Scenarios

Here you will find answers to your questions about the impacts of the new health and safety legislation.

Please direct any questions you have to our health and safety team at healthandsafety.info@education.govt.nz for response and publication on this page.

Your questions are covered below under the most popular topics

Topics

Topic 1 Officers

Question 1

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.

Answer 1

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.

Topic 2 Student absconding

Question 2

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 until the end of the school day? Is it the same for a child who is at home sick?

Answer 2

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.

Topic 3 School pools

Question 1

Over summer we generally have our pool available to members of our community via a key and contract system. This has worked well for us over the past few years and is entirely parent run and maintained with training and supervision from our caretaker. 

Is this arrangement jeopardised with the new legislation and will I be liable if something goes wrong.

Answer 1

School pools don’t have to close.

Keeping a school pool open or available outside of core school hours is a decision for the board of trustees.

A key point of the legislation is that health and safety is everybody’s responsibility and that the focus needs to be managing the risk and not the liability.

Schools have a duty to all ‘others’ in the workplace this includes people using school pools inside and outside of normal school hours. Those visitors to your workplace also have a duty to look after their own health and safety. 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 your school has taken all reasonable steps. These steps 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
    • Establish procedures for day-to-day pool management and rules for pool users (example procedure below)

The board should have a policy around the management of use outside of school hours. This could include volunteer/parent run system with overall supervision by a staff member. See below for additional information or visit swimming pools.

Establish procedures for day-to-day pool management and rules for pool users
You must have procedures in place for managing your pool day to day. Make sure that the people involved in managing the pool understand their role. The following are some examples of procedures to include.

  • Regularly check the operation and effectiveness of the pool gates and locks. Replace any locks that stick or don’t close properly.
  • Ensure the first aid kit is accessible to pool users and regularly checked.
  • Lock pool chemicals away from the swimming pool and changing rooms. Store and dispose of them according to the manufacturer’s instructions.
  • Put away pool equipment when not in use as it can be a potential hazard if left lying around. Do not store pool equipment in the same area as the pool chemicals, as this may mean students can access hazardous chemicals.Do not allow aquatics toys that are not designed for pool use, such as boogie boards, to be used in the pool.
  • Manage water quality in compliance with current standards.

In addition, develop rules for the safe use of your pool. Display the rules where they can be read by all pool users, such as on a sign beside the gate. Some sample rules are:

    1. Nobody is to swim alone. There must always be at least one pool supervisor present when the pool is in use. Additional supervisors are required as the number of people swimming increases.
    2. Children under 8 must be actively supervised by someone who is at least 16, who can give immediate help.
    3. The pool supervisor must make sure the gate is always securely closed.
      Nobody is to swim while under the influence of alcohol or drugs.
    4. Check the depth of water before entering the pool.
      Check for hazards, such as steep slopes into deeper water.
    5. No running, jumping, or diving into the pool.
    6. Return pool equipment to the storeroom after use.
    7. Boogie boards, surf boards and kayaks are not to be used in the pool.
    8. The first aid kit is stored in the ...
    9. The closest telephone for emergencies is located at ...

Topic 4 Wellbing and mental health

Question 4

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?

Answer 4

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 (HSWA) to 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).

Topic 5 Staff wellbeing

Question 5

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?

Answer 5

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 the 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.

Topic 6 Staff wellbeing

Question 6

Staff workload and stress – what are the implications on the sector and how can these be responded to?

Answer 6

Under the Health and Safety at Work Act 2015, a PCBU 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 (external link) . (external link)

Topic 7: PTA

Question 7

Is the PTA (parent teacher association) a PCBU?

Answer 7

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.

Topic 8: Tree climbing

Question 8

Could you give me advice on how to minimise the risk of children climbing in a hedge or a tree?

Answer 8

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.

Topic 9: Student safety

Question 9

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?

Answer 9

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
      • child protection education for students, staff and parents. Go to the NZ Police Keeping ourselves safe (external link) website
      • parents reminded about pick up time and have a procedure in place to deal with younger children who aren’t picked up.

Topic 10: Police vetting

Question 10

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?

Answer 10

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’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 yourlandscaper 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.

Topic 11 Billeting

Question 11

Under the health and safety legislation do I as a principal/Officer have any duties around ensuring a safe billeting placement?

Answer 11

School boards have the primary duty of care for, and manage risks to the health and safety of workers and others (including students) arising from the work of the school. This means that schools must take reasonable steps to ensure that the accommodation the school is providing for their students and staff on school trips, including in private homes (while under their care and responsibility) is healthy and safe. There is no legal requirement under the Health and Safety legislation or Vulnerable Children Legislation to police vet families. This would be a policy decision for individual schools.

Topic 12 Health and safety reps

Question 12

Are you able to recommend any health and safety courses for our staff representatives to attend?

Answer 12

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. TheBoard 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).

Topic 13 Health and safety reps

Question 13:

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?

Answer 13:

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.

Topic 14 Volunteer workers

Question 14

Is a sports coach/manager for the school considered a Volunteer Worker?

Answer 14

They would be a volunteer worker but for the fact that volunteer worker "does not include a volunteerundertaking 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.

Topic 15 Multiple PCBUs

Question 15

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?

Answer 15

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 (external link) .

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