By: Hayden Baird
Published: 4/08/2017
This article considers what is required of landlords, whether commercial or residential, under the health and Safety at Work Act 2015 (HSWA).
 
The HSWA sets out duties which key duty holders must comply with.  The key duty holders under the HSWA are the PCBU(s) and the officer(s).
 
A PCBU is a "person conducting a business or undertaking" and the PCBU bears the ultimate duty of care.  The PCBU could be a group of people or one person operating a business or organisation. 
 
Officers are those individuals in a position of power and control within an organisation, such as the chief executive officer, directors, the board of trustees or anyone else at that level of the organisation.  This may be one and the same individual as the PCBU in sole trader organisations. 
 
The HSWA requires a PCBU to ensure the health and safety of its workers and any other workers whose activities are influenced or directed by it, and to ensure that the health and safety of any other person isn’t put at risk from the work being carried out.
 
An officer has a duty of due diligence to ensure that their PCBU complies with its obligations under the HSWA.  An officer is personally liable for any failure to do this.
 
Application of the HSWA to landlords
 
Any landlord, whether commercial or residential, is a PCBU under the HSWA, with each of their renting operations comprising a business or undertaking. 
 
However, the application of duties for a residential and commercial landlord will differ due to the difference in nature of the business and undertaking between the two (residential accommodation is not usually a workplace, while a commercial premises will be).
 
Residential
 
A residential landlord only has a duty under the HSWA when the property is used as a workplace, for example when repairs, renovations or commercial cleaning are undertaken.  Most of the time, a residential property will be a home and not a place of work.  A residential landlord is not responsible for activities undertaken on the property by the tenant, unless the tenant is performing work for the landlord.
 
Commercial
 
A commercial landlord owes duties under the HSWA at all times when the property is occupied, or having work done to it because the property will be a place of work during these times.  A commercial landlord is not responsible for activities undertaken on the property by its tenant(s), however the landlord will have obligations to consult with the tenant (and other parties) in relation to health and safety matters involving the premises. This is discussed further below.
 
What does the HSWA require of a landlord?
 
Risk elimination/minimisation

A landlord must ensure so far as reasonably practicable that:
  1. The premises and any fixtures, fittings and plant are without risks to the health and safety of any person; and
  2. Any work which they commission, or undertake at the premises is without risks to the health and safety of any person involved in the construction or installation.
 
In order to discharge that obligation a landlord should:
  1. Identify any health and safety hazards at the premises which could lead to foreseeable risks to health and safety; and
  2. Take steps to eliminate any health and safety risks and where this is not reasonably practicable, take steps to minimise.
 
A landlord's responsibility is only in respect of the things under their management and control.
 
Notification

A landlord must notify WorkSafe as soon as they become aware that a Notifiable Event (as defined in the HSWA) has occurred in relation to work done at the premises.  Generally a notifiable event relates to illnesses, or injuries to workers, or others at the premises, or to events occurring at the premises such as collapses, explosions, or spillages.
 
Consultation and cooperation

As a PCBU, a landlord must consult and cooperate with all other PCBUs that have the same duties under the HSWA.  An example of where this could occur is where the landlord's property manager engages a tradesman to do work at the premises.  In this situation the landlord, the property manager and the tradesman are all PCBUs and have a duty to consult with each other in relation to taking steps to eliminate or minimise health and safety risks/hazards associated with the premises and any work conducted at the premises.  In the instance of a commercial property, the tenant will also be a PCBU and a commercial landlord must consult with its tenant(s) as well.
 
None of the duties of a landlord (or any other party having a duty) under the HSWA can be contracted out of.
 
Suggested practical steps for compliance with the HSWA

  1. Familiarise yourself with the HSWA and understand exactly what your duties are as a PCBU.
  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. Identify risks presented by your premise, fixtures, fittings and plant, and come up with strategies to eliminate those risks. If you can't eliminate, then have strategies to minimise them.  Consider having a written health and safety strategy which will apply to each of your properties.
  4. Consider whether your lease documentation adequately deals with the duties under the HSWA.
  5. 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 and formulate a mutual strategy where appropriate.
  6. 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.
  7. Ensure that any contractors you engage to do work on the premises, plant, fixtures and fittings located in the premises, are fully qualified to do the work and have their own health and safety compliance programmes.
  8. If you use a property 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.
  9. Keep records of meetings, consultation, plans and steps taken and periodically revisit your obligations.
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