whats new in 2012 a new work health & safety regime

© Copyright 2012 Teys Lawyers www.teyslawyers.com.au

6 Things Strata Managers & Commi?ees Must Do to Avoid Personal Liability for Work Health & Safety

Webinar, 7 February 2012

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


This Year the Stakes are Higher •  Recklessness / risk

–  OC / BC $3million –  Commi?ee $600,000 / 5 years jail –  SM $300,000 / 5 years jail

•  Breach / risk –  OC / BC $1.5 million –  Commi?ee $300,000 –  SM $150,000

•  Breach –  OC / BC $500,000 –  Commi?ee $100,000 –  SM $50,000


But the Defence for Personal Liability is Clearer

1.  Keep up to date 2.  Understand operaXons 3.  Eliminate or minimise risks 4.  Process informaXon 5.  Supply resources and

processes 6.  Verify provision and use of

resources and processes (Due diligence defence S.27(5) WHS 2011)


New WHS Laws at a Glance

EffecXve 1 January 2012 in QLD, NSW, ACT

No ‘grace period’ for compliance (OHS plans good for 12 months)

OC / BC = Person carrying on a business or undertaking

ResidenXal strata exempXon confusing & virtually useless

Reverse onus removed -‐ prosecuXon must prove breach


The New WHS Approach

‘Work’ is the key concept not ‘Workplace’

PCBU concurrent

duXes of care, consultaXon & co-‐operaXon

PosiXve duty for officers to exercise due diligence

Significantly increased

personal liability


The Basic WHS Duty of Care

“To ensure, so far as is reasonably pracXcable, 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


Reasonably PracXcable Depends on ……

Likelihood of risk

Degree of harm

Actual or imputed knowledge

OpXons to eliminate & minimise risk

Cost v risk


PCBU

Business

Non-‐profit

Undertaking

Profit

Person Carrying on a Business or Undertaking

Volunteer associaXon exempXon – strata fails community purpose test

ResidenXal purposes only exempXon – applies only

to occupants doing domesXc work


Common Property Used Only for ResidenXal Purposes Means No -‐

•  OC / BC employees •  Common property with

commercial lots •  On-‐site lenng agent •  Lots used as home businesses •  Nannies employed in lots •  Lots for short term

accommodaXon •  CommunicaXon towers /

satellite dish / adverXsing signs •  Paid workers temporarily on

site


PCBU’s in the Strata World

Owners Corp / Body

Corp

Strata Manager

Building Manager

Lot Occupier


Primary DuXes of a PCBU

PCBU Primary Duty of Care

Safe Work Environment

Safe Plant & Structures

Safe Work Systems

Safe Use Handling & Storage

Info, Training,

InstrucXon, Supervision

Adequate Welfare FaciliXes

CondiXons & Health

Monitoring


AddiXonal DuXes of PCBU in Control of a Workplace

“The person with management or control of a workplace must ensure, so far is reasonably pracFcable, that the workplace, the means of entering and exiXng the workplace and anything arising from the workplace, are without risks to the health and safety of any person” S.20 WHS Act 2011


DuXes of an Officer of a PCBU

“An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its duXes and obligaXons” S.27 WHS Act 2011


Officers in the Context of Strata

•  Commi?ee members •  Original owner •  Compulsory administrators

•  Strata managers •  Building managers


Think 3-‐D ‘DemonstraXng Due Diligence’


We Can Help You Develop a SystemaXc Approach to Due Diligence

Gap analysis of your current process

Porqolio risk assessment workshop

FAQ’s for your staff, website & client handouts

Personalised le?er of advice to send to your schemes

Seven essenXal WHS forms, precedents & checklists

Call now on 02 9562 6500 or email us at [email protected] for your fixed fee proposal

whats new in 2012 a new work health & safety regime

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