BY: OLIVER SHEPHERD, STAR BUILDING MANAGEMENT SERVICES
The strata sector has taken a little while to adjust to the realities of the new, harmonised, Workplace Health & Safety Act 2011 and its associated Regulations, which came into effect on 1st January 2012 in QLD, NSW, NT and ACT (the other states are currently undecided).
Although residential strata communities are specifically excluded from the Act, it takes very little for them to be brought back under its jurisdiction:
Any of these matters would make the common areas a PCBU (Person Conducting a Business or Undertaking), under the Act and therefore the body corporate/owners corporation, its committee members, employees and consultants need to demonstrate due diligence to remove or minimise the risks to health and safety on site.
And, if none of these is true today, can you be certain it won’t be true tomorrow? Is it worth the risk not to ensure you are compliant?
The 4 Concepts
The Act introduces a number of concepts that did not exist in previous legislations:
1. Shared Responsibility: The buck does not stop here. Previously the body corporate/owners corporation would be held responsible for failure to comply. Now, the body corporate/owners corporation as a PCBU the committee members (as Officers of the PCBU), its employees and agents (as Workers or Other) can be held jointly and severely liable. This means that all parties can be sued and a failure to ensure a safe environment is punishable by heavy fines and, in the case of individuals, possibly jail (although the negligence in this instance would have to be gross).
2. Due Diligence: Act, don’t react. There is an obligation on the body corporate/owners corporation to demonstrate that it has acted positively to reduce the risks on site and keep it that way. Regular workplace health and safety inspections and the proper record of all contractors’ insurances, licenses (where appropriate) and safe work method statements are vital.
3. Reasonable Practicability: ‘Can we do it? Yes we can!’. A fantastic motto, but here is a truth known to many before (and discovered by a few in the White House over recent years): some things are harder to achieve in office than it appears from outside. The first rule is: if you can’t remove a risk, minimise it. However, the law recognises that at times risks cannot be minimised to everyone’s satisfaction and it is here that the due diligence comes in to play. If you can demonstrate you have done everything you can to minimise risk, it must be taken into account in the event of a claim being made.
4. Duties: Ignorance is as little of a defence as incompetence. The PCBU Officers and workers all have duties under the act. Your duties as an Officer of the PCBU are to:
If these duties are complied with, what appears at first a heavy piece of legislation can become a simple and straightforward part of how to best run your community. By implementing some simple processes and procedures, you can minimise the risks to occupiers, visitors and people working on site.