Despite focussing on contractor management and the overlapping duties that exist between contracting PCBUs, there has been little guidance released by WorkSafe about how PCBUs should approach the management of contractors and coordinate activities under the HSWA – until now
By Sarah-Lee Stead, Special Counsel, and Richard Monigatti, Associate, at Kensington Swan from the specialist Health and Safety team
For a long time, WorkSafe has focussed on the management of contractors at a workplace. We are now seeing this focus extending to how PCBUs comply with the duty to consult, cooperate and coordinate activities under section 34 of the Health and Safety at Work Act 2015 (‘HSWA’).
WorkSafe has recently released a new guidance document for Persons Conducting a Business or Undertaking (‘PCBUs’) and contractors called PCBUs working together – advice when contracting (‘Working Together Guide’). This document is an update on the previous guidance document, A principal’s guide to contracting to meet the Health and Safety in Employment Act 1992 (‘Guide to Contracting’).
Working Together Guide
The Working Together Guide reflects the principles of the HSWA and begins by setting out the sections of the HSW Act which apply to PCBUs. An important new addition is guidance on the application of section 34.
Overlapping duties
The Working Together Guide has provided useful and easy to understand guidance, including a table setting out what WorkSafe expects from PCBUs at the different levels in the contracting chain. What is made clear is that WorkSafe expects PCBUs to be able to explain the steps they have taken to consult, co-operate and co-ordinate with other PCBUs, and their arrangements to manage risks.
Contractor management
The Working Together Guide has also condensed the Guide to Contracting and made the information easier to understand. The core principles remain – PCBUs are expected to incorporate health and safety into the following areas when engaging with contractors:
- Scoping the work.
- Pre-qualifying a contractor.
- Choosing a contractor.
- Awarding the contract.
- Monitoring the contract.
- Post-contract review.
However, there are some important changes to be aware of that indicate WorkSafe is being more prescriptive under the Working Together Guide than the language used in the Guide to Contracting:
- WorkSafe considers compliance with health and safety requirements (for the project) must be a precondition to any tender being successful. Any deviations must be addressed before accepting the tender.
- The expectation on PCBU’s to monitor the contract has become more prescriptive with WorkSafe setting out the actions it expects a PCBU to take as part of monitoring activities.
- PCBUs must make sure that all workers, contractors, and the contractor’s workers are provided training, information, instruction and supervision to protect them from risk.
The Working Together Guide has also provided helpful examples of forms which PCBUs can utilise when engaging contractors. These forms include a pre-qualification questionnaire, an information for tenderer form, and a job registration form. If you already have existing processes, comparing existing processes against the examples is a good way to ensure that the information sought by your business matches the content WorkSafe expects PCBUs to collect and assess.
As the Working Together Guide has not changed the substance of the Guide to Contracting significantly, the examples that the Department of Labour had included in the Guide to Contracting will still assist PCBUs to understand what WorkSafe expects and how the Working Together Guide functions in practice.
While the guidance is tailored to those PCBUs looking to engage contractors, it is also useful for contractors. The Working Together Guide will provide an overview of what contractors can expect in relation to health and safety requirements during the contracting process. A good understanding of this process will help contractors secure work from tenders.
If you have any questions about the implications of the new guidance document, our team would be happy to assist you.
Links to the Guides
The Working Together Guide can be found here: https://worksafe.govt.nz/…/5355-pcbus-working-together-advice-when-contracting.
The Guide to Contracting can be found here: https://worksafe.govt.nz/dmsdocument/2200-a-principals-guide-to-contracting-to-meet-the-health-and-safety-in-employment-act-1992
