Do you realise the extend of your duties under the Health & Safety at Work Act 2015

At the best of times, body corporate and property management is a challenging business to be in. Constantly trying to manage various stakeholders, owners, tenants all whilst maintaining an asset no one wants to spend money on. The complexity of Health & Safety at Work (2015 Act) takes the challenge of managing properties to an even greater level when you become in whole or partially responsible for numerous properties with engagements of various trades at various times.

Due diligence, as required under the act, is the fundamental reason why a body corporate management firm should insist a health & safety report at each body corporate, every year! Without a H&S report undertaken, you cannot be sure that you are directing workers to a safe workplace whenever engaging tradespeople.

Engaging appropriately qualified, experienced, insured trades is another risk that body corporate management firms must navigate, and the simplest way is to outsource this to a speciality company like Solutions IE to monitor and ensure your tradespeople are always suitably compliant.

A body corporate firm that neglects the above two aspects of the Health & Safety at Work Act 2015, does so at their own peril as prosecution can be crippling to a business and individual.

Meaning of a Workplace under the Act:

(1) In this Act, unless the context otherwise requires, a workplace—

(a) means a place where work is being carried out, or is customarily carried out, for a business or undertaking; and

(b) includes any place where a worker goes, or is likely to be, while at work

Meaning of a worker under the Act:

 (1) In this Act, unless the context otherwise requires, a worker means an individual who carries out work in any capacity for a PCBU, including work as—

(a) an employee; or

(b) a contractor or subcontractor; or

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the business or undertaking; or

(e) an outworker (including a homeworker); or

(f) an apprentice or a trainee; or

(g) a person gaining work experience or undertaking a work trial; or

(h) a volunteer worker; or

(i) a person of a prescribed class.

When viewed through the lens of a body corporate management firm, you can see that a number of ‘workers’ are engaged through the above definition. Tradespeople and service contractors going to site. Body corporate managers conducting onsite AGMs and committee meetings and even the lovely, old unit owners volunteering to do the gardening. All are captured as workers under the HSWA 2015.

As a body corporate management company, you regularly have ‘influence or direction’ over workers and not just those that you employ directly. As such, you have an obligation under the HSWA to ensure so far as reasonably practicable, their health and safety whilst carrying out work in any place (Section 36 of the HSWA 2015).

Even within a PCBU, for example a body corporate management firm, those members of your team deemed to be officers (managing directors, general managers etc), have extensive liability under the HSWA Act. Officers of a PCBU must exercise due diligence to ensure they are up to date on H&S policies and that they are aware of risks their business may be engaging with. For example, the managing director of a management firm with several hundred bodies corporate under management must ensure that they have processes in place to keep all residents, visitors and tradespeople safe across all the sites they have under management as these locations are workplaces anytime work is carried out.

Ensuring that annual health and safety reports are being conducted at each body corporate is certainly a proactive step that an officer of a PCBU can take within their business. This assists in the PCBU being able to show they have exercised due diligence in carrying out their duties. How else will the PCBU and its Officers be able to identify the risks and mitigate the hazards in a proactive manner?

Having detailed and proactive approaches to dealing with identified hazards is a vital stage in the health and safety obligations of a body corporate management business. It is also vital to note that duties imposed on an individual under the Health & Safety at Work Act 2015 are not transferable. No contract or management agreement will dispose of your obligations under this act, and it is unlawful to try and insure against your obligations. A person must not enter into an insurance coverage that purports to cover them for prosecution under the HSWA and if they do, they commit an offence in of itself that could result in fines up to $250,000.

The other crucial element that a managing director/ licensee/ general manager of a PCBU needs to ensure, is that their team of staff is only ever using suitably qualified, licensed, and insured tradespeople across all the sites they manage. Section 207 of the health & Safety Act 2015 stipulates that a PCBU must not direct or allow a worker to carry out work if they are required to have prescribed qualifications or experience. This is an offence that could be fined up to $100,000, essentially each time a work order is sent to an incorrect tradesperson. Should this unqualified or inexperienced contractor then cause a Health & safety incident onsite, the Body Corporate Management Firm and its officers could be held liable for negligence and face extreme penalties including imprisonment.  

A person who has a duty under the HSWA act that if failed, exposes an individual to the risk of death, serious injury or illness can be fined up to $1.5 million (Section 48 of the HSWA 2015). So even if an individual survives or is not seriously injured, if it was deemed that they were exposed to such a risk, you can still be found guilty under this section of the act.

Worksafe NZ has successfully prosecuted over 530 people and businesses since 2018 for failing their obligations under this act and consequently committing an offence.

If a management firm does not want to take on the liability to regularly supervise and train their staff to collect, check and manage tradesperson documents, the management firm needs to outsource contractor compliance to a reliable team like Solutions IE. Through our proprietary software, we collect, monitor and remind trades as they need to update or supply insurances, qualifications and H&S policies. At present we are monitoring and regularly updating close to 70,000 tradespeople on behalf of thousands of Bodies Corporate. For a simple fee starting at $99 per year, we can take on the bulk of responsibility when it comes to contractor compliance.

Do not let the busyness of running a business be the reason that you failed your HSWA obligations resulting in prosecution by Worksafe. Ensure your bodies corporate are safe with a safety report each year and ensure you and your team only ever use licensed and qualified trades!

Dakota Panetta, National Sales Executive & Product Development Manager, Solutions Group of Companies

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