clothing, they are able to later ask
the employer to provide the protective clothing instead (see HSE Act section 10(5)).
There is no circumstance where the employee chooses to provide their own protective clothing that
removes the responsibility the employer has under the HSE Act to protect employees from any harm
through the use of PPE (see HSE Act section 10(6)).
The HSE Act also has a requirement for employers to make sure that every employee is adequately
trained in the safe use of PPE that they may be required to use (see HSE Act section 14).
Under the duties of employees in the HSE Act, every employee is to ensure their own safety while at
work, including by using suitable PPE provided to them or provided themselves where this option is
chosen (see HSE Act Section 19(a)).
Proposed change
Overall, the obligations in relation to PPE currently and in the proposed new regime are similar, but
the main difference is in the level at which these obligations sit. Currently the HSE Act provides
obligations on personal protective clothing and equipment, whereas the Australian model Work
Health and Safety laws provide this detail in regulation.
As referred to in the Managing risks to health and safety arising from work section, the new
regulations will include reference to the use of suitable PPE where a risk remains after all other
control measures have been considered [see Aust reg 36].
The Australian model regulations define PPE as anything used or worn by a person to minimise risk
to the person’s health and safety, whereas the HSE Act treats personal protective clothing and
personal protective equipment as distinct. We propose to adopt the Australian model regulation
definition of PPE as this seems a clear and sensible definition.
Question 17:
Do you see any issues with including protective clothing within the
definition of PPE as in the Australian model regulations?
We propose to continue the current requirements on the provision and use of PPE in the workplace,
but base these on the Australian model regulations with some amendments [see Aust regs 44, 45, 46
and 47]. The proposed amendments are to add further descriptions on what suitable PPE is,
continue current requirements from the HSE Act enabling a worker to choose to provide their own
protective clothing, but broaden this to include protective equipment, i.e. PPE, and continue the
current absolute nature of the requirement about the provision and use of PPE.
Duties on PCBUs
The new regulations will make clear that if PPE is to be used to minimise a risk to health and safety in
accordance with the new regulations on managing risk, then PCBUs must:
44 | P a g e

provide the PPE to workers, unless the PPE is provided by another PCBU [see Aust reg 44 (2)]

ensure that PPE provided is selected to minimise risk to health and safety [see Aust reg 44 (3)],
including ensuring that PPE is -

o
suitable considering the nature of the work and any hazards
o
a suitable size and fit and reasonably comfortable for the worker who is to use or
wear it
o
compatible with other required PPE (proposed addition to the Australian model
regulation)
o
maintained, stored, repaired or replaced so that it continues to be effective,
including making sure the equipment is clean and hygienic and in good working
order, and
o
used or worn by the worker, so far as is reasonably practicable; and
provide the worker with information, training, supervision and instruction in the proper use of
the PPE and the storage and maintenance of it [see Aust reg 44(4)].
Question 18:
Do you think the proposed requirements on PCBUs for the provision and
use of PPE, based on the Australian model regulations, are clear and
detailed enough? Please give reasons.
Question 19:
Do you agree with the proposed amendment to the Australian model
regulations about PPE needing to be compatible with other required PPE?
What is the impact of incompatible PPE in your area of work? Please give
examples.
The duties in the proposed new Act will require that where there are multiple PCBUs, it will be up
to those PCBUs to decide which PCBU is to provide the PPE and therefore ensure that it is
selected to minimise risk.
The proposed new Act also requires PCBUs to engage with workers on health and safety matters,
such as PPE.
We propose that the new regulations should continue the current provisions enabling a worker to
genuinely and voluntarily choose to provide their own protective clothing, so long as this does not
compromise their safety, but broaden this to include protective equipment. This will make clear the
obligations on PCBUs in the circumstances where the worker may prefer or feel more comfortable in
their own PPE. These obligations are considered necessary to ensure health and safety is achieved in
the most effective way possible.
Question 20:
Do you think it is necessary to continue the current provisions enabling a
worker to genuinely and voluntarily choose to provide their own personal
protective clothing so long as this does not compromise their safety? Do
you agree to broaden this out to include all PPE? Please give reasons.
Duties on workers
We propose that the new regulations will include duties on workers in relation to PPE, including that
they must:

use or wear the PPE as instructed by the PCBU so far as the worker is reasonably able
45 | P a g e

not intentionally misuse or damage the PPE; and

inform the PCBU of any damage or defect that they become aware of and the need for
additional PPE [see Aust reg 46].
Duties on other people
We propose that the new regulations will also include duties in relation to PPE to be used by people
in the workplace other than workers [see Aust regs 45 and 47]. These duties will require PCBUs to
ensure that effective PPE is used by people other than workers at the workplace, so far as is
reasonably practicable, and that those other than workers must wear PPE as instructed by the PCBU.
Maintaining the absolute nature of PPE obligations
The current provisions of the HSE Act about providing and wearing PPE are absolute. This means
that the legal requirement to employers to provide PPE (see HSE Act 10(2)(b)) and for employees to
wear PPE (see HSE Act 19(a)) are not qualified by ‘all practicable steps’, which would give people the
ability to argue it was not reasonable to provide or wear the PPE in particular circumstances.
By comparison, the Australian model regulations do contain a qualifying statement in the duty on
the PCBU to ensure the necessary PPE is used or worn by workers (‘so far as is reasonably
practicable’, as is used throughout the Australian model Work Health and Safety laws ). The duty on
workers to use or wear PPE also includes the qualifying statement ‘so far as the worker is reasonably
able’ [see Aust regs 44, 45 and 46]. Adopting these Australian model regulations without
amendment would arguably result in a lower standard of obligation than currently exists.
We propose that the new regulations should continue the current absolute requirement for the
provision and use of PPE, and not adopt the qualifying statements used in the Australian model
regulations.
Question 21:
Do you agree to continue the absolute nature of the requirement on PCBUs
to provide PPE to workers and other people in the workplace, and ensure it
is used/worn? What are the positive/negative impacts of this? Please give
your reasons.
Question 22:
Do you agree to maintain the absolute nature of the provisions on workers
and other people in the workplace to use/wear PPE? What are the
positive/negative impacts of this? Please give your reasons.
Duties on designers, manufacturers and suppliers of PPE
The proposed new Act includes PPE in the definition of plant, and places duties on PCBUs who
are designers, manufacturers, suppliers and importers of plant, substances or structures.
As the proposed new Act includes the intent of the duties contained in the current regulations, we
do not propose to include additional requirements on designers, manufacturers and suppliers of PPE
in the new regulations.
Impact of change

Similar obligations in relation to PPE as in the HSE Act, including retaining the absolute
requirements to provide and use PPE (which would apply to the broader groups of PCBUs and
workers).
46 | P a g e

Personal protective clothing and equipment are treated the same, including when referring to
circumstances where a worker can provide their own PPE.

All key references to general requirements about PPE in one place in the regulations, including
duties of PCBUs, workers and others, as well as requirements on training in PPE6.

Greater clarity about the obligations on PCBUs, workers and others in the workplace in
relation to PPE.

More detail on what is considered suitable and effective PPE.
Question 23:
Are there any other amendments that you think should be made to the
new regulations relating to PPE? Please give your reasons.
Remote or isolated work
‘Remote or isolated work’ means work that is isolated from the assistance of other people because
of location, time or the nature of the work. ‘Assistance’ includes rescue, medical assistance and the
attendance of emergency service workers.
Remote and isolated work is commonly carried out in New Zealand in certain industries. It includes
farm work and work carried out by government agencies such as the Department of Conservation, as
well as adventure activities such as guided mountain climbing, river rafting, and sea kayaking.
Existing arrangements
The current regulations do not make reference to remote or isolated work, although we note that
this is identified by some employers as a significant hazard under the HSE Act and is managed
accordingly.
Proposed change
We propose to provide extra clarity to PCBUs about how to meet the primary duty of care in the
proposed new Act by specifying that they need to manage the risk to the health and safety of a
worker doing remote or isolated work, when applicable to their particular work situation. This
requirement would involve providing a system of work that includes effective communication with
the worker in order to minimise risks to health and safety. This proposed regulation is based on the
Australian model regulation [see Aust reg 48] and will support improved health and safety outcomes
for workers as well as clients on guided activities.
The ultimate aim of the requirement is to help ensure that the worker is able to get the help they
need before things go wrong. Failing that, it will mean that in the event of an emergency or sudden
illness, rescue and retrieval can happen as quickly as possible. Aids such as GPS locators or
transmitters are now readily accessible and effective in ensuring communication with people in
remote places. And for smaller, low-risk businesses, it may be able to be as simple as letting
someone else know where you’re going to be, and when to expect you back, so they can raise the
alarm and know where to look if you don’t return as planned.
Impact of change

New obligations for PCBUs to manage risk to the health and safety of a worker associated with
remote or isolated work, although this risk is likely already being identified by relevant
employers as a significant hazard and being managed accordingly.
6 Note that other regulations dealing with specific hazards such as asbestos may also contain requirements
relating to specialised PPE.
47 | P a g e
Question 24:
Do you support the proposal to introduce a specific requirement on PCBUs
to manage risk to the health and safety of workers doing remote or isolated
work? Do you think this requirement is necessary in the New Zealand
context based on the meaning of remote and isolated work? Do you have
examples of this kind of work in New Zealand? Please give reasons.
Question 25:
Are there any other amendments that you think should be made to the
new regulations relating to remote or isolated work? Please give your
reasons.
Managing risk from airborne contaminants
Existing arrangements
Section 10(2) of the HSE Act requires an employer to monitor the exposure of employees to any
significant hazard that has been minimised. This would include airborne contaminants where they
pose a significant hazard.
In addition, the current regulations require employers to make sure there are facilities:

to control atmospheric contaminants as close as possible to their source; and

for treating or carrying off atmospheric contaminants to minimise the chance that these will
cause harm to employees (see current regulation 4(2) (i) and (j)).
Proposed change
The proposed new Act requires PCBUs to monitor the conditions at the workplace to prevent
illness or injury of workers from the work carried out.
In practice, this duty would include monitoring any airborne contaminants that present a hazard as
well as monitoring any other conditions necessary to avoid harm to workers. We propose to
continue the current requirements to manage risk from airborne contaminants, but base these on
the Australian model regulations [see Aust regs 49 and 50].
The new regulations will make clear that a PCBU must:

ensure no one at the workplace is exposed to a substance or mixture in an airborne
concentration that exceeds the Workplace Exposure Standard for a substance or mixture

ensure that air monitoring is carried out to determine the airborne concentration of a
substance or mixture at the workplace where an exposure standard applies if -
48 | P a g e
o
the PCBU is not certain whether the substance or mixture exceeds the relevant
exposure standard, or
o
monitoring is necessary to determine whether there is a risk to health.
Current published exposure standards are set out in Workplace Exposure Standards and Biological
Exposure Indices which are available on the WorkSafe NZ website (see
http://www.business.govt.nz/worksafe/information-guidance/all-guidance-items/workplaceexposure-standards-and-biological-exposure-indices/workplace-exposure-standards-and-biologicalindices-2013.pdf).
Where air monitoring is carried out, the new regulations would also require a PCBU to ensure that
the results of air monitoring are readily accessible to people at the workplace who may be exposed
to the substance or mixture.
In the Australian model regulations, PCBUs are required to record the results of air monitoring and
keep them for 30 years. We think that given the average life-cycle of businesses in New Zealand, 30
years may not be a reasonable requirement, and are interested in hearing your thoughts on a
suitable timeframe.
We also propose to continue the current regulation requiring PCBUs to make sure there are
facilities:

to control atmospheric contaminants as close as possible to their source; and

for treating or carrying off atmospheric contaminants to minimise the chance that these will
cause harm to workers.
These are considered some of the most effective ways to control these risks. A fundamental
principle of occupational hygiene is to capture and remove contaminants as close as possible to the
point of generation. Maintaining this detail will also ensure that the standard of health and safety
obligations on PCBUs in regard to airborne contaminants is not lowered by the new regulations.
Impact of change

Similar obligations on PCBUs in relation to the control, treatment, or carrying off of airborne
contaminants

Similar obligations on PCBUs in relation to the monitoring of airborne contaminants, but with
improved clarity as to when monitoring should be carried out
Question 26:
Do you have any comments to make in relation to the regulatory proposal
for managing risks from airborne contaminants? Particularly, what do you
think is a reasonable timeframe for keeping records of air monitoring?
Question 27:
Do you think the proposed regulation for managing risks from airborne
contaminants will impose any additional costs on PCBUs? Conversely, what
are the benefits of this proposal? (Please quantify any impacts identified
and express in dollar terms to the extent practical)
Hazardous atmospheres
Existing arrangements
Currently if an employer considers the atmosphere at their workplace to be hazardous, then they
will manage it in accordance with the process for managing significant hazards set out in sections 7 –
10 of the HSE Act. However, the HSE Act and associated regulations do not set out criteria to clarify
when a workplace atmosphere should be considered hazardous, so duty holders are left guessing.
As previously mentioned, the current regulations do, however, require employers to make sure
there are facilities:

to control atmospheric contaminants as close as possible to their source; and
49 | P a g e

for treating or carrying off atmospheric contaminants to minimise the chance that these will
cause harm to employees (see current regulation 4(2) (i) and (j)).
In addition, the Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001 require a person in
charge of a workplace to ensure that hazardous atmospheres and ignition sources are safely
managed in accordance with specified AS/NZS Standards where certain classes and quantities of
highly flammable liquids, gases, and aerosols are present.
Proposed change
The proposed new Act requires PCBUs to monitor the conditions at the workplace to prevent
illness or injury of workers from the work carried out. This will include monitoring any hazardous
atmospheres arising at work.
We propose to introduce a requirement to manage risk associated with a hazardous atmosphere
arising at work, as based on the Australian model regulations [see Aust regs 51 and 52].
The new regulations will make clear that:

a PCBU must manage risks to health and safety associated with a hazardous atmosphere
arising at work in accordance with regulations about managing risks

an atmosphere is a ‘hazardous atmosphere’ if -

o
the atmosphere does not have a safe oxygen level, as defined by AS/NZS 2865:2001
Safe working in a confined space (e.g. grain respiration occurring in grain silos
leading to an oxygen depleted atmosphere), or
o
the concentration of oxygen in the atmosphere increases the fire risk (e.g. gas leak
from a compressed oxygen cylinder used for welding activities in a confined area
raising the oxygen concentration), or
o
the concentration of flammable gas, vapour, mist or fumes exceeds a lower
explosive limit (LEL) for the gas, vapour, mist or fumes (e.g. tanks and containers
containing residual fuel, or use of solvents in enclosed areas), or
o
combustible dust is present in a quantity and form that would result in a hazardous
area (combustible dusts include hazardous substances in dust form, wood dust, biosolids, sugar, starch, flour, feed, and grain. Hazards may exist when these dusts are
finely divided, accumulate and become suspended in the air to create a hazardous
atmosphere); and
a PCBU must manage risks to health and safety associated with an ignition source in a
hazardous atmosphere arising at work, except if the ignition source is part of a deliberate
process or activity at the workplace.
We are seeking your feedback on whether New Zealand should define an atmosphere as hazardous:


if the concentration of flammable gas, vapour, mist or fumes exceeds 5% of the lower
explosive limit (LEL) for the gas, vapour, mist or fumes (the Australian model regulations
approach); or
based on the concentration of flammable gas, vapour, mist or fumes as classified by AS/NZS
60079.1.10:2009.
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A PCBU in any workplace with a hazardous atmosphere, as defined by this new regulation, would
need to manage risks in accordance with the regulations on managing risk (see the section earlier in
this chapter entitled ‘Managing specified risks to health and safety arising from work’).
In addition, there will be more specific regulations for managing risks associated with hazardous
atmospheres and ignition sources where certain classes and quantities of highly flammable liquids,
gases, and aerosols are present. These requirements, which are currently set out in the Hazardous
Substances (Classes 1 to 5 Controls) Regulations 2001, will be transferred into the new regulations
for work involving hazardous substances (see Chapter 5 of this document for more information).
Impact of change

Minimal change, as currently if an employer considers the atmosphere at their workplace to
be hazardous, then they will manage it in accordance with the process for managing
significant hazards set out in sections 7 – 10 of the HSE Act

New explicit requirement to manage risks to health and safety associated with a hazardous
atmosphere arising at work

Increased clarity about when an atmosphere is considered to be hazardous

New explicit requirement for PCBUs to consider the risks associated with an ignition source in
a hazardous atmosphere
Question 28:
Do you have any comments in relation to the regulatory proposals for
managing risks associated with hazardous atmospheres?
Question 29:
Do you think the proposed regulation for managing risks associated with
hazardous atmospheres will impose any additional costs on PCBUs?
Conversely, what are the benefits of this proposal? (Please quantify any
impacts identified and express in dollar terms to the extent practical)
Question 30:
Do you think New Zealand should define an atmosphere as hazardous: if
the concentration of flammable gas, vapour, mist or fumes exceeds 5% of
the substance’s lower explosive limit (the Australian model approach), or
based on the concentration of flammable gas, vapour, mist or fumes as
classified by AS/NZS 60079.1.10: 2009, or other such standards? Please give
reasons, noting positive or negative effects.
Storage of flammable substances
Existing arrangements
Currently the storage of flammable substances at the workplace, where it is considered to be a
significant hazard, must be managed by an employer in accordance with the process for managing
significant hazards set out in sections 7 – 10 of the HSE Act. However, there is no specific duty on
businesses to actively manage this situation by minimising the on-site inventory of flammable
substances where practicable.
There are more specific regulations for the safe storage of certain classes and quantities of
flammable substances (e.g. controls to reduce unintended ignition, segregation from incompatible
substances, and controls on intended combustion). These requirements are currently set out in the
Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001.
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Proposed change
As with the management of airborne contaminants and hazardous atmospheres, the primary
duty of care in the proposed new Act requires PCBUs to consider the storage of substances in the
workplace.
We propose to introduce a requirement for PCBUs to ensure that if flammable substances are kept
at the workplace, then the substances are kept at the ‘lowest practicable quantity’ for the workplace
[see Aust reg 53].
When meeting this requirement, PCBUs will need to consider what is reasonable in the
circumstances, given the potential risk and degree of harm from the quantity of flammable
substances present on-site relative to the costs associated with reducing their on-site inventory of
flammable substances. For example, the costs involved of more frequent deliveries, lost savings on
bulk purchases or taking maximum advantage of lower unit prices would need to be weighed against
the potential gains (in workplace safety and property damage) that can be achieved by reducing
stocks of substances.
The regulations would clarify that ‘flammable substances’ include:

waste liquids, in containers, whether empty or full and,

gas cylinders, whether empty or full.
In addition, there will continue to be more specific regulations for the safe storage of certain classes
and quantities of flammable substances at a workplace. These requirements, which are currently set
out in the Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001, will be transferred into
the new regulations for work involving hazardous substances (see Chapter 5 of this document for
more information).
Impact of change

Minimal change, as employers are currently required to manage their flammable substances
(where it constitutes a significant hazard) in accordance with the process for managing
significant hazards set out in sections 7 – 10 of the HSE Act

New explicit requirement to ensure that flammable substances are kept at the lowest
practicable quantity for the workplace (bearing in mind that the assessment of ‘practicability’
would involve weighing up the relative costs and benefits)

Increased clarity about what is included as a flammable substance.
Question 31:
Do you have any comment to make in relation to the regulatory proposal
about the storage of flammable substances at the workplace?
Question 32:
Do you think the proposed regulation for the storage of flammable
substances at the workplace will impose any additional costs on PCBUs?
Conversely, what are the benefits of this proposal? (Please quantify any
impacts identified and express in dollar terms to the extent practical)
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Falling objects
Objects have the potential to fall onto or hit people at the workplace or adjoining areas causing
serious injury if precautions are not taken.
Existing arrangements
The current regulations place a duty on employers to ensure that where any employee is under any
thing that has been raised or lifted so work can be done, supports need to be used under the thing
so it does not drop or be lowered while the employee is under it.
Proposed change
We propose to continue the current requirement to manage the risk of falling objects, but to base
the new regulation on the Australian model regulations [see Aust regs 54 and 55].
The new regulation will make clear that a PCBU must manage risks associated with an object falling
on a person, if the falling object is reasonably likely to injure the person.
If it is not reasonably practicable to eliminate the risk, the PCBU must minimise the risk of an object
falling on a person by providing adequate protection against the risk.
Adequate protection against the risk is considered to be where the PCBU provides and maintains a
safe system of work, including:

preventing an object from falling freely, so far as is reasonably practicable; or

if it is not reasonably practicable to prevent an object from falling freely—providing, so far as
is reasonably practicable, a system to arrest the fall of a falling object.
Examples of adequate protection and safe systems of work include - providing a secure barrier, a
safe means of raising and lowering objects, clear escape routes, well-positioned observers to the
work being carried out with effective communications to alert the worker if something is at risk of
falling, or an exclusion zone that people are prohibited from entering.
Impact of change

Very similar obligations on PCBUs to manage risks of falling objects.

Greater clarity on what PCBUs must do to manage risks of falling objects.

More detail on the hierarchy of controls as it applies to the particular risk of falling objects.
Question 33:
Do you have any comment on the regulatory proposal about managing the
risk of falling objects?
Other general hazards at any workplace
Existing arrangements
The current regulations contain two duties for all employers in any workplace to manage particular
hazards that are not explicitly referred to in the Australian model regulations. These are duties in
relation to:

hazardous containers; and

loose but enclosed materials (see current regulations 14 and 15).
Under these regulations, all employers must ensure that, where there is any hazardous container at
a place of work, either:

the hazardous container is securely covered; or

there is placed around the hazardous container a secure fence that—
53 | P a g e
o
extends at least one metre above the adjoining floor, ground, or platform, and
o
is in a position that will provide adequate protection for any employee near the
hazardous container.
‘Hazardous container’ is considered to be any enclosure, fixed vessel, pit, structure, sump, vat, or
other container of a similar kind that contains any liquid, and the edge of which is not at least one
metre above the ground. It does not include any drinking trough for animals or any system of water
collection, disposal, distribution or storage.
The current regulations also require employers to ensure that, where any employee may become
trapped or engulfed by loose material, a safety-belt or safety harness is provided that is—

suitable for the purpose for which it is to be used

attached to a lifeline or other device

securely fastened at its extremity; and

attended by another employee who is competent, equipped, and stationed to effect an
immediate rescue, if any employee becomes trapped.
’Material’ is considered one which consists of solid material in such a form or state that it is capable
of subsiding or flowing in a way that would trap or engulf someone, and that is enclosed inside a
structure.
Proposed change
We propose that the new regulations should continue the current requirements in relation to
hazardous containers and loose but enclosed materials.
Although managing this type of risk would be covered by the primary duty of care in the proposed
new Act, there is no reference to managing these particular risks in the Australian model regulations,
except in relation to where the materials referred to are hazardous or asbestos. Continuing these
requirements will maintain the current standard for managing these particular risks.
Impact of change

Same obligations on PCBUs.

Maintain current standard on managing these risks.
Question 34:
54 | P a g e
Do you have any comment on the regulatory proposal about managing
risks associated with hazardous containers and loose but enclosed
materials?
Managing health and safety risks to young people
Existing arrangements
The current regulations place specific duties on employers to ensure the health and safety of young
people. Young people are not physically or emotionally mature, and are often inexperienced, more
willing to take risks and more likely to be injured than adults. The current regulations relating to
young people are intended to prevent injury and reflect international practice to some extent.
Summary of regulatory requirements in relation to young people
Current
Content
regulation
54
Restricts the type of work young people under the age of 15 years can do to nonhazardous activities. Restricted work includes manufacturing, logging and
construction.
55
Injurious work – employer to take all practicable steps to prevent a person under
15 years lifting a weight or performing a task which could be injurious to that
person’s health
56
Machinery – employer to take all practicable steps to prevent a person under 15
years from operating or assisting with operating machinery
57
Tractors and self-propelled mechanical plant - employer to take all practicable steps
to prevent a person under 15 years from riding or driving such plant (NB: does not
include quad bikes).
58
Night employment - employer to take all practicable steps to prevent a person
under 16 years working between hours of 10 pm and 6 am unless it is according to
an agreed code of practice.
58A to 58F
As for current regulations 54 to 58, but applies to principals who engage young
people as independent contractors.
59
Duties of other persons to young persons. Repeats current regulation 54 in relation
to the duties of people who control places of work (as opposed to employers or
principals).
60
Duties of a person in control of a place of work. Repeats current regulation 57 in
relation to tractors and self-propelled mechanical plant (NB: does not include quad
bikes).
61
Exception (for principals or a person in control of a place of work) in relation to
tractors. A young person 12 years and over may drive a tractor if the person has
been trained or is being trained in the operation of the tractor and any implements.
Only relevant to current regulations 58 and 60.
International law
There are number of International Labour Organisation Conventions including Convention 138 on
minimum age which are relevant to the working age of young people. ILO Convention 138 requires a
minimum age for employment of 16 years or the school leaving age (16 years in New Zealand). For
work that may put at risk the health, safety or morals of a young person the required age is 18 years
old. A young person may work at such hazardous work at 16 if the young person is fully protected
from the hazardous work and has received appropriate instruction.
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New Zealand has not ratified ILO Convention 138 because Government does not consider that this
convention reflects the cultural norms in New Zealand and would prevent children from starting
part-time work after school hours. New Zealand has ratified a number of earlier ILO Conventions
relating to working age that also remain legally binding and are reflected in the current regulations.
Other related requirements for young people
The Ministry of Education has a health and safety code of practice which sets out requirements for
employment of youth in schools which reflects the requirements for youth in the current
regulations. It also has provisions to ensure safety of students and teachers in classrooms and
workshops. The code of practice does not cover students working outside the school for work
experience, but the new regulations will. Education legislation sets the leaving age for school at 16
which prevents most young people from working full-time.
Proposed change
We propose to transfer the current regulations relating to duties towards young people directly into
the new regulations with some amendments. Amendments will be needed to account for the
change in terminology in the new regime and requirements will be rationalised accordingly - for
example, there will not need to be separate regulations about young people as employees or
contractors, because both situations are covered by the definition of ‘worker’ in the new regime,
and in both cases the duty holder will be a PCBU.
Regulation 61 of the current regulations (which does not currently apply to employers) will not be
able to be rationalised in the same way. We are seeking your views on how current regulation 61
should be transferred. For instance, should it also apply to employers or should the exception be
removed or is there some other solution?
We also propose to add the handling of hazardous substances to the types of work prohibited by
regulation 54 of the current Regulations (see details below).
Hazardous substances – new proposal
There is no general provision in existing regulations dealing with age limits for the handling of
hazardous substances. We would like feedback on whether dealing with hazardous substances as
defined in the HSNO Act should be added to the new regulations similar to current regulation 54.
This would mean that a PCBU would have to take reasonably practicable steps to ensure that a
young person under 15 years of age does not work in an area where hazardous substances are
manufactured, handled or sold. Exposure to hazardous substances can result in a range of
occupational diseases including occupational cancer and occupational asthma. Given the increasing
emphasis on occupational disease a specific provision would emphasise the need to consider
exposure to disease-causing agents in the workplace. Handling of flammable substances also
requires a reasonable level of maturity and experience. However there may need to be exceptions
to this proposal for the sale of small quantities of hazardous substances (e.g. methylated spirits or
turpentine) in retail stores.
Impact of change
The new regulations will carry all the same obligations on duty holders in relation to managing
health and safety risks to young people as is found in the current regulations.
Question 35:
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Do you have any comment on the regulatory proposal about carrying over
the current provisions for young persons?
Question 36:
How do you think regulation 61 of the current regulations relating to the
use of tractors for agricultural work by 12 year olds should be transferred
to the new regulations? Do you think that this exception should be
removed? Please give your reasons.
Question 37:
Do you think there should be a provision in the new regulations prohibiting
people younger than 15 years of age from working in an area where
hazardous substances are manufactured, handled or sold? Please give your
reasons.
Duties on limited child care providers
Existing arrangements
Sections 13A – 13E of the HSE Act places duties on limited child care service providers to ensure
every employee employed to care for children is suitable for that role.
‘Limited child care centres’ are defined as any premises used regularly for the care of three or more
children under the age of six7, none of whom attend for any period exceeding two hours per day, in
circumstances where the children’s parents or caregivers are:

in close proximity to the children and are able to be contacted; and

able to resume responsibility for the children at short notice.
These provisions were inserted into the HSE Act in 2010 in response to safety concerns about
removing these types of centres from the definition of an early childhood education centre in the
Education Act 1989. Because of this removal, limited child care centres are not included in the new
vetting and screening regime being introduced by the Vulnerable Children’s Bill.
We need to maintain these requirements somewhere in the new regulatory regime, and consider
they are more appropriately placed at regulation level. The requirements would continue to apply
to a very limited group of duty holders. We estimate there are only a very small number of
businesses operating these types of childcare facilities as an adjunct to their core business – perhaps
100 in total, at most. We also understand that this number continues to drop over time, because of
the strong financial incentive that exists to become fully licensed as an ECE facility under the
Education Act 1989.
Proposed change
We propose to continue these current requirements in the new regulations (rather than at an Act
level), because they provide further detail to a particular group of PCBUs (i.e. those who operate
limited child care centres) about how to comply with their duty towards others in a workplace.
The proposed new Act requires PCBUs to ensure the health and safety of other persons who
could be put at risk from the work carried out.
7
Not being children of the people providing care or children enrolled at a school being provided with care before
or after school.
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In the new regulations, PCBUs operating limited child care centres will continue to have an
obligation to:

obtain a Police vet on every worker at the child care centre8

ensure a Police vet is obtained before the worker has unsupervised access to children

ensure that strict confidentiality is observed for the Police vets; and

ensure that workers have a reasonable opportunity to validate the information contained in
the Police vet before adverse action is taken.
The definition of limited child care centres may be further reviewed as part of drafting the new
regulations to ensure it fits appropriately in the new legislation without affecting its policy intent.
Impact of change
 Moves the current HSE Act requirements on PCBUs operating a limited child care centre so they
sit in the new regulations
 No change to obligations on PCBUs in relation to vetting workers in these facilities.
Question 38:
8
Do you have any comment to offer on the regulatory proposal about
limited child care providers?
Specifically, every worker – a) whom the service provider employs, or intends to employ, in a position at the
limited child care centre; and b) who is to work at the service during normal opening hours; and c) who is not a
registered teacher or holder of a limited authority to teach.
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Chapter 3: Regulating
representation
worker participation, engagement and
Introduction
This chapter seeks feedback on policy proposals for regulations to support worker participation,
engagement and representation under the proposed new Act.
In this chapter:

New regulation refers to regulations to be made under the proposed new Act that cover
worker participation, engagement and representation.
Involving workers in health and safety matters is a key part of making workplaces safe to work in.
Worker participation provisions in the HSE Act require every employer to provide reasonable
opportunities for employees to participate effectively in ongoing processes for health and safety.
However, the Taskforce found that in many of our workplaces, worker participation practices were
missing or weak. The Royal Commission said that worker participation was essential when designing
and monitoring health and safety policies in the workplace. Part of the Government’s response to
these findings is to provide clarity in the health and safety legislation on worker participation.
The requirements in the proposed new Act can be supported by more detailed requirements in the
regulations. This chapter sets out what we are proposing to include in the regulations for worker
participation, engagement and representation. We would like your feedback on these policy
proposals.
Drivers for change
The Taskforce found that worker participation practices in New Zealand fall well short of the current
legislative requirements and practices in similar countries. Many workplaces do not effectively
engage with their workers. The Taskforce identified contributing factors as follows:

The law provides little support for worker participation. Workplaces with fewer than 30
employees are not required to have formal participation systems

The regulator does not enforce the worker participation provisions vigorously

Employees are often unaware of their rights. If they do know about their rights, employees
fear they will be punished for exercising them

Union density (the proportion of workers who are union members) has fallen

There is increasing use of casual, contract and short-term workers

Many managers lack the awareness, motivation and skills needed to engage with workers and
respond effectively if workers raise health and safety issues; and

Many businesses prioritise production targets over health and safety concerns.
The Taskforce’s recommendations
The Taskforce recommended that the Government strengthen the law for worker participation by
having:



stronger duties on PCBUs to support worker participation
more powers and responsibilities for Health and Safety representatives; and
stronger protections for workers who raise work health and safety concerns.
The Taskforce also recommended that worker participation be further strengthened through:

including specific requirements and information about how worker participation is expected
to operate in regulations, ACoPs and guidance material.
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
the provision of increased support for worker participation by WorkSafe NZ, including
specific support for:
 Health and Safety representatives
 workers who raise work health and safety matters, either confidentially or
anonymously
 workers who are hard to organise as a group or to reach with information; and
 unions’ existing rights of entry to a workplace.
The Taskforce identified a number of principles that it felt should underpin worker participation.
These principles are outlined below for your reference.

