Module One, Part C - Duties of a Person Conducting a Business or Undertaking

Person Conducting a Business or Undertaking (PCBU)

This section contains information on the following topics:

The PCBU (section 17 of the Health and Safety at Work Act 2015 (HSWA)).

The concept of a PCBU is the critical change to health and safety legislation in New Zealand.  It reflects a move away from the former focus on the employer and employee relationship to better reflect the way business is conducted now.  The PCBU is the legal entity carrying out a business or undertaking and is important to the scheme of the new legislation as it is the primary duty holder under HSWA.  A PCBU is intended to be broad in its definition so that it covers all work and business activities.  The reference to 'person' can be confusing as it is a legal concept, rather than a reference to an individual.  A PCBU can be a person conducting a business or undertaking alone, such as a sole trader, or with others, such as a business entity.  A business is a PCBU whether or not it is driven for profit, or non-commercial in nature. A local authority is a PCBU.

A limited number of enterprises fall outside the definition of a PCBU but those are only truly volunteer associations, a home occupier who hires home help, and some other limited exceptions.

 

Table 1 - Examples of persons and organisations that are PCBUs

Is it a PCBU?

Retailer

Yes

Owner-driver of their own transport or courier business

Yes

Self-employed person, contractor or consultant

Yes

Partners in a partnership

Yes

Government department of government agency

Yes

Local authority

Yes

Charities (eg SPCA)

Yes

Council-controlled organisations

Yes

Table 2 - Examples of persons and organisations that are not PCBUs

Example

Is it a PCBU?

Why not?

Volunteer associations

No

S17(b)(ii)

Home occupiers

No

S17(b)(iii)

Officers

No

S17(b)(i)

Workers

No

 

The full legal definition of PCBU can be found in Section 17 of the Act.

The PCBU and the Primary Duty of Care (section 36 HSWA)

A PCBU's primary duty of care is to ensure, so far as is reasonably practicable, the health and safety of:

(a)        its workers: and

(b)       workers whose work activities are influenced or directed by it; and

(c)        other persons not put at risk from work of the PCBU. 

  A PCBU must also ensure, so far as is reasonably practicable that it is:

  • providing and maintaining a work environment that is without risks to health and safety;
  • providing and maintaining safe plant and structures;
  • providing and maintaining safe systems of work;
  • ensuring the safe use, handling and storage of plant, structures and substances;
  • providing adequate facilities for the welfare of workers when they doing work for your business, including ensuring access to those facilities;
  • providing any information, training, instruction, or supervision that is necessary to protect all persons from risks to their health and safety arising from the work of your business;
  • monitoring the health of workers and the conditions at the workplace for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking; and
  • providing healthy and safe worker accommodation if applicable.

As a PCBU, a Council must ensure that all its workers (including volunteer workers) have:

  • A work environment that is free from risks to health and safety. This can include risks of physical harm such as injuries and ill health and risks to psychological health.
  • Safe equipment, structures and systems of work.
  • Safe use, handling and storage of plant, substances and structures.
  • Adequate and accessible welfare facilities such as toilets, drinking water, washing and eating facilities.
  • The necessary information, training, instruction, or supervision to do the work safely.
  • The monitoring of worker health (where relevant) and exposure at the workplace to hazards, for the purpose of assessing the effectiveness of controls.

Management of Risks (section 30)

So far as is reasonably practicable, a PCBU is required to:

  • eliminate risks to health and safety; and
  • if elimination is not possible, to minimise them.

The PCBU must do what lies within their ability to influence and control the matter to which the risks relate.

Duties cannot be contracted out or transferred

The duties imposed on a PCBU cannot be delegated or transferred to another PCBU or individual.  Any contract that purports to do this is void under HSWA (section 28) and it is an offence that attracts a fine on conviction (up to $250,000 for a PCBU).

Even if another PCBU has the same duty, each PCBU must still meet its duty as the duties are overlapping and concurrent (sections 32 and 33 HSWA).

