Workplace health and safety obligations of a body corporate

Property & Body Corporate

Workplace health and safety obligations of body corporateThe issue of a body corporate’s workplace health and safety obligations arises in a few contexts, but the most common argument surrounds whether a body corporate must comply with the requirement to provide a safe working environment to a caretaking service contractor.

In Queensland, the Work Health and Safety Act 2011 (the WHS Act) places obligations on ‘persons conducting a business or undertaking’ (PCBU), which is a broader concept than that of ‘employer’ previously used by the workplace laws.

Is a body corporate a PCBU?

If a body corporate has common property that is used for commercial purposes (for instance, shops or restaurants), it will be considered to be a PCBU and will attract obligations under the WHS Act.

A body corporate will likely not be considered a PCBU where the common property is used for residential purposes only and does not employ a worker under a contract of service. It can be tricky to determine this in a mixed-use development that contains both commercial and residential lots, however where the scheme is used only for residential purposes, the body corporate will likely not be considered a PCBU.

WorkSafe Qld has weighed in on this, confirming that where an on-site manager is engaged as a contractor (and the body corporate is not responsible for common areas used for commercial purposes), the body corporate will not be considered a PCBU. A question may still arise as to whether the body corporate has in fact employed the resident manager as a contractor and not an employee, and there are many factors that are considered in making this determination.

We also note that it may be the case that where the caretaker is permitted to use a lot within the scheme for commercial purposes, for example, to run their letting business, or where the body corporate enters into leases over the common property (such as for a telephone tower) that the body corporate will be considered a PCBU. If you think this may apply to you, we recommend you seek specified legal advice.

Obligations of the body corporate

Obligations of a PCBU

Where a body corporate is considered to be a PCBU, the WHS Act provides that the body corporate must, amongst other duties, ensure the health and safety of workers engaged by the body corporate, and workers whose activities in carrying our work are influenced or directed by the body corporate, provide a safe work environment and so far as reasonably practicable, eliminate or minimise health and safety risks.

This will extend to the caretaker as a ‘worker’, regardless of whether they are considered an employee or not. ‘Worker’ extends to a vast array of persons engaged by the body corporate, including contractors, apprentices, volunteers and students gaining work experience.

Obligations independent of being a PCBU

If the body corporate is not considered to be a PCBU, the body corporate may still have obligations under the WHS Act in relation to the storage and handling of dangerous goods even where those dangerous goods are not at a workplace or used for carrying out work. These obligations include the management of risks and the registration, maintenance and inspection of the high-risk plant and dangerous goods.

Dangerous goods include asbestos and anything defined as being a dangerous good or otherwise being good to dangerous to be transported under the Australian Code for the Transport of Dangerous Goods by Road and Rail.

Obligations may also be imposed where there is operation or use of a high-risk plant that affects public safety. High-risk plant includes air conditioning units, lifts and LPG cylinders.

If your scheme has a caretaker that you think may handle dangerous goods or plant, we recommend you seek independent legal advice as to whether the body corporate has obligations under the WHS Act.

Obligations under the BCCM Act

Separate to those obligations outlined under the WHS Act, bodies corporate are regulated by the Body Corporate and Community Management Act 1997 (Qld) (the BCCM Act).

The BCCM Act provides that the Body Corporate must maintain the common property in good condition, and the regulation modules allow an adjudicator to make an order that will allow the body corporate to make improvements without attaining the requisite resolution that is reasonably necessary for the health, safety or security of persons who use the common property – this could include residents, visitors and contractors.

In our view, these provisions clearly outline that the body corporate has obligations under the BCCM Act separately to ensure that the common property is safe and secure for all persons who will utilise it.

Caretaking service contractor obligations

Separately, if the caretaking service contractor employs persons to assist in performing their duties at the scheme, they may have obligations under the WHS Act as an employer. They will likely be required to comply with the obligations outlined above, including providing a safe work environment.

Risks faced by bodies corporate and caretakers

Some of the most common risks faced by caretakers when working in a community titles scheme are working with potentially dangerous power tools and plant, and working from heights. There is a separate argument to be had that will be specific to each set of circumstances regarding whether these duties are within the caretaker’s duties and whether they are of a specialist nature.

However, with regards to workplace health and safety considerations, even where the body corporate may not be considered a PCBU, it may still be pertinent to ensure that they are eliminating or minimising risks of falls and identifying and controlling other hazards identified. This will ensure that the body corporate is discharging any obligations or duty of care it may have, whether under the WHS Act, the BCCM Act or otherwise.

The body corporate should also consider its obligation to minimise risks surrounding the use of power tools.

Committee obligations

Where the body corporate is considered to be a PCBU, the officers of the body corporate are required to exercise due diligence to ensure the body corporate is complying with their requirements under the WHS Act. This includes taking reasonable steps to:

  • acquire and keep up-to-date knowledge of work health and safety matters;
  • understand the nature of the risks of the operations of the body corporate;
  • ensure the body corporate uses appropriate resources to eliminate or minimise risks;
  • ensure the body corporate has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely manner to that information; and
  • ensure the body corporate has and implements processes for complying with their duties or obligations.

The WHS Act does not explicitly state who an ‘officer’ of the body corporate is, however, we would consider that this would include the members of the committee as well as the body corporate manager. If you need any advice or clarification on any of these matters, get in touch with our body corporate law team.

Please call us at MBA Lawyers today on 07 5651 2000.


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