The workplace rather than the employment relationship should be the focus for work health
and safety systems – so all workers present in a workplace are covered by the system,
including temporary and contract workers

Workers should actively participate in developing, implementing and monitoring the work
health and safety system that is present in their workplace

All workers have a right to participate through an independent range of representation
mechanisms of their own choosing, including work Health and Safety representatives,
committees and unions where they are present in a workplace

Workers should be encouraged to take active responsibility for their own actions and those of
co-workers; and

Workers should be provided with appropriate training, time, facilities and support to enable
them to participate in the health and safety system that is present in their workplace.
The Government’s response
The Government is committed to reforming New Zealand’s health and safety system. For worker
participation, the Government has decided that:

all PCBUs will have a duty to consult with workers, so far as is reasonably practicable, on
health and safety matters that affect them, and all PCBUs will have a duty to have worker
participation practices appropriate to their workplace

if the workers and/or a PCBU want to have Health and Safety representatives, the PCBU must
consult the Health and Safety representatives, allow them time off for training within three
months of being requested, pay for that training, and provide them with the time, resources
and information needed to perform their role

if the workers and/or PCBU want to have a health and safety committee, workers must make
up at least half of the Health and Safety committee, the PCBU must consult the Health and
Safety committee and the PCBU must give the Health and Safety committee the time and
information needed to perform its role

Health and Safety representatives and Health and Safety committees will have powers and
functions based on those provided under the Australian model Act, including the right for
trained Health and Safety representatives to direct unsafe work to cease (with protections
against misuse) and to issue a provisional improvement notice to a person they believe is
contravening the law

the Employment Relations Act 2000 should continue to provide the basis for resolving disputes
between employers and employees about discrimination in relation to health and safety
issues; and
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
there should be new anti-discrimination provisions covering disputes between workers and
PCBUs outside the employment relationship for discrimination relating to health and safety
matters.
All workers should be able to have a say on matters that will affect their health and safety. Effective
engagement will increase workers’ awareness of health and safety and enable them to work
cooperatively with management to identify and resolve work health and safety issues and risks.
PCBUs will be able to make better decisions by drawing on the knowledge and experience of the
people who do the job.
Greater involvement will help build workers’ commitment to improving health and safety in their
workplace.
Overview of worker participation, engagement and representation
Existing arrangements
Existing worker participation provisions in the HSE Act require every employer to provide reasonable
opportunities for employees to participate effectively in ongoing processes for health and safety.
Employers are also required to have a system for employee participation when either an employee
requests it, or the employer employs more than 30 employees.
An employee participation system may have one or more health and safety representatives or a
health and safety committee that represents a particular type of work, place of work or grouping.
The employer, employees and any employee union must co-operate in good faith to develop, agree,
implement and maintain the employee participation system.
Where the parties fail to agree a system within six months, a default process applies to elect Health
and Safety representatives. An employee or the union representing the employee can ask the
employer to hold the election for the health and safety representative, or they must hold the
election themselves. Up to five Health and Safety representatives can be elected to be members of a
Health and Safety committee. The Health and Safety representatives must comprise at least half of
that committee.
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The new regime
The proposed new Act will set out:

the main duties of PCBUs as they relate to worker participation

the functions and powers of Health and Safety representatives

the functions of Health and Safety committees

the right for workers to refuse to do unsafe work

the protections for workers from adverse conduct in relation to health and safety matters
The worker participation requirements in the proposed new Act look like this:
All PCBUs must engage with workers on health and safety matters
All PCBUs must have effective worker participation practices
Workers or PCBUs may choose to
have Health and Safety
representatives (HSRs)


Functions and powers of
HSRs
Obligations of PCBUs about
and towards HSRs
Workers or PCBUs may
choose to have Health and
Safety committees (HSCs)


Functions of HSCs
Obligations of
PCBUs about and
towards HSCs
All workers
may refuse to
do unsafe work
All workers
have
protections
from adverse
conduct
The proposed new Act makes it clear that all PCBUs have two overarching duties for worker
participation – a duty to engage with workers, and a duty to have effective agreed participation
practices regarding health and safety matters.
The Bill requires all PCBUs to provide workers with reasonable opportunities to participate
effectively in improving work health and safety on an on-going basis.
The proposed new Act does not specify what types of practices PCBUs must have. The important
thing is that workers are able to be involved in an effective way.
Different types of practices will suit different workplaces. PCBUs could comply with this duty by
having Health and Safety representatives or Health and Safety committees - or both, or neither,
relying on more informal practices instead. Such practices include regular toolbox talks, having
health and safety as a regular agenda item at team meetings, or another feedback mechanism so
staff have a defined way of raising any health and safety concerns with the business owner.
Informal practices like this may well be enough for smaller or low-risk businesses.
The proposed new Act does outline provisions that apply if the more formal approach of having
Health and Safety representatives or Health and Safety committees is chosen.
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Worker participation, engagement and representation regulations
The new regulations can:

set out how a specific process must be done (e.g. how to elect Health and Safety
representatives); or

provide more detail about the duties of PCBUs set out in the proposed new Act.
WorkSafe NZ is developing a worker participation ACoP to help PCBUs and workers understand how
the requirements of the proposed new Act and regulations could apply to their workplace. The
ACoP and guidance material will be available to help people understand the new legal requirements.
Process for developing the options in this chapter
We have used the Australian model regulations as the starting point for what should be included in
the new regulations.
We have also considered:

whether there are any details from the HSE Act that should be included; and

feedback from submitters on the exposure draft of the Bill.
What’s not in scope
The following areas are not covered in this chapter:

Worker participation regulations that apply only to particular industries: we will undertake
further work to identify whether any of these are needed after the proposed new Act has
passed.
The proposed new Act contains a schedule that carries over the work done in 2013 to strengthen
worker participation requirements in the HSE Act for the mining industry, implementing the
recommendations of the Royal Commission.

Permits to enter workplaces: Government has already decided that this aspect of the
Australian model Act will not be put in place in New Zealand. The existing provisions for
unions to enter workplaces under the Employment Relations Act 2000 will continue to apply.
Details of the proposals
Exercising Government’s ability to regulate more widely
As in the Australian model Act, the proposed new Act contains a broad regulation-making power
in relation to matters of worker participation, engagement and representation.
To date, the Australians have not made model regulations for all of the matters that are provided for
by the Australian model Act.
Similarly, even though the proposed new Act will allow for regulations to be made about the
following matters, we do not consider that there is a need to regulate at this stage:



further activities that PCBUs must engage with workers on
further requirements for worker participation practices; and
further functions of Health and Safety committees.
This is because we think it is important to strike the right balance when setting the new regulations
between getting the improved worker participation, engagement and representation needed to
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achieve our goal of safer workplaces, and taking an overly prescriptive approach that doesn’t add
enough value or gets in the way of innovative thinking.
Health and Safety representatives
Health and Safety representatives are one way that workplaces can facilitate worker participation
that is particularly effective when the business is large, high-risk or involves a complex operation of
some kind. A Health and Safety representative is someone elected by their fellow workers to
represent them in health and safety matters. The representative role can mean that workers have
an efficient mechanism for making sure that any safety issues are channelled through to those in
charge, so they can be addressed promptly before someone gets hurt. And it should work in the
opposite direction as well - those in management positions can be supported by the Health and
Safety representative to help them spread key safety messages and information to the workers so
everyone gets on board.
Existing arrangements
The HSE Act allows parties to have an agreed system for employee participation. This may include
electing Health and Safety representatives to represent employees at the workplace. The HSE Act
does not provide for how a Health and Safety representative must be elected unless the parties fail
to implement an agreed system for employee participation within six months of setting out to do so.
Under the default procedure, employees, together with any unions representing them, must hold an
election for a health and safety representative or they may require the employer to hold the
election. The employer must hold the election within two months.
The election must be conducted through secret ballot and give all employees in the relevant
grouping a reasonable opportunity to vote. The health and safety representative will be elected by
the majority vote.
An election is not required if there is only one candidate for a position, as this candidate
automatically fills the position. If there are no candidates, the position will not be filled.
Overview under the proposed new Act
The proposed new Act sets out the functions and powers of Health and Safety representatives. It
also sets out PCBUs’ corresponding obligations to assist Health and Safety representatives to
carry out their functions and powers.
Workers and PCBUs may also agree to have deputy Health and Safety representatives if they
want.
In that case, the proposed new Act provides that Deputies may act as the Health and Safety
representative for the work group if the Health and Safety representative is unavailable for any
reason (including if the Health and Safety representative stops being a Health and Safety
representative). When acting as a Health and Safety representative, deputies have the same
functions and powers as the Health and Safety representative and PCBUs have the same
obligations to assist them to do their job. Deputies are also entitled to training.
Proposed regulations
We propose that the new regulations will set out:

the process for electing Health and Safety representatives

who can be a Health and Safety representative

training for Health and Safety representatives

Health and Safety representatives’ term of office; and
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
how someone ceases to be a Health and Safety representative.
Once workers or a PCBU decide that they want to have a Health and Safety representative they must
then decide how best to group the workers that each Health and Safety representative will
represent. These groups are known as a “work group”.
Before we go any further to outline the regulatory proposals, it’s important that people know more
about how we view the work group concept and envision it working in practice, because it is central
to the discussion – see the blue box that follows.
What is a work group?
Quite literally, a work group is an agreed group of workers – it’s essentially the same concept as
that contained in Part 2A of the HSE Act which talks about a grouping of workers, but by another
name.
Work groups don’t need to be overly complicated – their purpose is to support Health and Safety
representatives to be as effective as possible by ensuring they represent groups of workers with
similar interests and concerns when it comes to health and safety at work. In the majority of
situations the most effective way to group workers will be obvious to all concerned (for example,
according to the type of work they do, the risks they face, where they are physically situated or
when they work), and you can agree and get on with the rest of the process.
What might work groups look like in different types and sizes of business?
Here’s one example - in a large manufacturing plant that operates 24/7 on a three shift rotation,
each shift could be a separate workgroup. This would mean that the PCBU is able to get better
information about the specific health and safety needs presented by the time of day/night that
workers are performing their work (in addition to information from all shifts about the tasks
being performed). This arrangement would also mean that workers have access to their own
health and safety representative no matter when they are working.
Or you could cut it another way, if different types of work done in the business presented quite
different risks – such as administration staff, those on the tools, and those spending a lot of time
on the road checking sites in a large construction firm.
Workers in very small businesses tend to have more direct access to the boss because they’re
often working right alongside each other and have a working relationship that they can use to
raise any concerns - so there may not be the same need to set up a formal mechanism like
having a Health and Safety representative.
However if, for some reason, a small business decided that Health and Safety representatives
were the way to go (perhaps because other demands on the PCBU meant they weren’t as
accessible to the workers as either party wants) and there were only a handful of workers,
everyone could agree that only one workgroup (and one representative) is needed – effectively,
the entire business is the workgroup in that scenario.
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How a work group is decided
We propose that the regulations will set out that a PCBU must negotiate with workers and any
worker representatives to determine one or more work groups.
The proposed new Act sets out the purpose of determining work groups which is to facilitate the
representation of workers by deciding the following factors:

the number and composition of work groups to be represented by Health and Safety
representatives

the number of Health and Safety representatives and deputies (if any) to be elected for
each work group; and

the workplace or workplaces that each work group will apply to.
A work group does not have to apply to only one workplace or one PCBU. A work group may
include workers who work at several different workplaces for the same PCBU. Or, it may include
workers who work for different PCBUs at the one workplace. Where there are multiple
businesses or undertakings in the same workplace, the PCBUs and workers will have to decide on
the matters listed in the bullet points above as well as:

the businesses or undertakings that the work groups will apply to.
When a PCBU must commence negotiations for a work group
We propose that the new regulations will require the PCBU to take reasonable steps to begin
negotiations for a work group with the workers and any worker representatives within 14 days of:

a worker notifying the PCBU that they want an Health and Safety representative; or

the PCBU telling the workers that it would like to have Health and Safety representatives as
part of its worker participation practices.
A time limit of 14 days is proposed because the determination of work groups is the first step that
must be completed before an election for a Health and Safety representative can be undertaken.
Therefore, it is important that the negotiations for work groups are commenced promptly so that
workers can be represented in health and safety matters by the Health and Safety representative
that has been elected.
Procedure for negotiating work groups
We propose that the new regulations will set out the procedure for negotiating work groups. This
procedure will align closely with section 53 of the Australian model Act and regulations 16 and 17 of
the Australian model regulations.
The regulations will set out that the work groups must be set up to ensure that workers are grouped
in a way that:

most effectively and conveniently enables the health and safety interests of workers to be
represented; and

has regard to the need for Health and Safety representatives for the work group to be readily
accessible to each worker in the work group.
When deciding on work groups, the parties must take into account any ACoP and the following
factors:

the number of workers working in the business or undertaking

the number of different places of work for the workers and the distance between them
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
the nature of the work that is performed and the way that it is arranged by the PCBU; and

the nature of the employment arrangements or contracting arrangements, including the
extent and regularity of employment or engagement of temporary workers.
In addition to the factors listed above, the parties must take into account all relevant matters. These
relevant matters may include the following non-exhaustive list:

the number and groupings of workers who carry out the same or similar types of work

the areas, places and time each type of work is carried out

the extent to which any worker must move from place to place while at work

the views of the workers, and diversity of workers and their work; or

the nature of any hazards or risks at the workplace(s).
Changes to work groups
We propose that in the new regulations, the parties who determined a work group will be able, at
any time, to negotiate a variation of the work group.
When varying a work group the parties must take into account the same factors and relevant
matters that apply when determining a work group.
Question 39:
Do you have any comments on the proposed procedure for determining or
varying work groups where there is one PCBU?
Negotiating work groups for multiple businesses
In addition to work groups negotiated for individual PCBUs, work groups can be negotiated for
multiple businesses or undertakings at the one workplace.
The factors that must be taken into account will be the same as those for determining a work group
for one PCBU, outlined under “procedure for negotiating work groups” above.
Determining work groups for multiple businesses or undertakings will not affect any work groups
that are already set up for individual PCBUs or prevent any further work groups being determined.
We propose that, when negotiating to set up or vary a work group involving multiple businesses or
undertakings, a party to the negotiations may withdraw from negotiations by providing reasonable
notice, in writing, to the other parties. Where a party has withdrawn, this will not affect the validity
of the agreement between the other parties. If a PCBU withdraws from negotiating with multiple
PCBUs to determine a work group, it must still negotiate with its workers to determine work groups
relating to its business or undertaking.
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What might a work group for multiple businesses look like in practice?
Workers on the same worksite may work for more than one PCBU. For example, if you took a
construction site, there may be workers from several different sub-contracting firms (which are
PCBUs in their own right) such as plumbers, builders, roofers, electricians, plasterers working
alongside each other at the same time. These workers can face similar risks arising from the site
itself, as well as from the variety of work that is being undertaken (because each can have an
effect on the other).
All of those workers will also be connected to the principal contractor for the site (the PCBU with
control of the workplace), because they have been caused to be engaged by that business or
undertaking (which is to deliver a finished building to the client).
In this situation, all of the PCBUs and workers involved can agree together that a single
workgroup should be formed that is made up of all the workers on that site (regardless of who
‘their’ PCBU is). This will then allow Health and Safety representatives to be elected to ensure
that health and safety matters that affect all the workers are channelled through to the
appropriate PCBU (or PCBUs, if necessary) and be effectively addressed.
Question 40:
Do you have any comments on the proposed process for determining work
groups where there are multiple PCBUs?
Notification to workers

We propose that once a work group has been determined, the PCBU must notify the workers
and any workers’ representative of that determination as soon as reasonably practicable.
Who can be a Health and Safety representative
Health and Safety representatives give workers a voice in health and safety matters that concern
their work group. It is therefore important that the Health and Safety representative is a worker
from that work group.
We propose that the new regulations should specify that an individual can only be eligible to be a
Health and Safety representative if they:

are a worker of the work group they represent

are willing to be a Health and Safety representative (as in schedule 1A of the HSE Act); and

work sufficiently regularly and for a sufficient time to carry out their role effectively (as in
schedule 1A of the HSE Act).
Question 41:
Do you have any comments on the proposed eligibility criteria for a Health
and Safety representative?
How Health and Safety representatives and deputies are elected
Under the new regulations we propose that the Health and Safety representative and any deputies
must be elected by the members of the work group they will represent. The regulations will provide
that all members of the work group may vote for the Health and Safety representative and any
deputies.
The members of the work group should choose who they want to represent them. A PCBU cannot
appoint Health and Safety representatives or deputies.
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The PCBU’s duties for the election process
The new regulations will require PCBUs to facilitate an election and to provide the resources,
facilities and assistance that are reasonably necessary for the election of Health and Safety
representatives to be carried out. The worker participation ACoP being developed by WorkSafe NZ
may include examples of the type of things PCBUs should provide, such as access to printers,
meeting rooms, notice boards, and email.
Where there is more than one PCBU, the PCBUs should consult together about how they will fulfil
this duty. We are not proposing to include details on how PCBUs should split any costs for holding
an election in the new regulations.
The election process for Health and Safety representatives
We propose that the new regulations should allow the relevant parties (the PCBU and the workers in
a work group, including potential candidates) to decide the process for electing Health and Safety
representatives. This will give parties the flexibility to agree to an approach to elections that suits
the needs of the particular workgroup. For example, workers from a small business may wish to
elect their Health and Safety representative by a simple show of hands.
However, in larger or more complex businesses, formal processes – such as a secret ballot - may be
more appropriate. The default employee participation system in the HSE Act requires a secret ballot
(see section 7(b) of Schedule 1A), so some larger businesses and their workers may already be
operating this way. For this reason, we propose that the new regulations should provide support to
this method as an option by specifying that if any party (that is, the PCBU or one worker or
candidate) requests that a secret ballot be conducted as part of the election process, then a secret
ballot will be mandatory in that particular situation.
The worker participation ACoP being developed by WorkSafe NZ may include examples of how
Health and Safety representatives will be elected and may include the factors workers should
consider, such as the date of the election, the process for nominations and identifying the resources
needed to carry out the election.
All members of the work group must have the opportunity to nominate someone, including
themselves, to stand as a Health and Safety representative or deputy. If the number of nominations
equals the number of vacancies, the nominees will become the Health and Safety representatives
and an election does not need to be held.
The new regulations will allow workers to have a worker representative help them organise the
election, if the majority of the work group wish them to.
The workers will need to appoint someone to carry out the election. This person could be from the
work group, a PCBU or another organisation. Under the regulations, the person carrying out the
election will be responsible for notifying the relevant PCBUs of the date of the election as soon as
practicable to give the PCBU time to organise the resources, facilities and assistance needed to
conduct the election.
In addition to this the worker participation ACoP may provide guidance on what the appointed
person may take responsibility for during the election process. One possible example could be
ensuring that the PCBU and new Health and Safety representatives and deputies (if any) are told the
election results.
Question 42:
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Do you have any comments on the regulatory proposals for the election
process for health and safety representatives?
Term of office
The Australian model regulations set the term of office at three years. The term of office needs to
balance giving a new Health and Safety representative time to become familiar with their role and
perform it effectively, with giving other workers the opportunity to be Health and Safety
representatives.
We propose that the new regulations will set a term of office of three years for a Health and Safety
representative. A Health and Safety representative may stand to be re-elected at the end of the
three years. There is no limit on the number of times someone can be elected as a Health and
Safety representative.
Question 43:
Do you have any comments on the regulatory proposal about the term of
office of three years?
Training of Health and Safety representatives
Under proposed new Act, only a trained Health and Safety representative may issue a provisional
improvement notice (PIN) or direct a worker to cease unsafe work.
The proposed new Act will require the PCBU to comply with any requirements in the regulations
about allowing access to training for Health and Safety representatives. It will also require Health
and Safety representatives to be paid for time away from work while they are training.
Types of training
The HSE Act provides that an employer must allow a Health and Safety representative two days’ paid
leave each year to attend an approved health and safety representative training course. A trained
health and safety representative may issue a hazard notice. We are interested in your feedback on
what training you think is required for health and safety representatives to issue PINs or direct
unsafe work to cease, under the proposed new Act.
The types of training Health and Safety representatives must have in order to issue a PIN or direct
unsafe work to cease will be prescribed by or under the new regulations. We are currently
reviewing the training requirements. Decisions made on the type of training needed (including its
length and content) that come out of the review will affect the minimum entitlement that Health
and Safety representatives are given to access approved training courses. This minimum entitlement
will be included in the new regulations once those decisions have been finalised, but in general we
intend to continue the status quo of setting an annual entitlement for attendance at one approved
course.
We are interested in your feedback on what competencies you think a Health and Safety
representative should be required to have. This will enable us to gauge the type, nature and level of
training required to develop the competencies that a Health and Safety representative should have.
A list of the existing competencies for Health and Safety representatives can be found at:
http://www.dol.govt.nz/er/services/education/courseapproval/GazetteNotice-level-competency.pdf
The Australian Model Act allows for annual refresher training to be provided. We do not believe the
knowledge a Health and Safety representative needs in order to issue a PIN or direct unsafe work to
cease will change on an annual basis. For this reason we consider refresher training is unnecessary in
the New Zealand context. We would be interested in your feedback on what ongoing learning and
development requirements a Health and Safety representative might need, and how they might best
be met.
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Question 44:
Existing trained Health and Safety representatives are able to issue hazard
notices – what additional training do you think is required in order for
these Health and Safety representatives to issue PINs and direct unsafe
work to cease, if any? Please give your reasons.
Question 45:
What essential content needs to be covered in training for Health and
Safety representatives to have enough knowledge to effectively carry out
their functions and powers? Please give your reasons.
Question 46:
How do you think Health and Safety representative training should be
delivered, for example online or face-to-face? Please give your reasons.
Setting training requirements
Currently, the training requirements for Health and Safety representatives to become “trained
Health and Safety representatives” (and therefore be able to issue hazard notices) are specified by
notice in the NZ Gazette. A number of courses have been reviewed and approved by the Minister of
Labour, where the Minister is satisfied that the training meets the object of the HSE Act and is
relevant to the role of a Health and Safety representative. We propose that this situation will
continue under the legislative framework, so that the entitlement of Health and Safety
representatives to attend training is limited to courses that have been formally approved by the
Government as appropriate.
The Health and Safety representative functions and powers under the proposed new Act may
require any associated training to be more robust. Under the Australian model regulations the
regulator, in approving a course of training, must have regard to all relevant matters, including:


the content and quality of the training and its relevance to the powers and functions of a
Health and Safety representative; and
the qualifications, knowledge and experience of the person who is to provide the course.
We are interested in your feedback about what relevant matters should be considered when
approving training courses, and what knowledge and expertise the provider of the training should
have.
Question 47:
What level of experience and qualifications must the training organisation
have in order to provide training for Health and Safety representatives?
Please give your reasons.
Question 48:
What assessment should Health and Safety representatives have to
undergo, if any, as part of their training to be able to exercise their powers
and functions under the proposed new Act?
Access to training
We propose that under the new regulations:

the Health and Safety representative should provide their PCBU with details of the approved
health and safety representative training course that they wish to undertake; and

the Health and Safety representative must consult with the PCBU about the date and location
of the training. This is to allow the PCBU the opportunity to suggest alternative courses, for
instance if the date of the course will cause unreasonable disruption to the workplace, the
location is out of town or the course fees are higher than other courses.
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PCBU’s obligations for training
We propose that under the new regulations:

the PCBU must allow the Health and Safety representative to attend an approved health and
safety representative training course as soon as practicable, and within three months of the
request

the PCBU must pay for the course fees and any reasonable costs for the Health and Safety
representative to attend the training. Reasonable costs may include travel, accommodation
and meals (for instance, if the course is out of town); and

if there is more than one PCBU, the PCBUs must pay an equal proportion of the fees and costs,
unless they agree to split the fees and costs in another way.
Question 49:
Do you have any comments on the proposed process for Health and Safety
representatives to access training and the PCBU’s obligations for training?
Lists of Health and Safety representatives
The regulations will require PCBUs to have an up-to-date list of all Health and Safety representatives
and any deputy Health and Safety representatives and to display this list so it accessible to workers
in each of the relevant work groups. Workers should be able to easily access the list to see who is a
Health and Safety representative, so they can talk with them should a health and safety matter arise.
It will also allow an inspector visiting the workplace to see who the Health and Safety
representatives are so he or she can talk to them.
The Australian model Act requires a PCBU to provide a copy of the list of Health and Safety
representatives to the regulator. We consider this requirement too burdensome to place on all
PCBUs. Instead, we propose that the new regulations should require the PCBU to provide an up-todate list of Health and Safety representatives only if requested by the regulator.
Ceasing to be a Health and Safety representative
As well as coming to the end of their term in office, someone may cease to be a Health and Safety
representative for other reasons. We propose that the new regulations should outline that a person
will cease to be a Health and Safety representative if he or she:

chooses to resign as a Health and Safety representative

is no longer part of the work group they represent; or

is removed from office by a majority of people in the work group.
If a Health and Safety representative ceases to hold office, the workers may elect a new Health and
Safety representative. If there is a deputy, the deputy may act as the Health and Safety
representative.
Removal by the Regulator
The proposed new Act allows the regulator to remove someone as a Health and Safety
representative if the Health and Safety representative has not performed his or her functions or
exercised his or her powers satisfactorily. The removal may be permanent or for a set period of
time. The Health and Safety representative may appeal his or her removal in the District Court.
If the work group has a deputy Health and Safety representative, the deputy may stand in for the
Health and Safety representative while the appeal process is underway. If there is no deputy, the
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regulations will allow the workers to elect a deputy Health and Safety representative to act as the
Health and Safety representative until the appeal process is completed. This will ensure that the
workers still have access to a Health and Safety representative, while allowing the Health and Safety
representative to return to their role if his or her appeal is successful.
If the Health and Safety representative does not appeal their removal or the appeal is not successful,
the workers may elect a new Health and Safety representative.
Removal by the workers
We propose that the new regulations should set out the process for workers to remove a Health and
Safety representative. We propose to follow the process in the Australian model regulations:

the members of the work group must sign a written declaration that the Health and Safety
representative no longer represents them

a majority of the work group will need to sign the declaration

one person from the work group must advise the PCBU and the Health and Safety
representative about the removal. He or she will also tell the members of the work group;
and

the removal will be effective from when the Health and Safety representative, PCBU and a
majority of the work group have been notified of the removal.
Question 50:
Do you have any comments on the proposed reasons for someone to cease
being a Health and Safety representative or the process for workers to
remove a Health and Safety representative from office?
Question 51:
Do you have any other comments on the regulatory proposals for Health
and Safety representatives?
Health and safety committees
Existing Arrangements
Currently, the HSE Act allows parties to decide the membership of the Health and Safety committee.
Where the parties cannot agree to a worker participation system within six months, the default
provisions apply. The default provisions require that Health and Safety representatives make up at
least half of the Health and Safety committee. There is a maximum of five Health and Safety
representatives on a Health and Safety committee.
Overview under the proposed new Act
The proposed new Act provides that a Health and Safety committee may be selected by workers
or the PCBU as a way to have effective worker participation in health and safety matters at the
workplace.
The proposed new Act sets out that a Health and Safety representative or five or more workers at
the workplace may ask the PCBU to establish a Health and Safety Committee, or the PCBU may
establish an Health and Safety committee on its own initiative.
The functions of Health and Safety committees are set out in the proposed new Act, as well as
the PCBU’s corresponding duties that will assist Health and Safety committees to carry out their
functions.
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Proposed regulations
We propose that the new regulations will set out:

the membership (constitution) of the Health and Safety committee; and

how often Health and Safety committees must meet.
Membership
The regulations will set out that PCBUs and workers must agree upon the membership (constitution)
of the Health and Safety Committee. We propose the membership of the Health and Safety
committee will be regulated by requiring that:

at least half of the Health and Safety committee members must be workers not nominated by
the PCBU

where there is a Health and Safety representative at the workplace, and he or she consents,
that representative will be a member of the Health and Safety committee; and

if there are two or more Health and Safety representatives at a workplace, either one or all,
who consent, may be members of the Health and Safety committee.
In some workplaces, where there are two or more Health and Safety representatives, it may not be
appropriate or practicable to require each Health and Safety representative to be a Health and
Safety committee member. The Health and Safety representatives should be able to choose
between themselves how many Health and Safety representatives should be on the Health and
Safety committee.
Requiring the Health and Safety committee to have at least half of its membership made up of
people who have been chosen by workers will help to ensure that the worker perspective on health
and safety issues is represented in the Health and Safety committee.
Beyond these requirements, we are not proposing to regulate a process by which Health and Safety
committees are formed. This will allow the PCBU and workers to adopt a process of choosing
members that suits its size and needs.
Question 52:
Do you think PCBUs must be required to appoint at least one person to the
Health and Safety committee who has delegated authority to make
decisions on health and safety matters? Please give your reasons.
Health and safety committee meetings
The new regulations will specify that the Health and Safety committee must meet on a regular basis
as agreed by the Health and Safety committee. However, the Health and Safety committee must
meet at least:

every three months; or

at any reasonable time at the request of at least half of the members of the Health and Safety
committee.
It is important that the Health and Safety committee meets regularly to work cooperatively in
developing health and safety policies and procedures and discuss any health and safety issues that
need to be raised. Regular meetings should help to ensure that participation in, and awareness of,
health and safety matters is regular and on-going. We consider it appropriate that Health and Safety
committees must meet at least every three months.
Additionally the Health and Safety committee members, where reasonable, should be able to call a
meeting when at least half of the committee consider it necessary. This is consistent with the
approach taken in Australia.
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We think that, outside the matters intended to be regulated above, no other circumstances need to
be regulated at this time.
Question 53:
Do you have any comments on the proposed regulations regarding Health
and Safety committees?
Issue resolution
The proposed new Act provides that when an issue about work health and safety arises at a
workplace, the parties must first make reasonable efforts to achieve a timely, final and effective
resolution of the issue.
If the parties, after reasonable efforts, cannot decide the matter between themselves, any party to
the issue may ask the regulator to assist them in resolving the matter. The regulator will assess the
request and decide the best course of action. This may be that the parties should continue to resolve
the matter themselves as the regulator considers reasonable efforts have not occurred, or the
regulator may direct them to the worker participation ACoP or other guidance materials or
recommend mediation.
The proposed new Act allows regulations to be made that identify certain circumstances where it
is appropriate for an inspector to decide a matter.
We think that this should apply in situations where failure to reach agreement will stop worker
participation in health and safety matters from occurring. This would generally only occur if all
attempts at resolution have failed. We propose that an inspector should be able to do so in the
following situations:
Situation:
Inspector may decide:
Negotiations to determine a 
work group have failed.
the number and composition of work groups to be
represented by health and safety representatives

the number of health and safety representatives and
deputy health and safety representatives (if any) to be
elected

the workplace or workplaces to which the work groups
will apply

that an existing agreement on the makeup of the work
group should not be varied
The
Health
and
Safety 
representative and PCBU are

unable to agree on either the
time or location of a Health and
Safety representative training
course.
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the timing and location of the course
the reasonable costs associated with attending the
course e.g., one night’s accommodation or travel costs
Situation:
Inspector may decide:
The parties cannot reach an 
agreement on the membership

of the Health and Safety
committee.
the membership of the Health and Safety committee
that the Health and Safety committee should not be
established
We consider it important that the inspector should be able to make a final decision in the above
situations because each of these steps need to occur before either the Health and Safety committee
can be established, a Health and Safety representative can be elected or a Health and Safety
representative can be trained. It is important that these matters are determined promptly and
efficiently so that the PCBU can meet its obligations to have effective worker participation practices.
Question 54:
Do you have any comments on the proposed situations where an inspector
may make a final decision about a matter? Please give your reasons.
Question 55:
Do you have any further comments that you would like to make on the
regulating of worker participation?
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Chapter 4: Regulating work involving asbestos
Introduction
This chapter seeks feedback on policy proposals for regulating work involving asbestos under the
proposed new Act.
In this chapter:


