It has been two months since the Health and Safety at Work Act
2015 (the Act) came into force.
One of the most common areas of confusion that we are seeing is
around the new obligation of horizontal consultation. Section 34 of
the Act requires that where there is more than one PCBU (Person
Conducting a Business or Undertaking) with a duty in relation to
the same matter, each PCBU must, so far as is reasonably
practicable, consult, co-operate with, and co-ordinate activities
with all other PCBUs who have a duty in relation to the same
matter. This duty is termed 'horizontal consultation'
because it requires PCBUs to consult, co-operate, and co-ordinate
with other PCBUs they may not otherwise have a contractual
relationship with. The horizontal consultation duty is in addition
to the primary duty of care imposed on each PCBU.
The penalty for failing to comply is a fine not exceeding
$20,000 for an individual, and a fine not exceeding $100,000 for
any other person (including a company, trust, or other entity). A
breach is unlikely to be made in isolation and these fines would be
in addition to any other penalty imposed under the Act.
There are three separate but interrelated elements to horizontal
consultation: consultation, co-operation, and co-ordination. A PCBU
must meet each individual element to the standard of reasonable
practicability to comply with the horizontal consultation duty.
Consultation means each PCBU must communicate with other PCBUs
about how they will discharge their respective duties. This will
include providing relevant information, referring to other PCBUs
for information, and having regard to other PCBUs interests. In
theory this will allow all PCBUs to have a shared understanding of
what the specific risks in the workplace are, who will be affected
by those risks, and how the risks will be controlled.
Co-operation requires the PCBU to work with other PCBUs in such a
way that each is able to discharge their respective duties. This
means working or acting jointly or together, and will include
implementing arrangements in accordance with any agreement reached
between the parties. To co-operate also requires the PCBU to act in
a way that does not compromise what other PCBUs are doing towards a
shared health and safety goal.
Co-ordination means each PCBU discharging their respective duties
in a way that does not unnecessarily interfere with health and
safety efforts of other PCBUs involved. This allows the PCBUs to
work in harmony and combine their efforts so any risks arising from
the interaction of controls implemented by each are managed
effectively. The aim is to ensure comprehensive health and safety
systems across multiple PCBUs, and ensure the actions of each PCBU
compliment rather than undermine the actions of other PCBUs.
Practical tips for complying with your obligations
Identify where there is overlap between your business and other
businesses (e.g. the landlord of a commercial building is likely to
have overlapping duties with the tenant(s), property manager, and
any contractor's onsite).
Check whether the contractual provisions between your business
and those identified as having overlapping duties address your
horizontal consultation obligations.
Where is it not possible to incorporate horizontal consultation
obligations into existing contractual arrangements, consider
implementing a Health and Safety Compliance Agreement to do
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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