READING THROUGH THE H&S AT WORK GUIDE PICKING OUT CLAUSES TO DISCUSS
1.5 National Administration Guideline (NAG 5) NAG 5 has not changed. NAG 5(c) reinforces the fact that a board is required to be compliant with Health and Safety legislation, including HSWA. The relationship between NAG5 and the HSWA NAG 5 Each board of trustees is required to: a. provide a safe physical and emotional environment for students b. promote healthy food and nutrition for all students; and c. comply in full with any legislation currently in force or that may be developed to ensure the safety of students and employees
The HSWA broadens the Primary Duty of Care. This defines the board, as a legal entities, obligation to do what is reasonably practicable to keep workers and others safe. Workers include, but are not limited to, employees, volunteer workers, contractors, student teachers and trainees.
A key role defined by the HSWA is the “Person Conducting a Business or Undertaking (PCBU)”. A PCBU is usually an entity rather than an individual. In the case of schools/kura, the PCBU is a school’s board of trustees – as a collective entity, in the same way the board is the employer. As the PCBU, the board holds the primary duty of care to ensure the health and safety of everybody involved with the school “so far as is reasonably practicable”.
2.2 What is a Person Conducting a Business or Undertaking (PCBU) (the board) What is a person conducting a business or undertaking (PCBU) • A PCBU will usually be a legal entity, such as a company, rather than an individual person. A person might be a PCBU if they are a sole trader or a self-employed worker. The board of trustees is a legal entity in terms of the Education Act 1989/Crown Entities Act 2004, and under the HSWA is considered to be a PCBU. A PCBU is in the best position to control risks to work health and safety as it is carrying out the business or undertaking. In general terms the board has overall responsibility for health and safety in the school and is responsible for providing resources to enable workers, students and others to carry out their health and safety duties. 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. The primary duty of care requires all PCBUs to ensure, so far as is reasonably practicable: • the health and safety of its workers or those workers whose activities at work are influenced or directed by the PCBU (eg, 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 (eg, students and visitors).
The school’s responsibility towards students centres on keeping them safe from risks to their health and safety, and ensuring they are not harmed by the actions of workers. This can largely be addressed by provision of information and promotion of good worker health and safety practices. Students also have their own responsibilities and need to be told about these as part of school culture.
While the board as a PCBU may be liable, board of trustees members (including student and teacher reps), other than the principal, are exempt from prosecution relating to a failure to meet and/or comply with their due diligence obligations and duties as an Officer. The exemption for board of trustee members stems from a special provision (section 52 of HSWA) in HSWA leading from them being elected under the Education Act. They still however have duties and should be proactive about meeting these. The three major offences are: • Section 47: Offence of reckless conduct in respect to duty • Section 48: Offence for failing to comply with duty that exposes individual to risk of death or serious injury or serious illness • Section 49: Offence for failing to comply with duty
The HSWA sets out two overarching duties on the board (as the PCBU) for involving workers in work health and safety. The board must: 1. engage, so far as is reasonably practicable, with workers who carry out work for it and are directly affected, or likely to be directly affected, by a work health and safety matter, and 2. have practices that allow workers who work for the board to have reasonable opportunities to participate effectively in improving work health and safety in the school on an ongoing basis. These are known as worker participation practices. Failure by the board to meet either of these duties is an offence under HSWA.
Identifying hazards A hazard is not limited to an object and can be a situation, or a person and their behaviour both physically and emotionally. Bullying is an example of a person’s behaviour that has the potential to cause harm to a person. These can also be unpredictable and occur at any time. A process should be implemented to regularly identify and assess hazards and risks. You should consider if the hazard is an actual or potential cause or source of notifiable event or is a cause or source of harm, which increases with exposure to the hazard or which occurs sometime after exposure to the hazard.
4.2 Other legislation (but not limited to) Boards and officers should be aware that there are other Acts, Regulations, Codes of Practice and Industry Standards that need to be complied with and these should be read together, where practicable, with this guide. These Acts include: • The Animal Welfare Act 1999 • The Building Act 2004 • The Electricity Act 1992 • The Fire Safety and Evacuation of Building Regulations 2006 • The Gas Act 1992 • Hazardous Substances and New Organisms Act 1996 • The Health Act 1956 • The Radiation Protection Act 1965 • The Resource Management Act 1991
Administering Medication At some point in their lives, almost all children and young people will need some care and support to manage their health while attending their schools/kura. Schools/kura need policies and procedures in place to identify if a child or young person needs a health care plan. A policy might cover children whose health conditions are life-threatening or whose conditions require regular medication. Schools/kura will also need to determine the extent to which workers are involved and have the right skills, knowledge and understanding. A framing question could be: What does your school have in place so workers are able to make informed decisions on administering medication to, and monitoring the health of students?