What does reasonably practicable mean? (section 22 HSWA)

Reasonably practicable in relation to the duties of a PCBU means that which is, or was, at a particular time, reasonably able to be done to ensure health and safety.  To do this, a PCBU must take into account and weigh up all relevant factors (including those listed under "Weighing it up - deciding what is reasonably practicable").

The primary duty of care to ensure health and safety is to do what is reasonably practicable. PCBUs are not expected to guarantee the health or safety of their workers (or others who may be affected by work carried out as part of the business or undertaking), but they must do what can reasonably be done to ensure health and safety. In summary, this means that councils as PCBUs must always consider first whether they can reasonably eliminate risks to health and safety. If not, they must take reasonably practicable steps to minimise risks under health and safety laws.  This obligation applies to the extent the council has, or would reasonably be expected to have, the ability to influence and control the matter to which the risks relate.

It means councils need to:

  • determine what kind of risks are caused by the work
  • consider how likely those risks are to occur and what harm could result if they did
  • take appropriate action that is proportionate to the injury or ill-health that could occur
  • implement well-known and effective industry practices
  • involve staff in identifying and controlling risks.

It DOESN’T mean councils have to:

  • buy the most expensive equipment or services on the market
  • spend the bulk of a working week on health and safety training, compliance and documentation.

Weighing it up – deciding what is reasonably practicable

When determining what is reasonably practicable, a PCBU must take into account and weigh up all relevant matters, including (but not limited to): 

  • the hazards and risks associated with the work and the likelihood of the hazard or risk occurring; and
  • the degree of the injury or harm that could result from the hazard or risk; and
  • what the person knows or reasonably should know about the hazard or risk and the ways of eliminating or minimising it; and
  • what can be done to eliminate or minimise the risks and how available and suitable these risk controls may be; and
  • after assessing the extent of the risk and the means of eliminating or minimising it, the cost associated with eliminating or minimising the risk, including whether it is grossly disproportionate to the risk.

Under the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 (Risk and Workplace Management Regulations) a risk management process that must be followed is set out in Regulations 5 to 8.  The Risk and Workplace Management Regulations also set out controls that must be met and monitored.

Before weighing up if something is reasonably practicable consider:

  • common controls for common risks;
  • the absence of common controls and the implications of this absence; and
  • choosing not to use common controls, and if not, why not.

If council uses best practice industry standards or accepted guidelines for carrying out a task (common controls), then it is more likely than not that the actions that council is taking are suitable to protect health and safety. Where such common controls are available, the regulator Worksafe expects that these are followed under most circumstances.

If there are no common controls, then councils need to:

  • evaluate the risk of the activity and the ways it can be controlled; and
  • consider the costs and if they are proportionate to the risk

In undertaking these evaluations think about:

  • relevant elements of the risk;
  • options to control the risk; and
  • weighing up the potential risk against the time and cost needed to control it

If the council is not using a common control to manage the risk, then councils should think about the questions in Table 3.

 

Table 3 - Sample high level questions

Question

Explanation

How likely is the risk to occur?

The more likely a risk is to occur, the more should be done to eliminate or minimise the risk. Your response should be proportionate to the risk.

How severe is the harm which might result from the risk?

More should be done to eliminate the risk if death, serious injury or a serious health issue is a possible or likely result. The greater the potential harm, the greater the response required.

What do you know, or ought to reasonably know, about the risk and the ways of eliminating or minimising it?

You are expected to find out if there are any ways to eliminate or minimise the risk. Doing a risk assessment, talking to workers and other PCBUs (especially Councils) in the industry and health and safety representatives, and looking at health and safety records and processes of others may help inform decisions.

The availability of the control measures, and how suitable they are for the specific risk

How a risk is eliminated or minimised will depend on the situation, type of work, work environment etc. This is where you will need to apply existing industry knowledge and judgement to figure out the best actions to take.

Consider whether the cost of setting up control measures is grossly disproportionate to the risk

Cost alone will rarely be an acceptable excuse for not setting up a necessary control for a risk.

