The Health and Safety at Work Act 2015 (HSW
Act) sets out duties for any person conducting a business
or undertaking (PCBU) to ensure the health and
safety of its workers and any other workers whose activities are
influenced or directed by it, and to ensure that the health and
safety of any other person isn't put at risk from the work
being carried out.
The duties in the HSW Act apply to people in a workplace.
Workplace is defined widely, and means "a place where
work is being carried out... for a business or undertaking". A
person undertaking work on a house, such as maintenance, repairs or
renovation, will be in a workplace, as will a person whose usual
workplace is in houses, such as a cleaner.
Usual rule for houses
The HSW Act specifically says that a PCBU doesn't include an
occupier of a home, even where the occupier employs or engages
another person to do residential work. Residential work comprises
both "domestic work done or to be done in the home" and
"work done or to be done in respect of the home".
This means that a home-owner or a tenant won't be classified
as a PCBU, even if they have a cleaner, gardener or nanny, or if
they engage a builder, plumber or electrician to do work on the
Somebody running a business from their home will be a PCBU in
respect of any work connected to the business, as this wouldn't
be considered to be residential work. In some cases there may be a
grey area as to whether something is residential work or not, for
example where a cleaner cleans both the home and office areas of a
Why the usual rule doesn't apply to
The exemption from being a PCBU specifically refers to occupiers
of a home. This means that it encompasses people who live in their
own home, and tenants of a rental property. Conversely, it
doesn't cover landlords, as they are not the occupiers.
Owners of rental properties will therefore owe the duties of a
PCBU when engaging contractors for any work on the property.
What landlords need to do
Given the nature of the likely work, there will generally be
multiple PCBUs. The landlord will be one, while the contractor
undertaking the work will be another. However, the landlord cannot
just rely on the contractor to manage the health and safety risks.
Nor can a landlord specify in the contract that the worker will
take care of all health and safety matters; contracting out of the
duties in the HSW Act is prohibited.
A landlord must do everything reasonably practicable to protect
any worker from any risk to their health and safety. It is no
answer to that say practicable steps are expensive or
To comply with the HSW Act, there are a number of steps that a
landlord can take:
identify and manage the risks on the property and connected to
the work to be undertaken;
ensure their contractors are sufficiently competent to perform
the work and have their own individual health and safety plan;
ensure their contractors understand their health and safety
requirements, particularly in relation to the risks
if possible, meet with the contractor on site at the property
and discuss risks and health and safety requirements, and make
notes of the meeting and discussion;
consider appointing a project manager or property manager to
manage the risks for contractors (although this will not excuse a
landlord from liability)
A landlord should also consider whether they should obtain
insurance, which can provide cover for any reparation and for the
cost of defending a prosecution (although insurance cannot cover
any fine). However, insurance policies will not cover deliberate or
reckless disregard of health and safety obligations.
Are you a landlord to your worker?
In some circumstances, accommodation is provided to workers as
part of the employment relationship. This is common for farms,
which can provide accommodation for some or all of the farm
workers, and can also occur in other industries.
The HSW Act has a specific provision that states that the PCBU
has a duty to maintain the accommodation so that the worker is not
exposed to risks to his or her health and safety arising from the
accommodation. If a PCBU provides accommodation, it will therefore
need to periodically inspect the property, and respond in a timely
manner to any complaints raised by the workers living in the
accommodation. This is similar to the responsibilities that
any landlord has to their tenants.
The requirements in the HSW Act could also mean ensuring that
your accommodation has sufficient heating and working fire alarms,
and that any electrical appliances provided are in good
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).