A Person Conducting a Business or Undertaking (PCBU) is essentially any entity doing business of any sort in New Zealand. PCBU's are required to ensure, so far as reasonably practicable, the health and safety of workers employed, engaged, influenced, or directed by the PCBU, and the safety of any other person who may be put at risk by work done by the PCBUs. Part of that is to get workers involved in the process of risk identification and control (workers include: employees, volunteers and contractors).
As well as consulting with workers, PCBUs with overlapping duties for the same workers, work or workplace must, so far as reasonably practicable, Consult, Co-operate and Co-ordinate activities with other PCBUs so they can all meet their combined responsibilities.
The Health and Safety at Work Act 2015 (HSWA) itself does not define these or offer much detail on how PCBUs can discharge this duty. However, WorkSafe New Zealand has published expectations for PCBUs where duties overlap. We can also draw assistance from Safe Work Australia’s (WorkSafe New Zealand’s Australian counterpart) Code of Practice on ‘consultation, co-operation and co-ordination’, and Australia’s first prosecution for failing to CCC, Boland v Trainee and Apprentice Placement Service Inc (TAPS). So what is CCC all about?
HSWA encourages and promotes information sharing and workplace collaboration between PCBUs who have overlapping duties (for example, a group of contracting companies operating in a construction site or a company which engages a contractor to say, fix a lighting issue).
The duty to consult requires the PCBUs to get together and identify any underlying issues, identify risks and methods of controlling these risks. Consultation would also require discussions around:
- what work activities are being carried out and by whom;
- the degree of influence and control each PCBU has over the workplace;
- the use of shared facilities and how will the activities of each PCBU affect the workplace;
- who will manage what and how (this includes putting in place systems, procedures and protocols for risk control); and
- monitoring compliance with systems put in place.
This requires PCBUs to share information and work together to put in place systems for managing and controlling risk in accordance with any agreements reached during the consultation process.
PCBUs are required to work together to meet their obligations and duties effectively to control risks. PCBUs can therefore co-ordinate on what systems or protocols will be implemented and how will they be implemented to control risks. PCBUs can also co-ordinate about monitoring compliance with systems that have been implemented.
This is not about one PCBU pushing all the duties onto another (remember no one can contract out of duties under HSWA but it is fine and encouraged) for PCBU's to work together to avoid duplication, or worse, conflicts over health and safety processes or rules.
The extent of each PCBU’s involvement (only in so far as reasonably practicable)
PCBUs are required to discharge their duties to Consult, Co-operate and Co-ordinate so far as it is reasonably practicable to do so. We expect a number of factors will be taken into account including, any contractual arrangements between the parties, the nature of the PCBUs’ operations (i.e. whether they share worksites, operations, etc.), relative control and influence each of the PCBUs have over the work, workers and workplace, timing and availability. Note also that this does not mean each PCBU has to become an expert in the other PCBU's work. In a contracting situation, the principal will still have to satisfy itself that the contactor has the skills, qualifications and expertise for the job. Assuming this is the case, the principal can usually rely on the contractor's expertise in doing his or her job.
PCBUs with more influence and control over a workplace or workers may have to do a little more than those with less influence and control. However, no one is entirely off the hook. The duties to Consult, Co-operate and Co-ordinate fall on each PCBU separately.
In the Australian TAPS case the employer was a voluntary organisation providing apprenticeship training schemes. One of its apprentices was severely inured when a piece of spouting came into contact with powerlines. The Court recognised how difficult the task was as there were 260 apprentices placed at 100 host employers. The employer had field officers visiting the site who had health and safety knowledge.
However, the site had no safety measures, the safety audit was inadequate and the powerlines were an obvious “real and present danger”. While the employer did not have a continual presence on the site, and obviously less influence and control, it nonetheless should have made a greater effort to consult with the host employer about the health and safety issues on the site. It should have been alert to and raised with the host employer the obvious danger.
The joint obligations set upon PCBUs to Consult, Co-operate and Co-ordinate can be beneficial to all PCBUs involved. For example, certain PCBUs on site will be better placed to identify risks that other PCBUs might not be aware of. Similarly, some PCBUs will have the ‘know-how’ to deal with certain hazards (e.g. equipment or processes).
In some situations, where worksites are shared, co-operation could save costs because businesses can potentially avoid duplication. Of course, this is not about PCBUs contracting out their own duties under HSWA; each PCBU is still required to meet its own obligations. However, PCBUs are expected to enter into reasonable arrangements with other PCBUs to ensure that risks are collectively managed.
Duty to resolve disputes
In addition to their duties to Consult, Co-operate and Co-ordinate, PCBUs have a duty to make reasonable efforts to achieve a timely, final and effective resolution of workplace health and safety issues. This is likely to include duties between PCBUs regarding the duties to Consult, Co-operate and Co-ordinate.
If a health and safety issue has not been resolved after reasonable efforts have been made, the parties may request to have an Inspector appointed to assist them in resolving the issues.
Non compliance with the requirements
PCBUs who fail to discharge their duties to Consult, Co-operate and Co-ordinate could face fines ($20,000 for individuals and $100,000 for other legal persons such as companies, partnerships and trusts).
Australia has exactly the same range but in Australian dollars, of course. In TAPS the Court took into account that TAPS had no previous convictions and was “an exemplary employer and carries out a very worthy task in assigning people to various host employers and to advance those people in their roles in employment and in the community”. It recognised TAPS early guilty plea and the steps that TAPS had taken since the incident to improve its safety consultation process and its contrition and support for the employee. It started with the low end of the range, $20,000, and then made a 40% reduction to take into account the mitigating factors and arrived at a fine of $12,000.
Importantly this was for a not for profit organisation that had no permanent presence at the workplace.
Review your current polices and systems to work out what gaps need to be filled in light of the law change.
Figure out if you have overlapping duties with other PCBUs in respect of work being done, the workplace or the workers (it is very likely that you do!). Be proactive in initiating and facilitating the Consultation, Co-operation and Co-ordination process with other PCBUs who have overlapping duties with you in relation to the work, workers and workplace. You may need to develop protocols and define parameters for each of these so that everyone is clear on what is required, how and when. This doesn't have to be a complicated exercise. Depending on the scope of the work being done, it may be a simple conversation between a business and a one-off contractor (for example, a business engaging a contractor to install a piece of equipment). The parties should discuss the work that will be done, the risks involved (both at the workplace, and any risks created by the work) and how those risks will be managed. You might want to take a note of the discussion or commit to writing any particularly important points to come out of the discussion. For an ongoing relationship, or multiple PCBU's, or a very risky type of work, it may involve something more formal – job safety analysis seeks health and safety plans, and a written agreement between PCBU's as to how tasks will be apportioned.
Seeking advice early on can help you develop efficient strategies to discharge your duties under the HSWA.