Business, Property & Finance

Bodies Corporate and the Health and Safety at Work Act 2015

on Wednesday, 08 June 2016. Posted in Business, Property & Finance, Unit Titles

Bodies Corporate and the Health and Safety at Work Act 2015

The new Health and Safety at Work Act 2015 ("HSWA") introduces the term "Person Conducting a Business or Undertaking " or "PCBU".  A PCBU has the main duty under the Act and it is clear that a Body Corporate will be deemed to be a PCBU and will therefore have a number of specific duties under the Act.

Any "Officer" of a PCBU has a specific duty of due diligence to ensure that their PCBU is complying with its duties under the HSWA.  An "Officer" is anyone who occupies a position which is comparable to that of a director of a company and anyone who is able to exercise significant control over the management of the PCBU.  It is therefore likely that each Body Corporate Committee Member including the Body Corporate Chair Person will be considered  an Officer under the HSWA.

There are significant fines which apply to each of the Body Corporate and its Officers if they do not comply with their obligations under the HSWA.

Reasonably Practicable Steps only

The duties of a Body Corporate as a PCBU are qualified by the concept of “reasonably practicable” in relation to addressing health and safety matters.  This means that the actual influence and control which the Body Corporate could reasonably be expected to have in relation to any matter where there are health and safety risks is taken into account.   Other factors which are taken into account in determining whether reasonably practicable steps have been take are:

  • the likelihood of the hazard or risk occurring
  • the degree of harm which may result from the hazard or risk
  • what the PCBU knows or should know about the hazard or risk and ways of eliminating or minimising it
  • the availability and suitability of ways to eliminate the hazard or risk
  • the costs associated with eliminating or minimising the risk (but note that this is only one factor which is taken into account)

What are the actual duties a Body Corporate has under the HSWA as a PCBU?

  1. A Body Corporate must take reasonably practical steps to ensure the health and safety of any individual who does work for them, for example; contractors and subcontractors and any person likely to be affected by the work carried out by the Body Corporate. 
  2. Where any work is done in or in respect of any area under the control or management of the Body Corporate (for example; the Common Property) it must ensure so far as reasonably practicable, that the area, and the means of getting in and out of the area are without risks to the health and safety of any person.
  3. A Body Corporate must ensure, so far as reasonably practicable, that any plant, fixtures and fittings which are used in a workplace and are under the control or management of the Body Corporate are without risks to the health and safety of any person – examples could include lifts, car lifts, escalators, air conditioning and heating systems.
  4. When commissioning any works to the unit title development or any plant located in the development (for example; weather tightness repairs) the Body Corporate must ensure, so far as is reasonably practical, that the way the works are done is without risks to the health and safety of any person:
    • involved in the construction or installation;
    • who will use the plant or structure or conduct any activity in relation to it;
    • at or near a workplace whose health and safety is likely to be affected.
  5. The Body Corporate must notify Notifiable Events to WorkSafe as soon as possible after becoming aware that a Notifiable Event arising from the conduct of the business or undertaking has occurred.  A Notifiable Event is defined as the death of a person, a notifiable injury or illness (as defined in section 23 of the Act) or notifiable incident (as defined in section 24 of the Act).  The Act also requires a PCBU to keep records of each Notifiable Event for at least 5 years from the date notice has been given to WorkSafe.  See our Guide -  Notifiable Events under the Health and Safety at Work Act 2015.

For more information about the duties which a PCBU has under the HSWA please see our guide Duties of a PCBU under the Health and Safety at Work Act 2015.

What duties do Body Corporate Members have?

Members now have an ongoing duty of due diligence to ensure that the Body Corporate is complying with its duties under the HSWA.  The Act provides that the duty of due diligence involves:

  • acquiring and keeping up to date knowledge of work health and safety
  •  gaining an understanding of the business of the PCBU and its associated hazards and risks
  •  ensuring and verifying that the PCBU has appropriate resources and processes to eliminate or minimise health and safety risks
  •  ensuring and verifying that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and for responding in a timely way
  •  ensuring and verifying that the PCBU has and implements processes for complying with its duties under the Act

For more information about an Officer's duty of due diligence under the HSWA refer to our Guide - Your Guide to The Duty of Due Diligence under the Health and Safety at Work Act 2015.

What steps should Body Corporate Members take to make sure the Body Corporate is complying with its duties under the HSWA?

  1. If you are considered to be an "Officer" under the Act you should familiarise yourself with the HSWA and understand exactly what duties the Body Corporate has as a "PCBU". You should also understand what you need to do to comply with your duty of due diligence under the HSWA.  If you don’t believe you can comply will your duty of due diligence then you should seriously consider whether you should remain as a Member.  See our Guide - Your Guide to The Duty of Due Diligence under the Health and Safety at Work Act 2015 for more information.
  2. The Body Corporate should develop its own health and safety compliance strategy which covers the following:
  • The identification of health and safety hazards in relation to any areas which are under the control or management of the Body Corporate (e.g. the Common Property) and which are used as a workplace and steps should be taken to eliminate them (if possible) or minimise (where elimination is not possible).
  • Worker engagement and participation practices.  See our Guide to Worker Engagement and Participation under the Health and Safety at Work Act 2015 for more information.
  • Ensuring that any documentation which it uses (for instance any lease, body corporate rules and building management agreements) has provisions which accurately reflect the duties under the HSWA.  For example, a management agreement should contain a comprehensive clause which deals with compliance with the HSWA.  Such a clause may also require the manager to provide the Body Corporate with their Health and Safety compliance programme, to meet with the Body Corporate Committee on a regular basis, to provide it with information about health and safety issues and notify it of any Notifiable Events which may occur.
  • How the Body Corporate will collaborate with other parties who have similar health and safety duties – for example; collaborating with anyone who has rights to occupy the Common Property and any contractors who do work for the Body Corporate.  The Body Corporate should find out what they are doing to comply with the Act and establish how they will all collaborate on these issues on an ongoing basis.
  • Notification and record keeping in relation to any Notifiable Event which may occur.

If you need assistance with making sure your legal documentation adequately reflects the new duties under the HSWA contact Brookfields Lawyers' body corporate and leasing experts

Deborah Miller

Ian McCombe

Lizandra Bailey

DISCLAIMER

This information is intended to be general in nature.  You are strongly recommended to seek your own legal advice in relation to the matters dealt with here.

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