A Presentation for QBM April 2013
WHS Compliance Using the Due Diligence Defence
A Body Corporate Duty of Care is Three Dimensional
The New WHS Approach
‘Work’ is the key concept
not ‘Workplace’
PCBU concurrent
duCes of care, consultaCon & co-‐operaCon
PosiCve duty for officers to exercise due diligence
Significantly increased personal liability
Work Health Safety Stakes Are Higher • Recklessness / risk
– OC / BC $3million – Volunteer commiRee -‐ Nil – CommiRee honorarium $600,000 / 5
years jail – SM $300,000 / 5 years jail
• Breach / risk – OC / BC $1.5 million – Volunteer commiRee -‐ Nil – CommiRee honorarium $300,000 – SM $150,000
• Breach – OC / BC $500,000 – Volunteer commiRee -‐ Nil – CommiRee honorarium $100,000 – SM $50,000
But the Defence for Personal Liability is Clearer
1. Keep up to date 2. Understand operaCons 3. Eliminate or minimise risks 4. Process informaCon 5. Supply resources and
processes 6. Verify provision and use of
resources and processes (Due diligence defence S.27(5) WHS 2011)
Persons Who Are Not A PCBU
A strata body that is responsible for any common areas used only for residenCal purposes is not a PCBU so long as no worker is engaged as an employee (s.7 WHS Act 2011)
Not Only For ResidenCal Purposes • OC / BC employees • Common property with
commercial lots • On-‐site lecng agent • Lots used as home businesses • Nannies employed in lots • Lots for short term
accommodaCon • CommunicaCon towers /
satellite dish / adverCsing signs
The Basic WHS Duty of Care
“To ensure, so far as is reasonably pracCcable, the health and safety of workers and other persons” Hargreaves v Telstra Corp Ltd [2011] AATA 417 (17 June 2011) is the high water mark
The Latest From the High Court on Safe Systems
• Amputee slipped on chip • “Reasonable care
requires the inspecCon and removal of slipping hazards at intervals not greater than 20 minutes”
• Damages awarded $580,299.12 + costs
Strong v Woolworths [2012] HCA 5, 7 March 2012
A Strata Body’s General DuCes About Asbestos
• To ensure that exposure to airborne asbestos is eliminated or minimised so far as reasonably pracCcal
• To ensure that exposure standards for asbestos are not exceeded
s.420 WHS RegulaCons 2011
Your Insurance Does Not Cover This Risk
Strata Bodies Have Unlimited Liability
• An uninsured owners corporaCon or body corporate must sCll pay a damages award
• Unlike shareholders and club members, lot owners do not have limited liability
• An administrator will be appointed to strike a levy to cover damages and costs
Think 3-‐D ‘DemonstraCng Due Diligence’
We Can Help You Develop a SystemaCc Approach to Due Diligence
• 27 page checklist style report
• Specifically addresses the 6 due diligence requirements
• Contains 8 easy to use forms and precedents
• Customised for each OC / BC at $395 + GST
About the presenter - Michael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He has a Bachelor of Laws and practices exclusively in the area of strata title law. He is a Fellow of the Australian College of Community Association Lawyers. He was formerly an Adjunct Lecturer with Charles Sturt University. He appears weekly on SKY News Business Channel's Property Success with Margaret Lomas and is a regular panellist for the property edition of Your Money, Your Call for the same channel. You can read Michael’s blog at www.michaelteys.com and follow him on Twitter at @MichaelTeys.com
Teys Lawyers practice nationally in strata title law representing owners corporations, bodies corporate and apartment owners. The firm’s practice groups include building defects, strata community disputes, strata titles property law, by-laws and levy collection.
Subscribe for their free e-newsletter StrataSpace and find out more about them at www.teyslawyers.com.au
About the Presenter