Cycling and the Health and Safety at Work Act 2015
What are employers' responsibilities under the new law?
Worksafe NZ have provided the following general advice. To be sure of the position in any particular case, we would recommend that you seek legal advice.
Is an employer is liable for cyclists in three different scenarios:
· If the cyclist rides their bicycle to and from work and is injured during that travel
· If the cyclist has to ride their bicycle as a part of their work and is injured as part of their work
· If the workplace has a cycle pool and shared helmets/lights etc and someone gets injured.
This discussion is based on the provisions of the Health and Safety at Work Act 2015 (HSWA), which comes into force on 4 April 2016. We cannot provide a definitive answer to the questions because the facts in each situation will be material. However, we can talk generally about the legislation relevant to the scenarios you describe. To be sure of the position in any particular case, we would recommend that you seek legal advice.
The key provisions to help determine whether a person conducting a business or undertaking (PCBU) might be liable in the situations your describe are sections 30, 36 and 38. Essentially, PCBUs have a duty to eliminate risks to health and safety, so far as reasonably practicable. If elimination is not practicable, they must minimise risks, so far as reasonably practicable. These duties extend only insofar as the PCBU has the ability to influence or control the matter. ‘Reasonably practicable' is defined in the Act but essentially means something reasonably able to be done to eliminate or minimise health and safety risks. A PCBU's primary duty of care to ensure the health and safety of its workers (section 36) applies only where the workers are at work or carrying out their work. I also note that the definition of workplace includes a vehicle (section 20).
It would be difficult to envisage a situation where the PCBU could be seen as liable, under the HSWA, for an accident involving a worker cycling to work on their own bicycle because the PCBU would have limited ability to control or influence that travel or the safety standard of the bicycle, or safety equipment. Also, in that situation, the worker would not be at work or carrying out work.
If a worker is required to cycle while at work or as part of their work (scenario 2), there are a range of other duties that a PCBU must meet, so far as reasonably practicable, as part of their duty of care. That includes, but is not limited to, the provision of safe plant and equipment, provision and maintenance of safe systems of work, the provision of information, training, instruction and supervision necessary to protect all persons from risks to their health and safety arising from the work.
The HSWA also provides that, where a worker is self-employed, for example working under contract as a cycle courier, the self-employed worker is responsible for maintaining their own health and safety. They must consult and co-ordinate with the courier company to ensure health and safety requirements are met. The same duty applies to the courier company.
In respect of scenario 3, there is an additional duty where the PCBU manages fixtures, fittings or plant at workplaces. If a PCBU provides a pool of bicycles and safety equipment, they have a duty under section 38 to ensure, so far as reasonably practicable, that the plant etc is without risks to the health and safety of any person (not just the worker). As with scenario 2, that would include the maintenance of the bicycle, ensuring the safe handling of the bicycle and other equipment, information, training and instruction (among other things). In respect of the safety equipment, there would be a duty on the PCBU to ensure that the equipment is fit for purpose and maintained, and free of risks to health and safety.
In respect of scenarios 2 and 3, there is a potential for an offence to be committed by the PCBU or an officer if they fail to fulfil their duties. There is a range of possible enforcement actions that could be taken when there is a breach of a duty, including:
· the issue of an improvement notice which specifies a timeframe for remedying the breach
· the issue of a prohibition notice which requires the cessation of an activity, or
· the issue of an infringement notice or even potentially criminal proceedings.
They key test under these scenarios, however, is not whether there is an accident, but whether the accident could have been prevented by steps taken by the PCBU that were reasonably practicable at the time.