What does the Health and Safety at Work Act 2015 mean for International Departments?

There has been a fair bit of talk recently about the new laws around Health and Safety and, to be honest, some of it is pretty confusing. So, we’ve saved you the hassle and summarised all the key points and how it will directly affect you and your students.

Firstly, some background information

This bill is modelled off the Australian Health and Safety Act introduced in 2011. It is to be introduced here due to New Zealand’s high rate of workplace deaths and accidents, specifically the Pike River Mine tragedy. Figures show New Zealand has had an average of 41 registered workplace deaths per year over the last five years, hence the Government’s decision to tighten up on a few aspects of the previous Health and Safety Act.

Some of the key changes and new terms

Person Conducting a Business or Undertaking (PCBU)

This is a broad concept incorporating employers, persons in control of a workplace and principals. Note, a PCBU does not include employees.

To put this into context: your school and any tour companies are classed as PCBUs.

Duties of a PCBU

  1. A PCBU must ensure, so far is reasonably practicable, the health and safety of all workers who work for the PCBU, while the workers are at work in the business or undertaking, as well as workers whose activities in carrying out work are influenced or directed by the PCBU.
  2. A PCBU must also, so far as is reasonably practicable, provide and maintain a work environment that is without risk to health and safety.
  3. There are also specific duties imposed on PCBUs to so far as is reasonably practicable:
    1. Provide and maintain safe plant and structures and safe systems at work;
    2. Ensure safe handling and storage of plant, substances and structures,
    3. Provide adequate facilities for the welfare of workers at work as well as provide all information, training, instruction and supervision that is necessary to protect all persons from risks to their health and safety; and
    4. Monitor the health of workers and conditions of the workplace for the purpose of preventing injury and illness of workers arising from the conduct of the business or undertaking.

What does this mean for International Departments?

For all on-site or school run activities your school is classed as a PCBU and is therefore responsible for providing a safe environment for your staff and students alike. If you are contracting a student tour company, that company becomes the PCBU. In this instance the responsibility of the International Department or School will be to ensure they have the safety information of all tour companies they use on file and have reviewed them and believe the safety standards are of an adequate level.

Worker

A worker is defined as a person who carries out work in a capacity for a PCBU. This could mean as an employee, contractor or a volunteer.

What does this mean for International Departments?

International Department staff, tour company staff, any volunteers that help on trips (e.g. partners), student teachers etc. will all be classified as workers at some point. While students are at school or off-site under the guidance of school staff (if you wish to run your own trips), all school staff and ‘helpers’ will be classed as workers.

When students are away on a tour only tour company staff will be defined as ‘workers’.

Directors and Officers

Another significant change to the current legislation is the specific duty placed on those holding governance, or senior management, roles to assume a due diligence duty. That due diligence duty is imposed on “Officers” of the PCBU, who are defined as:

  1. directors of companies
  2. partners in a partnership
  3. any general partner in a limited partnership
  4. any person in a position comparable with that of a director in a body corporate or unincorporated body; or
  5. any other person occupying a position in a PCBU that allows the person to exercise significant influence over the management of the business (i.e. a chief executive).

The duty of due diligence imposed on Officers is onerous, and requires them to:

  1. acquire, and keep up-to-date knowledge of work health and safety matters
  2. gain an understanding of the risks and hazards associated to the business
  3. ensure the PCBU has and uses appropriate resources to eliminate and minimise risks
  4. ensure that the PCBU has appropriate resources and processes to respond to information regarding incidents and hazards in a timely manner; and
  5. ensure that the PCBU has and implements processes for complying with duties under the Act.

What does this mean for International Departments?

Tour company directors, and designated officers, have a duty to regularly review and potentially update their safety systems to ensure all tours that students attend are of the highest possible safety standard.

Your School Officers are likely to be the board, your principal or someone who has specifically been assigned the task of Health and Safety Officer in the school. If you as an International Department staff member are promoting a tour company you will also have a responsibility to ensure certain safety criteria are met by that specific company.

Specifically, the school ‘Officer’ has a responsibility to annually request the updated safety information from the tour company being used and to check it meets a certain criteria.

The “due diligence” obligation is a new term introduced to ensure those within a position of responsibility make sure the safety standards relating to their PCBU are of an appropriate standard.

Offences and Penalties

Penalties have significantly increased with the introduction of the new act.

Offences of reckless conduct, where a person under a health and safety duty without reasonable excuse engages in conduct that exposes any individual to whom a health and safety duty is owed to a risk of death or serious injury or illness;

  1. a person committing an offence of reckless conduct will be liable on conviction up to $300,000 or a term of imprisonment not exceeding 5 years for an individual, or up to $600,000 or a term of imprisonment not exceeding 5 years for a PCBU or an Officer;
  1. offence of failing to comply with health and safety duty that exposes an individual to the risk of death or serious injury or illness; a person committing this offence will be liable on conviction up to $150,000 for an individual, or up to $300,000 for a PCBU or an Officer;
  1. offence of failing to comply with health and safety duty; a person committing this offence will be liable on conviction up to $50,000 for an individual, or up to $100,000 for a PCBU or an Officer.

In addition to the above penalties, the Act provides for new orders which may be

imposed at sentencing, such as:

  1. Adverse publicity orders, requiring the offender to publicise in a particular manner the offence, its consequences, and the penalty imposed;
  2. Restoration orders, requiring an offender to take specified steps to remedy any matter caused by the offence;
  3. project orders, requiring an offender to undertake a specific project for the general improvement of work health and safety; and
  4. court-ordered enforceable undertakings, adjourning the proceeding for up to two years, during which the offender undertakes to comply with certain conditions.

What does this mean for International Departments?

Both tourism companies and Schools/individuals within both organisations could be charged and convicted. If a school/International Department is running its own trips and an incident occurs (which may or may not result in injury) they may be found guilty of the highest offence which is “Reckless Conduct”.

If the school/International Department is contracting a tour company the penalty for the school will decrease significantly. If a school/International Department employs the services of a tour company and requests their Safe Operational Plan or equivalent safety material and inspects it, concluding the safety measures are of a high enough standard it would be highly unlikely they’d be found liable if any incident occurred.

Conclusion – Outdoors and International Students

We are blessed within New Zealand to have an amazing outdoor adventure playground in our backyard. Students can get so much from partaking in this environment, including personal growth and development.

This Bill has been introduced solely to make workplaces and companies safer for staff and clients. It does however mean a greater responsibility for companies who provide these services. It also identifies a responsibility for any schools and specific staff members to ensure their students are partaking in the safest possible outdoor experiences. This obligation can be fulfilled by requesting and reviewing safety information.

Disclaimer: This article is written from my interpretation of the Health and Safety at Work Act as well as research and correspondence with various law firms and Safe Work Australia and Work Safe. As an Outdoor Industry professional of 10 years it is my interpretation of the Act and we recommend you get further legal advice before acting on any of these recommendations.

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