We have been answering an increasing number of questions from building owners, employers and employees about building safety.  How do they know if their building is safe?  What standard does it need to reach?  Will they be criminally liable under the Health and Safety in Employment Act (HSE Act)?  What do they do when they don't own the building and don't have the ultimate say? 

Core legal obligation

Under the HSE Act, employers must take all practicable steps to prevent buildings they own or occupy from causing harm (e.g. due to internal hazards or because of structural collapse).  While there is not a duty to make buildings absolutely safe, a high standard applies.  Risks must be identified, and steps taken to eliminate, isolate or minimise those risks. 

Earthquake prone buildings

All employers should know whether their workplace is in an "earthquake prone building" (EPB).  An EPB is defined as a building that would be likely to collapse in a moderate earthquake, causing injury or death to persons or damage to any other building. 

Councils are going through a process of assessing the buildings in their regions to determine which buildings are earthquake prone, and what time the owners will have to bring them up to standard.  In most cases, the minimum standard is 34% of the New Zealand seismic loading standard.  Following the release of the report by the Department of Building and Housing into the structural performance of buildings in Canterbury, we consider it likely that this minimum standard will be increased.  Some Councils have already adopted a higher standard (e.g. Palmerston North has 67%).  Timeframes for strengthening an EPB mostly range up to 20 years, depending on the level of risk and the building's use.

If the building you are in has not yet been assessed, we strongly recommend that steps be taken to have the assessment carried out without further delay - especially if you have specific concerns about the building's safety.  Primarily this responsibility rests with building owners, but employers who lease buildings should weigh up their options if the building owner is not taking steps. 

If your workplace is in an EPB, you should consider measures to reduce its use while it is strengthened, and undertake other work in the meantime to improve safety (e.g. improve access to exits).  Whether you should vacate the building will depend on the circumstances, including the age and style of the building, its location, and the costs and other consequences of moving.  Many building owners and employers have taken this step in Canterbury where there is a known and continuing risk of earthquakes.  In less earthquake prone areas the need may not be as pressing, unless a Council requires it or you are advised that the building poses a serious or imminent danger.  Careful consideration as to what is appropriate will be required in each instance.

If you do not own the building, you should ensure that the building owner is doing everything it is required to in terms of strengthening the building, and that you are kept informed.  If that is not happening, you may have options under your lease (e.g. enforcement of any compliance with laws clause).

Is the minimum standard enough?

While compliance with the standards and timeframes specified by Councils might be sufficient to meet the HSE Act's requirements and avoid criminal liability, that will not always be the case.  The HSE Act is not about minimum standards.  Building owners and employers need to consider in their specific circumstances whether shorter timeframes and higher standards can practicably be achieved.  Many building owners and employers will of course want to go above and beyond to improve safety and give greater surety to the occupants, employees and visitors. 

Further, once the Royal Commission issues its findings on the failure of buildings in Canterbury, it is likely that more rigorous action will need to be taken by building owners and employers to meet their statutory obligations.  Working to a higher standard now should help "future proof" against such changes.

Other steps

As Christchurch has shown, even if a building is not officially "earthquake prone" it can still pose a significant hazard and cause considerable harm in an earthquake.  All employers, whether in EPBs or not, should query whether the building's safety standard ought to be lifted, or whether a move to a safer building is viable and desirable.  Structural engineering assessments may also be necessary after each major seismic event (this is standard practice currently in Canterbury). 

You should also carry out regular inspections for internal hazards, such as unsecured filing cabinets and book shelves, and take remedial action as appropriate.  Effective emergency procedures should be in place, emergency supplies should be available, and employees should be trained in what to do in an earthquake or other emergency. 

As with all health and safety measures, you should document the steps taken.  Once you have a plan, monitor it on an ongoing basis and update it as necessary.

No "one answer"

There is no one answer or catch-all template for health and safety, as every workplace is different.  It also needs to be done well – "box-ticking" will not keep your employees safe.

Buddle Findlay has lawyers in Auckland, Wellington and Christchurch who can provide you with specialised and practical advice, not only on health and safety issues, but on the wider issues that arise out of those – from employment to leasehold to insurance issues.  Please call one of our team if you'd like our assistance - Peter Chemis, Hamish Kynaston, Kerry Smith, Sherridan Cook, Alastair Sherriff, Susan Rowe, Andrea Pazin, Joss Opie, Jackie Behrnes or Nicola Ridder.