In the backstage version of her to-do list post, Mel raised the issue of the new Health and Safety at Work Act 2015:
Figuring out for sure and proper how we fit into the new ACC legislation (This new legislation is scary and involves the phrase “personal financial liability”, so it’s important.) Currently, it LOOKS like NZLARPS is fine so long as we never employ anyone (does Koha count?) but private events are a bit more dodgy. More work needed.
Disclaimer: I Am Not A Lawyer. But I can read the law, plus policy documents and advice, and I’m fairly confident on where we stand on this. TL;DR: NZLARPS is fine. NZLARPS has also sought legal advice to clarify the position of independent games, and they are probably fine too if they are explicitly non-profit (see below). Those who are uncertain about their position should seek independent legal advice.
The Health and Safety at Work Act 2015 is there to protect people in the workplace and make employers and business operators protect their workers and the public from risks. It imposes a primary duty of care on employers, requires workplaces to be free of risk, and requires workers and visitors to workplaces to take reasonable care of their health and safety and not endanger others. There are large fines for failing to comply with these duties.
The Act introduces a new concept, a “person conducting a business or undertaking” (PCBU), and all of the duties under the Act are imposed on or by reference to PCBUs. However, the definition of a PCBU explicitly excludes “volunteer associations”, defined as
a group of volunteers (whether incorporated or unincorporated) working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.
All of the advice I have seen (example) is clear that voluntary associations which do not employ anyone are entirely excluded from the Act. The official advice on the law’s website echoes this:
Under HSWA, a volunteer association (incorporated and unincorporated) is defined as a group of volunteers working together for a purpose, and where none of the volunteers, or the association as a whole, employs anyone to carry out work for them.
The group may be involved in the promotion of art, culture, science, religion, education, medicine, or for charity, sport and recreation purposes.
Volunteer groups that only employ contractors, instead of having employees, are not classed as PCBUs. A volunteer group would be a group of volunteers coming together to complete a community project (eg beach clean, community tree planting).
NZLARPS is an incorporated group of volunteers working for a community purpose, the promotion of larp in New Zealand. We do not employ anyone. We do pay people koha on occasion (e.g. cooks at weekend games), but according to MBIE this is not employment. So, so long as we do not employ anyone in future, NZLARPS and its projects fall under this exemption and have no obligations under the Act.
As part of its mission of sharing knowledge of best practices, NZLARPS sought legal advice on the position of independent (non-NZLARPS project) games and their position under the law. We have been advised that unincorporated groups may be “voluntary associations”, even if they consist of only one person (e.g. a GM running one-off theatre-style games), but that they may also be PCBUs. An important factor will be whether they are serving a “community purpose” or not. Events and campaigns which explicitly use excess funds for future larps, or donate them to a community purpose or group (e.g. a one-off larp organised for charity, or a non-project larp which donates its profit to NZLARPS) are likely to be “voluntary associations” and exempt from the Act. Explicitly for-profit events in which excess funds or assets ultimately go to GMs are likely to be PCBUs. Events which do not explicitly say what happens to any profit are in a grey area. If a larp actually employs anyone (as opposed to providing koha), then it will be a PCBU.
Almost all larps in New Zealand operate on a non-profit basis, with surplus funds used to support future events. Based on the above, we recommend that events and campaigns in this category say so explicitly (e.g. “Any excess funds will be used to support future events. At the end of the campaign, any surplus will be donated to charity”). If you are not in this category and uncertain about your position, we recommend you seek independent legal advice.
While it sounds scary, the requirements on PCBUs are mostly sensible and practical, and the sort of things we should be doing anyway despite being exempt. NZLARPS intends to produce a quick guide to health and safety policy to assist larp organisers in this area.