Blog Series – Section 38 – Duty of PCBU who manages or controls fixtures, fittings, or plant at workplaces
In part five 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.
In the realm of workplace safety in New Zealand, the HSWA lays out clear guidelines to ensure the wellbeing of all involved. Today, let's delve into Section 38, a crucial part of the Act that outlines the duties of businesses and business owners (PCBUs) who manage or control fixtures, fittings, or plant at workplaces.
If you are a business owner or operator in New Zealand, you may already know of the Health and Safety at Work Act 2015 (HSWA), the primary law governing workplace health and safety. It sets out the duties and responsibilities of various parties, such as businesses, officers, workers, and others, to ensure everyone involved in or who can be affected by the work remains safe and healthy.
But what does this mean in practice? How can you comply with this duty, and what are the risks of not doing so? In this blog post, we will try to answer these questions and provide some practical guidance for your business.
So, what does the legislation say?
Section 38 of the HSWA states:
A PCBU who manages or controls fixtures, fittings, or plant at a workplace must, so far as is reasonably practicable, ensure that the
fixtures, fittings, or plant are without risks to the health and safety of any person.
As with other sections of HSWA, a PCBU who manages or controls fixtures, fittings, or plant at a workplace does not owe a duty under that subsection to anyone at the workplace for an unlawful purpose.
In this section, a PCBU who manages or controls fixtures, fittings, or plant at a workplace means a PCBU to the extent that the business or undertaking involves the management or control of fixtures, fittings, or plant (in whole or in part) at a workplace.
Again, as with other sections, some exceptions relate to
occupiers of a residence unless it is occupied in full or in part to conduct a
business or undertaking, and regarding prescribed persons.
So, what does it mean to a business owner?
For a business owner, Section 38 accentuates the responsibility associated with managing or controlling fixtures, fittings, or plant within a workplace. It's not merely about maintaining these elements; it's about ensuring they pose no health and safety risks to anyone, so far as is reasonably practicable, that interacts with or around them.
This means that you must consider:
- the likelihood and severity of the harm that could result from the fixtures, fittings, or plant
- the availability and suitability of ways to eliminate or minimise the risks
- the cost of eliminating or minimising the risks and whether it is grossly disproportionate to the risk
You must also consult, cooperate, and coordinate with other businesses and business owners who have the same or overlapping duties as you concerning managing this risk and engage with your workers and their representatives (if they have any) on health and safety matters.
So, what does this look like in reality?
However, some general steps that you can take are to:
- Identify the fixtures, fittings, or plant you manage or control at your workplace, and the potential hazards and risks they may pose to health and safety.
- Assess the level of risk and prioritise the most significant ones.
- Eliminate the risks if possible, or minimise them if not. This could involve, for example, replacing, repairing, maintaining, inspecting, testing, isolating, guarding, or securing the fixtures, fittings, or plant, or providing information, instruction, training, or supervision to the workers and others who use them.
- Monitor and review the effectiveness of the control measures and make adjustments as needed.
- Keep records of your risk management process and the actions you have taken.
Some examples of how you can apply Section 38 in different scenarios are:
- If you own a café, you must ensure that the fixtures, fittings, or plant that you use to prepare and serve food and drinks, such as ovens, fridges, coffee machines, or tables and chairs, are safe and do not pose any risks of injury, illness, or infection to your workers, customers, or suppliers. This could involve, for example, cleaning and sanitising them regularly, checking and fixing any faults or defects, providing adequate ventilation and lighting, or displaying warning signs or labels if there are any hazards.
- If you run a construction company, you must ensure that the fixtures, fittings, or plant that you use to carry out your projects, such as scaffolding, cranes, power tools, or ladders, are safe and do not pose any risks of falling, crushing, electrocution, or noise to your workers, subcontractors, or the public. This could involve, for example, installing and dismantling them correctly, following the manufacturer's instructions and specifications, providing personal protective equipment, or restricting access to the work area.
- If you operate a retail store, you must ensure that the fixtures, fittings, or plant that you use to display and sell your products, such as shelves, racks, mannequins, or cash registers, are safe and do not pose any risks of slipping, tipping, tripping, falling, or fire to your workers, customers, or delivery drivers. This could involve, for example, arranging and securing them properly, keeping the floor and aisles clear and dry, providing adequate emergency exits and fire extinguishers, or training your workers on how to handle cash and prevent theft.
So, what's the risk?
Failure to comply with Section 38 poses significant risks. It could result in accidents, injuries, or even fatalities within the workplace. Non-compliance may also lead to legal consequences, financial repercussions, damage to the business's reputation, and a decline in employee morale and productivity.
Section 38 underscores the importance of proactive measures to eliminate or minimise workplace fixtures, fittings, and plant risks. By embracing these duties, a business not only complies with the law but also cultivates an environment where safety is paramount.
The cost of compliance is far outweighed by the value it brings to the business's health, safety, and overall success through proactive and preventative measures.
The Safety Lab NZ can help you with all aspects of your primary duty of care. We offer health check audits, property risk assessments, training services, and technical solutions to help you comply with the HSWA and create a safe and healthy workplace that helps you effectively manage your suppliers, contractors, and consultants. Contact us today to find out how we can assist you.