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Duty of Care Obligations

Friday, 15th February 2013

Workplace Health and Safety (WHS) laws have been in place for almost a year and during that time it has been outlined what this means for owners corporations in strata schemes.

Recently, a series of seminars where held in both Queensland and New South Wales for committee members as part of an awareness campaign to provide a better understanding of the risks associated with not complying with the new WHS Act 2011.

Committee members have been advised via WHS updates that every piece of legislation and common law that applies to owners corporations has provisions that require the scheme to maintain and repair the property.  In all courts and tribunals this duty is strictly applied and where there is a breach heavy consequences can occur.

To recap, section 7 of the WHS Act provides an exemption for premises that are used only for residential purposes however the exact meaning of this section is not known at the time and should be viewed cautiously.

If you have commercial or retail lots, an employee, or any short term accommodation etc., WHS will impact your scheme.

Even if you do not have any of the above, all owners corporations across all states have an obligation to ensure the health and safety of the people using their common property.  This 'Duty of Care' obligation is based on the strata legislation and common law.  It is still advisable for you to take proactive steps to ensure your scheme is not at risk.

If the owners corporation does not comply and someone is injured in the course of conducting business, under the WHS Act the fines are:

  • $3 million for owners corporations/bodies corporate
  • $600,000 for individuals (committee members & managers) and/or five years jail.

These fines are the maximum possible and would apply to serious accidents.  There is also a high risk from personal injury litigation.

We have created five practical steps for owners corporations to take to identify and manage the risks associated with the health and safety of people using common property.

1. Understand the concept of the Duty of Care that both commercial and residential owners corporations owe to people either working on or using common property.  This Duty of Care translates to the owners corporation taking reasonably practical steps to ensure the health and safety of people using common property.

2. Determine if the owners corporation would be deemed a commercial scheme for the purpose of the WHS Act.  If the owners corporation is deemed a commercial scheme penalties can apply under the Act for failure to comply. While residential schemes are exempt from the Act, the standards for a residential scheme to meet it common law Duty of Care obligations will in all likelihood be similar to the legislated work health and safety obligations for commercial schemes.

3. Avoid penalties under the WHS Act, and mitigate the risk of common law damages, by:

  • identifying reasonably foreseeable hazards or risks, eliminating those risks as far as is reasonably practicable or minimising those risks if they cannot be eliminated.  In practice, this will require competent person(s) to periodically inspect the common property, facilities and plant & equipment and provide report(s) either confirming they are safe or detailing any hazards and risks to health and safety.  The owners corporation will need to implement any recommendations in those reports.
  • providing safe systems of work and facilities use, together with information, instruction and reporting.

To achieve this, the owners corporation will be required to have:

  • A health and safety policy;
  • Policies and procedures relating to the use and maintenance of common property, facilities and plant & equipment; and systems to keep those policies and procedures updated;
  • Systems to receive notification of hazards identified on the common property; and systems to ensure that all risks associated with each notified hazard are assessed and eliminated or mitigated;
  • Systems to receive notification of incidents which have occurred on the common property; and procedures for investigating, responding to, and taking action to minimise any harm caused from, those incidents;
  • Appropriate procedures for relevant and timely reporting of information to ensure the health and safety policy, hazard and incident reporting, is monitored and performance reviewed;
  • Procedures for controlling all relevant documents and data required to be kept to ensure it can be readily located and reviewed as required; and is protected against damage or loss.


4. Ensure each officer (voting committee member) of the owners corporation pro-actively exercises due diligence to make certain the owners corporation meets its obligations under the WHS Act.


5. Agree and vote to an action plan to address the requirements of the legislation outlined in point 3 & 4 above.


A comprehensive and low cost Community Health & Safety solution for Owners Corporation is planned to be launched soon for those schemes wanting to minimise future risks that can lead to common law claims and/or fines under WHS by clearly demonstrating that "all reasonably practical" steps have been taken to ensure the health and safety of all people who use common property at any time.  For further information on this solution please contact your strata manager.

Remember if you are in doubt about any aspect of the WHS Act or your Duty of Care obligations, speak to your strata manager who will be able to talk to you about your concerns.

 

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Comment from Quimby99 on Thursday, 10th March 2016

We should take duty as obligation and fully try to justice with our duty. When we are on duty, we should concetrate on work because we charge against that duty from the compay. I have seen a lot of people who don't take serious our duty and i must say such people don't success in life. More detail about duty have http://allstudentdeals.com/student-discounts/list/hp/ which help to understad the role while working.

Comment from aieroel on Friday, 22nd May 2015

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Comment from aieroel on Thursday, 21st May 2015

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