The objective is to achieve a balance to ensure that the result provides the highest protection reasonably practicable in the circumstances. Responses must be proportionate to the risk. This is termed "proportionate risk management"

Other specific duties of care for council as a PCBU

In addition to the primary duty of care, Councils need to consider the following:

  • Volunteer workers;
  • Managing duties relating to workplaces including the management or control of fixtures, fitting or plant at a workplace;
  • Overlapping duties with other PCBUs; and
  • Upstream PCBUs

Volunteer workers (section 19(3) HSWA)

A volunteer becomes a volunteer worker for a PCBU when:

  • they work (in any capacity) for a PCBU with its knowledge and consent; and
  • the volunteer does the work on an on-going and regular basis; and
  • the work is an integral part of the business or undertaking; and
  • the work is NOT:
  • participating in fundraising;
  • assisting with sports or recreation for an educational institute, sports club, or recreation club;
  • assisting with activities for an educational institutes outside its premises or
  • providing care for another person in the volunteer's home

A volunteer must meet all of the above to be considered a volunteer worker.

A Council owes its volunteer workers the same duties of care as other workers, with the exception of the duties in Part 3 of HSWA (worker engagement and participation).

 

Example: Managing volunteer worker health and safety

Emily is a volunteer who works in KiwiTown Public Library. She works every week, on Monday, Wednesday & Friday.  She returns books to the shelves and undertakes book repair.  Without the volunteers, books would not be returned often enough, and book repair would not occur.

Emily's induction should include matters such as:

  • showing her where to find toilets, the first aid kit, drinking water, washing and eating facilities.

  • ensuring she is informed of all the hazards in her workplace, including:

    • risks to ill health (such as borrowers with colds and flu)

    • risks to psychological and physical health (such as angry or mentally disturbed borrowers)

    • risks to physical health (lifting and carrying books, using the office shredder, correct use of materials for book mending)

  • ensuring Emily is trained in how to perform each of her duties safely such as ergonomic techniques for moving books and safe use of tools for book repair

  • ensuring Emily is supervised until such time as her supervisor is confident that she is fluent in her safe work techniques

  • informing Emily about:

    • workplace health and safety policies,

    • where health and safety information is kept,

    • who her health and safety representative is

    • how to respond to a health and safety incident

    • incident reporting procedures, including near misses

    • risk and hazard reporting procedures

    • emergency evacuation procedures, including how to assist members of the public to evacuate from the library

    • how to deal with agitated or aggressive users or members of the public at the library

 

Duties of a Volunteer Worker

Volunteer workers have the same duties as other paid workers and must:

  • take reasonable care of their own health and safety,
  • take reasonable care that what they do or don’t do doesn’t adversely affect the health and safety of others,
  • cooperate with any reasonable policies or procedures the business or undertaking has in place on how to work in a safe and healthy way, and
  • comply with any reasonable instruction (policy or procedure) given by the business or undertaking so that they can comply with HSWA and the regulations.

Just as for all other workers, it is important that councils make volunteer workers aware of the importance of reasonable care. Reasonable care means that workers should do what a reasonable person would do in the same circumstances.

  • We recommend you outline to volunteer workers: what the risks and outcomes are of the week
  • the importance of  andtasks that they have been trained to do or are familiar with
  • reporting new hazards and risks to the council
  • being familiar with the council's health and safety policies and rules
  • providing feedback on health and safety issues
  • using any personal protection equipment that is provided, and storing and maintaining it as instructed
  • participating in health monitoring programmes.

Managing duties related to workplaces

What is a workplace? (Section 20 HSWA)

Workplaces are covered by the duties under HSWA so it is an important definition.  If it is not a workplace, HSWA does not apply.

A workplace under HSWA means a place where work is being carried out, or is customarily carried out, for a business or undertaking. This includes any place where a worker goes, or is likely to be, while at work, so it need not be one permanent workplace (eg a power pole, sportsgrounds mowed by Councils, walkways maintained by Councils, gardens in city centres etc.)

