A Thoughtful Approach to H&S Amendments
We’re truly in the thick of reactions to the Health and Safety at Work Amendment Act. The Health and Safety Amendment Bill was returned with very few substantive changes from the Education and Workforce Committee and received Royal Assent to become law. It will not be put into effect in 2026; the “shake-up” has been pushed back to April 2027.
WorkSafe has recently introduced guidance products to help businesses prepare for the shift to new legislation, making the shift all the more real and imminent. The change will significantly impact Kiwi businesses, particularly those in higher-risk industries. It’s no surprise that many people and groups have strong opinions for or against the changes!
H&S thought leaders and spokespeople have expressed an array of opinions about the bill, now an act of parliament. Rather than rushing to make changes, businesses should take a thoughtful and practical look at the realities of the change for Kiwi businesses and which adjustments will be wise, necessary, or safe.
The “Big Four” of the Health and Safety at Work Amendment Act 2026
There are four main areas of interest that attracted discussion during the lead-up to the new legislation. Here’ are some thoughts on how they might impact Kiwi companies:
Prioritising of “critical risk”
The change:
The Health and Safety at Work Amendment Act states that SMEs with fewer than 20 workers (97% of New Zealand businesses, according to recent StatsNZ data) will only be required to manage “critical risks”, as defined by the amended legislation.
The potential impact:
Many organisations have spent the last decade moving towards integrated risk management approaches that consider all reasonably foreseeable harms, not just those capable of causing death or catastrophic injury. There is concern that introducing a legislated distinction between “critical” and “non-critical” risks may create confusion, reduce focus on common injury causes, and encourage some businesses to treat anything outside the definition as a lower priority.
Non-critical risks can cause incidents with long-lasting effects on employers and employees. Often, the reach of these consequences extend to ACC.
During a recent parliamentary scrutiny discussion, ACC data was referenced as indicating that firms with 1–5 workers experience higher injury rates than businesses with more than 500 workers.
This is in line with what the Emendas team observed while working on a government capability uplift programme contract. Many participating businesses required support not only with systems and accreditation requirements, but with the fundamental capability needed to consistently identify, report, record, investigate, and learn from incidents and near misses.
ACC is a taxpayer-funded programme. Increased injuries due to small businesses ignoring “non-critical risk” affects everyone. For business owners and directors, any benefit of this “simplification” of legislated safety standards will likely have to be balanced against the inconvenience of time off, turnover, and poor productivity that can be a direct result of failing to manage non-critical risk.
Working at height: return of the 3-metre rule?
The change:
The amendments appear to call back to the Health and Safety in Employment Regulations 1995 which say this under regulation 21:
“Heights of more than 3 metres
(1) In this regulation, the term employer does not include any employer who employs any employee to carry out any agricultural work in a workplace under the control of that employer.
(2) Every employer must, so far as is reasonably practicable, ensure, in relation to every workplace under the control of that employer, that, where any employee may fall more than 3 metres,—
(a) means are provided to prevent the employee from falling; and
(b) any means so provided are suitable for the purpose for which they are to be used.”
The potential impact:
There is concern that the amendments imply that “at height” will be classified as “over 3 metres”, meaning that SME employers will not be required to control risk for anyone working at lower heights.
Many serious injuries or even fatalities have been and will continue to be sustained due to falls from heights lower than three metres. As Mike Cosman, highly-regarded Health and Safety Practitioner, mentioned in a recent LinkedIn post:
“At the time of the Canterbury rebuild it was identified that continuing to apply this standard would probably lead to multiple deaths and serious injuries and hence a risk based approach was adopted which has been applied ever since.”
The wording of the amendment bill is unclear: in the comments of Mike’s post, Minister van Velden states that “this is where the catch-all test in the Bill clearly applies,” arguing that risk that could cause death or serious injury—including falls from lower heights—is covered by the updated definition of “critical risk”:
"(a) risk that is associated with a hazard described in Schedule 1A; or
(b) a risk that is associated with a hazard of any kind and that, if the risk occurs, is likely to result in any 1 or more of the following:
(i) a death:
(ii) a notifiable injury or illness:
(iii) a notifiable incident:
(iv) an occupational disease listed in Schedule 2 of the Accident Compensation Act 2001."
That may be the case, but is it clear enough? Interpretation of the law by individual employers is doing a lot of heavy lifting here, and this comes back to the stated goal of “simplification” of H&S regulation for SMEs. Is it more simple to have to assess the critical nature of each risk individually?
SME carve-out
The change:
Businesses with fewer than 20 workers will be treated differently from larger organisations in relation to certain duties, most notably the prioritisation of ‘critical risk.’
Potential impact:
The data says that 98.53% of agriculture, forestry, and fishing businesses, 97.93% of construction businesses, 95.65% of mining businesses and 91.01% of manufacturing businesses are SMEs, to name just a few of the high-risk industries. This is no small number of employers!
