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AN41-1-MGT-Legal-Safety There has been a lot of scare mongering around about the changes to the workplace health and safety legislation that commenced in early 2012.

Comments about massive compensation claims, unduly onerous obligations and increased liability issues have caused confusion and concern. This article seeks to explain in simple terms the true effect and implications of the Work Health and Safety Act 2011 that commenced on 1 January 2012, one of the main purposes of which was to ensure consistency in workplace health and safety laws across Australia.

Duties under the act - the act will impact on resident managers in two main ways:

as a person conducting a business or undertaking (PCBU); and

as a worker.

A person is a PCBU if the a person conducts a business or undertaking either alone or with others. Additionally, it is irrelevant if the business or undertaking is conducted for profit or gain.

A person is a worker if they are a contractor or subcontractor for a PCBU. So in this respect resident managers are workers of the body corporate, if the body corporate is a PCBU.

As a PCBU your primary duties under section 19 of the act are as follows:

(1) to ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person while the workers are at work in the business or undertaking;

(c) other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(2) to ensure, so far as is reasonably practicable, the provision and maintenance of a safe work environment. This includes, among other things, safe systems of work, adequate facilities for the welfare at work of workers and the provision of training instruction and supervision.

(3) to ensure that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.
As a worker your primary duties under section 28 of the act are as follows:

(1) take reasonable care for your own health and safety and that your acts or omissions do not adversely affect the health and safety of other persons; and

(2) comply, so far as the worker is reasonably able, with any reasonable instruction given by the PCBU and co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

Who is a PCBU - body corporate or manager?

A body corporate may be considered a PCBU as it undertakes activities which are necessary to carry out their functions under the Body Corporate and Community Management Act. However, whether or not a body corporate is a PCBU will depend on the individual circumstances of the scheme.

The regulations provide an exemption for bodies corporate where the body corporate is responsible for common areas that are only used for residential purposes. In this circumstance the body corporate are not regarded as a PCBU. Unfortunately determining if the body corporate falls into this exemption is not a straightforward exercise as the substantive terms are not defined in the act or the regulations.

We consider that most bodies corporate will be regarded as a PCBU and therefore both the body corporate and the resident manager will have to comply with the duties under the act.
For example, both the body corporate and the resident manager should be undertaking the following (among other things) in order to comply with the act:

(1) Developing and implementing a workplace health and safety plan;

(2) Annual reviews of the plan;

(3) Forwarding a copy of the plan to the body corporate/manager each year once it has been reviewed; and

(4) Implementing site specific risk management strategies.

What to do now - You must ensure that you are complying with your duties under the act and severe penalties apply if you do not. If an individual who is a PCBU engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness the maximum penalty is $600,000 or five years jail or both.

You should now be taking the following steps to ensure you are compliant:

Review your management rights agreements to determine what your responsibilities are and what the body corporate is responsible for;
Consider if any amendments are necessary to your agreements;

Work with the body corporate to develop its workplace health and safety plan – there are a number of expert consultants who can be engaged by the body corporate to do this; and
Develop and implement your own workplace health and safety plan – to a large extent it will be based on the body corporate's plan.

There is no transitional or grace period under the act, so you should be complying with the duties now.

John Mahoney
Mahoney Lawyers