Health and safety Everyone’s business “Health and safety is everyone’s business”, and if everyone in the workplace does make it their business and helps establish a workplace health and safety culture, there will be significant benefits to our schools. Health and safety presentation for the compulsory schooling sector

NZ’s health and safety story 75 people die on the job every year 600-900 die from work-related diseases 1 in 10 harmed 200,000 ACC claims for work-related harm $3.5 billion in costs (2-4 percent of GDP) We’ve got a problem with workplace health and safety in New Zealand. Too many people are hurt or killed at work. The annual statistics are grim: 75 people die at work; 600-900 people die of work related diseases; and one in ten are harmed at work. This can’t continue - we all deserve to come home from work healthy and safe. We all need to focus on health and safety in our workplaces. This means identifying and managing health and safety risks in the workplace and taking action to eliminate or minimise the risks. NZ’s poor health and safety record was a major catalyst for the new Act along with the Independent Taskforce on Workplace Health and Safety and the Royal Commission on the Pike River Coal Mine Tragedy.   The aim of the new Act is to reduce NZ’s workplace injury and death toll by 25 per cent by 2020. Our new health and safety law is based on Australia’s. They’ve seen a 16 per cent reduction in work-related deaths since 2012 and have just reported the lowest number of work-related deaths in 11 years. Are our schools safe? Overall the general consensus is yes, our schools are pretty safe. Whilst there have been tragedies (eg Orewa College boiler explosion) they have fortunately been few and far between. The new Act will come into force on 4 April 2016

Working together with schools Sector Reference Group Guidance review Bulletin updates Factsheets New web space What the Ministry is doing for the sector: The Ministry has established a Sector Reference Group which meets every two months to discuss the legislative changes and to inform the Ministry’s programme of work. Members include: NZPPTA, NZSTA, NZPF, NZEI, NZAIMS and a variety of principal’s associations. Outside of the Sector Reference Group we are also working closely with NZSTA. Guidance: Reviewing and updating the guidance material the Ministry provides the sector Bulletin updates: Updating the sector twice a month through their School leaders bulletin Factsheets: Creating factsheets that explain the legislation and what it means in a schools context Web space: a new web space, bringing together all the Ministry’s health and safety guidance in one central location. (See the further guidance slide at the end of the presentation for the link to the web space)

MoE’s Health and Safety System Purpose of our work: The objectives of the Ministry’s programme of work, prior to enforcement on 4 April 2016, is that the schooling sector knows that the new health and safety legislation is coming, understands its likely impact on them, and are making any necessary preparations. Health and Safety System: The Ministry has developed a draft workplace Health and Safety System which has 11 key components. This was user tested through the Sector Reference Group. These components will form the main themes for all our project communications and are used on the health and safety landing page of the Ministry’s external web space as themes for our guidance to sit under. Over the coming months, the Ministry will add further resources and guidance including factsheets to help the sector understand and prepare for the new Health and Safety at Work Act.

What will be different when the legislation comes into force on 4 April 2016? New terms: Person Conducting a Business or Undertaking (PCBU) replaces Employer Worker - broader than Employee Reasonably practicable replaces “all practicable steps” New duties: PCBU has “primary duty of care” Officer has duty of “due diligence” Stronger worker engagement New offences and higher penalties Other: Additional regulations (MBIE) Greater guidance (WorkSafe NZ) The new legislation recognises that a well-functioning health and safety system relies on participation, leadership, and accountability by government, business, and workers. The purpose of the new Health and Safety at Work Act is to make clear everyone’s responsibilities in keeping workers healthy and safe in workplaces. The Act clarifies responsibilities and accountabilities, strengthens worker participation and creates expectations for effective risk management that are proportionate to the risk. The legislation will be supported by government regulations, approved codes of practice (approved by the Minister) and guidelines (developed by the Regulator - WorkSafe).

