Manufacturing News

Landlord or tenant: who pays for on-site height safety?

THE OHS Act states that people who have management or control of a workplace must take every reasonable action and work proactively to ensure health and safety in the workplace. But who is the controller?

Legislation in each Australian state is generally clear that the controller of the workplace carries the legal obligation for safety. The controller of the premises is the party who engages and manages contractors and employees at a particular location.

According to WorkSafe Victoria, a person who manages or controls a workplace “…can include an employer, the building or site owner, and the property management or lessee of a building or site where there is a workplace”.

In NSW, Division one of the OHS Regulations 2001 outlines the general duties that the controller of premises must take to identify hazards, assess and eliminate or reduce risks.

Division 2, which deals directly with fall prevention, elaborates further on the controller’s direct responsibility in relation to working at heights.

OHS law author and Partner at Deacons law firm, Michael Tooma, says control of a workplace is an important but often complex concept in OHS law.

“You can have more than one controller. You can have a landlord being the controller of a workplace at the same time as a tenant is also in control of a workplace.

“They may be in control of different things and they may have different obligations and emphases but the obligations apply to both of them concurrently,” Tooma said.

Who is legally responsible?

In many cases, responsibility is only established after an incident or prosecution because just who carries the legal burden of making a building safe is not clear-cut.

Damages are often awarded on a pro-rata basis against the parties, depending on who had knowledge of what, and took steps to minimise risk.

When it comes to how landlords and tenants should apportion responsibility once facility managers identify a risk, Tooma says you’ve got to look at a broad definition of control.

“Delineate exactly who has control over what expressly in your lease and in your arrangements between a tenant and a landlord.

“By being very clear about who has control over what, you have a much better chance of having some clarity going forward as to what will happen but if you’re in doubt, take a broad view,” Tooma said.

When the same party is the tenant, landlord and controller of the workplace, the process is simple. But in the commercial world, it gets more complicated because the landlord, tenant, facility manager and contractor are all separate and independent entities whose financial obligations are governed by a web of agreements and contracts.

In these cases, the parties involved usually come to a compromise on financing the cost to reduce the risk. The proportions paid by the landlord, tenant, facility manager and controller will fluctuate and often comes down to their sensitivity to risk.

What if nobody will pay?

Sometimes negotiations reach a stalemate and landlords or tenants find themselves in the uncomfortable position of at least a shared legal liability for height safety without any plans to install the mandatory fall prevention measures.

I advise companies who are the “controller of the workplace” to take immediate action.

The controller’s best option is to put non-urgent service or maintenance on hold until funds are available, and implement risk control measures as part of a height safety plan.

If it is essential to continue maintaining the plant before the risk can be removed, then:

Prepare a specific, safe work method statement for the task in consultation with the contractor or employee;

Hire temporary equipment, such as perimeter guardrails or elevated work platforms;

Write an emergency rescue plan and have rescue equipment immediately available;

Directly supervise the work and have a second person available to execute the rescue;

Place the fire brigade and emergency services on notice.

Risk assessment

Conduct a working at height risk assessment that explains the risks to all the parties in plain English.

Rank the risks as high, medium or low so that everyone appreciates the severity of the hazard and recommend controls.

A well articulated report will share the information with everyone. Few people actually get on the roof and don’t appreciate the hazards.

The risk assessments need to follow a strict hierarchy of controls that is unique to fall prevention and which is legislated in all states.

Firstly, the contractor needs safe access, such as fixed ladders or staircases, to the work area.

The five steps in order are:

Elimination – Relocate plant and equipment to ground level, or conduct the task from the ground.

Passive fall prevention devices – The simplest of passive devices is a guardrail system.

Work positioning system – A harness connected to an anchor or static line system prevents the worker from falling.

Fall injury prevention systems – Subtly different in design and configuration to a work positioning system, fall injury prevention systems merely minimise the distance a person could fall.

Working from ladders or administrative controls – This is the least preferred option. If other controls are not practicable at all, the last resort includes controls such as work method statements, inductions and working from ladders.

For their own protection, controllers should budget for the works as well as any ongoing costs, regardless of who they believe should pay. As a side benefit of contributing towards the construction of the fall prevention measures, controllers can also be sure the most simple, cost-effective height safety solution is used.

* Carl Sachs is a director of Workplace Access & Safety 1300 552 984, plus he is on the committee for AS 1657 – 1992: Fixed platforms, walkways, stairways and ladders – Design, construction and installation. Email your height safety questions to Carl at

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