Place includes:

  • A vehicle, vessel, aircraft, ship, or other mobile structure
  • Any waters and any installation on land, on the bed of any waters, or floating on any waters.

All councils manage or control a wide variety of very different workplaces (eg. head offices, pools, wast water facilities, libraries etc).

So far as is reasonably practicable, a council in managing or controlling a workplace must also ensure the means of entering or exiting the workplace or anything else arising from the workplace are without health and safety risks to any person, including the Council's workers and volunteer workers, and users of its facilities.

An exception of this duty is those that are at a workplace for unlawful purposes. Section 37 HSWA

Examples: Managing Risks and hazards in places that may not be a permanent Council workplace

Examples of workplaces that may not be permanent include:

  • Council parks when weed spraying or grass mowing is being undertaken and Council roads and footpaths when road works or water repairs are taking place

  • Public spaces when a Council enforcement officer enters to address an unlawful activity such as illegal camping

Risks and hazards in these workplaces can impact on workers and other persons at that workplace. These can be managed in various ways;

  • Undertake risk assessments of all work and then put in place a control management plan to eliminate risks to health and safety. Minimise those risks if they cannot be eliminated.

  • The risks to workers from doing their work can be managed with appropriate training (eg safe use of tools), how to deal with aggressive or threatening behaviour, correct use of personal protective equipment (eg ear muffs, safety goggles, safety boots, breathing masks), machine guarding and maintenance, traffic safety management systems and exposure monitoring (e.g. exposure to noise or chemical sprays some councils manage chemical hazards from spraying by using non-chemical techniques for weed control).

  • Enforcement officers can expect to encounter conflict and should be trained in how to keep themselves safe. Depending on the circumstances it may be appropriate to be accompanied by another officer or a police officer.

  • Risks to other persons at the workplace can be managed with appropriate signage, traffic safety management systems and training for staff who find that other persons do not obey warning signage and barriers

Management or control of fixtures, fitting or plant at a workplace

Councils need to consider if, as a PCBU, they manage or control fixtures, fittings or plant at workplaces. If the answer is yes, the Council must ensure, so far as is reasonably practicable, that the fixtures, fittings or plant are without risks to the health and safety of any person. This includes the potential health effects from using the plant.

An exception of this duty is those that are at a workplace for unlawful purposes.

Examples: Managing fixtures, fittings or plant at a workplace

Fixtures, fitting and plant is broadly defined and captures any machinery, equipment or construction in a workplace, whether it is used for the work activity or not and whether it is fixed to the walls, floor or ceiling or is free-standing, and whether the workplace is indoors or outdoors (plant may be outdoors but fixtures and fittings are generally part of, or within, a building). It includes (amongst a great many other things):

  • Street sweepers

  • Heating and ventilation systems

  • Elevators, escalators and stairways

  • Pumps in pumping stations and public swimming pools

  • Doors and windows

  • Mowers, bitumen trucks and graders

  • Dumper trucks/diggers

In many cases, the fixture, fittings and plant will have been designed or supplied by an Upstream PCBU, so it is essential that workers and other persons use the fixtures, fittings and plant in accordance with manufacturers' direction (unless they know, or ought to know, that to do so would be hazardous)

Overlapping duties with other PCBUs (sections 33 and 34 of HSWA)

More than one PCBU may have the same duty at the same time. For example, two or more PCBU’s working together at the same location (e.g. they share a building with other tenants, or are a building owner who lets space to many businesses) or through a contracting chain, must work together to fulfil their duties of care. Section 33 HSWA

A cornerstone of HSWA is that where more than one PCBU has a duty in relation to the same matter, then each PCBU must consult, cooperate with, and coordinate their activities with all other PCBUs to meet their health and safety duties. Section 34 HSWA

A PCBU cannot contract out its duties. Any agreement or contract purporting to do so will have no effect to the extent it does, Section 28 HSWA Duties cannot be transferred either. Section 31 HSWA  PCBUs are therefore encouraged to enter reasonable agreements with other PCBUs to meet duties. PCBUs entering into agreements should monitor each other to ensure agreements are being met. Section 31 HSWA

Councils will have overlapping duties with many other PCBUs in the course of a year and during the course of its projects and contracts.  Duties are likely to arise in relation to almost every enterprise a Council conducts business with.

