A focus on Health and Safety

I think we can all agree that given the last six months, we can appreciate that we all have a part in keeping ourselves and those around us safe.

Have you ever imagined that your loved one will never be returning home? Or you get a call that he/she is in the hospital due to some incident that has occurred? These thoughts give us goose bumps, and this is one of the reasons why it is important to create a safe working environment.

Managing health and safety is crucial, considering the nature of real estate and property management work, both involving moving around from one place to another, most of the time.

By way of background, as a response to the 2012 recommendations by the Royal Commission on the Pike River Coal Mine Tragedy, in 2013, the Independent Taskforce on Workplace Health and Safety reported that New Zealand’s work health and safety system was failing. As a result, New Zealand underwent its most significant workplace health and safety reform in 20 years, resulting in the Health and Safety at Work Act 2015 (“the Act”) and the creation of WorkSafe New Zealand, the Government regulator of health and safety at the workplace.

The clear intent of the Act is the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work. A hazard is something that might cause harm. A risk is a combination of the chance that the hazard will cause harm, and if it does, how bad that harm will be.

A 'workplace' is defined under section 20 of the Act and is a place where work is carried out or where someone goes to carry out work. In practical terms, this means a workplace is any place you conduct your business. This can mean a client’s property, your office, your vehicle and can include an open home viewing.

Duty holders

A duty holder is someone who has duties under the Act. You may have seen the word ‘PCBU’ on WorkSafe’s website and throughout the Act. PCBU stands for a person conducting a business or undertaking. It refers to the various working arrangements in New Zealand. The ‘business’ part relates to an activity that creates profit while an ‘undertaking’ relates to an activity that is non-commercial in nature for example, a charity. PCBUs have certain duties under the Act. The next duty holder is an officer. An officer holds a specific position and exercises significant influence over the management of a business, for example, the CEO or a company director. Workers are another duty holder and they are individuals who carry out work in any capacity for a PCBU.

In the real estate/property management context, PCBUs will include the company, franchisor, franchisee, agents engaged as independent contractors, property management companies and selfemployed property managers. Workers will include, agents engaged as independent contractors, property managers, employees (including apprentices/trainees), contractors and volunteers.

Obligations

Under section 36 of the Act, PCBUs have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers and others who are affected by their work. They must ensure that the provision and maintenance of a work environment is without risks to health and safety as well. The PCBU will need to ensure that the office premises are safe to enter and conduct business from.

All of these constitute as a ‘workplace’ and is covered by the legislation. You may be wondering what ‘reasonably practicable’ really means. Section 22 of the Act defines reasonably practicable as something that is reasonably able to be done to ensure health and safety, having weighed up and considered all relevant matters. This means that consideration needs to be given to:

• How likely are any hazards or risks to occur?

• How severe could the harm that might result from the hazard or risk be?

• What a person knows or ought to reasonably know about the risk and the ways of eliminating or minimising it (e.g. by removing the source of the risk or using control measures such as isolation or physical controls to minimise it).

• What measures exist to eliminate or minimise the risk (control measures)?

• Lastly, weigh up the cost. What is the cost of eliminating or minimising the risk? Is the cost grossly disproportionate to the risk?

The process requires that all relevant matters, including those listed in the above, are taken into account and weighed up when determining what is reasonably practicable in particular circumstances. Essentially, the PCBU has the duty to control the risks in the current circumstances.

Officers must take reasonable steps to ensure that the PCBU meet its health and safety obligations. Workers must take reasonable steps to take care of their own health and safety and must comply with reasonable instructions by the PCBU.

Hazards

Given the above, PCBUs are responsible for identifying hazards, assessing the risk, controlling that risk and reviewing its control measures.

If a hazard is likely to create a dangerous situation then the vendor or landlord should remedy this situation before people enter the property. Hazards could include:

• Loose mats

• Painted concrete that is slippery when wet

• Algae on wooden decking or stairs that causes them to be slippery

• Damaged or torn carpet

• Broken or missing handrails on stairs or decks.

These hazards relate to slips, trips and falls which are the most common cause of all work and non-work injuries. These events can cause serious injuries to the body, head and neck. One way to prevent falls in the office due to slips, trips and falls is to have good housekeeping such as cleaning up spills straight away, marking spills and wet areas and removing obstacles from walkways and always keeping them free of clutter. Also, keeping working areas well-lit and replacing used light bulbs and faulty switches can help prevent against trips and slips as well.

Open Homes

Property visits and open homes create their own unique set of risks, from physical hazards (such as swimming pools) and the presence of unsupervised children, through to unwanted and hostile visitors.

Best practice for managing hazards associated with property visits and open homes is to plan for them and have clear processes in place to minimise the risk of injury from those hazards.

Rural

Every rural property will present its own hazards. Examples of rural hazards that should be identified include chemicals, livestock, terrain and quad bikes. In June 2019, WorkSafe announced that they strongly recommend crush protection devices on quad bikes.

Crush protection devices can be fitted to a quad bike to provide a survivable space should a rider be pinned underneath it. Between January 2000 and October 2017, 81 people were killed in quad bike accidents while at work and an average of five people die in work-related quad bike incidents every year.

Conclusion

Violating or not having health and safety measures in place can have a tremendous impact on your business. You could lose money, workers, clients, productivity, respect and your reputation. However, much of this can be avoided if importance is placed on keeping yourself and others safe.

Amesha Rama, In-house lawyer, REINZ