Following some initial media hype that the Health and Safety at Work Act 2015 would be so tough that it would even prohibit children from climbing trees at school, it is now in force and matters appear to have settled down.

However, we are often still asked how the Act applies to Not-For-Profit organisations (“NFPs”).

The Act - Background

The Act was passed in large part because of the 2010 Pike River Mine disaster, so now the guidelines governing health and safety in underground mines and those governing NFPs are connected through the Act.  Despite this, policy statements from MBIE, both during and after passing the Act, have consistently reiterated that the Act was not intended to “negatively affect” NFPs in New Zealand.

At a high level, as it relates to NFPs, the Act reflects what was under the previous health and safety legislation. However, the specific intricacies of the Act mean that NFPs should know where they fit within it, and therefore how best to discharge their obligations under it.

Under the old law an NFP was penalised over $84,000 after a visitor fell and was injured.

Penalties under the new Act have been substantially increased and NFPs caught by the Act are liable to the same penalties as other commercial entities, so it pays to get your H&S policies and practices in order, even if your entity is not designed to make a profit.

It is vital to put first the importance of ensuring that no-one who comes to your workplace is hurt or killed, and this rates well ahead of the financial pain felt by your organisation.

So how do you know if you are covered by the Act?

The Act applies to businesses and organisations (including NFPs) who qualify under the Act as being a PCBU (“Person Conducting a Business or Undertaking”.)

A purely volunteer organisation where volunteers work together for community purposes, and which doesn't have any employees, is known as a “volunteer association” under the Act, and a volunteer association is not a PCBU, so the Act does not apply.

However, a volunteer organisation with one or more employees is a PCBU and must then do what is reasonably practicable for it to do, and what is within its influence and control to do, to ensure the health and safety of its workers and others.

What duties do NFPs have as a PCBU under the Act?

If your organisation is a PCBU (ie. has one or more employees) you may have both volunteers (“casual volunteers”) and “volunteer workers” assisting with operations.  The duties to each are different under the Act.

A volunteer worker is a person who regularly works for a PCBU with its knowledge and consent on an ongoing basis and who is integral to the PCBU’s operations (with a few exceptions, see further below).  Volunteer workers are afforded the same protection as any other worker and must have appropriate training, instruction or supervision to undertake their work safely.

A PCBU also has non-specific duties to its casual volunteers, (whether or not they receive out of pocket expenses). These duties are the same duties as those owed to any other person engaging with the organisation (such as customers or visitors). The PCBU must ensure that their health and safety is not put at risk from the PCBU’s work, so far as is reasonably practicable.
If a volunteer worker fits within one of a few exceptions in the Act, (and if the NFP has no other volunteer workers operating outside the exceptions), the NFP will not be a PCBU.

The exceptions are:

  • Participating in fundraising activity;
  • Assisting with sports or recreation for an educational institute, sports or recreation club;
  • Assisting with activities for an educational institution outside the premises of the educational institution; or
  • Providing care for another person in the volunteer’s home.

What duties do NFPs have if they are NOT a PCBU under the Act?

When an NFP has no volunteer workers (ie. employees) or where an organisations’ employees fall within the exceptions outlined above, they will not be a PCBU and will therefore not be caught by the Act.

However, that does not mean such NFPs and their officers have no health and safety obligations.

They are still subject to general legal principles (including criminal) that apply, and create obligations, and prudent steps should still be taken by NFPs to ensure that its:

  • Volunteers are protected;
  • Reputation and funding is protected;
  • Liability is limited in terms of property damage;
  • Liability is limited in terms of  personal injury resulting from gross negligence (taking the act or omission outside the Accident Compensation regime).

While concern for avoiding risk should not stifle its activities, we recommend that NFPs (whether a PCBU or not) adopt procedures that are consistent with the Act, rather than seek to find reasons not to comply with it.