ACTS AND SHIT Flashcards
What are the relevant acts for Architects?
- Registered Architects Act 2005
- Registered Architect Rules 2006
- Copyright Act 1994
- Consumer Guarantees Act 1993
- Fair Trading Act 1986
- Arbitration Act 1996
- Privacy Act 1993
- Goods and Services Tax Act 1985
- Health and Safety at Work Act 2015
- Resource Management Act 1991 (Amended 2017)
- Building Act 2004
- Construction Contracts Act 2002
What is The Building Act?
The Building Act 2004 is the legislation that governs the building industry in New
Zealand.
What does the building Act aim to do?
The Act aims to improve control of, and encourage better practices in, building
design and construction.
What did the Building Act 2004 repeal?
The Building Act 2004 repealed the Building Act 1991
What are the five parts of the Building Act?
Part 1: The purpose and principles of the Building Act, together with an overview, and commencement dates for various provisions and definitions. These sections provide an important reference point for reading and interpreting the Building
Act.
Part 2 (and Schedules 1 and 2): Matters relating to the Building Code and building work (for example, building consents).
Part 3: Sets out the functions, duties and powers of the chief executive of the government department responsible for administration of the Act (currently the Ministry of Business, Innovation & Employment), territorial authorities, regional authorities, and building consent authorities. It also deals with the accreditation of building consent authorities and dam owners, and product certification.
Part 4 (and Schedule 3): Matters relating to the licensing and disciplining of building practitioners.
Part 5 (and Schedule 4): Miscellaneous matters including offences and criminal proceedings, implied terms of contracts for residential building work, regulation- making powers, amendments to other enactments and the repeal of the Building
Act 1991, and the transitional provisions from the Building Act 1991 to the Building Act 2004.
What is a owner builder exemptions?
The exemption provides owner-builders or Do-It Yourself builders (DIY) a regime where they can undertake restricted building work on their own homes, or use a friend or family member to either
assist, or undertake the works on their behalf.
If an owner-builder holds a license for the restricted building work (RBW), they will not be
considered for an exemption.
The owner-builder exemption will not cover works such as electrical, gas or plumbing and drainage
unless the owner-builder holds appropriate licenses for this work.
What is an owner-builider?
You are an owner-builder if you:
* Have a relevant interest in the land or the building on which the restricted building work is
carried out (i.e. ownership)
* Live in or are going to live in the home (includes a bach or holiday home)
* Carry out restricted building work to your own home yourself, or with the help of your
unpaid friends and family members, and
* Have not, under the owner-builder exemption, carried out restricted building work to any
other home within the previous 3 years
When can you do another Owner-builder exemption?
you may only do so once three years has
passed since the completion of the RBW on the previous property.
What is restricted building work?
RBW is work which is critical to the integrity of a building. It is work that relates to the structural
soundness and weathertightness of a building, and can only be carried out or supervised by
Licensed Building Practitioners (LBPs).
Practitioners who usually carry out RBW include:
* Designers and engineers
* Carpenters
* Foundation specialists
* Roofers
* Brick and block layers
* External plasterers
The RBW regime identifies all of the LBP who are accountable for each part of the work. It also
helps to provide assurance to the owner that the building has been built to a satisfactory standard.
Can an owner-builder design and build their home when restricted building work is
involved?
Yes, but the owner-builder must meet all statutory requirements; for example, the standard of the
building work must be to the same level as if it was carried out by a LBP.
What work does not need a building consent?
Generally, you do not need a building consent if proposed building works are exempt under
Schedule 1 of the Act.
How do I apply for an owner-builder exemption?
An application for building consent requires you to declare the LBPs engaged for the design and
construction work.
This is no different for an owner-builder. However, instead of getting certificates from your
designers and contractors, you will have to provide Council with a statutory declaration detailing
the RBW that you intend to undertake.
Can an owner-builder do the design work?
Yes, but you are then responsible for ensuring that the designs and specifications comply with the
requirements of the Building Act 2004 and the Building Code.
