On this page:
- 3.1 Introduction to managing risk through the contracting chain
- 3.2 Overlapping duties in the contracting chain
- 3.3 Expectations for contracting PCBUs
- 3.4 Expectations for contractors
- 3.5 Expectations for subcontractors
- 3.6 Other PCBUs in contracting chain
- 3.7 Good contracting principles and health and safety standards
- 3.8 More information on health and safety in the contracting chain
This section offers guidance for persons conducting a business or undertaking (PCBUs) on ways to manage shared health and safety duties while working in a contracting chain in the road and roadside work environment.
Contracting is when a PCBU (called the contracting PCBU), hires another PCBU (called a contractor) to carry out work for them.
A contractor may also hire a PCBU (called a subcontractor). This is known as a contracting chain and is the most common business model used in road and roadside work.
Contract types may include:
- project contracts (such as construction, installation, or upgrade work)
- maintenance and repair activity contracts (including towing)
- service and monitoring contracts (such as waste and recycling collection).
Contractors and subcontractors may be individuals or businesses. Contractors and subcontractors (and their employees) who are carrying out work for the contracting PCBU are considered to be workers of the contracting PCBU under the Health and Safety at Work Act 2015 (HSWA).
PCBUs operating in a contracting chain will have shared health and safety duties with other PCBUs in that contracting chain (known as overlapping duties).
All PCBUs, so far as is reasonably practicable, must consult, cooperate, and coordinate together to manage their overlapping duties.
There are four main points to remember about overlapping duties:
- PCBUs have a duty to consult, cooperate with, and coordinate activities with all other PCBUs they share overlapping duties with, so far as is reasonably practicable.
- PCBUs cannot contract out of their health and safety duties or push risk onto others in a contracting chain.
- PCBUs can enter into reasonable agreements with other PCBUs to make sure that everyone’s health and safety duties are met. But PCBUs must monitor each other, to make sure each PCBU continues to do what was agreed.
- The more influence and control a PCBU has over a work site or a health and safety matter, the more responsibility they are likely to have.
The size of the PCBU, or its financial resources, does not automatically equate to its ability to influence and control health and safety matters. PCBUs need to consult, cooperate, and coordinate with all other PCBUs (regardless of their size) to make sure everyone can meet their health and safety duties.
For more general information on managing overlapping duties, see Appendix 2: Health and Safety at Work Act 2015 duties
The contracting PCBU is usually the initiator of a contract for work or services. Contracting PCBUs are sometimes referred to as the client or principal. Tenders may be put out and a procurement process is usually followed.
In road and roadside work the most common contracting PCBUs will be:
- road controlling authorities (RCAs) such as Waka Kotahi for state highways or local government authorities for local roads
- utility or service providers (such as internet or electricity companies)
- the owners of private roads
- a local government authority (when contracting services such as rubbish and recycling collection or water and sewer repairs under the road).
Other examples could include event organisers and land or property developers.
Contracting PCBUs must make sure, so far as is reasonably practicable, that the health and safety of their workers and other people are not put at risk by the work that they do.
WorkSafe expects PCBUs at the top of a contracting chain to be leaders in encouraging and supporting good health and safety practices throughout the contracting chain.
In addition to the four main points outlined in Section 3.2, as explained below, PCBUs at the top of the contracting chain should:
- eliminate risk at the design and planning stage (where reasonably practicable)
- use procurement practices that support positive health and safety outcomes
- monitor and review health and safety aspects of contracts
- engage with workers and the community.
Eliminate risk at the design and planning stage
Work with designers and engineers to eliminate risks, so far as is reasonably practicable, at the design and planning stage. Consider potential health and safety risks to workers at all steps of a project - from design and construction, to execution, completion, and future maintenance. For example:
- planning and allowing for the safest and healthiest work methods to be used
- considering the phasing or timing or the work. Plan around seasonal factors and other work or activities that may be happening at the same time or space
- considering what new technology that improves health and safety outcomes for workers may be available.
Where reasonably practicable, consult with potential contractors and subcontractors to identify risks that could be eliminated at the design and planning stages as well.
Use procurement practices that support positive health and safety outcomes
When selecting contractors, consider their health and safety records. For example, you can look for:
- evidence of proactive steps to improve health and safety
- evidence of ongoing improvement in health and safety outcomes
- evidence of effective worker engagement.
Using a centralised prequalification system may make it easier for potential contractors to prequalify.