Current regulation refers to the Health and Safety in Employment (Asbestos) Regulations
1998; and
New regulation refers to regulations to be made under the proposed new Act that cover
work involving asbestos.
The Australian model regulations contain extensive provisions concerning work involving asbestos.
Australia has experienced an epidemic of asbestos-related disease over recent decades similar to
that in New Zealand - but on a larger scale, because of the higher population. Australia has
responded with comprehensive regulations and supporting infrastructure.
We are aware that our current regulations have some deficiencies, and can see the value of adopting
the Australian model regulations as a template for change. This chapter raises topics for discussion if
New Zealand is to adapt the Australian model regulations to New Zealand law.
The controls that apply to asbestos in New Zealand need to be reviewed with some urgency. The
current worldwide trend is towards a complete ban on the importation of asbestos-containing
products and tighter controls applying to work with asbestos. These international developments
have left New Zealand out of step with many of our most relevant comparators, including Australia,
the European Union (EU), and the United Kingdom (UK).
Need more information?
We realise that not everyone with an interest in these regulations will be an expert in asbestos,
where it is used and what harm it can cause. For this reason, a background document can be
downloaded from http://www.mbie.govt.nz/about-us/consultation to help those unfamiliar with the
topic to engage with the proposals in this chapter in a more informed way. The document contains
information about the different types of asbestos, the occurrence of asbestos in New Zealand
workplaces and a brief summary of the epidemiology of asbestos-related disease.
The existing regulatory regime for work involving asbestos
The current regulations place duties on employers, principals to contracts, and persons in control of
places of work where there is work involving asbestos.
The WorkSafe NZ publication Guidelines for the Management and Removal of Asbestos expands on
the requirements set out in the current regulations and provides guidance for employers and others
on the procedures to follow when working with asbestos and asbestos-containing materials.
“Work involving asbestos”
The current regulations apply to every place of work under the control of an employer, including a
principal to a contract, at which work involving asbestos is carried out. “Work involving asbestos”
means:

work involving the cleaning, disposal, handling, processing, storage, use or working of
asbestos, or

work involving the demolition or maintenance of anything, including a building or a part of a
building, containing asbestos, or

cleaning work carried out as a consequence of, or in connection with the above work.
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Requirements for all work involving asbestos
Part 1 of the current regulations specifies minimum standards that apply to all work involving
asbestos. Where contact with asbestos products cannot be avoided, then “all practicable steps”
must be taken to minimise exposure to asbestos fibres. The regulations require:

approved testing methods are used for the identification of asbestos and any air monitoring
carried out in the workplace

protection from exposure to asbestos dust

ensuring that sound work practices are carried out to avoid the spread of asbestos dust

storage, distribution and disposal of asbestos waste; and

the maintenance of protective clothing and equipment, dust control equipment and cleaning
equipment.
Restricted work
Part 2 of the current regulations set more stringent requirements for “restricted work” that must be
notified to WorkSafe NZ before work begins.
The regulations define “restricted work” as:

work involving asbestos, if the asbestos concerned is friable and used in thermal or acoustic
insulation, or fire protection, in buildings, ships, structures, or vehicles

work involving asbestos, if the asbestos concerned is friable and used in lagging around
boilers, ducts, furnaces or pipes

the demolition or maintenance of anything, including a building or part of a building
containing friable asbestos

the encapsulation of materials containing friable asbestos

the use of power tools, with any kind of cutting blade or abrasive device on asbestos cement
or other bonded product containing asbestos, except when used with dust control equipment;
or

dry sanding of vinyl asbestos floor coverings.
Restricted work must be carried out by a person holding a certificate of competence, or by someone
under direct supervision of a person holding a certificate.
The work must be isolated to ensure that workers and others in the area are not exposed to
asbestos fibres.
Part 3 of the current regulations describe a process for the gaining, renewal, cancellation and
suspension of certificates of competence.
Part 4 of the current regulations place a duty on manufacturers and suppliers of products containing
asbestos to ensure that they are labelled in a prescribed manner.
Work methods, equipment and safety procedures in support of the regulations are detailed in the
Guidelines for the Management and Removal of Asbestos. The procedures include isolation or
enclosure of the area, the erection of warning signs, the use of negative pressure exhaust extraction
systems, decontamination procedures and monitoring of asbestos fibre concentrations in the air.
Respiratory and personal protection must be used, and asbestos waste disposed of in an approved
manner at a designated refuse site.
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What is not in scope for new regulations
By definition, work health and safety regulation is restricted to covering workplaces. For this reason,
the following two potential areas of regulation about asbestos cannot be dealt with by regulations
under the proposed new Act.
DIY work
‘Do-it-yourself’ refurbishment and maintenance work is carried out at the home by the homeowner,
sometimes assisted by friends or family. This situation is not covered by the HSE Act and the current
regulations. However if someone is hired to carry out work in a home it becomes a workplace, and
the Act and regulations apply to the person engaged to do the work.
This is expected to remain the case with the proposed new Act and new regulations.
Banning asbestos-containing material
It is also not within the scope of these regulations to ban the import, export or manufacture of
asbestos or asbestos-containing products or materials. Although some controls are in place in other
regulatory regimes, further work is needed to align New Zealand with trading partners such as
Australia, the United Kingdom and the European Union.
Work currently being progressed by the Ministry for the Environment is linked to this issue. As there
is some uncertainty as to the volume and type of products containing asbestos being imported into
New Zealand, the Ministry for the Environment, with support from other relevant agencies is in the
process of commissioning research to investigate the current importation and intended use of
asbestos-containing products into New Zealand.
This investigation will provide a better picture of asbestos-containing products coming into New
Zealand, and will help inform any measures that may be taken with regard to the import of these
products. It may also assist with identifying where attention should be focused with regard to
asbestos-containing products already in New Zealand.
Drivers for change
The ongoing toll of disease and death arising from past occupational exposure to asbestos is outlined
in the background document on asbestos. New regulations will not have any effect on disease
(including that yet to be diagnosed) caused by past exposure, but we must ensure that the
regulatory requirements we set now lead to this toll reducing over time.
The background document also outlines an international move towards more stringent regulation of
asbestos. New Zealand has fallen somewhat out of step in this regard.
Deficiencies with the current asbestos regulations
Through initial discussions and consultation with stakeholders we have identified a number of
problems with the operation of the current regulations and factors to consider in reviewing the
regulations.
The availability of asbestos products

There are currently no restrictions on importation of asbestos-containing materials (as there is
in Australia) and this affects how the regulations operate in New Zealand. Asbestos-containing
materials are likely to find their way into workplaces as part of plant and structures and
require maintenance and other work.

The Australian model regulations are premised on a ban on importation and export, use and
reuse of asbestos and asbestos-containing materials.
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Coverage

Although the current regulations cover asbestos-containing materials and asbestos-containing
dust, the duties in relation to both – particularly materials or components other than building
materials – are not explicit enough.

The current distinction between “friable” and “non-friable” asbestos is blurred and not
helpful, as although much of the “non-friable” asbestos already in place is degraded and
crumbles easily, it avoids the “restricted work” requirements of the regulations. There is a
case for licensing the removal of all types of asbestos, with a class A licence for loose friable
asbestos, and or a class B licence for all other types (however, we note that the Australian
model regulations exempt the removal of up to 10m2 of asbestos from the requirement to use
a licensed removalist, and this would need to be reviewed).

The current regulations do not say who decides whether asbestos is friable.

Asbestos should be kept separate from other hazardous substances regulations, but could be
referenced. Because asbestos is highly carcinogenic and has a long latency it warrants
separate regulations, as in Australia and elsewhere.

Because maintenance workers are generally not trained in asbestos, they often do not
recognise it on a work site. They may then transfer particles to their vehicle and homes,
exposing others. People are also occupying buildings where there is asbestos that is
deteriorating. Because the current regulations do not require an asbestos survey of all
buildings and plant, or the creation of a register, asbestos may be inappropriately managed in
these situations.

Naturally-occurring asbestos is less common is NZ but can be associated with greenstone.
There may be a case for inclusion, after investigation.

There are buildings with asbestos roofing where rain runoff is depositing asbestos onto the
surrounding ground, or where gutter debris containing asbestos is being disposed of unsafely
and thrown on the ground. There are also a number of buildings with crumbling asbestos in
the roof space or under the floor. Currently there is no policy for management of asbestos in
all buildings- identification, testing, assessment and control.

The relationship of asbestos regulations to the building legislation is unclear. Identification of
asbestos in residential premises could be addressed in building legislation.
Exposure standards and assessment

Definitions for respirable fibres are different in Australia and New Zealand.

Workplace exposure levels are out of step with the Australian standard.

It is unclear in the current regulations that the exposure levels apply to all workers, not only
asbestos removal workers.

There is a lack of consistency in how and where asbestos samples are taken, and a need for
more consistent standards. These may vary from those of Australia in some respects, including
soil contamination.

There are different clearance standards in New Zealand and Australia.

There is no system for notification of accidental incidental exposure. Australian legislation
requires notifications of ‘near misses’.
Minimum standards for documenting and completing asbestos work

The regulations do not contain specific requirements for the transportation and disposal of
asbestos. In particular there is no requirement for checking records of amounts of asbestos
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leaving a site for consistency with the amounts recorded as being correctly disposed of. The
system currently in use is voluntary only.

There is no formal documentation of asbestos management plans or review by a person with
specialist knowledge.

The period of notification of intention to do restricted work, at 24 hours is too short for the
regulator to respond to.
Licensing

Standards of competency and processes are inconsistent from centre to centre, from one
operator to another, and with those in Australia. On balance they are often lower than in
Australia. They only apply to individual practitioners and this creates problems with
accountability, and consistency of standards by removalists.

The desirable level of cost-recovery for the licencing regime should be investigated. There are
low barriers to entry and required levels of competence.

There is gap between companies offering services and individuals holding certificates of
competence and this affects accountabilities and the supervision of work to appropriate
standards.

There is not a register of operators, certificate holders, assessors or others available to carry
out restricted work. Notifications of work to be done are submitted and include the name of
the certificate of competence holder but not those who will be supervising or undertaking the
work.
Compliance, resourcing and infrastructure

The current regulations are unclear, while the Australian model regulations group information
into easily identifiable areas, and use plain English.

Penalties do not provide a sufficient disincentive for failures by operators to meet standards.

There are deficiencies in training available to support the regulations.

A small proportion of asbestos removals are inspected under the current regulations, and
there are few cases where businesses are required to correct infringements or be subject to
enforcement action.
Overview of proposals: adopting the Australian model regulations for New Zealand
The following section provides an overview of the Australian model regulations which are concerned
with work involving asbestos, and our proposals for new regulation.
These proposals take account of the problems with the current regime identified above and are
made in the light of our understanding of where asbestos currently exists in New Zealand
workplaces, and the risks it is likely to present, and with reference to the reasonably foreseeable
epidemiology of asbestos-related disease described in the above sections.
The object of our proposals concerning asbestos is to prescribe mandatory processes and standards
appropriate to deal with the volume and types of asbestos present in workplaces and the built
environment. As such we see asbestos as an ongoing and ubiquitous problem that requires a robust
regulatory framework that encourages the identification of the hazard in all workplaces, the
immediate mitigation of risk through removal or encapsulation depending on the circumstances,
while providing processes for the safe and effective removal and disposal of asbestos over the
medium to longer term.
To achieve this we propose a shift in emphasis in the regulations to encourage the identification of
asbestos in workplaces in advance, adopting internationally accepted workplace exposure standards
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and controls on work practices, and replacing the current system of certificates of competence for
individual asbestos removalists with a more comprehensive licensing scheme that is consistent with
Australian states.
The Australian model regulations, although premised on key duties to prevent or alternatively
control work with asbestos, also contain detailed processes for managing the hazard and for the
licensing of approved removalists. The following text provides a brief description of the most
significant provisions of the regulations, with reference to any issues that we consider will need to
be addressed when adapting them to New Zealand. We have attempted to capture these issues in
the questions for consultation.
We welcome submissions on further issues that will require consideration.
Where we consider a component part of the regulations, or a particular provision, to be necessary or
desirable we have indicated this in the text - although there may be related questions for you to
consider, and which are not necessarily premised on the adoption of a particular provision or
process.
Prohibitions and authorised conduct (Part 8.1 of Australian model regulations)
The first principle of the Australian model regulations is that all work activities involving asbestos are
prohibited unless complying with the regulations [see Aust reg 419 (1)].
This provision applies to all PCBUs.
Question 56:
Is the approach of a general prohibition with exceptions the best means of
restricting work with asbestos in New Zealand workplaces? Do you consider
it would be more effective than the current New Zealand system? What
would be the implications of this approach for people that current deal
with asbestos?
To achieve this, the Australian model regulations define what “work involving asbestos” means as:
manufacturing, supplying, transporting, storing, removing, using, installing, handling, treating,
disposing of or disturbing asbestos or asbestos-containing material [see Aust reg 419 (2)].
Question 57:
Is the definition of “work involving asbestos” comprehensive and
consistent with the definition in the current regulations?
The Australian model regulations then contain a list of exempt types of work involving asbestos:
(a) genuine research and analysis
(b) sampling and identification in accordance with the regulations
(c) maintenance of, or service work on, non-friable asbestos or asbestos-containing material, fixed or
installed before 31 December 2003, in accordance with the regulations
(d) removal or disposal of asbestos or asbestos-containing material, including demolition, in
accordance with the regulations
(e) the transport and disposal of asbestos or asbestos waste in accordance with jurisdictional
legislation
(f) demonstrations, education or practical training in relation to asbestos or asbestos-containing
material
(g) display, or preparation or maintenance for display, of an artefact or thing that is, or includes,
asbestos or asbestos-containing material
(h) management in accordance with the regulations of in situ asbestos that was installed or fixed
before 31 December 2003
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(i) work that disturbs asbestos during mining operations that involve the extraction of, or exploration
for, a mineral other than asbestos
(j) laundering asbestos-contaminated clothing in accordance with the regulations
(k) soil that a competent person has determined:
(i) does not contain any visible asbestos-containing material or friable asbestos; or
(ii)if friable asbestos is visible—does not contain more than trace levels of asbestos
determined in accordance with AS 4964:2004 (Method for the qualitative identification of
asbestos in bulk samples); and
(l) naturally-occurring asbestos managed in accordance with an asbestos management plan
prepared under the regulations.
Question 58:
Is the list of exempt activities contained in the Australian model regulations
appropriate for New Zealand?
Is there a date from which it can be assumed asbestos and asbestos-containing material is not
present in workplaces?
In Australia the general prohibition on work involving asbestos is in turn premised on the existence
of a ban on the importation of raw friable asbestos and asbestos-containing materials that has been
imposed by Federal Government since 31 December 2003.
As discussed earlier, such a ban is not in place in New Zealand. The new regulations could therefore
either exempt structures and plant from an alternative date from which it could be assumed that
asbestos is not present in them, or else apply to all plant and structures regardless of when they
were installed in workplaces.
Question 59:
Is there a date from which it can be assumed that asbestos is not present in
workplaces and from which plant or structures installed after that date
could be exempted from the regulations?
Approved methods for managing risk associated with asbestos
Australian model regulation 419(1) provides an additional exemption for the regulator to approve
the method adopted for managing risk associated with asbestos. We understand this has been
lightly used in Australian jurisdictions to date. One example concerned a safe method of
transporting houses clad in asbestos cement tiles or sheets. Without such an exemption the
transport and “reuse” of the material would be prohibited under the regulations. Another example
concerned the safe reuse of asbestos cement sheeting in a situation where access was required to a
roof space. Another, hypothetical situation is where there is not adequate space or it is otherwise
unsafe for workers to remove or replace asbestos in a refurbishment.
Question 60:
What are the foreseeable situations where WorkSafe NZ could approve
“methods adopted for managing risk associated with asbestos”?
The general duty (Part 8.2 of Australian model regulations)
The second core provision of the Australian model regulations is that any PCBU must ensure, so far
as is reasonably practicable, that exposure of a person at the workplace to airborne asbestos is
eliminated [see Aust reg 420 (1) (a)].
It requires that where it is not reasonably practicable to eliminate exposure entirely, such as where
asbestos is being removed, or where work necessary is occurring in structures built before asbestos
was prohibited as a building material, then the exposure must be minimised so far as is reasonably
practicable [see Aust reg 420 (1) (b)].
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This duty set out in the regulation applies to all PCBUs at a workplace. They hold the duty in relation
to any person at the workplace, and not in the vicinity or beyond the workplace. Other duties to
such persons beyond the workplace would instead stem from the general duties of the Act.
We note that this is consistent with the HSE Act and current regulations, which do not generally
require the removal of all asbestos from a workplace, only its non-disturbance or containment to
ensure “dust control measures” are taken to ensure employees and others are not exposed to
asbestos dust (see current regulation 7).
The acceptable exposure standard for people at the workplace is set out in a SafeWork Australia
publication, but the Australian model regulations note it may be incorporated into the legislative
framework of state jurisdictions by regulation or ACoP. As such, the Australian model regulations do
not set an exposure standard.
The only exemption from the general duty is that it does not apply to an asbestos removal area that
is enclosed and in which a negative pressure is maintained in accordance with Australian model
regulation 477. In this situation the regulations provide mandatory facilities and processes to ensure
workers are not exposed.
We support the introduction of such a general duty with respect to asbestos and which will apply to
all PCBUs at a workplace.
Question 61:
Do you support the imposition of a broad duty on all PCBUs at a workplace
to eliminate the exposure of persons at the workplace to asbestos, and
where this is not reasonably practicable to not exceed a workplace
exposure standard? What would be the practical effect of introducing this
duty?
Setting an appropriate exposure standard
The current New Zealand workplace exposure standard for the different types of asbestos is defined
in schedule 1 of the current regulations as “asbestos dust” occurring in a concentration as identified
and determined by testing carried out in accordance with a method specified by a New Zealand
accredited laboratory:
The concentrations in the current regulations are—
Form of asbestos
Chrysotile
Concentration
(a) An average concentration over any 4-hour period
of 1 fibre per millilitre of air; and
(b) An average concentration over any 10-minute
period of 6 fibres per millilitre of air.
(a) An average concentration over any 4-hour period
Amosite, crocidolite, fibrous actinolite, fibrous of 0.1 fibres per millilitre of air; and
anthophyllite, and fibrous tremolite
(b) An average concentration over any 10-minute
period of 0.6 fibres per millilitre of air.
The current Australian standard does not distinguish between the different types of asbestos in this
way, and sets the lower level of 0.1 fibres per millilitre of air over an 8 hour time-weighted average
(TWA).
We propose that the same lower level of concentration is adopted for all types of asbestos and that
the 8-hour TWA is adopted for consistency with the Australian model regulations and practice as
sent out in approved codes and other approved methods of work.
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Question 62:
Should the same standard be adopted for chrysotile (white asbestos) as for
crocidolite and actinolite and the exposure standard brought into line with
those of the Australian and United Kingdom jurisdictions?
We propose that for certainty, this exposure standard is included in the new regulations, so that the
regulations are not reliant on subordinate documents to take effect.
Question 63:
Should the exposure standard be specified in the new regulations
themselves, or in an approved code or other instrument?
Management of asbestos and associated risks (Part 8.3 of Australian model regulations)
Part 8.3 of the Australian model regulations describe a mandatory process for identifying, recording
and managing the risks associated with asbestos (including asbestos-containing materials) that
applies to all workplaces.
To do this it creates specific duties for all “PCBUs with management or control of a workplace”.
The proposed new Act places a general duty on PCBUs with management or control of a
workplace to ensure that the workplace itself, or anything arising from the workplace, are
without risks to the health and safety of any person.
This is a similar, but more extensive provision to section 16 of the HSE Act.
To fulfil the general duty in the primary Act in relation to asbestos in the workplace, the Australian
model regulations require PCBUs who control or manage a workplace to follow a process that
involves:

identification of asbestos and asbestos-containing material at the workplace by a competent
person

analysis of samples

identification and indication of presence of asbestos or asbestos-containing material in the
workplace

establishing, maintaining and reviewing an asbestos register for every workplace and making
it available to workers, representatives or other PCBUs that may be working at the workplace

recording the location type and condition of any asbestos likely to be found in the workplace
in the register

where asbestos or asbestos-containing material is not identified or likely to be present in the
workplace, the register must record a statement to that effect; and

where asbestos or asbestos-containing material is identified or likely to be present, a written
Asbestos Management Plan must be prepared for the workplace.
Identification of asbestos
The Australian model regulations require every PCBU with management or control of a workplace to
ensure that a competent person identifies all asbestos or asbestos-containing material at a
workplace and, where it is suspected, samples are analysed by an accredited laboratory [see Aust
regs 422 and 423].
This is a considerable extension of the coverage of the current regulations, in as much as it both
applies to all types of asbestos, including friable and non-friable, and asbestos-containing material,
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and it requires all workplaces or potential workplaces to be assessed in advance of work being
conducted in them.
The requirements to have a competent person formally identify all asbestos or asbestos-containing
material does not apply if the PCBU with management or control of the workplace:

assumes it is present; or

has reasonable grounds to believe that it is not present.
This means that although the obligation to identify applies to all workplaces, formal identification
and assessment is not required in cases where its existence can be assumed, such as a pre-1980s
dwelling or commercial building with asbestos siding, or alternatively, where there are reasonable
grounds to preclude its existence, such as a building constructed after the mid-1980s.
We support the introduction of a new requirement to identify asbestos in workplaces in advance of
work being undertaken, and considers that because of the range of situations where asbestos or
asbestos-containing material may occur, health and safety legislation provides a better vehicle for
this than, for example, building legislation or public health or resource management legislation.
We consider the strengthened identification requirement to be a necessary foundation for the
management of all forms of asbestos and asbestos-related risks in workplaces.
There are training and resourcing implications for the introduction by regulation of a new role for
the identification and assessment of asbestos related risks, and these will need to be developed
further with training establishments and industry once proposals are better defined.
Question 64:
Should the distinction between friable and non-friable asbestos in the
current regulations be removed and the Australian approach of requiring
the same processes for all asbestos or asbestos-containing materials be
adopted for New Zealand?
Question 65:
How should the new regulations define a “competent person” to
determine/assess whether or not asbestos or asbestos-containing material
is present in a workplace?
Asbestos Register
The asbestos register is a document that lists all identified (or assumed) asbestos in a workplace. The
asbestos register must:


record any asbestos or asbestos-containing material that has been identified or is likely to be
present at the workplace from time to time. This would include:
o
the date on which the asbestos or asbestos-containing material was identified; and
o
the location, type and condition of the asbestos; or
state that no asbestos or asbestos-containing material is identified at the workplace, if the
person knows that no asbestos or asbestos-containing material is identified or is likely to be
present from time to time at the workplace.
Only one register is required for each workplace and may be used by more than one PCBU, as long as
it is available to all PCBUs, workers, etc. in the workplace.
We support the introduction of formal documentation requirements in the form of a register, where
asbestos is identified. However, we seek your views on whether the requirement for a formal
statement that asbestos is not present is justified for all workplaces or potential workplaces.
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We estimate that as originally drafted in the Australian model regulations, the register and related
requirements would apply to several hundred thousand buildings, including many public and private
rental properties. We also understand that SafeWork Australia is seeking an amendment to the
model regulations to retain the requirement to identify and assess the asbestos risk of all
workplaces, but to remove the requirement for maintaining a register (and formal Asbestos
Management Plan) for “residential premises used solely for residential purposes”. We propose this
revision be adopted in our new regulations (particularly as there is a related question concerning
whether regulations requiring such a register for buildings that are not usually a workplace would be
ultra vires under the proposed new Act, and more appropriately addressed under the Building Act
2004).
The decision whether or not to require a “register”, even if it only comprises a statement that
asbestos is not present, equates to a choice to be made on whether the regulatory requirements
should apply to all workplaces, regardless of whether or not asbestos or asbestos-containing
material is present, or on the basis of the risks presented.
As above, we also question and seek your views on whether the inclusion of all types of workplaces
or potential workplaces (such as housing owned by PCBUs like Housing New Zealand, which will
engage workers to maintain and repair them) is best addressed through work health and safety
legislation or, whether some categories of buildings (particularly residential) should be excluded, or
included in a staged fashion.
Subject to the above discussion, we support the introduction of new requirements for PCBUs with
management or control of workplaces to maintain an asbestos register and to make any such
register available to other PCBUs, workers, representatives and others as appropriate.
Question 66:
Should an asbestos register, or statement of the non-existence of asbestos,
be required for every workplace or potential workplace (including
residential properties under the management or control of PCBUs) in New
Zealand? What is the burden of compliance likely to be, and is the
compliance burden justified?
Question 67:
Is a workplace asbestos register best addressed for all types of workplaces
under health and safety regulations, or would some, such as residential
premises, be better addressed through another regulatory regime, such as
under the Building Act 2004?
Asbestos Management Plan
The Australian model regulations require that where asbestos or asbestos-containing material is
identified at a workplace a written plan must be prepared, and that it must describe the following:

the identification of asbestos or asbestos-containing material

decisions, and reasons for decision, about the management of asbestos at the workplace

procedures for detailing incidents or emergencies involving asbestos or asbestos-containing
material; and

