Incorporate Bodies

WH&S: The Importance of Best Practice

Are you in danger of being slapped with a million dollar lawsuit?

If you’re in a strata community, then surely this is enough of an incentive to regularly attend body corporate meetings? If health and safety issues aren’t being appropriately addressed or acknowledged in your community, you could end up sharing a multimillion-dollar compensation bill with your fellow neighbours.

The new WHS legislation demands that body corporate committees ensure the health and safety of workers on the premises. A court can award penalties of up to $3 million if someone is hurt or killed because of a safety threat that was ignored. The legislation targets commercial, industrial and retail strata properties but exempts residential.

Although residential bodies corporate are specifically excluded from the act, it takes very little for them to be brought back under jurisdiction. Any of the following would make a residential body corporate a person conducting a business or undertaking:

• An onsite manager
• An occupier working from home
• A nanny being employed on site
• A short let on site

Very few bodies corporate could be exempt when considering the above. Oliver Shepherd, general manager of StarBMS suggests, “…that almost all bodies corporate should assume the Workplace Health &Safety Act 2011 applies to them and perform due diligence to avoid any legal battles”.

“Due diligence includes personally taking reasonable steps to:

• Acquire and keep current information on work health and safety matters
• Understand the nature and operations of the work associated hazards and risks
• Ensure the PCBU has and uses appropriate resources and processes to eliminate or reduce risks to health and safety
• Ensure the PCBU has appropriate processes to receive and consider information about incidents, hazards, risks as well as the ability to respond in a timely manner
• Ensure the PCBU has and implements processes for complying with their duties and obligations.”

As committee members are volunteers, they are exempt from liability for failure to comply with their duties. However, the confusion arises as they are also considered workers for the purpose of the act, where they are not exempt from liability. The law specifically allows for individuals to have more than one role.

The laws are not clear enough to give certainty to residential apartment owners. They haven’t been clear in the definition and now lawyers are left arguing over the legislation and its intended meaning. There are also many other grey areas of importance to be considered in regards to common areas in mixed-use buildings that have residential and commercial areas. If a worker is hurt in a common area it could come back to bite the body corporate.

To ensure your body corporate is as safeguarded as possible; it is best to assume that your body corporate is a PCBU for the purposes of the act. Therefore, the members of the body corporate committee have a duty of diligence as officers. They hold liability for a failure to perform the duty of due diligence as workers under the act. This duty of diligence means that individual committee members must take an active interest in the health and safety of workers and visitors to your premises and ensure the processes are in place to remove or minimise risks.

Until all of this confusion can be properly tested in a court of law, best practice is your best option!

Paul Wood
SSKB

Paul Wood has over 15 years industry experience including community management, management rights, accounting and development. He joined SSKB in 2001 as a body corporate manager with a large portfolio of prestigious Brisbane buildings. Due to Paul’s accounting background he was appointed as the group financial officer in 2004, he then opened our Victorian office as well as established a large management rights operation. In 2007, Paul was appointed as a director of SSKB.

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