Legislative overview

The Health and Safety at Work Act 2015 is New Zealand's workplace health and safety law. It came into effect on 4 April 2016 and sets out the principles, duties and rights in relation to workplace health and safety.

There is also a range of other legislative requirements that the person conducting a business or undertaking (PCBU) will need to understand to more support health, safety and wellbeing.

Questions to consider

Do you have a system and process in place to ensure you are meeting the minimum legislative requirements?
What measures do you use to determine if you have an active health and safety culture?
Are your workers aware of the requirements and duties under the Health and Safety at Work Act 2015?

Health and Safety at Work Act 2015

The Health and Safety at Work Act 2015 (HSWA) recognises that a well-functioning health and safety system relies on participation, leadership, and accountability by government, business (including schools and early learning organisations) and workers.

Health and Safety at Work Act 2015 – NZ Legislation(external link)

School boards and early learning service providers are considered to be "persons conducting a business or undertaking" (PCBU). Therefore they must, so far as is reasonably practicable, provide and maintain a work environment that is without health and safety risks.

Roles and responsibilities

The PCBU has the primary responsibility for the health and safety of workers and others influenced by its work (including visitors, tamariki and ākonga). This primary duty of care is a broad overarching duty which includes, but is not limited to, having effective practices in place for:

providing and maintaining a work environment that is without risks to health and safety
providing and maintaining safe plant and structures
providing and maintaining safe systems of work
ensuring the safe use, handling and storage of plant, structures and substances
providing adequate facilities for the welfare of workers when doing work, including ensuring access to those facilities
providing any information, training, instruction or supervision that is necessary to protect everyone from risks to their health and safety arising from the work of your school or early learning service
monitoring the health of workers and the conditions at the workplace for the purpose of preventing injury or illness of workers when doing work for your business
providing healthy and safe worker accommodation.

Defining the workplace

Most duties under the HSWA relate to the conduct of the work rather than to the physical workplace. The focus is on the work being carried out and how it can affect workers and others. There are some duties that relate specifically to the physical workplace.

Under section 20 of the HSWA, a workplace:

means a place where work is being carried out, or is customarily carried out, for a business or undertaking
includes any place where a worker goes, or is likely to be, while at work.

Examples include while on school camps, visiting other schools/kura, or on school/kura trips, early learning excursions, visiting a private residence for work purposes, or when in a vehicle while traveling for work purposes.

For example, when one of your teachers visits another school or a student at home for work purposes, they are still working for the school, and the school should consider the risks that may be involved. It doesn’t mean that the school has control of the other school’s workplace or the home.

Active health and safety culture

PCBUs should show their commitment to the health, safety and wellbeing of workers and others in their school or early learning service. They can do this by developing, monitoring and reviewing health and safety policies and encouraging an active health and safety culture, where health and safety is everyone’s responsibility, is visible and continuously practised.

You need to ensure members of the community and other people visiting the school or early learning service understand the hazards they are exposed to or can create and know the appropriate actions to take.

Understanding the law – WorkSafe(external link)

Offences and penalties

The HSWA encourages a proactive approach to keeping people safe from harm. If there is a failure to put appropriate systems in place to identify potential harm or to work collaboratively to keep people safe, then prosecutions or penalties may follow.

While the PCBU may be liable, school board members (including student and teacher reps), other than the principal, are exempt from prosecution relating to a failure to meet and/or comply with their due diligence obligations and duties as an Officer.

The exemption for board members stems from a special provision (section 52 of HSWA) in the HSWA leading from them being elected under the Education Act. They still however have duties and should be proactive about meeting these.

Enforcement – WorkSafe(external link)

Insurance in the event of prosecution

It is not possible to be insured against fines. The purpose of this provision is to make sure duty holders do what is reasonably practicable to keep workers and others safe. You may be less vigilant if you are able to insure yourselves against the consequences.

It is still possible for an individual or a PCBU to take out insurance for the cost of defending a prosecution or to cover any reparation ordered by the Court to be paid to a victim. PCBUs may wish to discuss this with their insurers. However, you are better to avoid tragedies by investing in systems to identify and manage risks and therefore prevent harm.

School boards can choose to join the Ministry of Education Risk Management Scheme to get comprehensive contents, liability and cyber insurance for your school, or, as with early learning services, insure with a private insurance company.

Risk management scheme: Contents, liability and cyber insurance

Other related legislative requirements

There is a range of other legislative requirements supporting health, safety and wellbeing in schools and early learning services.

These include but are not limited to:

Education and Training Act 2020

The purpose of this Act is to establish and regulate an education system. Several sections of the Act support student health, safety, and wellbeing.

Education (Early Childhood Services) Regulations 2008 – NZ Legislation(external link)

Licensing criteria for centre-based ECE services

The Statement of National Education and Learning Priorities (NELP)

This took effect on 1 January 2023. It requires early learning services and school boards to ensure places of learning are safe, inclusive and free from racism, discrimination and bullying.

Children’s Act 2014

The Children's Act 2014 introduced measures intended to ensure children can be better protected from abuse and neglect both in their homes and in the community.

Section 77A of the State Sector Act 1988

This requires boards to operate a personnel policy that complies with the principle of being a good employer, including provisions requiring 'good and safe working conditions'.

Employee collective agreements

These also contain provisions for health and safety.

Section 7A of the Smoke-free Environments Act 1990

The Act requires that the buildings and grounds of schools and early childhood services to be smokefree and vape-free.

Code of practice for the pastoral care of tertiary and international learners

The code sets out the expectations that tertiary education organisations and schools enrolling international students must meet for the safety and wellbeing of learners.

Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021

Food Act 2014

Under the Food Act 2014 anyone who sells or provides food needs to make sure it is safe and suitable to eat.

Food safety for schools and kura (Food Act 2014)

Food safety at early learning services

Last reviewed: 25 March 2024 Has this been useful? Give us your feedback