Business, Property & Finance

Duties of a Residential Landlord under the Health and Safety At Work Act 2015

on Thursday, 07 July 2016. Posted in Business, Property & Finance, Leasing

Duties of a Residential Landlord under the Health and Safety At Work Act 2015

If you are a residential landlord then you will have duties under the Health and Safety at Work Act 2015 ("HSWA") and if you don’t comply fines of up to $600,000 apply for individuals or $3 million for non-individuals.

Your main duties as a residential landlord

The main obligations under the Health and Safety at Work Act 2015 rest with a Person Conducting a Business or Undertaking ("PCBU"). A residential landlord will be considered a PCBU and has the duty to ensure so far as reasonably practicable:

  • that the Premises (to the extent they are used as a workplace) are without risks to the health and safety of any person;
  • that any work which they commission, construct or install at the Premises is without risks to the health and safety of any person involved in the construction or installation.

What this means is that when your Premises are used as a workplace e.g. where work is taking place at your property you will have duties to make sure that your property is without risks to anyone's health and safety.

For example; your property will be deemed to be a workplace if you are building a new investment property or you are undertaking renovations or repair work at your property.

In order to meet your duties under the HSWA, when your property is used as a workplace you must:

  • Identify any health and safety hazards at the Premises which could lead to foreseeable risks to health and safety;
  • Take steps to eliminate any health and safety risks and where this is not reasonably practicable take steps to minimise.

For example; if you have contractors coming on to your premises to complete building work and there are decks at your premises which they must pass over and those decks are unsafe then you should take steps to ensure the decks are safe and won't cause harm to anyone.

You are not responsible for any activities undertaken at the Premises by your tenant (unless of course the tenant is performing work for you).

Reasonably Practicable

As a landlord your duties as a PCBU are qualified by the concept of “reasonably practicable”. This means that the actual influence and control which you could reasonably be expected to have in relation to any matter where there are health and safety risks is taken into account. Other factors which are taken into account in determining whether reasonably practicable steps have been take are:

  • the likelihood of the hazard or risk occurring
  • the degree of harm which may result from the hazard or risk
  • what you know or should know about the hazard or risk and ways of eliminating or minimising it
  • the availability and suitability of ways to eliminate the hazard or risk
  • the costs associated with eliminating or minimising the risk (but note that this is only one factor which is taken into account)

Duty regarding Notifiable Events and Reporting

Landlords must also notify WorkSafe as soon as they become aware that a Notifiable Event has occurred in relation to work done at the Premises. See our Guide to Notifiable Events under the Health and Safety at Work Act 2015 for more information about Notifiable Events.

Officer Due Diligence

Where the actual owner of the property is a company, a trust or partnership – any individual who is a director or partner or occupies a position equivalent to that of a director (e.g. a trustee of a trust) or occupies a position which allows them to exercise significant influence over the management of the PCBU is considered an Officer under the Act. Officers have a duty of due diligence to ensure that their PCBU complies with its duties and obligations under the HSWA. The aim is to ensure that the people in charge do whatever is necessary to achieve compliance by the PCBU. See our Guide to the Duty of Due Diligence under the Health and Safety at Work Act 2015.

Consultation and Cooperation

As a PCBU you will have a responsibility to consult and cooperate with all other PCBU's which have the same duties under the HSWA. An example of where this could occur is where the landlord has engaged a property manager and the property manager engages a tradesman to do work at the premises. In this situation the landlord, the property manager and the tradesman should consult with each other in relation to taking steps to eliminate or minimise health and safety hazards associated with the premises and any work conducted at the premises.

For example; if you are arranging for the exterior of your property to be painted and the painters will be working at height – you should satisfy yourself that they will be taking measures to eliminate (where possible) or minimise any health and safety hazards which result from such work.

What practical steps should I take to comply with the Act?

  1. Make sure you understand what your duties are under the Act as a PCBU.
  2. If you will be considered an Officer make sure you understand your duty of due diligence. If you don’t have a direct role in the day to day management of the Premises (for example; you are an independent trustee under a trust which is the owner of the Premises) you should consider what steps you can take to ensure that you are complying with your duty of due diligence under the Act.
  3. If you engage a property manager to manage your Premises – you can't just rely on your manager to deal with health and safety matters. Find out:
    • Exactly what steps the manager will take to make sure they comply with the HSWA in relation to your Premises?
    • How will they ensure that any contractors they use to do work at the Premises comply with the HSWA?
    • How will they consult and cooperate with you in relation to health and safety matters? How will they report to you about any health and safety matters?
    • How will they ensure that you are notified of any Notifiable Events which occur in relation to the Premises?
  4. If you don’t engage a property manager you will need to:
    • Ensure that any contractors you use have the appropriate qualifications and experience to perform the work;
    • Satisfy yourself that the contractors have an awareness of their duties under the Act, that their workers and/or contractors are adequately trained and supervised when performing work at the premises and they have policies and plans in place to ensure compliance. We suggest having your contractors sign a statement to confirm that they have policies and procedures in place to ensure compliance with the Health and Safety at Work Act 2015;
    • Ensure that any contractors provide you with details of any hazards they come across and immediately notify you of any Notifiable Events which occur while work is being done at the Premises;
    • Consider what health and safety hazards exist at the Premises and what steps you can reasonably take to either (where possible) eliminate or minimise health and safety hazards at your Premises (when used as a workplace);
    • Meet with your contractors to discuss any health and safety hazards and agree on what you will each do to eliminate or minimise those hazards;
  5. Check your insurance. While the HSWA prohibits you from obtaining an indemnity or insuring against fines or infringement fees under the Act you can still insure for any costs your incur as a result of defending any prosecution under the Act. Does your insurance policy cover these types of costs?

If you require any further information or assistance about your duties under the Health and Safety at Work Act 2015, please contact:

Lizandra Bailey

Ian McCombe

Deborah Miller

DISCLAIMER

This information is intended to be general in nature. You are strongly recommended to seek your own legal advice in relation to the matters dealt with here.

© Brookfields Lawyers 2016 – All Rights Reserved

 

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