New Zealand's new Health and Safety at Work Act 2015, which came into force on 1 April 2016, introduces a positive obligation on businesses to "consult, co-operate with, and co-ordinate activities" with other businesses in respect of their shared workplace health and safety duties. This provision has been introduced to improve communication between parties with concurrent duties, with the hope that this will improve workplace health and safety.
Consultation, co-operation and co-ordination
Generally, where there are multiple businesses at the same location, such as in construction sites, shopping centres and multitenanted buildings, those businesses will have overlapping duties. Under section 43(1) of the Health and Safety at Work Act 2015 (the Act), where those businesses have concurrent responsibilities, they will each be under a duty to "consult, co-operate with, and co-ordinate" with all other persons conducting a business or undertaking who have similar duties, so far as reasonably possible. A business does not necessarily have to take action in relation to the duty itself; rather, this provision simply ensures that shared responsibilities are considered, understood and allocated.
The Act does not define the duty to consult, co-operate and co-ordinate, and the guidance released alongside the Act is limited. However, it is clear that the three duties are aimed at reaching a common understanding and establishing clear roles, responsibilities and actions in relation to work health and safety.
The relevant businesses should therefore consult to identify risks, share information about their roles and responsibilities and suggest ideas to help improve workplace health and safety. The duties to co-operate and co-ordinate are aimed at avoiding unnecessary duplication of work and ensuring that working arrangements involving shared responsibilities are run smoothly and efficiently, leading to both improved health and safety standards and potential long-term costs savings.
If a business contravenes its duty to consult, co-operate and co-ordinate, it can be liable to a fine not exceeding NZD 20,000 (for an individual) or NZD 100,000 (for any other person).
Why has this provision been introduced?
It is easy to think of situations where businesses sharing concurrent duties can cause "gaps" in the protection of employees. For example, one business may assume that another business is taking care of a particular health and safety issue, or the business responsible for managing certain risks may not be the one in the best position to do so. By imposing an obligation on businesses to communicate with each other, the likelihood of these "gaps" causing serious harm to employees reduces.
On 27 May 2016, the Southern Australian Industrial Relations Court used an equivalent provision in Australian law for the first time to convict a business for failing to consult, co-operate, and co-ordinate activities with respect to their concurrent duties. Businesses in New Zealand should take this obligation, and their concurrent duties, seriously to ensure that they are not the first to fall foul of the Act in the same way.