Health and Safety Q&A Topic Question Answer 1 Officers Do student and teacher representatives on the board have an exemption like other elected members or are they the same as a principal when acting in the role of an officer? The Act exempts a trustee of a board appointed or elected under the Education Act 1989 from prosecution for a failure to meet their Officer duties. A student and a teacher representative on the board of trustees is an Officer. Like elected parent volunteers, they are exempt from personal liability for failure to comply with their duty. 2 Student absconding What are the health and safety obligations of the board in the instance of a child that absconds from school? The child should be at school, but leaves the school grounds does this make the child fall outside of the legislation or do they remain another until the end of the school day? Is it the same for a child who is at home sick? The school as a PCBU has a duty to ensure that the health and safety of others is not put at risk from work carried out as part of the conduct of the school, so far as is reasonably practicable. The school has that duty while the child is in their care regardless of the physical location. Schools will need to have a procedure in place to ensure children don t abscond and that if they do, the school knows about it promptly and takes appropriate action. Absconding is also be covered by the schools duties of care under the Education Act 1989. 3 Wellbeing and mental health Coverage of wellness and mental health in the legislation if a child self harms as a result of bullying (student to student) is there a possibility of prosecution under the Health and Safety legislation? Or would this only be if the bullying was other to worker or worker to worker or worker to other and not other to other outside of school hours? This would be a case where section 35, Compliance with other Enactments, would come into play. There may be a possibility you could stretch the Health and Safety at Work Act 2015 (HSWwA) deal with student to student bullying in a school but it would seem more appropriate to use the provisions within the Education Act 1989 to deal with this situation. In the case of a worker bullying another worker, this is covered by the provisions of the HSWA in relation to the duties of workers (to take reasonable care their acts do not adversely affect the health and safety of others). 4 Staff wellbeing The right of a student to education outweighs the right of a teacher to health and safety. A school and the Ministry can put in place a lot of support for the student and the teacher however there will be instances when a teacher is still harmed. Will the Ministry or the school be prosecuted under these circumstances? The responsibility of PCBUs is to identify and manage risks. Risks are managed by either eliminating the risk and where that is not reasonably practicable to minimise those risks. The issue of managing children with behavioural issues in the classroom is not a new one for schools and schools develop plans for managing those risks now. Nothing in the new Health and Safety legislation changes the need to manage risks. The legislation may have changed but the risks in schools have not. A school, as a PCBU, can be prosecuted if it fails to ensure health and safety of its staff, so far as is reasonably practicable, and a worker could be prosecuted if it was proven through their acts or omissions they failed to take reasonable care of themselves or others.
5 Staff wellbeing Staff workload and stress what are the implications on the sector and how can these be responded to? Under the Health and Safety at Work Act 2015, a PCBU has a duty to ensure, so far as is reasonably practicable, the health and safety of workers doing work for the PCBU. Health includes both physical and mental health. WorkSafe New Zealand has some good resources around stress and fatigue they can be found here: www.business.govt.nz/worksafe/information-guidance/ guidance-by-hazard-type/stress-fatigue. 6 PTA Is the PTA (parent teacher association) a PCBU? As Parent Teacher Associations are entirely run by volunteers (ie there are no paid staff employed by the PTA), the PTA is a Volunteer Association and is not covered by the Health and Safety at Work Act 2015. 7 Tree climbing Could you give me advice on how to minimise the risk of children climbing in a hedge or a tree? Hon Michael Woodhouse, Minister of Workplace Relations and Safety, has spoken publicly about the issue saying No school should be worried about banning children from climbing trees out of fear of the new rules. We are aware some schools, who for quite some time now, have an active policy whereby students are allowed to climb trees. Other schools have a long standing ban on tree climbing due to rotten branches, branches hanging over footpaths/roads or surrounded by concrete. I would suggest contacting WorkSafe New Zealand for specific questions around minimising risks relating to climbing trees. The best option is to call them on 0800 0030 040. 8 Student safety If a child is still on the school grounds at approximately 4pm and is approached by a member of the public, would the school be liable if something happens? The focus needs to be on managing the risk and not the liability. Schools have a duty to all others in the workplace. If there was an event, the regulator would look at what measures the school had taken to ensure a safe work place. The key is being able to show that the school had taken all reasonable steps. This could be in the form of: an update in a school newsletter setting the schools expectations for use of school grounds outside of normal school hours stranger danger education with students parents reminded about pick up time and have a procedure in place to deal with younger children who aren t picked up.
9 Police vetting We have a major landscaping project starting next week. The contractors have two workers who are not police vetted as they, the contractors are not an approved agency. Are we able to act as their approved agency with the paper work they supply? As I m sure you re aware, the Vulnerable Children Act 2014 (VCA) requires people who work with children (children s workers) and provide a regulated service (such as education) to be safety checked. Safety checking involves a number of steps including a Police vet and must be undertaken by the children s worker s employer. As a landscaper is not providing a regulated service, they don t fall under the requirements of the VCA and therefore don t need to be safety checked. There is a separate requirement under section 78CA of the Education Act 1989 (the Act) which requires the Board of a State school to obtain a Police vet of every contractor, or the employee of a contractor, who has, or is likely to have, unsupervised access to students at the school during normal school hours. This includes plumbers, electricians, builders and landscapers. The Act defines unsupervised access to students, in relation to a school, as access to any student on the school s premises that is not supervised or otherwise observed by, any 1 or more of the following: (a) a registered teacher or holder of a limited authority to teach; (b) an employee of the school on whom a satisfactory Police vet has been conducted within the last 3 years; (c) a parent of the student. So if a contractor is accompanied by a teacher or a member of your staff who has been Police vetted (such as admin/office staff, caretaker, canteen staff etc), this would count as supervised. Another work around for this (where the work is not urgent) could be for the work to be undertaken outside of normal school hours (in the morning, evening, weekends or school holidays). So to answer your question, yes, you can act as an approved agency to Police vet the employees of your landscaper as there is a requirement under the Act for you to do so if the contractor will have unsupervised access to children during normal school hours.
