Welcome to Bartlett Law’s Crystal Ball. In this issue we focus on health and safety (or, in seasonal-speak, elf and safety) as the new Health and Safety at Work Act will soon be in force. It is essential that workers and business owners understand what it encompasses so they are ready for it. We also have some useful Top Tips for Christmas and the New Year.
The Health and Safety at Work Act 2015
The Health and Safety at Work Act 2015 was passed on 27 August and comes into force on 4 April 2016.
The Act introduces far-reaching new concepts and terminology. Business owners and employers must know what the Act means for them to ensure they are ready for the new law well before April.
We’ve put together a summary of some of the key concepts in the Act, to show what it is all about:
- The Act will apply to a “person conducting a business or undertaking” (PCBU) and “workers” instead of the current “employer”/“employee” model.
- There is much greater emphasis on health and safety leadership coming from the top, with the new officers’ due diligence duty (see below).
- There is a greater focus on employee participation in health and safety.
- There are substantially higher maximum penalties for offences (fines of up to $3 million and imprisonment of up to five years for the most serious offences).
- The focus will be managing risks (rather than hazard management under the present Act).
- PCBUs will be required to eliminate or minimise risks to health and safety “so far as is reasonably practicable”, as opposed to the present obligation to “take all practicable steps to ensure the safety of employees while at work”.
PCBU: This is the new term to define which people/organisations will have the primary duties to workers. It means a person “conducting a business or undertaking”. It is much wider than just employers. A PCBU includes not for profit and for gain organisations and generally will cover any person or company conducting a business or undertaking. A PCBU does not include a person who is employed or engaged solely as a worker, volunteer organisations where there are no employees and anyone in the home engaging someone solely to do residential work.
Officer: “Officers” also have duties under the Act. An officer includes a director of a company, partner of a partnership and any person “occupying a position in relation to the [PCBU] that allows the person to exercise significant influence over the management of the [PCBU] (for example, a chief executive)”. An officer excludes someone merely advising or making recommendations to an officer. This term is sufficiently broad to capture all directors, chief executives and depending on their duties, very senior workers within a PCBU.
Worker: A “worker” is anyone who carries out work in any capacity for a PCBU and includes employees, contractors, subcontractors, apprentices, trainees, etc. A worker will also include a volunteer but only where that volunteer carries out work on an ongoing and regular basis and that work is an integral part of the business or undertaking. A PCBU can also be a worker if that PCBU is an individual who carries out work in the business or undertaking.
Workplace: “Workplace” is where work is being, or is customarily, carried out, and it includes any place where a worker goes, or is likely to be while at work. A workplace can cease being a workplace once the work there has been completed. Note that a PCBU’s duty does not extend to people unlawfully in or on the workplace.
A PCBU has the primary duty to ensure workers’ safety and it must ensure, so far as is reasonably practicable, the health and safety of:
- Workers of the PCBU while they are at work, and
- Workers whose activities are influenced/directed by the PCBU.
A PCBU who manages or controls a workplace must also ensure, so far as is reasonably practicable, the workplace entrance and exit are without risks to health and safety to any other person. Depending on the nature of the PCBU, it may also have other duties.
The PCBU will also have a duty to engage with workers and have adequate worker participation practices.
Another duty PCBUs will have is to consult with other PCBUs. When more than one PCBU has a duty in relation to the same matter, each PCBU has a duty (so far as is reasonably practicable), to consult, cooperate and coordinate activities with all other PCBUs. For example, on a building site there will often be many PCBUs present in relation to the same matter, eg, for construction work, however each PCBU (electricians, plumbers, builders, scaffolders, etc) will have to consult with the other PCBUs and cooperate and coordinate activities to ensure that health and safety obligations are met. This duty to consult only extends to when the PCBU has “the ability to influence and control”.
This is a significant change from the current law. We strongly advise organisations to work out who their “officers” are, and then ensure the “officers” know what their duties are. Officers of a PCBU must exercise “due diligence” to ensure health and safety compliance by their PCBU. Due diligence duty includes:
- Knowing about and keeping up to date with health and safety matters and the PCBU’s operations and its risks and hazards.
- Ensuring its PCBU has and uses appropriate resources and processes to eliminate or minimise risks to health and safety.
- Ensuring the PCBU has appropriate processes for incident and hazard reporting.
- Checking the PCBU’s processes and its compliance with its duties under the Act.
An officer can be convicted of an offence under the new Act even if the PCBU is not.
Our initial advice for getting to grips with the new Act:
- Work out who/what the “PCBU” is.
- Are there any “officers” in your organisation?
- Is your organisation involved in projects where consultation with other PCBUs will be needed?
- Is your PCBU in a high risk sector?
- Who are the “workers” whose health and safety you need to address?
- What is/are the relevant “workplace/s”?
- What risks need to be managed, and how will this be done?
- What existing policies and procedures do you have, and do they need to be audited/updated?
- For employees, what are your employer’s obligations to consult with you? Do you need a health and safety representative and health and safety committee?
Bartlett Law can provide you with advice about these matters.
Our own health and safety – Christmas holiday period
Bartlett Law will close for the year at 5 pm on Wednesday 23 December. We will reopen on Wednesday 13 January. If you need urgent advice over the holidays Penelope and Charlotte can be contacted by email: or .
Top Tips … for the festive season and the New Year
(Some serious ones and some less so!)
- Watch out for employees becoming stressed as end of the year deadlines loom and see what the employer/colleagues can do to help
- Recognise there will be festive events that may impact on the workplace, and adjust expectations accordingly
- Believe it or not, sick leave can be taken for a post-Christmas party hangover
- The office Christmas party is a place of potential hazards that must be managed – employers need to make sure employees do not over-indulge or behave inappropriately. Also think about how employees will get home safely if they have consumed alcohol at an office function.
- Make sure standard employment agreements are up to date and ready for new employees, for example, do they have comprehensive personal electronic device (such as iPads) provisions, and social media/internet use provisions? Do they have robust health and safety clauses that comply with the new law?
- Are your wage and leave records accurate and up to date (recently the Employment Relations Authority has ordered employers to pay large fines for failure to comply with this requirement)
- Plan for the new Health and Safety at Work Act – it comes into force on 4 April 2016 – see above
- Eat, drink and be merry (as said in The Bible)
- Moderation in all things (also from The Bible)
- When dressing for festive parties, remember this is perhaps the one time of the year when “red and green should never be seen” does not apply! (copyright Penelope Ryder-Lewis)
Merry Christmas from us all at Bartlett Law!
Penelope, Phil, Charlotte, Andrea and Suzanne