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Health and safety: legal responsibilities

Lawyer Ron Qin provides a breakdown of the main health and safety obligations and how they apply to everyday scenarios landscapers face

It has been over five years since the passing of the Health and Safety at Work Act 2015 (the Act). Several related regulations were also passed not long after.

The words ‘health and safety’ are thrown around often and it can be daunting at times, especially when you are on the receiving end. Having been on both sides of the fence with WorkSafe New Zealand and the private sector myself, I am in a good position to provide some practical insights for landscapers.

Role and duties

First, we will cover two important concepts under the Act. The type of role, and the duties. The roles under the Act are:

  1. Person Conducting a Business or Undertaking (PCBU).

  2. Officer.

  3. Worker.

  4. Others.

In the case of small landscaping businesses, the most applicable roles would be PCBU, Officer, and Worker. Just note that you can have more than one role in any one situation.

There are numerous duties under the Act and covering them in detail would not be suitable for this article. However, we will go over some of the key duties commonly applicable to landscapers.

  1. Primary duty of care – ensuring as far as reasonably practicable that the health and safety of workers, and others, is not put at risk.

  2. Officer’s duty of due diligence – the duty to take appropriate, proactive steps to ensure the business complies with the Act.

  3. Worker’s duty of care – the worker taking reasonable care of his/her own health and safety, and the safety of others, to comply with all reasonable instructions and to co-operate with reasonable policies.

  4. Designer duty – a PCBU designer’s duty to ensure the plant, substance, or structure is designed without risk to the health and safety of persons (such as constructors, repairer, maintenance person, etc).

Please note that the above is a simplified version of the full wording of the duties. You could also be liable under other duties under the Act. We advise you to obtain legal advice unique to your situation.


The saying “prior preparation and planning prevents poor performance” is highly relevant when it comes to health and safety. Before you commence a job, health and safety planning is equally, if not more, important than

commercial planning.

When planning your job, always consult the latest publications from WorkSafe New Zealand or other reputable publishers to see the current good practices for controlling identified risks, by means of elimination or mitigation. Some areas of publications relevant to landscapers are:

  • Excavation.

  • Working at height.

  • Hazardous substances.

  • Vehicles and mobile plants.

  • Load lifting and rigging.

  • Traffic management.

Always plan your work and choose the option that poses the least health and safety risk.

For those that subcontract, the words “Site Specific Safety Plan (SSSP) and Task Analysis (TA)” will be familiar. A SSSP or TA is essentially the written or documented form of your safety planning. It is important to understand that while you may be familiar with the safe method of working in your mind, the project manager is not. The project manager would need to co-ordinate your safety plan with

other contractors to ensure things work. The SSSP/TA should also be a ‘living document’ and updated as plans (invariably) change.

For the remainder of this article, we want to go over a few typical scenarios faced by the average landscaper.

Scenario one

You arrive to survey the site, and the ground is difficult. Despite having ordered a “beforeUdig” showing known services, you are unsure of the service line’s actual location. The owner instructs you to just proceed. You get the digger into position and your palms get sweaty, your knees get weak and your arms get heavy because you don’t want to strike a service line.

In this scenario, your duties are to yourself, the workers, and to others. The obvious risk is striking a high voltage power line. As a duty holder, you need to undertake good practice to positively identify the services (such as using scans, hand dug potholes, etc) to positively locate the services. Whether you are working for a homeowner or a principal contractor, you should always plan and document how to safely carry out the job before starting the work.

Scenario two

You arrive on site and see that the digger used by your subcontractor does not have a roll cage. You also observe the subcontractor’s employee and your own apprentice employee both working within the swing radius of the digger arm.

In this scenario your subcontractor has the duties of a PCBU as well as a worker. You, being the principal contractor in this case, also have the duty as a PCBU. You would be wise to stop the work, check the work plan submitted by your subcontractor (yes, you can ask for this in advance; doing nothing is not advised) for compliance. You would be justified in asking the subcontractor to find a compliant machine, as well as ensuring they stick to their plan (assuming they have identified earlier on how to exclude people from the digger arm swing zone).

Scenario three

You have just received a delivery of chemical substances which is in several 20L containers. You place them in in your shed and store them together with the petrol for your machinery, which is about 10L in total and stored in two separate 5L containers. You notice several diamond shaped labels on the chemical containers which have pictures of a skull and flame. You are unsure whether you can store these items together.

The additional duties imposed under the Health and Safety at Work (Hazardous Substances) regulations 2017 (the Regulations) is very prescriptive when compared to the performance-based duties under the Act. The Regulations impose very specific requirements depending on the type and amount of chemicals stored. The first step would be to obtain a material safety data sheet (MSDS) from your supplier. On the MSDS, there should be an “HSNO approval number” for the chemical; take note of this. The Government provides a free hazardous substance calculator (just search hazardous substance calculator on Google), where you can input the type and volume of the substances held, and receive a report on the required control measures associated with the storage arrangement.


There are endless scenarios in which you could find yourself in. Having a principled approach will generally make the problem easier to resolve. We would like to re-emphasis the few things covered in this article.

  1. Plan out your job in detail and identify the risks.

  2. Consult published materials and guidelines to determine the best practice to control the identified risk.

  3. When in doubt, seek professional help.

Good health and safety is something that is cultivated over time, and a good health and safety culture will generally benefit your workplace morale and productivity.

Ron Qin is a solicitor and construction law specialist in the Auckland firm Martelli McKegg. He guarantees personal attention to new clients at competitive rates.

His phone number is (09) 950 9034, and e-mail This article is not intended to be relied upon as legal advice


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