Skip to Content, Skip to Navigation

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Caution replaces clarity

Caution replaces clarity
Article Type:
Publication Date:
New Zealand

Confusion about the legal status of two standards dealing with confined space work means employers must take extra care if they want to protect themselves from possible enforcement action, an OHS lawyer says.

The official New Zealand standard on the topic is the joint Australian and New Zealand standard AS/NZS2865:2001, Safe Working in a Confined Space, yet the WorkSafe website refers instead to an Australian standard that has no legal status in New Zealand.

This standard, AS 2865:2009 Confined Spaces, is a new version of the previous joint standard, but Standards New Zealand was not involved in its development and it has never been gazetted here. A factsheet about confined space entry on WorkSafe's website, however, describes it as the accepted current state of knowledge on the topic. NZQA also uses the Australian document in unit standards dealing with confined space.

Auckland lawyer Grant Nicholson, from Kensington Swan, says in the circumstances his advice would be to opt for the more rigorous approach whenever possible, even if that means using a combination of the two documents.

"Being compliant with the New Zealand standard is probably going to be a reasonably good defence, given that we haven't actually adopted the Australian one, but you would be taking a risk, because WorkSafe is likely to rely on whichever one sets the higher threshold and creates the stronger safety outcome."

Nicholson says one of his clients was recently served an improvement notice for failing to comply with an Australian standard, even though he was unaware of the standard and had been following the relevant New Zealand code of practice.

"By all means take the New Zealand standard as your baseline and comply with that, but if there are areas where the Australian standard requires you to do more, take a look at whether that would be practicable for your business."

An employer wanting to rely on the Australian standard alone would have to ensure there were no situations where its requirements were less demanding than the New Zealand one, he says.

Risk management consultant Chris Peace, who belongs to the Joint Standards Committee for Risk Management, says the joint and international standard on risk management, AS/NZS ISO 31000, should offer some protection to employers, regardless of which confined space standard they rely on.

"If you conduct a thorough risk assessment, using a demonstrably good process, then you should arrive at the right answer for how to get into the confined space," he says. "If the Australian standard gives specific guidance then I would be inclined to follow that, but always thinking of the context of whatever the work is here in New Zealand."


People Mentioned:
Chris Peace; Grant Nicholson
Organisations Mentioned:
WorkSafe; Standards NZ
Reference No:

From Alert24 - Safeguard Update

Table of Contents