New Zealand: One year on – the obligation of a PCBU to consult, co-operate and co-ordinate

A year has passed and we are yet to see a prosecution under the new HSWA in New Zealand. However with the on-going number of queries arising, particularly from a practical perspective, we thought it useful to recap on the new obligation to "consult, co-operate and co-ordinate" where there is more than one person conducting a business or undertaking (PCBU).

Last year in South Australia this obligation was analysed following a prosecution under s46 of the Work Health and Safety Act 2012 (SA). Section 46 provides:

"If more than one person has a duty in respect of the same matter under this Act, each person with a duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to that same matter".

Section 34 HSWA mirrors s46 of the Australian legislation. We therefore briefly review Boland v Trainee and Apprentice Placement Service Inc to focus on the key messages for PCBUs, particularly where there are a number of PCBUs, all with an obligation to ensure the health and safety of workers, so far as is reasonably practicable.

Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14

In this Australian case, Mr Reynolds was an apprentice of Trainee and Apprentice Placement Service Inc (TAPS) which was a not-for-profit organisation who provided apprentices to host employers. At the relevant time it had some 260 apprentices engaged with 100 host employers.

TAPS placed Mr Reynolds with Shear Edge Roofing (a PCBU) to assist with guttering work on a worksite, controlled by another PCBU, Inspire Construction.

Mr Reynolds was working with Mr Argent on a roof and was handed up some guttering. He was in very close proximity to some powerlines. The guttering came into contact with the powerlines and Mr Reynolds was electrocuted and suffered multiple injuries.

The Industrial Relations Court (SA) found that although TAPS had an awareness of health and safety issues and had three field officers on site who attempted to attend the various sites every eight weeks, the audit on site was inadequate and there were no safety measures in place on site, despite the significant risk to the proximity of the powerlines.

Despite TAPS' own attempts to comply with its health and safety duties, there remained a duty on it to consult with other duty holders, to ensure there were adequate health and safety measures in place whilst their apprentices were on site. The Court concluded that TAPS failed in its duty as a PCBU to consult, co-operate and co-ordinate with other duty holders to ensure the safety of its apprentice, Mr Reynolds.

Following the incident, TAPS took a number of steps to improve its health and safety systems (at a cost of $70,000) with an emphasis on ensuring that it was compliant with its duty to consult, co-operate and co-ordinate. On account of TAPS' safety record, its significant acts of contrition towards Mr Reynolds and an early guilty plea, the starting point of $20,000 was reduced to a fine of $12,000.

Key reminders

If you have workers where you have limited control over their day to day work environment (for example a labour hire company) or you are sending workers to clients' sites (for example) it is important to:

  • Obtain and consider the PCBU's health and safety policies for the locations where the worker will be based, visiting, or working;
  • Ensure that the PCBU who can control and influence the workplace carries out an induction with the relevant worker and provides that worker with information in respect to health and safety, risk management, emergency procedures etc;
  • Regularly communicate with the worker and the relevant PCBU(s) to understand how health and safety issues are tracking, and to check the effectiveness of the current strategies; and
  • Visit the workplace that is controlled or influenced by the relevant PCBU, particularly if the worker is regularly in attendance there, and satisfy yourself that as an employer of this worker, you are comfortable that health and safety considerations have been covered, and are in fact being adequately implemented.

How broad is the duty to consult, co-operate and co-ordinate?

The above obligation extends beyond the triangular employment relationship, the labour hire scenario and is relevant to the day to day work carried out by many organisations. Further, it is also relevant to events planned for workers, including for example team building days.

Let's consider for a moment the workplace has organised a team planning day that includes archery and clay bird shooting for your workers to participate in. Have you contacted the venue and asked about any risks or hazards that arise from those activities, and how they will be mitigated or minimised? Have you made enquiries as to how the organisation manages the risks when presented with a group of wide and varied skill sets (i.e. some with no experience whatsoever)? What sort of induction is provided? What emergency measures are in place? Are you satisfied that the organisation that will be hosting your workers for the day has sufficiently addressed the risks and has strategies in place for minimising or eliminating those risks?

Balancing the above of course is that any such steps must be so far as is "reasonably practicable". While it may seem over the top, a conversation or email trail demonstrating that as a PCBU you have turned your mind to the health and safety aspects of the operations of another PCBU where your workers are going to be located is likely to significantly mitigate your risk in the event something goes horribly wrong.

Final thoughts

If you're a PCBU and find yourself in a situation where you're unsure whether you must consult, co-operate and co-ordinate with another PCBU, simply ask yourself this: do I or does my organisation have the ability to influence and control workers' activities in this situation? If the answer is yes, then you will be susceptible to liability under the HSWA and it is necessary to do what is reasonably practicable to eliminate and/or minimise risks.

While it may seem pedantic at the time, taking time to reflect on some of these questions and actively seeking out other PCBUs in relation to health and safety requirements could save you or your organisation a hefty fine – up to $20,000 for individuals and $100,000 for any other person. The financial incentive to eliminate or minimise risks to health and safety so far as is reasonably practicable, particularly in what have traditionally involved activities outside the workplace and under the influence of other PCBU's, has never been greater.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions