Practice note: Community work orders and the Health and Safety at Work Act 2015
This practice note deals with community work orders made by the Youth Court under section 298 of the Oranga Tamariki Act 1989 in light of the requirements of the Health and Safety at Work Act 2015.
Where a charge against te tamaiti is proved, the Youth Court may order that te tamaiti undertakes community work for a specified number of hours and within a specified period. The work undertaken must be performed under the supervision of the chief executive or an organisation approved by the chief executive to supervise the order.
s298 Community work order
(1) Subject to this section, where a charge against a young person is proved before the Youth Court, the court may order that the young person undertake work in the interests of the community for such number of hours, being not less than 20 or more than 200, as the court may specify.
(2) The work required to be undertaken for the purposes of a community work order shall—
(a) be performed within such period not exceeding 12 months as the court shall specify:
(b) be performed under the supervision of—
(i) the chief executive; or
(ii) any person or organisation (being a person or organisation approved by the chief executive either generally or in the particular case) who or which agrees to supervise the order.
(3) The Youth Court must not make a community work order unless it is satisfied that suitable work is available for the young person to perform for the purposes of the order.
Given that a community work order must be undertaken “in the interests of the community”, it is unlikely te tamaiti will be completing work for Oranga Tamariki. Therefore, Oranga Tamariki will not have health and safety obligations to te tamaiti as an Oranga Tamariki employee.
Option 1: Community work order supervised by chief executive
If the order specifies that the work is to be performed under the supervision of the chief executive, then Oranga Tamariki (through the allocated social worker) will have to ensure, in so far as is reasonably practicable, that the health and safety of te tamaiti is not put at risk by the work that is to be carried out.
This does not mean that the social worker has to oversee the work to be carried out in person, but it is important that the social worker takes the following steps in relation to the work:
- Identify potential risks for te tamaiti in carrying out the work, in consultation with the community work provider or sponsor
- Consider whether any aspects of the work are unsuitable or likely to cause difficulties for te tamaiti
- Identify any risks that te tamaiti might present to anyone working with them
- Agree a plan with the provider as to how the identified risks will be eliminated or minimised (so far as reasonably practicable), and make a record of that plan
If the social worker is not satisfied that the work specified in the order can be safely carried out, they should seek further direction from the Court.
The legislation prohibits tamariki under 15 years from being involved in the following activities:
- the manufacture or preparation of goods for trade or sale
- construction work
- logging or tree-felling
- the manufacture, use or generation of hazardous substances
- working with machinery, driving a vehicle, riding on a vehicle that is pulling or attached to an implement, or riding on an implement (There is an exception for tamariki aged 12 and older for driving or riding on a tractor where the tractor is being used for agricultural work and te tamaiti has been or is being fully trained in the safe operation of the tractor and any implement.)
- any other activity (including lifting a weight) that is likely to cause harm to the health and safety of tamariki under 15 years.
Also, tamariki under 16 years are not allowed to carry out night work between 10.00pm and 6.00am.
Option 2: Community work order supervised by approved person or organisation
Community work orders can also specify that the work is to be performed under the supervision of a person or organisation approved by the chief executive (which, in practice, means approval under s396 or s403 of the Oranga Tamariki Act).
In this scenario, the order may not specify any role for Oranga Tamariki at all. However, if a social worker is asked to prepare a social work report and plan (under s334 and s335) for a community work order, then they should work through the steps set out for option 1 to ensure that health and safety issues are properly considered as part of any proposed community work.
If a social worker is preparing a report and plan for a community work order, it may be preferable to propose that the work is carried out under the supervision of an approved person or organisation in order to use a provider who has the relevant experience and ability to supervise the work.