A key aspect of the HSAW is the creation of a new duty holder, known as a Person Conducting a Business or Undertaking (PCBU). A PCBU means a person conducting a business or undertaking:
whether the person conducts a business or undertaking alone or with others; and
whether or not the business or undertaking is conducted for profit or gain.
The PCBU is a broad concept, which will encompass the existing duty holder categories (such as employers, principals, and persons in control of a place of work) under the Health and Safety in Employment Act 1992 (HSE Act). A PCBU does not include employees or directors of PCBUs (directors are covered as officers – see below), volunteer associations, and occupiers of a home who employ or engage another person solely to do residential work.
PCBU is a broad concept that reflects modern working arrangements.
The past Health and Safety in Employment Act 1992 primarily focused on the employer and employee roles. It placed 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 these duty holders. It better reflects the complex nature of the modern workplace where there can be multiple working arrangements for workers in the same location or for the same organisation. The PCBU concept recognises that a business or undertaking has an influence over the health and safety of workers, even where those workers may not be its direct employees
All PCBUs have a primary duty of care in relation to the health and safety of workers and others affected by the work carried out by the PCBU.
HSWA ensures that everyone has a role to play and makes everyone's responsibilities clear:
Businesses have the primary responsibility for the health and safety of their workers and any other workers they influence or direct. They are also responsible for the health and safety of people at risk from the work of their business.
Officers (company directors, partners, board members, chief executives) must do due diligence to make sure the business understands and is meeting its health and safety responsibilities.
Workers must take reasonable care for their own health and safety and that their actions don't adversely affect the health and safety of others. They must also follow any reasonable health and safety instruction given to them by the business and cooperate with any reasonable business policy or procedure relating to health and safety in the workplace.
Other people who come into the workplace, such as visitors or customers, also have some health and safety duties to ensure that their actions don’t adversely affect the health and safety of others.
The primary duty of care requires all PCBUs to ensure, so far as is reasonably practicable:
the health and safety of workers employed or engaged or caused to be employed or engaged, by the PCBU or those workers who are influenced or directed by the PCBU (for example workers and contractors)
that the health and safety of other people is not put at risk from work carried out as part of the conduct of the business or undertaking (for example visitors and customers).
The PCBU's specific obligations, so far as is reasonably practicable:
providing and maintaining a work environment, plant and systems of work that are without risks to health and safety
ensuring the safe use, handling and storage of plant, structures and substances
providing adequate facilities at work for the welfare of workers, including ensuring access to those facilities
providing information, training, instruction or supervision necessary to protect workers and others from risks to their health and safety
monitoring the health of workers and the conditions at the workplace for the purpose of preventing illness or injury.
A self-employed person is a PCBU. In addition to the primary duty of care, they must also ensure, so far as is reasonably practicable, his or her own health and safety while at work.
PCBUs may also have other specific and ongoing duties, depending on what they manage or provide.
A "worker" is defined as a person who carries out work in any capacity for a PCBU, including work as an employee, a contractor or subcontractor, an employee of a contractor or subcontractor or an employee of a labour hire company who has been assigned to work for the PCBU, an outworker, an apprentice or trainee, a person gaining work experience or undertaking a work trial, a volunteer or a person of a prescribed class.
The definition is broad, and like the PCBU definition is designed to encompass a number of relationships that are typical in a work environment (such as employees, contractors, subcontractors, employees of contractors or subcontractors, volunteers and trainees).
HSWA applies to nearly all work in New Zealand, however there are a few exceptions:
members of the Armed Forces carrying out operational activity
civilians working in support of Armed Forces overseas in an area of operational activity
any military aircraft or naval ship carrying out operational activity.
The HSWA replaces the current standard under the HSE Act ("All Practicable Steps") with a new "reasonably practicable" standard.
"Reasonably practicable" is defined as: "...that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including:
the likelihood of the hazard or the risk concerned occurring;
the degree of harm that might result from the hazard or risk;
what the person concerned knows, or ought reasonably to know, about
the hazard or risk; and
ways of eliminating or minimising the risk;
the availability and suitability of ways to eliminate or minimise the risk; and
after assessing the extent of the risk and 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."
The new standard is broadly similar to the existing concept of "All Practicable Steps", except that the assessment of costs must only be taken after the assessment of the risk and the ways to eliminate that risk. This means that costs will only take precedence over safety when the cost of taking a step is "grossly disproportionate" to the risk.