Health & Safety

A key aspect of the HSAW is the creation of a new duty holder, known as a Person Conducting a Business or Undertaking (PCBU). A PCBU means a person conducting a business or undertaking:

• whether the person conducts a business or undertaking alone or with others; and
• whether or not the business or undertaking is conducted for profit or gain.
• The PCBU is a broad concept, which will encompass the existing duty holder categories (such as employers, principals, and persons in control of a place of work) under the Health and Safety in Employment Act 1992 (HSE Act). A PCBU does not include employees or directors of PCBUs (directors are covered as officers – see below), volunteer associations, and occupiers of a home who employ or engage another person solely to do residential work.

Why does the HSAW Act have PCBU's?

PCBU is a broad concept that reflects modern working arrangements.

The past Health and Safety in Employment Act 1992 primarily focused on the employer and employee roles. It placed duties on carefully defined participants – employers, principals, the self-employed, persons controlling a place of work, and suppliers of plant.

The PCBU concept replaces all of these duty holders. It better reflects the complex nature of the modern workplace where there can be multiple working arrangements for workers in the same location or for the same organisation. The PCBU concept recognises that a business or undertaking has an influence over the health and safety of workers, even where those workers may not be its direct employees

All PCBUs have a primary duty of care in relation to the health and safety of workers and others affected by the work carried out by the PCBU. 

Everyone is responsible

HSWA ensures that everyone has a role to play and makes everyone's responsibilities clear:

Businesses have the primary responsibility for the health and safety of their workers and any other workers they influence or direct. They are also responsible for the health and safety of people at risk from the work of their business.

Officers (company directors, partners, board members, chief executives) must do due diligence to make sure the business understands and is meeting its health and safety responsibilities.

Workers must take reasonable care for their own health and safety and that their actions don't adversely affect the health and safety of others. They must also follow any reasonable health and safety instruction given to them by the business and cooperate with any reasonable business policy or procedure relating to health and safety in the workplace.

Other people who come into the workplace, such as visitors or customers, also have some health and safety duties to ensure that their actions don’t adversely affect the health and safety of others.

The primary duty of care requires all PCBUs to ensure, so far as is reasonably practicable:

1. the health and safety of workers employed or engaged or caused to be employed or engaged, by the PCBU or those workers who are influenced or directed by the PCBU (for example workers and contractors)

2. that the health and safety of other people is not put at risk from work carried out as part of the conduct of the business or undertaking (for example visitors and customers).

The PCBU's specific obligations, so far as is reasonably practicable:

• providing and maintaining a work environment, plant and systems of work that are without risks to health and safety
• ensuring the safe use, handling and storage of plant, structures and substances
• providing adequate facilities at work for the welfare of workers, including ensuring access to those facilities
• providing information, training, instruction or supervision necessary to protect workers and others from risks to their health and safety
• monitoring the health of workers and the conditions at the workplace for the purpose of preventing illness or injury.

A self-employed person is a PCBU. In addition to the primary duty of care, they must also ensure, so far as is reasonably practicable, his or her own health and safety while at work.

PCBUs may also have other specific and ongoing duties, depending on what they manage or provide.

Worker – basically concerns everyone...

A "worker" is defined as a person who carries out work in any capacity for a PCBU, including work as an employee, a contractor or subcontractor, an employee of a contractor or subcontractor or an employee of a labour hire company who has been assigned to work for the PCBU, an outworker, an apprentice or trainee, a person gaining work experience or undertaking a work trial, a volunteer or a person of a prescribed class.

Coverage is broad

The definition is broad, and like the PCBU definition is designed to encompass a number of relationships that are typical in a work environment (such as employees, contractors, subcontractors, employees of contractors or subcontractors, volunteers and trainees).

HSWA applies to nearly all work in New Zealand, however there are a few exceptions:

• members of the Armed Forces carrying out operational activity
• civilians working in support of Armed Forces overseas in an area of operational activity
• any military aircraft or naval ship carrying out operational activity.

