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[struggler]

Jimmy, you recently made reference to changes to OH & S with large fines for OC and possible jail for EC for lack of maintenance for common property.  Could you elaborate on this or given some direction as to where to find out details? 

Cheers

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[Jimmy-T]

The reference is to Work Health Safety legislation.  have a look at the Teys Lawyers website – Teys.com.au –  they have details

 

Jimmy

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[Frank]

can we get any second opinions apart from Teys Lawyers ?  – it seems to me harsh and unconscionable that unpaid part-time amateur volunteers who donate their time and effort freely out of the kindness of their heart and for no financial reward should be threatened with 5 year jail terms and $600,000 fines.

 

My reading of the spirit of the legislation is that volunteers should be encouraged, not discouraged, so should be exempt from this sort of threatened 'criminal' punishment.

since this article appeared in the Sydney Morning Herald on 22/2/12 https://smh.domain.com.au/real-estate-news/unsafe-apartment-owners-face-jail-and-fines-20120220-1tjp2.html I have twice received requests from a resident in my complex including reference to $600,000 fines and/or 5 years jail sentences for individual strata committee members as a thinly-veiled threat towards getting what they want, in this case an additional light in their stairwell.

the second request included this link /wp-content/uploads/2012/02/WHS-FAQ-Sheet-Jan-2012.pdf on the same topic.

My problem is it seems extremely unfair and unreasonable to me as an unpaid volunteer that people can now demand things of me, and attach 'oh by and way – there's a potential $600,000 fine and 5 years jail sentence for you if you don't do what I'm asking'.

So I had a look at the legislation and below is what I found.

Explanatory notes basically saying that volunteers should be exempt – yet Teys Lawyers claiming (I presume from section 28 and 29) that it might still apply to me.
 
My reading of the Work Health and Safety Act 2011 (NSW) (WHS Act) in https://www.legislation.nsw.gov.au/inforcepdf/2011-10.pdf?id=f8df8095-a335-66a0-8828-f33d06042cb9 suggests this refers to work places, and with the exception of paid workers such as cleaners, gardeners and visiting tradespeople in our common areas (our 2 commercial business shops should be responsible for their own internal practices), I believe a resident would not be defined as a worker, and a residence would not be defined as a workplace.  Section 34 (1) says 'A volunteer does not commit an offence … except … under Section 28 or 29'.
Section 28 Duties of workers starts 'while at work, a worker must: (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons'.  I imagine a residence is not usually defined as a workplace, so volunteers are intended to be generally immune from prosecution.
Section 29 Duties of other persons at the workplace – similar to above, but for non-workers.

In https://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/5016501b29e8ae50ca2578860020c73e/$FILE/WORK%20HEALTH%20AND%20OHS%20BILL%202011.pdf about this law the speaker, agreeing in principle, repeats the phrase 'work health and safety' which to my mind refers to workers, not residents.  But the key element in my mind is 'Volunteer officers are immune from prosecution for offences committed in their capacity as an officer.  This is an important element for those performing socially valuable work in the community: it enables them to undertake that work in good faith, without fear of prosecution.'

The Occupational Health and Safety Amendment Act 2011 in (NSW) https://www.legislation.nsw.gov.au/sessionalview/sessional/act/2011-11.pdf similarly, in section 26 (5) states 'An officer of a corporation who is a volunteer is not liable to be prosecuted under this section for anything done or omitted to be done by the person as a volunteer.'

The explanatory notes for this legislation include 'Proposed section 26 also provides that an officer who is a volunteer (that is, a person who does community work on a voluntary basis as defined in the Civil Liability Act 2002) is not liable to be prosecuted under the section.'https://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/5016501B29E8AE50CA2578860020C73E?Open&shownotes

referring back to the Civil Liability Act 2002 – Sect 61 Protection of volunteers https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s61.html – 'A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work: (a) organised by a community organisation, or (b) as an office holder of a community organisation.'

I would like to believe and it seems only reasonable from the above and common sense, that as a volunteer – I should not be fined or go to jail soon as a result of my volunteer efforts.

If volunteers risk jail and huge fines – that would be a major deterrent from anyone ever volunteering for anything.  I can't believe that is the intended outcome of this legislation.

 

I don't know if this is some attempt by NSW govt to shift the cost burden of personal injury liability claims onto private people, or a beatup by lawyers to attract clients.

But the suggestions repeated in the media are quite scary – can anyone venture an opinion in support of my preference ?

