Duties and Liabilities Surrounding Workplace Safety and Maintenance
This work is a compilation and updating of two reports by Professor Kim Lovegrove, ‘The Maintenance of Essential Services,’ published in the Australian Building Surveyor October 2006 issue, written by Kim Lovegrove, and ‘Summary of Duties of Managers or Owners of Workplaces,’ written by Lovegrove & Lord, dated July 2009. This report has been compiled by Professor Lovegrove with assistance from Alexander Milne, Lovegrove Solicitors, 17th May, 2011.
Part 1: Occupational Health and Safety as an umbrella concept. Duties on Owners re. OH&S:
Complying with OH&S regulation and complying with duties to maintain Essential Safety Measures are part of the cost and responsibility of being a property owner. Property owners are given a large chunk of the responsibility to ensure workplaces comply with safety regulation. In addition to the regulations governing construction of buildings that are safe, these regulations combine to place responsibilities on owners to ensure that an existing building continues to be a safe workplace.
OH&S legislation is the primary source of duties on owners and occupiers, and dictates that owners and occupiers (as well as employers and employees) can be prosecuted for neglecting workplace safety.
Owners can be implicated as having duties under the following provisions of the Occupational Health and Safety Act 2004.
Duties Under the Occupational Health and Safety Act 2004:
Section 26 of the Occupational Health and Safety Act 2004 extends a duty to any person (including an owner) who has to any extent, the management or control of a workplace to ensure that the workplace and the means of entering and leaving the workplace are, so far as is reasonably practicable, safe and without risks to health. Contravening section 26 is an indictable offence with very high potential fines.
An owner would potentially be liable under this section for failure to provide a safe workplace in matters which he/she has control of. For example even if a property owner is deemed not to have control of the actual workplace, they could be liable if they fail to take all reasonably practicable steps ensure a safe means of entry and exit from the workplace, as this is in their control.
An owner must take all steps which are objectively ‘reasonably practicable.’ Some factors which will be relevant to what is reasonably practicable are:
- The degree of harm that would result If the hazard or risk occurred;
- What the person concerned knows, or ought to know, about the hazard or risk;
- The availability and suitability of ways to eliminate or reduce the hazard or risk;
- The cost of eliminating or reducing the hazard or risk.
Section 21 notes that maintaining a safe workplace includes providing adequate facilities, information, and training to the employees, as well as ensuring that the workplace environment and any equipment are safe and without risks to health,
Further duties include the section 32 Duty against Reckless Conduct Placing another Person at the Workplace in Danger of Serious Injury, and the section 73 Duty to Resolve Health or Safety Issues using Agreed Internal Procedures or those Specified by the Regulations:
Section 122(2) places a duty on an occupier not to refuse entry to an Inspector, conducting an inspection of a workplace to ensure compliance with the Act. Sections 125 and 93 enforce duties not to hinder or intentionally obstruct an inspection of a workplace, and not to conceal anything from an inspector, or intimidate an inspector. Breach of these sections can attract penalties
Inspectors also have the power to request a person to produce documents, provide their name and address, and to provide assistance to him/her, and failure to comply with such requests is a penalty offence.
Inspectors have the power to issue Directions and notices where he/she believes there is a contravention of the legislation, or where he/she needs to take action because of an immediate risk to health and safety. Failure to comply with an inspector’s direction or notice is an indictable offence, with heavy penalties possible for an individual or body corporate.
Additional Responsibility for Self-Employed Manager/Owners:
A self-employed owner/manager of a workplace has additional duties. Under section 24 they have a duty to ensure that persons are not exposed to risk to their health and safety arising from the conduct of the undertaking of the self-employed person. Contravention in this case is an indictable offence.
An employer or self-employed person also has a duty to notify the authority when becoming aware of a serious incident in the workplace, and a duty to provide further written record of the incident within 48 hours according to section 38 of the Act. Under section 39 there is a further duty not to disturb the scene of the incident until the Inspector gives clearance to do so.
The Implications of Non-Compliance with the Occupational Health and Safety Act:
Contraventions of this Act can have very serious consequences for individuals and for corporations. Fines for breaches of even the more minor sections of the Act can be in the range of $7,000 for individuals or $35,000 for a body corporate.
More serious breaches including breaches of the section 26 and section 24 duties, failures to comply with directions or notices given by Inspectors are indictable offences, and can carry imprisonment terms of up to five years, as well as fines in the range of $60,000 to $200,000 for individuals, and over $1 million for a body corporate. The risks of not complying with the Act are significant, so compliance will benefit not only the health and safety of people in the workplace, but also the bottom line
Part 2: Maintenance Duties Placed on Owners
Part 12 of The Building Regulations 2006 deals with maintenance of Buildings and Places of Public Entertainment, and imposes obligations on owners to meet certain duties. These regulations work “in synch” and in some respects philosophically duplicate OH&S legislation requirements.
