Most bodies corporate, in addition to general common law obligations to provide safe and accessible common areas, now have obligations under the Work Health and Safety Act 2011 (WHS Act) and Work Health and Safety Regulation 2011 (WHS Regulation).
While there was some initial confusion as to whether bodies corporate were covered by the strata residential exemption in s 7(1) of the WHS Regulation, it has become apparent that s 7(2), which provides that the exemption does not apply if the body corporate engages any worker as an employee, effectively reduces the scope of the exemption to nil. This is in part due to the wide scope of the legislative definition of ‘worker’, which includes subcontractors, outworkers, apprentices, students gaining work experience, and even volunteers.
The effect of this is that a body corporate will be considered a Person Conducting a Business or Undertaking (PCBU), enlivening the requirements of the WHS Act and WHS Regulation, unless they do not engage any worker, including contractors such as cleaners, electricians and pool technicians. Even residential units may have residents working from home, who could be considered ‘workers’.
The Obligations of the Body Corporate
As a PCBU, a body corporate has many obligations, including, but not limited to, a duty to:
· identify reasonably foreseeable hazards that could give rise to risks to health and safety (s 34 WHS Regulation),
· eliminate risks to health and safety so far as reasonably practicable (s 35(a) WHS Regulation); and, where not practicable,
· minimise those risks so far as reasonably practicable (s 35(b) WHS Regulation).
This is in addition to the general duties all bodies corporate have over common areas within the law of negligence. Any breach of the occupier’s duty of care can have vast public liability ramifications.
A comprehensive and detailed Safety Report can assist the body corporate in meeting their obligations, both by identifying hazards and recommending control methods that are reasonably practicable in all the circumstances. Ultimately, it saves the committee a substantial amount of time and, by reducing the likelihood of statutory fines and public liability, a substantial amount of money too.