[Jimmy-T]

The key question here is, are you a volunteer? I reckon not for the simple reason that the work you do is to the benefit of a corporation of which you are a member. Is doing a few hours a week’s work for the executive committee (and thus saving on strata management fees) any different from doing a few hours work in your family’s business and thus saving on accountancy or shop assistant wages? It’s not the same as doing charity work which only benefits other people.
Sure, the voluntary work you do on your EC or around your building benefits your immediate community – but it also boosts the value of your home.
However, and we should heed Colin Grace’s advice not to panic, this only really applies when members of the executive committee have been warned that there may be a danger and decide to do nothing about it. There is no ‘innocent victim” in that scenario. If Executive Committee members give levies a higher priority than personal safety then they probably deserve what’s coming to them.
These laws are about an individual or collective decision to do nothing about a potential danger to life and limb. That’s called culpable negligence and all these new laws do is to make people live up to their responsibilities BEFORE an accident happens, rather than waiting until after someone is hurt or killed.
And one final point on whether or not you are a volunteer in terms of the clause you cite above – if all those regulations applied to executive committee members, why do we have Executive Committee insurance which covers EC members in case they make a mistake while acting in good faith?
As for a second opinin, both lawyers who’ve written about this on this Forum agree (to a great extent). But any others who have a differing view are welcome to chip in.

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[Frank]

thanks for the quick reply JimmyT – my concern was that reference to $600k fines and 5 year jail terms was now being used repeatedly as a blunt instrument negotiating tool by a resident asking for a new light ('safety feature') where one had never been installed or deemed necessary in the original design.

 

I suppose I could extrapolate to the recent series of articles in smh claiming owners corporations were at risk of being sued if they didn't install safety grill/mesh outside every balcony – so by your logic, we have been warned a kid could be killed falling off a balcony – so if we don't spend a million dollars installing stupid ugly mesh or security grilles around every balcony for the entire building, am I now liable to be fined $600,000 and go to jail for 5 years ?

 

Do you see my concern ?

[Jimmy-T]

Frank

I take your point but I'm coming at this from a totally different direction.  The cases you have mentioned both cite 'worst-case scenarios' – genuine possibilities but only in the most extreme circumstances.

The real benefit of these stories is to get people thinking and talking about their responsibilities – and I have to tell you there's not a lot of that going on in StrataLand.  You would be astonished by how few people living in Strata – even members of ECs – have any idea at all about their rights and responsibilities.  So these stories may seem a bit over the top but at least they get people talking.

There are plenty of other threads on this Forum that show residents of strata buildings are losing out because ECs see their only responsibility being to avoid spending money.

There's one running at the moment where the tenant of a flat has been told she can't have the problem of rainwater running through the electrics in her ceiling fixed because the OC doesn't have the money.  That's tough – but they need to get the money … and fast!

The easiest way to do that is to not address problems.  If they realise they have other priorities  – and the cost could be higher if they ignore them – everyone might start thinking about the decisions they are making.

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[Frank]

thanks Jimmy – OK I take your point – you need a big stick to encourage lethargic selfish people who repeatedly ignore reasonable requests to repair common property … (tho' as for bad agents representing bad owners – I might argue that may also be the democratic/collective wish of owners corporations comprising many overseas absent landlords who only watch their cashflow)

 

so if I understand your perspective, the sword of Damocles hanging over my head is only to serve as a reminder of responsibility for decisions affecting other people …

 

tell you want tho' – if ever any executive committee member is hit with such fines or jail time for failure to whatever – I predict a mass resignation from strata committees everywhere – and then governments will have to pick up the pieces – gee – why does no-one want to be a volunteer ?

 

You say I'm a worker getting paid in kind for improving my property. 

 

I say I'm a unpaid volunteer – if/when I get paid in cash – something I have never received in 20 years of strata committee membership – then I may think of myself as a worker.  Until then I'm going to be referring to myself as an unpaid part-time amateur volunteer – and I'll argue that in court all the way – it would be unfair and unreasonable, harsh and unconscionable to punish me for something I did in good faith as an unpaid part-time amateur volunteer.

 

I rest my case.

[Jimmy-T]

Frank said:

thanks Jimmy – OK I take your point – you need a big stick to encourage lethargic selfish people who repeatedly ignore reasonable requests to repair common property … (tho' as for bad agents representing bad owners – I might argue that may also be the democratic/collective wish of owners corporations comprising many overseas absent landlords who only watch their cashflow)

Good point, but if I recall, employees of Owners Corps who know there is a danger and neglect to pass on the information could be in big trouble too.  I would think the same overseas owners who realised they might be hit with a huge fine (presumably to be extracted from the sale of their property) might be anxious to make sure everyone is doing the right thing.

so if I understand your perspective, the sword of Damocles hanging over my head is only to serve as a reminder of responsibility for decisions affecting other people …

I have to say that if the purpose of the exercise was simply to make strata owners more aware of their collective responsibilities and get them talking about it, it's already been a major success. It strikes me that the law is pre-emptive: it's not saying if some one gets hurt you go to jail, it's saying if there a re conditions where someone could be hurt or injured and a competent person warns you about this and you then choose to nothing, that's when you are in trouble.

tell you want tho' – if ever any executive committee member is hit with such fines or jail time for failure to whatever – I predict a mass resignation from strata committees everywhere – and then governments will have to pick up the pieces – gee – why does no-one want to be a volunteer ?

