Webinar 7 February 2012

1. 6
Things
Strata
Managers
&
Commi?ees
Must
Do
to
Avoid
Personal
Liability
for
Work
Health
&
Safety
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
Webinar,
7
February
2012
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

2. 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
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

3. 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)
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

4. 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
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Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

5. The
New
WHS
Approach
PCBU
PosiXve
duty
for
‘Work’
is
the
key
concurrent
Significantly
officers
to
concept
not
duXes
of
care,
increased
exercise
due
‘Workplace’
consultaXon
&
personal
liability
diligence
co-­‐operaXon
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Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

6. 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
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

7. Reasonably
PracXcable
Depends
on
……
Likelihood
of
risk
Degree
of
harm
Actual
or
imputed
knowledge
OpXons
to
eliminate
&
minimise
risk
Cost
v
risk
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

8. Person
Carrying
on
a
Business
or
Undertaking
Business
Volunteer
associaXon
exempXon
–
strata
fails
community
purpose
test
Profit
PCBU
Non-­‐profit
ResidenXal
purposes
only
exempXon
–
applies
only
to
occupants
doing
domesXc
work
Undertaking
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

9. 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
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

10. PCBU’s
in
the
Strata
World
Owners
Corp
/
Body
Corp
Strata
Manager
Building
Manager
Lot
Occupier
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Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

11. Primary
DuXes
of
a
PCBU
Safe
Work
Environment
CondiXons
&
Health
Safe
Plant
&
Structures
Monitoring
PCBU
Primary
Duty
of
Adequate
Welfare
Care
Safe
Work
Systems
FaciliXes
Info,
Training,
Safe
Use
Handling
&
InstrucXon,
Storage
Supervision
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

12. 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
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

13. 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
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

14. Officers
in
the
Context
of
Strata
• Commi?ee
members
• Original
owner
• Compulsory
administrators
• Strata
managers
• Building
managers
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Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

15. Think
3-­‐D
‘DemonstraXng
Due
Diligence’
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Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

16. We
Can
Help
You
Develop
a
SystemaXc
Approach
to
Due
Diligence
Seven
Personalised
essenXal
WHS
le?er
of
advice
forms,
to
send
to
your
precedents
&
FAQ’s
for
your
checklists
staff,
website
schemes
&
client
Porqolio
risk
handouts
assessment
workshop
Gap
analysis
of
Call
now
on
02
9562
6500
or
email
us
at
your
service@teyslawyers.com.au
current
process
for
your
fixed
fee
proposal
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Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au