Rotorua Property Investors' Association
The Health and Safety at Work Act 2015 (the Act) came into effect this week. It is a complicated piece of legislation as it has to apply to many different circumstances throughout the country.
The NZPIF has contacted WorkSafe New Zealand to clarify how rental property owners may be affected.
WorkSafe explained that the new laws were primarily aimed at reducing the number of serious accidents and deaths in workplaces. Prosecutions are for serious breaches or repeated offences.
As most serious accidents happen in high risk work environments, rental property owners will only be marginally affected. However it is still extremely important to know what your requirements are as a rental owner.
As a rental property owner, you are in the business of operating a rental property. A central part of the new Act is that the Person Conducting a Business or Undertaking (known as a PCBU) will have the primary health and safety duty under the new law. As the owner of the rental property, you are the PCBU and have a primary duty of care. WorkSafe said that, "A PCBU has a duty to ensure health and safety ‘so far as is reasonably practicable’. It’s about what the PCBU can reasonably do to manage health and safety".
Some people have thought that this means you are ultimately responsible for everything that happens on the property, but this is not the case. As a PCBU you are only responsible for elements of health and safety that you have, or should have, control or influence over. This responsibility extends to yourself, your tenant, anyone you engage to work on the rental or any member of the public that may come into the property. This does not mean that you are responsible for everything that happens to tenants while they are occupying your rental property – what they do on a day-to-day basis in the comfort of the home they rent from you remains their business. Your responsibility is only in respect of the things you influence and control as the landlord/ property owner – like the building repair or maintenance work you get done. Home occupiers are exempt from the PCBU requirements of the Act, which means tenants are exempt but rental property owners are not.
Tenants being exempt from the Act as an occupier is quite important. It means that if a tenant takes it upon themselves to carry out some repairs on the property and a serious incident occurs, you as the owner will not be liable under the new Act.
Another example is employing a tradesperson to work on your rental. The company doing the trade work is also a PCBU. They share the primary duty for health and safety with you as property owner.
Usually the contractor will have more specialist skills and expertise about the job at hand than you do, and they may also be employed by another PCBU that has duties towards them as well – so you are not expected to become an expert yourself or try and manage everything for that worker. You just need to focus on what you influence and control, and play your part.
For example, you might need to inform a tradesperson that there is a dog on the premises and arrange with the tenant to keep the dog contained. This is to protect the tradesperson’s safety and is your responsibility.
As the rental property PCBU you also have a responsibility to ensure that the person you employ is competent and qualified to undertake the work you have employed them to do. The Act says that you need to take reasonable steps in this regard, so if you choose a tradesperson who is a member of a trade organisation or you have used them many times before, then it is reasonable to expect that they are competent and qualified. You do not need to have them sign an agreement to confirm this in writing.
The new Act doesn't mean that you’re not able to do any work on your rental properties yourself, but you still need to think about the health and safety risks involved and take action to manage these as appropriate. There are going to be some minor or routine tasks that can be done by just about anyone taking basic precautions (such as touching up paintwork), whereas others are clearly a job for the specialists (like restricted electrical work or asbestos removal). Trying to do everything yourself thinking you can avoid obligations under the Act would be a mistake.
Some Meth or P detection companies have been advising that rental property owners may be at risk of breaching the new Act if they do not screen for meth between tenancies. WorkSafe have told us that this is not the case unless you had a belief that the property was contaminated.
If you had a belief that P had been manufactured in your rental property then you would have an obligation to investigate this and react accordingly to protect the health and safety of anyone who goes into the property.
So the new regulations are not as scary as you may have heard. However they do clarify that you need to consider aspects of health and safety in your rental property that are under your control.