Roles in the school sector PCBU - Board of Trustees (as an entity) Officer –individual members of the Board including the principal Worker – any person who carries out work in any capacity for Boards of Trustees including principals, teachers, caretakers, contractors, volunteer workers Other persons – any person within the school environment and/or workplace including students, parents, visitors, casual volunteers and members of the public The legislation introduces 4 categories of person. How do these categories relate to schools? PCBU (person conducting a business or undertaking) - despite its name, a PCBU will usually be a business or corporate entity and in the context of the school sector, the PCBU will be the Board of Trustees of a school. Officer – an individual member of a Board of Trustees and any other person that exercises significant influence over the management of the school, eg the principal, is classed as an officer. Worker – the definition of worker in the new legislation is wider than that of employee. Worker means an individual who carries out work for the school and includes an employee, a contractor or subcontractor and their employees, an employee of a labour hire company, an outworker, an apprentice or a trainee teacher, a person gaining work experience or undertaking a work trial, or a volunteer worker. Other persons – anybody within the school workplace and/or environment including students, parents, visitors, casual volunteers, members of the public. Slide 13 clarifies the role of volunteers.

Board of Trustees (the PCBU) The Board of Trustees (as an entity) has the primary duty of care for the health and safety of workers and others at the workplace. They must ensure: The health and safety of their workers at work The health and safety of other workers who are influenced or directed by them The health and safety of others by ensuring they are not put at risk from work carried out at the workplace Leadership is a critical element of a workplace’s health and safety culture. Leadership sets the direction for health and safety management by creating and demanding expectations, and by holding management strictly and continuously to account for meeting these expectations. The Board of Trustees has the primary duty of care for the health and safety of workers and others in the workplace. Note: The Board of Trustees as an entity will be liable under the Act if it does not exercise its duty of care. We will discuss this in more detail later when we look at offences and penalties. Boards of Trustees must exercise their primary duty of care and ensure the health and safety of: their workers (eg teachers, principals, administrators, caretakers, maintenance staff, property managers, volunteer workers etc.) while at work (eg at school and/or on excursions and/or outside the classroom) other workers who are influenced or directed by the PCBU (eg contractors and sub contractors and their workers) other persons (eg students/children, parents, members of the public, casual volunteers and visitors to the premises), by ensuring that they are not put at risk from work that is carried out at the school

Primary duty of care Boards of Trustees as PCBU must also ensure, so far as is reasonably practicable, they: Provide and maintain a work environment, plant, structures and systems that are without risks to health and safety Ensure the safe use, handling and storage of plant, structures and substances Provide adequate facilities at work for the welfare of workers, including ensuring access to those facilities Provide information, training, instruction or supervision necessary to protect workers and others from risks to their health and safety Monitor the health and safety of workers and the conditions at the workplace for the purpose of preventing illness or injury These are the key things that a Board of Trustees must do to satisfy the primary duty of care requirement in the Act.

Duty of individual board members including principals (officers) Individual board members including principals must exercise due diligence. This means they must take positive steps to ensure the Board of Trustees (as an entity) meets its health and safety obligations and duties Individual board trustees and principals are classified as officers under the new Act. While they do not have to directly ensure the health and safety of the workers, they must exercise due diligence, which means they must take reasonable steps to ensure the Board of Trustees (as an entity) meets its health and safety obligations and complies with its duties. If individual trustees of a school board, appointed or elected under the Education Act 1989, do not exercise their duty of due diligence they will not be liable under the Act for the three major offences and the associated penalties. These are: Clause 47: Offence of reckless conduct in respect to duty (fine up to $600,000 and/or up to 5 years imprisonment) Clause 48: Offence for failing to comply with duty that exposes individual to risk of death or serious injury or serious illness (fine up to $300,000) Clause 49: Offence for failing to comply with duty (fine up to $100,000) However principals can face penalties under the Act for not exercising due diligence. The Board of Trustees as an entity will be liable if they do not carry out their duties under the Act, so it is very important that as individuals they exercise due diligence to ensure the Board as an entity is able to comply with its duties.