In this area the Building Commission plays a role. The Commission oversees the Building Regulations, and so plays a role in developing and enforcing compliance with maintenance requirements of Part 12. The Building Commission is also a good source of information regarding changes to Building Regulations. Particularly relevant are the Building Commission’s Practice Notes regarding maintenance of ESMs.
Understanding the Buildings which Part 12 Applies to:
Part 12, subdivision 1 applies to buildings constructed after 1 July 1994, which are classified as one of the following:
- A class 1b, 2, 3,5,6,7,8 or 9 building
- A class 4 component of a building i.e. a care takers residence
- Places of public entertainment
Part 12, subdivision 2 applies to buildings constructed pre-1 July 1994, which are classified as a class 1b, 2, 3,5,6,7,8 or 9 building.
Part 12, subdivision 3 applies to Class 1b, 2, 3, 5, 6, 7, 8 or 9 buildings and to places of public entertainment.
These classes of buildings are defined in the Building Code of Australia (BCA), and are widely inclusive, meaning a large number of buildings and thus a large number of building owners are covered by the Part 12 maintenance obligations.
The classes are defined in the BCA as follows:
- Class 1b. A class 1b encompasses boarding houses, guest houses, hostels or the like…. in which not more than 2 persons would be resident and where such buildings are not located above or below another building save for a garage
- Class 2 buildings are those that contain 2 or more sole occupancy permits each being a separate dwelling
- Class 3 connotes residential buildings other than class 1`s or 2`s which are for common places of long term or transient living for a number of unrelated persons including; i.e. hotels, guest houses, boarding houses, back packer accommodation where there are by implication more than 2 occupants. Residential parts of hotel or motels, and residential parts of schools, accommodation for the aged, children or people with disabilities and the like are also captured.
- Class 5 captures office buildings for professional or commercial purposes (excluding classes 6,7, 8 or 9)
- A class 6 is a shop or other building used for the sale of goods by retail or the supply of services to the public
- A class 7a is a car park
- A class 7b is for storage or the display of goods or produce, or for the sale of goods by wholesale
- A class 8 is a laboratory or a building in which the processing, assembling, altering, packing and the like is carried
out for trade sale or gain.
- A class 9a is a health care building including a laboratory
- A class 9b is an assembly including a trade work shop laboratory or the like in a secondary school
- A class 9c is an aged care building
Essential Safety Measures:
The Building Commission Practice Notes 2007 -23 define an ESM as being “This definition of essential safety measure is self explanatory and encompasses the industry practice of referring to all safety measures, essential services, safety fittings, and equipment under the one definition of essential safety measures” (page 1 of 15).
Duties and Liabilities for Owners of Buildings Caught by Subdivision 1:
Part 12 is focused on the maintenance of ‘Essential Safety Measures’ (ESMs). For the purpose of subdivision 1, an ESM is defined as an item under the Act that has to be provided to a building or a place of public entertainment (PPE). The ESM pertains to:
- An item in tables 11.1 to 11.11 of BCA volume 1
- An item listed in cl 11.2 BCA volume 1
- Any other item required by the Act for the safety of persons in the event of fire where there has been a designation by the RBS as an essential safety measure.
- Any other ESM within the meaning of Div 1, Part 12 of the Building (interim) Regulations 2005
Where an Occupancy Permit has been issued in respect of a particular building, according to section 1203 of the Building Regulations 2006, the permit must include a condition stating all essential safety measures pertaining to that building. With regard to each essential safety measure in this list, the relevant building surveyor (RBS) must specify the level of performance that he/she determines is necessary to enable the essential safety measure to fulfill its objective. The RBS has to correlate the performance thresholds with the relevant building regulations that pertain to that ESM. The RBS also has to specify the type and frequency of maintenance required.
Section 1204 deals with the situation where an occupancy permit is not required but an emergency order or building order has been served. The RBS must similarly make a determination, and provide to the owner in writing, the level of performance required, and the frequency and type of maintenance required for the ESM to achieve its intended purpose.
So we end up with determinations made by a RBS regarding maintenance requirements, and the burden is on building owners to comply with these determinations according to section 1205, Failure to comply is a penalty offence.
Owners can help facilitate their compliance by engaging a Municipal Building Surveyor or a Private Building Surveyor to create a consolidated list of EMS`s and the maintenance regime that applies to those measures according to Section 1206.
According to Section 1207, these maintenance schedules and maintenance determinations must be made available for the MBS or the chief officer to inspect on 24 hours notice. Failure of this regulation can also lead to financial penalties.
An owner also has a duty to prepare an annual report under section 1208, which must meet the content requirements from section 1209. They must be in standard form and must include an undertaking by the owner or owner’s agent as to maintenance obligations being fulfilled. These annual reports must be also be available for inspection by an MBS or a chief officer at 24 hours notice, lest the owner may incur a penalty under Section 1211.
