Writer: Anita Menzies, Commercial Property Manager
Editor: Howard Morley
Recently we requested a site specific health and safety identification report from a security firm we had contracted to provide security services to a busy Auckland shopping centre. We received response from the firm’s Senior Operations & Compliance Manager which highlighted to us there is often serious confusion on the health and safety regulations and the roles around who enforces what. The Senior Operations & Compliance Manager stated that their firm is not seen as a person conducting a business or undertaking (PCBU) under the Health & Safety at Work Act 2015, and that the security firm’s role for their health and safety responsibilities is that of a contractor or subcontractor, and therefore did not need to provide us with site specific health and safety processes. This was not correct.
The commercial team at APM is all about providing a commercial property management product that is tailored to reduce risk to commercial property owners. We know that health and safety compliance is a large part of reducing commercial property risk. Therefore, given the response we received from the security firm we decided to carry out some legal research on the matter. The Health and Safety at Work Act 2015 S 30 (1) provides that risks to health and safety must be eliminated as is reasonably practicable. If it’s not reasonably practicable to eliminate risks, it must be minimised as is reasonably practicable.
So what does reasonably practicable really mean?
Section 22 of the Act provides that ‘Reasonably practicable’ means what is or was reasonably able to be done to ensure health and safety, taking into account and weighing up relevant matters including:
- the likelihood of the risk concerned occurring or workers being exposed to the hazard.
- the degree of harm that might result.
- what the person concerned knows, or ought reasonably to know, about:
- the hazard or risk.
- ways of eliminating or minimising the risk.
- the availability and suitability of ways to eliminate or minimise the risk.
- after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Risk management is not just hazard spotting. Risk management involves identifying and then assessing which work risks to deal with first. It is also about the process that a person conducting a business or undertaking (PCBU) would take to identify, assess and manage risks.
Narrow formula of who can be a Worker
The Health and Safety at Work Act clearly provides a narrow formula as to who can be considered a Worker. Section 19 tells us that a worker is an individual who carries out work in any capacity for a PCBU, including work as: (a) an employee; or (b) a contractor or subcontractor. This would mean as long as the security contract is a contract of service and not a sub-contractor contract, any guard appointed by the security company would be classified as a Worker.
Is a contracting security or cleaning company a PCBU?
Under the Health and Safety at Work Act S 17 it’s clear that a PCBU means a person conducting a business or undertaking. The definition means that the security firm’s Senior Operations & Compliance Manager made a rather serious mistake. Their company is indeed performing an undertaking of providing security services. They are certainly not classified as a Worker under Section 19 of the Act.
The reality is that some companies do not realise Worksafe New Zealand communicates that businesses that work together will likely share health and safety duties in relation to the same matters. These are known as overlapping duties. Duties can overlap in a shared workplace (eg a shopping centre or a port), where more than one business and its workers control and influence the work on site. Duties can also overlap in a contracting chain, where contractors and subcontractors provide services to a head contractor or client and don’t necessarily share the same workplace. You must, so far as is reasonably practicable, consult, cooperate, and coordinate activities with all other PCBUs you share overlapping duties with. Such duties may include managing risks in shared workplaces or activities.
An offence under the Act
An offence is committed when a PCBU without reasonable excuse, engages in conduct that is reckless to the risks and/or exposes any individual to whom a duty to eliminate or minimise risk is owed. An offence under the Act could mean a prison term of up to 5 years or a fine of up to $600,000.00.
More fine points of the Health and Safety at Work Act 2015 can be found at S 31 and S 29. Section 31 imposes that health and safety duties cannot be transferred, and Section 29 holds that any fines received for unlawful health and safety practices cannot be covered under insurance.
The Commercial Team at APM, know and understand commercial property and the needs of commercial property. It’s our commitment to thorough understanding of all aspects of commercial property which makes us the best at eliminating or reducing your risk. Contact us today if you have questions over the health and safety at your commercial property.