What is due diligence? Due diligence includes taking reasonable steps to: Know about worker health and safety matters and keep up-to-date Gain an understanding of the operations of the school and the hazards and risks generally associated with school operations Ensure the Board of Trustees has appropriate resources and processes to eliminate or minimise those risks Ensure the Board of Trustees has appropriate processes for receiving information about incidents, hazards and risks, and for responding to that information Ensure there are processes for complying with any duty, and that these are implemented Verify that these resources and processes are in place and being used Individual board trustees and principals’ due diligence duty supports, but does not replace, the Board of Trustees’ primary duty of care to ensure the health and safety of workers and others. Due diligence places a positive duty on people at the governance level of an organisation to actively engage in health and safety matters, reinforcing that health and safety is everyone’s responsibility. A school is governed by individuals who, through their decision making, influence the specific activities that will in turn ensure the success or failure of health and safety initiatives and whether the Board of Trustees is complying with its own duty. That’s why these individuals strongly influence the culture of the business or undertaking and accountabilities within it. For instance, they make important decisions on the resources that are available for work health and safety and the policies that support the Board of Trustees to comply.

Duties of workers and other persons Workers and other people have a health and safety duty to: Take reasonable care for his or her own health and safety Take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons Comply, so far as reasonably able, with any reasonable instruction that is given to them by the Board of Trustees to allow the Board of Trustees to comply with the new law Cooperate with any reasonable policy or procedure of the Board of Trustees relating to health or safety at the workplace that has been notified to workers (applies to workers only) We’ve looked at the duties and obligations of the Board of Trustees and the duty of due diligence that applies to individual board trustees and principals in some detail. This slide highlights the fact that workers and other persons also have health and safety duties at the workplace. The inclusion of health and safety duties of workers and other persons at a workplace ensures that every workplace participant has a statutory duty for health and safety and must take reasonable care to fulfil that duty. This underlines the idea that health and safety at work is the responsibility of everyone who is there. Note that the last duty in the list only applies to workers. Workers include employees of the Board of Trustees (principals, teachers, administrators, caretakers, maintenance staff, etc), contractors or subcontractors and their employees, employees of labour hire companies, outworkers, apprentices or trainees, persons gaining work experience or undertaking a work trial, or volunteer workers. Other persons include anybody within the school workplace and/or environment including students, parents, visitors, casual volunteers, members of the public.

Worker participation Boards of Trustees have a duty to involve their workers in work health and safety and must: Engage with workers about health and safety matters that directly affect them and Have effective practices that allow workers to have an opportunity to participate in improving work health and safety on an ongoing basis These practices may include: Having health and safety as a regular agenda item at team meetings A feedback mechanism for staff to raise health and safety concerns with the Board of Trustees Health and safety representatives and/or health and safety committees The legislation has strengthened the requirements for worker engagement and participation in work health and safety. It sets out two overarching duties on Boards of Trustees for involving workers in work health and safety (as shown on the slide).   Effective engagement involves increasing their workers’ awareness of health and safety and drawing on their knowledge and experience of health and safety matters to make better decisions. It is particularly valuable at key times, such as when identifying hazards and risks and making changes to work that affects health and safety. The Board of Trustees must give their workers a reasonable opportunity to express their views and contribute to the decision-making processes relating to health and safety matters. The Board of Trustees must take workers’ views into account and advise them of relevant outcomes in a timely manner. The worker participation practices listed provide effective ways for workers to talk about health and safety matters, so that the Board of Trustees can manage risks and keep people safe and healthy. The new health and safety law does not specify what types of worker participation practices Boards of Trustees must have. Different schools will have different practices, depending on what suits them best, according to their size and the level of risk associated with the school. The important thing is that workers are involved in an effective way. Health and safety representatives and committees: Small businesses with fewer than 20 workers in low-risk sectors are now excluded from the requirement to have a health and safety representative or health and safety committee when requested by workers. However this does not stop these businesses from voluntarily deciding to have health and safety representatives or a health and safety committee. This may be relevant to smaller schools.