The three “C’s” – the duty to consult, cooperate and coordinate with other PCBUs with the same duty

By consulting and cooperating with each other, unnecessary duplication of effort can be avoided for PCBUs and more importantly, this duty helps to prevent any gaps in managing work health and safety risks. It will also help establish a common understanding and establish clear roles, responsibilities and actions.

If there is no consultation, gaps occur leading to:

  • a lack of understanding about how each PCBU works may add to the health and safety risks in the workplace as a whole or in a chain of work activities;
  • assumptions that the other PCBU is taking a particular steps to deal with a health and safety issue;
  • a PCBU less qualified to deal with a risk managing it instead of the PCBU that is in the best position to manage the risk; and
  • lack of clarity of when, where and what type of work is happening.

Extent of duties

If more than one PCBU or duty holder has a duty in relation to the same matter, each duty holder retains responsibility for their duty.  However, it is not about duplication of effort.

The extent of the duty to manage risk depends on the ability of each PCBU to influence and control the matter.

The extent of each PCBU’s responsibility to carry out their duties will most likely be different. This will depend on what ability the PCBU has to influence and control the health and safety matter (i.e. the more influence and control a PCBU has over a health and safety matter, the more responsibility it is likely to have).

A PCBU can have influence and control over health and safety matters through:

  • control over work activity: A PCBU in control of the work activity may be in the best position to control the health and safety risks.
  • control of the workplace: A PCBU who has control over the workplace (and/or plant and structures at the workplace) will have some influence and control over health and safety matters relating to work carried out by another PCBU.
  • control over workers: A PCBU will have more influence and control over its own employees and contractors than those of another PCBU when they are at the PCBU's workplace.

A PCBU with a higher level of influence and control (and with the greatest share of the responsibilities) will usually be in the best position to manage the associated risks.

A PCBU with less control or influence may fulfil their responsibilities by making arrangements with the PCBU with the higher level of influence and control. But, there is no 'hierarchy' of PCBUs – each retains, and is responsible for, its duty and it cannot seek to transfer that duty.

The size of the PCBU or its financial resources (eg a large company versus a sole trader) does not equal a PCBU’s ability to have control or influence over health and safety matters. This means that the PCBU with the most financial resources does not automatically have most of the responsibilities.

All PCBUs should:

  • discuss what work activities are being carried out
  • agree on the degree of influence and control each PCBU has
  • agree on who will manage what and how it will be managed (eg. inductions)
  • agree on the use of shared facilities
  • monitor and check how things are going on an on-going basis.

A checklist based on the WorkSafe guidance,  Introduction to the Health and Safety at Work Act 2015 is set out below.

Checklist 1 - Overlapping Duties Checklist

1. Work Activities: What work activities will each PCBU carry out?

1.1 What will each PCBU do?

 

1.2 How will they do it?

 

1.3 When will they do it?

 

1.4 Where will the activities occur?

 

1.5 What plant, substances, structures etc. will be used?

 

1.6 Which workers will be involved in the work activity?

 

1.7 Will there be other people affected by the work activity (other than workers)?

 

1.8 In what ways could one PCBU's work activities affect the work of other PCBUs?

 

1.9 Is there a risk that one PCBU’s work activities will introduce or increase the health and safety risks to other PCBU’s and other people at the workplace or down a contracting chain?

 

1.10 How could each PCBU’s work activities affect the work environment?

 

2. Health and Safety Risks

2.1 Does each PCBU have a comprehensive understanding of the health and safety risks associated with their own work?

 

2.2 Does each PCBU share this with other overlapping businesses?

 

2.3 Does more assessment need to be done to understand these risks?

 

2.4 What type of information needs to be shared between PCBU’s?

 

3. Information and resource sharing

3.1 How will each PCBU manage the risks associated with the work activities that they carry out?

 

3.2 What is the best way of sharing this information between PCBU’s?

 

3.3 Can emergency procedures, including notification of notifiable events, be co-ordinated? If so, how?

 

3.4 What other consultation or communication may be required over the duration of the work activity (e.g. to monitor health and safety or identify changes in the environment)? How will this occur?

