Most body corporate committees know this in theory. Far fewer have acted on it. The common areas of your building become a workplace under HSWA the moment anyone is engaged to do work there, whether that is a building manager, a cleaner, a gardener, or a plumber fixing a pipe. Once that happens, the body corporate is the PCBU, committee members are Officers, and the duty extends to workers, residents, tenants, and visitors.
This guide explains what those duties actually look like in practice and what happens if you do not meet them.
Why Body Corporates Are PCBUs
Under HSWA 2015, a PCBU is any person who conducts a business or undertaking. A body corporate conducts a business: it manages common property, engages contractors, collects levies, and makes decisions that affect the safety of people in and around the building. That is enough to make it a PCBU.
The duty is not limited to situations where the body corporate directly employs people. Engaging a contractor to clean the lobby, maintain the lift, or mow the gardens triggers the duty. The body corporate is the PCBU with primary responsibility for ensuring the health and safety of those workers and anyone else who could be affected by the work.
Section 36 of HSWA sets out the primary duty of care. Section 37 extends the duty specifically to PCBUs that manage or control a workplace, which covers the common areas of any body corporate property.
Committee Members Are Officers
Under section 18 of HSWA, an Officer is a person who exercises significant influence over the management of a PCBU. In a body corporate, that typically includes every committee member and the chairperson.
Section 44 requires Officers to exercise due diligence. In practice, that means:
| Due diligence duty | What it means for committee members |
|---|---|
| Acquire and maintain knowledge | Understand the health and safety risks relevant to your property, not just delegate to the property manager and forget |
| Understand the operations and risks | Know what work is carried out on the property, who does it, and what hazards are involved |
| Ensure adequate resources | Budget for health and safety, including audits, contractor management, and fixing identified hazards |
| Ensure processes for incidents | Have a system for reporting and responding to incidents and near misses in common areas |
| Verify compliance | Actively check that controls are in place and working, not just assume they are |
Are volunteer committee members personally liable?
This is the question every committee member asks. Under section 17 of HSWA, a volunteer who is an Officer of a PCBU has a due diligence duty but cannot be held personally liable for failing to meet it. This protects unpaid committee members from personal prosecution.
However, there is a catch. If a committee member receives an honorarium or any form of payment beyond reimbursement of expenses, they may not meet the definition of a volunteer under the Act. In that case, the personal liability protection may not apply. The body corporate itself can always be prosecuted, regardless of whether its committee members are volunteers.
When Do Common Areas Become a Workplace?
Common areas become a workplace under HSWA the moment anyone is engaged to carry out work there. This includes:
- A building manager or caretaker (employed or contracted)
- A cleaning company servicing lobbies, corridors, or car parks
- A gardener or landscaper maintaining common grounds
- A lift maintenance technician
- A plumber, electrician, or any tradesperson working in shared areas
- A painter, roofer, or building maintenance contractor
Once the area is a workplace, the body corporate has a duty to ensure the workplace itself, and the means of entering and leaving it, are without risks to health and safety. That duty extends beyond the workers to residents, tenants, visitors, and anyone else who could be affected.
What Body Corporates Need to Manage
The specific risks depend on the property, but most body corporates need to address some combination of the following.
- Slips, trips, and falls: wet lobby floors, uneven paving, poorly lit stairwells, missing handrails, icy walkways
- Fire safety: alarms, extinguishers, evacuation routes, assembly points, building warrant of fitness compliance
- Lifts and escalators: maintenance schedules, emergency procedures, compliance certificates
- Car parks and driveways: traffic management, pedestrian separation, lighting, signage
- Pools, gyms, and shared amenities: supervision, chemical storage, equipment maintenance
- Contractor management: who is working on the property, are they inducted, do they have their own health and safety plans
- Hazardous substances: pool chemicals, cleaning products, pest control substances stored on common property
- Asbestos: buildings constructed before 2000 may contain asbestos-containing materials. If present, an asbestos management plan is required
- Electrical safety: switchboards, common area wiring, RCD protection
Penalties for Non-Compliance
HSWA introduced three tiers of offence with significant penalties. These apply to body corporates the same as any other PCBU.
| Offence | Maximum fine (body corporate) | Maximum fine (individual Officer) |
|---|---|---|
| Reckless conduct (s 47) | $3,000,000 | $300,000 or 5 years' imprisonment |
| Failure exposing to serious risk (s 48) | $1,500,000 | $150,000 |
| Failure to comply (s 49) | $500,000 | $50,000 |
Imprisonment only applies to the most serious category: reckless conduct that exposes someone to a risk of death or serious harm. The lower tiers carry financial penalties only. The volunteer Officer protection means unpaid committee members cannot be personally prosecuted, but the body corporate entity can be fined at the full PCBU rate regardless.
What About Property Managers?
Body corporate managers and property managers also have PCBU duties where they have significant influence and control over who works on the property and how. If the property manager selects contractors, manages site access, or directs how work is carried out, they have overlapping duties with the body corporate.
This means both the body corporate and the property manager have obligations. An independent audit helps clarify who is responsible for what and ensures neither party is assuming the other has it covered.
Where to Start
If your body corporate has not had its health and safety obligations independently reviewed, the practical starting point is an audit. An audit covers both the physical condition of your common areas and the documentation behind your health and safety management: policies, hazard registers, contractor records, emergency plans, and compliance schedules.
The output is a written report with a prioritised action plan that your committee can act on or present at the next AGM. It gives every committee member documented evidence that the body corporate is actively managing its duties, not ignoring them.
Frequently Asked Questions
Sources
- Health and Safety at Work Act 2015, section 36: primary duty of care for PCBUs. legislation.govt.nz
- Health and Safety at Work Act 2015, section 37: duty of PCBU who manages or controls a workplace. legislation.govt.nz
- Health and Safety at Work Act 2015, section 44: due diligence duty for Officers. legislation.govt.nz
- Health and Safety at Work Act 2015, section 17: definition of volunteer and volunteer worker. legislation.govt.nz
- Brookfields Lawyers, bodies corporate and HSWA 2015: legal analysis of body corporate PCBU duties and committee member obligations. brookfields.co.nz