The “Doubting Thomas” is in all of us!

Recently we were challenged by a client on the neccessity of Health and Safety Systems for Landlords. So we thought it may be of interest to a few more of our readers to receive some further facts.

I have gone to www.tenancy.govt.nz and skim read elsewhere and there is nothing obvious there therefore it appears that you don’t  need a H&S policy to be a compliant landlord.

Tenancy Services tend to pass the responsibility of overseeing Health and Safety to WorkSafe. We recently asked the question to “Nancy” the very friendly BOT on the Tenancy Services website “Do Landlords need a Health an dSafety Policy”? We were met with the response “I’m sorry I don’t understand your question”. Does Nancy not understand the question, or has Nancy simply not been programmed to answer this question. For those of you that have worked with website BOT’s you will know that the second answer is correct. You see the Tenancy Services tend to pass most things Health and Safety related to WorkSafe. Interestingly when you ask WorkSafe the same question, you will get a string of answers that actually don’t answer the question. We have gone incognito on several occassions and asked the same question……to no avail! The closest we have come to a DIRECT answer is a letter from the Housing Minister stating that Landlords are PCBU’s and therefore, have a duty of care, so far as is reasonably practicable, to ensure the health and safety of everyone involved or affected by work on or at their property.

There has not been a benchmark case before the courts to test the validity of the need to have a H&S policy by a landlord that I can see.

An example where a Landlord is charged for
breaching HSWA 2015. – January 2019:

https://forms.justice.govt.nz/search/Documents/TTV2/PDF/3847877-Tenancy_Tribunal_Order.pdf

g) Exemplary damages. The landlord was obliged to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises (s45(1) (c)). Failure to comply is an unlawful act (45(1) (1A)) that can attract an award of exemplary damages of up to $3,000.00. I accept the tenant’s submission that the landlord is in business and must ensure the health and safety of tenants and ensure that work environments are without health and safety risks. The landlord cannot simply “put their head in the sand” and pass that risk over to work persons who attend at the work site to undertake the work. The work site should be under the control of the landlord. I find that the landlord did not comply with the Health and Safety at Work (Asbestos) Regulations 2016, sections 10(1): duty to ensure asbestos is identified at workplace; 12(1): duty to ensure presence and location of asbestos indicated, section 20 (2): duty to determine presence of asbestos when carrying out refurbishments. The landlord also failed to comply with the Health and Safety at Work Act 2015 i.e. sections 36(2): primary duty of care of the health and safety of tenants, section 36(3): ensure that the work environment is without risks to health and safety. With respect to electrical work carried out at the property by the landlord that resulted in at least two power outages, I accept the landlord should not have undertaken such work as he is not a licenced electrician. To do so is a breach of the Electricity Act 1992.

There is a further example that we like to use when asked this question:

A  dump truck killed one of it’s workers in 2015. The responsibility was split:

  • Veolia (Previously known as Onyx Environmental Services) 35% responsibility,(the firm contracted to collect rubbish bags)
  • N P Dobbe 30%, (the firm contracted to maintain the fleet)
  • Trucks Leasing 20%, (the firm who owned the trucks)
  • and Auckland Council 15% (The PCBU)

Veolia accepted responsibility for inadequately supervised maintenance of the fleetand “lack of communication between the 3 subcontractors”.

N P Dobbe admitted failure to ensure employees are not harmed.

Trucks Leasing pleaded not guilty to failing to maintain the truckso that it was safe;but
was later found guilty.

Auckland Council admitted it “should have done more” despite an expert review concluding the systems for auditing it’s contractors were sufficient.

Let’s play this out in a Landlord scenario:

A roof needs replacing on a rental property. The property manager hires a roofer on behalf of the Landlord. The roofing company’s employer fails to use the height harness he was provided with. Who holds responsibility?

There are a number of questions that would be asked in the investigation:

Does the roofing company have an adequate Health and Safety Policy? Do they hold regular tool box meetings to educate their staff? Do they have an auditing process to ensure that all their staff use correct equipment? CAN THEY EVIDENCE THIS?

Does the Property Management Company (subcontractor) have adequate Health and Safety Policies? Do they have an evidence based system that any of the contractors they use have their own Health and Safety Policies? Do they audit any of their contractors to ensure they do what their policies say? CAN THEY EVIDENCE THIS?

Does the Landlord have an adequate Health and Safety Policy? Can they guarantee that any contractors used by the Property Management Company have their own policies and that there is an auditing process in place to ensure their staff follow these policies? CAN THEY EVIDENCE THIS.

We are concerned that it is only a matter of time until a serious incident occurs and a Landlord may find themselves in trouble.

It appears that the landlord only need to be “aware” of the H&S and doesn’t require documentation either and that would probably be an issue as well.

How are they going to EVIDENCE this in an investigation? I’m sorry but a “yes I was aware, but I thought my Property Manager had that under control” is not going to cut the mustard.

There appears to be a push to have H&S set up in some “form” and a start has been made in that direction however it is likely to take time to get to that stage.

This is why we have developed a system that is both affordable and easy to implement.

The definition of “what is a business” should be part of the legislation and I can’t see anywhere written in the ACT where a landlord specifically is classified as a business which makes it confusing for you and me.

The legislation can be confusing, however it does define a PCBU as a person conducting a business or undertaking. Having a rental property means that a Landlord is receiving profit from tenants. We have absolutely no doubt that any adjudicator would deem a rental property, a business. For further confirmation please check this link on the MBIE site:https://www.business.govt.nz/news/if-youre-a-landlord-youre-in-business/

A definition of a landlord of a commercial property by WorkSafe NZ is:

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.

As a private landlord you are still a person conducting a business or undertaking, and you are correct in highlighting the “affected by work” aspect. That is why our policy is focused on the sub-contractors and contractors and the auditing process.

Under APIA.org.nz, commercial landlords and (at times) residential landlords are Persons Conducting a Business or Undertaking (PCBU) and have duties under the ACT,  That means you have a responsibility to ensure the people working on the premises are healthy and safe.

Correct

It may be useful to get the definition of a business from IRD and see if it applies to this situation clearly as I guess ultimately the IRD will make the decision re tax which will likely override everything else.  

Please refer to:

https://www.classic.ird.govt.nz/property/property-rental/

So as you can see, it’s been a busy afternoon for us here at the office, researching further relevant information. But it’s good, we like it. Because everything that wecome across just points more strongly to the fact that Landlords are PCBU’s and as such have a Health and Safety obligation under the Act. It would seem for the cost involved that it would make sense to have an EVIDENCE based system in place to ensure that everyone is doing their part in keeping workers safe, which at the end of the day is what this is all about.

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