We are operating at reduced capacity due to COVID-19 Alert Level Three restrictions in Auckland. Please only call our 0800 number if someone is at serious risk of harm or has been seriously injured, become seriously ill, or died as a result of work.
Who is responsible for health and safety at a school, is the school board liable if a child is hurt on the school playground, who has the primary duty of care at a school, and who is responsible for the health and safety of students when they are on a school camp?
The simple answer is everybody – the board of trustees, the principal, staff, parents and others. But there are specific responsibilities for specific roles.
- Collectively, the board of trustees as a legal entity holds the primary duty of care to ensure the health and safety of everybody involved with the school (staff, children, parents, members of the public) ‘so far as is reasonably practicable’.
- Individually, the board members, including the principal, are ‘officers’ under the new Act. They are responsible for exercising due diligence to ensure the school is meeting its health and safety obligations. They need to assure themselves the school has the appropriate policies, procedures and resources in place and to monitor them.
- Principals, as well as being officers, are workers. In this capacity, like all workers, they must make sure that what they do or don’t do doesn’t adversely affect the health and safety of others in the school.
- Parents and other visitors also have a responsibility to take reasonable care for their own and others’ health and safety.
The focus here should be on managing the risk rather than the accident because managing the risk (as far as is reasonably practicable) is how you will meet your duties.
If a risk is not adequately managed there could be enforcement action whether or not there is an accident. That means that:
- If a school board is aware of a risk, manages that risk so far as is reasonably practicable and a child is still hurt as a result of that risk, then the school board will not face a penalty.
- If a school board is aware of a risk, does nothing about it and a child is hurt as a result of that risk, then the school board could face some form of penalty.
- If a school board is aware of a risk, does nothing about it and a child isn’t hurt, then the school board could still face some form of penalty.
While there has been a lot of focus on playground health and safety, there are many school activities where stringent health and safety practices are already necessary, and most schools routinely manage these.
Consider the risks associated with a secondary school chemistry lab, metal and wood working workshops, stored chemicals for the school pool, sporting equipment etc.
School boards should already have clear policies and practices for health and safety in all the school’s activities and for all affected people.
The primary duty of care is the responsibility of the board of trustees as a legal entity.
The duty of exercising due diligence to make sure the school is doing all that is practicable to ensure the health and safety of workers and others, is the duty of the individual members of the board of trustees, including the principal.
While the board of trustees, as an entity, can fail in its primary duty of care, the individual members of the board could still be meeting their duty of due diligence as officers and vice versa. They are two separate duties for two separate duty holders.
The principal, as an ex-officio member of the board, is not exempt and can be liable for a failure to meet the due diligence duty.
Find out more about the Primary duty of care
The decision by WorkSafe to take enforcement action is not an automatic one and lots of things will need to be taken into consideration before deciding what, if any, enforcement actions are appropriate. For example:
- What was the level of harm?
- What was the level of knowledge about the risk?
- What options were available to manage the risk?
- What is the board of trustees doing about it?
- Was this a one-off incident or part of a series of issues?
Prosecution is usually a last resort and is not a decision taken lightly.
An incident in a school playground will rarely result in a visit by a health and safety inspector.
The board of trustees and the organisation running the school camp are responsible for the health and safety of students.
Where there is more than one organisation (PCBU) involved, each has a duty to ensure the health and safety of the people affected by the work they do or service they provide.
In the case of a school camp, the board of trustees and the camp organisers have to consult, cooperate and coordinate to ensure the health and safety of the students, parents, and teachers attending the camp.
Together they will need to make sensible arrangements to ensure risks are managed. These arrangements are largely in place already.
Volunteers are a vital part of the support network for schools, particularly in the area of Education Outside the Classroom (EOTC).
The new law won’t get in the way of parents and caregivers playing their part to help kids experience the great outdoors.
People volunteering to support a school camp or other one-off activities such as school fairs and sausage sizzles, will be classed as ‘casual volunteers’ – a category that applies to people volunteering for educational, sports or recreational institutions.
The school has a duty to these volunteers just as it does to parents or other members of the public when they are in the school.
The duties of the board of trustees, the EOTC provider and the volunteers are effectively the same as those that existed under the previous HSE Act.
While getting external expert advice can be a useful step to take for some organisations, there are a number of things you can do yourself to ensure you are ready for the new legislation.
Before rushing into a lot of expense, take a closer look at your existing health and safety practices. If you are already taking a considered approach then little will need to change.
You may still feel that your organisation needs extra help and specialist advisors can be useful especially if the risks you need to manage are detailed and technical.
It’s also important that you choose the right person for the job. The Health and Safety Association of New Zealand (HASANZ) has put together a checklist of five questions to ask potential health and safety advisors(external link):
- Which professional association do they belong to? Can you confirm this?
- What qualifications and/or certification do they have? Ask to see a current practising certificate from the relevant association, or similar proof of competence.
- What relevant skills and experience do they have for this job?
- Can they give examples of similar work they have done recently?
- Ask if they are happy for you to contact their clients to ask about the work they’ve done for them?
A question you should ask yourself is, ‘Is this person selling their services based on fear?’.
Scaremongering and myths can distract from the realities of HSWA and the constructive ways that people can improve health and safety at work.
If you’re hearing that you are liable for hundreds of thousands of dollars and/or imprisonment if you don’t get it right and ‘here is a system that will fix that for you’, then it’s wise to question the legitimacy and motivation of the source.
Other useful information can be found at theHASANZ website(external link). HASANZ is the national umbrella organisation of workplace health and safety professions. Its website has a full list of member associations and how they can help businesses. It is also developing a national online register of competent workplace health and safety professionals, due to be launched in 2016.