Health and Safety at Work Act 2015: a joint briefing for the property sector

Auckland, 10 November 2015 - Commercial landlords and tenants need to be proactive about how upcoming changes to the workplace health and safety regime could affect their operations. This will include documenting processes with a view to establishing a robust health and safety framework.  It will also be important to educate those covered by the new obligations. 

Some of the key issues to think about were raised at a recent briefing on the changing Health and Safety landscape, jointly hosted by CBRE New Zealand and Minter Ellison Rudd Watts​. The briefing outlined the main features of the Health and Safety at Work Act 2015 which will come into play in April 2016. Chris Baldock, Senior Solicitor at Minter Ellison Rudd Watts, summarised how the new Act is likely to impact on the commercial property sector, focusing on the introduction of new principles and concepts, and the pressing need to implement changes before the new law comes into effect. 

The new Act features a range of new concepts

Be mindful of the new language and statutory definitions designed to broaden the scope of the legislation.  This includes the definitions of ‘employee’, ‘officer’,’ PCBU’ (Person Conducting a Business or Undertaking) and ‘hazard’. For example, the word ‘hazard’ is given its natural meaning thus making the concept more fluid and open to interpretation. As such, it will pay to be cognisant of the fact that people will view different things on your properties or sites as hazardous, depending on the circumstances. 

A new primary duty

The new Act requires a PCBU to ensure, so far as reasonably practicable, the health and safety of workers or other persons affected by its work.  While the test does not require the PCBU to take steps when the cost of doing so is grossly disproportionate to the risk, businesses ought to think twice before deciding an improvement is too expensive. 

Officers Due Diligence Duty

Directors and officers have increased personal liability under the new Act arising from new due diligence obligations. This will include acquiring and keeping up to date knowledge of health and safety matters in their organisation. Ignorance of what is happening at “ground level” will be no defence. It is recommended that Health and Safety is made a permanent placeholder item in board meetings to ensure that issues and improvements are identified and addressed, and that procedures are documented. 

Dual duties and obligations

The new Act places an emphasis on the shared duties of PCBUs whose operations cross over, including an obligation for PCBUs to cooperate and coordinate in respect of health and safety matters. This will affect landlords and tenants, and will require a rethink of health and safety processes and procedures in respect of leased properties, building sites, contractors and maintenance crews. Minter Ellison Rudd Watts and CBRE recommend proactive collaborative discussions and ongoing dialogue to satisfy these obligations. This might include the issue of jointly branded health and safety materials to educate workers and contractors. 

Employee participation

The new Act requires greater engagement with workers on health and safety matters. On request, PCBUs (with 20 or more workers) will need to facilitate the election of representatives and the establishment of committees.  Health and safety representatives have various powers under the new Act, including to direct work to cease in certain circumstances or to accompany a WorkSafe inspector onsite. Unions, in particular, are likely to be interested in this space and may wish to be involved in decision making processes which affect health and safety. 

Documentary evidence

Limit your exposure to prosecution by ensuring all of your health and safety issues, procedures and improvements are thoroughly documented. This might include having health and safety policies and procedures enshrined in leasing agreements, site inductions, and agreements with contractors and maintenance staff who might carry out work for you. If WorkSafe comes knocking, good documentary evidence will be crucial to mitigating the risk of prosecution. 

Make sure everyone is onboard

Remember that all the documentary evidence in the world will mean nothing if the health and safety framework it records is not actually followed in practice. Businesses need to make sure that their workers are not only made aware of the processes in place but also given the necessary training and resources to play their part.

A more robust penalties and enforcement regime

The new regime will see fines and prison terms increase across the board for offences under the Act. Insurance against fines is unlawful, so the onus is very much on officers, PCBUs and workers to comply with their obligations.

The regulator will be flexing its muscles

Established in 2013, WorkSafe is already demonstrating that it is well organised and well resourced. Businesses should expect more intense scrutiny after April 2016, when WorkSafe could be looking to test its new enforcement tools or make a statement by initiating test case prosecutions.

Body Corporates, trusts and private commercial landlords will also be affected

Private landlords are often less aware of their responsibilities when it comes to common spaces (such as entry and exit points). In multi-tenanted properties, the landlord needs to be actively involved in managing and documenting any potential hazards. Body corporates, trusts and other non-company landlords will need to be aware that they will also likely have obligations under the Act. 

Act and engage early

Be proactive about the regulatory changes and act now. Minter Ellison Rudd Watts and CBRE encourage clients, partners and the wider property industry to review compliance well ahead of April 2016. Push any contractors you engage to come up to speed with the new regime, because in many instances you will not only have dual duties and obligations with them, but also to them. 

A smart investment in the future

Investment in the necessary resources to ensure compliance is a drop in the bucket compared to the financial and public relations costs associated with a serious health and safety issue or incident. Increased costs in the short term will mitigate the risk of severe financial and reputational consequences in the longer term.

For tailored advice on how the Health and Safety at Work Act 2015 could affect your property or construction operations, please contact:

Zane McAlpine
National Director, Asset Services
CBRE New Zealand

The Employment /Health and Safety Team at Minter Ellison Rudd Watts

​Gillian Service​ Partner Minter Ellison Rudd Watts	​David Gilbert Partner Minter Ellison Rudd Watts	​Chris Baldock Senior Solicitor Minter Ellison Rudd Watts​

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