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 so.
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.