What do small operators need to do?

Safe Seas Clean Seas Issue 50, June 2016

Fred’s Fish – a scenario

Fred is a sole operator who has his own fishing boat trading as Fred’s Fish. Fred and his wife Kiri are both directors of ‘Fred’s Fish’, which makes them ‘officers’. ‘Fred’s Fish’ is a business, which makes it a ‘PCBU’. Fred is also a ‘worker’ because he works as a fisherman.

Fred’s health and safety responsibilities haven’t changed much since the Health and Safety at Work Act (HSWA) came into force. Fred’s Fish operates under a Maritime Operator Safety Plan (MTOP) signed off by Maritime NZ, which already addresses many of the things required under HSWA.

But Fred and Kiri know that their MTOP doesn’t address all health and safety requirements – for example it doesn’t cover ‘workplace facilities’, such as access to a toilet and a place to wash hands. Fred and Kiri’s boat, The Starfish, is an older vessel and doesn’t have a toilet or hand-washing facilities. They know that the Act requires them to ensure, so far as is reasonably practicable, that there are adequate facilities on board. The Starfish is small and there is nowhere to install a toilet or hand basin. Due to the boat’s size and configuration, Fred and Kiri have concluded that it isn’t reasonably practicable to add a toilet. When Fred thought about what was reasonably practicable he took into account that he has no staff, only works during the day, and that there are toilets available onshore. When Fred goes fishing he takes along fresh water, a basin, soap and towel for hand washing.

Fred and Kiri need to meet their ‘officers’ due diligence’ duties as directors. They need to know about health and safety matters, understand health and safety risks, and make sure their business has processes in place to minimise those risks. This isn’t something new for Kiri. She has always worried about Fred being out at sea on his own. She regularly checks to make sure that Fred is paying attention to health and safety, and every so often they review their safety plan.

Fred’s boat is maintained and repaired by ACME Marine. ACME Marine is a business, so it’s also a PCBU. Fred needs to make sure that he discusses and manages health and safety with ACME Marine or anyone else who does work on the boat. This new requirement is called ‘overlapping duties’.

What about asbestos requirements?

Fred and Kiri have been planning some upgrades and maintenance on their boat during the next off-season. They need to think about asbestos because under HSWA all businesses have a duty to manage asbestos in the workplace. Their boat The Starfish is a workplace.

ACME Marine has told Fred that The Starfish could contain asbestos, and they should get this checked before the alterations can be made. Asbestos use in New Zealand was largely phased out in the 1990s. The Starfish was built in NZ in 1995 so it could contain asbestos. Kiri wants to be certain there is no risk – her uncle Bill got cancer after working with asbestos.

Kiri contacts her old school friend, Ngaire, who works for a company that specialises in asbestos sampling and testing. Ngaire takes some samples from around the boat and calls them a few days later with the results. The samples didn’t contain asbestos. Fred and Kiri don’t have to take any extra precautions, and ACME Marine can get on and make the planned alterations.

New duties
Sole operator operating to an approved Maritime Transport Operator Plan under MOSS Duty to work with other businesses to manage health & safety

overlapping duties
Duty of directors and senior leaders to ensure their business meets health & safety obligations

officers’ due diligence
Duty to manage asbestos Duty to provide facilities

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