Determining responsibility

Changes to the Health and Safety Reform Bill aim to clarify who is in the best position to control workplace health and safety. Here, WorkSafe New Zealand provides an update on the bill as it moves through parliament 

The Health and Safety Reform Bill introduces the concept of a Person Conducting a Business or Undertaking (PCBU).

PCBUs are considered to be in the best position to control risks to work health and safety, precisely because they are the ones carrying out the business or undertaking. This is why the PCBU will have the primary duty under the new law.

What is a PCBU?

A PCBU will usually be a business entity, such as a company, rather than an individual person. A person might be a PCBU if they are a sole trader or a self-employed person.

Examples include:

• Retailers.
• Wholesalers.
• Manufacturers.
• Importers.
• Owner-drivers of their own business.
• A fast food franchisor and the operator of the fast food outlet (the franchisee).
• A self-employed person operating their own business.
• A government department.
• A local council.
• A school.
• A partnership.
• A building company, including principal contractors and sub-contractors.
• A not-for-profit organisation that employs admin staff.

Definition of a business or undertaking:

• A business is an enterprise usually conducted to make a profit, with a degree of organisation, systems and continuity.
• An undertaking may have some degree of organisation, systems and continuity, but is usually not profit-making or commercial in nature.

Why will the new law have PCBUs?

PCBU is a broad concept that reflects modern working arrangements.

The current Health and Safety in Employment Act 1992 primarily focuses on the employer and employee roles. It places duties on carefully defined participants – employers, principals, the self-employed, persons controlling a place of work and suppliers of plant.

The PCBU concept replaces all of them. It better reflects the complex nature of the modern workplace, where there can be multiple working arrangements for workers in the same location and/or working for the same organisation.

The PCBU concept recognises that a business or undertaking has an influence over the health and safety of workers, even those it may not directly employ.

Clause 13 of the Bill sets out the meaning of a PCBU. You’re not a PCBU if you are:

• Employed or engaged solely as a worker or an officer (for example a company director) of the business or undertaking.
• A householder where you engage or employ someone solely to do residential work on or in your home.

Summary

• The PCBU concept captures the full range of duty holders in the modern work environment.
• The question people should ask is not “Am I a duty holder?” but rather “I am a duty holder, what can I reasonably do to meet my duty?”
• All PCBUs have a primary duty of care to ensure the health and safety of workers, and others, affected by the work carried out by the PCBU.

Still not sure who the PCBU is? Check out some of the scenarios below:

Scenario 1

Kitchen Construction Limited (KCL) operates a small business, which specialises in the building and renovation of kitchens. Simon is the sole director. KCL employs several full-time staff and regularly contracts Todd, a self-employed electrician.

• KCL is a PCBU conducting the business of building and renovating kitchens.
• KCL’s employees are workers of KCL.
• Simon is an officer of KCL.
• Todd is a PCBU, in his own right, conducting his electrician business.
• When engaged by KCL to complete electrical work on KCL’s projects, Todd is a worker of KCL.

Scenario 2

Mary owns a small lifestyle block. She wants chickens and a large garden to provide fresh eggs and vegetables for her family of eight. The property is not connected to the town water supply, and Mary has engaged Maximum Plumbing Limited (MPL) to upgrade the house’s plumbing to install a secondary water tank to ensure that there is enough water to go around. Three plumbers from MPL will be working in and around Mary’s home for several days to finish the upgrade.

• As Mary has engaged MPL only to undertake residential work on her home, she is not a PCBU.
• MPL is a PCBU. It is in the business of providing plumbing services and owes a duty of care to ensure its workers, and others (including Mary), are not put at risk by the work undertaken to upgrade the house’s plumbing.

 

Main image: As a PCBU, you have a duty to ensure the health and safety of all staff working on your site – even those you don’t employ directly