What does the Health and Safety Reform Bill mean for your business? - Part 1

17/09/2014 16:18

WorSafe NZ is providing a serious of updates that seek to explain different parts of the proposed Health and Safety Bill.

These updates will give you an overview of the key parts of the Bill as introduced to Parliament, to help you understand some of its key concepts. This will help ensure you’re prepared for when the law comes into effect in 2015. 

If you would like to know more about how this will affect your business call Health and Safety East Coast 0272878747

 

Who Has The Primary Duty to ensure Health and Safety? Person Conducting a Business Or Undertaking

 

The Health and Safety Reform Bill introduces the concept of a Person Conducting a Business or Undertaking, known as a PCBU.

PCBUs are in the best position to control risks to work health and safety as they are the ones carrying out the business or undertaking. This is why the PCBU will have the primary duty under the new law.

What is a PCBU?

Despite its name, a PCBU will usually be a business entity, such as a company, rather than an individual person. A person might be a PCBU if they are a sole trader or a self-employed person.

Examples include:

  • A retail business
  • A wholesale business
  • A manufacturing business
  • An import business
  • An owner-driver of their own courier business
  • A fast food franchisor and the operator of the fast food outlet (the franchisee)
  • A self-employed person operating their own business
  • A government department
  • A local council
  • A school
  • A partnership
  • A building company, including principal contractors and sub-contractors
  • A not-for-profit organisation that employs admin staff

 

Business or undertaking

  • A business is an enterprise usually conducted with a view to making a profit and having a degree of organisation, systems and continuity
  • An undertaking may have some degree of organisation, systems and continuity, but it is usually not profit-making or commercial in nature

Why will the new law have PCBUs?

PCBU is a broad concept that reflects modern working arrangements.

The current Health and Safety in Employment Act 1992 primarily focuses on the employer and employee roles. It places duties on carefully defined participants – employers, principals, the self-employed, persons controlling a place of work, and suppliers of plant.

The PCBU concept replaces all of these duty holders. It better reflects the complex nature of the modern workplace where there can be multiple working arrangements for workers in the same location or for the same organisation. The PCBU concept recognises that a business or undertaking has an influence over the health and safety of workers, even where those workers may not be its direct employees.

  • The PCBU concept captures the full range of duty holders in the modern work environment
  • The question people should ask is not “Am I a duty holder?” but rather “I am a duty holder, what can I reasonably do to meet my duty?”
  • All PCBUs have a primary duty of care to ensure the health and safety of workers and others affected by the work carried out by the PCBU.

Clause 13 of the Bill sets out the meaning of a PCBU.

 

Who isn’t a PCBU?

You’re not a PCBU if you are:

  • employed or engaged solely as a worker or an officer (for example a company director) of the business or undertaking

 

Scenario 1

Kitchen Construction Limited (KCL) operates a small business which specialises in the building and renovation of kitchens. Simon is KCL’s sole director. KCL employs several full-time staff and regularly contracts Todd, a self-employed electrician, to undertake electrical work for KCL’s projects.

  • KCL is a PCBU conducting the business of building and renovating kitchens
  • KCL’s employees are workers of KCL
  • Simon is an officer of KCL
  • Todd is a PCBU, in his own right, conducting his electrician business
  • When engaged by KCL to complete electrical work on KCL’s projects, Todd is a worker of KCL.

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You’re not a PCBU if you are:

  • a householder where you engage or employ someone solely to do residential work on or in your home

 

Scenario 2

Mary owns a small lifestyle block and wishes to have chickens and plant a large garden to provide fresh eggs and vegetables for her family of eight. The property is not connected to the town water supply and Mary has engaged Maximum Plumbing Limited (MPL) to upgrade the house’s plumbing to take account of a secondary water tank she wishes to use to ensure that there is enough water for the animals, garden and her family. Three plumbers from MPL will be working in and around Mary’s home for several days to finish the upgrade.

  • As Mary has engaged MPL only to undertake residential work on her home, she is not a PCBU.
  • MPL is a PCBU. It is in the business of providing plumbing services and will owe a duty of care to ensure the health and safety of its workers and others (including Mary) are not put at risk by the work undertaken to upgrade the house’s plumbing

 


You’re not a PCBU if you are:

  • a volunteer association (if it's for a community purpose and none of the volunteers have employees)

 

Scenario 3

Monica, a nurse at the local hospital, has set up a group of keen knitters to knit clothing for babies, Knitting for Babes. At first the knitting was only donated to the hospital where it is used for premature babies. Recently the group has grown substantially and they have also taken up knitting jumpers and other clothes for older babies. The jumpers are given to Plunket and the Salvation Army to distribute more widely in the community to those in need.

  • Knitting for Babes is a volunteer association and is not a PCBU, so it has no health and safety duties under the Bill

 


However a volunteer association is a PCBU if any of the volunteers employ any workers

 

Scenario 4

Demand for knitted baby clothes has become so great that there is not enough donated wool to meet demand. The group has decided to raise money through selling a wider range of knitting through community fairs and on the group’s newly established website. The group is now an incorporated society, Knitting for Babes Incorporated, and has employed Dorothy, on a part-time basis, to deal with the increase in activities undertaken and ensure all administration and accounting matters are taken care of.

  • Knitting for Babes Incorporated is a PCBU as it employs a person to undertake work for it
  • Knitting for Babes Incorporated will owe duties under the Bill as a PCBU, including duties to all its workers (paid and volunteer)

 



A householder may also be a PCBU where they operate a business in their home

 

Scenario 5

Peter, a self-employed chef, has recently started his own business to provide healthy, home-cooked meals to people. Peter runs the business from his home and uses a local courier company to deliver the pre-cooked meals to his customers. Peter has purchased a larger oven to put in his commercial kitchen, located in his home. Peter has engaged Todd, a self-employed electrician, to install the oven and complete some necessary upgrades to his house’s wiring to accommodate the larger oven.

  • Todd is undertaking work for Peter’s home-cooked meal business. This is not residential work so the residential work exception does not apply to Peter
  • Peter is a PCBU conducting his home-cooked meal business
  • Todd is a PCBU conducting his electrical business

 

 
 
Last updated 17 September 2014