Health, Safety and Wellbeing advisor

So, what’s the risk – Primary Duty of Care (Pt.2)

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 ‘quoting’ legislation!

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
– subcontractor 
– 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 overlapping 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?

 – How do you identify, control and integrate the risks associated with contracted or consultancy work?

 – How do you communicate and consult with your consultants and contractors on health and safety matters?

 – How do you provide workers with a safe work environment and adequate facilities?

 – How do you provide appropriate information, instruction, and supervision or oversight to your work with consultants and contractors?

 – How do you monitor and measure your health and safety performance and outcomes of consultancy or contracted work?

Some of these common issues could translate to the following actions:

– Expansive Risk Assessment: Go beyond your immediate staff. Ensure your workplace is safe for every worker, whether permanent employees or contractors.

– 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.

Latest Articles