Can an owner-builder do the construction work?
Yes, but you must notify Council before the work commences by completing the statutory
declaration and lodging it either at the time of application, or prior to the construction work
commencing if a building consent is not required.
Can an owner-builder do all construction work under the building consent?
An owner-builder cannot carry out all aspects of construction unless they are licensed to do the
work; suitably qualified people must carry out this specialised work.
This work includes:
* plumbing
* gas-fitting
* drain-laying; and
* electrical work
Can an owner-builder get others to help with the design or construction work?
You may have friends and family undertake the building works on your behalf, as long as they are
not paid for doing so.
If you are paying someone to do the work, they must be suitably licensed and they must submit the
relevant paperwork to Council on completion of the work.
Can an owner-builder build other houses using this provision of the Act?
No, the owner-builder exemption only allows the owner to carry out RBW if they have not carried
out restricted building work in relation to a different household unit within the previous three years.
What if an owner-builder changes their mind during the project?
Typical scenarios might be:
- Stop using the exemption provision:
a. sometime during construction the owner-builder decides they don’t want to do the construction work and that they want to employ a Licensed Building Practitioner to complete the job - Start using the exemption provision:
a. part way through the construction an owner may decide to terminate the employment of the Licensed Building Practitioner and intend to finish the job themselves as an owner-builder
b. part way through the job the owner-builder decides to employee a Licensed Building Practitioner to carry out particular parts of the construction
In any situation where the status has changed you must notify the Council of the changes using the owner-builder exemption form.
2009 Building Act Review
In 2009 Government agreed to a Terms of Reference for a review of the Building Act 2004 to reduce the costs, but not the quality, of the building control system.
The review found that the building regulatory system is not broken, but that it is costly and inefficient.
The result was the Building Amendment Act 2013
Building Amendment Act 2013
Amendment to the Principal Act (Building Act 2004)
Clearer accountabilities for consumers, building
practitioners and building consent authorities.
Consumer protection and stronger obligations to
“put things right”.
New consumer protection measures:
- You must have a written contract for residential building work costing $30,000 or more (including GST).
- If the work is $30,000 (including GST) or more, or if you ask for it, your contractor must give you information about his or her skills, qualifications, licensing status, and the insurance or guarantees they
provide in a disclosure statement before you sign a contract. - Your contractor must also give you information about any ongoing maintenance requirements, insurance policies and guarantees or warranties once the building work has been completed.
- There’s an automatic 12-month defect repair period when contractors have to fix any defects you’ve told them about.
- There are new ways to take action when warranties in the Building Act have not been met.
- Contractors can be fined if they don’t comply with the law.tc
Prescribed Checklist
Disclosure statement
There are new general remedies for breaches of implied warranties e.g. if the breach is substantial the consumer can cancel the contract immediately.
The law sets out implied warranties that apply to all residential building work for up to 10 years, regardless of whether or not there is a written contract or what the contract terms are.
From 1 January 2015, the first 12 months from the date that residential building work is complete counts as a ‘defect repair period’.
Licensed Building Practitioner (LBP) Scheme
This is to ensure the public can have confidence that licensed building practitioners working on their homes and buildings are competent, and that homes and buildings are designed and built right the first time.
Building (Infringement Offences, Fees, and Forms) Amendment Regulations 2014
The regulations prescribe fees and forms for infringement offences.
An infringement offence is an offence as declared by the Building (Infringement Offences, Fees, and Forms) Regulations 2007.
This was updated from 2007
Building (Residential Consumer Rights and Remedies) Regulations 2014
Allows part 4A to be added to 2004 Building Act (came into affect 2015)
The Building (Residential Consumer Rights and Remedies) Regulations 2014 specify that default clauses contained in the Building Act automatically apply if:
- the project costs $30,000 or more including GST.
- there is no written contract.
- the contract lacks content specified by the regulations.