Questions have been raised about whether worker protections should differ based on the number of people employed by a business. It’s clear that workplace hazards do not become less harmful because an organisation is smaller. The new Act also appears at odds with injury data frequently cited by ACC and others showing that smaller businesses often experience higher rates of workplace injury than larger organisations (this is explored in further depth above under “Prioritising of “critical risk”).
The Select Committee proposed changes to how businesses work together when they share responsibility for the same work. While some changes were made to provide more structure, concerns remain that they create a two-tier system based on business size.
The aim of these changes is to simplify things, especially for smaller businesses. The practical impact may be that health and safety expectations become increasingly driven by contracts, procurement requirements, and client expectations rather than legal duties. A small contractor working for a large client may still be required to meet the same standards as before, while a similar business working for a less mature client may face lower expectations. The same small business could be in both situations!
Far from simplicity, that creates confusion and inconsistent standards. It also means that there are different levels of worker protection depending on who the client is rather than the nature of the work being undertaken, which is not a logical way to approach workplace safety.
Rebecca Macfie, NZ business writer and author of Tragedy at Pike River Mine: How and Why 29 Men Died, wrote a piece for the Listener:
“In a departure from globally accepted workplace safety practice, businesses that employ fewer than 20 workers – 97% of New Zealand firms – will be all but exempted from the legislation, except in relation to “critical risks”. It will be up to small businesses themselves to figure out whether they have critical risks that need to be managed to keep workers safe. They will do this by reading through a five-page schedule to the act, or by figuring out whether there are hazards “likely” to cause death, serious injury or illness, or any of the 50 occupational diseases listed in Schedule 2 of the Accident Compensation Act. It’s not clear whether “likely” refers to the probability of a critical risk arising on any given day, or to the probability of catastrophic harm from a risk that arises infrequently.”
Untouched prequalification systems
The change:
Confusingly, there has been no change to the convoluted web of prequalifications that exists in New Zealand.
Potential impact:
Before the bill was announced, the duplification of privately-owned prequalification schemes was one of the frustrations often expressed by contractors and criticisms made by industry commentators. Businesses can be required to complete multiple assessments covering substantially the same information for different clients. While reducing compliance costs was a stated objective of the reforms, the Act does not address the very clear expense and time burden.
The issue was publicly acknowledged by Workplace Relations and Safety Minister Brooke van Velden. In a 2025 press release, she identified prequalification duplication as a key source of compliance burden and announced work to improve guidance and consistency across the sector.
“We’re simplifying scaffolding rules and streamlining the prequalification process to make them more practical and better aligned with the level of risk.”
The lack of prequalification reform, then, is a glaring omission and one that has made many people question the motives of those pushing it.
Don’t throw the baby out with the legal bathwater
The most successful organisations won’t be those that ask, “What can we stop doing?” The ones who will navigate this change easily will be focused on continuous improvement: “what genuinely helps us run a safer, stronger and better business?”
Keep what creates value (and real safety for your people), and simplify what doesn't (where the law allows it).
There are many benefits that come with creating a safety management system to standards over and above the law. The first and foremost of these is, of course, simply safety. Not wanting your people killed, maimed, injured, or even spooked is both human decency and good business sense (that is tragic AND expensive).
The others?
Keeping up with the rest of the world
International tender opportunities are one example of this, and this goes in two directions. First, consider contracts being open to both domestic and offshore bidders. Safety standards are a big factor in decision-making for companies and agencies, and the higher safety standards of potential contractors in (for example) Australia could be the factor that tips the scale.
Conversely, if you’re in a position to tender overseas, maintaining safety standards on par with other countries is important. The independent and international ISO standards are a good global benchmark.
Attracting top talent (and clientele)
People want to work for a company that is concerned with their safety and wellbeing. Even thrill seekers: it’s one thing to die participating in a risky hobby, another to die in a preventable accident at your place of work.
A reputation for solid H&S management will help you to attract good workers. This, of course, is beneficial in endless ways: productivity, profitability, resilience, and growth, for a start. This reputation is also appealing to primary contractors, government agencies, and potential client companies. A good safety record to point to is a real asset.
Profit and productivity
Often, a company with good safety management practice is a well-oiled machine overall. Regular reviews, continuous improvement, a culture that promotes following best practice: all of these are foundational to both safe work and productive, profitable operations.
Safety failures can also be costly in both time and money, dragging down the productivity and profitability of your business. There are concerns that the focus on ‘critical risk” will see companies overlooking more low-level risk which can result in injury or health issues. Having staff out of work for recovery is never good for business!
Above all, we would advise businesses not to throw the baby out with the bathwater—that is, don’t discard useful safety practice and policy in the name of following the letter of the law (and that alone).
The goal of workplace H&S legislation is to keep people safe at work. While we understand that there is a point where rules and regulations move from effective to overly restrictive, time consuming, or complicated, there are many that are written in blood. Simplification and cost-cutting are worthy goals, but not at any cost.
With new laws will come new standards. For most businesses, the change will lessen the requirements and restrictions, not increase them. However, we recommend thinking critically about where documentation and procedures can be relaxed and where it would be advantageous to retain standards over and above what the law prescribes.