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At our up and coming AGM, we have a motion to vote on having regular O.H and S. inspections at a substantial cost. I am on our Executive Committee and today was told that it is legally compulsory to have an annual O.H. and S. inspection of our common property area. We have had inspections in the past and any problems have been corrected. I am trying to find out whether our Executive Committee is legally responsible for having an annual inspection as we were informed that under the Work Health and Safety Act 2011, we can be fined up to $600,000 for individuals or up to $3,000,000 for an Owners Corporation. We have public risk insurance anyway. Any information would be of assistance.
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No you don’t, unless you employ someone or part of the premises are used for non-residential purposes. Refer here:
https://www.workcover.nsw.gov.au/newlegislation2012/Pages/strata-title-body-corporate.aspx
As usual this issue is not so black and white.
Scotty is right in saying that an owners corporation is exempt from the WH&S Act 2011 if the building is used for residential purposes only BUT what if one or more residents work from home? Surely this exemption is then not applicable.
A WH&S report can be obtain fairly cheaply (less than $400 for a 20 lot scheme) and absolves the committee of any risks associated with doing nothing.
Regardless of legislation and exemptions etc. it is good practice to have a professional report done every few years or when there has been any changes to common Property areas.
We don’t know if anchorage’s Plan is residential or mixed-use, but the point of demarcation between Plan’s being caught be the provisions of the WH&S Act and being exempt from those is straight forward as Scotty explained.
I don’t disagree with the Owners Corporations of exempted Plans conducting regular checks of their Common Property in order to detect and prioritise the rectification of any risks to the safety of residents and their guests, but that could be easily and effectively undertaken by members of the E/C or any long-term residents who would be aware of subtle risk-related changes to the environment; that’s what’s occurred at our Plan since 2008 well before the current WH&S Act came into play.
The matter of residents working from home in this context is one that I too have heard being expressed by a few strata managers (SM), and apart from the fact that any such activity would be in breach of by-laws and of the conditions of any lease, in my opinion it sounds like yet another furphy put forward by some – perhaps to exaggerate their “worth” to O/C’s as their clients who could well find themselves paying for a Report that’s not required, or engaging a SM’s “preferred contractor”.
I’ve only seen two (2) WH&S Reports, and from the reading of those only conclude that they’re about as useful as the greater numbers of Sinking Fund Reports that I’ve seen.
Totally agree that an EC can effectively carry out an audit & rectify issues but this doesn’t work in the multitudes of OC’s without an active committee and a propensity for ignoring basic maintenance so as to keep levies down.
I think that most SM’s will not really mind whether a consultant or an EC carries out a WH&S audit as long as they have been instructed against obtaining a report and thus are absolved of liability.
The argument regarding what is and isn’t considered non-residential will really only be confirmed by case law and I for one would not like my OC to be the defendant.
Just to clarify….
I wasn’t suggesting that the E/C or other residents should conduct an audit to comply with the requirements of the WH&S Act (in fact they can’t), but rather that it would be a prudent option if anchorage‘s Plan was entirely residential and any audit was therefore discretionary, and the E/C et al. is “active”.
Again, I wasn’t suggesting that if such an audit was legally required under the WH&S Act, such as where anchorage‘s Plan was mixed-use or where the O/C directly employed someone such as an on-site Building Manager, that the SM’s advice should be ignored. Rather, I was suggesting that if an audit is legally required, that the O/C ensures that any contractor recommended by the SM was one that’s appropriate to the needs of the Plan (not just “preferred”) and that they don’t merely conduct an audit, but additionally identify and prioritise all risks and corrective actions in such a way that the O/C can stage its subsequent expenditure – over several years if necessary.
Going back to the original question – WHS applies to workplaces, so if anchorage’s scheme does not have employees on site, and the scheme is purely residential, then the advice that it is legally compulsory to have an inspection is incorrect.
Non-residential means non-residential, i.e. for some other use such as commercial premises.
More generally – an OC has a general responsibility to keep the premises safe. For example if a hole opens up in a pathway, or it becomes clear that some steps are unsafe, then it should take steps to fix the problem. If it does not, then it may find it is liable for an injury suffered by an occupant or a visitor. That is not a responsibility under the Work Health and Safety Act, it is a more general legal principle.
There have been cases on the OC responsibility to keep the premises safe, which centre around section 62. A well-known one is Ridis, where the plaintiff failed in his action against the OC at Court of Appeal level.
It was suggested to me recently that these ‘compulsory’ OH&S checks were another lurk so Strata Managers can glean backhanders from companies conducting the checks and from the contractors employed to fix things up so they are in compliance. Got me thinking.
@Boxer Jones said:
It was suggested to me recently that these ‘compulsory’ OH&S checks were another lurk so Strata Managers can glean backhanders from companies conducting the checks and from the contractors employed to fix things up so they are in compliance. Got me thinking.Boxer, I would tend to agree. If owners and the owners corp act sensibly and keep their eyes open the money spent on getting OH&S checks would mostly be better spent on actually doing maintenance.
I have seen a couple of these reports and they seemed non conclusive and written to cover any liability the writer may have for missing something.
In most cases the strata insurance should cover for accidents etc. The exception (and it is an important one) is if the insurance company or work cover can show that the strata plan knew of (or should have know) an unacceptable risk and did nothing about it.