Volunteers The legislation introduces two categories of volunteer: Volunteer workers: People who regularly work for a school on an ongoing basis and are integral to the school’s operations. Examples include: mentors/coaches of at risk children, breakfast club helpers, “walking bus” helpers Casual volunteers: Volunteers doing the following activities are classed as casual volunteers: participating in a fundraising activity for a school assisting with sports or recreation for a school (e.g. sports day, school fair) assisting with activities for a school outside the premises or grounds of the school (e.g. EOTC) The Act distinguishes between volunteer workers and casual volunteers.  Volunteer workers are people who regularly work for a school on an ongoing basis and are integral to the school’s operations. Whereas casual volunteers do not regularly work for a school on an ongoing basis and are not integral to the school’s operations. If your volunteers are doing the specific activities listed in the slide, it means they will be classed as casual volunteers, not volunteer workers, under the Act. This distinction is the same as that in the existing Health and Safety in Employment Act 1992.

Duty of Board of Trustees to volunteers Volunteer workers: Duty to ensure the health and safety of volunteer workers as if they were any other worker. Duty to engage with volunteer workers on health and safety matters and ensure there are effective worker participation practices. Casual volunteers: Duty to ensure the health and safety of casual volunteers as for other persons. No duty to engage with casual volunteers on health and safety matters nor to have any participation practices that include casual volunteers. Voluntary Worker Boards of Trustees as an entity have a duty to ensure the health and safety of volunteer workers as if they were any other worker in the school.  They also have the duty to engage with volunteer workers on health and safety matters and ensure there are effective worker participation practices as discussed in the worker participation slide. Casual Volunteer   Casual volunteers come under the other persons category in the Act. Boards of Trustees have a duty to other persons in the workplace (such as students or visitors), to ensure that their health and safety is not put at risk from their work. This duty also applies to casual volunteers who are carrying out the activities shown in the previous slide. However, there is no requirement for Boards of Trustees to engage with casual volunteers on health and safety matters or have participation practices that include casual volunteers.

Multiple PCBUs with overlapping duties Different businesses working together on the same project eg construction on school grounds, school camps or EOTC experiences PCBUs need to consult, co-operate and co-ordinate activities to meet shared responsibilities Extent of PCBU’s duty depends on its level of influence and control over workplace H&S Less influence and control over workers of another PCBU Need to make arrangements with the PCBU that’s closer to the work Many work situations involve multiple PCBUs that have overlapping duties, eg there may be a number of different businesses working together or alongside each other on a single work site, such as a construction site, and through contracting (eg EOTC activities) or supply chains. The current legislation already covers this, so the need for PCBUs to work together to meet their duties is not new.   PCBUs will need to consult, co-operate, and co-ordinate activities to meet their shared responsibilities. They should make reasonable arrangements and coordinate responsibilities with the other PCBUs to fulfil their duty and they should also monitor each other to ensure everyone is doing what they agreed. This could be set out in contractual arrangements between PCBUs (eg between the school and an adventure activity operator). The extent of a PCBU’s duty depends on the level of influence and control the PCBU has over health and safety at the workplace where there are multiple PCBUs. The measures a PCBU will take for its own staff are likely to be different from the measures which it can take for employees of another PCBU, as it will have less influence and control over the workers of another PCBU. A PCBU that has less direct control and influence is more likely to fulfil its duty by making arrangements with the PCBU that is closer to the work. For example, the school Board of Trustees will have less influence and control over the workers of construction, electrical, or plumbing companies who are building new classrooms at a school. The Board of Trustees will need to arrange with these companies to ensure their health and safety measures ensure the safety of their workers and do not cause any health and safety issues for the school’s staff or students.

Education Outside The Classroom The intention of the new legislation is not to curtail EOTC experiences. EOTC is an example of where more than one PCBU may be involved, eg School Board of Trustees and a Museum or Adventure Activity Operator. They must: Consult, coordinate and collaborate with each other to meet their shared responsibilities Work together to meet their duties to ensure that the work or activity does not pose risks to people’s health and safety EOTC activities are also an example of PCBUs with overlapping duties. The legislation does not curtail EOTC activities. Schools should already have effective health and safety and risk management programmes in place in line with current legislative requirements, which covers EOTC activities. Under the legislation the PCBUs involved (eg School Boards of Trustees, adventure activity operators, museums, etc) must consult, coordinate and collaborate with each other to meet their shared responsibilities. They must work together to meet their health and safety duties to ensure that the EOTC activity they are involved in does not pose risks to health and safety of staff and students. The school Board of Trustees will have less influence and control over the workers of an adventure activity operator than their own staff. As part of the contractual arrangements the school will ensure that the operator’s health and safety measures covering the school’s staff and students on an EOTC activity meet the standards required by the school. The EOTC Guidelines provide good information on the health and safety aspects of EOTC and NAG5 provides further guidelines. While Boards of Trustees are responsible for the health and safety of all participants in EOTC, and for ensuring that learning outcomes are met, boards can only achieve this with everyone taking responsibility for their own health and safety and the health and safety of those around them eg coordinators, teachers, volunteer helpers, students.