-the default clauses do not override existing clauses but they are assumed to be included in the contract even if there are no clauses specifically related to the topic concerned.
Prescribed minimum price
Prescribed disclosure information and prescribed
checklist
Prescribed content for residential building contracts for prescribed minimum price or more
Prescribed clauses deemed to be included in oral
residential building contracts for prescribed minimum
price or more
Prescribed clauses deemed to be included in incomplete written residential building contracts for prescribed minimum price or more
Prescribed information and documentation to be supplied on completion of building work
What does the disclosure statement have to include?
- The name of the contractor and/or the legal name of their business entity; whether they are trading as an individual, partnership or Limited Liability Company; the business address and contact details and when it was formed.
- Information about the key contact person (eg the project manager or site foreman) who will be involved in carrying out or supervising the building work, including their relevant qualifications, skills and experience.
- Information about insurance policies the contractor has, or intends to have, in relation to the building work – this must specify the amount of the cover and any relevant exclusions on policy coverage.
- Information about any guarantees or warranties the contractor offers in relation to the building work – this must specify the period of time the guarantee or warranty is offered for and any limits or exclusions on coverage.
What are implied warranties?
Under the Building Act The law sets out implied warranties that apply for up to 10 years to all residential building work, regardless of whether or not you have a written contract, or what the terms of your contract are.
Information your contractor must give you once building work finishes as a result of Building Amendment Act 2013?
- A copy of any current insurance policy they hold for the building work completed under the contract. This does not include policies that expire when the work is completed.
- A copy of any guarantees or warranties for materials or services used in the building work, including information about how to make a claim, if the guarantee or warranty is transferable, and if it must be signed and returned to the issuer.
- Information about the processes and materials to be used to maintain the building work; particularly if maintenance is required to meet the requirements of the building code or maintenance that could affect any guarantee or warranty.
What are Default clauses under the Building Act?
If the contractor hasnt met the requirements under the Building Act and doesn’t have a written contract, or if the contract doesn’t include the minimum content specified in the Act, there are new default clauses that will automatically be considered to be part of your contract.
Default clauses cover:
building consents
variations
payments
subcontractors
dispute resolution
notices.
When did the Construction Contracts Act (CCA) come into play?
The Construction Contracts Act 2002 came into force on 1 April 2003.
What is the purpose of the CCA?
The purpose of the Act is to provide a process for deciding what payments have to be made under a construction contract and when they are due.
The Act also provides quick and simple procedures to resolve disputes about money due under construction contracts.
Under the CCA what are your options when you receive a payment claim?
you can either pay the claimed amount before the due date (20 working days after service of the payment claim) or provide a payment schedule to the
contractor.
A payment claim must:
- Be in writing.
- Contain sufficient details to identify the construction contract to which the progress
payment relates - Identify the construction work and the relevant period to which the progress payment
relates. - Indicate a claimed amount and the due date for payment.
- Indicate the manner in which the payee calculated the claimed amount.
- State that it is made under the Construction Contracts Act.
- If a payment claim is to be given to a residential occupier of a property, it must include a notice in a form prescribed by the Act setting out what the residential customer must do in response to the payment claim. (Form 1?)
What happens if the customer wants to dispute a payment claim?
they must object to the payment claim by giving
the contractor a ‘payment schedule’ in writing identifying the payment claim to which it relates and
indicating what amount the customer is prepared to pay (which can be nothing).
If the customer does not give the contractor a payment schedule by the deadline agreed in the
contract…
the customer becomes liable to pay the full amount claimed in the payment claim and the
contractor may recover it from the customer by court proceedings, which cannot easily be defended
by the customer.
If you simply don’t pay and don’t give the contractor a written payment schedule, it becomes a debt
that they can recover from you in the Courts, along with legal costs.
The builder/contractor can only suspend work if this is agreed in the contract, or if it’s a commercial
construction contract.
When can Adjudication be used?
If the client issues a payment schedule within the time limit disputing all or part of the claimed
amount, the contractor can refer the matter as a dispute for adjudication under the Construction
Contracts Act.
