1. Is an NSO automatically a PCBU (Person Conducting a Business or Undertaking) under the Health and Safety at Work Act 2015 (HSWA)?

• • No although most are likely to be PCBUs. If an organisation employs one person or more (even for a few hours a week) then they will be a PCBU.
  • If an organisation does not employ anyone and operates on an entirely voluntary basis for a community purpose as outlined in HSWA then it will not be a PCBU and therefore will not have any health and safety obligations under HSWA (although may still have duties in relation to other legislation such as health orders).

2. Does an NSO have health and safety obligations in relation to athletes or staff who are contractors rather than employees?

• • If the NSO is a PCBU then they will have health and safety obligations under HSWA for employees and contractors – the same duties are owed to employees and contractors because they are both “workers” under the HSWA.
  • Athletes who are self-employed as contractors will be a PCBU in their own right under HSWA. They will have a primary duty of care to ensure their own health and safety so far as reasonably practicable, and will have overlapping duties with the NSO.

3. Where does accountability sit when there are multiple partners contributing to a campaign (e.g. NZOC and the NSO)?

• • In this situation the various agencies would have overlapping duties with each other. The level of accountability and responsibility will depend on the extent of control and influence the agency has over the travel and the decisions made in relation to the management of risks associated with that travel. The greater the extent of the agency’s influence and control the greater the level of responsibility will be. The agency or organisation that has the most control over the decision to travel and the day to day travel management will be the one with the greatest level of responsibility. All agencies with overlapping duties must consult, cooperate and coordinate activities with each other and with those travelling to ensure each partner and person travelling has clearly defined roles and responsibilities and each party understands what is expected and required of them to ensure everyone’s health and safety.

4. When there are different resources available in different NSOs (e.g. if a big NSO has medical directors while a smaller one does not) does what might be considered ‘reasonably practical’ change?

• • The resources available to the NSO will be a factor in considering what an NSO may reasonably be expected to do to protect against the risks of Covid-19. Having said that, limited in-house resources will not be a reason or an excuse for an NSO not to develop robust health and safety plans. For example, if an organisation does not have the relevant expertise or capacity in house then it should consider contracting the necessary expertise in the first instance. Substantial guidance has also been provided by government agencies on these risks which should be referred to (some of which has been translated to the sporting sector by Sport NZ - see the links at the end of this FAQ).

5. What are an NSO’s obligations in relation to athletes based overseas who only link up with the NSO for specific events?

• • It is difficult to give advice on specific situations without knowing all of the facts relevant to the situation. Specific advice should be obtained wherever you are uncertain of the extent of your obligations and/or how to discharge them. In general, however, an NSO will still have obligations for the athlete while they are part of an NSO-supported team preparing for or competing in an event. This includes taking reasonably practicable steps to ensure that the athlete is Covid-19 free when joining the NSO-supported team, training and competing as part of the team. It will also include ensuring the athlete is provided with sufficient training, information and instruction as to the NSO’s Covid-19 Safety Plan, the control measures that are in place and what will occur if the athlete does contract COVID-19 in the NSO controlled environment.

6. What are an NSO’s obligations if its only involvement in overseas travel is to enter the athletes in a competition (e.g. if the athlete must be entered by the NSO as the international federation does not permit entries from individual athletes)?

• • Again, it is difficult to give advice on specific situations without knowing all of the facts relevant to the situation. In this type of situation the NSO’s obligations will depend on what “entering” the athlete in the competition means and what understanding the athlete has of the NSO in the circumstances. If entering the athlete amounts to an endorsement of the event as one that is approved by the NSO as being a safe event (with adequate health and safety risk management in place) then the obligation will be more onerous as the NSO’s decision in “endorsing” the event will be subject to scrutiny. If however, the NSO is simply performing an administrative function by entering the athlete in the event and does not undertake any assessment of whether the event is safe and/or has adequate health and safety risk management protocols in place, then the NSO’s obligations under HSWA would be limited. In practice this would include ensuring the athlete understands the decision to enter the event is at their own risk and assessment and making sure the athlete understands that the NSO has not undertaken any assessment as to the suitability or otherwise of the event from a health and safety perspective.

7. Should NSOs make having a Covid-19 vaccine compulsory to ensure the health and safety of their athletes when travelling?

• • We would not recommend making the vaccine compulsory for overseas travel. Although the vaccine is clearly an effective way to reduce the risk associated with overseas travel there may be a range of reasons for why an individual may not wish to be vaccinated. Making vaccination compulsory could raise the risk of legal challenge based on the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. We consider that vaccination, when available, should be strongly encouraged but not made compulsory for any overseas trip.

8. If athletes and staff who are travelling overseas have been vaccinated, does that reduce the level of Covid-19 related health and safety risk mitigation planning that the NSO needs to do?

• • Athletes who are vaccinated will have a reduced risk of contracting Covid-19 while they are overseas but this does not mean that there will be no requirement to plan for the health and safety of athletes while they are overseas as the NSOs have responsibilities for the overall health and safety of the athletes rather than just in relation to Covid-19. In addition, current evidence suggests that it may be possible for vaccinated people to still carry and transmit the virus¹. As a result careful planning will still be required to ensure that all reasonably practicable steps (including all the usual control measures such as mask wearing, washing hands etc) are taken to avoid these athletes bringing Covid-19 back into NZ on their return.

For more information see:

• Sport NZ guidance for overseas travel - https://sportnz.org.nz/covid-19-response/advice-guidance-and-resources/international-travel/
• NZ government travel advice - https://www.safetravel.govt.nz/
• Government Covid-19 website - https://covid19.govt.nz/
• Health and Safety NZ Register (to access health safety professionals) https://register.hasanz.org.nz/
• WorkSafe NZ https://www.worksafe.govt.nz/

[1] https://www.cdc.gov/coronavirus/2019-ncov/more/fully-vaccinated-people.html; https://www.health.govt.nz/our-work/diseases-and-conditions/covid-19-novel-coronavirus/covid-19-vaccines/covid-19-types-vaccines/covid-19-pfizer-biontech-comirnaty-vaccine