I am a chairman/secretary of a strata complex and I researched this issue in detail a couple of months ago. With potential fines of over $3M and up to 5 years jail for committee members the issue is more important than any other single issue canvassed in the current review of strata legislation, yet there is no mention of it whatsoever in the Government review paper, which is at:
Our strata manager did not know whether we come under the WH&S Act or not. Various solicitors have expressed conflicting views on the matter. Even customer support staff within WorkCover could not give a clear answer.
At present the question seems akin to John Hewson’s 1993 “GST on birthday cake” question, only we are potentially talking about millions of dollars in fines, not a few cents worth of GST.
A solicitor on the web page below suggests that residential schemes do come under the WH&S Act:
A solicitor on this web site also says they do:
http://www.flatchat.com.au/wp-content/uploads/2012/02/WHS-FAQ-Sheet-Jan-2012.pdf
The solicitors on this web page suggest that in some cases they do but in others they do not:
WorkCover staff could not answer the question and gave me a complex questionnaire to fill out to determine whether we did or did not come under the Act. It was the same form used to determine whether an employer needed to provide an employee with workers’ compensation insurance.
The WHS Act and Regulations seem to indicate that a residential building falls under the Act if it has a lift:
– Schedule 1 of the Act states that the Act applies to high risk plant and the premises in which it is situated, even if it is not a workplace.
– Regulation 10 states that a lift is high risk plant.
To quote from the Act and Regulations:
WH&S ACT SCHEDULE 1 – Application of Act to dangerous goods and high risk plant
3 This Act applies to the operation or use of high risk plant, affecting public safety, even if the plant is not situated, operated or used at a workplace or for use in carrying out work.
4 For the purposes of clause 3:
(b) a reference in this Act to a workplace includes a reference to any high risk plant affecting public safety and the premises at or in which the plant is situated or used, …
WH&S REGULATION 2011 – REG 10
10 Application of the Act to dangerous goods and high risk plant
(1B) The following plant is prescribed as high risk plant for the purposes of Schedule 1 to the Act:
(c) lifts, including escalators and moving walkways,
Contradicting all of the above I received a personal letter from WorkCover’s Principal Policy Officer, Michael Costello, stating that residential strata buildings do not come under the WH&S Act even if they employ a contractor or have a lift.
Other WorkCover staff stated that Mr Costello was the final arbiter on matters relating to the WH&S Act.
To quote from his letter:
As the scheme is a residential scheme and no worker is engaged as an employee t hen the exemption applies. You are engaged on an ad hoc basis and paid for the services you supply you are contactor not an employee. The same applies to the other contractors engaged by you
I am aware of the various interpretations that have circulated amongst the strata industry. WorkCover has given presentations at a number of industry seminars and there is now a general understanding of the application of the exemption as described in the attached Q&As. It needs to be emphasised that although residential strata schemes are exempt from the provisions of the WHS Act they still have a duty under Sec 62 of the Strata Schemes Management Act to keep the common area in a state of good and serviceable repair.
Lifts are high risk plant and are subject to the provisions of the WHS Act even though they may not be in a workplace. The main provisions affecting residential strata schemes it that the lift needs to be registered with WorkCover in accordance with Division 4 of the WHS Regulation 2011 and the registration needs to be renewed on a yearly basis. The presence of a lift in a residential scheme does not affect its exemption status.
If you have any further enquiries you can call me on 02 43215152
Michael Costello
Principal Policy Officer
WorkCover NSW