Legislation such as the Building Act 2004 and the associated New Zealand Building Code ensures a baseline standard for most buildings in New Zealand. However, in some situations, designers are required by legislation to meet a higher quality of construction than is required by the Building Act alone.
The basics of the Act
The Health and Safety at Work Act 2015 (HSWA) is an important example of such legislation. It operates in the construction industry by setting requirements for workplace managers to ensure the safety of workers. These requirements are also imposed on designers to ensure the safety of workers during construction.
Beyond managing risks during theconstruction phase, the HSWA also regulates the design of finished workplaces. By regulating design, the HSWA can impose higher standards for designers than those that the Building Code requires. In addition, and unlike the Building Code, HSWA obligations can change as soon as new guidelines are released, new risks are identified and new technologies evolve to provide safer risk management strategies.
They can also apply to both new and existing buildings. While reform towards a more focused role for WorkSafe and work health and safety is under consultation, the obligations of designers serve as a noteworthy example of the scope of the current HSWA.
Designers’ usual obligations
Designers of buildings have many points of reference to ensure the effectiveness, durability and safety of their designs. These begin with the Building Act and the Building Code, but a finished design will almost always include reference to other technical and engineering guidelines published by Standards New Zealand, other government agencies and professional bodies.
However, a designer’s obligations under the HSWA will not always be fulfilled solely by compliance with regulations and guidance. In some circumstances, a design may give rise to liability under the HSWA despite compliance with rules, guidelines and the Building Code.
In recognition of the important role designers have in managing health and safety risks from the outset of the design process, WorkSafe has released good-practice guidance for persons conducting a business or undertaking who are involved in the design of structures, plants or substances.
HSWA obligations
Duty holders involved in the design process of any structure, plant or substance must collaborate to reduce health and safety risks to workers as far as reasonably practicable. This means that designers must consider what risks might arise from their design and amend their design accordingly to minimise them.
For example, imagine the design of a new stormwater system down a steep incline that, applying the Stormwater Code of Practice (CoP), would lead to a manhole with a drop of over 20 m. While the designer of the system is obliged to design to the CoP, they also need to consider the risks to health and safety posed by the use of their design.
In this case, due to the significant risk posed to the health and safety of workers using the manhole, a revised design minimising the drop to a safe distance would be required, even if the new design resulted in some additional building costs. In this scenario, the HSWA requires designers to do more than rely on the relevant CoP. This may come with additional costs.
These additional requirements imposed by the HSWA can create situations where a designer’s obligations to their employer and their obligations under the HSWA are seemingly in conflict. For example, a designer of a factory may face pressure to keep the cost of their design low even if that means increasing risks to workers. In such a situation, it is worth bearing in mind that most design contracts require compliance with the HSWA, and others involved in construction also face obligations under the HSWA.
The HSWA also incentivises businesses to design safe buildings. Unsafe buildings that create risks to workers may require costly mitigation measures. Owners and designers can usually address and minimise risks at the design stage to increase the productivity and value of the business and decrease its risk of future liability.
A key limitation to HSWA obligations is that they only relate to workplaces. Designers of residential buildings are unlikely to be caught by HSWA obligations relating to their finished designs as residential buildings are not captured by the definition of ‘workplace’.
However, designers will have HSWA obligations in relation to the construction of their design. While a design is being built, a designer must ensure, usually through consultation with the builder, that their design minimises risk to those who construct the structure at a workplace and to others the construction could impact.
The risk of changing standards
If a building complies with the Building Code when it is built, the owner is often not required to improve the building as higher standards are introduced until such time as renovations are undertaken. In contrast, if the HSWA, its guidelines, perceptions of risk or safety technologies change, the resulting higher safety standards may apply to all workplaces regardless of whether they are existing or newly created.
Owners of buildings and their designers need to bear in mind that, while a design may comply with the HSWA of the day, there is a risk that changing standards and new technologies may render once-compliant workplaces inadequate in managing workplace risks. This may require a redesign or costly mitigation measures.
With the HSWA approaching its 10- year anniversary, reform towards more focused HSWA obligations may be on the horizon. However, designers do not have a crystal ball to show them how HSWA obligations may change. The current reality is that HSWA obligations are ever changing.
Each change may be small when viewed in isolation, but as technologies and perceptions of risk evolve, what is considered a reasonably practicable measure to avoid risk will also change. A safer, higher-quality design within a designer’s scope protects from the risk of changing standards. It will result in a benefit to the owner in the longer term, even if this results in additional costs at the outset.