What impact will the new workplace health and safety regulations have on real estate agencies?: Jock Kreitals

National workplace health and safety laws, which have implications on the operation of real estate agencies, have commenced operation in all jurisdictions except Victoria and Western Australia.

REIA sought information from Safework Australia, the national agency responsible for developing work health and safety rules in Australia, on the impacts upon real estate agents.

The two main obligations relate to driving from site to site and open houses.

Safework Australia advises that estate agency principals have a duty to ensure employees do not drive from job to job in a fatigued state.

With regard to open houses and inspections, Safework Australia advises that under the new national law (NSW, Queensland,SA, Tasmania, ACT and the NT): Activities involved in opening a house are part of the business of a real estate agency.

A ‘workplace ’is any place where workers are carrying out work, which include sthe home of a client or a vehicle. This means that the primary duty o fcare applies to the business involved in these activities.

It does not, however, apply to individual workers (agents) in their capacity as workers .The primary duty of care applies to ‘persons conducting a business or undertaking’, which is the legal entity that operates the business or undertaking—which may be for example an individua l(in the case of a sole trader), corporation or government entity.

A real estate agency that engages employees and contractors—or just contractors—would owe the primary duty of care to all of these workers.

All workers (the agents) also have a duty of care and must:

• take reasonable care to protect their own health and safety

• not adversely affect the health and safety of others

• follow reasonable instructions on health and safety, so far as they are reasonably able, and

• co-operate with any reasonable policy or procedure of the business or undertaking relating to health or safety, for example a procedure requiring hazards or safety incidents to be reported.

Others at the workplace owe a similar duty of care.

The last point raises the question o fdoes an agent attract a duty to not put at risk other persons (usually possible purchasers/tenants) as a result of work carried out as part of the conduct of the business.For example, does showing someone around a house, who then hurts themselves through a slip and fall, attract liabilit to the agent?

The response provided by Safework Australia was: Yes, the primary duty of care that real estate agents owe to workers and to ‘others’ at the open house applies.

The duty applies so far as is reasonably practicable. Safe Work Australia has published guidance on the meaning of ‘reasonably practicable’. Things a real estate agency or the agent’s business may need to do include:

• allowing time to consult withthe owner(s) and check thecondition of the property

• if a particular access pointis unsafe—using alternative means to access the property, securing pets

• if something is potentially dangerous—for example an unstable structure, damaged asbestos sheeting or exposed wiring—consider alternatives to an ‘open house’ or (if possible) isolate the source of danger from the rest o fthe property, for example by securely locking off access, and

• using barricades, signs or other methods of communicating potentially unsafe things for example unsafe flooring or deck and instructions not to use these things.

Businesses should contact thei rlocal regulator for more advice in these circumstances.

The following websites mayhelp in providing guidance

Vic – https://www.worksafe.vic.gov.au/safety-and-prevention/your-industry/real-estate

WA – https://www.commerce.wa.gov.au/worksafe/Content/Industries/Property_and_business

NSW – https://www.workcover.nsw.gov.au/newlegislation2012/health-and-safetytopics/

Qld – https://www.deir.qld.gov.au/workplace/hazards/fatigue/shiftwork/

SA – https://www.safework.sa.gov.au/uploaded_files/info_cop_workinghours.pdf

Jock Kreitals is Manager Policy for the Real Estate Institute of Australia.