The Health and Safety at Work Act 2015 substantially updated New Zealand’s health and safety regime.  The new legislation maintained the core concept of keeping people free from harm, but shifted the focus from the workplace to a broader concept of how work is conducted.  The Act introduced new classifications of duty holders, including the Person Conducting a Business or Undertaking – the “PCBU”.

A PCBU may conduct a business or undertaking alone or with others and for profit or gain or not.  It holds the primary responsibility and duty of care under the Act.  Its duty is to ensure so far as practicable the health and safety of workers and other persons.  A PCBU who breaches this duty attracts criminal sanctions, with offences ranging from simple breach of duty, to breach causing a risk of injury or death, and reckless conduct.  The Health and Safety at Work Act (HSWA) introduced significantly higher penalties for such offences, with the maximum fine for a breach causing a risk of death or serious injury now $1.5 million.

Identifying who is a PCBU is essential to identifying the obligations that attach, and the potential consequences for a failure to meet these.

But what does that mean in practice?

In WorkSafe New Zealand v Dong SH Auckland Limited [2020] NZHC 3368, the High Court considered whether the prosecution had to prove a contractual relationship to establish that a person/entity is a PCBU.

Whether a person is conducting a business or undertaking for the purposes of the Act is a factual enquiry.  It does not matter how a person comes to be undertaking a particular type of work, simply that they are undertaking it.  In particular, it is not necessary for a PCBU to be carrying out the business or undertaking within a contractual relationship.

The background to the case is relatively simple.  WorkSafe brought a prosecution against Dong SH Auckland Limited (Dong SH Auckland) following demolition of a property that went somewhat awry.  In the course of demolition a wall landed on a neighbouring property, trapping the occupant, who was wheelchair bound.  Dong SH Auckland was a project management company.  While there was agreement that it had been engaged to manage the development to the property, there was disagreement on the timing of that agreement and the scope of its responsibilities.

WorkSafe said Dong SH Auckland was the PCBU because it had overall responsibility for the demolition, had engaged a subcontractor to do the work and had directly taken actions including fencing off the site and cutting of services in anticipation of the demolition.  Dong SH Auckland said it had simply made a recommendation to the property owner to use a company owned by another friend, and that it was not engaged as project manager for the development until after the incident occurred.  Therefore, Dong SH Auckland said it was not the PCBU at the relevant time.

There was no question that the party responsible for the demolition work owed a duty of care under the Act.  The District Court found this duty had been breached, with a risk of death, serious injury or serious illness.  The fundamental question for the Court was whether Dong SH Auckland had responsibility for the supervising or managing the demolition.

In the District Court the Judge dismissed the charge against the company on the basis that WorkSafe had not established a contractual basis tying Dong SH Auckland to the demolition work.

WorkSafe appealed on a question of law.  The High Court identified the real question in issue as whether the prosecution was required to prove that Dong SH Auckland was contractually tied to the demolition work or if it was sufficient for Dong SH Auckland to be a PCBU that ‘for whatever reason it did manage or supervise the demolition’.

The High Court reviewed the statutory background, identifying in particular the broad language used, the breadth of duties imposed under the Act, the statutory objective that workers and others be given the highest level of protection, and the rejection in the statutory language of form over substance.

It concluded that it was clear from the statutory framework that there was no need for a PCBU to arise in any way at all, much less that a PCBU must be contractually tied to the activity in question.  That would defeat the objective of the legislation.  Accordingly, it allowed the appeal and remitted the case back to the District Court for re-trial.

The High Court’s decision is not surprising or contentious.  As the Court noted, the emphasis on the existence of a contractual relationship in this particular case may have arisen from the way the parties argued their case, rather than any intended proposition that a contract should be an element of the offence.

Nonetheless, the decision does confirm a simple but important point.  In identifying whether a person owes a duty under HSWA as a PCBU, what matters is what is a person is doing.  Not how they came to be doing it.  A contract to carry out certain work/services may still be evidence that a person is a PCBU, but it is not necessary or determinative for a contract to be in place for a person to be a PCBU.

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.