After the adjudicator is appointed, the contractor has five days to provide information in support of their claim. The customer then has five working days to respond.
The Adjudicator must then issue a decision within 30 working days.
How to start an adjudication
Whoever starts the adjudication process must serve a written notice of adjudication on the other person giving details about the dispute and the names and addresses of both parties for service of the legal documents.
If it is the builder starting off the adjudication, (and the building is not a commercial property), the builder’s notice must also:
Explain to you your rights and obligations in the adjudication process.
Briefly describe that process.
If the builder’s notice doesn’t do this, the notice will have no legal effect.
What is the adjudication process?
- An adjudicator is chosen
- whoever started the process has five working days to refer the dispute to the adjudicator in the form an adjudication claim (which is also served on the other
party), giving the details about the dispute. - the other party has five working days to respond to the adjudicator about the adjudication claim. You will also receive a copy of their response.
-You can appoint a lawyer to represent you if you wish.
What is the Consumer Guarantees Act 1993?
The Consumer Guarantee Act (CGA) sets out quality guarantees any business or person in trade must provide to their customers. It makes sure customers get what they pay for and, if needed, a repair, refund or replacement for a faulty product or substandard service.
Who is defined as a consumer in the Consumer Guarantees Act?
Consumer being a person who acquires goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption and who does not acquire them for the purpose or resupplying them in trade, or consuming them in a process of production or manufacture [i.e. generally residential architecture].
Are commercial architecture projects covered under the CGA (as its not domestic use)?
It is likely architectural services will be covered by the act even for commercial projects, or if the client is a
business.
Contracting out of the CGA…
Provided the contract is in writing, and the client is purchasing the services for business use (commercial
property development, stock warehouse…, or provided for a business - schools, hospitals and government departments are considered to be businesses.) the parties can contract out of the Act.
You would do this if you didnt want to guarantee your service under the CGA
What are the guarantees under the CGA (for services)?
Guarantees (for services)
1. Carried out with reasonable care and skill.
2. The service, and any resulting products, must be:
a. Reasonably fit for purpose.
b. Of such a nature and quality that is can reasonably be expected to achieve any particular result that the client made known before or when agreeing to buy the services.
c. Completed within a reasonable time, unless fixed by the contract.
d. Charged for no more than a reasonable fee, unless the fee is fixed by the contract.
What happens when architects services fails to comply with the CGA?
- Architect is required to fix the problem within a reasonable time. If not, the client can have the problem fixed by someone else and then recover costs, or cancel the contract and sue for a refund, compensation for losses or other redress.
- If of a substantial character, or the architect can’t fix, the client can immediately cancel the contract and sue.
What is a Romalpa Clause? (CGA)
A Romalpa clause is a clause that you can write into
your contracts with your customers. It lets you keep
ownership of parts or materials until the customer
has paid in full for the work done. If they don’t pay,
you can repossess the parts or materials.
What is CONSEQUENTIAL LOSS? (CGA)
A secondary loss resulting from an insured peril
Extra loss is damage to property directly caused by faulty work or by a trader’s failure to take reasonable
care. This loss is called consequential loss.
What is the purpose of the Contractual Mistakes Act 1977?
the purpose of this act is to mitigate the arbitrary effects of mistakes on contracts by giving courts appropriate power to grant relief in certain circumstances
When can the Contractual Mistakes Act Apply?
- Mistake influenced party to enter contract
- Mistake is before or when the contract was made (not after!)
- There is a substantial unequal exchange in values, or consideration substantially disproportionate
What are examples that may be considered under the Contractual Mistakes Act?
