The Health and Safety at Work Act 2015 (Act) has now been in force for almost six months but there is still some ambiguity as to how to meet the various obligations under the Act. This is understandable as the Act has introduced several new concepts, however the general actions required to meet health and safety obligations may not have changed as much as agents may think. This article will review some of the key concepts under the Act and then look at practical advice in relation to health and safety issues at open homes.
The Act applies to all business activities and real estate agencies are no exception. Since agents are in control of the property when viewings and open homes are conducted they are considered ‘Persons in Charge of a Business or Undertaking’ (PCBU) and owe duties under the Act. For a property viewing an agent’s primary responsibility is to ensure the viewing is conducted safely and all foreseeable hazards to people viewing the property are minimised. The Act requires an agent to take all reasonably practicable steps to mitigate or minimise risks to health and safety.
What does reasonably practicable mean?
For the purposes of managing risk, reasonably practicable is a balance between what is possible (the highest level of protection) and what is achievable (reasonable in the circumstances). Agents should therefore consider what is reasonably able to be done in relation to ensuring the health and safety of themselves and others, taking into account and weighing up all factors including:
the likelihood of the hazard or risk concerned occurring;
the degree of harm that might result from the hazard or risk;
what the agent knows, or should reasonably know, about the hazard or risk;
ways of eliminating or minimising that risk; and
the availability and suitability of ways to eliminate risk.
It is crucial to complete the assessment of risk for each property. Only after assessing the extent of the risk, and the available ways of eliminating or minimising the risk, can an agent properly discharge their duty. The next step is to then put in place measures to prevent or minimise those health and safety risks identified.
What do reasonably practicable steps look like?
An agent’s responsibility under the Act is limited to what they can actually influence and control. Therefore, practicable steps will not requirean agent to fix the damage to a loose or broken decking board, however reasonably practicable steps could include:
suggesting the owner fixes the decking board prior to the viewing;
blocking access to the area during the viewing; or
notifying people at the viewing of the risk with a hazard sign.
Which actions (or combined actions) are reasonably practicable will depend on the likelihood and degree of harm factors mentioned above.
Reasonably practicable steps will always be determined by the property and the particular risks associated with that property. As a general rule, the first step should always be completing a health and safety assessment with the owner and documenting this assessment. A standard form assessment included with the listing agreement is a good way to manage this process and standard forms are available from industry bodies such as REINZ. A follow up onsite assessment should also be conducted where possible.
For some properties there may be no particular hazards or risks which need to be acted on by the agent. For many other properties the risk of harm will be fairly minor and a sign listing particular hazards at the entrance point may be enough. More significant risk factors at a property may result in a different approach. For example, if a house is under construction then adequate safety gear and individual viewings may be necessary. An agent will also need to consult with the builder regarding particular on-site risks. Another example is unfinished renovation work in a room or parts of a house. In this situation an agent should consider limiting access to the renovation area – particularly where there are obvious hazards such loose wires or unfinished flooring.
REINZ has suggested that agents make viewers sign a hazard acknowledgment form prior to entering a property. The purpose of getting people to do this is to prove that risks were notified. While this may be a prudent step for properties where there are significant risks, in most cases it should be enough to document the steps you have taken (i.e. writing steps taken on your property file and taking pictures of signs before an open home begins). We note that it is equally important for agent to record and notify any health and safety incidents that occurring during an open home.
Penalties and advice
The liabilities and penalties on agents under the Act is significant because they are often self-employed. At the top of a three-tier penalty system, agents who recklessly expose individuals to serious risk of injury, illness or death may be liable for 5 years imprisonment and a fine up to $600,000. At the other end of the scale, simply failing to comply with a duty could result in a fine up to $100,000 for individuals.
There is no ability to contract out of the Act, therefore focusing on health and safety at every property viewing is important. Agents are busy people so it is essential to establish processes and checklists to ensure health and safety is not neglected. While the majority of risk assessment and mitigation steps will be common sense, if you are in doubt or have concerns then you should consult a health and safety professional or the team at Cavell Leitch for further advice.
Material provided in this document is intended for general informational purposes only. Readers are responsible for making their own assessments of workplace hazards and for adapting information found in this document to their specific circumstances.
Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.