Changes to the Health and Safety at Work Act have caused trepidation in offices around the country.
Thomas Denhardt talked to a number of legal and work safety experts about what architects and designers can do – from the very first day at the proverbial drawing board – to avoid running into problems later.
The fourth of April 2016 was a professed and profound juncture for everybody across New Zealand with the much-anticipated Health and Safety at Work Act 2015 becoming effective. Instigated as a result of the Pike River tragedy, the Act has a core national objective: to improve our abysmal Health and Safety culture.
From the mighty Warriors mixing prescription pills with energy drinks to children being prohibited from climbing trees on school grounds, the media has been littered with cases that have challenged this new legislation.
Whether the situation is severe, idiotic or borderline hypochondriacal, one thing that is indisputable is the fatalities – to which the construction industry has contributed. This is where the role of the architect needs redefining.
As typically the first people appointed on a project to spearhead the design, architects have the efficacy to encourage Health and Safety from inception, when it is most influential. Establishing this proclivity from the outset not only puts the Act at the forefront of the design-and-build process but, also, allows its significance to linger and be woven through the architectural design’s make-up – minimising, if not eliminating, health and safety risks along the way. With this shift towards a better health and safety culture upon us, how can architects fulfil their roles legally and professionally?
Legally, when it comes to reform, it is mandatory for architects to comprehend what responsibilities are imposed on them by the new Health and Safety at Work Act 2015. Catherine Levermore, an experienced litigator at MinterEllisonRuddWatts, who is passionate about and specialises in this area, explained the nature of these new duties.
A Person Conducting a Business or Undertaking (PCBU) is “a term that replaces the previous categories of ‘employer’, ‘principal’, ‘self-employed’ and ‘person controlling a place of work’,” Levermore stated. A PCBU has the primary duty of care to ensure, “so far as is reasonably practicable, the health and safety of workers and others affected by its work,” she explained, whether that work is conducted on site, outsourced or is assigned elsewhere.
Officers – those who hold senior positions and exercise significant influence over the management of the architecture firm, such as company directors and partners in a partnership – are now required to exercise due diligence. This means they must regularly check that a PCBU complies with their duties, ensuring also that “the business is using effective policies, practices and resources to manage any health and safety risks”.
Employees, contractors and volunteer workers are all reclassified as ‘workers’ and are required to take reasonable care for their own and others’ health and safety in the workplace. Levermore clarified that “a self-employed architect will be both a PCBU and a ‘worker’ under the Act”, requiring combined sets of duties to be discharged. Visitors to a firm, such as delivery people, salespeople and clients, will have obligations under the Act also, including complying with any reasonable instructions given by a PCBU.
Additionally, ‘upstream’ PCBUs, including those who design plants or structures for future use, must, so far as is reasonably practicable, “make sure that the plant or structure is designed to be without risks to health and safety when used for its intended purpose in a workplace,” she stated.
This duty encompasses the life cycle of the design, where architects will need to consider the “health and safety of those who construct, maintain, clean, repair and eventually demolish the structure”. Compliance with this duty needs to be illustrated through analysis and testing of the design to reduce risks to health and safety, and by providing relevant information about the plant or structure to each person who receives the design or requests such information.
Another relevant change to be noted by architects is an increased focus on cooperation and consultation between parties involved in an architectural project. “Duty holders are required to discharge their duties to the extent that they have the ability to influence or control the matter,” Levermore explained.
Since two or more PCBUs are bound to operate on the same site or through a contracting chain, they are required by law to ‘consult, cooperate and coordinate’ with one another to make sure their responsibilities are being met. This is to avoid the unnecessary duplication of efforts and prevent any gaps in managing Health and Safety at Work risks.
Collaboration “ensures that the business that is best placed to manage a risk has primary responsibility to do so, and that everyone plays their part by agreeing allocated obligations and monitoring to check those responsibilites are being met,” said Levermore.
Accountability for neglecting these responsibilities under the new Health and Safety at Work Act 2015 can lead to hefty fines that will bite. This is why it is important for architects to know and understand what actions to take to avoid the risk of potential prosecution. Grant Nicholson, partner at Kensington Swan and a specialist Health and Safety lawyer, discussed what the best actions are, including the key reason why architects are found liable in the first place.
“Duty holders can’t contract out of their obligations under the Health and Safety at Work Act, including through insurance,” explained Nicholson, because insuring against fines is unlawful under the Act. Consequently, the best defence strategy against liability is for architects to understand what duties they must adhere to under the Act, and to ensure procedures are being implemented and monitored through effective record-taking and documentation to deliver safe work outcomes.
In the event that an architectural business is prosecuted for disregarding these obligations, a PCBU can mitigate a potential sentence in a number of ways: by “providing proactive compensation to the victim of any accident, implementing procedures to ensure the breach will not happen again, and cooperating with WorkSafe New Zealand’s investigation,” Nicholson said. Seeking legal advice in this matter is critical, and insurance can help with this because “having a statutory liability insurance policy will provide some much needed relief by covering the costs of defending a claim and any compensation.”
When it comes to work activities, an architect’s liability is likely to arise from construction incidents where the design has faults and causes a flow-on effect during the building process or subsequent use of the asset. Therefore, architects should ensure their designs will promote safety throughout the construction process and for the life of the asset and its foreseeable uses. Otherwise, they may be liable, alongside, or instead of, construction businesses, if accidents happen.
Nicholson explained: “Prudent architects will adjust their designs if and when potential health and safety issues arise.” This is especially true where cooperation and consultation between PCBUs at a meeting suggest a better design approach is required. So, “architects must be careful to maintain a high standard of design safety for every part of a contract where they are granted professional control, regardless of the size or relative importance of the task to the overall project,” Nicholson said.