How many freehold owners get OH&S reports?
Whether or not the OH&S Report is a job creation mechanism, I can’t stress highly enough the need for those Owners Corporations (O/C) that are caught by the provisions of the (NSW) WH&S Act to engage an accredited person to not only undertake the necessary Audit, but to also prepare a Risk Assessment that based opon a number of factors, including the likelihood of an injury to a person and the possible consequences of that (e.g. the severity of the injury), will prioritise the actions ($) to be then taken by the O/C to maintain its Common Property so as to remove each identified risk.
At least then an O/C can properly program its subsequent expenditure by addressing those items of greatest “risk” first, avoid liability, and appease the WorkCover Authority as the Regulator of such things in NSW.
UPDATE!
I had dinner last night with a former work colleague who, knowing my interests in matters strata, brought along the Agenda for his up-coming AGM where two Items put forward by the Strata Manager covered matters to do with the NSW WH&S Act.
The Plan is entirely residential and comprises 46 townhouses that were first Registered in 2008, and despite that, the following Items were included:
“to appoint a consultant to undertake an asbestos survey including the establishment of an asbestos register and management plan ……“, and;
“that the Owners Corporation subscribe to a heath and safety program (my words to avoid identifying the Strata Management Organisation) to acquire knowledge on workplace safety processes and eliminate or control risks…”
The first Item included no details regarding the “consultant” or their costs, and the second apparently involves a small Fee of around $2/month/Lot paid to the Strata Manager, who would no doubt then gouge additional revenue from arranging the rectification of each and every issue identified and reported to them by Owners.
The point is neither Item is required, and the Owners Corporation of this and other Plans that are not captured by the provisions of the WH&S Act will rely on the (bad) advice provided by their Strata Managers and be convinced (or perhaps frightened) into arrangements that will undoubtedly incur additional expenditure.
My question is …. how will the good people in the property services / operations industry ever drag their professional reputations up from the bottom of the proverbial cocky’s cage when large Organisations such as the one that oversaw the production of this drivel continue to do so, and get away with it?
Insurance has been mentioned a few times in this thread, in the capacity of a fail safe should someone injure themselves on the common property and make a claim against the owners corporation.
Does anyone know if an insurance company could refuse cover if an owners corporation defeated a motion to undertake a risk assessment (whs report, whatever you wish to name it) of the common property at an AGM?
Does anyone have any information about what an insurance company asks for in the event that a claim is made against an owners corporation? Would they try to establish whether an owners corporation did everything in their power to mitigate risks?
Just concerned this could be problematic in the event that something does happen, and it comes to light that the owners corporation refused to undertake a safety audit. Likewise, if an Executive Committee undertook an audit that did not identify a risk that then caused an injury to someone? Worse case scenario, could the owners corporation then sue the Executive Committee if the owners corporation is not covered by insurance?
It seems like so much risk is associated with such comparatively little annual cost.
I’m interested to hear everyone’s thoughts and experience in regards to my queries above.
adrian – before I drop-off and give others a go at this topic, it’s all about Owners Corporations (i.e. all Proprietors) ensuring that due diligence is applied by taking every reasonable precaution to protect the health and safety of all residents and others (e.g. workers) who could be put at risk whilst on their Common Property.
Remembering of course that “workers” means those directly employed by the Owners Corporation (O/C), and that the Common Property of an entirely residential Scheme is not a “workplace” under the NSW Work Health & Safety Act (WH&S).
The initiatives of some Strata Managers around work health and safety about which I’ve already commented are in my opinion more about covering their collective backsides (with those of their O/C Clients).
As for any impacts on insurance coverage, our Insurer won’t provide any premium discount to account for the fact that our totally residential Scheme has been “duly diligent” by its E/C Members undertaking a comprehensive Audit and Risk Analysis every year since 2008 and by progressively rectifying everything identified, and they’ve never asked about or queried risk minimisation – but then we’ve only ever had three (3) claims and all prior to 2011.
Our Strata Managers (Sydney) told us at our AGM that one of our residents who fixes cars is covered by our insurance. I thought it was only voluntary workers. He often lies under the cars outside his garage on common property (hoisted up by a ramp) and works under them with his little kids running around and looking for him under the car. He also works on friends cars in the same manner. Should he be covered by our insurance? No-one wants to complain about it – we are told we all must get on with each other.
Boxer Jones said
It was suggested to me recently that these ‘compulsory’ OH&S checks were another lurk so Strata Managers can glean backhanders from companies conducting the checks and from the contractors employed to fix things up so they are in compliance. Got me thinking.
It is illegal for SM’s to “glean backhanders”. All commissions etc must be disclosed on the agency agreement.
@Louie said:
Our Strata Managers (Sydney) told us at our AGM that one of our residents who fixes cars is covered by our insurance.If this guy is running a business and repairing cars for payment then unless your policy covers the strata for business use the whole policy could be invalid.
Say one of the cars he is working on catches fire which spreads to the building the strata insurance would be well within it’s rights to refuse the claim if they didn’t know about the business unless you had paid a premium based on running a car repair business.
I assume he is doing these repairs on common property which must be covered in oil stains which Strata is responsible for. This guy is exploiting your situation to his own advantage.
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