Yes, but surely the simple solution is to have an OHS audit done of your building and then fix anything that needs fixing. Isn't that a better use of executive committee members' time and resources than tilting at Strata windmills

You say I'm a worker getting paid in kind for improving my property. 

I say I'm a unpaid volunteer – if/when I get paid in cash – something I have never received in 20 years of strata committee membership – then I may think of myself as a worker.  Until then I'm going to be referring to myself as an unpaid part-time amateur volunteer – and I'll argue that in court all the way – it would be unfair and unreasonable, harsh and unconscionable to punish me for something I did in good faith as an unpaid part-time amateur volunteer.

But you're not going to end up in court because you are diligent and law-abiding etc etc.  Honestly, if someone came to you and said you had a loose balustrade on a common property balcony and eventually a piece of glass could fall out and kill or injure someone, are you really going to say 'I don't want us to spend money fixing this but if I get pulled up for it I will say I'm a volunteer'?  I think not – but there are those who would.

But it's a valid question and  I would be interested to hear if someone has a definitive ruling (preferably established in a superior court) on whether or not EC members are volunteers like charity workers  under civil law or, effectively, members of the board of a corporation.

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[Frank]

simple solution is to have an OHS audit done – yes but if I recall, a response to one of the recent smh articles basically said that OHS 'professionals' cover their own backsides by listing everything that could ever possibly cause a problem in the future – so they can't be sued.  Leaving the owners with prospective million dollar bills to replace everything.

So if that's the competent person's advice – fix everything – you see how they've still shifted the blame onto the poor committee member who has to try to persuade owners at AGMs to spend money they don't want to – and of course you know how people hate special levies.

So OK – sure I can suggest (as only 1 of a number committee members) that we get an OHAS report done – someone suggested $1000 – and we'll see how that pans out – but if they come back with that nonsense about security screens for every balcony I may well spit the dummy.

I also would certainly appreciate that clarification on unpaid amateur volunteer committee members – and if they are presumed to be workers who can be punished, then how this fits with the stated intentions of several laws that volunteers acting in good faith should not be punished, as this would discourage anyone from volunteering for the good of the community.

 

Thanks for your thoughts – all the best.

[Atomic]

Hi

 

We've had the OHS report done and are working through the items highlighted, fortunately all of them minor and relatively inexpensive.  My question is this, are we (the EC) now covered? 

 

Could a resident tell us that they think an issue is an OHS risk, such as outdoor lights going on at 7pm rather than 6.30pm and then someone falls over at 6:59pm, could we (the EC) then get fined?

 

I have to say, I'm personally feeling less like being on the EC in the future as a result of all this and I wouldn't be at all surprised if my fellow EC'ers feel the same way.

[Frank]

glad to see it's not just me that feels these threatened punishments place an onerous and unreasonable burden on unpaid amateur volunteers who are just trying to do the right thing – and have opened up the field to any idiot who wants to ask for whatever – to add as a nice sledgehammer threat, 'and by the way, you might be fined $600,000 and go to jail for 5 years if you don't do what I want – you wouldn't want that, would you … ?'

[Jimmy-T]

OK, but who is going to charge an EC member acting in good faith who makes a slight mistake? We are talking about EC member and managers who are told there is a serious risk – and these infringements are graded in terms of their seriousness – who then choose to ignore that advice because they want to save a few pennies on their levies. It’s about accepting collective responsibility – and if EC members aren’t prepared to accept some responsibility for their decisions then they really would be better off not standing for election.

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[Frank]

who is going to charge an EC member acting in good faith who makes a slight mistake ? – the resident who keeps raising it in emails asking for the next thing he'd like – that's who.

the previous poster raised his concern about timer lights – if someone said they'd like a different time, it wasn't changed, then someone was injured, does that leave the committee liable?  for sure the injured would like to think so.

accepting collective responsibility ? – the only acceptance of collective responsibility I've typically seen is a collective wish to avoid paying any increase in levies, and a collective outrage if there are any special levies.

as for standing for election – that's usually like the joke line of soldiers asked for volunteers – everyone else takes one step backwards, leaving the poor unsuspecting up for pointing fingers at and blaming when things are not quite what they like.

I'm not bemoaning the role – I enjoy it – I'm just giving my observations of the typical owners' behavior towards collective 'responsibility'.

and I still think this legislation is unfair, unreasonable, harsh and unconscionable if it seeks to punish unpaid amateur volunteers for things they did at a cost to themselves for no financial reward and no personal benefit in order to help others.

[Author]

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