The Health and Safety at Work Act (HSWA) is part of a reform package aimed at addressing the increasing number of serious work-related injuries and deaths in New Zealand.
According to insurance advisors Rothbury, over 50 people die at work each year – almost one a week – in New Zealand, while hundreds of people are injured. It is estimated that 600-900 employees die from work-related diseases. These statistics have prompted the enactment of the HSWA.
As per the HWSA, landlords are now responsible for ensuring health and safety at rental properties.
By defining and establishing who is responsible for workplace health and safety, the HSWA has created a new class of people: the PCBUs (Person Conducting a Business or Undertaking). PCBUs now carry the primary duty under the new law to ensure the health and safety of workers and others affected by the work it carries out.
As with all other workplace health and safety laws, the new act will be conducted and overseen by Worksafe New Zealand.
Who is responsible? Who classifies as a PCBU? Does a landlord?
Examples of PCBUs:
- a business in the form of an incorporated company.
- a sole trader or self-employed person.
- a general partner in a partnership (if the partnership is a limited partnership).
- a partner in a partnership (if the partnership is not a limited partnership).
- an organisation created by legislation (eg government department, university, school or local authority).
“Landlords will be regarded as PCBUs and have a responsibility to ensure health and safety of workers they engage or who are influenced or directed by the PCBU while they are doing work for that PCBU ‘so far as is reasonably practicable… [at the end of the day, it is] about what the Landlord can reasonably do to manage health and safety.”
Specific obligations of PCBUs
According to Worksafe, the primary duty of care is a broad overarching duty. It includes but is not limited to, so far as is reasonably practicable:
- providing and maintaining a work environment that is without risks to health and safety
- providing and maintaining safe plant and structures
- providing and maintaining safe systems of work
- ensuring the safe use, handling and storage of plant, structures and substances
- providing adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities
- providing any information, training, instruction, or supervision that is necessary to protect all people from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking
- monitoring the health of workers and the conditions at the workplace for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.
PCBUs must also maintain any worker accommodation that is owned or managed by the PCBU, and provided because other accommodation is not reasonably available. The accommodation must be maintained so the worker is not exposed to health and safety risks.
A case scenario from Worksafe
To give more clarity on the HSWA, Worksafe has provided a landlord case scenario:
“For example, if a landlord engages a plumbing firm to do repairs on a rental property, they have control over the engaging of that company. So they could set healthy and safety standards they expect of the company they hire (e.g. they have to be a member of a professional body, they have to be qualified for the job they have to have previous experience of doing this wok etc).
But once the plumbing company is on site the landlord will have little influence or control over their day to day work (unless there is some hazard on the property the plumber should know about). The risks created by the plumbing company on the job are up to them to manage.”
What happens if a landlord doesn’t adhere to the new regulations?
Although some of the HSWA is somewhat vague – you can read the full report here — what is fairly concrete under the HSWA is the setting of higher penalties and tougher prosecution under the Act.
Following the establishment of a breach having been committed, a three-tier penalties system kicks in:
- Offence of reckless conduct, where a person under a health and safety duty without reasonable excuse engages in conduct that exposes an individual to whom a health and sweaty duty is owed to a risk of death or serious injury or illness – up to $300,000 or a term of imprisonment not exceeding 5 years for an individual or up to $600,000 or a term of imprisonment not exceeding 5 years for a PCBU or Officer;
- Offence of failing to comply with health and safety duty that exposes an individual to the risk of death or serious injury or illness – up to $150,000 for an individual or up to $300,000 for a PCBU or an
- Officer; Office of failing to comply with health and safety duty – up to $50,000 for an individual or up to $100,000 for a PCBU or an Officer.
Additionally, new orders may be imposed including:
- Adverse publicity orders, requiring the offender to publicise in a particular manner the offence, its consequences, and the penalty imposed;
- Restoration orders, requiring an offender to take specified steps to remedy any matter caused by the offence;
- Project orders, requiring an offender to undertake a specific project for the general improvement of work health and safety; and
- Court-ordered enforceable undertakings, adjourning the proceeding for up to two years, during which the offender undertakes to comply with certain conditions.
- If anything, the potential penalties certainly force landlords to sit up and take notice.
What’s your next move?
Make sure to read up the HSWA. It pays to understand and know where you sit in this new health and safety landscape. Otherwise a simple, well-intended mistake can make you liable…
If you have any questions or are unsure about your new responsibilities as a landlord, please give Glenn and Helen a ring (09) 832 0832. For the full HSWA report read here