Publications / Property
As of 1 January 2012, bodies corporate and their committee members in Queensland may have to take further steps to protect workers from health and safety risks under the new Work Health and Safety Act 2011 (Qld) (WHSA), with significant penalties for failing to do so. In this article, Partner Cameron Dean and Senior Associate Alex Power look at when the new obligations will apply, and what steps body corporate committees should take to avoid the risk of penalties under the new legislation.
When does the WHSA apply?
The new WHSA regime applies to any person (which includes a body corporate) who carries out a business or undertaking in Queensland. The WHSA also places obligations on individual committee members of a body corporate in a personal capacity, requiring them to exercise due diligence in performing their functions on the committee and ensuring that the body corporate itself complies with the WHSA.
While the WHSA specifically excludes any body corporate from the legislation which is responsible for common areas used only for residential purposes, the exclusion does not apply if a worker is employed by the body corporate.
Accordingly, the committee of any body corporate which employs any workers, for example a gym operator, cleaner, restaurant staff or even a manager to run the day to day operations of the property, will need to become aware of the WHSA requirements and take steps to protect itself from liability.
What obligations are imposed?
The WHSA imposes a general duty to ensure, as far as is reasonably practicable, that the workplace is without risk to the health and safety of any person. This includes, among other things:
providing safe systems of work
providing information, training and supervision which may be necessary to ensure safety at work, and
ensuring that the health of workers and conditions of work are monitored for the purpose of preventing illness or injury.
The duty is broad, and will be breached by exposure of workers or anyone else to illness or injury caused by a failure of the committee to take some step which would have been reasonably practicable to have done in the circumstances, taking into account factors such as the likelihood of harm, the degree of harm likely to be suffered, the availability of mitigating steps and the cost of mitigation in proportion to the risk. The steps which should be taken will depend on the precise nature of the workplace encountered and therefore a risk assessment unique to the work environment in question should be carried out on a regular basis.
What steps should be taken by committee members to protect themselves personally?
It is important to note that the provisions of the WHSA do not differentiate between volunteers and professional body corporate committee members. As such, committee members of all levels should take organised and deliberate steps to protect themselves from the potentially large penalties (up to $600,000 or five years imprisonment). To comply with their personal obligations, committee members of a body corporate should:
acquire and keep up-to-date knowledge of work health and safety matters
gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations
ensure that appropriate resources and processes are available to eliminate or minimise risks to health and safety from work carried out, and verify these are provided and used
ensure that appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information are established, and verify that this is used, and
ensure there is a process in place for compliance by the body corporate of its statutory health and safety obligations, and verify this is used.
Although these steps provide a guideline, the actions that will constitute due diligence will ultimately turn upon the nature of the workplace involved and the other factors at play.
While there have always been general requirements to exercise a duty of care in undertaking body corporate functions, the new scheme set up by the WHSA extends the reach of penalties for individual committee members who fail to meet their obligations. As the obligations placed on bodies corporate and their committees will differ according to the nature of the premises and activities undertaken, it is essential that those responsible become informed about health and safety issues and ways to mitigate them.
As the WHSA is already in operation, it is essential that these steps are taken immediately and that if necessary, tailored legal advice is sought regarding specific situations.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.