Information for contractors and organisations using contractors

The Health and Safety at Work (Adventure Activities) Regulations 2016 require any person conducting a business or undertaking (PCBU) who offers or provides an adventure activity to undergo a safety audit and register with WorkSafe. If you are a contractor or a principal organisation that uses contractors, this guidance will help you determine whether you need to be registered.

When more than one organisation is working together to provide an activity, who needs to register?

In many cases, only one of the organisations will need to register. However, in some cases the activity may be jointly provided. If this is the case, then you may both need to register.

The regulations require the [1]PCBU(s) that are providing the adventure activity to register.

How can I determine if I am providing an adventure activity?

The regulations make it clear that an adventure activity can be provided directly in person, or indirectly through someone else (for example, a contractor).

We consider that the following factors will generally determine whether the contractor is providing the adventure activity: 

  • The extent to which the contractor is required to follow the principal organisation’s procedures (in particular, safety procedures) and is subject to the principal’s detailed control and direction.
  • The extent to which the contractor administers the activity and organises the logistics, such as facilities and equipment.
  • The extent to which the promotional material and other documentation indicates that the activity is being provided by the contractor.
  • The extent to which the payment arrangements indicate that the contractor is engaged to provide the activity in their own right or as a whole package (for example, as opposed to providing the activity as part and parcel of the principal’s business, or being engaged on an hourly rate for their skills or labour).
  • Whether the activity is the same as or similar to the activities the contractor normally undertakes.
  • Whether the contractor carries out work for other organisations and is genuinely in business on their own.

NB: You may also consider there are other relevant factors in your particular circumstances that you should take into account. 

If the contractor is not providing the adventure activity, then by default, the principal organisation is providing the activity.  In some cases, the factors above may indicate that both the principal organisation and contractor are providing the activity, in which case both must register.

The more these factors suggest that a contractor is fully integrated into a principal organisation’s business (even though they are nominally independent), the less likely it is that the contractor is providing the adventure activity (refer example A).

The more these factors suggest that a principal organisation is only facilitating the activity, the less likely it is that the principal organisation is providing the adventure activity (refer example C).

What can I do to make sure I meet my responsibilities under the regulations?

If you meet the definition of an adventure activity operator, you are required to undergo a safety audit and register with us Where there are multiple parties involved in providing an adventure activity, it is important to be clear which party is providing the adventure activity, or whether the parties are jointly providing the adventure activity.  We recommend making sure this is reflected in the contractual arrangements (being clear who is responsible for which parts of the activity) and other documentation (such as information for the public).

If you are contracting another party to provide an adventure activity, it is important to be clear which party is providing the activity.  We recommend making sure this is reflected in the contractual arrangements (being clear who is responsible for which parts of the activity) and other documentation (such as information for the public).

We will enforce the regulations where there are reasonable grounds to believe a person is seeking to avoid their responsibilities under the regulations, for example, where the circumstances show (despite any documentation to the contrary) that an unregistered operator is providing the activity.

Do I have any obligations under the Health and Safety at Work Act 2015 to contract with registered operators?

A contracting arrangement is very likely to involve overlapping duties. This gives rise to the duty to consult, coordinate and cooperate with all other PCBUs who have a duty in relation to the same matter.

In practice, if you contract an ‘adventure activity operator’ to ‘provide adventure activities’, you should ensure they are registered with us. If you are a PCBU under the Health and Safety at Work Act 2015 , WorkSafe NZ considers it will generally be a ‘practicable step’ to ensure the operator you contract is registered (refer example C). A list of registered adventure activity operators(external link) is available.

Do contractors to schools, tertiary education providers and clubs need to register?

The regulations exclude activities provided by schools, tertiary education providers and clubs in certain situations.  However, if a school, tertiary education provider or club contracts a person to ‘provide an adventure activity’, that contractor must be registered (refer example E).

Contractors will only be excluded from the regulations where they are so integrated within the school, tertiary education provider or club that they are not providing the activity themselves (refer example D).

The list of factors set out above will assist in determining which PCBU is providing the activity, or whether more than one organisation is doing so.

Schools have an obligation to ensure the safety of students while undertaking Education Outside the Classroom.  Steps taken to meet this obligation do not necessarily mean that the school is providing the activity, rather than the contractor.

If I work with another business to deliver an adventure activity, can we apply for a single safety audit and register together?

