Health and Safety for those uninvited visitors
There is an endless number of central and local government officials that have right of entry to your orchard and farm; the Council can come and assess compliance with environmental regulations without notice, Immigration can come and make sure your workers are legally entitled to work in New Zealand without notice, and the Labour Inspectorate can come and make sure you are complying with New Zealand Employment Law without notice.
The inspector or official that enters your property is classified under the Health and Safety at Work Act 2015 (HSWA) as a worker. The inspector has a PCBU (person conducting a business or undertaking) who employs them. That PCBU is responsible for looking after their worker. The PUBU’s primary duty of care is to ensure that their workers and any other persons are, as far as is reasonably practicable, protected from harm that arises from work or from the orchard or farm.
The problem is their worker is on your orchard or farm. The PCBB responsible for that orchard or farm also has responsibilities to the inspector or official who has entered onto the farm or orchard without permission, and, most likely, without your knowledge. So how can you be responsible for someone who you don’t know is on your property, who has not had to report to you for access and a Health & Safety briefing? Additionally, you cannot restrict access to your property based on Health & Safety risks.
The HSWA places an explicit duty on PCBUs to cooperate, co-ordinate and consult with other PCBUs who also have a duty in relation to the same worker. In other words, the PCBUs are required to discuss who is best placed to manage the particular risk. This can be done when notice is required to be given.
But when there is no notice required to be given, your PCBU is still responsible to eliminate or minimise risks (if the risk cannot be eliminated) so far as is reasonably practicable to the extent that your PCBU has the ability to influence and control those risks i.e. risk on your farm or orchard. So to take a practical example – if you have a deep hole in the ground, you need to do something such fencing it off, to protect those uninvited visitors – but more importantly to protect you and your PCBU from liability under the HSWA.
- Mike Chapman, CEO