Subdivision 2 Duties and Liabilities for Owners of Buildings of applicable class built before 1 July 1994:
For buildings of an applicable class under Part 12 which were built before 1 July 1994, an ESM is defined by Section 1213 as ‘any measure required for the safety of persons using a building or place of public entertainment (PPE).’
The owner or the agent of a building or PPE has to ensure that an ESM report is prepared annually before the 13th of June each year, and the report must be in accordance with regulation 1215. Failure to do so attracts a penalty under section 1214.
According to Section 1215, the report must:
- Be in the prescribed form
- Be signed by the owner or the agent
- Include any inspection report made under section 227 of the building Act regarding any ESM
- Include a statement that the owner has taken reasonable steps to ensure that the ESM is fit for purpose
- State that the ESM is both operational and maintained and achieving the requisite performance thresholds
- State that since the last ESM report there have been no “penetrations required for fire resisting construction, smoke curtains and the like in the building … other than those for which a building permit has been issued” (section 1215 of the regs.)
- State that no changes have been generated since the last ESM report that would impact upon fire hazard qualities to be in the prescribed form.
This annual ESM report as well as records of any maintenance checks and service done in following ESMs must be made available for the inspection of an MBS or the chief officer upon the receipt of 24 hours notice (penalty offence.).
The owner of a building has a duty under Section 1217 to ensure that all ESM`s are maintained in a fashion that ensures that they are fit for purpose and fully operational. Furthermore the ESM is not to be removed save for maintenance purposes.
Duties and Liabilities Regarding Maintenance of Exits for Occupiers of Buildings Caught by Schedule 3:
Subdivision 3 requires that all exits and paths of travel to buildings and PPEs are maintained sufficiently by occupiers in respect of to buildings of class 1b, 2, 3, 5, 7, 8 and 9. Penalties apply for occupiers who breach this subdivision.
Further Clarification of Duties on owners from The Building Commission’s Practice Notes:
The practice notes state that ‘the level of maintenance expected by inspecting authorities should not be greater than that required at the time the equipment, fitting or essential safety measure was installed.’ (page 10 of 15).
Enforcement Powers and Offence Provisions:
As noted, a failure by an owner of a duty implied on him by Part 12 can lead to enforcement action and penalties. The implications of a breach
Note 12 of the Practice notes provides that the Commissioner, an MBS or the chief officer can issue on the spot notices in circumstances where they harbour a suspicion that the ESM`s are not being maintained in accordance with the Act.
With regards to subdivision 1 the Notes provide that the chief officer or an MBS can carry out inspections regarding ESM`s jointly or separately. The failure to maintain an ESM listed in an occupancy permit would be a breach of that occupancy permit under section 40 of the Building Act, and could incur a fine of around $15,000 for an individual or around $70,000 for a body corporate.
Failure to complete the required documentation under Part 12, and failures to make documentation available for inspection can incur fines, albeit less harsh ones of maximum 10 penalty units. Failure to comply with maintenance responsibilities under subdivision 1, 2 or 3 also attracts this penalty.
Owner Responsibilities and Agency:
The Practice Notes and the Regulations provide that it is the property owner who is the primary custodian of the responsibility for ESM compliance. In sum, owners have to ensure that ESM’s are maintained, and records of inspections, maintenance and repairs are kept. They also have to ensure that the annual report on the anniversary date is prepared, completed and signed off.
Owners can to an extent delegate their responsibilities to agents (eg. Property managers) who are paid for tasks including ensuring regulatory compliance. Although the owner is ultimately responsible, if the agent is tardy or neglectful in the assumption of the ESM compliance responsibility on behalf of the owner, then the agent will be called to account to his client.
Of course, as noted in Item 16 of the Practice Notes (page 11 of 15), ‘In this case the law of agency applies, and it is prudent to ensure that the correct written authority is provided by the owner, including any limitations on that authority.’
Compliance with Part 12 and the Benefits of Compliance:
A well-maintained workplace run in compliance with the law serves to save both a human and financial costs.
It is advisable for owners or managers to prepare and have executed any agency instruments that are required for the carrying out of ESM reports and tasks. Additionally it is advisable to engage qualified persons to prepare the annual ESM report, and ensure that a regime is introduced for the carrying out of annual inspections and the generation of these annual reports.
Whereas in the past the emphasis on building safety was of a more construction persuasion or to put it another way “pre occupancy permit”, the combination of responsibilities under the Occupational Health and Safety Act, and Part 12 of the Building Regulations makes the class of owners very visible. They are visible in the sense that they are vested with very clear statutory accountabilities, and are at risk of penalties and even indictable offences for failure of duties. It thus follows that any shying away from the discharge of those responsibilities will on the one part attract penalties and on the other part will attract civil liability, particularly where there is public liability.
Sensible businesses will ensure compliance with the law to avoid incurring the human and financial cost of non-compliance.