Your Body Corporate is a PCBU for Health & Safety Purposes Make a H&S Audit an Annual Operating Expense

Did you know that falls are the leading cause of injury in people of all ages (especially the elderly but all ages) in New Zealand. Falls can occur on stairs, pathways, roadways and even in the home and vary in severity with the worst being the unfortunate loss of life.

Over 50% of these falls and injuries result from someone simply tripping over a kerb or uneven pathway surface.

Over 2017/18 year, the Ministry of Health tracked the data and recorded over 47,000 claims for falls costing ACC over $105 million.

Falls are also the leading cause of death for those 65+ years of age and the leading cause of hospitalisation in all age groups. Slips, trips and falls make up the majority of all personal injuries and as you can imagine, there are multiple chances for these to occur within most Bodies Corporate.

With all this in mind, what are we doing in bodies corporate to try and prevent these very common incidents occurring on our properties? Under the Health & Safety at Work Act 2015, a body corporate is taken to be a PCBU (Person Conducting a Business or Undertaking) and as such, has a huge number of safety obligations to meet, knowingly or unknowingly.

The legislated duties a body corporate has under the HSWA 2015 (and regulations 2016) include:

• Reasonably foresee & act on H&S risks
• Maintain effective control measures to identify H&S Risks (e.g. annual audits)
• Regularly review control measures

These duties tie liability back to the Body Corporate as the owners and controllers of the property/ ‘workplace’.

It is important to note that body corporate managers and real estate property managers also have duties under the HSWA as they have significant influence and control over the PCBU and who and when trades may be sent to these schemes.

“But we still haven’t fixed the issues from the last H&S report?” Is a very regular comment that body corporate managers hear as an excuse not to order a new H&S audit at each AGM.

Just because previous H&S issues have not yet been rectified, does not mean that a Body Corporate should be holding off or breaking their regular control measures of H&S Audits. Whilst they may still be outstanding on one item from last year’s report, this year’s H&S Audit may show that they have in fact rectified and made safe a dozen other hazards and show the courts and Worksafe (after an incident) that this Body Corporate does indeed act on H&S advise and rectify issues.  

For a scheme that believes they have little or no safety hazards, a H&S audit is not a waste of money for them, what it really is … is a certificate notarising and documenting no hazards. Whilst onsite for a H&S audit, our inspectors photograph all areas and if no hazards are evident, they will display this in the report for that area. This builds a big picture that this Body Corporate maintains their property well and an expert has not witnessed any hazards onsite this year. Again, if an issue arose, the Body Corporate could show that they were proactive with H&S and their most recent report showed no onsite hazards at that time.

But isn’t that why we have insurance?” Most clients and committees ask me.

Unfortunately not! The Health & Safety at Work Act makes it very clear that insurance can NOT be used to pay, cover or exempt any person/s from fines issued under this act.

29. Insurance against fines unlawful (HSWA2015)

(1) To the extent that an insurance policy or a contract of insurance indemnifies or

purports to indemnify a person for the person’s liability to pay a fine or

infringement fee under this Act,—

    (a) the policy or contract is of no effect; and

    (b) no court or tribunal has jurisdiction to grant relief in respect of the policy

     or contract, whether under sections 75 to 82 of the Contract and Commercial Law Act 2017 This section also applies to body corporate management companies and property management firms for any duties that they are deemed to have under the act.

So with an aging population and often a lack of funds dedicated to ongoing maintenance, Bodies Corporate run the risk every day of an incident occurring onsite and not being able to show they are fulling their legislative duties to try and prevent one.

Really diligent Bodies Corporate and committees will be automatically including a H&S site review into their operating budget to be adopted each year. This saves having to try and convince their owners of this legislative duty at every AGM.

By having an annual H&S audit of your common areas, you are showing that 1) you are doing what would be deemed reasonably practical to identify H&S risks and 2) showing that you have in place and review the control measures.
At the end of the day, accidents will still always occur, that is inevitable, but a body corporate and its management company need to be able to show they have done everything under the legislation that is reasonably practicable to try and mitigate and minimise H&S risks within a Body Corporate.