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I had a WHS report done on our 1965 building and received the report which points out various issues that don’t comply with current standards. The report concludes with advice that it is up to the OC to adopt, partly adopt or shelve the recommendations.
Some items such as the balustrades not meeting current standard height and installation of tactile indicators on stairs are perhaps worthy items to consider but I don’t see them as urgent matters. More worthy to either incorporate them in the ten year plan or discarding them all together.
I suppose the question is do you fulfill such a report 100% or pick and choose what to adopt and what not to with the funds available in the sinking fund.
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david2708 –
Below is an extract from the Strataman site. It should answer your questions:
“The provisions of the Work Health & Safety Act 2011 and the Work Health & Safety Regulation 2011 require that the Owners Corporation provide and maintain the common property to
- ensure it’s safe and without risk to the health of contractors and others who may use it
- agree to undertake ongoing risk management assessment to identify and eliminate any such risks
One way to undertake such risk management is to have an independent expert inspect the common property and report to the Owners Corporation any identified risks. This is commonly known as a Safety Audit or a Work Health & Safety Audit. Once notified, the Owners Corporation MUST address the risk(s) and repair the common property as required. Failure to do so can result in severe penalties. Don’t say I didn’t warn you.
Public Liability Insurance requirement
A regular and ongoing assessment of risk is also necessary to provide evidence to the public liability insurers of the proper management of the common property in the event of a claim. The minimum cover is currently $20,000,000.
See NSW SSMR 2016: Regulation 40 – Insurance amount.Some more information
Safework NSW have a huge section on Work Health and Safety (WHS) which offers helpful summaries, information pages and even a link to the legislation changes which came into effect on Feb13, 2015.
Another section Safework NSW has is the one on on Strata Title Body Corporate – Employer obligations which discusses the WHS requirements for strata. So, if you need to know about Work Health & Safety and all it entails (plus details of the latest amendments, this is a fantastic place to start.
TIP – If you DO go onto the Safework NSW homepage, don’t forget to have a good look in the navigational menu across the top. There’s lots of sub-menus under the main menu tabs. Just hover your mouse over any of the tabs and the bigger submenus will open up.
Should you spend the money? Again, it’s far better to get anything fixed that needs fixing as soon as possible rather stalling or not doing it at all and then having to deal with the severe consequences, courtesy of a letter from a friendly litigation lawyer, if an ‘accident’ happens. Only then do you discover that your scheme violated one or more Work Health & Safety requirements thereby leaving the Owners Corporation liable for any litigation claims (and fines) that may surface. Besides having to deal with the lawyers, you’ll also have Workcover breathing down your neck gunning for a prosecution. Is it really worth the risk to delay things or, heaven forbid, not fix them at all? Absolutely no way in the world. You could be putting someone at risk of injury or worse, as well as breaking the law.”
The under height balcony balustrades may not need to be fully replaced. There may be several ways to safely extend the height to the legal height for a relatively small amount of money. Maybe worth investigating.
Just to clarify, in terms of Workcover, you are only caught in that net if the OC employs someone and that person is hurt on the premises in the course of their duties. In most cases the OC will not be an employer for the purposes of that framework, as most tradesmen it uses will be contractors.
Worksafe NSW has a very good summary:
A strata title body corporate (or owners corporation) responsible for any common areas used only for residential purposes is generally excluded from the WHS laws, unless it employs a worker.
Where the common areas are mixed residential and commercial it is likely the WHS will apply.
It is important for members of strata title bodies corporate be aware that once they employ someone to carry out a job, then they become an employer (also called a PCBU) and they have a duty to ensure the health and safety of workers they engage, direct or influence.
This means that if the work is done on the common area, then the WHS Act applies.
An example of when a strata title body corporate becomes an employer would be when it employs a person to mow the front lawn as an employee (contractors are not employees). That front lawn would become the workplace where the strata title body corporate has some WHS responsibilities.
If you are a volunteer officer of the body corporate you are expected to exercise due diligence to ensure the body corporate complies with its WHS obligations if you have workers on site, however volunteer officers cannot be prosecuted for failure to comply with health and safety duty under the WHS legislation.
There are a range of penalties (up to $3 million) if a corporation is found guilty of not following WHS laws.
All people must also take reasonable care of their own health and safety and take reasonable care that they don’t do anything that would adversely affect the health and safety of others. Importantly, if they are given an instruction by the employer or person carrying out a business they need to comply with that instruction as far as reasonably able.
There seems to be a mix-up here between WHS (Workplace Health and Safety laws) and building regulations and standards set by the NCC (National Construction Code, formerly the Building Code of Australia).
Unless legislation requires it, existing buildings do not have to be compliant with the latest NCC standards. They only need to be complaint with the standards that existed at the time they were built. Some areas like fire and window safety have been legislated, so buildings must be compliant in those areas according to the law.
WHS is a different matter.
All states and territories, except Victoria and WA, have adopted the Commonwealth Occupational Health and Safety Act in their State Acts.
So both in the Commonwealth and NSW WORK HEALTH AND SAFETY REGULATION 2011 – REG 7 it states:
7 Meaning of “person conducting a business or undertaking”-persons excluded
(1) For the purposes of section 5 (6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.
(2) Subclause (1) does not apply if the strata title body corporate engages any worker as an employee.
Very few OC/BCs have actual employees so they are usually exempt from their WHS Acts. Cleaners, gardeners, tradespeople etc that do paid work for an OC/BC are usually not considered to be employees.
Even in Victoria, which hasn’t adopted the Commonwealth Act, a residential strata that does not engage a worker as an employee is exempt. This information was given to me directly from Worksafe Victoria.
I agree with Scotlandx’s well made points about Workcover and employees. To add further to Scotlandx’s comments, it is not only employees that an OC should be concerned about.
We can’t forget that the OC owes a duty of care to all occupants and visitors to ensure their safety both on, and regarding, the common property.
If an accident was to occur then, in determining whether the OC had breached a duty of care, the essential question is whether the OC knew or ought to have known that an element of the common property was dangerous and that the OC failed to take precautions to address the danger.
The WHS has identified several problem issues in their Report. The OC now has knowledge of the dangers. Balcony heights that are lower than the current BCA codes are an obvious hazard to children.
Although a failure to comply retrospectively with building laws may not be determinative of liability, is it worth the risk?
See two important links below:
https://www.lookupstrata.com.au/balustrades-regulations-strata-liability/
https://www.lookupstrata.com.au/nsw-older-building-safety-maintenance/
@Lady Penelope said:
I agree with Scotlandx’s well made points about Workcover and employees. To add further to Scotlandx’s comments, it is not only employees that an OC should be concerned about.We can’t forget that the OC owes a duty of care to all occupants and visitors to ensure their safety both on, and regarding, the common property.
I posted my comments before Scotlandx’s were made visible. But we seem to be on the same track about the WHS laws. Generally a residential OC/BC is exempt.
If an OC’s building complies with the NCC/BCA at the time it was built plus any subsequent legislative requirements (retrospective requirements are quite rare), it’s extremely unlikely it could be found in breach of a “duty of care”. Maintenance is really the key. And that maintenance includes any required routine building safety inspections. In my OCs that’s the second biggest annual expense.
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