workers carrying out work involving asbestos [see Aust reg 429].
The plan contains information particular to the place of work and is to be used in conjunction with
the requirements and minimum standards of the regulations and related codes and guidance. It is
expected that PCBUs make use of these documents in preparing and implementing their plans and
that this would be a significant area for the development of guidance by WorkSafe NZ.
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The plan must be readily accessible by the same people in the workplace as for the asbestos register
described above. The asbestos management plan must be reviewed and revised in specified
circumstances, or at least every 5 years.
Question 68:
Should the new regulations contain a requirement for a written Asbestos
Management Plan in all cases? Are there some workplaces that could be
dealt with by specific regulatory requirements or “rules” for types of work
involving asbestos?
Question 69:
Is there additional guidance that New Zealand workplaces would need to
develop their asbestos management plans that is not available from
Australia, or are there significant differences in terms of risk or practices
that should be considered in developing the new regulations?
Question 70:
Is the process for the management of asbestos and associated risks set out
in part 8.4 of the Australian model regulations as described above
appropriate in a New Zealand context?
Question 71:
What level of accreditation is required for New Zealand laboratories, and
what expertise and infrastructure would need to be in place to support an
appropriate level of accreditation? Does this currently exist?
Management of naturally-occurring asbestos (Part 8.4 of Australian model regulations)
Part 8.4 of the Australian model regulations is premised on recognition that some workplaces may
have to deal with asbestos in its natural state. In Australia, naturally-occurring asbestos (NOA) may
be encountered in road building, site and construction work, and other excavation activities.
Asbestos may occur in veins within rock formations.
Due to the difficulties in fully describing the location and extent of NOA deposits, there is no
requirement for NOA to be listed in an asbestos register. However, any NOA identified or assumed at
a workplace must be included on the asbestos management plan for the workplace or be the subject
of a new asbestos management plan. This is to ensure steps are put in place, as with all other
asbestos encountered in workplaces, to ensure that risks of exposure from NOA are assessed and
managed.
If workers carry out work where naturally-occurring asbestos is likely to be found, training must be
provided on hazards and risks associated with naturally-occurring asbestos.
In the background section of this chapter, we described the limited and generally isolated natural
occurrence of asbestos in New Zealand. Given this, we seek your views on whether it is necessary to
include part 8.4 of the Australian model regulations in the new regulations.
Question 72:
New Zealand has limited naturally-occurring asbestos deposits. Are
provisions concerning such deposits necessary in the new regulations?
Asbestos at the workplace (Part 8.5 of Australian model regulations)
Health monitoring
In the Australian model regulations, a PCBU must ensure health monitoring is provided to a worker if
workers are carrying out:

licensed asbestos removal work

other ongoing asbestos removal work; or
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
asbestos-related work and are at risk of exposure to asbestos when carrying out the work [see
Aust reg 435].
In such situations, the PCBU must:

ensure the health monitoring is carried out under the supervision of a registered medical
practitioner, and specified information is provided to that medical practitioner

pay all expenses for health monitoring, obtain a report and keep records of all health
monitoring.
Case studies have suggested that there are low levels of health monitoring of asbestos workers
currently. We therefore support the introduction of an explicit requirement to monitor the health of
these workers.
Question 73:
Are the proposed health monitoring requirements for workers carrying out
asbestos removal work or asbestos related work adequate? What changes,
if any, will be needed to implement them in New Zealand?
Training
A PCBU must ensure workers who they reasonably believe may be involved in asbestos removal
work in the workplace or the carrying out of asbestos-related work are trained in the identification,
safe handling and suitable control measures for asbestos and asbestos-containing material.
The Australian model regulations require that records of all training must be kept while the worker is
carrying out the work, and for five years after the day the worker stops carrying out the work. These
records must also be available for inspection by the regulator.
We support the introduction of more explicit and comprehensive training and competency
requirements for asbestos removal workers and those competing asbestos-related work, including
with asbestos-containing materials.
Question 74:
Are the proposed training requirements for workers carrying out asbestos
removal work or asbestos related work adequate? What institutional and
other resources, if any, will be needed to implement them in New Zealand?
Control on use of certain equipment
In the Australian model regulations, a PCBU must not use, or direct or allow a worker to use, specific
equipment on asbestos or asbestos-containing material unless the use of the equipment is
controlled.
High-pressure water spray and compressed air must not be used on asbestos or asbestos-containing
material. However, high-pressure water spray can be used for firefighting or fire protection.
Power tools, brooms and any other equipment or tool that may release airborne asbestos in the
workplace may only be used if it is controlled by it being:

enclosed

designed to capture or suppress airborne asbestos; or

used in a way that is designed to capture or suppress airborne asbestos safely.
A combination of the controls mentioned above may be required to ensure that airborne asbestos is
not generated.
The current regulations contain duties to avoid the generation of asbestos dust that are intended to
achieve the same ends as the provisions in the Australian model regulations, but there has been a
low level of observance in some areas and we support the introduction of the Australian approach
for consistency and to better allow the sharing of training and information resources.
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Question 75:
Is the proposed prohibition on the use of high pressure water sprays or
compressed air equipment on asbestos or asbestos-containing material,
and the requirement for controls on power tools, brooms and other
implements used on asbestos appropriate? Do the new provisions reflect
New Zealand practice?
Demolition and refurbishment (Part 8.6 of Australian model regulations)
The Australian model regulations require a PCBU with management or control of a workplace and
any other PCBU that is carrying out demolition or refurbishment work (other than routine
maintenance or other minor work) to follow a process to identify and manage the asbestos-related
risks associated with the work.
The requirement only applies to structures or plant constructed or installed before 31 December
2003, when the Australian ban on the importation or use of asbestos or asbestos-containing
material came into force.
Part 8.6 of the Australian model regulations requires that, prior to the demolition or refurbishment
work being carried out:

the PCBU with management or control or the workplace must review the asbestos register for
the property (other than residential premises) and give a copy to the PCBU carrying out the
demolition or refurbishment work

the PCBU completing the work must obtain a copy of the asbestos register for the workplace
from the PCBU with management or control of that workplace before the work commences

if an asbestos register is not available, the PCBU completing the demolition or refurbishment
work must ensure the structure or plant to be demolished or refurbished has been inspected
by a competent person to determine if any asbestos or asbestos-containing material is fixed to
or installed (or else assume its presence)

where the existence of asbestos is determined, the PCBU must tell the PCBU with
management or control of the workplace, or the occupier or owner if it is domestic premises

where work is to be done (other than at residential premises), the PCBU with management or
control of the workplace must ensure that any asbestos that is likely to be disturbed by the
demolition or refurbishment is identified and, if reasonably practicable, removed before the
work starts

where work is to be done on residential premises, the PCBU completing the work must ensure
that any asbestos that is likely to be disturbed by the demolition or refurbishment is identified
and, if reasonably practicable, removed before the work starts; and

if an emergency occurs at residential premises where asbestos is identified (or assumed) and
it must be demolished, the PCBU conducting the demolition must ensure there is a procedure
to reduce the risk of the exposure to asbestos to below the exposure standard and must notify
the regulator about the emergency.
We support the introduction of such a process to identify and manage the risks of demolition and
refurbishment of all structures and plant containing asbestos.
Question 76:
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Should the new regulations prescribe a mandatory process to identify and
manage asbestos hazards in the demolition and refurbishment of all
structures and plant? Is the process in the Australian model regulations and
effective way of identifying and managing the risk? How much would this
differ from current New Zealand practice?
Residential premises
Under the proposed new Act, homeowners are not considered PCBUs in respect of any work
done in or on the home that they occupy. As such, they are not subject to any of the duties
placed on PCBUs in the proposed new Act or regulations.
We propose that the full duty should not apply to a person with control or management of
residential premises, nor the duty to maintain an asbestos register. However, there should be an
explicit requirement for PCBUs to identify asbestos that will be disturbed when refurbishing
residential premises and that the onus is on the PCBU doing the work to remove the asbestos before
work commences. This is consistent with our understanding of where the expertise is likely to be
found, and best sits with regard to work on housing that is commissioned by homeowners and
others.
We note that the new regulations may require further definition of the term “residential premises”.
Question 77:
Should the duty to identify and remove asbestos in workplaces that are
residential premises rest with the PCBU that has been commissioned to do
the work?
Excluding structures and plant unlikely to contain asbestos
Noting that the Australian model regulations only apply these provisions to structures or plant
constructed or installed before the Australian Federal prohibition on the importation and use of
asbestos and asbestos-containing material in December 2003, there is a question concerning
whether such a date should be applied in New Zealand.
Two alternative dates suggest themselves. Because the importation raw friable asbestos as a
component of building materials was banned from 1984 for amosite and crocidolite, and 1999 for
chrysotile, the latter of these dates could be used.
Alternatively, because chrysotile was almost completely out of use in building materials and there
was very limited use of asbestos insulation products from the mid-1980s, and earlier for the other
types of asbestos, a date such as 1986 could be used.
We seek your views on whether such a date should be used to limit the application of the new
regulations concerning demolition and refurbishment, and if so, what a suitable date would be.
Question 78:
In the absence of a date where asbestos and asbestos-containing material
were banned from importation and use in New Zealand, is there a date
after which structures or plant were built or installed from which they
should be exempt from the process requirements?
Asbestos removal work (Part 8.7 of Australian model regulations)
The Australian model regulations place a duty on any PCBU that commissions the removal of
asbestos to ensure that the work is completed by a removalist that is licensed to carry out the
particular kind of work. This provision underpins the regulations’ licensing regime which is discussed
in further detail later in this chapter.
Small-scale removal work is exempted from this requirement if the asbestos to be removed is:

10 square metres or less of non-friable asbestos or asbestos-containing dust associated with
the removal of that amount of non-friable asbestos; or

Asbestos-containing dust that is not associated with the removal of friable or non-friable
asbestos, and is only a minor contamination.
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The current regulations provide for certificates of competence for persons completing restricted
work. Our understanding is that in practice, while an operator of a business may hold such a
certificate, there is wide variation in the quality if training provided and in the competency of the
individual. Also, when person that completes the work is not the person who holds the certificate,
there is uncertainty regarding the adequacy of the supervision provided to ensure safe practices.
The proposed Australian system would deepen the amount of expertise available for removal work
by providing for the licensing of businesses for different classes of removal work, with requirements
for them to nominate trained supervisors either present or available at all times for the different
work.
Granting licenses to PCBUs rather than certificates of competence to individuals will deepen the
systems and skills available to perform the work and improve compliance with the regulations
through better accountabilities. This would allow higher standards of accreditation and better
training of supervisors and workers, in line with Australia, and a higher degree of supervision of
asbestos removal work than is currently required in New Zealand.
We note that the establishment of an improved licensing regime for removalists is necessary in New
Zealand and that such a duty is essential to the operation of a licensing scheme.
The following sections describe the nature of such a scheme in more detail.
Procedural requirements and outcome standards
Part 8.7 of the Australian model regulations contains detailed procedural requirements and outcome
requirements for asbestos removal work.
In summary, the process for asbestos removal work requires licensed asbestos removalists to:

appoint an asbestos removal supervisor (for Class A work) and a suitable competent person
(for Class B work)

train removal workers for specific types of work, with records kept of training

have access to the asbestos register for the workplace

prepare and maintain an asbestos removal control plan for the work and keep it available

notify the regulator of the removal work

inform the PCBU with management or control of the workplace (or the occupier, owner or
others connected with residential premises) of the work, and when it will be completed

provide signage and information to specified persons

maintain decontamination facilities and ensure disposal of the asbestos removed; and

obtain a clearance inspection and certificate from a licensed assessor or competent person.
There are related duties for a PCBU with management or control of a workplace where asbestos is
being removed to inform workers, other PCBUs in the workplace, and others of the work and to
ensure access is limited.
We propose to adopt the requirements for asbestos removal work from parts 8.7 of the Australian
model regulations.
Question 79:
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Are the requirements for asbestos removal set out in part 8.7 appropriate
for New Zealand? And what new capacity or infrastructure would be
needed to support them?
Setting a suitable threshold for using a licensed asbestos removalist
Establishing an appropriate threshold for requiring a licensed asbestos removalist has proven
difficult in Australia. The Australian model regulations exempt small-scale work in order to prevent
such a licensing scheme being undermined by being too cumbersome to comply with, or too
onerous for the regulator to operate.
However, there is evidence from Australia that the 10 square metre exemption allows some PCBUs
to avoid using licensed removalists, through larger removal work being described as a series of
notionally discrete pieces of work that fit under the threshold and are completed at intervals. We
seek your views on a way to avoid this, or an alternative means of either exempting small-scale or
short term work or gaining better compliance within the 10 square metre exemption.
Question 80:
Does the 10 square metre exemption create an appropriate threshold for
the use of a licensed asbestos removalist? If not, is there an alternative
means of exempting small-scale or “de minimis” asbestos removal work?
If it is, are there ways of ensuring the exemption is not exceeded?
Question 81:
What information should be provided to regulator on notification of
asbestos removal work?
Question 82:
What level of ITO or other training should be required for asbestos removal
license holders and removal workers for the two classes of licensed
asbestos removal work?
Question 83:
Should there be a link between licensing and the appropriate disposal of
asbestos waste?
Asbestos removal requiring Class A licence (Part 8.8 of Australian model regulations)
The Australian model regulations create two classes of asbestos removal licence. Class A concerns
the most hazardous removal work, which involves friable asbestos and asbestos-containing dusts.
All other asbestos removal work, other than that exempted under part 8.7, requires a class B
licensed removalist, which is described in the next section.
We propose to adopt the two-level licensing regime for asbestos removal as outlined in the
Australian model regulations.
Question 84:
Is there currently the industry capability to provide for licensed asbestos
removalists?
Question 85:
Is it appropriate that businesses, as distinct from individuals, are licensed?
Question 86:
Should there be a requirement to have an asbestos removal supervisor
always present during class A work and available for class B work?
Question 87:
What level of qualification is appropriate for licensed asbestos assessors?
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Question 88:
How should a PCBU be able to determine if asbestos is being assessed by a
“competent person”?
Question 89:
Should a clearance certificate be required in all cases of asbestos removal,
or is there scope for the issuing of exemptions?
Requirement to monitor
For class A asbestos removal work, the Australian model regulations require that the PCBU with
management or control of a workplace where the asbestos removal work is being completed
ensures that an independent licensed assessor undertakes air monitoring of the asbestos removal
area at the workplace.
Question 90:
What would the expected demand be for independent licensed assessors
to meet these requirements? And what will be necessary for the regulator
and asbestos removal industry to meet this demand?
The regulations specify that the membrane filter method of monitoring must be used.
Question 91:
Does the membrane filter method provide the best means of air
monitoring for class A asbestos removal work?
In a workplace other than residential premises, the Australian model regulations require that such
monitoring is carried out before and during the licensed asbestos removal work and that the results
of monitoring are given to workers, Health and Safety representatives, other PCBUs operating at the
workplace, and any other persons at the workplace.
Where the workplace is residential premises, the Class A licensed removalist completing the work
must also complete the air monitoring and give the results to the person that commissioned the
removal work, the persons referred to above and the owner and occupier of the residential
premises.
We support the introduction of mandatory monitoring of asbestos dust levels by an independent
assessor where friable asbestos is being removed, and for this to be carried out by the PCBU with
management or control of the workplace, or the licensed removalist where the work is in residential
premises.
Actions to be taken when asbestos dust levels exceed specified levels
Australian model regulation 476 also specifies steps to be taken by the licensed removalist if the air
monitoring reveals that asbestos dust levels exceed 0.01 fibres/ml (10 percent of the workplace
exposure limit) to investigate cause and take steps to address any failures.
If the air monitoring reveals that asbestos dust levels exceed 0.02 fibres/ml (20 percent of the
workplace exposure limit) then the removal work must stop, the regulator notified, and the cause of
contamination investigated and steps taken to prevent the further release of respirable asbestos
fibre.
We support the requirement for steps to be taken in response to elevated asbestos dust levels and
seek views on whether the thresholds of 10 and 20 percent of the workplace exposure levels are
appropriate for the removal of friable asbestos in New Zealand workplaces.
Question 92:
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Are the thresholds of 10 percent and 20 percent of the workplace exposure
standards for asbestos dust appropriate for the investigation and review
and ceasing of class A asbestos removal work respectively?
Requirements for the removal of friable asbestos
In addition to the above process requirements, Australian model regulation 477 specifies steps that
must be taken in the removal of friable asbestos:

enclosure of the removal area to prevent release of asbestos dust, with regular testing for
leaks

maintenance of negative pressure in the area, unless glove bags are used

the use of a wet method of removal

air monitoring commenced before work starts, and continued during removal, except where
glove bags are used

safe dismantling and disposal of glove bags where used; and

no dismantling of enclosures until asbestos dust levels are less than 0.01 fibres/ml.
We support the introduction of these requirements, noting that they will be supported by extensive
guidance and an ACoP (to be developed by WorkSafe NZ).
Question 93:
Should class A asbestos removal work apply to the removal of all
occurrences of friable asbestos and asbestos-containing dusts above
minimum quantities? Are there other situations in New Zealand workplaces
or residential premises that it should apply to?
Question 94:
Are the steps required for the removal of friable asbestos in the regulations
appropriate in a New Zealand context? Having considered the materials in
support of the Australian model regulations, what additional guidance or
resources would be required in New Zealand?
Asbestos-related work (Part 8.9 of Australian model regulations)
Part 8.9 of the Australian model regulations describes certain minimum requirements for any type of
asbestos-related work. This part relies on the list of exemptions to the prohibition on work involving
asbestos we described earlier in this chapter (see page 85).
Question 95:
Is the list of asbestos-related work (as defined by the exemptions to the
prohibition on work involving asbestos) comprehensive enough for New
Zealand?
To avoid doubt, the Australian model regulations describe what a PCBU must do if there is
uncertainty as to whether work is asbestos-related work. The regulations require analysis of a
sample to determine if asbestos or asbestos-containing material is present. The analysis must be
completed by a National Australian Testing Authority laboratory (the equivalent of IANZ in New
Zealand) accredited for the relevant test method, or a laboratory approved by the regulator, or a
laboratory operated by the regulator [see Aust reg 479]. Alternatively the PCBU may assume
asbestos to be present in the workplace.
The PCBU carrying out the asbestos-related work must give, to a person who is likely to be engaged
to carry out asbestos-related work, information on the health risks associated with exposure to
asbestos and the need for and details of health monitoring. The information must be provided
before they commence any asbestos-related work.
The PCBU must:

ensure that any asbestos-related work area is separated from other work areas at the
workplace, signs are used to indicate where the asbestos-related work is being carried out and
barricades are used to delineate the asbestos-related work area
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
ensure a competent person carries out air monitoring of the work area if there is uncertainty
as to whether the exposure standard is likely to be exceeded

ensure that decontamination facilities (including containers and labels labelled in accordance
with the GHS) are available when asbestos-related work is being carried out

ensure that asbestos waste is contained and labelled in accordance with the GHS before it is
removed, and is disposed of as soon as practicable; and

ensure, where PPE is used and contaminated with asbestos, such PPE is sealed,
decontaminated, labelled and disposed of in accordance with the Australian model
regulations. If this is not reasonably practicable, the PPE must be laundered in accordance
with the Australian model regulations. PPE that is not clothing and cannot be disposed of must
be decontaminated and kept in a sealed container until it is reused for the purposes of
asbestos-related work.
We support the introduction of these requirements for asbestos-related work.
We note that, as for the preceding section, there will be a need for ACoPs and guidance in support of
the regulations.
Question 96:
Are the minimum standards for asbestos-related work contained in part 8.9
of the Australian model regulations suitable for the asbestos-related work
carried out in New Zealand?
Licensing of asbestos removalists and assessors (Part 8.10 of Australian model regulations)
New Zealand’s licensing requirements of workers potentially exposed to asbestos is weak compared
to Australia and the United Kingdom.
New Zealand should come into line with the licensing requirements of Australia.
The Australian model regulations describe detailed processes for the licensing of asbestos
removalists and assessors.
There are three categories of licence:

class A asbestos removal

class B asbestos removal; and

asbestos assessor.
Both categories of asbestos removal licence may only be granted to a PCBU. They each require the
inclusion of a suitably qualified and experienced individual to supervise asbestos removal work,
although the experience level varies between category A and B.
Asbestos assessor licences may only be issued to individuals.
The regulator has authority to renew, review, vary the conditions of, suspend or cancel all categories
of licence. There are detailed provisions concerning these processes.
The regulatory must maintain a register of all licence holders and supervisors of asbestos removal
work named in the licences.
We propose the adoption of the licensing regime contained in the Australian model regulations.
Additional work needs to be done with industry boards and organisations to include asbestos
training in their competency requirements. This is particularly relevant for plumbers, gasfitters, drain
layers and electrical workers. A decision needs to be made about whether it is best for WorkSafe NZ
to administer the asbestos licences or to pass that authority to industry organisations. There
certainly needs to be recognition of overseas licences of similar requirements.
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We refer you to the detailed provisions contained in part 8.10 of the Australian model regulations
and welcome your responses to the following questions.
Question 97:
Are the requirements and processes for the licensing of asbestos
removalists suitable for the New Zealand industry and workplaces?
Question 98:
Are the requirements and processes for the licensing of asbestos assessors
suitable for the New Zealand industry and workplaces?
Question 99:
Is there an agency, other than WorkSafe NZ, that is most suited to the
maintenance of the licensing regime in New Zealand? Or should the regime
be operated by the regulator?
Question 100:
Would the asbestos removal industry and supporting infrastructure be able
to meet the new requirements?
Question 101:
What, if any, requirements are superfluous, or are missing from the
licensing process?
Question 102:
Are the qualifications and experience required for each category of licence
in the Australian model regulations suitable for the New Zealand industry?
Definitions from the Australian model regulations (from the interpretation section)
We propose adopting the following definitions into new regulations for asbestos.
Asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or
amphibole groups of rock forming minerals including the following:
(a)
actinolite asbestos
(b)
grunerite (or amosite) asbestos (brown)
(c)
anthophyllite asbestos
(d)
chrysotile asbestos (white)
(e)
crocidolite asbestos (blue)
(f)
tremolite asbestos; and
(g)
a mixture that contains 1 or more of the minerals referred to in paragraphs (a) to (f).
asbestos-containing material means any material or thing that, as part of its design, contains
asbestos.
asbestos-contaminated dust or debris means dust or debris that has settled within a workplace and
is, or is assumed to be, contaminated with asbestos.
asbestos management plan—see Australian model regulation 429 or 432.
asbestos register—see Australian model regulation 425.
asbestos-related work means work involving asbestos (other than asbestos removal work to which
Part 8.7 applies) that is permitted under the exceptions set out in Australian model regulation
419(3), (4) and (5).
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asbestos removal licence means a Class A asbestos removal licence or a Class B asbestos removal
licence.
asbestos removal work means:
(a) work involving the removal of asbestos or asbestos-containing material; or
(b) in Part 8.10 of the Australian model regulations, Class A asbestos removal work or Class B
asbestos removal work.
asbestos removalist means a PCBU who carries out asbestos removal work.
asbestos waste means asbestos or asbestos-containing material removed and disposable items used
during asbestos removal work including plastic sheeting and disposable tools.
Question 103:
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Should any further terms be defined in the new regulations?
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Chapter 5: Regulating work involving hazardous substances
Introduction
This chapter seeks feedback on policy proposals for regulating work involving hazardous substances
under the proposed new Act.
In this chapter:


Current regulation refers to regulations made under the HSNO Act that cover the use of
substances hazardous to human health in a work context. Namely, the relevant provisions
of the:
o
Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001
o
Hazardous Substances (Classes 6, 8, and 9 Controls) Regulations 2001
o
Hazardous Substances (Identification) Regulations 2001
o
Hazardous Substances (Emergency Management) Regulations 2001
o
Hazardous Substances (Compressed Gases) Regulations 2001
o
Hazardous Substances (Tank Wagons and Transportable Containers) Regulations
2004
o
Hazardous Substances and New Organisms (Personnel Qualifications) Regulations
2001
o
Schedules 8, 9 and 10 of the Hazardous Substances (Dangerous Goods and
Scheduled Toxic Substances) Transfer Notice 2004;
o
Hazardous Substances (Exempt Laboratories) Regulations 2001;
o
Hazardous Substances (Tracking) Regulations 2001; and
o
Hazardous Substances (Fireworks, Safety Ammunition and Other Explosives Transfer)
Regulations 2003.
New regulation refers to regulations to be made under the proposed new Act that cover
work involving hazardous substances.
What are hazardous substances?
In relation to the proposals set out in this chapter, ‘hazardous substance’ has the same meaning as
in section 2 of the HSNO Act.
Regulations covering general risk and workplace management (see chapter 2 of this discussion
document) will provide for the management of other substances hazardous to health. See also
chapter 4 of this discussion document about regulations involving work with asbestos.
Hazards associated with hazardous substances
There are two broad types of hazards associated with hazardous substances that may present an
immediate or long-term injury or illness to people. These are:

Health hazards – These are properties of a substance that have the potential to cause adverse
health effects. Exposure usually occurs through inhalation, skin contact or ingestion. Adverse
health effects can be acute (short term) or chronic (long term). Typical acute health effects
include headaches, nausea or vomiting and skin corrosion, while chronic health effects include
asthma, dermatitis, nerve damage or cancer.
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
Physicochemical hazards – These are physical or chemical properties of the substance that
pose risks to workers other than health risks, as they do not occur as a consequence of the
biological interaction of the substance with people. The hazards arise through inappropriate
handling or use and can often result in injury to people and/or damage to property as a result
of the intrinsic physical hazard. Examples of physicochemical hazards include flammable,
explosive, and oxidising substances.
Many hazardous substances have both health and physicochemical hazards.
The existing regulatory regime
Hazardous substances are currently regulated under the HSNO Act based on the risks they pose to
people and the environment. The hazardous properties of a substance are classified to determine
how the risks can be managed. Most hazardous substances have more than one hazardous property
and therefore have more than one hazard classification.
Each new hazardous substance imported or manufactured in New Zealand must be approved under
the HSNO Act and have its classifications determined.
Depending on its hazard classification, rules are placed on a substance to manage the risks posed by
the properties of that substance. These rules are known as controls. The controls vary depending on
the risk associated with the hazardous substance. The risks come from the hazardous properties of
the substance, the amount present and the way it’s used.
The hazards associated with hazardous substances need to be managed safely in the workplace
under the HSE Act. While the HSE Act sets out the broad duties in relation to hazard management,
the HSNO regime sets out the detailed controls that must be implemented to ensure hazardous
substances are managed safely in the workplace.
Drivers for change
Estimated levels of harm from exposure to hazardous substances
Around 150,000 workplaces throughout New Zealand use hazardous substances. Unfortunately
though, because of this frequent use it’s easy to take them for granted. Exposure to common
hazardous substances like commercial cleaning products, paints, adhesives, acids, bases and solvents
can cause serious harm when they aren’t used safely. A lack of understanding about the harm that
can occur from exposure is a serious problem with serious consequences. It is estimated that there
were 600 – 900 fatalities from work-related disease in 2010. Many of the diseases that featured in
the mortality estimates were caused by exposure to hazardous substances, either through direct
contact or as airborne contaminants in the workplace9.
Given the challenges in linking harm to hazardous substance exposure, compliance rates with key
risk management controls help provide an understanding of whether hazardous substances users
are undertaking the appropriate actions to manage the health and physiochemical hazards
associated with substances. In light of this, a 2012 Environmental Protection Authority (EPA) survey
of 400 businesses found that 75% of businesses were not fully compliant with a sample of 8 key risk
management controls.
This indicates significant non-compliance with the HSNO Act. This level of non-compliance most
likely increases the potential for acute and chronic harm.
9
Ministry of Business, Innovation and Employment, Work-Related Disease in New Zealand, August 2013.
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Taskforce findings and recommendations
Public submissions to the Taskforce commented that legislation and advice surrounding the HSNO
Act and the management of hazardous substances is confusing and difficult to apply, and small and
medium enterprises find it hard to interpret and keep up with what is required.
Businesses that work with hazardous substances are required to comply with two very different and
overlapping pieces of legislation – the HSNO Act and the HSE Act – with quite different approaches
and focus. Businesses will often have similar, although not necessarily well-aligned, obligations
under both Acts, which creates uncertainty and confusion. Businesses using hazardous substances
are currently required to interact with two regulatory regimes and interact with two government
departments, to understand how to keep people safe in workplaces. This divide was reflected
through some of the submissions to the Taskforce, where submitters noted that they often receive
conflicting or duplicate messages from regulators about how to manage risks and their relative
priorities.
The work health and safety regulator faces challenges in managing HSNO and HSE compliance and
enforcement. This is in part because of different enforcement and compliance strategies, as well as
the different enforcement tools under each Act. There are also separate funding sources for HSE and
HSNO enforcement.
Finally, there is a misalignment of institutional settings and regulatory responsibilities under the two
regimes, along with a lack of clarity for HSNO Act enforcement agencies. Environmental agencies
(Ministry for the Environment and EPA) are responsible for regulating workplace controls for
substances hazardous to human health, while the work health and safety regulator is responsible for
enforcing these controls.
Public submissions to the Taskforce were consistent in their view that regulators do not seem to
collaborate effectively, and they found the current division of regulatory activities confusing.
Submitters recommended the regulatory framework be simplified, with greater alignment across
regulatory agencies, and with the requirements in one set of rules.
Consequently, the Taskforce recommended that Government ensure a much stronger alignment and
coordination of work health and safety activities through regulation of the use of hazardous
substances in the workplace that are currently under the HSNO Act moving to the new work health
and safety legislation.
Government’s response to the Taskforce recommendations
In response to the Taskforce recommendations, the Government agreed that:


the HSNO regulatory regime should have responsibility for:
o
assessment and approval of all hazardous substances;
o
classifying all hazardous substances;
o
setting controls (EPA controls) that apply to all hazardous substances, including
controls for labelling, safety data sheets (SDS), and disposal;
o
setting content controls (i.e. allowable levels of hazardous substances) for
substances that affect human health and safety and the environment (e.g.
cosmetics, domestic cleaning products, and pesticides);
o
setting controls for hazardous substances that adversely affect the environment;
o
setting controls for hazardous substances that affect human health and safety used
outside the workplace; and
the work health and safety regulatory regime have responsibility for regulating substances
that affect human health and safety within the workplace, including:
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o
incorporating or referring to EPA controls, where appropriate;
o
setting controls on the use, handling, generation, and storage of hazardous
substances at the workplace;
o
quality assurance mechanisms, e.g. test certification, from 2014/15 onwards; and
o
generally regulating such substances within the legislative framework for work
health and safety.
Overview of proposals
The approach chosen by Government for regulating hazardous substances aims to reduce
complexity and uncertainty for the majority of businesses that use hazardous substances.
Currently anyone, including any business, using a hazardous substance must comply with the
requirements of the HSNO Act set by the EPA. Those requirements address the risks hazardous
substances pose both to the health of people and to the environment. WorkSafe NZ currently
enforces those HSNO requirements in workplaces.
In future, the assessment and approval of hazardous substances for introduction to New Zealand will
continue under the HSNO Act. But the requirements to address risks from hazardous substances to
people’s health and safety in the workplace will be set under the proposed new Act and the new
regulations. The corresponding requirements will be removed from the HSNO Act.
Future requirements under the HSNO Act
The HSNO Act will continue to be the primary legislation for the regulation of hazardous substances.
In future under the HSNO Act the EPA will:

