This position sets out our expectations of those Persons Conducting a Business or Undertaking (PCBUs) with ‘upstream’ duties under the Health and Safety at Work Act 2015.
What are upstream duties and why are they important?
Upstream duties apply to any PCBU that:
- designs, manufactures, imports, or supplies structures, substances or plant to be used, or that could be reasonably expected to be used, in a workplace; or
- installs, builds or commissions plant or structures to be used, that could be or reasonably expected to be used, in a workplace
An upstream PCBU’s duties are important because upstream duty-holders can influence the safety of products before they’re used in the workplace. This may help to eliminate risks. It’s more efficient and effective to manage upstream duties than to expect downstream PCBUs to retrofit health and safety solutions for poorly designed structures, substances or plant. Managing risk upstream is also likely to be cheaper than managing those same risks later. All this means that managing potential risks upstream can help to benefit productivity.
What upstream duties apply to a PCBU under the law?
The law requires every PCBU to think about the potential health and safety risks of structures, substances or plant in a workplace, and then do what they reasonably can to reduce those risks. A PCBU that installs, builds or commissions plant or structures must, as far as reasonably practicable, make sure they do so in a way that avoids risks to health and safety. A PCBU’s responsibilities include supporting other PCBUs to fulfil their duties and not passing risk on to other PCBUs. Designers, manufacturers, importers, and suppliers must think about, as far as is reasonably practicable, all risks in the lifecycle of the plant, substance or structure. This includes risks during maintenance and decommissioning. Designers, manufacturers, importers, and suppliers must also provide health and safety information about their products or designs to other PCBUs. If a PCBU changes part of a structure or piece of plant, they are considered a designer.
What should upstream and downstream PCBUs focus on?
We expect PCBUs to collaborate to manage risk. For example, an upstream PCBU may share information with a downstream PCBU on how to use the structure, substance, or plant in a way that is safe and healthy. The downstream PCBU may engage with that upstream PCBU to make sure the downstream PCBU’s needs are understood.
Downstream PCBUs have a duty to ensure a safe and healthy working environment. They should consider health and safety implications and make reasonable enquiries about structures, substances and plant they are buying or commissioning for use at work. This is particularly so where the downstream PCBU buys from an unfamiliar or overseas supplier, or buys in bulk, or commissions a structure.
If a PCBU identifies a design or manufacturing fault that has contributed to a health and safety risk at work, they should raise that with the designer, manufacturer, importer, or supplier. The PCBU will also have to manage that risk.
What is WorkSafe’s approach to upstream PCBUs?
We recognise that working with upstream PCBUs to prevent risks at the design, manufacturing, import, or supply stage is more efficient and effective than trying to continually tackle the risk downstream, at every workplace. We may work with designers in New Zealand to promote the design of business processes that try to eliminate risk and, if this isn’t possible, minimise risk.
Because much of the plant used in New Zealand is designed and manufactured overseas, we believe that importers, suppliers and installers are important in keeping workplaces safe and healthy. They are responsible for making sure that the equipment they import for, supply to, or install in a workplace is fit for purpose. If we find a design or manufacturing fault has contributed to a health and safety risk at work, we may follow up with the upstream PCBU. We are more likely to follow up if we find a pattern of failures from a design or manufacturing fault.