Health and Safety

Health and Safety – What is the Law telling us we need to do?

The new Health and Safety laws might sound scary, and the media have certainly got people focused on the potential fines or going to jail to force some action on farms.

The problem with that approach is that people will only apply H&S thinking to meet the compliance requirements of the law and then only the minimum necessary to satisfy the law.

What we need to do (and most people already do this, but don’t realise it) is to focus on getting our work done safely, so that every person goes home safely at the end of every day, because we don’t want our family members or workmates to get hurt.

What this article is intending to do is to provide you with some simple clarity on what the Health and Safety at Work Act requires of you as a farmer/business owner.

Let’s start at the beginning:

I have been working in the Health Safety field for over 20 years and have recently started my own H&S Consultancy, so I feel I am qualified to provide you with some generic information. I say generic, because there may be some specific criteria related to your property that you need additional advice on (e.g., Chemicals, construction, plant, and equipment etc).

Generically, many rural landowners struggle to understand what exactly they are required to do, to discharge their duty of care under the Health and Safety at Work Act 2015 (HSWA) as it relates to the farm.

To help you on this journey there are several terms that need to be understood first as follows:

PCBU. (A person conducting a business or undertaking)
Workplace.
Duty of care. (Yours and others)
Who is the person in control of the workplace?
Recreation.

PCBU

The meaning of a PCBU essentially means a business. It is the legal entity of a business and includes places where work is carried out for that business.

If you have a lifestyle block and not running that as a business, then you are not a PCBU and it is not a workplace and not governed by HSWA.

17 Meaning of PCBU (from the Act)

(1) In this Act, unless the context otherwise requires, a person conducting a business or undertaking or PCBU—

(a) means a person conducting a business or undertaking—

(i) whether the person conducts a business or undertaking alone or with others; and

(ii) whether or not the business or undertaking is conducted for profit or gain; but

(b) does not include—

(i) a person to the extent that the person is employed or engaged solely as a worker in, or as an officer of, the business or undertaking:

(ii) a volunteer association:

(iii) an occupier of a home to the extent that the occupier employs or engages another person solely to do residential work:

(iv) a statutory officer to the extent that the officer is a worker in, or an officer of, the business or undertaking:

(v) a person, or class of persons, that is declared by regulations not to be a PCBU for the purposes of this Act or any provision of this Act.

(2) In this section, volunteer association means a group of volunteers (whether incorporated or unincorporated) working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

Essentially this means that work conducted by the AANZ, does not make the AANZ a PCBU, and where we conduct that work is not a workplace under the Act because we are a volunteer organization. (This will change if we employ even a single person)

In all cases the home and the immediate area around the home (usually out to the fence surrounding the house) is not included as part of the farm under the HSWA. The HSWA specifically excludes the occupier of a home from duties to any visitor, including a tradesperson. This is because the home is not your workplace. It will be the workplace of the tradesperson, but that is the tradies responsibility to keep you and his/her employees safe. Not your legal responsibility.

HSWA definition of home—

(a) means a place occupied as a dwelling house; and

(b) includes any garden, yard, garage, outhouse, or other appurtenance of a home

If you are using a room as an office for the farm business, then that office (only), is a place of work, while you are working in there.

This also means that any second dwelling on your property that is not occupied by the owner of the land, is NOT a “home” at law - for the property owner. But is for the tenant.

Workplace:

Section 20 - Meaning of workplace

(1) In this Act, unless the context otherwise requires, a workplace—

(a) means a place where work is being carried out, or is customarily carried out, for a business or undertaking; and

(b) includes any place where a worker goes, or is likely to be, while at work.

(b), above means areas like the wool shed or other sheds on the farm. In addition, a farm is only a workplace for the farmer, (or their workers) where “farm work” is happening at the time. The rest of the farm is not the farmers workplace, even if they are working somewhere else on the farm at that time.

Other PCBU’s

What happens if another PCBU, comes onto your property (with your consent, or through a legal right of entry – for example someone working on the power lines crossing your property) and commences work on your property?

There are some processes that need to be followed, which I will get to shortly, but essentially the following applies:

The immediate area around where that work is being carried out, by that other PCBU, is their workplace. Not the farmers workplace. So that PCBU has the legal duty of care of the PCBU. g. the legal duty to care for their workers and anyone else in or within the immediate vicinity of their work. (Including the farmer and the farm workers)
The farmer’s workplace is wherever they are working on the farm at the time. If no farm work is occurring, then the farm is not a workplace for the farmer at that time. When it is a workplace, the farmer has the legal duty of care for themselves, their workers and anyone else in or within the immediate vicinity of their work. This includes the other PCBU if they are in or within the vicinity of that farm work.

