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Almost every business and organisation in New Zealand will owe obligations under health and safety law. These obligations are by virtue of being defined as a ‘person conducting a business or undertaking’ or PCBU. Indeed, the definition of a PCBU intentionally includes ‘undertakings’ that are non-commercial, such as charities. However, there is an exception for certain volunteer associations that do not have employees. There are also some differences for charities in terms of obligations for volunteer workers. This article explores the considerations for your New Zealand charitable trust in health and safety law, including:

  • the scope of the PCBU obligations; 
  • volunteer association expections; and
  • specific obligations in practice for charities. 

Person Conducting a Business or Undertaking

Health and safety law in New Zealand revolves around the PCBU concept. This concept intentionally covers a broad swathe of individuals and organisations, including organisations like charities with non-commercial aims. As such, all PCBUs owe duties under health and safety law in New Zealand. Therefore, it is vital first to check whether your charitable trust is a PCBU or not. 

Volunteer Association Exception

The definition of a PCBU excludes “volunteer associations”. A volunteer association is a group of volunteers that work together for advancing some community purpose without any employees. For example, a community purpose could include promoting:

  • art; 
  • culture; 
  • science;
  • religion; 
  • education; or 
  • medicine.

A community purpose also includes supporting a charitable, sport or recreation activity. Clearly, many charitable trusts will fall within this open definition of community purpose. Therefore, many charitable trusts are not PCBUs; they fall within the volunteer association exception. However, your charity cannot have any employees. If it does, it is still classified as a PCBU. Indeed, this is the case even if your employees are also working towards a community purpose. 

Additionally, since charitable trusts are not PCBUs, they do not owe the same legal obligations under health and safety law. However, there are still some general health and safety principles that will apply. All organisations face legal issues if they are negligent in some way that causes serious damage. For that reason, it is essential to still be aware of health and safety issues in your organisation, even if it is not classified as a PCBU.

Health and Safety Obligations for PCBUs

As a PCBU, charitable trusts with employees are under the same obligations as other PCBUs under health and safety law. However, there are a few differences when working with volunteer workers. If your trust has volunteers, they may be classified as “volunteer workers” when: 

  • they work for a PCBU who knows they are doing the work or has given consent for the work to be done;
  • the volunteer does the work on an ongoing and regular basis;
  • the work is an integral part of the charity’s work; and
  • the work is not:
    • participating in fundraising;
    • assisting with sports or recreation for an educational institute, sports club or recreation club;
    • assisting with activities for an educational institute outside its premises; or
    • providing care for another person in the volunteer’s home.

Your charity owes a duty of care towards these volunteer workers to ensure their health and safety so far as is reasonably practicable. It will also owe an obligation to other volunteers that their health and safety is not at risk by undertaking work as part of the charity. 

In addition, the scope of a duty of care includes a range of specific obligations and general duties. You should ensure that your charitable trust is providing:

  • a work environment that is free from risks to health and safety;
  • safe equipment, structures and systems of work;
  • provision for safe use, handling, and storage of plant, substances, and structures if relevant to your charity;
  • adequate and accessible welfare facilities; 
  • the necessary information, training, instruction, or supervision to do the work safely; and
  • monitoring of worker health and workplace exposures to assess the effectiveness of controls.

Other obligations may be relevant, depending on the circumstances of your charitable trust. Ultimately, getting legal advice from a health and safety expert can be extremely helpful.

Key Takeaways

Your NZ charitable trust can owe the same health and safety obligations as any other business if they have employees. However, if they do not have employees, they may fall within the “volunteer association” exception and not be deemed a PCBU. In either case, it is a good idea to think proactively about protecting the health and safety of your charity’s volunteers and any volunteer workers in particular. For more information about health and safety obligations for your charitable trust, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

Can a charity be a PCBU?

Yes, a charity can be a PCBU – a person conducting a business or undertaking. The definition of ‘PCBU’ specifically includes non-commercial aims. However, there is an exception for volunteer associations.

What is the ‘volunteer association’ exception in health and safety law?

The definition of a PCBU expressly excludes “volunteer associations”. These are volunteers who work together to advance some community purpose that do not have any employees. For example, a community purpose could include promoting art, culture, science, religion, education, medicine, or supporting a charitable, sport or recreation activity.

What obligations does my charity owe if it is a PCBU?

Your charity will have the same obligations as other non-charitable PCBUs. Of particular note is an overarching duty of care to its volunteer workers and any employee to ensure their health and safety as far as reasonably practicable.

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