assess and approve applications for new substances;10

set requirements to address risks to the environment posed by hazardous substances
regardless of where those risks occur i.e. the EPA will continue to set environmental controls
that apply in workplaces;

set requirements to address risks to people’s health in non-workplace situations (for example,
in domestic homes and public places);

issue EPA notices – a new tertiary-level instrument that will replace and update many existing
requirements currently set under HSNO regulations, group standards, approvals and deemed
approvals in transfer notices;

continue to establish and maintain the hazard classification system; and

undertake a new function to enforce requirements on importers and manufacturers to ensure
they provide the correct labelling, packaging, and information in SDS.
Aligning the requirements under the HSNO Act with new workplace requirements under the
proposed new Act and new regulations will be undertaken over several years. The EPA will take this
opportunity to bring HSNO requirements up to date, remove duplication and simplify requirements
to the extent possible to manage risks. Consultation on those changes will occur as new proposals
are developed and will be undertaken by the EPA separately from the consultation WorkSafe NZ is
undertaking on the workplace changes proposed in this discussion paper.
10
As part of this process WorkSafe NZ will provide advice to the EPA on work health and safety risks and the
controls it has or will set to address those risks, to enable the EPA to undertake a risk assessment on the new
substance.
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Integrating requirements
WorkSafe NZ and the EPA will work together to ensure that the majority of downstream businesses11
using hazardous substances will have to deal with:

one regulator who will enforce the proposed new Act and the new regulations, as well as the
HSNO environmental controls that apply within workplaces;

one set of rules for work health and safety (under the proposed new Act and the new
regulations); and

one suite of guidance for hazardous substances (the guidance and codes prepared by
WorkSafe NZ or prepared jointly with the EPA where environmental controls apply).
This approach is expected to set the foundation for reducing rates of acute injuries and chronic
disease caused by hazardous substances.
New regulations
The remainder of this chapter sets out the requirements that we propose should apply to
workplaces under new regulations. In summary, this involves:

adopting key features of the Australian model regulations12, which address the management
of hazardous substances in the workplace but are not currently required by the current
regulations;

transferring the relevant (workplace) requirements of the following HSNO regulations into the
new regulations:
11
o
Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001
o
Hazardous Substances (Classes 6, 8, and 9 Controls) Regulations 2001
o
Hazardous Substances (Identification) Regulations 2001
o
Hazardous Substances (Emergency Management) Regulations 2001
o
Hazardous Substances (Compressed Gases) Regulations 2001
o
Hazardous Substances (Tank Wagons and Transportable Containers) Regulations
2004
o
Hazardous Substances and New Organisms (Personnel Qualifications) Regulations
2001
o
Schedules 8, 9 and 10 of the Hazardous Substances (Dangerous Goods and
Scheduled Toxic Substances) Transfer Notice 2004
o
Hazardous Substances (Exempt Laboratories) Regulations 2001
o
Hazardous Substances (Tracking) Regulations 2001; and the
o
Hazardous Substances (Fireworks, Safety Ammunition and Other Explosives Transfer)
Regulation 2003.
Upstream businesses — importers, manufacturers, and suppliers of hazardous substances — will be subject to
additional HSNO Act requirements.
12
Note that the Australian model regulations covering hazardous substances also contain requirements relating
to work involving lead and lead processing. These requirements are not considered in this chapter. Instead,
we propose to include the lead-related regulations in the Hazardous Work regulations to be developed as part
of phase 2 (see timing and phasing of regulations in chapter 1 for more details).
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
transferring controls set out in HSNO approvals (including those approvals deemed in transfer
notices) or group standards, which seek to prevent or mitigate illness or injury to workers, into
the new regulations

making changes to the HSNO requirements being transferred into the new regulations in
order to simplify requirements to the extent possible in the short-term; and

reviewing all other HSNO requirements being transferred into the new regulations within two
years of the new regulations coming into force, to ensure requirements are fit-for-purpose
and to simplify requirements to the extent possible.
Details of the proposals
Hazardous substance approvals
Existing arrangements
All hazardous substances must be approved under the HSNO Act before they can be imported into,
or manufactured in, New Zealand. An approval sets out the controls which enable a hazardous
substance to be managed safely.
There are a number of different types of HSNO approval:


individual substance approvals
o via part 5 of the HSNO Act
o deemed approval via a transfer notice in the NZ Gazette
group standard approvals, which apply to groups of similar substances.
Group standards are approvals for a group of hazardous substances of a similar nature, type or use.
A group standard sets out the controls which enable a group of hazardous substances to be
managed safely. Many hazardous substances used in the workplace are approved under group
standards. Other substances (e.g. explosives, pesticides, timber treatment chemicals, vertebrate
toxic agents) were given only individual approvals.
A transfer notice is a notice in the NZ Gazette that carries over requirements from previous (preHSNO) regimes and is a deemed approval for specific hazardous substances.
Change
We will build the workplace controls within existing HSNO approvals, which prevent or mitigate
illness or injury to workers, into the new regulations. This will ensure that workplace controls on
hazardous substances are all set out in a single set of regulations, as opposed to the current
framework comprising the HSNO approvals, 15 sets of HSNO regulations, nine transfer notices, and
approximately 200 group standards.
Inventory of hazardous substances
Existing arrangements
The first step in managing risks associated with hazardous substances involves identifying all the
substances that are used, handled, stored or generated at a workplace in consultation with workers.
In Australia, a PCBU must ensure that an inventory of hazardous substances at the workplace is
prepared and kept up-to-date. The inventory must be readily accessible to workers involved in using,
handling or storing hazardous substances and to anyone else who is likely to be affected by a
hazardous substance at the workplace.
The inventory is a list of the product names of all hazardous substances used, handled or stored at
the workplace. It must be updated as new hazardous substances are introduced to the workplace or
when the use of a particular hazardous substance is discontinued.
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The current HSNO regulations do not require a person in charge of a place of work to prepare and
maintain an inventory. However, joint MBIE and EPA guidance does state that a person in charge of
a place of work should make a list of all of the substances used and stored at the workplace, as the
first step in assessing the risk of exposure to hazardous substances.
Proposed change
In order to codify existing good practice, we propose that a PCBU at a workplace would be required
to ensure that an inventory of all hazardous substances used, handled or stored at the workplace is
prepared and kept at the workplace and the inventory is maintained to ensure the information in
the inventory is up to date.
For each hazardous substance at the workplace, the inventory would need to include:

the product name;

the maximum amount that is likely to be at the workplace;

whether it is a gas, liquid, or solid;

the size of the container;

the location;

any specific storage requirements;

the HSNO classifications, or, if the HSNO classifications are not available, the UN class and
packing group; and

the current SDS for each hazardous substance listed.
The inventory would need to be readily accessible to:

a worker involved in using, handling, or storing a hazardous substance;

an emergency service worker; and

anyone else who is likely to be affected by a hazardous substance at the workplace.
We propose that these requirements would not apply to a hazardous substance that:

is transiting a workplace while other goods are being loaded onto or unloaded from a vehicle;
or

is a consumer product and it is reasonably foreseeable that it will be used at the workplace
only in:
o
quantities that are consistent with household use; and
o
in a way that is consistent with household use.
Consistent with the definition in regulation 5 of the Australian model regulations, ‘consumer
product’ would mean a thing that:

is packed or repacked primarily for use by a household consumer or for use in an office; and

if the thing is packed or repacked primarily for use by a household consumer — is packed in
the way and quantity in which it is intended to be used by a household consumer; and

if the thing is packed or repacked primarily for use in an office — is packed in the way and
quantity in which it is intended to be used for office work.
Question 104:
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Do you have any comments in relation to the regulatory proposal requiring
a PCBU to prepare and maintain an inventory of hazardous substances?
Question 105:
Given that this proposal seeks to codify existing good practice, do you think
the proposed regulation, requiring a PCBU to prepare and maintain an
inventory of hazardous substances, will impose any additional costs on
PCBUs? Conversely, what do you think are the main benefits of this
proposal? (Please quantify any impacts identified and express in dollar
terms to the extent practical).
Management of risk to health and safety
Existing arrangements
Currently, in accordance with section 7 of the HSE Act employers are required to have effective
methods for the identification, assessment and ongoing review of hazards.
Where a significant hazard is identified, an employer must then take steps (in accordance with
sections 8 – 10 of the HSE Act) to eliminate, isolate, or minimise the hazard.
These requirements will not be carried over into the proposed new Act when the HSE Act is
repealed. Rather, they will be replaced by obligations relating to the management of health and
safety risks, similar to those set out in regulations 34 – 38 of the Australian model regulations.
Proposed change
Consistent with regulation 351 of the Australian model regulations, we propose that the new
regulations would require a PCBU to manage the risks to health and safety associated with using,
handling, generating or storing a hazardous substance at a workplace in accordance with the
requirements that will be prescribed in regulations covering general risk and workplace
management (see the section ‘managing risks to health and safety arising from work’ on page 34 of
this document for further details about these requirements).
In managing risks to health and safety the PCBU would be required to take into consideration:

the quantity of the hazardous substance used

the health hazards and physicochemical hazards associated with the hazardous substance

any potentially hazardous chemical or physical reaction between the hazardous substance and
another substance or mixture, including a substance that may be generated by the reaction

any sources of fuel in the workplace, e.g. flammable gases, flammable and combustible
liquids, flammable and combustible solids, reactive substances that liberate flammable gases
on contact with water, and any dusts that are generated through other processes

any sources of oxygen in the workplace. e.g. oxygen gas and compressed air in cylinders,
chemical oxidisers, and peroxides

any energy sources that have the potential to ignite a flammable or combustible material, e.g.
flames, sparks, heat (including exothermic chemical reactions)

how workers could interact with the hazardous substance at the workplace

any structure, plant or system of work that is used in the use, handling, generation or storage
of the hazardous substance

the potential for workers to be exposed to the hazardous substance (and potential routes of
absorption – inhalation, skin absorption, etc.)

the potential degree of exposure
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
any relevant workplace exposure standard or biological exposure index13 for the hazardous
substance

whether monitoring will be required to measure the exposure of workers to the hazardous
substance

whether health monitoring will be required; and

the existence and performance of control measures.
Consistent with regulation 352 of the Australian model regulations we propose that, in addition to
the circumstances prescribed in the regulations covering general risk and workplace management
about the review of control measures (see page 36 of this document), a PCBU at a workplace would
be required to ensure that any measures implemented to control risks in relation to a hazardous
substance at the workplace are reviewed and as necessary revised annually and in any of the
following circumstances:

following any change to the SDS for the hazardous substance or the inventory of hazardous
substances

following any notifiable event14 involving a hazardous substance

following any incident involving a hazardous substance that did not cause, but might
reasonably have caused, the death of a person or a notifiable injury or illness15

if the person obtains a health monitoring report for a worker that contains:

o
test results that indicate that the worker has been exposed to the hazardous
substance and at a concentration that may cause harm and has an elevated level of
that substance and/or its metabolites in his or her body; or
o
any advice that test results indicate that the worker may have contracted a disease,
injury or illness as a result of carrying out the work using, handling, generating or
storing the hazardous substance that triggered the requirement for health
monitoring; or
o
any recommendation that the PCBU take remedial measures, including whether the
worker can continue to carry out the work using, handling, generating or storing the
hazardous substance that triggered the requirement for health monitoring;
if monitoring carried out determines that the airborne concentration of the hazardous
substance at the workplace exceeds the relevant workplace exposure standard.
Question 106:
Do you have any comments in relation to the proposed regulations setting
out processes and considerations for managing the risks to health and
safety associated with using, handling, generating or storing a hazardous
substance at a workplace?
13 Workplace Exposure Standards and Biological Exposure Indicies have been developed by MBIE in
conjunction with the EPA.
14 ‘Notifiable event’ has the same meaning as in section 20 of the Health and Safety Reform Bill.
15 ‘Notifiable injury or illness’ has the same meaning as in section 18 of the Health and Safety reform Bill
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Question 107:
Given that employers are currently required to manage significant hazards
in accordance with sections 8 – 10 of the HSE Act, do you think that the
proposed processes and considerations for managing the risks to health
and safety associated with hazardous substances will impose any additional
costs on PCBUs? Conversely, what do you think are the main benefits of
this proposal? (Please quantify any impacts identified and express in dollar
terms to the extent practical).
Management of risk associated with physicochemical hazards (controls on class 1 to 5 substances)
Existing arrangements
The Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001 prescribes controls:

for substances with explosive (class 1) properties to reduce the likelihood of an unintended
explosion and control any adverse effects;

for substances with flammable (class 2, 3, and 4) properties to reduce the likelihood of an
unintended fire or explosion and control any adverse effects; and

for substances with oxidising (class 5) properties to reduce the likelihood of an unintended
release of chemical energy as an explosion or fire and control any adverse effects.
The HSNO Classes 1 to 5 Controls regulations include some provisions that may not contribute to risk
reduction and are overly complex or impractical. The regulations may also lack adequate controls for
the safe management of some substances, for example the storage of liquid oxidising substances.
Compliance is further complicated by the fact that some of the controls that duty holders need to
comply with (for class 1 to 5 substances) are currently set outside of these regulations in schedules 8
and 10 of the Hazardous Substances (Dangerous Goods and Scheduled Toxic Substances) Transfer
Notice 2004.
Proposed change
We propose that the requirements of the HSNO Classes 1 to 5 Controls regulations and relevant
parts of the Dangerous Goods and Scheduled Toxic Substances transfer notice, including Schedule 8
on bulk storage, would be transferred into the new regulations.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 108:
Do you have any comment to make about the regulatory proposal to
transfer the requirements of the Classes 1 to 5 Controls regulations and
parts of the Dangerous Goods and Scheduled Toxic Substances transfer
notice into the new regulations?
Question 109:
Do you think there are any immediate improvements that should be made
to the controls on class 1 to 5 substances that are being transferred into
the new regulations before the review is carried out?
Management of risk associated with fireworks, safety ammunition, and other explosives
Existing arrangements
The Hazardous Substances (Fireworks, Safety Ammunition, and Other Explosives Transfer)
Regulations 2003 currently provide for the safe handling of use of fireworks, safety ammunition, and
other explosives by varying the controls set out in other HSNO regulations (Schedules 4, 5, and 6).
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Proposed change
We propose that the relevant requirements of Schedule 4 (changes to controls relating to fireworks),
Schedule 5 (changes to controls relating to safety ammunition), and Schedule 6 (changes to controls
relating to other explosives) of the HSNO Fireworks, Safety Ammunition, and Other Explosives
Transfer regulations would be transferred into the new regulations.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 110:
Do you have any comment to make about the regulatory proposal to
transfer the requirements of Schedules 4, 5 and 6 of the HSNO Fireworks,
Safety Ammunition, and Other Explosives Transfer regulations into the new
regulations?
Question 111:
Do you think there are any immediate improvements that should be made
to the controls on fireworks, safety ammunition, and other explosives that
are being transferred into the new regulations before the review is carried
out?
Management of risk associated with health hazards (controls on class 6 and 8 substances)
Existing arrangements
The Hazardous Substances (Classes 6, 8, and 9 Controls) Regulations 2001 prescribe controls:

for substances with toxic (class 6) properties to reduce the likelihood of any unintended
exposure to any such substances and control any adverse effects

for substances with corrosive (class 8) properties to human tissue to reduce the likelihood of
any unintended exposure and control any adverse effects; and

for substances with ecotoxic (class 9) properties to reduce the likelihood of any unintended
exposure to any such substances and control any adverse effects.
Regulations 11 – 26 relate to the scientific methodology for setting tolerable exposure limits (TELs),
which are a public health protection measure set by the EPA. Consequently, these provisions would
not be transferred into the new regulations.
Regulation 27 sets workplace controls in relation to compliance with TELs and regulation 28 sets
controls for the safe application of vertebrate poisons. Regulations 29 and 30 addresses the setting
of and compliance with workplace exposure standards (WESs), which are a workplace control set by
WorkSafe NZ with input from the EPA.
Regulations 32 – 44 relate to the scientific methodology for setting environmental exposure limits,
which are an environmental protection measure set by the EPA. Consequently, these provisions
would not be transferred into the new regulations.
Regulations 45 – 51 sets workplace controls in relation to the application of class 9 (ecotoxic)
substances. It is intended that the HSNO regulatory framework will continue to be responsible for
setting environmental controls that apply to workplaces and non-workplaces. Consequently, these
provisions would not be transferred into the new regulations.
The HSNO Classes 6, 8 and 9 Controls regulations may also lack adequate controls for the safe
management of some class 6 (toxic) and class 8 (corrosive) substances, for example sites storing
substances that are acutely toxic or known or presumed human carcinogens do not currently trigger
a requirement to establish a hazardous substance location, which would be subject to assessment by
an independent and competent third-party examiner.
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Proposed change
We propose that the following provisions of the HSNO Classes 6, 8 and 9 Controls regulations would
be transferred into the new regulations:


Part 1 (general requirements) – regulations 7 – 10; and
Part 2 (requirements for class 6 substances) – regulations 29 and 30.
Further, we propose that more specific controls relating to segregation requirements (including
isolation distances) between class 6 and 8 substances and other hazardous substances; more specific
controls relating to the storage of class 6 and 8 substances; and more specific controls to manage
the risks specifically associated with class 6 and 8 substances would also be built into the new
regulations.
Question 112:
Do you have any comment to make about the regulatory proposal to
transfer regulations 7 – 10 and 29 and 30 of the HSNO Classes 6, 8 and 9
Controls regulations into the new regulations?
Question 113:
Do you think there are any immediate improvements that should be made
to the controls on class 6 and 8 substances that are being transferred into
the new regulations before the review is carried out?
Question 114:
Do you think that workplaces storing classes 6.1A, 6.1B, and 6.1C
(substances that are acutely toxic) and class 6.7A (substances that are
known or presumed human carcinogens) should be required to establish a
hazardous substance location and obtain a test certificate for that location?
Management of risk associated with fumigants
Existing arrangements
Fumigants are highly toxic substances that can cause serious harm and death to humans, animals,
insects and other living organisms. Because of their toxicity, the use of these hazardous substances
for fumigation is a very effective means of treating produce, buildings and vessels to eradicate
unwanted pests. However, the dangerous nature of the substances, and the nature of the
fumigation operation itself places a responsibility on those concerned to adopt safe work practices
to protect themselves and others who may lawfully be in the vicinity.
The Hazardous Substances (Fumigants) Transfer Notice 2004 currently provides for the control and
safe use of fumigants by either varying controls set out in HSNO regulations (Schedule 2) or imposing
additional controls (Schedule 3).
Proposed change
We propose that the requirements of Schedules 2 (changes to controls relating to fumigants) and 3
(new controls for fumigants) of the Fumigants transfer notice be transferred into the new
regulations.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 115:
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Do you have any comment to make about the regulatory proposal to
transfer the requirements of Schedules 2 and 3 of the HSNO Fumigants
transfer notice into the new regulations?
Question 116:
Do you think there are any immediate improvements that should be made
to the controls on fumigants that are being transferred into the new
regulations before the review is carried out?
Requirements for labelling
Existing arrangements
Labels provide information on the hazards of substances so they can be managed safely.
Labelling requirements are currently spread over three sets of HSNO regulations: the Hazardous
Substances (Identification) Regulations 2001, the Hazardous Substances (Disposal) Regulations 2001,
and the Hazardous Substances (Emergency Management) Regulations 2001.
These regulations set labelling requirements for importers, manufacturers, suppliers and persons in
charge of a workplace. Importers, manufacturers and suppliers must sell products that are correctly
labelled, but a person in charge of a place of work must make sure that the label stays on the
container and continues to be readable. If a hazardous substance is decanted from one container
into another, the receiving container must also be appropriately labelled.
Proposed change
We propose that in relation to labelling, the new regulations would require the PCBU to ensure that
a hazardous substance used, handled or stored at the workplace is correctly labelled in accordance
with:


the requirements currently set out in regulations 8 to 30, and regulations 32 and 33 of the
HSNO Identification regulations; and
the requirements currently set out in regulations 8 to 10 of the HSNO Emergency
Management regulations, where a hazardous substance is present in a quantity equal to or
greater than the quantity specified for hazardous substances of that classification in
Schedule 1 of those regulations.
This requirement would also apply to a PCBU if the hazardous substance is manufactured at the
workplace or transferred or decanted from its original container at the workplace.
Further, we propose that the new regulations would require the PCBU to ensure that the label
information is available in a manner that enables a worker handling the substance to gain rapid
access to the label information.
Question 117:
Do you have any comment to make about the regulatory proposal to
require a PCBU to ensure that a hazardous substance used, handled or
stored at the workplace is correctly labelled in accordance with the HSNO
Identification regulations (8 to 30, 32 and 33) and the HSNO Emergency
Management regulations (8 to 10)?
Question 118:
Do you think there are any other immediate improvements that should be
made to workplace labelling requirements?
Requirements for safety data sheets
Existing arrangements
A safety data sheet (SDS) is a document that provides comprehensive information on the properties
of hazardous substances, how they affect health and safety in the workplace and on how to manage
the hazardous substances in the workplace. For example it includes information on the identity,
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health hazards,16 physicochemical hazards,17 safe handling and storage, emergency procedures and
disposal considerations.
An SDS is an important tool for minimising the risks associated with the use of hazardous substances
in workplaces. Consequently, having a current SDS for each hazardous substance and understanding
it is essential.
SDS requirements are currently included in group standard approvals and spread over three sets of
HSNO regulations: the Hazardous Substances (Identification) Regulations 2001, the Hazardous
Substances (Disposal) Regulations 2001 and the Hazardous Substances (Emergency Management)
Regulations 2001.
Proposed change
Consistent with regulation 344 of the Australian model regulations, we propose new regulations that
would require a PCBU to obtain the current SDS for a hazardous substance from the manufacturer,
importer or supplier of the hazardous substance either:

not later than when the hazardous substance is ‘first supplied’ for use at the workplace; or

if the PCBU is not able to obtain the SDS at that time, as soon as practicable after the
hazardous substance is first supplied to the workplace, but before the hazardous substance is
used at the workplace.
The hazardous substance would be taken to be ‘first supplied’ to a workplace if the supply is the first
supply of the hazardous substance to the workplace for 5 years.
Further, we propose that the new regulations would require the PCBU to ensure that the current
safety data sheet for the hazardous substance is readily accessible to:

a worker who is involved in using, handling or storing the hazardous substance at the
workplace; and

an emergency service worker or anyone else who is likely to be exposed to the hazardous
substance at the workplace.
We propose that these requirements would not apply to a hazardous substance that:

is transiting a workplace while other goods are being loaded onto or unloaded from a vehicle;
or

is a consumer product and it is reasonably foreseeable that it will be used at the workplace
only in:
o
quantities that are consistent with household use; and
o
in a way that is consistent with household use.
Consistent with the definition in regulation 5 of the Australian model regulations, ‘consumer
product’ would mean a thing that:

is packed or repacked primarily for use by a household consumer or for use in an office; and
16
These are properties of a substance that have the potential to cause adverse health effects.
17
These are physical properties of a substance that pose risks to workers other than health risks, as they do not
occur as a consequence of the biological interaction of the substance with people. They arise through
inappropriate handling or use and can often result in injury to people and/or damage to property as a result of
the intrinsic physical hazard.
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
if the thing is packed or repacked primarily for use by a household consumer — is packed in
the way and quantity in which it is intended to be used by a household consumer; and

if the thing is packed or repacked primarily for use in an office — is packed in the way and
quantity in which it is intended to be used for office work.
These proposed regulations simplify the existing SDS related obligations on a person in charge,
which are set out in HSNO group standard approvals, HSNO Identification regulations, HSNO
Disposal regulations, and HSNO Emergency Management regulations.
Question 119:
Do you have any comments in relation to the proposed regulations
requiring a PCBU to obtain and make available the current safety data
sheet for a hazardous substance?
Question 120:
Do you think the proposed regulations, requiring a PCBU to obtain and
make available the current safety data sheet for a hazardous substance,
will impose any additional costs on PCBUs? Conversely, what do you think
are the main benefits of this proposal? (Please quantify any impacts
identified and express in dollar terms to the extent practical).
Requirements for signage
Existing arrangements
Signs are required when a workplace has amounts of hazardous substances over certain limits. Even
if a workplace isn’t required to have signs, it’s best practice to always have them as they warn
visitors and emergency services that hazardous substances are present. Emergency services rely on
signs when they respond to an emergency to decide on the course of action they will take and the
protective equipment they will wear.
Regulation 51 of the Hazardous Substances (Identification) Regulations 2001 sets out duties of
persons in charge in respect of signage. Signs are required when a person in charge of a workplace
has amounts of hazardous substances over threshold quantities set out in Schedule 3 of those
regulations. Regulation 52 sets out the signage requirements, i.e. where signs must be located and
what they must describe.
Regulation 42 of the Hazardous Substances (Emergency Management) Regulations 2001 sets out
additional signage requirements, i.e. signs must describe the action to take in an emergency, where
a workplace has amounts of hazardous substances over threshold quantities set out in Schedule 5 of
those regulations.
Proposed change
We propose that in relation to signage, the following provisions would be transferred into the new
regulations and merged into a single signage obligation (and one set of threshold quantities):

regulations 51 and 52 of the HSNO Identification regulations; and

regulation 42 of the HSNO Emergency Management regulations.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 121:
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Do you have any comment to make about the regulatory proposal to
transfer the existing signage requirements set out in the HSNO
Identification regulations (51 and 52), and Emergency Management
regulations (42) into the new regulations and merge into a single
obligation?
Question 122:
Do you think there are any immediate improvements that should be made
to the signage requirements that are being transferred into the new
regulations before the review is carried out?
Requirements applying to compressed gases
Existing arrangements
Substances that are gaseous are often contained under high pressure. Because pressurised gases can
pose a risk to people and the environment, the HSNO Act deems any gas contained under pressure
to be hazardous. Currently, requirements for the design, manufacture, verification, testing, and
filling of compressed gas containers are provided for in the Hazardous Substances (Compressed
Gases) Regulations 2001.
Proposed change
We propose that all requirements of the HSNO Compressed Gases regulations would be transferred
into the new regulations.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 123:
Do you have any comment to make about the regulatory proposal to
transfer the requirements of the HSNO Compressed Gases regulations into
the new regulations?
Question 124:
Do you think there are any immediate improvements that should be made
to the requirements for the design, manufacture, verification, testing, and
filling of compressed gas containers that are being transferred into the new
regulations before the review is carried out?
Requirements applying to tank wagons and transportable containers
Existing arrangements
A tank wagon is a vehicle used to transport liquid or gaseous hazardous substances by road or rail.
Tank wagons are characterised as: having a tank that is permanently fixed to the vehicle, or a trailer
that contains a tank.
A transportable container is a container that is used in the transport of liquid or gaseous hazardous
substances by road or rail. Transportable containers are characterised as being a container that is
not permanently fixed to a vehicle, or a trailer, and can be unloaded at a destination or transferred
to another transport mode.
Currently, tank wagons and transportable containers must be designed and operated in accordance
with the Hazardous Substances (Tank Wagons and Transportable Containers) Regulations 2004.
Proposed change
We propose that the requirements of the HSNO Tank Wagons and Transportable Containers
regulations would be transferred into the new regulations.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 125:
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Do you have any comment to make about the regulatory proposal to
transfer the requirements of the HSNO Tank Wagons and Transportable
Containers regulations into the new regulations?
Question 126:
Do you think there are any immediate improvements that should be made
to the requirements applying to tank wagons and transportable containers
regulations that are being transferred into the new regulations before the
review is carried out?
Requirements applying to stationary container systems
Existing arrangements
A stationary container system is a stationary tank or process container and its associated equipment,
pipe work and fittings, up to and including all transfer points.
Currently, Schedule 8 of the Hazardous Substances (Dangerous Goods and Scheduled Toxic
Substances) Transfer Notice 2004 provides for the design and fabrication of stationary container
systems and for the certification of these systems.
Proposed change
We propose that the requirements of Schedule 8 of the HSNO Dangerous Goods and Scheduled
Toxic Substances transfer notice would be transferred into the new regulations.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 127:
Do you have any comment to make about the regulatory proposal to
transfer Schedule 8 of the HSNO Dangerous Goods and Scheduled Toxic
Substances transfer notice into the new regulations?
Question 128:
Do you think there are any immediate improvements that should be made
to the requirements applying to stationary container systems that are
being transferred into the new regulations (before the review is carried
out)?
Requirements applying to laboratories
Existing arrangements
Currently the requirements applying to laboratories in which small-scale use of hazardous
substances in research and development or teaching occurs is provided for in the Hazardous
Substances (Exempt Laboratories) Regulations 2001.
Proposed change
We propose that the requirements of the HSNO Exempt Laboratories regulations would be
transferred into the new regulations. Exempt laboratories would still be able to have the current
limited access to substances that are not approved under HSNO.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 129:
Do you have any comment to make about the regulatory proposal to
transfer the HSNO Exempt Laboratories regulations into the new
regulations?
Question 130:
Do you think there are any immediate improvements that should be made
to the requirements applying to laboratories that are being transferred into
the new regulations before the review is carried out?
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Tracking highly hazardous substances
Existing arrangements
Highly hazardous substances must be tracked. Tracking refers to keeping a record of what happens
to a hazardous substance from when it was imported or manufactured, through to distribution and
transport, to use or disposal. Tracking requirements are currently provided for in the Hazardous
Substances (Tracking) Regulations 2001.
Proposed change
We propose that the requirements of the HSNO Tracking regulations, excluding the provisions that
relate to the importation of explosives (regulation 4(2)), would be transferred into the new
regulations. The import clearance function in regulation 4(2) will remain under the HSNO Act and the
EPA.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 131:
Do you have any comment to make about the regulatory proposal to
transfer the HSNO Tracking regulations (excluding regulation 4(2)) into the
new regulations?
Question 132:
Do you think there are any immediate improvements that should be made
to the tracking requirements that are being transferred into the new
regulations before the review is carried out?
Emergency Management
Existing arrangements
Currently, emergency management requirements are provided for in the Hazardous Substances
(Emergency Management) Regulations 2001.

