Legal: Slop, slap, slip on a hard hat?
Queensland Teachers' Journal, Vol 124 No 1, 15 February 2019, page no. 27
SCHOOL leaders are usually quite willing to have construction works at their schools. But how far does their responsibility go?
Duty of care during construction
School leaders are well versed in their “standard” duty of care towards their students and the need to take reasonable steps to minimise the risk of injury. Ultimately, their duties under the Work Health and Safety Act 2011 (Qld) are not so different. The act places the primary duty for protecting student and staff health and safety on the department as the “person conducting a business or undertaking” (PCBU) as defined in the legislation.
The department’s view is that a P&C which employs paid staff is also a PCBU – so if it is the P&C undertaking renovations, it needs to ensure a high standard of health and safety. The department would regard a principal as having a role to ensure the P&C understands and discharges its health and safety obligations effectively.
Under the act, PCBUs are required to ensure so far as is reasonably practicable:
- the health and safety of workers
- that the health and safety of other persons is not put at risk by work carried out as part of the conduct of the business or undertaking.
The next level of responsibility under the legislation falls on “officers”, which the department has confirmed means:
- the Director-General
- members of the department’s Executive Management Group
- the P&C president and members of the P&C executive, where it is a P&C renovation.
The department then delegates some of that responsibility to principals, which means the obligation then falls on principals to “take reasonable care”:
- for their own health and safety
- that their decisions or actions do not adversely affect the health and safety of other persons.
A school leader’s decisions have the potential to affect staff wellbeing, students and the school community. It is important that they apply the reasonable care standard to each of those decisions.
If construction work is due to start at your school, you should consult the department policy on Working on Department of Education and Training (DET) Facilities (https://education.qld.gov.au/about/Documents/working-on-doe-facilities.pdf). This sets out clearly what the department requires of contractors and is a useful guideline for the principal as to what should be expected from any construction team. It also includes the department’s expectations of the school leaders when liaising with contractors.
General requirements require that school leaders ensure:
- all contractors and their personnel are aware of their obligation to sign in and out as is required of visitors generally
- if required, that the school’s officers sight and link the contractor personnel blue cards to the school site, if one is required
- contractors are warned not to interact with students, even if known or related, unless to give directions for safety
- the contractor has provided a safe work method statement, or other appropriate and comprehensive risk assessment before beginning the work
- the contractor is aware of any asbestos and asbestos register within the school and has a safe work method statement or other risk assessment addressing asbestos.
The general safety and security of the construction site is the responsibility of the contractor, however the department often nominates the principal as its representative on site. If concerned about this, seek clarification from your regional office. A principal should avoid being allocated any formal status in relation to the project to retain their “worker” status under the act.
Risk of liability
The Public Service Act 2008 provides that no civil liability attaches to a public service employee in relation to their official powers and functions – liability instead attaches to the state. This applies to any civil claim arising out of construction and means school leaders have the full protection of state indemnity, provided their actions are in good faith and without gross negligence. However, a prosecution for breach of the Work Health & Safety Act is not a civil action and is not covered under state indemnity. Instead, the state may provide indemnity for legal defence costs, but will not pay any fine if a school leader or teacher is found to have breached the act.
The QTU provides full legal assistance to any member facing investigation for a work health & safety matter. Always consult the Union before answering any questions should an incident occur.
The principal’s duty is to take “reasonable care” in relation to student and staff safety. If you have concerns about how the work is being performed, these should be put in writing to the contractor and the department. Make sure parents and students know what is happening well in advance and make provisions for any students or staff more likely to be affected by dust, smoke and even noise. Alternatively, seek to schedule the work during the holidays.