David Allen SAFETY ACT 2011

Transcription

1 WORK HEALTH & David Allen SAFETY ACT 2011

2 Commencement The Act and the Regulations took effect from 1 January The WHS laws establish a range of duties that apply to defined categories of people who are involved in work conducted at a workplace. The duties generally compel those people to ensure health and safety at the workplace by taking reasonable practicable steps to eliminate or reduce health and safety risks.

3 Quick Summary Most Bodies Corporate will be a Person Conducting a Business or Undertaking (PCBU's) and will have duties under the new WHS laws Committee Members, Building Managers and Body Corporate Managers may have reciprocal duties under the new WHS laws The penalties for non-compliance are very severe and include imprisonment and significant fines

4 Quick Facts Fines/Penalties Body Corporate Committee / Building Manager BCM Recklessness / Risk $3 million $600k / 5 years jail $300k / 5 years jail Breach / Risk $1.5 million $300k $150k Breach $500k $100k $50k No Grace Period for compliance BC is a PCBU Residential Strata Exemption - deemed 'virtually useless' 'Work' is the key concept not 'Workplace'

5 Introduction he duties under the WHS laws apply to persons ho fall into one of the following broad categories: A person conducting a business or undertaking (PCBU), or A worker

6 The meaning of PCBU CBU is defined in section 5 of the Act as; For this Act, a person conducts a business or undertaking - (a) whether the person conducts the business or undertaking alone or with others; a (b) whether or not the business or undertaking is conducted for profit or gain. A business or undertaking conducted by a person includes a business or undertaking ducted by a partnership or an unincorporated association. If a business or undertaking is conducted by a partnership (other than an incorporated rtnership), a reference in this Act to a person conducting the business or undertaking is read as a reference to each partner in the partnership. A person does not conduct a business or undertaking to the extent that the person is gaged solely as a worker in, or as an officer of, that business or undertaking.

7 The meaning of PCBU (5) An elected member of a local government does not in that capacity conduct a business or undertaking. (6) A regulation may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. (7) A volunteer association does not conduct a business or undertaking for the purpose of this Act. (8) In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

8 The meaning of PCBU e WHS laws do not define "business" or dertaking" but the interpretive guidelines vided by Safe Work Australia recommends t the ordinary meaning of those terms is to adopted as follows: (a). "business" means an enterprise usually nducted with a view to making a profit and ich has a degree of organisation, system d continuity; and (b). "undertaking" means a venture that is ually not profit-making or commercial in ture but which may have elements of anisation, system and possibly continuity.

9 The meaning of PCBU, a PCBU for the purpose of a Community Titles Scheme could be any of the lowing: Body Corporate (which, although restricted from operating a business pursuan o Section 96 (1) of the BCCMA) may conduct an undertaking, including any usiness activities to the extent necessary for properly carrying out its functions ursuant to Section 96 (2) of the BCCMA); he occupier of a lot (to the extent that the by-laws for the relevant scheme allow person to conduct a business or undertaking from their lot); caretaker service contractor or letting agent; Body Corporate Manager. wever, Section 5(6) of the Act provides that the Regulations may determine that erson be excluded from performing the duties required of a PCBU.

10 The meaning of PCBU Section 7 of the Regulations provides; (1). For the purposes of Section 5(6) of the Act, a strata title body corporate that is responsible for any common areas used fo residential purposes may be taken not to b a person conducting a business or undertaking in relation to those premises. (2). Sub-regulation (1) does not apply if the strata title body corporate engages any worker as an employee. The meaning and application of Section 7(1) of the Regulations is not clear.

11 The meaning of PCBU me possible interpretations of common property that is used only for residential urposes: ommon property that is part of residential premises but which remains the responsibili f the body corporate to maintain, such as an exclusive use area allocated to a esidential lot - the body corporate would be excluded as a PCBU only in respect of suc xclusive use areas and would retain the duties required of a PCBU in respect of all of he common property that was not allocated as an exclusive use area to a residential lo ommon property other than common property that is used for non-residential purpose uch as occupation authority areas granted to the on-site manager or parts of the ommon property that are licensed or leased to a third party, or areas granted as xclusive use to commercial lots - the body corporate would be excluded as a PCBU in espect of all the common property that was not used for non-residential purposes. ll common property in a scheme that contains only residential lots - the body corporate ould be excluded as a PCBU in respect of all common property.

12 The meaning of PCBU wever the possible interpretations could be further limited depending on the interpretation of idential purposes' the exemption in section 7(1) of the Regulations may not relieve a body corporate of its WHS ponsibilities in the following examples: The body corporate has engaged a service contractor or authorised a letting agent to conduct a business from scheme land (so that the common property is being used in whole or in part for th purposes of a business) One or more occupiers of lots conduct a business (including a home business) from their lot and their lot can only be accessed via common property One or more lots are used for short-term accommodation The body corporate has an arrangement with a third party which retains ownership of property which is located on scheme land (such as a communications tower, satellite dish or advertising signs) and which it is entitled to access from time to time

13 The meaning of PCBU ction 7(2) of the Regulations prevents a body porate from being excluded as a PCBU ere it engages a worker as an employee. e term 'employee' is not defined in the WHS but is distinguished from other terms such as tractor, subcontractor, volunteer and rentice in the definition of 'worker' in the Act. nsequently, for example, the engagement of a l cleaning contractor by a body corporate is the engagement of a worker as an employee any exclusion that the body corporate might entitled to under section 7(1) of the gulation will not be affected in those umstances.

14 Primary Duties of a PCBU Provision & Maintenance of Work Health of Workers, Provision & Environment Conditions at the Maintenance of Workplace are Safe Plant & Monitored Structures Information, Training, Instruction, Supervision PCBU Primary Duty of Care Provision & Maintenance of Safe Work Systems Adequate Facilities for Welfare of Workers, including Safe Use of Handling & Storage of Plant, Structures &

15 Additional Duties of a PCBU e person with management or control of a workplace ust ensure, so far as reasonably practicable, that the orkplace, the means of entering and exiting the orkplace and anything arising from the workplace, are ithout risks to the health and safety of any person.

16 Duties of an Officer of a PCBU An officer of a PCBU must exercise due diligence ensure that the PCBU complies with its duties an obligations. The building managers The committee members (there is a volunteer association exemption, strata fails the 'commun purpose' test, a body corporate committee is no working for the greater community and is considered to be an association of volunteers) The body corporate managers

17 The meaning of Worke In the context of a community titles scheme, a 'worker' could be any of the following: Service contractor Letting agent Body corporate manager Outside contractor engaged by the body corporate or by an owner or occupier Committee members Owner or occupiers who perform any voluntary work on common property Where a body corporate is a PCBU, any person conducting work on the common property will need to take reasonable care for the health and safety of themselves and others and will need to to comply with the instructions given to them by a person who has the authority of the body corporate, as well as any relevant policy or procedure that has been given to the worker

18 Summary The WHS laws have a significant impact on community titles schemes, effective 1 January 2012 Most bodies corporate will be a PCBU for the purpose of the Act and will need to comply with the relevant duties Where the body corporate is a PCBU, other persons may have duties as officers of the body corporate such as the committee, the building manager and the body corporate manager The penalties for non-compliance are severe and all bodies corporate should comply with the WHS laws as though they were a PCBU under the Act.

19 What should I (you) do? Be aware of what your obligations are (what is common property, what isn't) Subscribe to WHS updates and receive alerts ( Keep up to date Understand operations Undertake regular safety audits Collect and use incident information

20 WORK HEALTH & SAFETY ACT 2011 David Allen Development Manager Body Corporate Manager