• Sandra Nieuwoudt
    26
    Good morning all,

    Hope you are all well and safe. My apologies in advance for this lengthy discussion but I would appreciate your participation/comments.

    The context of the discussion is that we received an H&S policy from the landlord stating the following:
    1. them being "Controller of a Place of Work and committed to creating and maintaining a safe and healthy workplace"
    2. purpose of the policy is to highlight some of the potential hazards existing in a commercial building
    3. all accidents are promptly reported
    4. not use any plant or machinery unless authorised to do so
    5. to stop work if informed by any other party that their actions are in breach of the H&S policy
    6. Housekeeping - other safety procedures as instructed or required apply at all times
    7. It is important that all accidents, however minor, are promptly reported to the managing agent of the landlord.

    And so it goes on.

    In principle, I do not disagree with their intention.
    But due to the nature of our work,
    i) the landlord has no control over our workflow,
    ii) they did not provide any potential hazard, the floor we occupy was an empty shell when we moved in, we added walls, equipment, etc,
    iii) another person that is not a specialist /expert in what we do cannot decide if our work is unsafe e.g. testing for asbestos,
    iv) they do not disclose what the other safety procedure are.....

    What is your thought on this, it is quite a lengthy H&S agreement the landlord requested us to sign.
  • Steve H
    160
    Running scared after the owners of White Island were charged after WorkSafe's investigation of the eruption, it is a complete nonsense that they control the activities of their tenant directly, they are responsible for providing a property free of unidentified hazards (asbestos roof/ceiling cladding/flooring, dodgy wiring, earthquake proneness etc etc) and that's it.

    All they can insist on is that their tenant complies with all legal requirements and maintains the building in accordance with the terms of the lease they have signed. A copy of your companies H&S policy, and agreement that you will advise and consult with them PCBU to PCBU on any matter that affects them should be enough.
  • Sandra Nieuwoudt
    26
    That was my thoughts as well, this is ....... Some of the rules they did provide are not even related to what we do "analytical testing".
    Thank you for that, the confirmation helps that I know my thoughts and my response to them will be correct.
  • KeithH
    37
    Sandra
    The landlord is a PCBU and your business and their's have ovelapping duties - see Hesketh Henry
    Your landlord may be acting with caution given what @SteveH mentioned and dealing with perceived or potential risk is good. However, your landlord may not be aware of the 3 Cs.

    Point 7 appears to indicate they use a property manager - see the last point (no. 9) at Brookfields to get an understanding of who has primary responsibility.

    Since it's not a topic that has had a lot of discussion elsewhere, you may find engaging with the landlord beneficial before passing it to your solicitor (which I guess is what you would do anyway).

    Again ramblings
  • Sandra Nieuwoudt
    26
    Hi Keith
    I understand the overlapping dues, and you are right they may not understand who has primary responsibilities. My response to them would have been in those lines, the information you shared is very handy.
    What are the 3 Cs you refer to?
    3 = Compentence (info, train, supervise, instruct), Control (risk management), Co-operate (engage, consult) ?
    T
  • KeithH
    37
    @Sandra Nieuwoudt
    Consult, Coordinate, Cooperate
  • SafetylawyerNZ
    77
    Hi Sandra

    I see some landlords doing this and also wonder why, as they potentially expose themselves to risk (if they go to far) as it suggests they can influence or direct workers and hence have a duty under s36 of the Health and Safety at Work Act. That is bad for landlords, who should strive to limit their duty to s37 as a PCBU who manages or controls workplaces.

    It is prudent for the landlord to want to tell you about hazards arising from the building (even if you just received a shell before fitting it out), and for the landlord to want to consult about potential hazards in tenancies that may have a wider impact on other building users. Steve is correct in his summary of the sorts of issues a landlord can be expected to share. I agree with Keith too, as the s34 duty applies to both landlord and tenant so there is definitely a need to communicate when there is an overlapping duty.

    Cheers

    Grant
  • Aaron Marshall
    67
    There are some other bit in the agreement that I agree with, however. Items such as ensuring that accidents are promptly reported to the building owner. If they have multiple tenants in a building, the building owner is responsible for informing other tenants, hence the reporting requirement.
    They may also see a trend if multiple tenants are having incidents of a similar root cause that a single tenant may not.
  • Steve H
    160
    In Sandra's case, the supply of a bare building to set up for Analytical Testing, the Landlord's responsibly cannot extend to the equipment/processes that the tenant introduces and uses for the conduct of the tenant's business.

    There could be an overlap of responsibility where an independent contractor works on the building at the direction of the Landlord, and likewise there are multiple tenancies and shared facilities, for example such as a yard used by several tenants to load/unload trucks.

    But the suggestion that a tenant may not use it's own equipment without the Landlords authorization, is nothing short of ridiculous and suggests to me, that the Landlord (or his property manager) has done a cut and paste from their H&S policy and now seeks to retroactively impose it on Sandra's company.

    Being a rough and grumpy man with a beard, I'd have a two word response and the second word in the sentence would be "off"
  • Sandra Nieuwoudt
    26
    Thanks, Steve, I am with you on this one.

    If you are grumpy, then you should have heard me when I got the email. I don't mind their intention but do mind that them ticking a box and do safety policy for the sake of doing one.

    You all have a lovely day and stay safe.
  • Tony Walton
    88
    Hi Sandra, looking at case law in Australia it appears the question is 'who was agreed as being in the best position to manage the risks of the work' after reference to evidence of the pre-work Consult, Collaborate and Co-ordinate process.
  • Steve H
    160
    WorkSafe NZ's take:
    A business can have influence and control over health and safety matters through:

    • Control over work activity: a business in control of the work activity may be in the best position
      to control the health and safety risks.
    • Control of the workplace: a business who has control over the workplace, including plant and
      structures in the workplace, has some influence and control over health and safety matters relating
      to work carried out by another business.
    • Control over workers: a business has more influence and control over its own workers and
      contractors than those of another business.

    A business with more influence and control (and the greatest share of the responsibilities) will usually be in the best position to manage the associated risks.(the tenant surly)

    A business with less influence and control may fulfill their responsibilities by making arrangements with the business with more influence and control.(the Landlord?)

    On a day to day basis, with respect to a single tenanted building, the Landlord cannot do more than ask to be given a copy of the tenant's H&S system etc, and as for the tenant not being able to use their own equipment without the prior authorization of the Landlord, get a grip on reality
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