Health and Safety at Work Act - shared duties and expectations
Health and safety expectations and information for Trading Standards Officers, Accredited Persons and third party site operators.
Our health and safety expectations
This page provides some of the Ministry of Business, Innovation and Employment's (MBIE) expectations in relation to the appropriate management of health and safety in circumstances where an MBIE Trading Standards Officer (TSO), an Accredited Person (AP) and third party businesses carry out work at the same workplace.
These expectations are primarily for the information of Accredited Persons, third party site operators and TSOs. They are also for the information of anyone else who encounters or interacts with a TSO in the performance of their duties.
This information doesn't constitute legal advice. Parties must seek their own legal advice on health and safety matters.
Health and Safety at Work Act
MBIE, Accredited Persons and businesses that work at the same place at the same time each have duties as a 'person conducting a business or undertaking' (PCBU) under the Health and Safety at Work Act 2015 (HSWA).
The HSWA introduced some new health and safety requirements, including an obligation on PCBUs to work together to manage health and safety where they have ‘shared’ or ‘overlapping’ duties. This refers to responsibility for health and safety being shared by the business and other persons that work at the same workplace.
It's common for a TSO, an Accredited Person, a business that manages or controls a workplace and other PCBUs to all be present at the same workplace at the same time. For example, this occurs when a TSO is carrying out an observation of an Accredited Person’s accredited activities at a business’s manufacturing site.
MBIE's Trading Standards business unit, Accredited Persons and businesses carrying out work at the same workplace all need to understand and manage their ‘overlapping duties’ and ‘upstream duties’ under the HSWA.
This page includes a section on ‘upstream duties’. This term refers to businesses that design, manufacture, supply, install, commission or import plant, substances or structures to be used at a workplace, where each business has a responsibility to eliminate or minimise the associated health and safety risks. MBIE expects that the business which manages or controls a workplace where a TSO and AP will both be working, and all other relevant third parties, to meet their obligations so that TSOs and APs are not harmed.
Who owes duties to whom
Under the HSWA a PCBU will owe a duty in relation to its own workers — that is, its employees and contractors — but also potentially in relation to the workers of other PCBUs.
Where one PCBU has the potential to influence or direct the activities of another PCBU’s workers, and/or to put their health and safety at risk, there will likely be an overlapping duty. As a result, all PCBUs working at the same workplace potentially share responsibility for ensuring health and safety.
It's therefore important that all PCBUs at a workplace are clearly identified, and that their health and safety roles and responsibilities are clearly defined.
Examples of overlapping duties at an assessment workplace
|Situation||PCBUs with overlapping duties|
|A TSO observing an Accredited Person on a retail fuel forecourt, where other routine grounds maintenance work is being carried out.||Site Controller, MBIE, Accredited Person (or their employer) and groundwork contractor.|
|An industrial site where a contractor is installing a new measuring instrument. An Accredited Person is in attendance to oversee installation and apply a Mark of Verification. Observation of this process by a TSO.||Site Controller, MBIE, Accredited Person (or their employer) and instrument installing contractor.|
PCBUs must consult, cooperate and coordinate their activities
The HSWA requires all PCBUs that have overlapping duties to consult, cooperate and coordinate their activities so far as is reasonably practicable.
Where a duty is imposed under the HSWA, the responsible person is required:
- to eliminate risks to health and safety so far as is reasonably practicable, and if that's not reasonably practicable
- to minimise those risks so far as is reasonably practicable.
A person need only eliminate or minimise a health and safety risk to the extent they have the ability to influence and control the matter to which the risk relates.
The business which controls or manages a workplace, MBIE, Accredited Persons and any other PCBUs with people working at the workplace should:
- discuss and be aware of what work is being carried out
- agree on the health and safety controls that should be in place, and
- agree who is responsible for what.
These discussions may be formal site inductions and in-depth plans of action, or equally could be less formal pre-work discussions to clarify roles and expectations, or pre-start up equipment checks.
The business that controls or manages a workplace will generally have the most influence and control regarding the site, and given their knowledge of the site will generally be the best person to ensure that health and safety risks are being appropriately managed.
In addition to the general PCBU duty of care, PCBUs that manage or control a workplace have additional responsibilities to ensure that the workplace (so far as is reasonably practicable) and the means of entering and exiting the workplace, and anything arising from the workplace, are without risks to the health and safety of any person.
Other PCBUs, such as MBIE and Accredited Persons, will generally have less control or influence over what happens on the workplace site. It's likely that they will fulfil their responsibilities (at least in part) by adhering to the systems operated at the site by the person controlling or managing the workplace.
The following are examples of the types of things that should be identified, discussed and agreed in advance with all PCBUs who will be working at the same workplace:
- A clear understanding of all work being carried out by the AP and TSO and who is doing what and when.
- Work activities that will be carried out at the site by one or more PCBUs that will potentially affect the work of another PCBU.
- All health and safety hazards and risks at the site, and which people are potentially exposed to these risks. For example, if the business is a petrol station, does the traffic lane adjacent to the fuel pump and the fill point access area need to be cordoned off to all customers and vehicle movement.
- How risks will be eliminated or minimised, and which PCBU is best placed to do this in terms of its ability to influence and control the matter to which the risk relates.
- Emergency procedures, including who will notify WorkSafe if a notifiable event occurs.
MBIE's expectations regarding ‘upstream duties’
MBIE expects businesses which manage or control a workplace where a TSO and AP will both be working — and all other relevant third parties — to be aware of and comply with their ‘upstream’ duties.
MBIE doesn’t design, manufacture, import, supply or install anything; therefore MBIE doesn't consider itself bound by the upstream duties.
Under the HSWA, MBIE expects the PCBUs involved in a supply chain to ensure — so far as is reasonably practicable — that any plant doesn't pose health and safety risks to the people who use them.
’Plant’ has a broad meaning under the HSWA and includes machinery or equipment, including personal protective equipment, and anything fitted or connected to those things. This is likely to mean that every PCBU involved in the design, manufacture, supply and commissioning of a new installation or new piece of machinery or equipment has duties under the HSWA.
Upstream PCBUs have duties to downstream PCBUs and their workers. They can influence the safety and potential long-term health impacts of the plant they supply. Health and safety risks generally increase further down the supply chain, so the design stage is arguably the best time to minimise those risks.
An example is the design and installation of new weighing or measuring equipment in use for trade, such as a new belt weighing system at a port or industrial site. Health and safety considerations will include the equipment’s site position, access for routine maintenance, sealing arrangements access and suitable access to carry out routine testing or inspection by Accredited Persons or TSOs.
Designers, manufacturers, importers and suppliers
Under the HSWA, each PCBU in the supply chain is generally required to ensure — so far as is reasonably practicable — that the plant poses no risks to health and safety.
It is expected that each PCBU will:
- Carry out any calculations, analysis, testing, or examination as required.
- Provide adequate information about:
- the purpose of the plant
- the results of any calculations, analysis, testing, or examination they have done, and
- any conditions of use.
For general information on the HSWA
For more information on the Health and Safety at Work Act, visit the WorkSafe New Zealand website.