Offences and penalties Role PCBU Officer Worker Other People Board of Trustees (as an entity) Fine up to $500k or $1.5M or $3M Elected/appointed Trustees (individuals) No fine – exempt from liability for breach of duty Principal Fine up to $100k or $300K or $600k & up to 5 yrs $50K, $150K or $300k & up to 5 yrs Teachers and other staff Other people (students, public & parents) Offences and penalties The Act provides for three offences in relation to breach of a health and safety duty, which are graduated based on the conduct of the duty holder and the outcome of the breach. The Act also contains a tiered penalty and fine regime to distinguish between individuals and corporate entities. Note: the fines quoted are the maximum amount. Workplace Relations and Safety Minister Michael Woodhouse said the maximum fines were only imposed in extreme circumstances for the most serious offences where the duty holder had been reckless. There are also fines for breaches of other obligations under the Act, which are detailed under the relevant clauses in the Act, and they are also tiered based on who the duty holder is. Liability: If individual trustees of a school board, appointed or elected (excluding principals) under the Education Act 1989, do not exercise their duty of due diligence they will not be liable under the Act for the three major health and safety duty offences and the associated penalties (Clause 52). However principals can face penalties under the Act for not exercising due diligence. Volunteer workers and casual volunteers are also not liable for the above health and safety duty offences (Clause 51). These are shown in the slide and noted below. Clause 49: Offence for failing to comply with duty (fine up to $100,000) Clause 48: Offence for failing to comply with duty that exposes individual to risk of death or serious injury or serious illness (fine up to $300,000) Clause 47: Offence of reckless conduct in respect to duty (fine up to $600,000 and/or up to 5 years imprisonment) The Board of Trustees as an entity will be liable if they do not carry out their duties under the Act, so it is very important that as individuals they exercise due diligence to ensure the Board as an entity is able to comply with its duties. 1. Failure to comply with H&S duty (no risk of death or serious illness/injury) 2. Failure to comply with H&S duty (exposes individual to risk of death or serious illness/injury) 3. Reckless conduct - without reasonable excuse engages in conduct that exposes any individual to whom H&S duty is owed to a risk of death or serious injury/illness AND is reckless as to the risk

Next steps Now is a good time to review your health and safety policies Prepare for the new legislation by familiarising yourself with key concepts Exercise caution when approached by external auditors and trainers offering services relating to the new legislation Note: until 4 April, when the new Act comes into force your school must continue to meet the requirements of the current Health and Safety in Employment Act 1992 You can use the 11 key components of the health and safety system available on our web space to review your own health and safety systems and prepare for the changes. But remember, until the new Act is in forced on 4 April 2016 your school must continue to meet the requirements of the current Health and Safety in Employment Act 1992. We understand that some schools are being offered auditing services and training on the new legislation. The Act has only just pass into law and these providers know as much as we do. The Sector Reference Group agree it is too early for schools to engage third parties for auditing or training purposes, unless a school chooses to or feels their health and safety systems need external auditing. Your sector representatives and unions are working with us through the Sector Reference Group on a collaborative approach to providing training on health and safety. This is still in the early planning stages and we will keep you informed.

Further Guidance The Ministry of Education health and safety web space: http://www.education.govt.nz/ministry-of-education/specific-initiatives/health-and-safety/ The Health and Safety regulator WorkSafe: http://www.business.govt.nz/worksafe Administrator of Health and Safety legislation MBIE: http://www.mbie.govt.nz/ If you have specific questions please contact our project manager at richard.wards@education.govt.nz or your local Ministry of Education office Lifting aspiration and raising educational achievement for every New Zealander