The Expedited Penalty
A new, faster enforcement pathway for health and safety failures is now operational. Your due diligence clock is ticking.
The Context
In February 2026, Minister for Workplace Relations and Safety, Brooke van Velden, announced a complete overhaul of WorkSafe NZ’s enforcement policy. The core shift is statutory: enforcement is no longer synonymous with prosecution. The regulator now possesses a formalised suite of alternative tools, including pre-charge enforceable undertakings and formal warnings. This is a direct response to a Ministerial Letter of Expectations issued in May 2025, which demanded greater consistency and alignment with the Solicitor-General’s Prosecution Guidelines. The stated aim is to move away from a perceived “heavy-handed” punitive posture. The practical effect is a more streamlined, administrative pathway to sanctions.
The Risk
Do not mistake administrative for lenient. Prosecution remains the mandated response for “significant or negligent disregard for health and safety law, repeated non-compliance, or where serious harm has occurred and deterrence is necessary.” The Health and Safety at Work Act 2015 (HSWA) imposes a primary duty of care on a Person Conducting a Business or Undertaking (PCBU). Section 44 of the HSWA explicitly provides for officer liability. An officer, as defined by the Companies Act 1993, may be personally liable if they fail to exercise due diligence to ensure the PCBU complies with its duties. A formal warning or an enforceable undertaking for the organisation may constitute prima facie evidence of such a failure. The maximum penalties are severe: for an individual, a fine not exceeding $300,000 and/or imprisonment for a term not exceeding 5 years. The 2026 reforms explicitly elevate psychosocial hazards—stress, fatigue, bullying—to the status of critical risks. Ignorance of these hazards may now be construed as negligent disregard.
The Control
Governance must be anticipatory, not reactive. Your board must immediately commission a forensic gap analysis of the organisation’s health and safety management system against the HSWA’s full obligations, with specific emphasis on psychosocial risk identification and control. This is not an operational review; it is a due diligence audit. The findings must be presented to the board, minuted, and a resourced action plan approved. Document every step. This creates the contemporaneous evidence trail required to mount a defence of exercised due diligence under Section 44.
The Challenge
These are the critical questions you should be raising at the board table:
| Where is the documented, board-approved evidence that we have proactively identified and controlled for psychosocial hazards like unsustainable workload, as required by the 2026 HSWA interpretation? | |
| If WorkSafe served us with a pre-charge enforceable undertaking tomorrow, on what specific, auditable grounds could we argue that every officer has met their due diligence duty under Section 44? | |
| Does our current liability insurance policy explicitly cover defence costs and penalties arising from a formal warning or enforceable undertaking issued under this new policy framework? |