• Scott Williams
    9
    Good Evening,

    A discussion in the office today lead to several beliefs on what Section 35 actually means; does anyone have any arguments/ideas for what this section actually achieves?

    http://www.legislation.govt.nz/act/public/2015/0070/latest/DLM6544140.html
    35 Compliance with other enactments
    In determining whether a duty imposed on a person by or under this Act is being or has been complied with, a person or a court may have regard to the requirements imposed under any other enactment (whether or not those requirements have a purpose of ensuring health and safety) that apply in the circumstances and that affect, or may affect, the health and safety of any person.
  • MattD2
    79
    Basic example is while the Building Act is not specifically focused on the safety or health of the occupants of you breach that act by not building to code and it hurts someone you could be charged under HSWA.
  • SafetylawyerNZ
    42
    I'm not aware of the section being considered by a Court, but to me the key message is that PCBUs need to comply with other laws, so that a failure to do so can be a practicable step, even if that other obligation is not specifically focused on safety. Examples might be things like complying with the Electricity Act when working with live cables, or the road transport laws for logistics/transport operators with trucks or other mobile plant.
  • Aaron Marshall
    34
    Hmmm, I read it the other way - there are conflicts between requirements of other legislation and HSaW Act (such as the requirement for schools to take a directed enrolment from the MoE, even though it may increase risks for students and staff)
  • Craig Marriott
    73
    It just says "may have regard to" Surely this means it could go either way depending on the particular overlap/conflict?
  • MattD2
    79
    My thoughts are sections 33 and 34 (overlapping duties and the duty to consult) would apply more to that type of situation.
  • Aaron Marshall
    34
    Well, that is unless you're dealing with the MoE who don't care for teacher's or students safety when it comes to enforced enrolments. The right of an individual to education outweighs the rights of the groups safety it seems.
  • EmmaB
    9
    From my perspective, the Civil Aviation Act would be an example, compliance with that act, controlled via the regulations, included safety management systems expectations, risk management, assurance and investigation of incidents...
  • MattD2
    79
    That is probably a good example Aaron - it would be reasonable to expect a principle to stand-down / suspend a student who was violent and threatened a teacher as the Education act part on suspensions/expulsion allows them to (but do not require them to, the difference between "may" and "shall") and so if they did not that could be reason for considering an offence against their general duty under HSWA.
    If the MoE are forcing the principal to allow a student to return to school, or take on a known risk, then they also have a duty as they have direction or control over the situation - this is where I was saying the multiple duty holders and 3C sections come into play.

    But as @SafetylawyerNZ said we'll have to wait for some case law to truely see what WorkSafe NZ / the Courts make of it.
  • Aaron Marshall
    34
    It'd be great if the MoE acknowledged that. Their attitude is that the imperative to have all children attend school is more important that staff and students safety. Worksafe, unfortunately don't want to know.
  • MattD2
    79
    And the worse part is the Principal is left exposed, the Board is left exposed and all they can do is try and protect themselves by pushing back on the MoE that isn't even listerning, not to make the situation better but just to have it documented they were trying to do something in case it hits the fan and they have to start defending themselves against a prosecution.
    And in the worse circumstances the child themselves will not be getting the support they actually need as all they see is they are being forced to go to a school that doesn't seem to want them there...
  • Aaron Marshall
    34
    Exactly. I hate the fact that we're having to go through the motions just to cover ourselves from potential prosecution. It makes a joke out of what we are really trying to do.
  • Scott Williams
    9

    I think you have hit on why this section gives so many responses with differing views. The courts have not really 'dipped their toes' into this question.
    This question reared its head again this week at work — a two-year-old building with underheight barriers and a fall of about 3 metres. The issue raised with the building owner, and the response was "we have a CoC for that barrier; therefore, it complies with all Acts and Standards."
    If a worker fell over the barrier, would this logic stand up in court? I'm not sure it would. The issue is both reasonably foreseeable, and a remedy is practicable - well the building code thinks so anyway.
  • Aaron Marshall
    34

    CoC isn't worth the paper its written on. Just ask anyone with a leaky building that has to repair it. The building still has to be brought up to code.
  • SafetylawyerNZ
    42
    Having a Code of Compliance is one piece of evidence a court would consider, but it isn't a complete defence. The question for a court would be whether the PCBU took all reasonably practicable steps to manage the risk of a fall. There have been several cases where a fall of less than 3 metres has been sufficient to see a defendant prosecuted and convicted.
  • MattD2
    79

    My understanding is that you are not legally required to bring up a building to code when a new revision of the code is released - so they could not be prosecuted under HSWA for purely not being compliant with the current building act/code. But if someone was to be hurt (or exposed to a risk of being hurt) they courts would have to consider the current building code as evidence of the current knowledge of how to minimise the hazard - however they would also need to consider that even if the barrier was to current code would it have made a difference (e.g. it would not make any difference if a contractor was on a ladder next to the barrier), and/or if the reduction in risk outweighs the cost implemented it (e.g. if it was 100mm short of the current standard but to raise it would basically require the entire handrails to be replace it could be argued as unreasonable).
  • Scott Williams
    9

    I think between your three answers you have encapsulated the problem giving me some good thoughts on how to tackle the problem. I had not considered the point about the ladder. That's a very valid issue.
    Cheers for your input.
  • Aaron Marshall
    34

    I guess it depends on if the building wasn't built to code, or if the code has since changed.
  • MattD2
    79
    I guess it depends on if the building wasn't built to code, or if the code has since changed.Aaron Marshall

    The evidence would be if a CoC was issued then the building must be considered to have been code compliant when the certificate was issued.
    Unless it was proved that the CoC was obtained fraudulently.
  • Aaron Marshall
    34

    Or whoever did the inspections for the CoC was negligent/incompetent/didn't actually do the inspections.

    We've got a leaky building under repair now that should never have had a CoC issued.

    As I said earlier, the CoC isn't really worth much legally.
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