This therefore leads on to the legal duty of care:

Duty of Care:

A primary duty of care relates to the employer’s responsibility to employees/workers of the business and anyone in the immediate area of the workplace, that might be impacted by the work.

A good example of “in the vicinity of the workplace”, as it relates to your farm, might be when you drive out the gate, onto the road with the forks on your tractor, or when you are spraying, and the spray might drift etc.

36 Primary duty of care (abridged)

(1) A PCBU must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers who work for the PCBU, while the workers are at work in the business or undertaking; and

(b) workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.

(2) A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

The second circumstance where a Farmer owes a duty of care is outlined below in section 37. Which is the “Duty of PCBU who manages or controls workplace” See section 37 below.

37 Duty of PCBU who manages or controls workplace

(1) A PCBU who manages or controls a workplace must ensure, so far as is reasonably practicable, that the workplace, 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.

(2) Despite subsection (1), a PCBU who manages or controls a workplace does not owe a duty under that subsection to any person who is at the workplace for an unlawful purpose.

(3) For the purposes of subsection (1), if the PCBU is conducting a farming business or undertaking, the duty owed by the PCBU under that subsection—

(a) applies only in relation to the farm buildings and any structure or part of the farm immediately surrounding the farm buildings that are necessary for the operation of the business or undertaking:

(b) does not apply in relation to—

(i) the main dwelling house on the farm (if any); or

(ii) any other part of the farm unless work is being carried out in that part at the time.

(4) In this section, a PCBU who manages or controls a workplace—

(a) means a PCBU to the extent that the business or undertaking involves the management or control (in whole or in part) of the workplace; but

(b) does not include—

(i) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(ii) a prescribed person.

As can be seen in section 37 (1) above, there is a duty owed by a landowner/farmer, to anyone entering onto the farm, to ensure there is no risk to them, arising from the workplace. This is where a farmer has a duty to advise anyone lawfully entering their land, of any known, unusual hazards on the place. These are those unusual hazards that would not normally be present on a farm but can occur on the land. Examples would include (but are not limited too) tree felling, blasting, shooting, washed out culverts, unsafe bridges, washed out tracks, wires across gulley’s etc. etc.

Equally the contractor PCBU, also owes a farmer the same duty of care under this section. Which is to advise the farmer, before they enter onto the land, what hazards and risks they are bringing onto the land, that may put the farmer or their workers at risk. A good example of this is the tree felling example above, where the contractor needs to advise the farmer of the obvious risk of falling trees, which may crush someone, and how the contractor is going to control that risk but setting up an exclusion zone.

Section 37 also provides the specific exclusions for the farmer, as mentioned at the beginning of this article. These exclusions are created because there are often large areas of land that the farmer owns/occupies or manages but cannot effectively control all of the time because they are not present. In addition, this duty is only owed to those who are lawfully on the land. That might be through consent or a lawful right to access. Farmers do not have a duty of care for a trespasser.

In Summary:

First you need to establish whether your farm is a “workplace” and/or whether you are a PCBU under the Act.

If you are, then you need to establish who is the person who is in control of the workplace and the immediate area around that work. Is it the farm owner, or another PCBU conducting that work (e.g., the contractor, if it is the contractor’s work, or the farmer if it is farm work).

Before a contractor enters onto a farmer’s land, the farmer should advise the contractor of any unusual hazards on the farm that may create a safety risk to the other PCBU or their workers. And the Contractor must advise the farmer of the hazards and risk their work may have on the farmer or their workers.
Wherever practicable, try to avoid work areas that overlap. If this cannot be avoided, then the parties must consult, co-operate and co-ordinate their activities to ensure there is no risk to the workers or others in the vicinity.

Risk Management.

There is one other section that needs to be considered, and that is the requirement to understand and manage the risks on your farm.

Most businesses are focused on identifying and understanding their critical risks. These are the risks that could lead to a fatality or a life altering injury. If you identify, list and then understand what can cause these risks to result in these types of consequences, then you can actively manage them, through controls. This is called risk management.

It is these risks (and controls) that you need to communicate to your employees. You then need to understand which if these risks, your contractors may come into contact with, while they are on your property, so you know which risks you need to tell the contractors about and how they are controlled.