The Health and Safety at Work Act 2015 (HSWA) came into force on 4 April 2016. Under these rules, landlords (and their property managers) owe a duty of care to ensure the health and safety of everyone involved with or affected by work undertaken on their property. The HSWA applies to both commercial and residential premises. This article highlights keys to ensuring compliance under the new laws and avoiding harsh penalties.
What duties are owed and to whom?
The HSWA applies to all business activities and rental businesses are no exception. Since landlords and property managers are largely in control of leased premises, they are considered Persons in Charge of a Business or Undertaking (PCBU) and owe duties under the HSWA. Landlords and property managers cannot contract out of their obligations under the HSWA.
Where property managers are employees of a property management business, they are considered workers and the property management business is the PCBU. The Property Manager’s primary responsibility is to ensure the health and safety of those using the leased property for work purposes.
The HSWA also applies to residential rentals but only while it is a place of work (e.g. where tradesmen are engaged and enter the premises to carry out repair work). The rest of the time, rentals are simply homes and landlords need only comply with existing Residential Tenancy laws. There are otherwise no positive obligations on landlords and property managers for tenants while living in residential properties. This means, if a tenant decides to carry out repairs on the property and a serious incident occurs, the landlord and property manager are not liable.
Tenants also have a responsibility, when work is being carried out, to take reasonable care for their own and others’ safety and must follow reasonable instructions given by the PCBU doing the work.
What is the Primary Duty of Care?
The primary obligation is to ensure all work carried out on the property is conducted safely and all foreseeable hazards are minimised.
As PCBUs, landlords and property managers both owe a duty of care so far as is ‘reasonably practicable’ to ensure the health and safety of tenants, contractors and visiting members of the public affected by work on the property.
The primary obligation is to ensure all work carried out on the property is conducted safely and all foreseeable hazards are minimised. This includes ensuring people engaged to do the work are competent and appropriately qualified to do so. All parties likely to be affected by the work should be notified of potential hazards and how to eliminate or minimise exposure to these hazards.
What does ‘Reasonably Practicable’ Mean?
Landlords and property managers only have a responsibility in respect of things they can reasonably influence and control. This could mean discussing the scope of work with contractors, checking whether they are properly qualified and that they use safe work practices and intend to use correct equipment and materials for the job.
Tradesmen also have a responsibility to ensure the work they have been engaged to do causes no harm to themselves and anyone else on the property.
Where there are overlapping PCBU duties in relation to a workplace, landlords their property managers and contractors must communicate, cooperate and coordinate with one another to ensure work is undertaken in a safe and healthy way. The Regulator (Worksafe) offers a good example of cooperation where a landlord engages a contractor for repair work but beforehand arranges with the tenant to keep their dogs contained while tradesmen are on site. In that example, the tradesmen must in turn ensure no health and safety risks arise from the work they carry out on site.
Can Landlords Still Carry Out Work Themselves
The HSWA does not preclude landlords from carrying out work on their own property. Although, restricted work such as electrical, gas-fitting or asbestos removal must still be carried out by properly trained certified tradesman. Where landlords perform work themselves, there is an obligation to minimise risk under the HSWA.
Compliance
The HSWA is a principal based piece of legislation and does not contain a list of known hazards or prescribe measures for risk prevention. Instead, each PCBU must carry out investigations to determine what is ‘reasonably practicable’ to manage workplace health and safety risks in their own businesses. This creates a perfect opportunity for landlords and property managers to set their own health and safety standards.
Penalties for Non Compliance
As PCBUs, landlords and their property managers face higher penalties and tougher prosecutions under the HSWA. At the top of a three-tier penalties system, landlords who recklessly expose individuals to serious risk of injury, illness or death may be liable for 5 years imprisonment and a fine up to $600,000 for individuals and a $3 million fine for companies. At the other end of the scale, simply failing to comply with a duty could result in a fine up to $100,000 for individuals and a $500,000 fine for companies.
With these kinds of potential penalties, landlords and their property managers are well advised to familiarise themselves with their HSWA obligations and take necessary steps to ensure compliance and to avoid serious incidents occurring on premises they control.
For specific information about offences and penalties see section 10 “What Are The Offences And Penalties Under HSWA” of the Worksafe Special Guide published in March 2016. For more information regarding HSWA see the full publication “Introduction to the Health and Safety at Work Act 2015”.
If you would like further information or advice on this topic, feel free to contact Jonathan Wood by email Jonathan.Wood@morrisonkent.co.nz or call on (09) 9155436.
Disclaimer – this article prepared by Meryl Duval (a former Associate of JB Morrison, Auckland) is intended to provide a general overview of the area of law only. It is not exhaustive, does not purport to cover all details and should therefore not be relied upon exclusively or be construed as personal advice.