Types of mistakes:
common mistake: made by both, same error
mutual mistake: two mistakes on the same fact
unilateral mistake:made by one party to the other, and the other knows about it
Examples are:
Being provided false information (perhaps by council doucments)
Obscure language: If a contract contains obscure language, leading both parties to interpret it differently, it can result in a mutual mistake. (not specific about the use of the building)
Misunderstanding: If a person hires a contractor to paint a house, expecting the garage to be included, and the contractor, unaware of this, only paints the main portion, a mistake of fact claim may arise due to the contractor’s lack of knowledge about the entire scope of the contract.
Under the Contractual mistakes act, how can the courts grant you relief?
section 6: ‘Relief may be granted where mistake by one party is known to opposing party or is common or mutual’.
Common – made by both, same error (i.e. its common between the parties)
Mutual – two mistakes on the same fact
A court may grant relief if:
a party was influenced into entering the contract by the mistake, and the existence of the mistake was known to the other party
all parties to the contract were influenced in their decisions to enter by the same mistake.
there were substantially unequal exchange of values
where a benefit or obligation is granted or imposed, but it is considered disproportionate.
where the written contract expressly or by implication makes provisions for the risk of mistakes
a mistake in relation to a contract does not include the mistake in its ‘interpretation’.
the decision to enter a contract under the influence of a mistake is not a valid reason for a relief if the one entering the contract is aware of the mistake
What is the Copyright Act 1994?
Put simply, the Copyright Act 1994 is a set of guidelines that explains how published content can and can not be used. The general rule is: if it is published, it is copyright protected.
Summerise AAS Copyrights Clauses
D8. Intellectual Property Rights
- All copyrights belong to the Architect
- The client is licensed to use the material for the sole purpose of the project
- The license is conditional to the client meeting obligations under the agreement including payment of fees
- If the agreement ends before the completion of the agreed services, the license will still apply but to the completed documents/service materials. Partially completed Services Materials cannot be used by the Client without the Architect’s prior written consent.
- Future work using the service material without the Architect being appointed to provide related service will require the Architect’s prior consent
- Re-using the Service Materials is acceptable only on the written consent of the Architect who is entitled to receive a royalty at an agreed rate.
- Completion of the Agreed Sercies or early termination of AAS entitles Client to retain one copy of completed Services Materials
What happens if the Client/Architect agreement gets terminated in regards to CAD files and drawings?
If there is no prior agreement (eg. AAS) general law will apply:
It has long been established at law that the physical plans and drawings prepared by architects on
behalf of a client are, in the absence of special agreement, the property of the client. Property in the drawings passes to the client upon payment of the agreed remuneration.
Nevertheless, it is equally well established that documents prepared in order to assist
architects to carry out their duties remain their own property because the documents have
not, in themselves, been created on behalf of the client. Thus, the client has never been
entitled to demand memoranda, calculations, draft plans and other documents which the
architect has prepared to assist him to carry out his duties. This basic rule would also
appear to apply equally to preliminary CAD files
The Copyright Act provides that the “author” of a work owns the copyright in that work,
unless the work was produced on commission for a client.
What does the Copyright Act say about copyright of commissioned works? What is the NZIA’s position on this?
Sections 21(3) and 26(1) of the Act provide that where such works have been
commissioned by a client, copyright in the works is vested in the client as a commissioning
party.
This provision applies whether the client has paid the architect or not.
The NZIA has made more than one submission to the Regulatory and Competition Policy
Branch of the Ministry of Economic Development on the issue of the commissioning rules.
The most effective copyright protection is to ensure that you sign an Agreement for
Architects Services, and that such Agreement contains the standard clauses
The NZIA takes the position that the Architect’s deliverables are included in the
commissioning rule by an accident of definition only, without taking into account the
intention of these deliverables. - ie that these doucments are not the final product
the primary intention of the Architect’s deliverables is to facilitate realization of
a project. This is fundamentally different from the production of objects where intellectual
property rights are protected only through assertion or transfer of copyright.
What is the aim of the Employment Relations Act 2000?
The aim of the Act is to create productive relationships through ‘good faith’ and to recognise unions, individual employment contracts, collective negotiations and agreements, personal grievances, strikes, mediation and the provision of the Employment Court and the Employment Relations Authority.