Adopt procurement practices that prioritise worker health and safety and avoid negative outcomes. For example:
- adopting collaborative policies that promote good health and safety practices. Avoid compliance-driven reporting, which can lead to under reporting or misreporting of incidents to avoid financial penalties
- considering incentivising the reporting of real meaningful data. Look for evidence of how contractors have mitigated future risk and engaged workers in the process, and how they have worked with affected workers to return to work
- checking that contractors have processes to provide their workers with appropriate training and competency checks. Where reasonably practicable, identify any specific training requirements at the planning stages of a project. For more information see, Section 28.2: Check workers have required certifications, licences, and training
- allowing enough time for delivery planning by contractors.
Allow flexibility in contracts to adapt to changing circumstances during the life of the contract. For example:
- enabling the adoption of new technology as it becomes available
- allowing for improved, safer ways of working as they become known
- being able to reassess and/or reallocate resources (including financial resources) over time, as needed, to maintain the same level of health and safety standards for all workers throughout the contracting chain.
Monitor and review health and safety aspects of contracts
You should put clear and effective monitoring and reporting procedures in place so you can be confident all health and safety duties are being met through the entire contracting chain. For example:
- making sure there are effective communication pathways between the PCBUs in the contracting chain
- making sure (where relevant) that exposure and health monitoring is taking place throughout the contracting chain and that action is taken when unsafe conditions or health risks are identified. For more information, see Section 16.0: Exposure monitoring and Section 17.0: Health monitoring
Do post-contract reviews (or annual reviews for longer-term contracts) to see what worked well and what needs to be improved regarding worker health and safety. This should include communication and reporting pathways from subcontractors right through to the contracting PCBU. Workers at all levels of the contracting chain should be consulted as part of the review process.
Engage with workers and the community
As a PCBU, contracting PCBUs have a duty to establish a framework that supports worker engagement and participation. For more information, see Appendix 6: Worker engagement, representation, and participation
Where relevant, contracting PCBU should communicate and consult with landowners and local iwi that may be affected by work. For more information, see Section 4.2: Engage with local iwi
In road and roadside work contractors are commonly awarded contracts by contracting PCBUs such as RCAs, utility or service providers, private landowners, and local authorities.
The contractor will likely have the most influence and control over the worksite and is often best placed to act as site manager.
Contractors must make sure, so far as is reasonably practicable, that the health and safety of their workers and other people are not put at risk by the work that they do.
Work collaboratively with other PCBUs in the contracting chain
Contractors should work collaboratively with all other PCBUs in the contracting chain, including:
- the contracting PCBU, designers and engineers
- any other contractors hired by the contracting PCBU for the same project/work
- subcontractors that they use (or that their subcontractors use).
Contractors should make sure:
- they have all the required information from the contracting PCBU before work begins
- they share all relevant information with other contractors or subcontractors they use.
When acting as a site manager
When acting as a site manager, the contractor should:
- aim to have a presence on site during at all times while work is being done
- have clearly defined roles and responsibilities for all workers at a worksite, especially where subcontractors are working (for example, traffic management subcontractors working alongside a roadworks crew – it should be clear who controls the site)
- have a good overview of site activities
- make sure inductions take place. For more information, see Section 29.0: Inductions
- make sure key information about health and safety is shared at the start of each day (for example, toolbox talks).
When using subcontractors
When selecting subcontractors, consider the health and safety records of potential subcontractors. This could include:
- looking for evidence of proactive steps to improve health and safety
- looking for evidence of ongoing improvement in health and safety outcomes. Is there evidence of effective worker engagement?
- using a centralised prequalification system to make it easier for potential contractors to prequalify
- checking that subcontractors have processes to provide their workers with appropriate training and competency checks. For more information, see Section 28.2: Check workers have required certifications, licences, and training
When working with subcontractors, make sure they have all the resources they need to maintain health and safety standards as agreed with the contractor and the contracting PCBU. For example:
- making sure subcontractors doing the physical work have all relevant information and are aware of the onsite rules and procedures, inductions, toolbox talks, safety plans, and reporting procedures. They should also be aware of who they are working for at the top of the contracting chain (the contracting PCBU)
- working with subcontractors to create a health and safety plan, if needed
- putting clear and effective reporting procedures in place so you can be confident that the subcontractor meets all duties.
Subcontractors are PCBUs hired by the contractor to perform tasks or provide services on their behalf. Subcontractors may also be hired by another subcontractor, who is then considered a contractor.
A common example in road and roadside work is temporary traffic management services.