Reasonably Practicable – if it could happen then it needs to identified and a process instigated to eliminate or minimise it...

The HSWA replaces the current standard under the HSE Act ("All Practicable Steps") with a new "reasonably practicable" standard.

"Reasonably practicable" is defined as: "...that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including:

• the likelihood of the hazard or the risk concerned occurring;
• the degree of harm that might result from the hazard or risk;
• what the person concerned knows, or ought reasonably to know, about
• the hazard or risk; and
• ways of eliminating or minimising the risk;
• the availability and suitability of ways to eliminate or minimise the risk; and
• after assessing the extent of the risk and available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."

The new standard is broadly similar to the existing concept of "All Practicable Steps", except that the assessment of costs must only be taken after the assessment of the risk and the ways to eliminate that risk. This means that costs will only take precedence over safety when the cost of taking a step is "grossly disproportionate" to the risk.

There is a general duty on all PCBUs to ensure, so far as reasonably practicable, the health and safety of:

• workers employed or engaged, or caused to be employed or engaged, by the PCBU while the workers are at work in the business or undertaking; and
• workers whose activities in carrying out work are influenced or directed by the PCBU while the workers are carrying out the work.

PCBUs must also ensure, so far as reasonably practicable, that the health and safety of other people is not put at risk from work carried out by the PCBU.

There are also specific duties imposed on PCBUs in respect of:

• the management and control of fixtures, fittings, and plant in the workplace;
• the design and manufacture of plant to be used in a workplace; and
• the supply, importation and installation of plant to be used in a workplace.

Officers – if you are a Director then this change affects you...

There is a positive duty on officers to exercise due diligence to ensure that the PCBU complies with that duty or obligation. This is a key change from the HSE Act, where directors of a company can only be held liable where they have directly participated in, contributed to, or acquiesced in their company's failure. Under the HSWA officers may be convicted for a breach of due diligence regardless of whether the PCBU has been convicted of an offence.

Due diligence includes taking reasonable steps to:

• acquire, and keep up-to-date, knowledge of work health and safety matters;
• gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations;
• ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety;
• ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks and for responding in a timely way to that information;
• ensure that the PCBU has, and implements, a process for complying with any duty or obligation of the PCBU under the Act; and
• verify the provision and use of resources and processes.

The HSWA creates three offence tiers relating to breaches of the health and safety duties. The offences and the respective maximum penalties can be summarised as follows:

• Reckless Conduct (has a duty and exposes any person to whom the duty is owed to risk of death or serious injury/illness and is reckless as to that risk) – fines up to $3 million (or $600,000 and/or up to five years' imprisonment for individuals).
• Failure to comply with a Duty (with exposure to risk of death or serious injury/illness) – fines up to $1.5 million (or $300,000 for individuals).
• Failure to comply with a Duty (no exposure to death or serious injury/illness) – fines up to $500,000 (or $100,000 for individuals). In addition to the fines and imprisonment that may be imposed, the HSWA provides for new orders which the court may impose at sentencing:
• Adverse publicity orders – requiring the offender to publicise in a particular manner the offence, its consequences, and the penalty imposed.
• Restoration orders – requiring an offender to take specified steps to remedy any matter caused by the offence.
• H&S project orders – requiring an offender to undertake a specific project for the general improvement of work health and safety.
• Court-ordered enforceable undertakings – adjourning the proceeding for up to two years, during which the offender undertakes to comply with certain conditions.

Are you worried that you may not understand the full implication of the HSWA? Remember if you are a person conducting a business or undertaking (PCBU), then it DOES concern you.

Here at WSP we have the necessary experience to help you through this legislation, specifically to help you identify and mitigate any musculoskeletal risks to you or your employee's health and safety.

Importantly we can also provide you with specific, cost-effective solutions that will ease your mind.

References

https://worksafe.govt.nz/laws-and-regulations/acts/hswa/

http://legislation.govt.nz/act/public/2015/0070/55.0/DLM5976660.html