What is the Fair Trading Act 1986
- Prohibits unfair, misleading practice and representation by people in trade, including those who advertise goods and services.
- The interest of consumers are protected
- effective competition of businesses
- for both businesses and consumers to participate in the act of trading confidently.
- Prohibits unfair conduct in relation to trade
- promotes fair conduct
- provides for the disclosure of information relating to the supply of goods and services
- promotes safety in respect of goods and services.
How does the FTA apply to overseas business?
> The FTA applies including to overseas businesses that supply New Zealand services or products and online sales
“is Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct relates to the supply of goods or services, or the granting of interests in land, within New Zealand.”
Can you contract out of the Fair Trading Act?
- The general rule: no contracting out
- As a trader, you cannot contract out of your obligations to consumers under the Fair Trading Act.
- Traders are bound by the Fair Trading Act despite any agreement to the contrary.
-The exception: parties in trade
- however, there is an exception where you may be able to contract out of some of your obligations when dealing with other traders.
- Where:
- both parties are in trade
- the agreement is in writing
- it is fair and reasonable for them to agree to contract out of the Fair Trading Act.
As per part section 5C (4) states that the provisions of this Act will not apply if the contract imposes a stricter duty on the supplier than inposed under this Act , or if it allows for a more advantages remdy agaist the suplier than would be under the Act.
In other words your contract can be tougher on the supplier than the Act and your contract will still apply.
Why would you want to coontract out of the Fair Trading Act?
Contracting out of the Act can be commercially valuable for both parties to an agreement. For example, a supplier may have knowledge that it wants to share with the other party but does not want to** risk liability by sharing i**t, and the other party may be happy to accept the knowledge without any warranty.
In other cases, a party will be undertaking a full due diligence, and will be relying on its own assessments of performance or potential – so contracting out may well be fair and reasonable.
For example, suppose you claim the other contracted party that your products “can cure their headaches in minutes.” However, you do not have evidence to back up this claim. If you contracted out of your FTA obligations, they could not bring an action against you for making an unsubstantiated claim.
But seeing the potential of sales in the product the other party might be okay with accepting this.
How does the FTA affect the Construction Sector and Architects?
If the tender contains misleading or deceptive information in relation to how the tender was prepared, the bidders are sometimes required to sign a warrantee that their bid has been independently developed and that there has been no communication with competitors about price, submission of the bid or terms of the bid
How does the FTA affect Architect’s Liability?
For Practices, PI insurance is important in the case of an accidental breach of the Fair Trading Act
However there is “no persoanl liability” (practice liability) clause is effective, there is less scope to avoid this the the FTA.
Where the Client is in trade and the engagement is not on 2018 AAS or SPA General Conditions, the Practice
should seek to include a clause in its engagement agreement contracting out of section 9 of the FTA (like
clause 10.2 in AAS 2018).
Where the Client is not in trade, also to try to minimise potential liability under the FTA to a third party, and
include in the engagement contract a “no personal liability” clause based on unreasonableness (like clause 10.10 in AAS 2018) and to have a personal liability disclaimer in the documents being issued.
How does the FTA closely relate to the RAR 2006
Not mirespresenting oneself, honestly and fairness, care and diligence, no inducements, uphold the law
What is the Health and Safety at Work Act 2015?
The main purpose of HSWA is to provide for a balanced framework to secure the health and safety of workers and workplaces by: protecting workers and other persons against harm to their health, safety and welfare by eliminating or minimising risks arising from work.
What is a PCBU?
Person Conducting Business or Undertaking
Despite its name, a PCBU will usually be a business entity, such as a company, rather than an individual person. A person might be a PCBU if they are a sole trader or a self-employed person.
Examples include:
A retail business
A wholesale business
A manufacturing business
Why have PCBUs?
The previous Health and Safety in Employment Act 1992 primarily focuses on the employer and employee roles. It places duties on carefully defined participants – employers, principals, the self-employed, persons controlling a place of work and suppliers of plant.
