New Zealand: New Health & Safety Legislation - not something to fear

Last Updated: 9 December 2015
Article by Amanda Douglas and Naoimh McSparron

Most Popular Article in New Zealand, December 2015

It is true that all organisations are going to be affected by the changes to the Act and that the duties of care imposed cannot be transferred or insured against, but it must be made clear that many organisations who prioritise health and safety will be already doing most of what is required.

Diligent New Zealand businesses and volunteer organisations are to be commended for the work they do to ensure the health and safety of workers and volunteers already.

The Health and Safety at Work Act 2015
While most of us accept that reform of New Zealand's approach to health and safety is necessary, most of us will also feel a sense of unease and nervousness about what might be involved.

However concerns surrounding the changes to the new Act – which has key parts that will come into force on April 4 next year – are unwarranted. Let's take a breath and have a sensible discussion about health and safety reforms.

The Act clarifies requirements about health and safety and provides a framework for organisations to develop a plan and to continue to improve.

One of the ways it does this is by establishing who the key duty holders are in an organisation – those are the PCBU and the officers.

What is a PCBU?
The key duty holder of any organisation is a "person conducting a business or undertaking" (PCBU). The PCBU bears the ultimate duty of care.

The PCBU could be a group of people or one person operating a business or organisation. For example, a plumber operating as a sole trader is a PCBU.

PCBUs and officers – addressing health and safety issues
The PCBU has officers that ensure health and safety measures are put in place and followed.
Officers are those individuals in a position of power and control within the organisation, such as the chief executive officer, directors, the board of trustees and anyone else at that level of the organisation. In small organisations, such as our plumber above, this may be one and the same individual who will discharge the duty of care of a PCBU and of the officer.

Under the out-going Health and Safety in Employment Act 1992, those governing the organisation were potentially able to separate themselves from health and safety activities thereby possibly avoiding liability.

Under the new Act, the officer(s) must actively engage to discharge their personal duty of care.

They do this by turning their minds to what the health and safety issues are in their organisation and how they can be addressed. That process is categorised as "due diligence".

Due diligence (treating health and safety as a core business function)
"Due diligence" is another term which brings a sense of unease.

What this really means is treating health and safety like you are planning any other important aspect of your business, such as financial forecasting.

Officers must plan what their organisation will do to address health and safety. Questions to consider include: what safety concerns have cropped up in the past? What preventative actions are necessary to reduce or eliminate those risks in the future? How do we resource health and safety needs?

The officer must identify workplace risks and create ways to reduce them. These measures are then recorded by the officer, who also ensures that resources are available to carry out the health and safety plan.

The officer does not need to be on the ground managing the health and safety programme, but it is obligated to govern the activities.

The real change for many organisations will be how they planned document their health and safety measures.

The officer is personally liable to ensure health and safety action
Personal liability is one of the big changes in the new Act, as officers do have a personal obligation to ensure that they discharge their duty of care.

If an officer carries out their duty of care, then the PCBU will have a very good chance of discharging its duty as well. The two duties are independent although closely related.
The PCBU and its officers cannot delegate the discharge of their respective duty of care to someone else.

What does this mean for volunteer groups?
Organisations should take comfort from the fact that the Health and Safety Act has not been designed to trap volunteers or make things difficult for the many organisations who rely on the valuable work of volunteers.

Volunteer organisations will not have the obligations of a PCBU and the volunteers will not have the obligations that an officer has, unless they have employees.

Say, for example, you are an unpaid volunteer with a group that does not employ anyone; that group will not have the duty of care of a PCBU.

Staying with this example, a volunteer person does not have the obligation that an officer has. Those who do sporadic fundraising for a volunteer group will also not be classed as a volunteer worker with duties under the Act.

Volunteer groups that employ
If you regularly volunteer at for example a rugby club and the club employs someone, then you will be regarded as a "volunteer employee" and have the same obligations as paid workers. That generally is to ensure everyone's health and safety. The obligations only go as far as what each individual can reasonably be expected to do.

Since many volunteer groups such as rugby clubs do employ someone, they will have the obligations of a PCBU and its officers.

The members of the rugby club's board will be officers who undertake due diligence considering amongst other things, what they have in terms of protective equipment, ensuring necessary training for volunteers and players, and also making sure the game is played as safely as possible.

The club would document all of the possible safety issues, review them and run the organisation as always. The club would also ensure the necessary resources are available to achieve its health and safety goals.

Resources to ensure the provision of health and safety are those things that can be reasonably provided. For our rugby club, this could mean making players wear mouthguards or ensuring that pads are placed on the bottom of the rugby posts.

What happens if there are multiple PCBUs involved?
In some circumstances there will be more than one PCBU involved.

In a hypothetical rugby match, there are two rugby teams, both of which belong to volunteer organisations and employ an administration person. The two teams also have a separate sports group hosting an event.

In this scenario, there could be three PCBUs involved. All PCBUs still have their individual requirements to discharge their obligations under the Act. Their duties of care overlap for this game, but they must each attend to them.

Scenario: who is liable if a player goes down badly during a rugby game?
In the case of a player lying prone on the ground after a bad tackling technique leads to serious injury the reaction of that injury will remain the same as it is today.

Club members, spectators, and paramedics of both teams, will react in the best way they at that particular time. That's not going to change under the new Act.

In this scenario, there is unlikely to be any liability for the injury if the PCBU and its officers have discharged their duty of care by providing players with tackling training, or proving that pre-emptive measures were in place.

If the officers recorded the preventative measures and could prove it, then the officers would most likely have complied with the Act.

Many organisations and volunteer groups will already plan and implement their health and safety programmes like the hypothetical rugby club described.

Organisations cannot escape their duty of care in health and safety, but there is no need to be intimidated by these positive reforms. Many organisations will only need to come to grips with reviewing, recording and documenting their health and safety activities.

The changes to the Act provide organisations with a balanced framework to improve health and safety in New Zealand.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Naoimh McSparron
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