• Benjamin Basevi
    3
    Hi, any thoughts on this one?
    1. Downstream PCBU sets up a work project and contracts an Upstream PCBU to oversee and supplies design specifications to Upstream PCBU for plant which breaches the national statutory performance code for this plant. Unknown if this was deliberate or not.
    3. Upstream PCBU designs plant as specified and does not raise with Downstream PCBU that the plant as designed will not comply with the requisite code. Unknown if identified at time or not.
    4. Upstream PCBU sub-contracts installation and commissioning of the plant to a contractor who has an nationally accredited in-house inspector in its team and who gives the non-compliant design a clean bill of health - the plant is manufactured and installed. The Inspector signs off the installed plant and this is accepted by the Territorial Authority in good faith.
    5. Downstream PCBU quality control for project fails to identify any compliance or safety issue.
    6. An HSR at the workplace where the plant is installed identifies safety issues, works back to identify cause is a non-compliant design and brings this to the attention of their PCBU, who initially resists acknowledging the matter but in the end agrees and takes steps to remedy.

    Question: If under section 39 of the Act, the Upstream PCBU owes a duty to the workers in the Downstream PCBU i.e. to have designed plant that is without risks to the health and safety of persons who will use the plant, who can hold the Upstream PCBU even a little bit accountable if the Downstream PCBU does not want to?
  • Robb
    57
    There is quite a bit to unpack here - and without all the details, I could be off the mark.
    You highlight multiple 'failures" from when the downstream PCBU contracted the upstream PCBU.
    But what happened before the upstream PCBU was engaged?
    Did the downstream PCBU accurately specify what they wanted?
    Was a comprehensive prequal completed to ensure the upstream PCBU could design the plant correctly?
    Did the downstream PCBU know of the 'minimum' standards, and did they perform their own checks on the design for compliance?

    Notwithstanding the multiple failures after the plant was designed - I would be targeting any questions about what was requested to be built and by whom - long before I went down any path of Sec39 Upstream duties.
  • MattD2
    337
    who can hold the Upstream PCBU even a little bit accountable if the Downstream PCBU does not want toBenjamin Basevi
    Regarding this question, in the first instance it is ultimately:
    • WorkSafe NZ for HSWA related offences, or
    • MBIE / Local Authority for Building Act related offences
    With regards to enforcing HSWA (i.e. holding people accountable to it) WorkSafe NZ is the agency that gets to decide who/what gets publicly investigated/prosecuted. Another person can only privately prosecute if WorkSafe NZ decide not to.
    So essentially, if the Downstream PCBU is convinced there is no issue that needs to be dealt with, then the issue would either need to be alerted/raised to WorkSafe NZ or whoever issued the building consent. Of course you may have to wait 12 months (or up to 24 months possibly) for WorkSafe NZ to decide if they will prosecute or not...
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