Most business owners know HSWA exists. Fewer know what it actually requires them to do day to day. This guide skips the legislative history and focuses on the practical duties: who is responsible for what, what you need to have in place, and what happens if you do not.
Who Has Duties Under HSWA?
HSWA creates four categories of duty holder. Most small and medium businesses need to understand the first three.
| Duty holder | Who they are | Key duty | HSWA reference |
|---|---|---|---|
| PCBU | The business itself. In most cases this is the company, partnership, or sole trader | Primary duty of care: ensure the health and safety of workers and others so far as is reasonably practicable | Section 36 |
| Officer | Anyone who exercises significant influence over the management of the business. Typically directors, chief executives, and partners | Due diligence: take reasonable steps to understand the risks, ensure the business has adequate resources and processes, and verify compliance | Section 44 |
| Worker | Employees, contractors, subcontractors, labour hire workers, apprentices, and volunteer workers | Take reasonable care of their own health and safety and the safety of others. Cooperate with reasonable policies and instructions | Section 45 |
| Other persons | Visitors, customers, members of the public at or near the workplace | Take reasonable care that their actions do not adversely affect the health and safety of others | Section 46 |
The most important distinction from the old law is that Officers now have a personal duty. Under the HSE Act 1992, directors could largely delegate health and safety to someone else. Under HSWA, directors and senior managers must personally exercise due diligence. This means understanding the risks, not just signing off on a policy.
What HSWA Requires You to Do
The Act itself sets out principles and duties. The practical detail of how to meet those duties sits in the supporting regulations, particularly the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016. Together, they require every PCBU to do the following.
1. Identify hazards and manage risks
This is the core obligation. Under regulations 5 to 8 of the GRWM Regulations 2016, you must identify hazards in your workplace, assess the risks they create, implement controls using the hierarchy of controls (eliminate first, then minimise, then PPE as a last resort), and review those controls to make sure they are working.
In practice, this means having a current risk assessment and a risk register that is actually up to date.
2. Provide and maintain a safe working environment
Section 36 requires the workplace itself, and the means of entering and exiting it, to be without risks to health and safety so far as is reasonably practicable. This includes the physical condition of the site, equipment, ventilation, lighting, housekeeping, and access.
3. Ensure safe use, handling, and storage of substances and plant
If your business uses machinery, vehicles, hazardous substances, or any plant that could cause harm, you must ensure it is used, handled, and stored safely. Separate regulations cover hazardous substances specifically (the Health and Safety at Work (Hazardous Substances) Regulations 2017).
4. Provide adequate facilities
Workers must have access to adequate facilities for their welfare at work, including toilets, washing facilities, drinking water, and eating areas. This is covered in regulations 12 to 14 of the GRWM Regulations 2016.
5. Provide information, training, instruction, and supervision
Workers must be given enough information and training to do their work safely. This includes inductions for new workers, task-specific training, and ongoing supervision where the work requires it.
6. Monitor health and conditions
Where workers are exposed to health risks (noise, dust, chemicals, fatigue), you must monitor conditions and, where appropriate, provide health monitoring for workers.
7. Engage with workers
HSWA requires PCBUs to engage with workers on health and safety matters that affect them, and to have practices in place for worker participation. This is not a suggestion. It is a legal duty under Part 3 of the Act, supported by the Worker Engagement, Participation and Representation Regulations 2016.
8. Notify WorkSafe of notifiable events
If a death, notifiable injury or illness, or notifiable incident occurs, you must notify WorkSafe as soon as possible and preserve the incident scene. Sections 56 to 58 set out the requirements. Our accident investigation service covers this in detail.
What "Reasonably Practicable" Means
Almost every duty in HSWA is qualified by the phrase "so far as is reasonably practicable." This does not mean "do what you can afford." It means weighing up:
- The likelihood of the hazard or risk occurring
- The severity of harm that could result
- What the person knows, or ought reasonably to know, about the hazard and ways to eliminate or minimise it
- The availability and suitability of ways to eliminate or minimise the risk
- The cost of eliminating or minimising the risk, but only after considering the above factors
Cost comes last, not first. A PCBU cannot argue that a safety measure was too expensive without first demonstrating that the risk was low, the harm was minor, and no practical alternatives existed. Section 22 of HSWA sets this out explicitly.
What Happens if You Do Not Comply
HSWA introduced three tiers of offence with significantly higher penalties than the old HSE Act 1992.
| Offence | What it involves | Maximum fine (individual) | Maximum fine (business) |
|---|---|---|---|
| Reckless conduct (s 47) | Reckless conduct that exposes someone to a risk of death, serious injury, or serious illness | $300,000 or 5 years' imprisonment | $3,000,000 |
| Failure exposing to serious risk (s 48) | Failing to comply with a duty that exposes someone to a risk of death, serious injury, or serious illness | $150,000 | $1,500,000 |
| Failure to comply (s 49) | Failing to comply with a health and safety duty | $50,000 | $500,000 |
Officers can be prosecuted personally under section 44 if they fail to exercise due diligence. This is not theoretical. New Zealand has seen its first conviction of a CEO under HSWA, in the Gibson v Maritime New Zealand case.
What You Need in Place
HSWA does not prescribe a specific set of documents by name, but in practice most businesses need the following to demonstrate compliance.
- Health and safety policy
- Hazard register and risk assessments (current, not from five years ago)
- Emergency plan and evacuation procedures
- Incident and near-miss reporting and investigation process
- Training records and competency register
- Worker engagement and participation practices
- Contractor and subcontractor management process
- Document control and review schedule
Together, these make up your health and safety management system. If you already have one and are not sure it holds up, a gap analysis will tell you. If you do not have one and need to build it, that is an OHSMS build.
Where to Start
If you are reading this because you are not sure whether your business is meeting its HSWA duties, the most practical starting point depends on where you are now.
Frequently Asked Questions
Sources
- Health and Safety at Work Act 2015: the full text of New Zealand's primary workplace health and safety legislation. legislation.govt.nz
- HSWA section 22: the definition of "reasonably practicable." legislation.govt.nz
- HSWA section 36: the primary duty of care for PCBUs. legislation.govt.nz
- HSWA section 44: the due diligence duty for Officers. legislation.govt.nz
- Health and Safety at Work (General Risk and Workplace Management) Regulations 2016: the supporting regulations covering risk management, workplace facilities, and general duties. legislation.govt.nz
- WorkSafe New Zealand, Introduction to HSWA special guide: a plain-English summary of the key requirements under HSWA. worksafe.govt.nz