The PCBU concept replaces all of these duty holders. It better reflects the complex nature of the modern workplace where there can be multiple working arrangements for workers in the same location or for the same organisation. The PCBU concept recognises that a business or undertaking has an influence over the health and safety of workers, even where those workers may not be its direct employees.
How should a practice prove that they meet the new obligations under the HSWA?
keep clear written records of the steps they are taking
What is a practice’s duty under the HSWA?
- S.36
- ensure that any workplace under their control is without risk as reasonably as practicable (no falling books on head)
- ensure health and safety of workers and other is not put at risk by the practice’s work (too much screen time)
- must consult with workers and others on health and safety matters
Can you contract out of the HSWA?
Nah g
Can you insure against fines imposed under the HSAW?
Nah g
Under the HSWA, what does it mean if you are a sole trader working from home?
Where a practice is being run from a residential home, the home will be a workplace while work is being carried out there. This means that duties will be owed by the practice as a PCBU at that workplace.
Under the HSWA, what if you share your office with another practice?
the practice should seek to co-ordinate activities with the other PCBUs by agreeing allocated responsibilities and then monitoring those other PCBUs to ensure compliance
Whats a good starting point for a practice under the HSWA?
A practice needs a person (such as a Practice Manager) or committee to drive health and safety.
What does the Health and Safety officer consider?
- Identify the practice’s health and safety needs.
- Emergency response preparedness
- Ensuring that sufficient funding and time given to H&S
- Implement and supervise the practice’s health and safety policy and its procedures
- Ensure all staff are issued with a copy of the practice’s health and safety policy
- Scheduling regular discussions or meetings about health and safety
- Ensure sufficient training
- Consider how the practice will work with other PCBUS at workplaces where overlapping duties will exist.
- Record incidents and significant occurrences of work-related ill health.
- Investigate incidents with a view to determining the root cause and prevention
- Take appropriate disciplinary action when breaches occur
- Set an example
However it cannot be just delegated to this one person but each officer has to share these duties
under the HSWA, Practices should make sure that their workers understand their obligations under the Act. Workers need to…. .
- Take care of themselves and other who may be affected by their acts or omissions.
- Set a personal example to their colleagues and clients
- keep escape routes clear
- report any incidents
Under the HSWA, what is a designer?
S.39
- Practice must design plant, substance or structure that is to be used or could reasonably be expected to be used as or at a workplace.
- This could include the design of a residential home if it is reasonably foreseeable that the home may be used as a workplace in the future.
What is a designer’s duty under the HSWA?
- duty to ensure, that any designs of plant, substances or structures are without risks to the health and safety of those at a workplace and any visitors to the workplace
- must also carry out, or arrange someone else to carry out, any analysis and testing necessary to ensure the design will be without risk to health and safety
- provide relevant information about the plant or structure to each person who is provided with the design and current relevant information to persons who request it. (builder yes but client also???)
Under the HSWA, which four stages of the lifecycle of the design should designers consider?
consider the health and safety of those people who construct, maintain, clean, repair and eventually demolish the structure
Under the HSWA, what is the four step risk management apporach?
- Identify Hazards
- Assess risks if necessary
- design control measures - implement the most effective control measure
- review the control measures - to ensure they are working as planned.
Under the HSWA, although designers ma not have control of construction work, how can its discharge its duty as a PCBU?
Consult, co-operate, and co-ordinate so dar as reasonably practiable with the PCBU that does have control (Builder)
In practical terms, this means that designers could provide information on hazards they have identified or guidance on safety elements of their design.
Does the lead consultant have greater responisbilty as a PCBU?
The lead consultant on a project has no greater responsibility, but it is likely to have more ability to influence or control the matter.
In this circumstance, a designer should seek to agree and clearly document the extent of its influence or control and responsibilities.
What is the most effective to least effective control measures in H&S?