10 Health and safety reps Are you able to recommend any health and safety courses for our staff representatives to attend? Health and Safety Representatives (HSRs) are given powers under the Health and Safety at Work Act 2015. An HSR can only use these specific powers if they have completed initial training. Initial training is considered completed when the HSR is assessed as having achieved the New Zealand Qualifications Authority unit standard 29315. The PPTA and NZEI have training options for HSRs. NZEI has three potential health and safety workshops that can be arranged depending on the number of requests/ attendees: 1. Working together for Health and Safety (Rep Training) 2. Creating a Health & Safety-Positive Culture 3. Health + Safety workshop for Principals The PPTA will be running a number of courses over the next few months for new and existing HSRs. (This is an opportunity to complete a new Unit Standard and the training is open to all secondary school staff not just PPTA members.) As noted in our practical guide on p 36 an HSR may use his or her annual training entitlement to attend initial training, additional training or transition training. The Board as the PCBU must pay the HSRs training fees and pay for any other reasonable expenses that the HSR may incur or has incurred in attending training (including the cost of travel and accommodation that may be booked or paid for in advance). 11 Health and safety reps Does my school need to have Staff Representatives if we have over 20 staff? Also what happens if no-one is willing to be that Staff Representative? The board decides whether the school needs one or more workgroups. Unless the board determines otherwise, a workgroup will comprise all the workers in the school. A workgroup could be a team, department, site or the whole workplace. It could be based on the type of work carried out (eg teaching or administration work) or the areas or places where work is carried out (eg different floors or a multi-storey building, or separate premises).the board must determine whether all the workers are best represented in one workgroup or if further workgroups are needed. (Section 64 HSWA) The minimum ratio of HSRs for a workgroup is 1 representative for every 19 workers if the workgroup comprises all the workers in the business. There is no minimum ratio where there is more than one workgroup in the business, but the PCBU must take into account the criteria set out in the Worker Engagement Participation and Representation Regulations 2016. If no member of staff wants to be an HSR, the PCBU is responsible for finding other ways for engaging with workers. Please see page 35 of the Guide for more information about this. 12 Volunteer workers Is a sports coach/manager for the school considered a Volunteer Worker? They would be a volunteer worker but for the fact that volunteer worker does not include a volunteer undertaking any of the following voluntary work activities:... (ii) assisting with sports or recreation for an educational institute... : section 19(3)(b)(ii) Health and Safety at Work Act 2015. That said, it would be good practice for the coach to undertake such a course.
13 Multiple PCBUs Just need clarification around sports events and who is the PCBU. Example 1: Orienteering for a group of schools and orienteering for all Schools in an area. Is the event organiser the PCBU? Are they required to do the risk analysis of the property for all the schools involved? And we quiz the organiser to exercise our due diligence. or is the landowner the PCBU? Example 2: Kiwi Cricket for all schools in an area. There are three schools hosting the games. Is the overall sports organiser the PCBU? Is the host school the PCBU? The situations you are describing all involve multiple PCBUs. PCBUs must work together to meet their health and safety responsibilities to ensure that an Education Outside The Classroom (EOTC) activity, such as a sporting event does not pose risks to the health and safety of staff and students. This means the PCBUs must so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other PCBUs who have health and safety duties in relation to the same matter. PCBUs do not need to duplicate each other s efforts. The focus will be on making reasonable arrangements and coordinating responsibilities with the other PCBUs in order to fulfil health and safety duties. While Boards of Trustees as the PCBU are responsible for the health and safety of all participants in EOTC activities, boards can only achieve this with everyone taking responsibility for their own health and safety, eg, coordinators, teachers, students and volunteer helpers. Schools as PCBUs must work with the event organiser and landowner to identify any hazards and risks. Due diligence will involve making sure everyone understands the risks and ensuring that these can be managed appropriately by whoever is best placed to do so to ensure that schools meet their health and safety responsibilities. The PCBUs should also monitor each other to ensure everyone is doing what they agreed. The current legislation already covers this, so the need for organisations to work together to meet their duties of care is not new. As with your first situation, the Cricket example is a situation of multiple PCBUs and the same duties and responsibilities apply. There is information about multiple PCBUs in section 2.8 of the Ministry s Health and Safety At Work Act 2015: A practical guide for boards of trustees and school leaders www.education.govt.nz/ministry-of-education/specificinitiatives/health-and-safety/h-and-s-for-boards-oftrustees-and-school-leaders. 14 Buses The Ministry Of Education pays for our buses through a consortium. We do not own the buses, pay the drivers or look after the finance and maintenance for them. Where does responsibility lie if a child is injured on the bus during a normal school run? And where does the responsibility lie if a child/ staff member is injured when we hire a bus for example going to swimming lessons in town? Either through traffic accident of accident on bus e.g. slipping. Most school buses in our area do not have seat belts. Again, where does the responsibility for risk sit? This would be an example of multiple PCBUs needing to work together (consult, cooperation and coordinate). In this instance there would be three PCBUs, the school, the Ministry and the bus company. Overlapping duties do not automatically require PCBUs to duplicate efforts. Instead PCBUs will need to consult, cooperate and coordinate 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. As part of the contractual arrangements, the school will need to ensure that the operator s health and safety measures covering the transporting of school s workers and students meet the standards required by the school.