New Zealand: Are you a residential landlord? What you need to know about the new health and safety regime

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 house.

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 house.

Why the usual rule doesn't apply to landlords

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 inconvenient.

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 identified;
  • 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 condition.

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.

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