One of the most important questions we ask our clients is whether they own their premises or whether they are tenants. Both scenarios create liability exposure to the CEO and the company if there is no clear understanding of roles and responsibilities.
Section 37 states that all responsibility is upon the owner of the premises, and that all requirements and provisions of the OHS Act must be complied with at all times. Further to this, should any incident or accident occur, the owner will be deemed guilty, until proven innocent. The burden of proof is therefore solely placed on the defendant. That “proof” references a Health & Safety Management System
Section 37(2) however, allows certain responsibilities to be removed from the owner to either the tenant or a contractor working on site, but this may only be accomplished if both parties agree in writing what those roles and responsibilities will be in a mandatory agreement.
Owner vs Tenant
In the case of an owner / tenant situation, buildings, factories, office blocks and any form of premises where employment is offered, has legal requirements. Very often, these laws are not always found in the Act, and could even vary from province to province as directed by your local municipal bylaws, as well as defined by the Regulations depending upon the use of premises.
A simple example would be Fire Extinguishers and Fire Hose Reels. Regardless of whether you own the property or lease the property, as the tenant or owner, it is your responsibility to ensure that these Fire Extinguishers & Hose Reels are ready at all times. This is your legal responsibility under Section 8. Many tenants do not realize this. The usual answer is that the landlord must sort it out.
The tenant thinks the landlord must service the Fire Equipment as it was in place upon occupation. The landlord says the tenant must be responsible as they are the end users. So where does the responsibility lie?
In this case, as the relationship is tenant – landlord, the landlord hands the property over to the tenant, but instead of a 37(2) agreement, there will be a lease agreement or contract which should contain details like roles and responsibilities and defining who will be responsible for the legally required provisions in the OHS Act. In this case, the landlord might stipulate that they take no responsibility for the Fire Equipment. The tenant is then responsible, as agreed upon by signing the lease, that they will assume that responsibility as long as they are tenants.
If, however, the landlord remains responsible for the Fire Equipment, the landlord then has the responsibility to ensure the equipment is serviced. This will require a contractor.
The implications for the tenant, contractor and landlord exponentially increases depending on the activities and of course the complexity of the situation.
In the case of a shopping complex, with multiple tenants, the landlord will most probably have employees with offices on site. A Health & Safety Management System will need to be implemented for the complex but also, each tenant, will need to implement Health & Safety Management System.
Think of an Emergency Evacuation –
Who is in charge? Each tenant must have an emergency plan in place to ensure the safe evacuation of their employees, but that evacuation plan will be largely dependent on whether the landlord provides emergency doors, staircases and even fire fighting equipment, etc. Therefore, the landlord is responsible for certain aspects which must be in concert with its tenants’ Emergency Preparedness.
In the case where a building has a back-up generator due to loadshedding, that generator must be serviced and refueled. Usually, the landlord is responsible. This requires refueling procedures, risk assessments, competent contractors, etc. The examples are endless.
Ultimately, whether you own the building or premises, or whether you are a tenant or a contractor, Legal Liability applies, and compliance must be maintained. This simply means that you must ensure that you cover the following: Who, What, Where, Why and How, and if any of them is the responsibility of someone else, have it in black and white, and even then, make sure they comply with the OHS Act.
For more information contact Robert Niemand, Managing Director of LabourNet Eastern Cape on Regional Support: 087 292 5808 Webex: 087 756 7273 M: 082 824 7359 E: robertn@labournet.com www.labournet.com or visit LabourNet at 2 Alan Drive, Fairview, Nelson Mandela Bay