regulations 6 – 11 set out requirements in relation to labelling

regulations 12 – 20 of the regulations set out requirements in relation to SDS

regulations 21 – 24 set out requirements in relation to fire extinguishers

regulations 25 – 34 set out requirements in relation to emergency response plans

regulations 35 – 41 set out requirements in relation to secondary containment; and

regulation 42 sets out signage requirements.
Proposed change
We propose that the following provisions of the HSNO Emergency Management regulations, which
relate to duties of a person in charge of a workplace, would be transferred into the new regulations:

regulations 21 – 24 (fire extinguishers);

regulations 25 – 34 (emergency response plans); and

regulations 35 – 41 (secondary containment).18
18
Secondary containment provisions also provide for the prevention of harm to the environment from eco-toxic
(class 9) substances.
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Regulations covering general risk and workplace management will require a PCBU to prepare and
maintain an emergency plan, consistent with regulation 43 of the Australian model regulations. (See
the section headed ‘Emergency plans’ on page 42 of this document for further details).
Consequently, we propose that regulation 34 of the HSNO Emergency Management regulations
would be amended to clarify that an emergency response plan, or any part of an emergency
response plan, could be part of any other management documentation for an emergency whether:

required by regulations covering general risk and workplace management made under the
proposed new Act; or

required by some other Act; or

undertaken by a PCBU for some other reason.
Regulations covering major hazard facilities propose to require the operator of a major hazard
facility to prepare and maintain an emergency plan specific to the facility and the hazards having the
potential to cause a major accident at the facility, consistent with regulation 557 of the Australian
model regulations (see page 151 of this document for further details).
We propose that an operator who is required to prepare an emergency plan for a major hazard
facility would not be required to prepare an emergency plan for the purposes of the new
regulations.
Further, we propose that regulation 32(1) of the HSNO Emergency Management regulations would
be amended so that if the New Zealand Fire Service gives the PCBU a written recommendation about
the content or effectiveness of the emergency response plan, then the person would be required to
revise the plan in accordance with the recommendation or identify an alternative means for
achieving the outcome sought by the recommendation. Currently this regulation provides for an
emergency response plan to be made available to every person identified in the plan as being
responsible for executing it (or a specific part of it) and to every emergency service provider
identified in it. This proposal is consistent with regulation 361 of the Australian model regulations.
MBIE and WorkSafe NZ will be carrying out a review of the transferred provisions within two years of
the new regulations coming into force.
Question 133:
Do you have any comment to make about the regulatory proposal to
transfer the existing emergency preparedness requirements set out in the
HSNO Emergency Management regulations (21 – 41) into the new
regulations?
Question 134:
Do you have any comment to make about the regulatory proposal that an
emergency response plan, or any part of an emergency response plan,
could be part of any other management documentation for an emergency
whether — required by the general risk and workplace management
regulations made under the proposed new Act; or required by some other
Act; or undertaken by a PCBU for some other reason?
Question 135:
Do you have any comment to make about the regulatory proposal that an
operator who is required to prepare an emergency plan for a major hazard
facility in accordance with new regulations covering major hazard facilities
would not be also required to prepare an emergency plan by the new
regulations covering work involving hazardous substances?
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Question 136:
Do you have any comment to make about the regulatory proposal to
require a PCBU to revise their emergency response plan, if the Fire Service
makes a written recommendation about the content or effectiveness of the
plan?
Question 137:
Do you think that we should retain the current prescriptive list of matters
to be addressed in an emergency plan (as set out in regulations 29 and 30
of the HSNO Emergency Management regulations) or should we adopt the
more flexible list of matters used in Australia (regulation 43 of the
Australian model regulations)? Why/why not?
Question 138:
Do you think that we should retain the current prescriptive set of
requirements in relation to fire extinguishers (as set out in regulations 21 –
24 of the HSNO Emergency Management regulations) or should we adopt
the more performance-based requirements used in Australia (regulations
359 and 360 of the Australian model regulations)? Why/why not?
Question 139:
Do you think there are any immediate improvements that should be made
to the emergency preparedness requirements that are being transferred
into the new regulations before the review is carried out?
Test certification
Existing arrangements
Test certificates are a mechanism to ensure compliance with hazardous substance controls under
the HSNO regime. Test certificates are required for people, locations, and containers that are
associated with high-risk hazardous substances. Test certifiers are an important part of the HSNO
compliance regime. Test certifiers are used to assess compliance with specific, but not all, hazardous
substance controls.
The test certificate regime is managed as a private third party quality assurance regime. It is
designed to relieve enforcement officers from checking key areas for compliance and provide the
person in charge with a level of assurance that they comply with key controls.
Historically, some location test certificates have been issued that are not compliant with HSNO
controls. This means that some persons in control of a workplace believe that they are complying
with controls when they are not. The EPA lacks adequate functions and powers under HSNO to
adequately manage this issue (e.g. a differentiated audit strategy and mandatory performance
standards). Submitters to the Taskforce recommended the current test certification model be
reviewed to develop more robust assurance processes.
There are also viability issues due to the small size and poor coverage of some of the test
certification markets (e.g. pyrotechnics). The HSNO Act is unclear if the EPA can employ or contract
in test certifier services to mitigate supply issues.
Consequently, in July 2013 it was proposed that the EPA be given new powers to ensure that
businesses have access to expert advice and compliance mechanisms, and ensure that this advice is
accurate. These changes would be made through improvements to the test certification regime by:

clarifying the EPA’s ability to employ additional test certifiers;

improving capability of test certifiers; and
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
performing mandatory targeted auditing and applying sanctions to manage test certifier
performance.
Test certification decisions
In July 2013, the Government agreed that the changes be made to the HSNO test certification
regime providing the EPA with powers:

enabling them to employ or contract test certifiers;

to specify timeframes for approving, continuing or renewing an application as a test certifier;

enabling them to impose conditions when approving, continuing or renewing an application as
a test certifier;

enabling them to consider whether an applicant is a fit and proper person when approving,
continuing or renewing an application as a test certifier;

enabling them to take account of a test certifier’s history of compliance with performance
requirements when an application for continuation or renewal is made;

enabling them to obtain information from a test certifier when an application for a
continuation or renewal is made;

allowing accredited institutions (such as testing laboratories and training organisations) to
issue test certificates

enabling approved handlers to be approved by a recognised trainer or a test certifier;

establishing requirements for recognised training and education programmes for test
certifiers and approved handlers that are tied to conditions of approval, continuation or
renewal

enabling them to set mandatory performance standards for test certifiers;

enabling them to set minimum training requirements for approved handlers;

enabling them to specify mandatory data requirements for the test certificate register and
requiring test certifiers to use the register;

enabling cost recovery of all audits;

requiring mandatory auditing and performance-targeted auditing on a cost recoverable basis;
and

enabling them to suspend, impose temporary conditions upon or revoke all types of test
certificate.
Subsequently, the Minister for the Environment agreed that the changes should not be made to the
HSNO Act, but rather that they should be built into the test certification regime that will be set out in
the new regulations (since this function will no longer be undertaken under the HSNO Act).
Responsibility for oversight of the test certification regime will be delegated from the EPA to
WorkSafe NZ from 1 July 2014, in line with the July 2013 decision by Government.
MBIE and WorkSafe NZ will investigate the need for further refinements to the test certification
regime within two years of the new regulations coming into force.
The changes to the test certification regime are expected to result in:

increased supply of expert advice and mechanisms to ensure businesses can comply with
hazardous substance controls; and
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
a proportionate response to performance issues when viewed together with current
responses, which are to amend or revoke a test certifier’s approval to issue test certificates.
Approved handler certification
Existing arrangements
Currently, if a workplace uses, handles, or stores explosive, or certain toxic, flammable, corrosive, or
oxidising substances over certain limits, one or more of the workers will need to be trained and
certified as an approved handler. This is someone who has specific knowledge and experience about
how to handle particular hazardous substances and has received an approved handler test certificate
from a test certifier.
To be certified as an approved handler, the worker needs to have sufficient knowledge and
experience to be able to demonstrate to a test certifier that they are competent to handle the
substances. The test certifier will check that the worker has had sufficient training to safely manage
the hazardous substances they will be using. Training may be provided by an industry training
organisation or could be on-the-job training. To get certified, that worker will need a written record
of the training, which describes the method used to assess their knowledge and practical skills, and
is signed by the course provider or work supervisor. An approved handler certificate must be
renewed every five years.
There have been concerns for a number of years over the adequacy of the approved handler regime
to prevent people being exposed to hazardous substances that could cause harm and the quality and
consistency of training that is available to people wanting to become approved handlers (i.e. there is
no standardised training qualifications).
The approved handler regime does not always require the person who is actually handling the
hazardous substance(s) in the workplace to be an approved handler. The approved handler may be
the person in control of the workplace or a manager and in certain circumstances the approved
handler just needs to be available. Consequently, even with an approved handler on-site or available
the actual person handling the hazardous substance can still be exposed to harm.
Proposed change
The proposed new Act and the regulations covering general risk and workplace management will
provide greater clarity about what a PCBU must do in relation to the provision of information,
training, supervision, and instruction in the workplace. (See the section entitled ‘Information,
training, supervision and instruction’ on page 37 of this document for further details.)
In addition to these general requirements, the new regulations would require a PCBU to provide any
information, training, instruction, and supervision to a worker that is necessary to protect the
worker from risks to the worker’s health and safety arising from the work, if the worker:



uses, handles, generates or stores a hazardous substance; or
operates, tests, maintains, repairs or decommissions a storage or handling system for a
hazardous substance; or
has the potential to be harmed by a hazardous substance.
The information, instruction and training would need to include:

details of the hazardous substances that the worker will be handling, including:
o the names and hazard classifications of those substances;
o the adverse effects that could be caused by each of those substances;
o the controls imposed on those substances;
o any relevant workplace exposure standard or biological exposure index;
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o
o






access to any relevant safety data sheet,
other legislative provisions which concern the hazardous properties of those
substances;
the significant findings of the risk assessment;
the operating equipment (including protective clothing and equipment) and procedures
necessary to manage those substances;
the appropriate precautions and actions to be taken by the worker in order to prevent injury
or illness to himself/herself and other workers at the workplace;
the procedures to adopt in an emergency involving those substances;
the results of any workplace exposure monitoring and, in particular, if the results of such
monitoring show that a workplace exposure standard has been exceeded; and
the collective results of any health monitoring undertaken in a form calculated to prevent
those results from being identified as relating to a particular person.
The information, instruction and training required would need to be:


adapted to take account of significant changes in the type of work carried out or methods of
work used by the PCBU; and
provided in a manner appropriate to the potential degree of exposure identified by the risk
assessment.
Further, the PCBU would be required to keep written records for each worker, which are signed by
course providers (or work supervisors) and describe the methods used to assess the workers
knowledge and practical skills and the results of that assessment.
To ensure compliance with these requirements, inspectors (warranted under the proposed new Act)
would routinely check the record of learning for all workers handling hazardous substances as part
of a workplace assessment; not just those workers who would previously have gained approved
handler certification. This will include an assessment of the content of training courses (whether
formal qualifications or internal supervised workplace based training etc.) and knowledge of site
procedures to determine whether workers have an adequate understanding of the hazards and risks
associated with the hazardous substances they are working with. If the inspector is not satisfied that
all workers handling hazardous substances are competent to do so, then enforcement action will be
taken against the PCBU.
The significantly increased numbers of inspectors that are expected to come into service over the
next two years will ensure that a greater number of workplace assessments are carried out in future.
In this new regulatory environment, we consider that the ongoing need for a third-party test certifier
to check that a worker has received sufficient training to safely manage the hazardous substances
they will be using becomes largely redundant, and imposes unnecessary costs on business.
Consequently, we propose to revoke the approved handler requirements, except in relation to
certain explosives, vertebrate toxic agents, and fumigants that require a Controlled Substance
Licence.19
MBIE and WorkSafe NZ will be carrying out a review of the Controlled Substance Licence (and
associated approved handler) requirements within two years of the new regulations coming into
force.
19 An applicant for a Controlled Substance Licence needs to be able to demonstrate, via their approved handler
certificate, that they are adequately trained to handle the substance.
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Question 140:
Do you have any comment to make about the regulatory proposal to
revoke the existing approved handler requirements and replace with duties
in relation to the provision of information, training, instruction, and
supervision?
Question 141:
Do you think the proposal to revoke the existing approved handler
requirements and replace with duties in relation to the provision of
information, training, instruction, and supervision will impose any
additional costs on PCBUs? Conversely, what do you think are the main
benefits of this proposal? (Please quantify any impacts identified and
express in dollar terms to the extent practical)
Monitoring
Existing arrangements
Currently, if an employer is unable to eliminate or isolate the significant hazards associated with a
substance hazardous to the health of an employee, then the HSE Act requires that employer to
monitor an employee’s exposure to the substance and, with their informed consent, monitor the
employee’s health in relation to exposure to the substance (sections 10(2)(c), (d) and (e) of the HSE
Act refers). A ‘substance hazardous to health’ is any substance, or product containing a substance
that is known or suspected to cause harm to health. This includes: hazardous substances, approved
under the HSNO Act, which have a class 6 (toxic) or class 8 (corrosive) hazard classification; and
substances listed in the Workplace Exposure Standards publication currently applicable in New
Zealand.
Monitoring includes the use of valid and suitable techniques to give a quantitative estimate of the
exposure of employees to substances hazardous to health. For airborne substances, workplace
exposure monitoring involves the periodic and/or continuous sampling of workplace atmospheres,
to derive a quantitative measure of exposure to substances hazardous to health. Biological
monitoring, which measure the levels of the substance or its metabolite(s) in body fluids or in
exhaled breath, may also provide information on exposure to substances hazardous to health.
Health monitoring of a person means monitoring the person to identify changes in the person’s
health status resulting from exposure to substances hazardous to health. It involves the collection of
data in order to evaluate the effects of exposure and to confirm that the absorbed dose is within
safe levels. This allows decisions to be made about implementing ways to eliminate or minimise the
worker’s exposure, for example, reassigning to other duties that involve less exposure or improving
control measures.
Currently, the results of workplace exposure monitoring should be provided to those employees
with the potential for exposure to the substances monitored. Records of such monitoring, with
personal identifiers removed, should be readily accessible to all employees (section 11 of the HSE
Act refers).
Proposed change
Consistent with regulations 49 and 50 of the Australian model regulations, regulations covering
general risk and workplace management will make clear that a PCBU must:

ensure no one at the workplace is exposed to a substance or mixture in an airborne
concentration that exceeds the workplace exposure standard20 for a substance or mixture;
and
20 Workplace Exposure Standards and Biological Exposure Indicies have been developed by MBIE in
conjunction with the EPA
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
ensure that air monitoring is carried out to determine the airborne concentration of a
substance or mixture to which a workplace exposure standard applies:
o
if the person is not certain on reasonable grounds whether or not the airborne
concentration of the substance or mixture exceeds the relevant exposure standard; or
o
if monitoring is necessary to determine whether there is a risk to health (See the section
entitled ‘Managing risk from airborne contaminants’ on page 48 of this document for
further details).
In addition to this obligation, we propose that new requirements would be built into the new
regulations to require a PCBU to carry out workplace exposure monitoring21 where it is necessary to
determine the efficiency and effectiveness of measures introduced to control exposure to
substances hazardous to health.
Further, we propose that the new regulations would require a PCBU to ensure health monitoring
(which includes biological exposure monitoring) is provided for any worker who may be exposed to a
substance hazardous to health for which:

an identifiable disease or health effect may be related to the exposure;

there is reasonable likelihood that the disease or health effect may occur under the particular
conditions of work; and

there are valid techniques for detecting indications of the disease or the effect.
Health monitoring would also be required where a health and safety medical practitioner (appointed
by WorkSafe NZ) requires medical examination of workers.
If workplace exposure monitoring or biological exposure monitoring carried out determines that the
concentration of a substance hazardous to health to which the worker is exposed exceeds a relevant
workplace exposure standard or biological exposure index, or if a health monitoring report for a
worker contains:

test results that indicate that the worker has been exposed to the substance and at a
concentration that may cause harm and has an elevated level of that substance and/or its
metabolites in his or her body; or

any advice that test results indicate that the worker may have contracted a disease, injury or
illness as a result of carrying out the work using, handling, generating or storing the substance
that triggered the requirement for health monitoring; or

any recommendation that the PCBU take remedial measures, including whether the worker
can continue to carry out the work using, handling, generating or storing the substance that
triggered the requirement for health monitoring; then —
the PCBU would be required to ensure that any measures implemented to control risks in relation to
the substance hazardous to health are reviewed and as necessary revised. This is consistent with
regulation 352 of the Australian model regulations.
Consistent with regulations 369 – 378 of the Australian model regulations, we propose that a PCBU
would also be required to:

inform workers and prospective workers about health monitoring requirements;
21 Workplace exposure monitoring should only be carried out by a competent person who has sufficient
knowledge, skills, and experience in workplace exposure monitoring techniques, including interpretation of the
results.
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
ensure health monitoring is carried out by or under the supervision of a registered medical
practitioner, occupational health nurse, or occupational hygienist with experience in health
monitoring;

consult workers in relation to the selection of the registered medical practitioner,
occupational health nurse, or occupational hygienist;

pay all expenses relating to health monitoring;

provide certain information about a worker to the registered medical practitioner,
occupational health nurse, or occupational hygienist carrying out the monitoring, including:
o
the name and address of the person conducting the business or undertaking;
o
the name and date of birth of the worker;
o
the work that the worker is, or will be, carrying out that has triggered the
requirement for health monitoring;
o
if the worker has started that work — how long the worker has been carrying out
that work;

take all reasonable steps to obtain a report from the registered medical practitioner,
occupational health nurse, or occupational hygienist as soon as practicable after the
monitoring has been carried out;

provide a copy of the report to the worker as soon as practicable after the person obtains the
report;

provide a copy of the report to WorkSafe NZ if the report contains:
o
any advice that test results indicate that the worker may have contracted a disease,
injury or illness as a result of carrying out the work using, handling, generating or
storing substances hazardous to health; or
o
any recommendation that the person conducting the business or undertaking take
remedial measures;

provide the report to all other PCBUs who have a duty to provide health monitoring for the
worker;

keep reports as confidential records for at least 30 years after the record is made; and

not disclose the report to anyone without the worker’s written consent.
Question 142:
Do you have any comments in relation to the proposed regulation requiring
a PCBU to carry out workplace exposure monitoring where it is necessary
to determine the efficiency and effectiveness of measures introduced to
control exposure to substances hazardous to health?
Question 143:
Do you have any comments in relation to the proposed regulations for
establishing health monitoring for any worker who may be exposed to a
substance hazardous to health?
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Question 144:
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Given that employers, in accordance with sections 10(2) of the HSE Act, are
currently required to monitor an employee’s exposure to significant
hazards (i.e. substances hazardous to health) and, with informed consent,
monitor the employee’s health, do you think that the proposed regulations
for carrying out workplace exposure monitoring and establishing health
monitoring will impose any additional costs on PCBUs? (Please quantify any
impacts identified and express in dollar terms to the extent practical)
Chapter 6: Regulating major hazard facilities
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Introduction
This chapter seeks feedback on policy proposals for regulating major hazard facilities under the
proposed new Act.
In this chapter:

New regulation refers to regulations to be made under the proposed new Act that cover
major hazard facilities.
Drivers for change
The Taskforce found that the current regulatory framework for facilities with major accident
potential has limited coverage. The framework currently focuses on oil and gas drilling rigs and
production facilities, underground mines, geothermal works, and pipelines. Chemical and
petrochemical manufacturing sites, oil refineries, gas processing plants and other facilities that store
and/or process very large quantities of hazardous substances have comparable major accident
potential. However, they are not subject to the same degree of oversight and regulation.
The Taskforce also found that prior to the Pike River mine tragedy the regulator had not effectively
understood major hazards or promoted compliance with existing requirements. Operators of
facilities with major accident potential are currently required to comply with the general provisions
of the HSE Act; the controls set under the HSNO Act; and take into consideration the preferred work
practices set out in the 1994 ACoP for Managing Hazards to Prevent Major Industrial Accidents.
However, the Taskforce found that industry awareness of the ACoP was minimal and there was little
evidence of key players applying it.
As a consequence, the Taskforce recommended strengthening the regulatory regime for managing
the risks of facilities with major accident potential by:

mapping the risk landscape;

developing criteria and prioritising types of facility for inclusion in the major hazard facilities’
regulatory framework;

ensuring that robust regulatory requirements, based on international best practice, apply to
all priority facilities; and

building the new agency’s capacity to provide rigorous oversight and ensure compliance with
the new regulatory framework.
In response, Working Safer signals that government actions and the focus of WorkSafe NZ will be on
occupational illness and disease, high-risk industries (industries with high fatality and serious injury
rates), high-hazard industries (upstream petroleum, underground mining, and geothermal works),
and facilities having the potential to cause a major accident (major hazard facilities).
Major hazard facilities are commercial operations that store and/or process very large quantities of
hazardous substances. Typically major hazard facilities include chemical and petrochemical
manufacturing sites, oil refineries, gas processing plants, fertiliser plants, timber processing plants
and binary cycle (geothermal) power plants. The hazards associated with these types of facilities are
complex and need careful management.
The regulatory challenge associated with major hazard facilities is the low frequency but
catastrophic nature of failure. Making a case for regulation and the deployment of regulatory
resources to an area where the frequency of failure is extremely low is difficult to make. This is
particularly challenging when other priorities such as industries that frequently fail and harm people
dominate. Part of the problem is the way in which risks are identified and managed.
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Traditional risk assessment processes tend to categorise events that are unlikely or rare as having a
lower risk rating than other, more likely events. While this type of risk assessment works as a general
approach, it is not particularly effective as a tool for thinking about the management of facilities with
potential for a major accident. The internationally accepted principle is that where an activity has
potential for a major accident, the regulatory focus should be on proactively managing the activity
regardless of the likelihood.
However, the consequences of a major accident at these types of facilities cannot be overstated.

In 1974 the Nypro chemical plant at Flixborough, United Kingdom was severely damaged by a
large explosion. 28 workers were killed and a further 36 suffered injuries. It is recognised that
the number of casualties would have been more if the incident had occurred on a weekday, as
the main office block was not occupied. Offsite consequences resulted in 53 reported injuries.
Property in the surrounding area was damaged to a varying degree.

In 1984 a loss of containment at the Union Carbide India Limited pesticide plant in Bhopal,
India resulted in the uncontrolled release of highly toxic gases. According to the state
government of Madhya Pradesh, approximately 3,800 people were killed and several
thousand other individuals experienced permanent and partial disabilities.

In 1998 an explosion at the Esso Longford gas plant in Victoria, Australia resulted in the loss of
two lives and eight serious injuries, a fire that lasted for two days, and the gas supply to southeastern Australia being cut off for almost three weeks. The cost to the Victorian economy was
estimated to be more than $1 billion.

In 2001 the AZF fertilizer plant in Toulouse, France exploded killing 30 people, critically
wounding 50 people, and injuring thousands more. The explosion tore a 200 metre wide by 60
metre deep hole in the ground. It blew out most of the windows in the city and left more than
4,000 residents homeless.

In 2005, a number of explosions occurred at Buncefield Oil Storage Depot in Hemel
Hempstead, United Kingdom. At least one of the initial explosions was of massive proportions
and there was a large fire, which engulfed a high proportion of the site. Over 40 people were
injured; fortunately there were no fatalities. Significant damage occurred to both commercial
and residential properties in the vicinity and a large area around the site was evacuated on
emergency service advice. The fire burned for several days, destroying most of the site and
emitting large clouds of black smoke into the atmosphere.

In 2005 an explosion and fire at the BP Texas City Refinery killed 15 people and injured
another 180. It resulted in financial losses exceeding $1.5 billion. A shelter-in-place order was
issued that required 43,000 people to remain indoors. Houses were damaged as far away as
three-quarters of a mile from the refinery.
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Regulation of major hazard facilities in other jurisdictions
There are well-established approaches to regulating major hazard facilities in other jurisdictions.
The European Union, for example, has a directive relating to major hazard facilities (the Seveso
Directive) and this, in turn, cascades to each member state. Under the Seveso framework, the
United Kingdom developed the Control of Major Accident Hazards Regulations 1999 (which replaced
the Control of Industrial Major Accident Hazards Regulations 1984).
In Australia, a consistent approach for managing major hazard facilities is progressively being
implemented by the various governments of Australia’s states and territories. This approach is set
out in the Australian model regulations.
Both the European and Australian frameworks have common elements:

focusing on specific facilities;

focusing on hazardous substances;

establishing clear threshold quantities that determine whether a facility is a major hazard
facility covered by the regime;

using broad categories of substances based on their hazardous properties (i.e. flammables,
toxics, explosives) as well as referencing specific hazardous substances; and

placing additional regulatory requirements on major hazard facilities including safety cases,
emergency plans, dangerous incident reporting etc.
Other relevant legislation
Hazardous Substances and New Organisms Act 1996
The manufacture, use, handling, storage, and disposal of hazardous substances is currently managed
in accordance with the controls set on individual hazardous substances, or groups of substances,
under the HSNO Act and associated regulations.
Operators of facilities which may end up being subject to the new regulations would continue to be
subject to the controls set out under the HSNO regime (less the requirement to prepare an
emergency plan). The new regulations would build on the HSNO controls by imposing additional
requirements on operators, consistent with practice in other jurisdictions. In Australia the
regulations applying to major hazard facilities build on the chemical management regulations that
apply to a wider range of workplaces.
It should be noted that as part of the Working Safer reforms, controls for the use, handling, and
storage of hazardous substances in the workplace will be set in regulations made under the
proposed new Act. See chapter 5 of this document for more information. The HSNO Act will still
impose common classification controls (covering matters such as substance classification, labelling,
and packaging) as well as controls to protect the environment and public health.
Resource Management Act 1991
The Resource Management Act 1991 (RMA) is New Zealand’s principal environmental management
statute. The RMA provides the framework for managing the environmental effects of activities.
Under the RMA, councils are responsible for the development of district, city, and regional plans that
set out objectives, policies and rules to manage activities that may affect the environment. These
plans set out the activities that require resource consent and those that are permitted (and do not
require resource consent).
Any facility which may end up being subject to the new regulations will almost certainly require
resource consent. An application for resource consent must include an assessment of environmental
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effects. Schedule 4 of the RMA sets out the matters that should be considered when preparing an
assessment of effects on the environment, including the following matters that are particularly
relevant to major hazard facilities:

where the activity includes the use of hazardous substances and installations, an assessment
of any risks to the environment which are likely to arise from such use; and

any risk to the neighbourhood, the wider community, or the environment through natural
hazards or the use of hazardous substances and installations.
If the consent is approved, it will often have conditions on the way the activity must be carried out.
The council that approved the consent is then responsible for ensuring on going compliance with the
resource consent.
Overview of preferred approach
The Government considers that action needs to be taken. We want to ensure that the risks
associated with major hazard facilities are being adequately controlled by operators, monitored and
regulated. The approach decided by Government aims to ensure that the regulation of major hazard
facilities in New Zealand will be more consistent with best practice in Australia, reduce the likelihood
of a major accident occurring, and minimise the consequences if a major accident does occur. In
order to achieve this objective, the new regulations need to meet the following criteria:

provide comprehensive coverage to reduce the likelihood and consequences of a major
accident;

provide clarity on the duties/obligations that specifically apply to operators of major hazard
facilities;

be durable, i.e. be broad enough to capture evolving technologies/knowledge and changes to
work organisation over time;

signal a lift in expectations in relation to the management of hazards having the potential to
cause a major accident;

be easily implemented and enforceable, including consideration of compliance and
transitional costs; and

be compatible with other jurisdictions (in particular Australia, the United Kingdom, and the
European Union), to enable the use of existing guidance and knowledge.
The preferred approach involves:

requiring operators to notify WorkSafe NZ if hazardous substances are present or likely to be
present in a quantity that is equal to or exceeds the lower threshold quantity;

requiring WorkSafe NZ to designate a facility to be a major hazard facility, if hazardous
substances are present or likely to be present in a quantity that is equal to or exceeds the
upper threshold quantity;

enabling WorkSafe NZ to designate a facility to be a major hazard facility, if hazardous
substances are present or likely to be present in a quantity that is equal to or exceeds the
lower threshold quantity, but is less than the upper threshold, and WorkSafe NZ considers
that there is potential for a major accident to occur at the facility;

requiring operators of major hazard facilities to:
o
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identify and assess all hazards at the facility having the potential to cause a major
accident;
o
identify control measures to eliminate the risk of a major accident occurring, or if it
is not reasonably practicable to eliminate the risk, minimise the risk so far as is
reasonably practicable;
o
prepare and implement a comprehensive and integrated safety management system
for managing safety and preventing the occurrence of any major accident at the
facility;
o
prepare a safety case that demonstrates to WorkSafe NZ how the chosen control
measures will maintain safe operation and eliminate the risk of a major accident
occurring, or if it is not reasonably practicable to eliminate the risk, minimise the risk
so far as is reasonably practicable;
o
implement arrangements for independent22 and competent persons to verify that
safety-critical elements23 are or will be suitable and will remain in good repair and
condition throughout the life cycle of the facility ;
o
provide information to visitors;
o
provide information to the local community and council (for the district in which the
major hazard facility is located) ;
o
prepare and implement an emergency plan that details on-site and off-site
emergency procedures; and
o
notify WorkSafe NZ of any dangerous incidents (an incident or near miss, which in
different circumstances could have led to a major accident).
Details of the proposals
Key definitions
Major accident
We propose that ‘major accident’ would mean an occurrence that results from an uncontrolled
event at a major hazard facility involving, or potentially involving, table 1 or 2 hazardous substances,
and having the potential to cause multiple fatalities of persons inside the facility or in the
surrounding area.
Facility
We propose that ‘facility’ would mean the whole area under the control of the same person where
table 1 or 2 hazardous substances are present in one or more units, and for this purpose two or
more areas under the control of the same person and separated by a road, railway, inland waterway,
or pipeline would be treated as one whole area. This is consistent with the definition of
‘establishment’ that is used in the United Kingdom Control of Major Accident Hazards Regulations
1999.
22
It is important that those carrying out verification work (whether in-house or third party) have appropriate levels
of impartiality and independence from pressures, especially of a financial or operational nature, which could
affect sound judgement. They should not verify their own work, and their management lines should be separate
from those people whose work they are checking.
23
We propose that ‘safety critical element’ would mean any part of a facility or its plant (including a computer
program) that: has the purpose of preventing or limiting the effect of, a major accident; or the failure of which
could cause or contribute substantially to a major accident.
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Operator
We propose that ‘operator’ would mean the PCBU who has management or control of the facility
and the power to direct that the whole facility be shut down. This is consistent with the definition
that is used in the Australian model regulations.
If more than one PCBU has management or control of the facility and the power to direct that the
whole facility be shut down, then one of those persons must be selected as the operator of the
facility and that person’s details must be given to WorkSafe NZ.
If a selection is not made, then each of the following persons is taken to be an operator of the
facility:

