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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

Legal viewpoint—Principles for principals

Some school boards and principals have been spooked by the introduction of the new HSW Act. ROB COLTMAN sets out the scope of their duties.

The Health and Safety at Work Act requires people in charge of a business or other type of undertaking to properly assess risks and hazards created by their activities and to remove or minimise them where possible.

The HSW Act places obligations on:

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    a person conducting a business or undertaking (PCBU), which, in the case of a school, will be the school itself, through the Board of Trustees;
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    officers of a PCBU, who are those people who occupy a position that allows them to exercise significant influence over the management of the business; for schools this will be Board of Trustees members, the principal, and possibly other very senior staff;
  • • 
    workers, including teachers, caretakers, and any other people who work at the school, whether employed, contracted, or volunteers; and
  • • 
    other people at a workplace, notably students and their parents.

The school must ensure the health and safety of workers, and must also ensure no other person is put at risk because of the work being carried out. This includes providing a safe work environment, with safe equipment, and having suitable procedures in place.

Officers must exercise due diligence to ensure that the school complies with its obligations. This should be done by ensuring that the school has appropriate health and safety policies which are adhered to, and that hazards are recognised and eliminated or minimised.

Workers (including employees, contractors, volunteers, apprentices and trainees) have their own obligations to take care of their own health and safety, and to ensure that they do not put others at risk. They must also comply with any policies and procedures and other instructions issued by the school.

Any other person at a place of work must also look out for their own health and safety and ensure that their acts or omissions don’t affect the health and safety of others.

DUTIES OWED: TO WHO, WHERE?

The duties under the HSW Act are owed to all workers who either work for the school, or whose activities while carrying out work are influenced or directed by the school. This includes all teachers, administrators, caretakers, trainees on work experience, volunteers, and external contractors. Duties are also owed to other people who will be at the school, including students, their parents, and other visitors.

The HSW Act says a workplace is a place where work is being carried out, or is customarily carried out, and includes any place where a worker goes, or is likely to be, while at work.

For schools, this means that the workplace will be the classrooms, and also the grounds of the school, including playgrounds. Places that are outside of the school but are visited for school purposes, such as official excursions and camps, will also be considered to be workplaces. The definition also encompasses after hours events within the school grounds, such as plays or sporting fixtures. If the school has boarders, the boarding houses will also be covered.

Any assessment of risks and hazards needs to consider all of these places.

If there are other PCBUs who will owe duties, for example the organisation running the location of the school camp, the school will need to consult and cooperate with those other PCBUs. The school cannot contract out of their duties under the HSW Act, nor can it just rely on the other PCBUs to manage all of the hazards.

WHAT STEPS SHOULD BE TAKEN?

The first step for every school should be to conduct a thorough consideration of every risk. Each risk must, so far as is reasonably practicable, be eliminated. If it is not reasonably practicable to eliminate those risks, they must be minimised.

The focus on the HSW Act in the media has been on physical accidents, but it is important to give consideration to other aspects, including having policies in place to deal with illnesses (as infections and viruses can spread rapidly through children in a classroom) and bullying.

When determining whether something is reasonably practicable, the school needs to consider what can be done, and whether it is reasonable in the circumstances to do all that is possible. Cost will rarely be a reason for not taking a particular step unless the cost is “grossly disproportionate” to the risk.

There also needs to be ongoing reviews of hazards, to ensure that regular consideration is given to what hazards exist, and whether there are any methods that can be used to eliminate or minimise new or existing hazards.

There are various guides published by the Ministry of Education which provide a useful steer for schools on health and safety issues. These include the Health and Safety Practical Guide for Board of Trustees and School Leaders.

SPECIFIC HAZARDS

School playgrounds, and the risks associated with them, have been a prominent talking point. However as long as your playground is properly built, and has been assessed for risks, you shouldn’t have any concerns.

Playground equipment should be built following the Ministry of Education’s guidelines, in accordance with the NZ Standard for playground equipment, and with a building consent, if required. It should then be periodically maintained to keep it in good condition. As long as the school complies with these requirements, then WorkSafe is likely to consider that it has done everything reasonably practicable to minimise any hazard arising from the playground.

Similarly, your school swimming pool doesn’t need to be filled in. The Ministry has extensive guidelines for day-to-day pool management, signage requirements, water testing, and rules for pool use. Following these guidelines will ensure that you are doing everything reasonably practicable to minimise the risk from the school pool.

WORKER PARTICIPATION

Because duties are owed by workers as well as by the school and its officers, it is important that workers are involved in the health and safety policies. To facilitate this, the HSW Act sets out a number of requirements for worker participation, including consultation with workers when identifying hazards in the workplace, making decisions about how to eliminate or minimise those hazards, developing procedures for anything to do with health and safety, and making decisions about facilities for worker welfare.

Formal worker representation mechanisms, through representatives or committees, are just one way of involving workers in health and safety matters.

The Act says that a PCBU may decide that one or more health and safety representatives should be elected to represent the workers. If your school does not initiate this, a worker may request that an election for a health and safety representative be held. In addition to or as an alternative for a health and safety representative, a school may establish a health and safety committee, or the establishment of a committee may be requested by five or more workers or by a health and safety representative. A school will have to comply with a request for a health and safety representative or committee if it has 20 or more workers.

Regulations that work alongside the HSW Act set out:

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    how to determine the number of health and safety representatives your school should have, based on the number of work groups and workers in your school;
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    the procedure to be followed for the election of health and safety representatives;
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    that the length of term for a health and safety representative shall be three years unless a shorter time is agreed;
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    requirements for a health and safety representative to be allowed to attend training; and
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    certain requirements for the membership of a health and safety committee, if one is established.

PROVISIONS FOR TRUSTEES

If you are a principal or a member of your school’s Board of Trustees you will be an officer of the school. You may also be an officer if you are a senior staff member, particularly in large schools. As an officer you have a duty to exercise due diligence to ensure that the school complies with its duties, by:

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    acquiring, and keeping up to date, knowledge of health and safety matters;
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    gaining an understanding of the nature of the operations of the school and of the hazards and risks associated with those operations; and
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    ensuring that the school has, and uses:
    • – 
      appropriate resources and processes to eliminate or minimise risks to health and safety;
    • – 
      appropriate processes for receiving, considering and responding to information regarding incidents, hazards, and risks; and
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      processes for complying with any duty or obligation under the HSW Act.

Despite having these duties, however, a member of the Board of Trustees for state or state-integrated schools (being appointed or elected under the Education Act 1989) cannot be prosecuted under the HSW Act for failing to comply with these duties. This is a slightly bizarre situation of the law creating an unenforceable duty. It will obviously be good practice to comply with the due diligence duty. (Note: this exemption from prosecution does not apply to principals, nor to other senior staff members deemed to be officers.)

As a member of the Board of Trustees, you could still be prosecuted:

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    as an “other person” in a workplace, for breaching your obligations to take care of your own and others’ health and safety; or
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    as an officer, for failing to comply with any enforcement measures mandated by WorkSafe, such as an improvement notice or prohibition notice.

Rob Coltman is a partner with Duncan Cotterill, based in Auckland.

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