The best way for architects to mitigate against penalties is to understand their responsibilities, discharge those duties, and design structures that eliminate or, if not reasonable to eliminate, minimise risks to health and safety. So, professionally, how can architects remove or lessen health and safety risks and integrate safer design measures?
Marcus Nalter, a programme manager of construction at WorkSafe New Zealand, clarified: what exactly is safe design, when is it best applied, and how should it be documented? Essentially, ‘safe design’ is “taking the risk out of design, where architects need to think about the life cycle of the buildings they are designing” by proactively identifying and managing health and safety risks across the board.
In terms of timing, “a healthy and safe design approach is best placed at the beginning of an architectural project during the conceptual, planning and feasibility phase,” Nalter explained. This early intervention ensures the best options are chosen to enhance the safety of the finished product, since this is when decisions about design intent, materials, construction methods, use, maintenance, demolition, and compliance with legislation and standards are being analysed and made.
The most effective risk control measure – such as eliminating the hazard; for instance, external window cleaning – is often “cheaper and more practical to achieve within the design or planning stage, rather than making changes later on in the life cycle, when the hazards become real risks to clients, users, workers and other businesses,” Nalter said.
To achieve good professional health and safety practice – by identifying hazards, assessing risks through a risk matrix, and designing and reviewing control measures – Nalter recommended utilising Safety in Design UK and Safe Design Australia as useful resources. These provide architects and designers with guidelines and codes of practice to help assess the safety of their designs and how this should be documented. Any additional costs inferred by this paperwork can potentially be negotiated with the client.
The ‘life cycle’ of the building refers to the range of parties who play a role in and influence an architectural project. This means knowing who will handle, store, construct, inspect and maintain the structure, right down to the people who will physically work in the building’s completed environment, in order to implement the best health and safety responses. Nalter suggests that this includes but is not limited to: design professionals, clients, developers, project managers, builders, suppliers, constructors, installers and trades/maintenance personnel.
A building containing a lift for occupants could be one example because it “needs sufficient space to operate properly during use, yet needs safe access to the lift well or machine room for the person who conducts ongoing monthly maintenance work,” suggested Nalter. Also, he recommended considering finishes that avoid vibrating hand tools; specifying built-in services that avoid chasing (thus eliminating noise, silica dust and hand/arm vibration risks); and choosing less hazardous paints, adhesives and sealants (low or no VOCs).
“Even thinking about roof access during the design process is a great idea,” Nalter explained, where parapets, dedicated walkways or, as a last resort, anchor points can be considered. “Healthy and safe design measures like these will always be part of a wider set of design objectives, including practicability, aesthetics, cost and the functionality of the product,” where managing potential risks upstream can help to benefit productivity, efficiency and, most importantly, everybody’s health and safety. Thus, the key idea to retain here is that achieving a balance between these competing objectives should not compromise on the health and safety of those who are potentially affected by the product over its lifetime.
Francois Barton, executive director of the Business Leaders’ Health and Safety Forum, added to this discussion with a recent international example that shows how costly it can be to disregard health and safety from the outset – because it can become costly downstream for other parties.
In 2013, Australia’s Daily Mail reported that London’s Heathrow Airport had to use high-wire artists to change blown lightbulbs at its Terminal 5 building because there was no other safe way of reaching them. It stated that out of the 120,000 lightbulbs located about 37m above ground level, 60 per cent had blown, costing the owner millions to replace.
“This story highlights the need for architects and others involved in building design to think about health and safety during the design phase, including its implications for health and safety when a building is being constructed, maintained, demolished and used,” Barton said. Therefore, it is important to ‘communicate, cooperate and coordinate’ on these matters with clients and other professionals involved during the design process.
“Experience overseas in Australia and the UK shows that by architects doing this, harm towards people and problems later down the track can be reduced; this will minimise the chances of their clients ending up in a situation like the one Heathrow Airport found itself,” stated Barton. But there are many cases of good practice too, Barton suggested, and architects can be inspired by these effective and smart examples. “In the UK, roofs are now commonly being prefabricated and craned into position – reducing the risk of falls during construction,” he explained, which is one of the top health-and-safety concerns during the construction phase.
Prefabrication improves safety because building components are put together in a controlled workshop environment, rather than implemented on site where there are more variables and exposure to complications. Sustainability, productivity and good design tend to go hand in hand with good health and safety, where safer ways of maintaining buildings are being devised, such as “novel ways to clean and maintain a building’s external envelope without requiring people to hang off skyscrapers on ropes,” expained Barton.
Also, during the design phase, increased attention is being paid to how buildings will be ‘used’ to reduce noise, light, ergonomic or other issues that might affect the well-being of those working in the building. “Even the asbestos issue during the demolition of quake-damaged buildings in Christchurch has emphasised the significance of ensuring buildings can be demolished safely,” added Barton.
In its entirety, when it comes to Health and Safety and measuring up against our international counterparts (Australia and the UK), New Zealand architects still have a lot of work to do. By definition, we are not good welfare handlers or occupational hazard busters, which is why, to respond to the new Act effectively, architects will need to reflect legal and professional prowess in practice, along with continuing education about how healthier and safer work environments can be realised.
Although many architects may have been practising safe design prior to the new Act’s instigation, now there is an even greater opportunity to review those practices and to ensure the new legislative requirements are being met with correct procedures and documentation.
This legislation may be another patch on the complex, yet rich, tapestry that makes up the professional qualities required by architects, but it is vital that architects lead this integration and improvement of our health and safety attitudes in the construction industry. Typically, as the project leaders on schemes, architects are the linchpins in their success or demise.