New Health and Safety Act - big impact on multi-contractor sites

​This article first appeared in the June/July issue of Infrastructure magazine.

The Health and Safety at Work Act, due to come into effect next April, will have a major impact on how large work sites operate, and on the extent of health and safety liability.

The Act is still a Bill at this stage and is due to be reported back from select committee on 13 September.  But it has wide support in Parliament and is expected to be passed before the elections.  The regulations to support the new Act are being consulted on now with a submission deadline of 18 July.

The big change the Act will effect at the worksite level is that there will be one duty holder in law – the PCBU (person conducting a business or undertaking).  The PCBU will hold the duties owed under the current system by the principal contractor, the employer and the site manager.

There will be many PCBUs on the typical work site and, therefore, many duty holders.  And many of the duties will be shared or will overlap, requiring consultation and coordination among PCBUs.

Overlapping and shared duties

The owner, designer, commissioner, head contractor and sub-contractors will each be a PCBU.  PCBUs cannot contract out their duties but they can arrange with other PCBUs to take responsibility for certain activities.  Where this happens, they must satisfy themselves that those arrangements have been made, and to an adequate standard. 

A simple example (and one used in the Australian model code of practice for construction work) is the duty of both a principal contractor and a subcontractor to ensure access to first aid facilities at a workplace.  It is likely that such facilities will be provided by the head contractor but the subcontractor must formally confirm that they are in place and accessible to workers.

Primary duty

The primary duty of a PCBU under the new regime is to take all reasonably practicable steps to ensure the safety of both the workers the PCBU engages directly and the workers it influences or directs. 

This definition is broad and will likely mean that a head contractor will owe a health and safety duty to all workers on site (even those engaged by sub-sub-contractors) by virtue of setting work deadlines, setting requirements for equipment/phasing and the general method of work. 

But the most significant change may be for sub-contractors who will now owe duties to workers of other sub-contractors where there is a cross-over of work, or where one contractor’s scope of work influences others – for example, as plumbers, builders, roofers, electricians, plasterers may, by working alongside or sequentially, influence each other.

Duties owed by persons with management or control of a workplace

The person with “management or control” of the site will owe a separate duty to ensure, so far as is reasonably practicable, that the workplace, the means of entering and leaving it and anything arising from it are without risks to the health and safety of any person.

This duty is owed to “any person” not just, as now, to workers and authorised visitors.  It will include taking reasonable steps to ensure that the workplace is safe from unauthorised access.  In practice, that will require an evaluation of the risks which could be incurred by unauthorised access, the likelihood that it might occur and, if it cannot be prevented, the measures needed to isolate hazards within the workplace and the costs of such measures.

This might not be just the head contractor’s or owner’s responsibility.  If the builder and subcontractors have “management or control” over an area within the wider worksite, they will have to ensure that any hazards within that area (or on entry and exit) are eliminated or isolated, that the area is secured against unauthorised access prior to leaving the site, and that they coordinate and consult, where required, with other duty holders on these matters.

Work groups

Workers will have stronger participation rights, including an ability to elect an H&S representative and to establish H&S work groups.  These can exist in a kind of patchwork across the workplace with a single work group spanning multiple PCBUs and individual PCBUs having their own work groups in place.

But the aim in the Bill as now drafted is that a single work group should be formed that is made up of all the workers on site (regardless of who ‘their’ PCBU is).  This would have the benefit that H&S representatives could channel matters through to the appropriate PCBU or PCBUs.

However, the discussion document on the regulations suggests PCBUs should be able to withdraw from negotiations to set up a work group that involves multiple businesses.  This is a new development and a matter people may wish to submit on.

Practical implications?

Some things won’t change much.  The head contractor should continue to control the site, operate a hazard register/notification system and run site meetings to coordinate work.

But companies need to be aware of the broader scope of their duties.

Practical changes could include:

  • more oversight/checking of downstream sub-contractors, including their H&S systems, work practices and control measures on site
  • greater communication and coordination between and among sub-contractors
  • improved systems that enable the head contractor to ensure that the work is being carried out safely, even if they are absent from site
  • increased auditing and monitoring of subcontractors, with the potential result that those with poor H&S practices are not considered for further jobs.

There may also be more direction to come from the approved codes of practice which are currently being developed.  The Australians have developed a specific code of practice for construction work and the government is seeking feedback on whether New Zealand should follow suit.

Marie Wisker specialises in employment law and professional indemnity advice.

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