Elimination, Minimisation, Administrative Control Measures, PPE
https://www.worksafe.govt.nz/
Who are the four groups of Duty Holders under the HSWA?
– persons conducting a business or undertaking (PCBUs)
– officers
– workers
– other persons at workplaces
Whats the best way to ensure that your duties are met as a PCBU as a primary dty holder (S36)?
Have an office health and safety policy and keep it updated!
Whats the best way to ensure that your duties are met as a a designer (S39)?
Do a health and safety in Design document for each project
What should you do if asked about H&S information about a building that was desgined many years ago.
Give information only on the scope you designed
The designer may not be aware of changes made to the building since it was constructed. In this situation, the extent of a designer’s duty is likely to be limited to the elements of the design detailed or specified by the designer and not by others (as each PCBU that designs has their own responsibilities).
Re HSWA, designers should at least?
- Maintain H&S documentation
- Allocate sufficient time for risk assessment
- Communicate design intentions to stakeholders
- Consider building lifecycle and potential risks
- Gather and retain data on maintenance, testing, and repair
- Minimize viable risks where feasible
- Confirm qualifications of examiners and testers in writing
- Budget for effective design solutions
- Conduct complex risk assessments when needed
- Stay updated on H&S developments
- Compile comprehensive H&S information
- Document influence/control over H&S in multi-PCBU settings
- Record discussions and actions for H&S compliance
Responsibilites of Officers under the HSWA?
- New duty for officers: Ensure PCBU compliance (due diligence)
- Stay informed on health and safety matters
- Understand employer’s operations, hazards, and risks
- Secure resources to minimize health and safety risks
- Establish responsive processes for incidents and risks
- Ensure compliance processes with legal duties
What Act did the HSWA 2015 replace?
Health and Safety in Employment Act 1992
Who in an office needs to particiate under the HSWA?
It is essential that all workers in these organisations are engaged in health and safety and have opportunity to effectively participate.
Engagement at all levels of the organisation is vital
When does an Architect have the most control when cosidering the H&S of a building
Control for the architect may be more at the beginning of the project when major design decisions are being made and less throughout the course of construction when the contractor takes operational control of a site.
Under the HSWA what is the ratio betweeen workers and H&S representatives?
19:1. For larger practices (>20) a formal health and safety commitee should be formed.
What is the New Zealand Companies Act 1993?
The Act provides for: the registration of companies. rules for directors and officers, shareholders or members.
The aim of the Act is to assist with the prevention of misuse of New Zealand companies and
provides the Registrar with additional powers.
What does the New Zealand Companies Act 1993 mean for directors?
The Act allows directors flexibility to manage a company. At the same time, the Act ensures directors are accountable for their actions.
What is required for a company to be incorperated under the Companies Act 1993?
- A name which has been reserved by the Registrar of Companies
- At least one share
- At least one shareholder
- At least one director
- A registered office, and
- An address for service
What is the benefit of a Constitution under the Companies Act 1993?
There are advantages in adopting a Constitution, such as restrictions on share sales, insurance and indemnity for directors, and company financing of share purchases.
Is a Constitution required under the Companies Act 1993?
Companies do not require a Constitution. If there is no Constitution, the Company will simply be
governed by the standard provisions of the Act.
What is the purpose of a constitution under the Companies Act 1993?
A constitution essentially sets out the rights, powers and duties of:
the company
the board
each director and
each shareholder.
You can incorporate a company in New Zealand with or without a constitution.
What are the statutory duties of directors under the Companies Act 1993?
- Act in the company’s best interests based on reasonable beliefs.
- Exercise powers for a proper purpose.
- Adhere to the Act and the Constitution.
- Avoid conducting business in a manner risking creditor loss.
- Ensure the company can meet incurred obligations.
- Demonstrate the care and skill expected of a reasonable director.
- Disclose material financial interests in transactions with the company.
- Generally, refrain from disclosing director-held information.
- Disclose specific details when buying or selling company shares, ensuring fair value.
