March 10 2016
A new era begins
The Health and Safety at Work Act 2015 comes into force on Monday, 4 April this year. Since the Pike River tragedy thrust workplace health and safety firmly into the limelight we have published several articles outlining the likely changes to health and safety law.
We thought it would be a useful exercise to summarise the main changes that have been made and how they will affect the rural community.
One of the major issues that arose out of Pike River was that of accountability. The general public seemed confused that after such a terrible disaster no one seemed to be held accountable. The Act addresses this by the creation of the ‘PCBU’ (a person conducting a business or undertaking). A PCBU can be a person or business and there may be more than one PCBU for the same workplace. It’s the PCBU that has the ‘primary duty of care’ (and therefore liability under the Act) in a workplace. Officers of PCBUs (directors, partners or senior management) also face significant penalties under the Act for failing to exercise due diligence in ensuring the PCBU carries out its duties.
A farm is a typical example of one or more PCBUs operating at the same time. It’s therefore critical for farmers to identify who is responsible for what. The Act also addresses accountability by:
Prohibiting the transfer of health and safety duties to others, and
Prohibiting insuring against health and safety risk.
Risks and hazards
If you operate a farming enterprise it’s your responsibility to ensure that risks and hazards on that farm are identified. You must also ensure that procedures are in place to eliminate risks to health and safety, so far as reasonably practical.
It’s not good enough to simply prepare (or purchase) a health and safety policy, put it in a drawer and think that you have fulfilled your duties under the legislation. You must ensure that your employees or contractors are aware of the policy and follow it. You need to provide adequate training to ensure that the policy is a ‘living’ thing rather than just a box to be ticked.
If you have contractors or other entities on your property then you must ensure that they have proper health and safety procedures in place and provide you with a copy of those procedures. Once again this shouldn’t simply be a box to be ticked but be looked at properly to ensure that the procedures are appropriate. Even in these instances a farmer can’t turn a blind eye if he or she sees a contractor doing things that would constitute a risk to health and safety.
Defining the workplace
Recognition of the farm as a unique work environment was acknowledged at the Select Committee stage. The farm ‘workplace’ is now defined as the place where ‘farm work is actually being carried out at the time’, and the farmhouse and related buildings are excluded from the definition of ‘workplace’.
Under the Act no duty is owed to a person who is in a workplace for an unlawful purpose, such as trespassers or poachers. However as referred to in previous articles, farms are often used for community purposes such as orienteering, tramping, school sports days, promotional events and so on. Often these uses are customary in as much a farmer may or may not be aware who is on the farm at any particular time. This is particularly so with farms that are used for hunting and tramping access. It may be that farmers will require some more formality around these activities. What part of the farm is a workplace is a movable feast, often with little time to give notice as to what is being carried out where and when.
The other difficulty for the rural community is that farm jobs often tend to cover many disciplines – workers may operate heavy machinery, handle stock, work in potentially dangerous physical locations, during weather events and often for long hours all in the same day. The reality is the PCBU needs to assess all of the situations that those workers might be in and, as far as is practical, identify health and safety risks and ways to manage them. The days are gone where you can ask an employee without proper training to ‘learn on the job’.
The ‘she’ll be right’ attitude is no longer acceptable. There’s no doubt that Worksafe New Zealand will be looking to put stakes into the ground as far as what is expected of employers in the new environment.