What does the Health and Safety Reform Bill mean for your business? - Part 3 - Duty of Care

19/09/2014 14:42

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

These updates provide 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 or email us at healthsafe_ec@yahoo.com

 

3. How Do I Meet The Primary Duty Of Care Under The Bill?

PCBUs need to work together when duties are overlapping

Because PCBUs have duties to workers affected by their work, not just to those they directly employ or engage, it’s possible for PCBUs to have overlapping duties. This is a fundamental part of the Bill’s design.

Many modern work situations involve multiple duty holders that have overlapping duties. For example, there may be a number of different businesses working together or alongside each other on a single work site, such as a construction site, and through contracting or supply chains. The Health and Safety in Employment Act 1992 already creates and provides for such overlapping duties, so the need for duty holders to work together to meet their duties is not new– it’s just more explicit in the new Bill. Many workplaces will already be following this approach.

The Bill also makes it clear that PCBUs need to work together to meet their duties to ensure that the work does not pose risks to people’s health and safety.

 

How should PCBUs work together?

Overlapping duties do not automatically require PCBUs to duplicate efforts. Instead, PCBUs will need to consult, co-operate, and co-ordinate activities to meet their shared responsibilities.

PCBUs cannot ‘contract out’ of their duty. But they can and should make reasonable arrangements and coordinate responsibilities with the other PCBUs to fulfil their duty - so far as is reasonably practicable. The PCBUs should also monitor each other to ensure everyone is doing what they agreed.

The extent of a PCBU’s duty depends on the level of influence or control the PCBU has over health and safety matters at work and the different circumstances that might be at play when there are multiple PCBUs.

This means that in practice, the measures a PCBU should take in relation to its own employees and contractors are likely to be different from the measures which it should take in relation to the employees and contractors of another PCBU, as it will have less influence and control over the workers of another PCBU. A PCBU that has less direct control or influence is more likely to fulfil its duty by making arrangements with the PCBU that is closer to the work and has more direct influence or control.

 

Example 1: Overlapping duties in labour hire

A labour hire PCBU hires out a worker to a host PCBU to carry out work for them. Both the labour hire PCBU and the host PCBU owe a duty of care to that worker - both are fully responsible for meeting that duty to the extent to which they have capacity to influence and control the matter. The labour hire PCBU cannot ‘contract out’ its duties to that host employer when it places a worker with them.

Both PCBUs need to consult and co-ordinate activities to ensure the health and safety of the labour hire worker.

 

Example 2: Overlapping duties on a large construction site

A large construction site has many PCBUs present: the head contractor, the subcontractors, and the client.

While all of these PCBUs have overlapping duties, the measures which they can take to discharge those duties will differ.

The client will typically owe duties to the workers that they influence or direct through any requirements they include in their contract with the principal contractor that will affect the health and safety of those workers. For example, if the client requires the work to be performed in a certain way or within a certain time, that may affect the health and safety of the workers.

The head contractor will have a duty to the workers that it employs or engages, as well as to the workers it causes to be employed or engaged, such as the workers of subcontractors.

The head contractor will also have a duty to the workers on the site that it influences or directs. This is because the head contractor usually determines the sequencing of work and sets work methods, equipment and other site requirements that may affect all the workers on site.

The subcontractors will also have a duty to the workers that they employ or engage.

The head contractor and the subcontractor should consult each other about the job requirements, the skills required of the workers, any health and safety risks associated with the work, and what each will do to control the risks.

Subcontractors will have a duty to each other’s workers, even where they do not have a direct contractual relationship with them. For example, the activities of a scaffolding PCBU can affect the safety of other workers on site.

The PCBUs can make arrangements with the other PCBUs on the site where they have overlapping duties. In this case, the head contractor and subcontractor have to ensure access to first aid facilities. It’s likely the head contractor will provide those facilities for all workers on site but the subcontractor must confirm they’re in place and accessible to their own workers as well. The head contractor would also usually provide security for the site as a whole.

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A key difference – cross-over of work

An important change with the new PCBU concept and primary duty of care is that subcontractors on a site where they affect each other’s work or have a cross-over of work will also need to work with each other to meet their duties. This is the case even if they don’t have a direct contractual relationship with each other.

A good example is where builders, electricians and plumbers on a construction site work alongside each other and affect each other’s work.

The broader benefits of this approach include:

  • helping to ensure working arrangements on shared worksites and in contracting chains run smoothly and efficiently, which can lead to productivity gains
  • an obligation on PCBUs on a shared worksite or in a contracting chain to work together to sort out problems. This will avoid the head contractor or landlord, for example, having to step in and sort out every problem on site or further down the contracting chain.

 

How do I meet my duty – key questions to ask

In determining the extent of their duty when duties overlap, a PCBU could ask themselves the following questions:

Who do I have a duty to?

  • Are the workers employed or engaged by me?
  • Do the workers work in my business or undertaking?
  • Do I influence or direct the work activities that other workers carry out; and if so, how?
  • Are there others affected by the work of my business or undertaking; and if so, how?

 

What is the scope of my duty?

  • What is reasonably practicable for me to do?
  • What is my capacity to influence or control the health and safety matter compared to the other PCBU that I share the duty with?

 

How do I meet my duty?

  • How do I best co-ordinate activities with the other PCBUs through allocating responsibilities and monitoring to ensure we are all doing what we agreed to do?

 

Clauses 22 to 27 set out the key principles relating to duties, including the duty to consult and co-operate.

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Managing risk to ensure health and safety

The duties to ensure health and safety require the duty holder to manage risk through eliminating or minimising the risk, so far as is reasonably practicable in the circumstances.

Some of the PCBU duties in the Bill require them to ensure something is without risk, or that health and safety is not put at risk.

These duties should be looked at together with the duty to manage risk.

This doesn’t mean that the duty of care requires that all risks must always be eliminated. In some cases it will be reasonably practicable to eliminate risk, but in others it will not. If that’s the case, then the risk must be minimised, so far as reasonably practicable.

Depending on the circumstances and the risk, minimisation may include isolating the risk, coming up with engineering solutions, adapting work methods and procedures, or providing personal protective equipment.

Clause 22 sets out the duty to manage risk.

 

What is “reasonably practicable”?

You’ll notice that the Bill often refers to ‘reasonably practicable’. This is a very important concept. PCBUs must do what is reasonably practicable to meet their duties to ensure health and safety.

Reasonably practicable means what is or was reasonably able to be done at a particular time to ensure health and safety, taking into account and weighing up all relevant matters.

These matters include the likelihood of the hazard or risk occurring, the degree of harm that might result from the risk or hazard, and what is known or would be reasonably expected to be known about a risk or hazard, and how to eliminate or minimise the risk.

In doing this, you should think about the extent of the risk and the available ways of eliminating or minimising the risk, and finally, weigh up the cost of this and whether the cost is grossly disproportionate to the risk.

 

Clause 17 of the Bill sets out the meaning of reasonably practicable.