Owners Beware – Understanding your obligations under the Health and Safety at Work Act

 PCBUs and Landlords duties under the Act

The Act introduces the concept of a person conducting a business or undertaking, or “PCBU”.  It imposes duties on all PCBUs to ensure the health and safety of workers and other people who have contact with their business or undertaking. Under the Act, landlords will be regarded as PCBUs, subject to some exceptions.  Essentially, this means that landlords now have a primary duty to ensure, so far as reasonably practicable, the health and safety of workers and other people affected by work on their property. 

Further duties may apply to landlords, including when they manage or control a workplace, manage or control fixtures, fittings and plant, or supply plant or structures. For instance, while tenants control their workspaces, landlords may control common areas such as carparks, stairwells, entrances and exits, plant rooms, etc.  Landlords will have to ensure, so far as reasonably practicable, that entries and exits, common areas, landlords fixtures, fittings, plant and structures do not pose health and safety risks. The duty extends to tenants, tenant’s workers, contractors engaged by the landlord to do work at the property, and other persons working at the property.

What is reasonably practicable?

What is considered “reasonably practicable” will depend on the circumstances. Factors to be taken into account include:
• The likelihood of the risk or hazard occurring;
• The degree of harm that might result from the risk or hazard; 
• What is known, or would be reasonably expected to be known, about a risk or hazard;
• How to eliminate or minimise the risk, and the costs of doing so.

Duty to consult, cooperate and coordinate with other PCBUs

More than one PCBU may be carrying out work at the same workplace.  In such cases the Act requires all the duty holders to consult, cooperate and coordinate activities with each other. Accordingly, landlords will need to work together with tenants and other duty holders to ensure that they are meeting their duties under the Act.  For example, if a landlord wishes to carry out work to a building, the landlord, tenant and the contractor will have duties to the tenant’s workers.  All three PCBUs will need to consult to ensure they meet their individual duties.

Directors and Officers of Landlord PCBUs are caught too

The Act also imposes a duty of care on officers of PCBUs.  “Officers” include:
• Directors, where the PCBU is a company;
• Partners, where the PCBU is a partnership, other than a limited partnership;
• General partners, where the PCBU is a limited partnership;
• Persons occupying a position that is comparable to that of a director in any body corporate other those listed above;
• Persons occupying a position that allows them to exercise significant influence over the management of the business or undertaking (for example, a chief executive).

The duty requires officers to exercise due diligence to ensure that the PCBU complies with any duty under the Act.  “Due diligence” requires an officer to:
• Acquire and keep up to date knowledge of health and safety matters;
• Gain an understanding of the risks and hazards associated with the conduct of the business;
• Ensure the PCBU has, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety;
• Ensure the PCBU has appropriate resources and processes for responding to information regarding incidents, hazards and risks in a timely way; and
• Ensuring the PCBU has, and implements, processes for complying with the duties under the legislation.
• The duty imposes a positive obligation on officers to be proactive, and to exercise the care, diligence and skill that a reasonable officer would exercise. 

In practice this could include obtaining reports from the PCBU landlord on health and safety risks, covering how known risks are being eliminated or minimised and monitored, and ensuring that sufficient resource is available to do so.

Avoid the penalties
The penalties for not complying with the Act are significant - up to $600,000 and/or up to 5 years imprisonment for an individual, and up to $3,000,000 for a body corporate! In the wake of workplace disasters such as the Pike River mine disaster and the deaths and injuries that occurred as a result of building failures in the Christchurch earthquakes, there is an increased focus on the health and safety of people coming into contact with commercial buildings.  It is important that you consider if the duties under the Act apply to you, and address them.

Copyright 2018 Cavell Leitch.

Our Asset Managers can help guide you through this intricate legislation and help ensure you meet your requirements as a landlord. For more information call us on 09 489 3880.