Providing a Safe Work Environment!
Building Owners and Building Occupiers responsibilities explained...
More and more often, I have been hearing stories about the confusion by building owners and their agents in regard to the maintenance of essential safety measures. Worse, I have also heard about some practices of 'audit & compliance companies' who are perpetuating the confusion either out of a lack of understanding or for financial gain.
First of all, there are six individuals or groups of people that could be considered in this discussion;
- The Building Owner (landlord)
- The Building Owners Agent
- The Employer (occupier)
- The Employer's employees
- The Municipal Building Surveyor
- The Public
In the event of a disaster, the buck usually stops with the Building Owner or the Employer!
For the purpose of this article I am focusing on the obligations of these two groups of people!
The Building Owner (landlord)
The Building Owner has obligations for the installation, alteration and maintenance of existing essential safety measures in accordance with the following;
- Building Act 1993
- Building Regulations 2006
- Building Code of Australia
- Australian Standards and other codes
There are also specific retrospective requirements for Fire Safety in Certain Existing Residential Buildings1
The Employer (occupier)
The Employer who occupies a building, whether as an owner or tenant, has separate (but similar) obligations to provide a safe work environment, including the means of access and egress, in accordance with, but not limited to the following;
- Occupational Health and Safety Act 2004
- Occupational Health and Safety Regulations 2007
- Building Regulations 2006 - Subdivision 3 r1218 (Maintenance of exits by occupiers)
- Disability Discrimination Act 1992
- Common Law Duties
Examples of safety equipment provided by an Employer under Occupational Health and Safety include: evacuation procedures, fire orders, fire blankets, dust explosion systems, deluge systems e.g. fuel tanks, gas suppression systems e.g. data facilities. These are examples of safety equipment provided due to the nature of hazards associated with the occupation of a workplace, not due to requirements of the Building Regulations.
Common law duties may also arise due to the unique nature of the occupants or the service provided to them e.g. children, people with disabilities. The Disability Discrimination legislation may require additional egress facilities for people with disabilities.
Where the confusion begins...
The obligations (particularly of the building owner) gets confused because people who conduct building audits (often on the pretence of creating an annual essential safety measures report) mix the obligations of the the building owner & the occupier into a single report!
Often these reports include recommendations to install, modify or extend the essential safety measures due to what the auditor interprets should have been required at the time of construction or even worse, is required in the current Building Regulations.
By way of illustration I have constructed a typical example of a building owner - tenant relationship;
- A building owner leases a building to a tenant
- The specific use of all or parts of the building is not specifically known to the building owner
- The tenant (due to his OH&S obligations) provides additional safety equipment necessary to provide a safe workplace
In this instance, there is now doubt and confusion by the building owner (or agent) in regard to which safety measures form part of the approved design (i.e. listed on the occupancy permit, required by a approval under a previous version of the Building Regulations etc.) and which safety measures equipment are the occupier?s responsibility.
In very simple terms...
It might be best here if I distil this information down to two simple facts, something building owners (and their agents) can consider;
- Building owners have the obligation to ensure the maintenance of the existing essential safety measures required in the building (the definition of what to maintain can vary depending if the building is a subdivision 12 or subdivision 23) by the approved design.
- Occupiers also have an obligation to maintain exits and paths of travel in respect to subdivision 34 irrespective of the age of the building. This obligation equally applies to the owner (though subdivision 1 and or subdivision 2) and occupier (through subdivision 3).5
- Occupiers have the obligation to provide a safe work environment
How do we clear up the confusion?
Here is a list of three things building owners can do to constrain the scope of work and comply with obligations of Part 12 of the Building Regulations and maintain the required essential safety measures for the buildings they own.
- Clearly define the essential safety measures required for the building by the approved design e.g. the essential safety measures that are identified as required or in the building when inspected, not ?should? have been there or in the current Building Regulations.
- When engaging a person to prepare an annual essential safety measures report, ensure the scope of work is clear, as it relates to Part 12, make sure the auditor does not mix in other duties under OH&S or the Common Law.
- Engage a competent trustworthy contractor to maintain the essential safety measures in accordance with Part 12 for the building
This is a complicated subject and this article is only 'scratching the surface' on the matters raised, I highly recommend that building owners seek professional advice from an experienced and competent building surveyor or solicitor on the matters raised.
If you need to discuss the maintenance of your essential safety measures, feel free to contact our sales team on 1300 30 88 22 today!
Finally, I would like to thank David Swinson the Principal Building Surveyor of Building Design Compliance Pty Ltd for his ongoing support and industry leadership. David provided invaluable peer review of this article and continues to demonstrate his competence in this area.
- 1. Building Regulations 2006 - r706 - r710
- 2. Building Regulations 2006 - r1201
- 3. Building Regulations 2006 - r1212
- 4. Building Regulations 2006 - r1218
- 5. Advice in regard to subdivision 3 supplied provided by David Kearsley, Senior Technical Advisor, Technical and Research Services, Building Commission