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Here are a couple of things you may want to look at, regarding the recent changes to Work Health and Safety legislation and how they apply to your strata plan.
Teys Lawyers are holding a Webinar (a web-based seminar) on asbestos on Tuesday, March 13th. Go HERE For more details.
Meanwhile our friends at Grace Lawyers have issued some handy Fact Sheets. This one is a simple flow chart that tells you whether or not your Owners Corporation is a 'Person Conducting a Business or Undertaking' (PCBU), and therefore potentially liable, under the terms of the Act.
This one is a Guide for Managers.
This one contains motions you may want to include at your next AGM
And this final one is specific to the dangers of Asbestos.
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.
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I would have thought strata managers would have notified us about this rather than having to rely on this forum.
I also think that letting your strata manager know that you subscribe to this column might keep them on their toes!
Hi to all,
We are a small residential villa complex (5 villas). We do hire contractors to mow our lawns, clean our gutters, paint when necessary, etc,etc. Following the guide lines of the Work Health and Safety Act 2011 flow chart we worked out that we are not an PCBU unless contractors are classed as employees. Are contractors classed as employees? If so, are we an PCBU?
We have people who come regularly to do lawns, gardens, general cleaning/clearing and do the garbage bins. So are they a contractor or an employee? If we have signed no contract with these people and have only agreed to their quote for works carried out each month, where do we stand?
Am sure our complex is like many others out there with this situation.
And where it states that a residential complex which “does not employ any person, has no home businesses and no working bee to fix common areas may be the only set up that is excluded”, does this mean that if a resident sets up a home office (without telling us no doubt) or if we have a get together to clean up an area of the complex then we are a PCBU?
Under this legislation “worker” is defined below (includes contractors and sub contractors)- see Guide for Managers above from Grace Lawyers or go directly to the legislation
Section 7 of the WHS provides as follows:
(7) A person is a “worker” if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:
(a) an employee, or
(b) a contractor or subcontractor, or
(c) an employee of a contractor or subcontractor, or
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or
(e) an outworker, or
(f) an apprentice or trainee, or
(g) a student gaining work experience, or
(h) a volunteer, or
(i) a person of a prescribed class.
(2) For the purposes of this Act, a police officer is:
(a) a worker, and
(b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.
(3) The person conducting the business or undertaking is also a “worker” if the person is an individual who carries out work in that business.It seems that we have created some healthy discussion on the WH&S legislation. In reality people need to generally calm down as the end is not necessarily in sight.
As I have discussed in the papers I have prepared for clients and my discussions with Safe Work Australia there are a number of key concepts.
Firslty if the scheme is entirely residential then you are exempt from obligations. However, when work is being undertaken you will be a work site for the duration of that work.
The old “grey area” will be things like mixed use developments, people working from home (internet businesses or home offices) etc.
The best advice I can give is get an expert to review your circusmtacnes (see the motions in the paper) and whilst you cannot rely on them 100% it should give you sufficient information to make an informed decision.
Before you ask – I don't do the inspections. We prepared the information for the assitance of clients to deal with the new legislation.
I hope this helps.
Colin
So basically, any complex that hires someone on an ongoing basis or for a one off project is a PCBU under the WHS act? If so I have just said all that mumbo jumbo in one sentence. Which is all I want. I would like something to give to the “masses” who will not read anything longer than a text message. In this complex, we had to write our by laws in two paragraphs to get anyone to read them let alone understand/comply!
And where does this leave a complex if they are not aware that someone is running a business from their home? What protection do we have? Do we ask for a stat dec? If we went around asking people if they are running a business from their homes they would deny it. We know we have had people in the past running a business from their homes in this complex. Though they are no longer living here, have no idea if someone else is doing the same
We are about to have a roof and gutter inspection in this complex. In light of the WHS act, should we ensure that the contractor carrying out this dangerous project will do so using appropriate safety gear and OHS practices? Or is it the responsibility of this company who specialise in this type of work to ensure that everything is done correctly, their workers are trained and will work safely on our complex?
In response to Struggler's last post, thus far I've (hopefully) been exercising due-diligence in terms of OH&S on the Common Property by:
- Making sure that all Contractors we use from time-to-time provide their Workers Comp., Public Liability, and Trade License details; just the Insurer, Policy Number, and Expiry Date in the case of the former two, and;
- Completing a “Risk Assessment & Control Plan” (in 2006), by implementing the prioritised corrective actions, and by reviewing the Plan annually at the AGM & following EC Meeting.
I'm struggling (sorry) with what more to do now, because the WH&S Legislation appears to be yet another job creation scheme for Lawyers & Consultants, another instance of Government shooting-from-the-hip in order to resolve some perceived problem, and all without the slightest clue about how that Legislation can be implemented on-the-ground.
However well-intentioned the Lawyers may be, Struggler's right about the mumbo-jumbo, because both they and the so-called experts can only provide an interpretation of the Legislation based on their opinions.
My non-expert opinion is that as the O/C of an entirely residential Plan is not “conducting a business or undertaking”, then such a Plan is exempt; in fact I think that'’s precisely what the WH&S Legislation intended.
So for now at least I'm sticking with our Plan's practical approach to due-diligence, particularly as we're self-managed — however depending upon the extent of their authority under their Agreements, Strata Managers may do well to carefully consider their obligations under WH&S Act because they are “conducting a business or undertaking” in a Strata Titled environment.
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
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