Blog Series – Section 36.1.b – Primary Duty of Care towards non-workers (Pt. 2)
In part two of this blog series, we peek further into the
world of the (New Zealand) Health and Safety at Work Act 2015 (HSWA), breaking
it down, section by section. We will provide you with our insight into what the
respective section means for a PCBU (Person conducting a business or
undertaking – the technical term for a business or business owner), provide
some practical advice on what the requirement looks like in reality and provide
some issues to consider when applying or aiming to achieve these requirements.
HSWA ensures that everyone in the workplace is safe and free
from harm. Today, we're delving into the next primary component in section
36.1: 'paragraph b' requirements.
This section is especially relevant to you if you're a
business owner or someone in charge of a workplace and engage contractors,
consultants and other businesses (PCBU's). Remember, a PCBU is a broad term
that covers any entity that carries out work, such as a company, a sole trader,
a partnership, a charity, or a government agency.
The Health and Safety at Work Act 2015 (HSWA) is a
significant piece of legislation in New Zealand and can be viewed as a little
complex. So, let's dive into the next instalment and help you better understand
its requirements for Kiwi businesses.
So, what does the legislation say?
Disclaimer! Refer to part one of this series for my views on
Section 36.1.b of the HSWA states:
A PCBU must ensure, so far as is reasonably practicable,
that the health and safety of workers employed or engaged or caused to be
employed or engaged by the PCBU is not put at risk from work carried out as
part of the conduct of the business or undertaking.
For reference, section
19 of HSWA defines a worker as an individual who carries out work in any
capacity for a PCBU, which in this context includes:
- an employee
- a contractor
- an employee of a contractor or subcontractor
- an employee of a labour-hire company assigned to work in the business or undertaking
- an outworker (including a homeworker),
- an apprentice or, a trainee,
- a person gaining work experience or undertaking a work trial
- a volunteer worker
- a person of a prescribed class.
So, what does it mean to a business owner?
This means that a business owner has a legal obligation to
protect not only their own workers, but also anyone else who may be affected by
their work activities. This includes customers, clients, visitors, suppliers,
volunteers, members of the public, and even competitors.
Section 36.1.b amplifies your responsibility, meaning that
as a business owner, you're responsible for the safety of your direct employees
and any workers you engage or cause to be engaged—think contractors,
freelancers, temps, and so on.
The business owner must take all reasonable steps to
eliminate or minimise any risks to health and safety that may arise from their
work. Doing this involves identifying hazards, assessing risks, implementing
controls, reviewing outcomes, and consulting with workers and other parties so
far as is reasonably practicable. It does not mean you must provide PPE to
everyone passing by a worksite on the highway.
So, what does this look like in reality?
In reality, this means that a business owner must consider
the potential impact of their work on anyone who may come into contact with it.
You must understand the hazards and risks associated with your work and how to
manage them effectively. For example:
- If you operate a café, you must ensure your food is safe and hygienic, the premises are clean and well-maintained, the equipment is in good working order, and the staff are trained and supervised.
- If you operate a landscaping service, you must
ensure you and your staff do not damage or endanger any property or people
while working, that the appropriate tools and protective equipment are used, that
you dispose of any waste safely and properly, and you communicate with the
client and neighbours about your work.
You need to have policies, procedures, and systems
supporting a positive workplace health and safety culture and that help you
engage business competent to do the work you are requesting or demonstrate that
you are competent to do that work you have been requested to do and your
business is managing health and safety effectively.
All businesses involved in the work must share health and
safety information, especially about the risks, with each other. This is called
duties and will be discussed in depth in a later blog series concentrating
on supply-chain management. If you are organising the work, you need to
regularly monitor and review its health and safety performance and take
corrective actions when needed.
The practical requirements of applying Section 36.1.b will
depend on your business's size, nature, and complexity. However, some common
issues to consider are:
- How do you ensure your consultants and contractors
are competent to do the work you engage them for?
Some of these common issues could translate to the following
- Expansive Risk Assessment: Go beyond your immediate staff.
Ensure your workplace is safe for every worker, whether permanent employees or
- Clear Contracts and Communication: When hiring or engaging
workers from outside your immediate staff, clearly communicate all health and
safety protocols to them. It's also wise to have health and safety management
and obligations reflected in contractual agreements.
- Training for All: Don't limit health and safety training sessions to just your permanent team. Include everyone who's working for you in these sessions.
- Feedback Mechanism: Create a way for every worker, even those not permanently employed by you, to provide feedback on safety concerns.
- Regular Safety Audits and Inspections: Conduct regular audits and inspections of your workplace to ensure all health and safety protocols are being followed and that there are no new hazards being created.
- Stay Updated with the Law: As a PCBU, you need to stay abreast of any updates or changes in the HSWA to ensure continued compliance.
These are just some examples of how section 36.1.b may apply to different types of businesses. The specific requirements may vary depending on the nature and scale of the work involved. However, the general principle remains the same: a business owner must do everything reasonably possible to prevent harm to others from their work.
So, what's the risk?
Section 36.1.b underscores that every individual in a
workplace deserves the same level of care and safety, irrespective of their
employment status. As a business owner, embracing this ensures you're compliant
with the law and fosters a culture of safety and care in your workplace—a
win-win for everyone. Safety should never be a checkbox activity; it’s a
continuous commitment to improvement, and it's good for business.
The Safety Lab NZ can help you with all aspects of your
primary duty of care. We offer audit and training services and technical
solutions to help you comply with the HSWA and create a safe and healthy
workplace that helps you to manage your suppliers, contractors and consultants
effectively. Contact us today to find out how we can assist you.