PCBU duties on a small job

If you run a business, you are a PCBU, and the duty applies whether you have fifty workers or none. What changes with size is not whether the duty exists but what is reasonably practicable to do about it. The Act is explicit that duties are scaled, and that is the part small operators most often miss in both directions.

Are you a PCBU?

A PCBU is a person conducting a business or undertaking. A company is one. A sole trader is one. A partnership is one. A self-employed contractor working alone is one, and section 36(6) spells out that a self-employed person must ensure their own health and safety so far as is reasonably practicable.

What you are not is a PCBU in your personal capacity. A volunteer association without employees is outside it, and so is a homeowner engaging a builder on their own house.

The duty, in the Act's own terms

Section 36 requires a PCBU to ensure, so far as is reasonably practicable, the health and safety of workers who work for the business and of workers whose work is influenced or directed by it. It then requires the same for other persons put at risk by the work: the client, the neighbour, the person walking past the scaffold.

Section 22 defines reasonably practicable, and it is the section that does the scaling. It asks what is reasonably able to be done, weighing the likelihood of the hazard, the degree of harm, what the person knows or ought to know about the risk and the ways of eliminating it, the availability and suitability of those ways, and finally the cost, including whether the cost is grossly disproportionate to the risk.

Cost comes last in that list and is qualified. A control is not unreasonable because it is expensive; it is unreasonable when the cost is grossly disproportionate to the risk it removes. Small operators routinely read this backwards.

What a small operation actually has to do

1. Know your risks. Regulation 5 requires you to identify the hazards that could give rise to reasonably foreseeable risks. For most trades the list is short, well known and stable.
2. Work through the hierarchy. Regulation 6 sets the order: eliminate if you reasonably can, then substitute, isolate or engineer, then administrative controls, then PPE.
3. Write down the tasks that matter. No law names a document, but a written task assessment is how you show your reasoning, and it is what sites ask for.
4. Engage your workers. Sections 58 to 59 apply at any size. Unless a worker asks for a health and safety representative, you do not need the formal structures, but you do need to involve people in decisions that affect them.
5. Coordinate with whoever else is on site. Section 34 applies whenever duties overlap, which on a construction site is nearly always.
6. Notify what has to be notified. Particular hazardous work needs 24 hours' notice to WorkSafe, and notifiable events have their own immediate duty.
7. Keep what you do. Completed documents, sign-on sheets, equipment checks. The evidence is the part that exists after the job.

What the Act does not ask for

• A safety management system, as such. Prequalification schemes ask for one; the Act asks for risks to be managed.
• A named document. Not an SSSP, not a Task Analysis. Those are how the industry evidences the duty, not the duty itself.
• A health and safety representative, unless a worker asks for one. If one does, you must start an election, whatever your size. Without a request the engagement duty still applies, but the structure is yours to choose.
• Paperwork for its own sake. A document that changes nothing on the day is not evidence of anything except that it was produced.

The officer duty, if you are a director

Section 44 places a separate duty on officers, which for a small company means the directors. An officer must exercise due diligence to ensure the PCBU complies, and the section lists what that involves: keeping up to date with health and safety matters, understanding the operations and their hazards, ensuring appropriate resources and processes, and verifying that they are being used.

This duty is personal and it is not discharged by delegating. In a two-person company it tends to mean the same person doing both jobs, which is fine, but the verification step is the one that gets skipped.

Where small operators actually get caught

Rarely on the absence of a system, and often on the gap between the document and the day. A template downloaded and never completed, a sign-on sheet with no date, edge protection described in writing and absent on the roof. The paperwork is the easy half; it only means anything when it matches what happened.

Sources

• Health and Safety at Work Act 2015, ss17 and 18 (meaning of PCBU and worker), s22 (reasonably practicable), s36 (primary duty of care), s44 (duty of officers), ss58 to 59 and s62
• Health and Safety at Work (General Risk and Workplace Management) Regulations 2016, regs 5 to 8
• WorkSafe New Zealand, Introduction to the Health and Safety at Work Act 2015, special guide
• Health and Safety in Employment Regulations 1995, reg 26 (particular hazardous work requiring notice)

This guide is general information about New Zealand health and safety law as at the review date. It is not legal advice and it does not describe your site. Confirm what applies to you with WorkSafe New Zealand or your adviser.