If you are jointly providing an adventure activity, then you will both need to register separately for that activity.  The regulations do not provide for multiple operators to register together.

Application of guidance

The following examples provide practical guidance about how we will make a decision about whether a principal organisation or contractor is providing an adventure activity.

The application of this guidance will depend on the details of your operation.  If you are unsure about whether you need to register, you can contact us for advice

Example A

Sam is a qualified rock climbing instructor.  Rock Recreation is a company that offers outdoor rock climbing instruction and guided trips.  Rock Recreation contracts Sam to assist when demand is high.  Sam is required to follow Rock Recreation’s operational procedures and other company guidelines, including those relating to safety.  In addition, participants book with and pay Rock Recreation, and Sam wears Rock Recreation’s clothing when instructing.

In these circumstances, we would be likely to consider that Rock Recreation is the adventure activity operator, as it is Rock Recreation that is providing the adventure activity through Sam, rather than Sam doing so himself.  WorkSafe NZ would be unlikely to consider Sam an adventure activity operator, as Sam is instructing on behalf of Rock Recreation rather than providing the activity in his own right.

Example B

Carl’s Kayaking Adventures contracts Rebecca to guide participants on more difficult trips.   Rebecca also provides kayaking activities in her own right and has registered with WorkSafe NZ for this purpose.  However, when working for Carl, Rebecca wears a Carl’s Kayaking Adventures top and uses his equipment.  From the participant’s perspective, Rebecca appears to be a staff member of Carl’s Kayaking Adventures and Carl’s Kayaking Adventures undertakes all the administrative organisation of trips.

Carl claims that he does not need to register as he is using a contractor who is registered (and the kayaking trips he does himself do not meet the test for an adventure activity).

In this example, we would be likely to consider that Carl’s Kayaking Adventures is providing the activity indirectly through Rebecca, and would therefore need to be registered.  The fact that Rebecca is already a registered operator in this example does not mean that Carl’s Kayaking Adventures does not also need to register.

Example C

Team Together is a business which specialises in corporate team building services.  Team Together uses contractors to deliver some of the more adventurous activities that participants undertake.  For example, Team Together sometimes contracts Bill’s Sky Walks to deliver a high ropes course to participants. Team Together’s expertise relates to team building activities, and it does not have the expertise to provide adventure activities such as high ropes courses.  Team Together relies on Bill’s Sky Walks to run the activity and keep participants safe.  Participants are aware that Bill’s Sky Walks will be providing the high ropes aspect of the team building exercise.

In this example, we would be unlikely to consider Team Together an adventure activity operator.  Rather, WorkSafe NZ would be likely to consider that Bill’s Sky Walks was providing the adventure activity and therefore would need to be registered.

However, Team Together may have an obligation under health and safety legislation to ensure that it only contracts with a registered adventure activity operator to provide adventure activities to Team Together’s clients.

Example D

Bill is a qualified kayaking instructor.  Every summer, he assists the local high school to provide kayaking instruction to the school’s students.  Some of the kayaking trips involve more difficult waters with a greater degree of risk.  The school has been running a kayaking programme for some years and has clear safety standards and comprehensive processes that Bill must follow.  Bill sometimes instructs alongside one of the school’s teachers.

In this example, we would be likely to consider that Bill is not providing the activity (rather, the school is) and therefore Bill does not need to be registered.  NB: The regulations also do not apply to the provision of the activity by the school under the regulation 4(6) exclusion.

Example E

A school in a nearby town contracts Bill to deliver kayaking instruction to its students.  The school has little experience in providing this activity and, while it has a general safety plan, has not developed any comprehensive safety procedures specific to this activity.  While the school’s contract with Bill sets out its expectations regarding the safety of the students, it also makes it clear that Bill will need to have appropriate safety standards in place. While teachers accompany the students, the activity is governed by Bill’s procedures.

In this example, we would be likely to consider that Bill was providing the activity (not the school) and would therefore need to be registered.

Footnote

[1] ‘PCBU’ includes an employer, principal, sole trader, body corporate and or partnership.

Disclaimer

The information in this publication has no statutory or regulatory effect and is of a guidance nature only. The information should not be relied upon as a substitute for the wording of the Health and Safety  at Work (Adventure Activities) Regulations 2016.

While every effort has been made to ensure this information is accurate, WorkSafe NZ does not accept any responsibility or liability for error of fact, omission, interpretation or opinion that may be present, nor for the consequences of any decisions based on this information.