Sometimes subcontractors are referred to as suppliers. From a health and safety perspective, in a contracting chain their roles and responsibilities are the same.
Note: This is different to a supplier as defined by section 42 of HSWA for the purpose of describing upstream duties
Subcontractors must make sure, so far as is reasonably practicable, that the health and safety of their workers and other people are not put at risk by the work that they do.
Subcontractors need to make sure that their workers and any subcontractors they hire have all relevant information. Subcontractors also need to be aware of the onsite rules and procedures, inductions, toolbox talks, safety plans, and reporting procedures.
Work collaboratively with other PCBUs in the contracting chain
Subcontractors should work closely with the contractor to help manage risks. For example:
- have input when initial risk management is being planned during the planning stages of a project (where reasonably practicable)
- share the contact details of the other contractors on the job and making sure that everyone knows who the key contacts are if there are issues
- alert contractors or the contracting PCBU when control measures are not adequate or need to be reconsidered, or when resources need to be reallocated to maintain the same level of health and safety standards.
There are other PCBUs that may be involved in providing professional services, materials, plant, or people in and around the contracting chain. For example:
- labour hire
- plant hire
- plant servicing and repair.
They all have the same duties as other PCBUs in the contracting chain. Some will also have additional upstream duties. For more information, see Appendix 5: Upstream duties
Example – Engineers’ duties in the contracting chain
Where the contracting PCBU is engaging an engineer to provide professional services to oversee project work on their behalf, the engineer and the contracting PCBU both have health and safety duties to the workers who are undertaking the work and others will be affected by the work.
The contracting PCBU and the engineer should agree upon health and safety requirements and expectations. How these will be managed and monitored should be covered in their contractual agreement. This also applies to PCBUs acting as engineers when they are engaged by contractors or subcontractors.
Cost-based procurement and contract negotiations should not weaken health and safety standards. Contracting PCBUs must make sure people working in their contracting chain are healthy and safe while at work, so far as is reasonably practicable.
Where relevant, the contracting PCBU should take all reasonably practicable steps to eliminate health and safety risks at the design stage of a project before going out to tender.
The contracting PCBU should make health and safety requirements or desired health and safety outcomes very clear to prospective contractors. For example:
- making sure the notice of procurement clearly says that agreed health and safety requirements also apply to all subcontractors in the contracting chain
- where health and safety standards are prescribed, such as in a request for tender (RFT), making sure they are prescriptive enough to allow potential contractors and subcontractors to make cost estimates as accurate as possible
- considering specifying an agreed minimum provisional sum to be allocated to meet agreed health and safety requirements. This can minimise the risk of health and safety funding being reallocated to other areas by the contractor or subcontractor if cost overruns occur in other areas
- considering a request for proposal (RFP) that allows scope for prospective contractors to propose better or more innovative approaches to managing health and safety risks and be willing to consider funding and supporting such proposals. This could be achieved by setting out desired health and safety outcomes and allowing the prospective contractors to propose an approach that they believe will meet or exceed the desired outcomes
- using data and knowledge gained from previous projects that have had successful health and safety outcomes to help inform good practice expectations
- allowing sufficient time for responders to prepare a well considered proposal or tender.
When reviewing proposals or tenders, the contracting PCBU should avoid focusing mainly on the price or timeframes offered. Lowest-price models generally do not allow for or encourage innovative practices. Instead, you should:
- consider the proposed methodology – is it based on safe work methods?
- consider if the proposal or tender addresses health risks as well as safety risks (not just temporary traffic management)
- check that the proposal or tender includes a detailed plan for how these risks will be managed (including for their subcontractors)
- check the proposal or tender is realistic about delivery timeframes. For example, if requiring a cap on the number of hours a worker can do in a week (to minimise the risks associated with worker fatigue), make sure delivery timeframes allow for this
- question prices that seem too low – is the proposal or tender fit for purpose and will it keep workers and other persons healthy and safe, or has it been designed for approval?
Consider any other legislative requirements when planning for risk management
As well as meeting your obligations under HSWA, you may have other industry-specific legislation and guidance that applies to aspects of your road and roadside work activities. When making decisions about how to manage risks, you should also consider your obligations under other legislation and guidelines (and any obligations of subcontractors you use).
- PCBUs working together – Section 2: Building health and safety into contract management
- Health and safety by design: An introduction
- Government procurement rules(external link) These guidelines have been produced for government agencies but can be used by any contracting PCBU.