Business, Property & Finance

Duties of Commercial Landlords under the Health and Safety at Work Act 2015

on Wednesday, 08 June 2016. Posted in Business, Property & Finance, Property

Duties of Commercial Landlords under the Health and Safety at Work Act 2015

Making sure your premises are safe is nothing new.  The new Health and Safety at Work Act 2015 (HSWA) is not so much a reinvention of health and safety laws but a well needed update to the existing laws.  However, the increased fines and the new duty of due diligence for officers (which creates significant liability for breaches) means that landlords will need to be more focused than ever before on making sure that their premises are health and safety compliant.

A Commercial landlord is a PCBU

As a commercial landlord you are conducting a business and are therefore a PCBU - that is a Person Conducting a Business or Undertaking.  As a PCBU you have a number of obligations and duties under the HSWA.

What are my duties under as a PCBU?

Your primary duty is to ensure, so far as reasonably practicable, the health and safety of your workers (including any contractors or subcontractors) that are doing work for you.  You must also ensure so far as reasonably practicable, the health and safety of workers who are influenced or directed by you while they are doing that work.  This means that you must take steps to eliminate, or if you can't eliminate, minimise, health and safety risks to your workers. 

You have a duty to engage with your workers and have worker participation practices. See our Guide to Worker Engagement and Participation under the Health and Safety at Work Act 2015 for more information.

You also have a duty to ensure, so far as reasonably practicable, that the following (to the extent they are under your management and/ or control) are without risks to the health and safety of any person:

  • The premises, if used as a workplace;
  • Any fixtures, fittings and plant located in the premises which are used as a workplace;
  • The installation, commissioning or construction of any plant or structure which is to be used as a workplace.

If a Notifiable Event arises out of the conduct of your business you must ensure that WorkSafe is notified as soon as possible.  See our Guide on Notifiable Events under the Health and Safety at Work Act 2015.

See also our Guide: Duties of a PCBU under the Health and Safety At Work Act 2015

Reasonably Practicable Steps only

Your duties as a PCBU under the Act are qualified by the concept of “reasonably practicable” in relation to addressing health and safety matters.  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 the PCBU knows 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)

You must collaborate

It is highly likely that there will be situations where you and another PCBU will have the same health and safety duties in relation to a matter.  For instance, both you and your tenant will have duties in relation to the premises which are used as a workplace and you and any builder you engage will have duties in relation to any construction carried out at the premises.  Where more than one PCBU has the same duty in respect of a matter the HSWA requires you to, so far as reasonably practicable, consult and cooperate with and coordinate activities with that other person. 

But remember that you are only liable to the extent of your ability to influence and control the matter to which the risks relate.

You may have personal liability

If you are a director or person who has the ability to exercise significant control over the management of the business you are deemed to be an “Officer”.  Under the HSWA, Officers must exercise due diligence to ensure that their business complies with its duties under the Act.  See Your Guide to The Duty of Due Diligence under the Health and Safety at Work Act 2015

You cannot contract out of your duty of due diligence and it is unlawful to obtain an indemnity or take out insurance to cover fines imposed under the HSWA.

What should I do now?

  1. If you haven’t done so already you should familiarise yourself with the HSWA and understand exactly what your duties are as a PCBU.   See our Guide Duties of a PCBU under the Health and Safety At Work Act 2015.
  2. If you have workers (and or use contractors or subcontractors to do work for you) – identify any health and safety risks which they might be exposed to, discuss these risks with your workers and find appropriate ways to manage them. 
  3. Consider how you will engage with and provide opportunities for your workers to participate in health and safety matters on an ongoing basis.  See our Guide to Worker Engagement and Participation under the Health and Safety at Work Act 2015 for more information.
  4. Start identifying risks presented by your premises and come up with strategies to eliminate those risks and if you can't eliminate then have strategies to minimise them.  Record this in writing.  Consider having a health and safety strategy which will apply to each of your properties.
  5. Make sure your lease documentation has provisions which accurately reflect the duties under the HSWA.  Any Agreement to Lease or Deed of Lease or Building Rules should contain provisions which deal with compliance with the HSWA.  Such provisions may require your tenant to provide you with their Health and Safety compliance programme, to meet with you on a regular basis, to provide you with information about health and safety issues (including any identified risks) and notify you of any Notifiable Events which may occur at the premises.  You should also make sure that your lease documentation does not contain an indemnity against fines under the HSWA.
  6. Consider how you will consult with your tenant and any other PCBU involved with your premises on health and safety matters – talk about any health and safety risks and what each party is doing to eliminate or manage them.  Find out what each PCBU which has some involvement with your premises is doing to comply with the HSWA.
  7. If you are an “Officer” then you should take steps to satisfy yourself that your business is complying with its duties on an ongoing basis.  See Your Guide to The Duty of Due Diligence under the Health and Safety at Work Act 2015
  8. Ensure that any contractors you engage to do work on the premises or plant, fixtures and fittings located in the premises are fully qualified to do the work and have their own health and safety compliance programmes.
  9. If you use a building manager – make sure they understand their obligations under the HSWA and have the requirement to report to you on health and safety matters.  Ask them to supply you with a copy of their Health and Safety programme. Meet with them on a regular basis to discuss health and safety matters and require them to notify you of any Notifiable Events which occur at the premises.

For more information or assistance please contact

Deborah Miller

Ian McCombe

Lizandra Bailey

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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