Property Management and the Health and Safety at Work Act
Here's the latest from WorkSafe regarding how the Health and Safety at Work Act (HSWA) directly impacts property owners and landlords, who are considered PCBUs under the new law change.
**As a commercial property owner/landlord what’s my duty under HSWA?**
Under HSWA, a commercial property owner/landlord is a Person Conducting a Business or Undertaking (PCBU). This means you have a duty of care, so far as is reasonably practicable, to ensure the health and safety of everyone involved with or affected by work on or at your property. This includes work that you organise or are responsible for.
Those that could be affected include tenants, contractors engaged by you, or members of the public visiting your property.
**I’m a property manager. Do I have a duty?**
Under HSWA, a property manager is also a PCBU and will also have a duty of care, so far as is reasonably practicable, to ensure the health and safety of everybody involved with or affected by work on the property that you are responsible for.
As the property manager you will also have responsibility for the management and control of the property with the duty to ensure the property (if it’s a workplace) is without risks to health and safety.
**I’m a commercial tenant – what’s my duty?**
Commercial tenants are also PCBUs and you have the same duty of care as other PCBUs, so far as is reasonably practicable, to ensure the health and safety of your own workers and others.
If you are a residential tenant, you only have a responsibility under the Act when work is carried out on the property. You have to take reasonable care for your own and others’ health and safety, and follow any reasonable instructions given by the PCBU doing the work (eg a plumber or electrician).
**What happens when there is more than one business involved?**
When there is more than one business involved, you all must work together, so far as is reasonably practicable, by consulting, cooperating, and coordinating your activities in relation to workplace health and safety.
More than one business can have a duty in relation to the same matter. This is called overlapping duties.
**What about Bodies Corporate – do they have a duty?**
Yes. Under HSWA, a Body Corporate is considered to be a PCBU. As a result, a Body Corporate has a duty to ensure, so far as is reasonably practicable, the health and safety of workers, and that the health and safety of other persons is not put at risk from its work.
These duties apply to matters over which the Body Corporate has influence and control.
**Who is an officer and what’s their role?**
An officer is someone who holds a senior leadership position and has the ability to significantly influence the management of a PCBU, for example directors, trustees, board members. Officers have a duty because they make policy and investment decisions that can affect workplace health and safety. Every officer has a duty – it is not a joint duty.
For example, members of the Management Committee of a Body Corporate are officers and have a duty of due diligence under HSWA. While the Body Corporate is the PCBU and has the primary duty of care to ensure workplace health and safety, the committee members have a duty to make sure the Body Corporate is doing what it needs to do to ensure the health and safety of workers and others when work is being carried out on the common areas of the property.
Officers themselves don’t have the duty to keep people safe – that is the duty of the PCBU (the Body Corporate), but as leaders of the organisation they should make sure the organisation is doing the right things to manage risks (so far as is reasonably practicable).
**I’m a rental property owner. What are my duties under the new law?**
If you are a:
* Landlord (i.e. you own a rental property),
* Property management business, or
* Self-employed property manager (sole trader)
then under the new law, you are a PCBU (Person Conducting a Business or Undertaking).
Property managers who are employees of a property management business are considered to be workers. The property management company is the PCBU.
PCBUs have the primary responsibility to ensure the health and safety of those using the property for work purposes. Your responsibility is in respect of the things you can influence and control.
For example, you have a responsibility to ensure that the people you engage to do any work on the rental property are competent and appropriately qualified to do that work. The business who is engaged to do the work is responsible for ensuring that the work they do does not cause harm to themselves or anyone else on the property.
Together, the different PCBUs have a responsibility to communicate, cooperate and coordinate with one another to ensure that when work is undertaken, that it can be done so in a safe and healthy way.
For example, if there is a dog on the premises, you would need to arrange with the tenant to keep the dog contained while the tradesperson is on the property. This is within your influence and control.
The tradesperson has a responsibility to ensure there are no health and safety risks to anyone arising from the work they are carrying out.
Note however, that under the Health and Safety at Work Act, landlords or property management companies (the PCBU) are not responsible for the actions of tenants while they are living in the property.
For example, if your tenant takes it upon themselves to carry out some repairs on your property, and a serious incident occurs, as the property owner you would not be liable under the new law.
Tenants only have a responsibility under HSWA when work is being carried out on the property. They have to take reasonable care for their own and others' health and safety, and follow any reasonable instructions given by the PCBU doing the work (eg plumber or electrician).
**What are my duties as when engaging someone to work on my rental property?**
As a landlord or property management business, you have a responsibility to ensure that the people you engage to do work on your property are competent and appropriately qualified to do that work. The business or tradesperson who is engaged to do the work will also have a responsibility to ensure there are no health and safety risks arising from their work.
As a landlord or property management business engaging someone to do work for you, you are not expected to become an expert yourself or to try and manage everything for the tradesperson. The tradesperson is expected to have the necessary specialist skills and expertise to do the job you have engaged them to do. You just need to focus on what you can reasonably influence and control.
For example, if there is a dog on the premises, you would need to arrange with the tenant to keep the dog contained while the tradesperson is on the premises. This is to protect the tradesperson’s health and safety and this is within your influence and control.
The tradesperson is responsible for ensuring that the work they do does not cause harm to themselves or anyone else on the property.
If you have any further questions, contact your local Health + Safety Coaching NZ Representative.