by Denise Lormans, Manager Southland Community Law Centre and Chair Community Networks Aotearoa
The new legislation:
- Focuses on a duty to manage risk
- Introduces the concept of “Person Conducting a Business or Undertaking” (PCBU), as the principal duty holder.
- Has some exclusions which include volunteer associations who don’t employ anyone, or home occupiers who employ or engage people to do residential work.
- Describes and requires due diligence (a new duty on “officers”) to ensure that the PCBU complies with its duties.
- Defines Workers as including employees, contractors, volunteers.
- Requires real worker participation in risk management.
- Encompasses a new enforcement regime.
The new legislation is all about raising the requirements for providing the highest level of protection against harm. It also emphasizes that all measures should be “reasonable and practicable”.
It is all about:
- Protecting workers and others by eliminating and minimizing risk.
- Providing a fair and effective level of workplace representation, consultation, co-operation and resolution of issues.
- Encourages unions and employer groups to work constructively TOGETHER.
- Promotes advice, information, education/training regarding Health and Safety.
- Compliance with the Act through effective means.
- The need for scrutiny and review of actions taken by duty holders.
- The new framework of continuous improvement to achieve higher standards of Health and Safety.
Workplaces are clearly defined:
- A place where work is carried out for a business or undertaking; and
- Includes any place where a worker goes or is likely to be while at work.
- This includes:
- Vehicles, vessels, aircraft, ships or other mobile structures.
- Waters, installations on land, on the bed of any waters or floating on any waters.
- Farm buildings and structures necessary for the operation of the farm, but no other parts of the farm
Workers are clearly defined too:
- An employee
- A contractor or subcontractor
- An employee of a contractor or subcontractor
- An employee of a labour hire company who has been assigned to work in the business or undertaking
- An outworker (including a home worker)
- An apprentice or trainee
- A person gaining work experience or completing a work trial
- A volunteer worker
To assess risk a reasonable person should ask:
- What can be done?
- What is reasonable in the circumstances?
- What should be done?
The aim is to ensure that workers and others are provided with the highest level of protection that is reasonably practicable.
More emphasis has been placed on any person at the work place (workers or visitors) have a duty of care for themselves and others (just as much as the PCBU officers really)
They must take reasonable care of:
- His/her own health and safety
- That their own acts or omissions don’t adversely affect the health and safety of others (don’t ignore a hazard, report it).
- Comply with reasonable instruction given by PCBU
- Cooperate with reasonable health and safety policy/procedures of the PCBU (provided the workers actually know about them!)
Key Principles of “Duty of Care” for all PCBU’s:
- Duty to manage Risk
- Duties can’t be transferred to another person/role (No delegation)
- A person/role can have more than one duty
- More than one person/role can have the same duty
- Duty as a PCBU to consult with other PCBUs with the same duty (if you share a building or worksite then work together to formulate and enact a risk plan).
- PCBUs cannot ask workers to pay for Health & Safety gear or resources – this is a duty of the PCBU which it cannot opt out of.
- No PCBU can insure against fines imposed should they be charged with an offence under the Act. (They may be able to insure against the litigation, but not any fines if they are found guilty).