each PCBU who has management or control of the facility and the power to direct that the
whole facility be shut down who is an individual;

for each PCBU who has management or control of the facility and the power to direct that the
whole facility be shut down that is a body corporate — each officer of the body corporate.
Safety critical element
We propose that ‘safety critical element’ would mean any part of a facility or its plant (including a
computer program) that:

has the purpose of preventing, or limiting the effect of, a major accident; or

the failure of which could cause or contribute substantially to a major accident.
This is consistent with the definition that is used in the HSE (Petroleum Exploration and Extraction)
Regulations 2013.
Question 145:
Do you have any comment to make on the proposed definitions?
Facilities covered by the new regulations
Facilities that are in scope
In July 2013, the Government agreed that the regulations for major hazard facilities should apply:

to a facility or proposed facility where specified hazardous substances are present or likely to
be present in a quantity that is equal to or exceeds the ‘upper’ threshold quantity; or

to a facility or proposed facility where specified hazardous substances are present or likely to
be present in a quantity that is equal to or exceeds the ‘lower’ threshold quantity and
WorkSafe NZ has designated the facility to be a major hazard facility.
Note that the reference to ‘being present or likely to be present’ is a reference to the quantity of
specified hazardous substances that would, if present, meet the maximum capacity of the facility,
including:

the maximum capacity of process vessels and interconnecting pipe systems that contain the
hazardous substances

the maximum capacity of storage tanks and vessels used for the hazardous substances

the maximum capacity of other storage areas at the facility that could contain the hazardous
substances

the maximum capacity of pipe work outside process areas to contain the hazardous
substances
137 | P a g e

the maximum quantity of hazardous substances that could, in the event of failure, escape into
the facility from pipe work that is connected to, terminates at, or crosses the facility24

the maximum quantity of hazardous substances loaded into, or unloaded from road or rail
vehicles at a facility and are not for intermediate temporary storage, while in transit by road
or rail (i.e. the hazardous substances remain present at the facility for longer than 48 hours);25
and

the maximum quantity of hazardous substances present at the (land-based) facility at any one
time when hazardous substances are loaded into, or unloaded from ships berthed alongside
the facility and are not for intermediate temporary storage, while in transit by road or rail.26
Note also that isolated quantities of less than 2 per cent of the individual threshold may be excluded
from the aggregate quantity threshold if their location within a facility is such that it cannot act as an
initiator of a major accident elsewhere on site. This allows hazardous substances to be excluded if
held in quantities sufficiently small and isolated from other more significant quantities.
Facilities that are out of scope
The new regulations would not apply to:

an installation to which the current HSE (Petroleum Exploration and Extraction) Regulations
2013 apply

a mine to which the current HSE (Mining Operations) Regulations 2013 apply; or

a pipeline to which the current HSE (Pipelines) Regulations 1999 apply.
Question 146:
Do you have any comments on the types of facilities that are proposed in
scope or are proposed to be out of scope?
Notification process
The operator of an existing facility at which hazardous substances are present or likely to be present
in a quantity that is equal to or exceeds the lower threshold quantity would be required to notify
WorkSafe NZ as soon as practicable (but not more than three months) after the operator becomes
aware of the circumstance giving rise to the obligation to notify.
The operator of a proposed facility at which hazardous substances are likely to be present in a
quantity that is equal to or exceeds the lower threshold quantity would be required to notify
WorkSafe NZ of this circumstance as soon as practicable after design concept selection has occurred
and before making a final investment decision.
In some cases, particular features such as joint ownership, satellite locations, sites separated by
roads, site interdependency and legal site boundaries may complicate the identification of the
operator and/or the facility. This complicates the calculation of the aggregate quantity of hazardous
substances and who holds the obligation. Ideally this would be discussed with WorkSafe NZ before
submitting the notification.
24
This would include the contents at least up to the first off-site emergency isolation valve on each section, plus
any contents that could flow out before isolation
25
This allows for situations where there is a roadside transport parking area (or similar) or road/rail terminal
where hazardous substances may be held for short periods (less than 48 hours) before loading or after
unloading. This exclusion does not apply to facilities where the aggregate quantity of hazardous substances
stored for short periods remains significant for extended periods.
26
Hazardous substances on ships berthed alongside the facility are excluded.
138 | P a g e
The proposed notification process is consistent with the approach set out in the Australian model
regulations. The proposed threshold quantities are consistent with the thresholds used in the United
Kingdom and Australia.
Question 147:
Do you have any comments on the proposed notification process?
Notification content
The notification content should give WorkSafe NZ an understanding of any potential for a major
accident that may occur at the facility and the subsequent consequences. We propose that the
following information should be provided to WorkSafe NZ:
Contact Details

Provide the operator’s Trading Name and New Zealand Business Number (NZBN).

Provide enough detail to locate the facility using a street map or Google maps.

Provide the land title description.

Provide the details of a contact person with whom WorkSafe NZ may communicate with
regard to the information contained in the notification and any further queries.
Nomination of operator (if applicable)

Provide the details of the person that has been nominated to be the operator, if more than
one person has management or control of the facility and the power to direct the whole
facility to be shut down.
Information about the operator
If the operator is an individual, then the operator must include details of:

any conviction or finding of guilt for any offence under the proposed new Act, the new
regulations, or any former legislation (i.e. HSE Act, HSNO Act) concerning the management of
health and safety or hazardous substances;

any enforceable undertaking ever entered into under the proposed new Act;

any action ever taken to withdraw acceptance of a safety case for a major hazard facility
under the new regulations;

any relevant enforcement action (including prosecution, enforceable undertaking, licence
suspension/cancellation, prohibition notice) taken against the operator in any overseas
jurisdiction for breaches of major hazard facility or process safety related legislation.

If the operator is a body corporate, then the operator must include details of the above
matters in relation to the operator and each officer of the operator.
Business Description

Provide a brief description of the primary business activity at the site. Only the main activity or
activities should be listed.

Provide a brief description of particular activities and processes that involve table 1 or 2
hazardous substances.

Indicate site staffing levels (including contractors) and indicate the maximum number of
persons likely to be present at the facility on a normal working day. If the site operates on a
shift roster, then the shift arrangements should be provided. If there is significant seasonal
variation, or regular shutdown activity that significantly alters the workforce, this should also
be explained.
139 | P a g e
Site and Surroundings

State the distance to the nearest sensitive land uses (e.g. residential, schools, hospitals,
prisons, child and aged care centres, etc.).

Attach a scaled map of the facility that includes the area outside the facility that is within 500
m of the facility’s perimeter.

The location of storage tanks and vessels containing table 1 or 2 hazardous substances should
be clearly identified on the map and information supplied as to the maximum capacity,
contents and storage conditions. Temporary storages should be included.

The location of the main processing units involving table 1 or 2 hazardous substances should
be clearly identified on the map and information supplied as to the maximum capacity,
contents and process conditions.

The location of all loading and unloading facilities, administration areas and areas of high
occupancy (control rooms, workshops, etc.) should be clearly identified and information
supplied on the nature of the occupancy.

Attach information on the surrounding land use and planning zones available from the council.
If applicable, highlight major service utilities and transport corridors.

If known, include the location of other sites where hazardous substances may be present (in
particular, if there are other major hazard facilities).
Table 1 or 2 hazardous substances

Provide information about the table 1 or 2 hazardous substances present or likely to be
present at the facility.

Any assumptions used in the calculations should be clearly stated.

Any special circumstances that may vary the quantity of table 1 or 2 hazardous substances
should be explained.
Other hazardous substances

Provide information about other hazardous substances present or likely to be present at the
facility.
Additional information

Attach copies of any location test certificates and stationary container system test certificates.

Provide any additional information required by WorkSafe NZ.
Designation
WorkSafe NZ would assess each notification.
WorkSafe NZ must designate a facility or proposed facility to be a major hazard facility, if hazardous
substances are present or likely to be present in a quantity that is equal to or exceeds the upper
threshold quantity.
Where hazardous substances are present or likely to be present in a quantity that is equal to or
exceeds the lower threshold, WorkSafe NZ may designate the facility or proposed facility as a major
hazard facility if WorkSafe NZ decides to hold a review and, on review, considers that there is
potential for a major accident to occur at the facility or proposed facility. Any review carried out by
WorkSafe NZ would need to take into consideration relevant matters including:
140 | P a g e

the quantity or combination of table 1 or 2 hazardous substances present or likely to be
present at the facility;

the type of activities within the facility involving the table 1 or 2 hazardous substances; and

the land use and other activities in the area surrounding the facility.
In July 2013, the Government agreed to this designation process [CAB Min (13) 24/11 refers].
Review procedure
We propose that WorkSafe NZ may conduct a review if a notification discloses that the quantity of
hazardous substances present or likely to be present in a facility or proposed facility is equal to or
exceeds the lower threshold but is less than the upper threshold.
If WorkSafe NZ conducts a review, then the operator would be notified beforehand and be given the
opportunity to make a submission. WorkSafe NZ would be required to consider the submission and
consult any interested persons including Health and Safety representatives at the facility, the New
Zealand Fire Service and other local emergency services, and the council (for the district in which the
major hazard facility is located).
It is envisaged that such inquiries would be relatively rare. In Victoria, Australia over 200 sites have
been required to notify WorkSafe Victoria for exceeding the lower threshold (but not exceeding the
upper threshold). Of those sites 10 were subject to an inquiry, and only three were determined to be
major hazard facilities. The situation in New Zealand is likely to be similar.
The likelihood that a review will be held would be greater for those facilities where:

the quantity of hazardous substances is close to the threshold;

inherently unstable or incompatible substances are present in significant quantities;

the activities conducted at the facility are in some way intrinsically of higher hazard, e.g. if
substances are stored in relatively large closely grouped tanks; if the process has the potential
to generate by-products of extreme toxicity; if the process involves extremes of temperature
and/or pressure; and if the process is complex, requiring advanced engineering controls to
ensure safety;

a facility is located near another hazardous facility or major hazard facility;

a facility is located near facilities accommodating large numbers of people (e.g. commercial or
shopping centres and recreational facilities);

a facility is located near facilities provided for members of the community who may be more
vulnerable to the consequences of an emergency (e.g. schools, child care centres, hospitals
and nursing homes).
Question 148:
Do you have any comments on the proposed review procedure?
Checks and balances on designation decisions
In July 2013, the Government agreed that WorkSafe NZ’s designation decisions would be subject to
appropriate checks and balances, including:

providing for a list of exclusions from designation to be set out in the regulations, enabling the
regulations to limit WorkSafe NZ’s ability to make designations.
141 | P a g e

making WorkSafe NZ’s designations disallowable instruments, and so subject to oversight by
the Regulations Review Committee.27

ensuring the process WorkSafe NZ must follow is robust, the criteria clear, and that it is not
able to take designation decisions lightly. WorkSafe NZ will be subject to judicial review, so will
need to ensure its decision-making is procedurally fair and meets legal rules [CAB Min (13)
24/11 refers].
Suitability of facility operator
We propose that WorkSafe NZ may conduct a review if a notification discloses, or if for some other
reason WorkSafe NZ reasonably suspects, that the operator of the facility or proposed facility may
not be a suitable person to operate the facility.
If WorkSafe NZ conducts a review into this type of matter, then the operator would be notified
beforehand and be given the opportunity to make a submission. WorkSafe NZ would be required to
consider the submission and consult any interested persons including (where relevant) government
agencies in other jurisdictions with a regulatory role in relation to major hazard facilities.
If WorkSafe NZ determines on reasonable grounds that the operator is not a suitable person to
operate the major hazard facility, then WorkSafe NZ would be required to prohibit the operation (or
bringing into operation) of the major hazard facility. If no determination is made then the operator
would be taken to be a suitable person to operate the major hazard facility.
If an operator believes that WorkSafe NZ’s decision is invalid, then the operator has the ability to
seek a judicial review of WorkSafe NZ’s decision.
Notification by new operator
We propose that a proposed new operator for a designated major hazard facility would be required
to give WorkSafe NZ a notification that provides information about the operator, including details of:

any conviction or finding of guilt for any offence under the proposed new Act, the new
regulations, or any former legislation concerning the management of health and safety or
hazardous substances;

any enforceable undertaking ever entered into under the proposed new Act;

any action ever taken to withdraw acceptance of a safety case for a major hazard facility
under the new regulations;

any relevant enforcement action (including prosecution, enforceable undertaking, licence
suspension/cancellation, prohibition notice) taken against the operator in any overseas
jurisdiction for breaches of major hazard facility or process safety related legislation.
Question 149:
Do you have any comments on the proposed process for establishing the
suitability of the facility operator or the proposed process for notification
by new operators?
27 The Regulations Review Committee examines all regulations, investigates complaints about regulations, and
performs other functions so that regulations are subject to effective parliamentary scrutiny and control.
142 | P a g e
Hazardous substances at major hazard facilities and their threshold quantities
Relevant hazardous substances
We propose that the hazardous substances that would characterise a workplace as a major hazard
facility would be the substances specifically referred to in Table 1 and categories of substances
referred to in Table 2. The tables are based on the Australian model regulations and United Kingdom
Control of Major Accident Hazards Regulations 1999.
The relevant threshold quantities are set out in Columns 4 (lower threshold) and 5 (upper threshold)
of Tables 1 and 2.
Where a substance or group of substances listed in Table 1 also falls within a category in Table 2, the
threshold quantities set out in Table 1 must be used.
Where a substance is not referred to in Table 1 and the substance appears to belong to more than
one of the categories referred to in Table 2, the threshold quantity of that substance is that of the
relevant category which has the lower or lowest threshold quantity.
When calculating the quantity of hazardous substances present or likely to be present at the facility,
the operator would not include:

hazardous substances that are present or likely to be present in an isolated quantity less than
2 per cent of the relevant threshold quantity; or

hazardous substances that are solely the subject of intermediate temporary storage, while in
transit by road or rail (unless it is reasonably foreseeable that, despite the transitory nature of
the storage, hazardous substances are or are likely to be present frequently or in significant
quantities.
Threshold quantity of more than one hazardous substance
In the case of a facility where no individual substance is present in a quantity above or equal to the
relevant threshold quantities, the following rules shall be applied to determine the application of the
new regulations to the facility.
If the sum —
q1/QL1 + q2/QL2 + q3/QL3 + q4/QL4 + q5/QL5 + ... is greater than or equal to 1, where —

q1 = the quantity of hazardous substance 1 (or category of hazardous substances); and

QL1 = the relevant qualifying quantity for substance or category 1 from Column 4 of Table 1 or
2,
then the operator of the facility would be required to notify WorkSafe NZ, and the facility may be
designated as a major hazard facility.
If the sum —
q1/QU1 + q2/QU2 + q3/QU3 + q4/QU4 + q5/QU5 + ... is greater than or equal to 1, where —

q1 = the quantity of hazardous substance 1 (or category of hazardous substances); and

QU1 = the relevant qualifying quantity for substance or category 1 from Column 5 of Table 1
or 2,
then the operator of the facility would be required to notify WorkSafe NZ, and the facility must be
designated as a major hazard facility.
143 | P a g e
Table 1: Named substances
Column 1 Column 2
Column 3
Column 4
Column 5
(lower)
(upper)
Item
Hazardous substance
UN no.
Quantity (tonnes)
1
ACETONE CYANOHYDRIN
1541
2
20
2
ACETYLENE
1001
5
50
3
ACROLEIN
1092
20
200
4
ACRYLONITRILE
1093
20
200
5
ALLYL ALCOHOL
1098
2
20
6
ALLYLAMINE
2334
20
200
7
AMMONIA, ANHYDROUS, LIQUEFIED or 1005
AMMONIA SOLUTIONS, relative density less
than 0.880 at 15 degrees C in water, with more
than 50% ammonia
20
200
8
AMMONIUM NITRATE-BASED FERTILISERS
1,250
5,000
2067
2068
2069
2070
9
AMMONIUM NITRATE, with not more than 1942
0.2% combustible substances, including any
organic substance calculated as carbon, to the
exclusion of any other added substance
350
2,500
10
ARSENIC PENTOXIDE, Arsenic (V) acid and other 1559
salts
10
10
11
ARSENIC TRIOXIDE, Arsenious (III) acid and 1561
other salts
0.1
0.1
12
ARSINE
2188
0.2
1
13
BROMINE or BROMINE SOLUTIONS
1744
20
100
14
CARBON DISULFIDE
1131
20
200
15
CHLORINE
1017
10
25
16
ETHYL NITRATE
1993
5
50
17
ETHYLENE DIBROMIDE
1605
5
50
18
ETHYLENE OXIDE
1040
5
50
19
ETHYLENEIMINE
1185
10
50
20
FLUORINE
1045
10
25
21
FORMALDEHYDE
1198
5
50
2209
144 | P a g e
Column 1
Column 2
Column 3
Column 5
(lower)
(upper)
Item
Hazardous substance
22
HYDROFLUORIC ACID SOLUTION (greater than 1790
50%)
5
50
23
HYDROGEN
1049
5
50
24
HYDROGEN CHLORIDE
1050
25
250

Anhydrous
2186

Refrigerated Liquid
2
20
25
HYDROGEN CYANIDE
UN no.
Column 4
1051
Quantity (tonnes)
1614
26
HYDROGEN FLUORIDE
1052
5
50
27
HYDROGEN SULFIDE
1053
5
50
28
LEAD ALKYLS
5
50
29
LP GASES
50
200
50
200
1011
1012
1075
1077
1978
30
METHANE or NATURAL GAS
1971
1972
31
METHYL BROMIDE
1062
20
200
32
METHYL ISOCYANATE
2480
0.15
0.15
33
NICKEL COMPOUNDS in inhalable powder form
(nickel monoxide, nickel dioxide, nickel
sulphide, trinickel disulphide, dinickel trioxide)
1
1
34
OXIDES OF NITROGEN, including nitrous oxide, 1067
nitrogen dioxide and nitrogen trioxide
1070
5
50
200
2,000
1660
1975
2201
2421
35
OXYGEN
1072
1073
145 | P a g e
Column 1
Column 2
Item
Hazardous substance
36
PETROLEUM
PRODUCTS:
gasolines
and
naphthas; kerosenes (including jet fuels); gas
oils (including diesel fuels, home heating oils
and gas oil blending streams
37
PHOSGENE
38
PHOSPHORUS TRIHYDRIDE (PHOSPHINE)
39
POTASSIUM NITRATE-BASED FERTILISERS
40
PROPYLENE OXIDE
41
Column 3
UN no.
Column 4
Column 5
(lower)
(upper)
Quantity (tonnes)
2,500
25,000
1076
0.3
0.75
2199
0.2
1
1,250
5,000
1280
5
50
PROPYLENEIMINE
1921
20
200
42
SODIUM CHLORATE, solid
1495
20
200
43
SULFUR DICHLORIDE
1828
1
1
44
SULFUR DIOXIDE, liquefied
1079
20
200
45
SULFURIC ANHYDRIDE (Alt. SULFUR TRIOXIDE)
1829
15
75
46
TITANIUM TETRACHLORIDE
1838
50
500
47
TOLUENE DIISOCYANATE
2078
20
200
48
The following CARCINOGENS at concentrations
above 5% by weight: 4-Aminobiphenyl and/or
its salts, Benzotrichloride, Benzidine and/or
salts, Bis (chloromethyl) ether, Chloromethyl
methyl ether, 1,2-Dibromoethane, Diethyl
sulphate,
Dimethyl
sulphate,
Dimethylcarbamoyl chloride, 1,2-Dibromo-3chloropropane,
1,2-Dimethylhydrazine,
Dimethylnitrosamine, Hexamethylphosphoric
triamide, Hydrazine, 2-Naphthylamine and/or
salts, 4-Nitrodiphenyl and 1,3-Propanesultone
0.5
2
146 | P a g e
Table 2: Categories of substances not specifically named
Column
Column 2
Column 3
1
Column 4
Column 5
(lower)
(upper)
Item
Material
HSNO Hazard classification
Quantity (tonnes)
1
Explosive
substances
Class 1.1A (substances and articles that 1
have a mass explosion hazard)
10
All other explosives of class 1.1 (substances 10
and articles that have a mass explosion
hazard)
50
Class 1.2 (substances and articles that have
a projection hazard but not a mass
explosion hazard)
Class 1.5 (very insensitive substances that
have a mass explosion hazard)
Class 1.3 (substances and articles that have 50
a fire hazard and either a minor blast
hazard or a minor projection hazard, or
both, but not a mass explosion hazard)
200
Class 1.4G Fireworks (UN 0336)
Class 1.4S Fireworks (UN 0337)
2
Flammable
substances
Class 2.1.1A
hazard)
(flammable
gases:
high 20
200
Class 3.1A (flammable liquids: very high 50
hazard)
200
Class 3.2A (liquid desensitised explosives:
high hazard)
Class 3.1B (flammable liquid: high hazard)
5,000
50,000
Class 3.1C (flammable liquids: medium
hazard)
Class 3.2B (liquid desensitised explosives:
medium hazard)
Class 4.1.2A to 4.1.2F
substances: type A)
(self-reactive 50
Class 4.1.3A (solid desensitised explosives:
high hazard)
Class 4.1.3B (solid desensitised explosives:
medium hazard)
147 | P a g e
200
Column
1
Column 2
Item
Material
Column 3
HSNO Hazard classification
Column 4
Column 5
(lower)
(upper)
Quantity (tonnes)
Class 4.2A (spontaneously combustible 50
substances: pyrophoric substances: high
hazard)
200
Class 4.2B (spontaneously combustible
substances:
self-heating
substances:
medium hazard)
Class 4.3A (solids that emit flammable gas 50
when in contact with water: high hazard)
200
Class 4.3B (solids that emit flammable gas
when in contact with water: medium
hazard)
3
Oxidising
substances
Class 5.1.1A (oxidising substances that are 50
liquids or solids: high hazard)
200
Class 5.1.1B (oxidising substances that are
liquids or solids: medium hazard)
Class 5.1.2A (oxidising substances that are
gases)
4
5
Peroxides
Toxic
substances
Class 5.2A (organic peroxides: type A)
10
50
Class 5.2B (organic peroxides: type B) to 50
class 5.2F (organic peroxides: type F)
200
Class 6.1A (substances that are acutely 5
toxic)
20
Class 6.1B (substances that are acutely 50
toxic)
200
Class 6.1C (substances that are acutely
toxic)
Question 150:
Do you have any comments on the proposed threshold quantities for
individual hazardous substances or categories of hazardous substances?
Question 151:
Do you agree with the proposed threshold calculation? Why/why not?
148 | P a g e
Duties of operators
Identification and assessment of major accident hazards
The new regulations would ensure that operators develop and maintain an appropriate focus on the
management of hazards having the potential to cause a major accident.
Operators would be required to carry out a formal safety assessment for the operation of the major
hazard facility that identifies:

all major accidents that could occur during operations at the major hazard facility

all hazards having the potential to cause a major accident

the risk associated with each of those hazards, including the likelihood and consequences of
each potential major accident28

the range of control measures considered; and

the elimination, prevention, reduction, and mitigation control measures that will be
implemented to reduce risks so far as is reasonably practicable.
The operator would be required to document all aspects of the safety assessment, including the
methods used in the investigation and analysis and the reasons for deciding which control measures
to implement.
Determining whether risks have been minimised so far as is reasonably practicable involves an
assessment of the risk to be avoided, and an assessment of the sacrifice (in money, time and effort)
involved in taking measures to avoid that risk, and a comparison of the two. A risk may sit on a
spectrum from very low (where it is very unlikely that it would be possible to reduce the risk further)
through to levels of risk that are very high. The greater the initial level of risk under consideration,
the greater the effort likely to be required to demonstrate that risks have been minimised so far as is
reasonably practicable, however, just because the initial level of risk may be low doesn’t mean it
may not be reasonably practicable to reduce it further. The basis on which the comparison is made
involves the test of ‘gross disproportion’.
Gross disproportion – if a measure is practicable and it cannot be shown that the cost of the
measure is grossly disproportionate to the benefit gained; then the measure is considered
reasonably practicable and must be implemented. The criterion is reasonably practicable not
reasonably affordable: justifiable cost and effort is not determined by the budget
constraints/viability of a project.
In the great majority of cases, a decision can be made by referring to existing ‘good practice’ that has
been established. However, for complex situations it may be difficult to reach a decision on the basis
of ‘good practice’ alone. In these situations other decision-making techniques will need to be
applied.
There is no single correct way to “demonstrate” whether risks have been minimised so far as is
reasonably practicable. However, it is expected that for each major accident identified for the
facility, the demonstration would contain elements of the following process:

identification and consideration of a range of potential measures for risk reduction (both
those adopted and those rejected);
28
Any risk identified as intolerable during the assessment process must be reduced until tolerable, before further
considering additional reduction to ensure those risks are minimised so far as is reasonably practicable.
WorkSafe NZ will be establishing tolerability criteria
149 | P a g e

systematic analysis of each of the identified measures and a view formed on the safety benefit
associated with each of them;

evaluation of the reasonable practicability of the identified measures and the adoption or
rejection of each; and

recording of the process and results, to be summarised in the safety case.
Clearly, the balance between benefits in terms of reduced risk and the costs of control measures will
play a part in achieving and justifying ‘so far as is reasonably practicable’. For example, if a control
measure has a benefit that greatly outweighs the cost, this control measure would almost always
have to be implemented, or very good reasons provided for not doing so. In contrast, if the cost
greatly outweighs the benefit, demonstrating that the control measure is not appropriate is
straightforward, as other options will almost certainly exist that are able to achieve a similar level of
risk reduction at lower cost. If benefits and costs are both high, or are both low, more careful
consideration may be required before selecting or rejecting control measures.
The operator may be able to rank available control measure options according to their benefits and
costs in qualitative or quantitative terms. This will enable the operator to show that the appropriate
balance has been achieved, where further steps to reduce risk would incur unreasonably high cost
with little gain.
Question 152:
Do you have any comment(s) on the proposal to require operators to carry
out a formal safety assessment for the operation of a major hazard facility?
Safety management system
Operators would be required to establish and implement a safety management system for the
operation of the major hazard facility.
A safety management system should provide a comprehensive and integrated system for the safe
operation of the major hazard facility. An effective safety management system generates an
enhanced safety culture and provides the necessary management environment for an organisation
to readily identify and resolve systemic safety problems. A safety management system should
include the operator’s overall aims and principles of action with respect to the control of major
accident hazards. The following issues would need to be addressed by a safety management system:

organisation and personnel — the roles and responsibilities of personnel involved in the
management of major hazards at all levels in the organisation. The processes for ensuring that
these persons have the necessary knowledge, skills, and abilities to meet their responsibilities
and perform their job safely and effectively. The arrangements for establishing safe and
effective working relationships with contractors and sub-contractors.

identification and evaluation of major hazards — adoption and implementation of
procedures for systematically identifying major hazards arising from normal and abnormal
operation and the assessment of their likelihood and severity.

operational control — adoption and implementation of procedures and instructions for safe
operation, including maintenance of plant, processes, permit-to-work systems, equipment and
temporary stoppages. The arrangements for independent29 and competent persons to verify
that safety-critical elements are or will be suitable and will remain in good repair and
condition throughout the life cycle of the facility.
29
It is important that those carrying out verification work (whether in-house or third party) have appropriate levels
of impartiality and independence from pressures, especially of a financial or operational nature, which could
affect sound judgement. They should not verify their own work, and their management lines should be separate
from those people whose work they are checking.
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
human factors – the arrangements for ensuring that equipment, displays and alarms, work
practices and procedures, work management and authorisation, task design, and individual or
team workload all properly address human factors.

management of change — adoption and implementation of procedures for ensuring that
changes in organisation, personnel, procedures, practices, plant, or equipment do not
introduce new major accident hazards or impact on risk control measures for existing major
accident hazards.

planning for emergencies — adoption and implementation of procedures to identify
foreseeable emergencies by systematic analysis and to prepare, test and review emergency
plans to respond to such emergencies.

monitoring performance — adoption and implementation of procedures for the routine
checking that activities under the safety management system are actually being conducted
(and to a suitable standard), and the mechanisms for investigation and taking corrective
action in the case of non-compliance. The procedures should cover the operator’s system for
reporting major accidents or near misses, particularly those involving failure of protective
measures, and their investigation and follow-up on the basis of lessons learnt.

audit and review — adoption and implementation of procedures for checking that the safety
management system is understood and is being complied with and that the management
framework (in particular the monitoring and corrective action processes) is being
implemented and is effective. The procedures must include provision for the documented
review of performance of the safety management system and its updating by senior
management.
Question 153:
Do you have any comments on the proposal to require operators to
establish and implement a safety management system for the operation of
a major hazard facility?
Emergency preparedness
Emergency preparedness seeks to minimise the effect of an incident both inside and outside a
facility, and requires the timely application of defined procedures by people with adequate training
and resources. For this to occur, plans and procedures specific to relevant activities at the facility
must have been developed, documented and tested prior to the occurrence of an event.
A major hazard facility’s emergency plan is intended to limit the magnitude and severity of the
health and safety consequences of an incident, including all major accidents, both on-site and offsite.
In July 2013, the Government agreed that the new regulations would require the operator of a major
hazard facility to prepare an emergency plan for the facility [CAB Min (13) 24/11 refers]. The
emergency plan should be well-structured, succinct and:

specific to the facility and the major accident hazards identified in a risk assessment;

effective in addressing the consequences of major accidents and other emergencies, both onsite and off-site;

integrated into the facility’s safety management system;

developed (and revised) in consultation with workers, the New Zealand Fire Service and other
emergency services, the council (for the district in which the major hazard facility is located),
and operators of other closely located facilities;

understood by workers, visitors and other people likely to be affected (to the extent necessary
for them to fulfil their roles); and
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
subject to testing, review and updating at appropriate intervals.
Matters to be included in an emergency plan would be similar to those set out in Schedule 16 of the
Australian model regulations. An operator who is required to prepare an emergency plan for a major
hazard facility would not be required to prepare an emergency plan for the purposes of regulation
27 of the Hazardous Substances (Emergency Management) Regulations 2001.
We propose that an emergency plan would need to address the following:
Site and hazard detail

The location of the facility, including its street address and the nearest intersection (if any).

