Vahry­ous thoughts


It seems a lit tle ironic that while I sat in a Wellington ho­tel con­fer­ence room nearly all day on a Sunday in May be­ing briefed about the new rules for health and safety, a group of four wheel­ers were be­com­ing trapped by snow in Cen­tral Otago. I con­fess that their day was prob­a­bly more ex­cit­ing than mine and it ap­peared that they had the health and safety is­sues fairly well cov­ered, apart from get­ting it wrong on the amount of snow that was to fall on them. It was cer­tainly good to see that de­spite giv­ing the lo­cal search and res­cue crews a chal­lenge, the four wheel­ers were un­harmed by their en­forced overnight stay and needed only trans­port home. There’s prob­a­bly an­other story around the even­tual re­cov­ery of the trapped ve­hi­cles once the snow re­cedes. The new Health and Safety at Work Act ( HSWA) rules now over­lap sig­nif­i­cantly into recre­ation. The HSWA is aimed at mak­ing ev­ery­one’s re­spon­si­bil­i­ties clear and it places du­ties on peo­ple who are able to con­trib­ute to the con­trol of work health and safety risks. Ev­ery­one has a ‘ duty’. A per­son or per­sons con­duct­ing a busi­ness or un­der­tak­ing is now la­belled as a ‘PCBU’. How­ever, a vol­un­tary as­so­ci­a­tion has a slightly dif­fer­ent level of PCBU re­spon­si­bil­ity and their vol­un­teer of­fi­cers can’t be pros­e­cuted if they fail in their due dili­gence duty. That said, work­ers need to take ‘rea­son­able care’ to en­sure their own safety and the safety of oth­ers… which means if you see some­thing stupid about to hap­pen, you should say some­thing! A 4x4 trip leader would most likely be iden­ti­fied as the PCBU on the day and the Act iden­ti­fies that you must com­ply with rea­son­able in­struc­tion and co­op­er­ate with rea­son­able pol­icy. The ‘ due dili­gence’ clause would prob­a­bly give some lat­i­tude to the trip leader in not know­ing ev­ery­thing about the par­tic­i­pants and their ve­hi­cles, but it might mean that some ef­fort had been put into gain­ing knowl­edge of what risks the planned ac­tiv­ity might pose. Again there is minimal li­a­bil­ity for ‘vol­un­teer’ in­volve­ment such as ca­sual vol­un­teers as­sist­ing with sports, things like park clean ups and fundrais­ing ac­tiv­i­ties. A vol­un­teer ‘of­fi­cer’ has a duty, but if not paid, you have du­ties but can’t be li­able. This would prob­a­bly be what 4x4 recre­ation would fall un­der, but we’ll need to be­have as if we do have a full duty, as un­til the leg­is­la­tion has been tested in Court and some­thing de­fin­i­tive ruled around who ex­actly is a vol­un­teer, it will be a grey area. It would be ex­pen­sive to be a test case in a prose­cu­tion. There is an­other cat­e­gory of ‘vol­un­teer’ that in­cludes peo­ple like vol­un­teer fire­fight­ers, etc. and they too have a slightly dif­fer­ent sta­tus, but de­spite that it still al­ways comes back to the state­ment that ‘ev­ery­one has a duty of care’. Within that duty is to man­age risk and the cri­te­ria has slightly changed to sim­ply elim­i­nate risk, or if ‘rea­son­ably prac­ti­cal’ – min­imise. ( What is, or was, rea­son­ably able to be done to en­sure health and safety, tak­ing into account and weigh­ing up all rea­son­able mat­ters.) PCBUs must dis­charge their duty to the ex­tent pos­si­ble, based on abil­ity to in­flu­ence and con­trol the mat­ter. This Act ob­vi­ously has many landown­ers rather spooked again, but in the case of farm­ers, the Act iden­ti­fies that they only have a duty for a ‘work place’ and while farm build­ings are such a work­place (ex­cept a farm house), ar­eas of farm not be­ing ac­tively worked on are not re­garded as a work­place, which con­sid­er­ably re­duces their duty to peo­ple vis­it­ing their land for recre­ation. There is no duty to any­one who does not have per­mis­sion to be on a prop­erty. The NZFWDA have some ma­te­rial on their web­site about the du­ties of landown­ers etc. and there is in­for­ma­tion on the Act at www.busi­ness.govt. nz/ worksafe That meet­ing in Wellington was in fact the NZFWDA an­nual meet­ing, which was a low key af­fair with many fa­mil­iar faces and an in­creas­ingly higher av­er­age age. The as­so­ci­a­tion of­fi­cers were all re-elected un­op­posed and the fi­nances re­main healthy. The pres­i­dent, Neville Dun­ton, made the point that over the past year his es­ti­mates sug­gested that over 2000 hours had been ex­pended by the na­tional ex­ec­u­tive as vol­un­teers, with the HSWA lob­by­ing and in­ter­pre­ta­tion be­ing vi­tal to main­tain­ing ac­cess to the land we need for our recre­ation. In the re­port pre­sented by the na­tional pub­lic re­la­tions of­fi­cer, Roger Sey­mour, he de­cried the En­vi­ron­ment Court ac­tion taken in the 1990s by four wheel drive clubs over the po­ten­tial stop­ping of the John­son Road un­formed le­gal road ( ULR) in the lower North Is­land as a waste of ef­fort. He wrote “Some peo­ple jus­ti­fied it as set­ting a prece­dent, but I have never seen any ev­i­dence over the years to sup­port this”. I’m one who does re­gard that case as a valu­able prece­dent, as any re­view of sub­se­quent En­vi­ron­ment Court road stop­ping cases will show that no cases chal­lenged on the ba­sis that the road has a value to recre­ation, have since suc­ceeded in hav­ing that road stopped. I was di­rectly in­volved with the sub­se­quent Higham Road case in the En­vi­ron­ment Court and the John­son Road case was ref­er­enced by the Court as a prece­dent. More re­cently there was a ULR on the West Coast that again was de­nied stop­ping by the Court be­cause it pro­vided recre­ation ac­cess to the coast. All those cases have been as le­git­i­mate re­sponses to pro­pos­als to elim­i­nate pub­lic lands for pri­vate ben­e­fit and only ended up in Court af­ter other op­tions had been ex­hausted. Hope­fully the strength of those prece­dents will mean a re­duc­tion in pro­pos­als to stop many of the ULRs that are prac­ti­cal for ac­cess and recre­ation: we will con­tinue to need those for the fu­ture.

Newspapers in English

Newspapers from New Zealand

© PressReader. All rights reserved.