A review of the Health and Safety at Work Act 2015July 2017

A review of the Health and Safety at Work Act 2015

What building specific risks do your tenants face within your property?

If you’re a property owner, do you know what building specific risks your tenants are facing within the property?
Are you sure there are no asbestos containing materials within your building?
Do you know the P-contamination status of your building?
Is your tenant storing flammable goods on site, and if so, do you know if they are being stored correctly?
You’ve just employed an electrician to fix an extract fan in the commercial kitchen of one of your properties. Have you reviewed the suitability of the H&S documentation provided? How does your responsibility change if the electrician then employs a sub-contractor to carry out the work on his behalf?

If you can’t safely answer any of the above questions, suffice to say there is room for improvement in the management of compliance risk in your portfolio.

So, with that in mind let’s get stuck into the nitty-gritty of the new H&S reform bill and the ramifications to you as a Property Owner…

The new H&S reform bill; the Health and Safety at Work Act 2015 (“HSWA”) came into effect following the Pike River Mining disaster in 2010 and replaces the previous Health & Safety in Employment Act 1992. The Act mirrors Australian legislation and in particular NSW’s Work Health and Safety Act 2011.

Before we explore the implications to you as a landlord, it’s important to understand some of the key changes from the previous framework.

The New PCBU Concept

Firstly, the old ‘employer’ mentality is out. Replaced with the new ‘PCBU’ concept; ‘a person conducting a business or undertaking’, the HSWA has been purposely drafted to catch a broader range of modern working arrangements under this new definition.

The term ‘worker’ has replaced the old term ‘employee’ and this covers such people as:
  • Permanent employees
  • Contractors
  • Temp workers
  • Sub-contractors
  • Scholarship recipients & students
A PCBU owes a primary duty of care to ensure the health & safety of its workers so far as is reasonably practicable. This means the PCBU must provide a safe working environment, safe plant and structures, appropriate training and instruction & health monitoring for their workers. It is important to note here that the PCBU is not able to ‘contract out’ of their duties by way of an employment contract or otherwise.

A PCBU must also provide a primary duty of care to workers whose work activities are affected or influenced by the PCBU eg. tenants, and also to other persons coming into contact with the PCBU’s business or undertaking eg. visitors attending site.
 

Further Duties

The Act delves deeper; with a further duty to those PCBU’s with ‘management or control’ over a workplace (Section 37 of the HSWA), e.g. landlords, property managers and any tenants who have exclusive use over a particular area. These PCBU’s must also ensure so far as is reasonably practicable that the workplace is ‘without risks’ to the H&S of any person. This includes visitors to the site, contractors working on the site, and employees of your tenant.

Horizontal Consultation

The Act also introduces the concept of ‘horizontal consultation’- where it is our duty to ‘consult, co-operate and co-ordinate’ between the levels and overlapping duties of PCBU’s; to plug the gaps so to speak. In practice this may develop as actively ensuring levels of communication between different parties, sharing of knowledge and conjoined risk assessments and agreeing areas of responsibility for a particular job/ project or area.

How Does This Affect You?

As a Landlord involved in providing a space for businesses to occupy and operate from, as well as instructing contractors and various other professional services to conduct certain business/ undertakings on the property asset, you are classified as a PCBU.
As a PCBU, you owe a primary duty of care to the employees that work inside the buildings you own, as well as temporary visitors to the site.  You also owe a duty of care to the contractors you engage to work on your property, and their sub-contractors if they choose to use them.
Essentially, you must ensure the health and safety of anyone that comes into contact with your building; be it contractors, tenants or visitors.

To do that, you must be sure your building is safe to enter, exit and occupy; in practice, this may mean ensuring the property is free from contaminants like Methamphetamine or Asbestos, or confirming and continually reviewing whether your tenant is actively managing their gas cylinders or flammable substances on site correctly. It may mean carrying out a Risk Assessment of the building and using that to create a Risk Register for the property; outlining how you are to manage the risks on site.

Given the overlapping & multiple duties of many PCBU’s, as Landlord, you will be required to consult, cooperate, and coordinate with the various parties occupying or coming into contact with your property. For example, the Risk Register you compiled for your building would need to be shared with contractors carrying out works on site, and you may need to ask for their risk assessment prior to any works commencing (i.e. a JSA or Site-Specific Safety Plan or similar). You may also want to share these Registers with the Building’s tenants and ask if they have any points to add or amendments to be made. It’s important to understand these are not static documents; the idea is that they change with the business or situation so a mechanism to ensure constant refinement and review is crucial.
 
Given penalties can range from $50,000 for an individual breach, to $3,000,000 for a corporation, and up to 5 years in jail (for individuals or officers) the general laissez-faire approach is no longer going to cut the mustard. In other words; doing nothing is no longer an option.

Overwhelmed?

Don’t worry… it’s completely normal; especially if you’re yet to implement any H&S related policies and procedures within your portfolio. The key to doing so successfully is understanding the legislation at play and applying it in a pragmatic, yet comprehensive manner. With an accredited H&S Level 3 Representative in our team, rest assured NAI Harcourts BCRE can do just that.

We are able to identify, assess and manage the various aspects of Health and Safety law and how they apply to your specific portfolio.
We are able to ensure risk registers are populated, shared with occupiers and contractors and reviewed on an ongoing basis.
We can manage your contractors H&S documentation for any project specific tasks, and you can rest assured all of our preferred contractors are pre-qualified and their performance assessed on an ongoing basis.
We can also navigate you through the complex compliance areas of biological building contamination.

We’d be happy to help- contact us today for an obligation free appraisal.