 

3.5 Can first aid resources or facilities be shared? If so, how?

 

Upstream PCBU duties (Section 39)

PCBUs that:

  • design plant, substances, or structures
  • manufacture plant, substances, or structures
  • import plant, substances, or structures
  • supply plant, substances, or structures
  • install, construct or commission plant or structures

must, so far as is reasonably practicable, ensure that the plant, substances, and structures designed, manufactured, imported or supplied (as relevant) are designed to be without health and safety risks when they are used for their intended purpose in a workplace. This is a broad duty and covers all aspects of the plant, structure or substance. In the case of commission this is described as ordering structure or plant to be produced specially.

PCBU’s who are in the supply chain (upstream) have a duty to ensure, so far as is reasonably practicable, that the work they do or the things they provide to other workplaces don't create health and safety risks.

Upstream businesses are in a strong position to eliminate or minimise risk. They can influence and sometimes eliminate health and safety risks through designing or manufacturing products that are safe for the end user and in relation to reasonably foreseeable activities (e.g. cleaning, maintenance, repair)..

Upstream businesses must also consider the potential health effects of products before they are used in a workplace by businesses who are ‘downstream' and their workers (e.g. a plant manufacturer should consider whether the noise level of their equipment could increase the risk of noise induced hearing loss).

What councils need to consider

This content is distilled from the WorkSafe guidance,  Introduction to the Health and Safety at Work Act 2015.

PCBU’s that design, manufacture, import and supply plant, substances and structures have duties with respect to health and safety risks to people that use, handle, store, or construct plant, substances or structures. This includes a duty to test to ensure health and safety risks are eliminated or minimised so far is reasonably practicable.

Workers or volunteers engaged by councils in most situations will be the downstream user, handler, the store person or the constructor. While upstream PCBU’s will have duties to the downstream council, councils need to consider their own duties in this case.

PCBU’s that design, manufacture, import and supply plant, substances and structures have a duty to provide adequate information to people who are provided with the design or the plant, structure or substance. This includes information about:

  • each purpose for which the plant, substance or structure was designed or manufactured
  • the results of testing (calculations, analysis or examinations) carried out to ensure the plant, substance or structure is without health and safety risks (in relation to substance, this includes any hazardous properties of the substance identified by testing)
  • any conditions necessary to make the plant, substance, or structure is without health and safety risks (when used for its designed or manufactured purpose, or when being inspected, clean maintain or repaired)

It would be prudent for councils to ensure that the information provided by an upstream PCBU adequately outlines relevant information as above. Councils may want to consider the flow on effects of how this information is used to inform workers, volunteers and others (and the best way that this will be shared and communicated) that may in this process of their work or at a workplace be required to use, handle, store or construct such plant, substances or structures and the associated risks. It will be important to account for any work activities of any overlapping PCBU and how this may affect their work at a workplace or downstream contracting chain – what type of information may need to be shared with other PCBU’s.

Councils will need to consider, as is informed by the information secured from an upstream PCBU, how the overall work environment may be affected by the introduction of new plant, substances and structures. The above is also relevant where councils are in a position where they are installing, constructing or commissioning (ordering a structure or plant to be produced specially, this might include public structures or buildings or memorials) plant or structures.

In this case, there is a duty to make sure, as far is reasonably practicable, the way that the plant is installed, constructed or commissioned is without health and safety risks to people who:

  • install or construct the structure at the workplace
  • use the plant or structure at a workplace for its installed, constructed or commissioned purpose (e.g. playground equipment, especially if "bespoke")
  • carry out reasonable foreseeable workplace activities in relation to the proper use, decommissioning, dismantling , demolition or disposal of the plant or structure
  • are at, or in the vicinity of a workplace, and whose health and safety may be affected