A map:
o
showing the site of the major hazard facility; and
o
showing land use and occupancy in the surrounding area, and any other closely
located major hazard facilities and hazardous substance storage sites; and
o
identifying all potentially hazardous inventories in the area that are known to the
operator and the location of all staging points for emergency services.

An inventory of all hazardous substances present or likely to be present at the facility, and
their location.

A brief description of the nature of the facility and its operation.

The maximum number of persons, including workers, likely to be present at the facility on a
normal working day.

The emergency planning assumptions, including emergency measures planned for identified
incidents and likely areas affected.

The protective resources available to control an incident.

The emergency response procedures.

The infrastructure (on-site and off-site) likely to be affected by a major accident.
Command structure and site personnel

The command philosophy and structure to be activated in an emergency, so that it is clear
what actions will be taken, who will take these actions and how, when and where they will be
taken.

Details of the person who can clarify the content of the emergency plan if necessary.

The contact details for, and the means of contacting, the persons at the facility responsible for
liaising with emergency services.

A list of 24-hour emergency contacts.

Arrangements for assisting emergency services and nearby facilities with control actions taken
in the surrounding area.
Notifications

Procedures for notifying the emergency services with which the emergency plan was
prepared, in the event of the occurrence of a major accident or an event that could
reasonably be expected to lead to a major accident.
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
Procedures for providing the local community and the council (for the area in which the
facility and the surrounding area are located) with information about the major accident, after
a major accident has occurred.

On-site and off-site warning systems.

Contact details for emergency services and other support services that can assist in providing
resources and implementing evacuation plans in the event of a major accident.

On-site communication systems.
Resources and equipment

On-site emergency resources, including emergency equipment, personnel, gas detectors, wind
velocity detectors, sand, lime, neutralising agents, absorbents, spill bins and decontamination
equipment.

Off-site emergency resources, including arrangements for obtaining additional external
resources (specific to the likely major accidents) to assist the control of major accidents and
major accident hazards.
Procedures

Procedures for the safe evacuation of, and accounting for, all people on site.

Procedures and control points for utilities, including gas, water and electricity.

Procedures for the control of any incident involving hazardous substances.

Procedures for decontamination following an incident involving hazardous substances.
We propose that the operator, when preparing the emergency plan, should also be required to
consult with: the emergency service organisations with responsibility for the area in which the
facility is located; and in relation to the off-site health and safety consequences of a major accident
occurring, the council for the area in which the facility is located. This proposal is consistent with
regulation 557(2) of the Australian model regulations.
Consistent with regulation 557(3) and (4) of the Australian model regulations, if emergency service
organisations give the operator a written recommendation about the content or effectiveness of the
emergency plan, then the operator would be required to revise the plan in accordance with the
recommendation or identify an alternative means for achieving the outcome sought by the
recommendation. The operator would also be required to have regard for any recommendation
given by the council for the area in which the facility is located.
We propose that the operator would be required to keep a copy of the plan at the facility and give a
copy to the emergency service organisations, which were consulted, and any other relevant
emergency service organisations.
Consistent with regulation 33 of the HSNO Emergency Management regulations, we propose that an
operator would be required to test their emergency plan at least every 12 months; and the test must
demonstrate that every procedure or action in the plan is workable and effective. Furthermore, if
there is a change to the persons, procedures, or actions specified in the emergency plan, then the
plan must be tested within 3 months of the change. The test must demonstrate that the changed
persons can perform their functions under the plan; and each changed procedure or action is
workable and effective. The results of every test would need to be documented and retained for at
least 2 years.
Question 154:
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Do you have any comments in relation to the matters that would need to
be included in an emergency plan?
Question 155:
Do you have any comments in relation to the proposal that would require
an operator to consult with the local council, when preparing an
emergency plan, in relation to the off-site health and safety consequences
of a major accident occurring?
Question 156:
Do you have any comments in relation to the proposal that would require
an operator to provide a copy of the emergency plan to every person
identified in the plan as being responsible for executing it (or a specific part
of it) and to every emergency service provider?
Question 157:
Do you have any comments in relation to the proposal that would require
an operator to test their emergency plan at least every 12 months in order
to demonstrate that every procedure or action in the plan is workable and
effective?
Question 158:
Do you have any comments in relation to the proposal that would require
an operator to test their emergency plan within 3 months of any change to
the persons, procedures, or actions specified in the emergency plan in
order to demonstrate that the changed persons can perform their
functions under the plan and each changed procedure or action is workable
and effective?
Design notice
It is essential that operators give appropriate consideration to health and safety at the earliest
stages of design of a proposed major hazard facility. This is when decisions are taken that will
profoundly influence levels of risk over the whole life of the facility. Many of these decisions will be
extremely difficult to change once it is built. At the design stage the most recent and best practice on
the design of structures, layout and equipment, and use of materials can be applied at least cost. It
also provides scope for innovative and cost-effective approaches to ‘safety by design’ or ‘inherent
safety’. Eliminating risks at source, through good design, is preferable to retrospective or mitigating
action. A systematic assessment at this stage enables a range of options to be identified, from which
the most cost-effective choice can be made to minimise risks to people so far as is reasonably
practicable.
To provide WorkSafe NZ with the opportunity to challenge an operator’s concept selection, design,
and consideration of inherent safety at an appropriately early stage, we propose that the new
regulations would require operators of proposed major hazard facilities to send a design notice to
WorkSafe NZ after initial design for the facility has been completed and before making a final
investment decision. An operator would not need to submit a design notice to WorkSafe NZ if they
propose to modify an existing facility. Where an operator proposes to modify an existing facility, and
the proposed modification is not adequately addressed in the safety assessment, emergency plan,
safety management system, and safety case, then the operator would be required to review and if
necessary revise these documents.
At this early stage the amount of detail available will be limited. The notice would only need to
include information available at the time, though any subsequent material changes must also be
notified to WorkSafe NZ, in the period before submitting a safety case.
The aim of the notice is to start a dialogue between the operator and WorkSafe NZ that continues
throughout the period between the design notice and the safety case submission. WorkSafe NZ will
indicate in writing any matters which, if not taken into account in the detailed design or at the
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construction or commissioning stages, may create difficulties with accepting the subsequent safety
case.
The design notice would need to contain the following:

a description of the chosen design concept, including suitable diagrams

a description of how the chosen design concept is intended to eliminate the risks associated
with each major accident hazard so far as is reasonably practicable or, if it is not reasonably
practicable to eliminate those risks, then minimise those risks so far as is reasonably
practicable

a general description of the means by which the management system of the operator will
ensure that the structure and plant of the facility will be designed, selected, constructed, and
commissioned in a way that will minimise, so far as is reasonably practicable, the risks
associated with each major accident hazard

a description of the nature of the facility and its operation, including a description of on-site
activities and processes that involve hazardous substances

a description of the table 1 or 2 hazardous substances and any other hazardous substances
expected to be present at the facility, including: their identity; their quantity; their physical,
chemical, and toxicological characteristics (and any other hazardous characteristics); their
physical and chemical behaviour under normal conditions of use or under foreseeable
abnormal conditions

a description of the chemical and physical processes associated with the hazardous substances
present at the facility

a diagram of the facility’s general layout, showing the main process units, the main storage
areas, and major accident hazards and initiators; and

a detailed scale plan of the facility and its surrounding area, showing: topographical
information; land use, occupancy and activities in the surrounding area and any other closely
located major hazard facilities and hazardous substance storage sites; and the location of any
identified external conditions that could affect the safety of the major hazard facility.
Question 159:
Do you have any comments on the proposal to require operators of
proposed major hazard facilities to send a design notice to WorkSafe NZ
after initial design for the facility has been completed and before making a
final investment decision?
Question 160:
Do you have any comments in relation to the particulars that would need
to be addressed by a design notice?
Safety case – what is a safety case?
A safety case is a written presentation of technical, management and operational information about
the hazards and risks that may lead to a major accident at a major hazard facility, and the control of
those hazards and risks. In the safety case, the operator provides justification for the measures the
operator has taken or will take to ensure the safe operation of the facility. By focusing attention on
the prevention of major accidents, the safety case can improve safety at the facility.
The safety case must demonstrate the adequacy of control measures the operator will implement to
manage risks associated with major accidents that may occur. The safety case must also
demonstrate that the safety management system will control risks that could lead to – and arise
from – a major accident.
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It is critical that the measures outlined in the safety case are strictly implemented and adhered to by
the staff of the facility on a day to day basis. It is also critical that the safety case is reviewed
throughout the life of the project and updated if improvements are identified.
Safety case – requirements
In July 2013, the Government agreed that the operator of a designated major hazard facility would
be required to prepare a safety case for the facility [CAB Min (13) 24/11 refers].
We propose that the new regulations would require the operator of a proposed facility to provide
WorkSafe NZ with a completed safety case at least six months before commencing operations at the
facility. The safety case would need to be accepted by WorkSafe NZ before the facility may operate.
The operator of an existing facility, which is designated as a major hazard facility, would be required
to provide WorkSafe NZ with a completed safety case within 24 months of the facility being
designated. During this time, the operator would be able to continue operations without there being
an accepted safety case for the facility until such time as WorkSafe NZ has completed its assessment
of the safety case. In the event that WorkSafe NZ rejects the safety case and any subsequent
amendment to the safety case, then the operator would have to make the facility safe and cease
activities as there is not an accepted safety case for the facility.
Safety case – coordination for multiple facilities
The new regulations would also enable WorkSafe NZ to require the operators of 2 or more major
hazard facilities (in the vicinity of each other) to coordinate the preparation of the safety cases for
their major hazard facilities if WorkSafe NZ is satisfied on reasonable grounds that such coordination
is necessary to ensure the safe operation and effective safety management of any or all of those
major hazard facilities.
Safety case – contents
Consistent with Australian requirements, the safety case would need to contain the following:

a summary of the safety assessment

a summary of the safety management system

a summary of the emergency plan

a description of the consultation carried out with workers in the preparation of the safety case

a description of the nature of the facility and its operation, including a description of on-site
activities and processes that involve hazardous substances

a description of the table 1 or 2 hazardous substances and any other hazardous substances
present at the facility, including: their identity; their quantity; their physical, chemical, and
toxicological characteristics (and any other hazardous characteristics); their physical and
chemical behaviour under normal conditions of use or under foreseeable abnormal conditions

a description of the chemical and physical processes associated with the hazardous substances
present at the facility

a diagram of the facility’s general layout, showing the main process units, the main storage
areas, and major accident hazards and initiators

a description of any pipeline connected to the facility with the potential to cause a major
accident, including details of: the substances that it conveys; its dimensions and layout; its
contained volume at declared maximum allowable operating pressure; and any apparatus and
works intended to ensure safety
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
a detailed scale plan of the facility and its surrounding area, showing: topographical
information (including proximity to any active faults); land use, occupancy and activities in the
surrounding area and any other closely located major hazard facilities and hazardous
substance storage sites; and the location of any identified external conditions that could affect
the safety of the major hazard facility

demographic information for the local community, including surrounding land uses permitted
by the council

meteorological data relevant to the estimation of the effects of any major accident

a detailed description of the equipment, processes, and procedures that are the control
measures and the performance standards for those control measures

key positions and resources (internal and external) able to intervene in the event of any failure
of a control measure

a detailed description of the arrangements in place for independent30 and competent persons
to verify that safety-critical elements are or will be suitable and will remain in good repair and
condition throughout the life cycle of the facility, including a description of: the nature and
frequency of examination and testing; review and revision arrangements; and arrangements
for the making and preservation of records; and

in relation to a proposed facility, a description of the steps that have been taken to ensure
that safety has been incorporated into the design and construction of the major hazard
facility.
The operator would need to provide, with their safety case, a signed statement that:

the information is accurate and current;

all persons to be involved in the implementation of the safety management system have the
knowledge and skills necessary to enable them to carry out their role safely and competently;

the control measures:
o
will eliminate the risk of a major accident occurring so far as is reasonably
practicable; or
o
if it is not reasonably practicable to eliminate the risk, then minimise the risk so far
as is reasonably practicable; and
o
in the event of a major accident occurring, minimise its magnitude and the severity
of its health and safety consequences so far as is reasonably practicable, control
measures.
If the operator is a body corporate, then the safety case would need to be signed by the most senior
officer of the body corporate in New Zealand.
Safety case – assessment process
The proposed safety case assessment process is consistent with the process that is already applied
to the upstream petroleum sector in New Zealand.
30
It is important that those carrying out verification work (whether in-house or third party) have appropriate levels
of impartiality and independence from pressures, especially of a financial or operational nature, which could
affect sound judgement. They should not verify their own work, and their management lines should be separate
from those people whose work they are checking.
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The proposed process would ensure that WorkSafe NZ has adequate legal powers to compel the
operator to take appropriate remedial action where the case for safety has not been made. This
does not mean that these powers will always be used or that use will be frequent. However, it
makes clear to the operator that these powers are available and will be used if necessary. In this way
it makes it more likely that the operator will take effective action in the first place — without
WorkSafe NZ having to intervene.
In relation to the safety case for a proposed facility (which is designated as a major hazard facility),
WorkSafe NZ would be required to make a decision to either accept or reject a safety case as soon as
practicable and within six months of receiving the safety case. If WorkSafe NZ is unable to make a
decision in that timeframe then it must notify the operator that it is unable to make a decision and
set out a proposed timetable for its consideration of the safety case.
In relation to the safety case for an existing facility (which is designated as a major hazard facility),
WorkSafe NZ would be required to make a decision to either accept or reject a safety case as soon as
practicable and within six months of receiving the safety case. If WorkSafe NZ is unable to make a
decision in that timeframe then it must notify the operator that it is unable to make a decision and
set out a proposed timetable for its consideration of the safety case. During this time, the operator
would be able to continue operations without there being an accepted safety case for the facility
until such time as WorkSafe NZ has completed its assessment of the safety case. In the event that
WorkSafe NZ rejects the safety case and any subsequent amendment to the safety case, then the
operator would have to make the facility safe and cease activities as there is not an accepted safety
case for the facility.
We propose that a four year transitional period will be set in the new regulations to ensure that
WorkSafe NZ has sufficient time to complete its assessment of safety cases for all the existing
facilities that will be rolling into the major hazard facility regulatory regime.
WorkSafe NZ would be required to accept the safety case if satisfied that —

the safety case contains all the information required by the regulations; and

when preparing the safety case, the operator has consulted with workers in accordance with
the regulations; and

based on the information included in the safety case, it appears that compliance with the
safety case is likely to constitute compliance with the requirements of the regulations; and

there is no reason to believe that the operator will not comply with the safety case; and

the safety case is appropriate for the installation and for the activities to be conducted at the
installation.
To give acceptance WorkSafe NZ would not need to be satisfied that compliance will be achieved —
this confirmation will be made by post-acceptance programmes of inspection and enforcement,
based on the accepted safety case. WorkSafe NZ may, when accepting a safety case, impose
limitations or conditions on the safety case that relate to the facility or the activities carried out at
the facility. For example, in relation to an existing facility that requires modification, WorkSafe NZ
may accept the safety case for the facility on the basis that the identified modification is completed
within a reasonable period of time (agreed to by WorkSafe NZ).
WorkSafe NZ would be required to reject a safety case if the safety case did not meet the acceptance
criteria.
If WorkSafe NZ rejects a safety case, it would be required to notify the operator of the reasons for
the decision and give the operator a reasonable opportunity to amend the safety case and resubmit
it for acceptance. If WorkSafe NZ rejects the amended safety case, then the operator must submit a
‘new’ safety case.
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Safety case – WorkSafe NZ may withdraw acceptance
We propose that WorkSafe NZ would have power to withdraw acceptance of a safety case if an
operator has failed to: comply with requirements set out in their safety case; comply with a notice
issued by a WorkSafe NZ inspector; or revise their safety case when required.
Before withdrawing the acceptance of a safety case, WorkSafe NZ would give the operator at least
30 days’ notice, in writing, of its intention to withdraw the acceptance, and give them the
opportunity to make a written submission in relation to the matters WorkSafe NZ should take into
account when deciding whether to withdraw acceptance.
On withdrawal of acceptance of a safety case, the operator would immediately have to make the
facility safe and then cease activities as there is no longer a safety case in place.
Generally this power would only be used in extreme circumstances where other compliance and
enforcement provisions have proved ineffective.
If acceptance of a safety case is withdrawn, the operator may submit a ‘new’ safety case for
acceptance.
If an operator believes that WorkSafe NZ’s decision to withdraw acceptance of the safety case is
invalid, then the operator has the ability to seek a judicial review of WorkSafe NZ’s decision.
Question 161:
Do you have any comments on the proposal that would require the
operator of a proposed facility to provide WorkSafe NZ with a completed
safety case at least six months before commencing operations at the
facility?
Question 162:
Do you have any comments on the safety case process including comments
in relation to the information that a safety case should contain or the
proposed safety case assessment process?
Question 163:
Do you have any comments on the proposal that WorkSafe NZ would have
power to withdraw acceptance of a safety case?
Question 164:
What do you estimate to be the benefits of the proposal, in terms of
avoided costs associated with a major accident? (Please quantify these
impacts and express in dollar terms to the extent practical.)
Review of risk management
The new regulations would require the operator of a major hazard facility to review and as necessary
revise the safety assessment, emergency plan, safety management system, and safety case in any of
the following circumstances:

31
a ‘change or proposed change’31 at the major hazard facility is proposed that has or would
have the effect of:
A ‘change or proposed change’ at a major hazard facility would mean a change or proposed change of any
kind, including any of the following: a change to any plant, structure, process, hazardous substance, or other
substance used in a process, including the introduction of new plant, a new structure, a new process or a new
hazardous substance; a change to the quantity of table 1 or 2 hazardous substances present or likely to be
present at the facility; a change to the operation, or the nature of the operation, of the facility; a change in the
workers’ safety role; a change to the facility’s safety management system; or an organisational change at the
major hazard facility (including a change in its senior management).
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o
creating a major accident hazard that has not previously been identified; or
o
significantly increasing the likelihood of a major accident occurring; or
o
in relation to a major accident that may occur, significantly increasing its magnitude
or the severity of its health and safety consequences;

a control measure no longer minimises the risk so far as is reasonably practicable;

a new major accident hazard, or risk associated with that hazard, is identified;

the results of consultation with members of the workforce indicate that a review is necessary;

a Health and Safety representative requests a review (if they reasonably believe that any of
the abovementioned circumstances may affect the health and safety of a member of the
workforce and the operator has not adequately conducted a review in response to the
circumstance); or

WorkSafe NZ requests a review.
Any revisions that make a material change to the safety case would need to be accepted by
WorkSafe NZ before the revisions are implemented.
The operator would be required to submit a version of the current safety case, which incorporates
the proposed revisions, to WorkSafe NZ as soon as practicable after the proposed revisions are
made. WorkSafe NZ would then be required to make a decision within 30 days of receiving the
revisions.
If WorkSafe NZ is unable to make a decision in that 30 day timeframe then it must notify the
operator that it is unable to make a decision and set out a proposed timetable for its consideration
of the proposed revisions to the safety case.
If WorkSafe NZ rejects the proposed revisions to the safety case, then it would be required to notify
the operator of the reasons for the decision and give the operator a reasonable opportunity to
amend the proposed revisions and resubmit them for acceptance. If WorkSafe NZ rejects the
amended revisions to the safety case, then the accepted safety case for the facility would continue
to have effect.
The new regulations would also require the operator of a major hazard facility to submit a revised
safety case to WorkSafe NZ every five years after the original safety case acceptance.
Question 165:
Do you have any comments in relation to the proposal to require operators
to review and as necessary revise the safety assessment, emergency plan,
safety management system, and safety case?
Information for local community and council
The objective of the new regulations is to prevent major accidents occurring at major hazard
facilities and to protect persons from the effects of such major accidents should one occur. Persons
may be on-site (members of the workforce) or off-site (members of the local community around the
facility).
To help achieve this objective, the operator of a major hazard facility would be required to provide
the local community32 and the council for the district in which the major hazard facility is located
32
This would be limited to occupants within the area where the individual risk of fatality from potential foreseeable
-7
incidents is greater than or equal to 1x10 per year (the inner zone) and possibly the area where the
consequence of a credible incident is not likely to cause a fatality but persons present may suffer some
adverse effects or have difficulty responding to an emergency that may result in injury or harm (the outer zone).
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with general information about the facility’s operations, how the community would be notified if a
major accident occurs, and what the community should do if a major accident occurs.
An informed community is in a better position to protect itself in the event of a major accident with
off-site impact, thereby reducing the actual consequences of the major accident.
If a major accident does occur, the operator would be required to take reasonable steps to provide
the local community and council with information about the major accident, including:

a general description of the major accident. This may include the nature of the incident (fire,
explosion etc.), details of the hazardous substances involved and the likely consequences and
impacts;

the recommended actions that the council and members of the local community should take
to eliminate or minimise risks to health and safety; and

following the major accident, a description of the actions the operator has taken and proposes
to take to prevent any recurrence of the major accident or the occurrence of a similar major
accident.
There are a number of other benefits in providing information to the community and council for the
district in which the major hazard facility is located. These include:

an opportunity to provide correct information (or dispel misinformation) to the community
about the facility and its operations;

assurance to the community that their interests have been, and are being, taken into account;

a raised awareness of actions to be taken by the community if there is a major accident;

assurance to the community after a major accident that measures are being taken to prevent
recurrence;

increased awareness by the facility operator of community concerns; and

improved relations and increased trust between the community, council, and facility operator.
Question 166:
Do you have any comments on the proposal to require operators to
provide the local community and the council (for the district in which the
major hazard facility is located) with information about the facility, its
operations, how the community would be notified if a major accident
occurs, and what the community should do if a major accident occurs?
Notification and reporting of dangerous incidents
A dangerous incident is an incident or ‘near miss’ event that in different circumstances could have
led to a major accident.
Regulators in overseas jurisdictions, including Australia, usually require dangerous incidents to be
notified and reported for three primary purposes:

to provide timely information on matters which may require an urgent regulatory response
(Investigation);

to gather information which can subsequently inform the planning and targeting of regulatory
interventions (Intelligence); and

to secure statistical information regarding dangerous incidents that helps to identify and track
trends and progress, target activities, and inform guidance on prevention (Statistics).
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The proposed new Act requires a PCBU to notify WorkSafe NZ (by phone or in writing)
immediately after becoming aware of any incident that exposes a worker or any other person to
a serious risk to that person’s health or safety arising from an immediate or imminent exposure
to —

an escape, spillage, or leakage of a substance; or

an implosion, explosion, or fire; or

an escape of gas or steam; or

an escape of a pressurised substance; or

electric shock; or

the fall or release from a height of any plant, substance, or thing; or

the collapse, overturning, failure or malfunction of, or damage to, any plant that is
required to be authorised for use in accordance with the regulations; or

the collapse or partial collapse of a structure; or

the collapse or failure of an excavation or any shoring supporting an excavation; or

the inrush of water, mud, or gas in workings in an underground excavation or tunnel; or

the interruption of the main system of ventilation in an underground excavation or tunnel;
and
includes any other incident prescribed by regulations.
We propose that the new regulations would expand on this list to include the following dangerous
incidents:

damage to, or failure of, a safety critical element that required intervention to ensure it will
operate as designed;

any unplanned event (other than false alarm) that required the emergency response plan to
be implemented; and

any event that did not cause, but might reasonably have caused, a major accident.
The new regulations would also provide for WorkSafe NZ to request that the operator prepare a
detailed written report on any dangerous incident within 30 days of the incident or at a later date
specified by WorkSafe NZ. The written report would need to include a root cause analysis of the
incident and detail any actions that will be taken to prevent recurrence of any similar incident.
Question 167:
Do you have any comments in relation to the proposal to require operators
to notify WorkSafe NZ of dangerous incidents?
Implement a safety role for the workers
Consistent with regulation 574 of the Australian model regulations, we propose that the operator of
a major hazard facility would be required to implement a safety role for the workers at the facility
that enables them to contribute to the identification of:

all major accidents that could occur during operations at a major hazard facility;

all hazards having the potential to cause a major accident;
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
the risk associated with each of those hazards, including the likelihood and consequences of
each potential major accident;

the range of control measures considered; and

the elimination, prevention, reduction, and mitigation control measures that will be
implemented to reduce risks so far as is reasonably practicable.
Question 168:
Do you have any comments on the proposal to require an operator to
implement a safety role for the workers at a major hazard facility?
Duty to consult with workers
In July 2013, the Government agreed that the operator of a major hazard facility would be required
to consult with workers at the facility in relation to:

the preparation, testing, implementation, and review of the emergency plan;

the establishment, implementation, and review of the safety management system; and

the preparation and review of the safety case; and

any review of the safety assessment [CAB Min (13) 24/11 refers].
In addition to the above, we propose that the operator of a major hazard facility would be required
to consult with workers at the facility in relation to the implementation of the workers’ safety role at
the facility. This addition would make the duty to consult with workers more consistent with
regulation 575 of the Australian model regulations.
To prepare an adequate safety management system, emergency plan, or safety case requires a
range of skills and knowledge. However they are unlikely to be successful in achieving their aims if
they do not take advantage of the substantial knowledge of the workforce.
Worker involvement is necessary because they are directly affected by inadequate safety
performance and will know what happens in practice and why.
Involving workers frequently leads to the discovery of more efficient and safer ways of doing things.
It also enables individuals to see how their individual effort fits into the bigger picture of operating
the facility safely. This is of itself beneficial, making it more likely workers will do the right thing
because they know why it is right rather than relying on a culture of workers doing what they are
supposed to, because that is what the rules say.
For these reasons, operators in Australia are required to demonstrate to the regulator that they
have effectively involved the workforce in the preparation and review of the facility’s safety
management system, emergency plan, or safety case.
Question 169:
Do you have any comments on the proposal to require an operator to
consult with workers at the facility in relation to the implementation of the
workers’ safety role at the facility?
Land use planning near a major hazard facility
The inter-relationship between land use planning and major hazard facilities is complex. The
proposed new regulations for major hazard facilities do not provide WorkSafe NZ with any
regulatory powers or controls in relation to land use planning. Nor are any changes to the RMA
proposed. Nevertheless, it is important that land use planning minimises exposure of people close to
a major hazard facility.
Councils need to have a good understanding of the nature and extent of risks associated with a
major hazard facility in order to ensure that exposure to risks from potential low likelihood-high
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consequence incidents at existing major hazard facilities is not increased by new developments or
changes in land use surrounding them.
Under the new regulations for major hazard facilities, WorkSafe NZ will have ready access to
detailed information about the nature and extent of risks that may potentially affect the surrounding
land (via an operator’s safety case). It would therefore be prudent for a council to seek information
from WorkSafe NZ to assist them in deciding the appropriateness of a proposed use or development
of land close to an existing major hazard facility. Equally, it may be appropriate for WorkSafe NZ to
foster ongoing and regular contact with the planning and consenting divisions of councils (as well as
their asset managers and civil defence groups) where major hazard facilities exist.
This type of coordination between councils and the health and safety regulator is a key feature of
the major hazard facility regimes in Australia and the United Kingdom. In Victoria, councils often
seek information from the health and safety regulator to assist them in deciding the appropriateness
of a proposed use or development of land close to a major hazard facility. Using this information,
councils may set ‘planning advisory areas’ around major hazard facilities based on the level of risk of
fatality from potential foreseeable incidents. Within these planning advisory areas, councils may
then choose to restrict land use or developments to low density industrial uses, which minimises the
numbers of people that might be affected by a low likelihood-high consequence incident and
maximises the likelihood of people safely responding to an emergency. Guidance has been
developed in Victoria by the health and safety regulator to support councils in making these planning
decisions near major hazard facilities.
In New Zealand, WorkSafe NZ and the Ministry for the Environment wish to encourage increased
coordination between councils and WorkSafe NZ in relation to land use planning near major hazard
facilities. We are interested to hear your views on how this may best be achieved.
Question 170:
How should coordination between councils and WorkSafe NZ be
encouraged in relation to potential major hazard facilities and
developments in the vicinity of existing major hazard facilities?
Cost recovery
On 15 July 2013, the Government agreed that the costs associated with regulating major hazard
facilities should be recovered from facility operators [CAB Min (13) 24/11 refers].
This is considered appropriate as sole reliance on the HSE levy does not take into account the
disproportionate costs of providing regulatory oversight of major hazard facilities. For example,
under the new regulations WorkSafe NZ would be required to sustain a level of pro-active
enforcement activity which is above what it carries out for other sectors, and which is far more
resource-intensive, including: assessment of facility safety cases; assessment of safety case revisions;
annual or biannual inspection of individual sites; and development of technical guidance specific to
the control of major accident hazards at major hazard facilities. Furthermore, the technical skills and
experience of the inspectors carrying out these duties necessitates higher salaries than the core
inspectorate.
WorkSafe NZ is currently carrying out a risk landscape mapping exercise to confirm the number of
sites that hold quantities of table 1 or 2 hazardous substances equal to or above the proposed
threshold quantities. Until this work has been completed it is difficult to accurately cost the revenue
target for any cost recovery proposal, determine the amount each operator would need to pay, and
whether variable or fixed fees would be appropriate. Consequently, a separate round of consultation
will be carried out in relation to this matter.
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