How bodies corporate and strata committees function in the context of workplace safety can be complicated, especially when it comes to height safety and fall protection.
It is almost inevitable that many parts of the country are going to see an increase in development of residential apartment buildings. As a result, more and more people are going to become involved in the owner’s corporation or body corporate that manages the strata scheme these apartments will operate under.
Unfortunately, the requirements for these bodies when it comes to the application of workplace safety laws for the inevitable maintenance work that will need to be carried out can be difficult to understand and determine.
Work health and safety legislation
In NSW, workplace health and safety is governed by the Work Health and Safety Act 2011. The act states that “A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.”
It also outlines what criteria must be met for a person to be considered a person conducting a business or undertaking (PCBU).
Further detail is contained within the Work Health and Safety Regulation 2017 (in NSW), which provides guidance on additional details regarding the management of risks.
Under the Regulation, “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” except “if the strata title body corporate engages any worker as an employee.”
Responsibilities of bodies corporate and owner’s corporations
In NSW, strata schemes for both residential and commercial buildings operate under the Strata Schemes Management Act 2015. This Act puts into law that the owner’s corporation is responsible for management of the strata scheme.
This includes “maintaining and repairing the common property of the strata scheme”. With the common property meaning most pieces of the building or building infrastructure that are not for the exclusive use of a resident or tenant. This can include areas like mail rooms, rubbish rooms and corridors, but also things like air-conditioning ducts and systems, electrical and communications conduits, water systems and elevator plant.
Maintaining these systems will often involve the engagement of a specialist contractor to come in and undertake the work. In this case, the body corporate or strata committee is not considered a PCBU as contractors like this do not meet the characterisation of an employee under the Regulation.
Becoming a PCBU and not knowing it
Although the Regulation states that if a strata committee, body corporate or owner’s corporation employees a person, they become a PCBU and duty of care is created, there is another method this can occur that might not be fully realised by committee members or lot owners.
The Regulation states that the exemption to being a PCBU only exists if common areas are “used only for residential purposes”.
Where issues can arise, and where an owner’s corporation or body corporate can become a PCBU without realising it, is when this condition is no longer being met.
The owner of one lot starting up a home business may result in a building no longer being “used only” as a residence, with the strata committee, owner’s corporation or body corporate then becoming a PCBU under the Work Health and Safety Regulation and having a duty of care that needs to be attended to.
Although there is no responsibility for what occurs inside an apartment or lot within a strata complex, there can be a case made that once business activities begin within a lot, then the common areas can be seen as becoming used for commercial or business activities.
This could include deliveries and pickups by couriers and visits by clients and customers that require movement through common areas of the building to visit the business being operated.
Over the last decade or so, as the world has become more connected and the ability run businesses, not just undertake work from home, has become more available, it is entirely possible that residents within an apartment complex may be using their home for work activities. And in those cases, the strata committee, body corporate or owner’s corporation will be considered a PCBU under the Regulation without realising it.
Another grey area exists in parts of the building that can be considered common property but are not exclusively used for residential purposes. Areas including roofs, facades and other parts of a building that are not accessed by residents may not be interpreted as existing for “residential purposes only”. This is because their access is only made by technicians and other parties engaged by the body corporate or strata committee to conduct maintenance or repair work.
Put succinctly, while an exemption for strata committees exists within the regulatory instruments, in the event of an accident a court may find that, with the existence of these grey areas, a duty of care exists under the Work Health and Safety Act.
Best practice: assume you are a PCBU
In short, the best way an owner’s corporation, body corporate or strata committee can ensure that they are following best practice when it comes to ensuring safety of those entering their premises to undertake maintenance work is to take the position of assuming they are a PCBU and do have a duty of care to fulfil.
Looking at this from a height safety perspective, it means that safe access and fall protection systems for areas where work may be done at height and in fall risk areas should be present and kept compliant with relevant Australian standards.
These safety systems should also have documentation to go with them that explains how they are used, what areas are able to be accessed, what training is required before a person can access the system and any other information that a worker should know before entering the risk area. Having these procedures in place also provides an additional level of liability protection for the PCBU, as contractors are signing off on, and acknowledging, they understand and meet all the requirements before starting work.
Other advantages of being proactive on height safety
Beyond improving safety and minimising the potential liability of the owner’s corporation, strata committee or body corporate in the event of an accident, having a proactive approach to height safety can also provide other benefits.
Enabling workers to access easily and safely what would otherwise be high-risk areas results in work being completed quicker and more efficiently. This can result in significant cost-savings accumulating over time.
Knowing that work can be completed easily and efficiently also creates an environment where getting that work completed becomes less of a hassle and is then more likely to be completed on schedule. Keeping to maintenance schedules improves the performance of the plant or equipment. In a residential setting, this means improved quality of life for residents and fewer interruptions due to things like lifts being out of service.
Discuss your safety situation with the experts
Height Safety Engineers are the experts in safe access and fall protection. Our team bring decades of real-world experience to the table and can provide a range of solutions to even the most complex of safety problems.
Discuss your needs with our team by calling 1300 884 978 or emailing enquiries@heightsafety.net.
