NSW WH & S Rules Clarified for Strata Schemes
Owners’ corporations in NSW responsible for common areas used only for residential purposes are excluded from the definition of a person conducting a business or undertaking (PCBU – the new term that includes employers) under the Work Health and Safety Regulation 2011, unless the strata title body corporate employs a worker.
WorkCover NSW has issued a statement clarifying the legislation regarding bodies corporate.
Under the legislation, a PCBU has the primary duty to ensure, so far as is reasonably practicable, the health and safety of workers who are engaged to carry out work for the business or undertaking. Officers of PCBUs must exercise due diligence to ensure the PCBU complies with its obligations. Officers who are volunteers must exercise due diligence, but cannot be prosecuted for a failure to comply with this duty.
Under the previous Occupational Health and Safety Regulation 2001, the common areas of strata units used for residential purposes were exempt from the provisions, which refer to the risk management obligations of controllers of premises. This exemption included the common areas of mixed residential and commercial schemes, which were used only for residential purposes. The common areas, which were used by commercial unit holders were not exempt.
By excluding strata title body corporate entities from the definition of PCBUs for the common areas used only for residential purposes, the work health and safety legislation continues the exemption in the OHS regulation.
It is important for members of strata title bodies corporate to be aware of their obligations where the body corporate operates commercial premises or directly employs workers. In such situations, the body corporate is a ‘person conducting a business or undertaking’ and has a primary duty to ensure the health and safety of workers they engage, direct or influence.
If the body corporate knew about serious health or safety problems in a common property area used for commercial purposes but did nothing about it, they would be in breach of their obligations under the work health and safety laws just as they would have been in breach of their obligations under the previous Occupational Health and Safety Act 2000. Workers should be entitled to the same health and safety protections when working in a common property area used for commercial purposes as they would in working in a non residential shopping centre.
There are a range of penalties under the Work Health and Safety Act 2011. The penalty to be applied in a particular case would be determined by the court having regard to all relevant circumstances. A maximum penalty of $3 million may be awarded by the court against a body corporate (if it found the body corporate guilty of exposing a person to risk of death or serious injury or illness and the body corporate was reckless as to that risk).
Individual members of the body corporate who are volunteer officers are exempt from prosecution except as a worker or an ‘other person’ in the workplace. In these cases, they must take reasonable care for their own safety and the safety of other persons and comply with reasonable instructions by the person conducting the business or undertaking, and if a worker, cooperate with policies and procedures.
It must also be remembered that the objects of the work health and safety laws are to promote health and safety. Penalties are available to deter non-compliance or act as a punishment when there has been a breach. A range of other enforcement tools are available to WorkCover and WorkCover only prosecutes more serious breaches of the legislation.
AccomNews is not affiliated with any government agency, body or political party. We are an independently owned, family-operated magazine.
