295. WHS Basics for Residential Owners Corporations – with Bill Kritharas
Podcast: Play in new window | Download
Subscribe: RSS
Lawyer Bill Kritharas joins me to explain an owners corporation’s work health and safety obligations, including:
- how the WHS law applies differently to residential, commercial and mixed use buildings
- his problem with work health and safety reports
- the important role of the strata manager in guiding their clients,
and more.
Links mentioned:
- Get the transcript here!
- Work Health and Safety Act 2011
- Work Health and Safety Regulations 2011
- Section 106 – Duty of owners corporation to maintain and repair property – Strata Schemes Management Act 2015 (NSW)
- Sparke Helmore Lawyers Website
- Bill’s email address: Bill.Kritharas@sparke.com.au
- Bill Kritharas’ LinkedIn Account
I may have missed it but in the discussion about strata and application of WHS law I didn’t hear any mention of (2) in the Regulation:
Meaning of person conducting a business or undertaking—persons excluded
(1) For subsection 5(6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.
(2) Subregulation (1) does not apply if the strata title body corporate engages any worker as an employee.
Hi Peter, I think your question pertains to a circumstance when a residential strata scheme (in NSW) directly employs a worker. That is, the owners corporation (OC) has become an employer and the worker is an employee of the OC.
Am I correct?
My view is that the WH&S Act & WH&S Regulation would then apply to the OC as it would be considered a PCBU.
I relied on WH&S Reg 2017 (NSW) 7(1)-(2).
Yes that’s correct.
The term employee is not defined in WHS legislation.
The Act defines ‘worker’
https://legislation.nsw.gov.au/view/html/inforce/current/act-2011-010#sec.7
I don’t know if there is relevant case law.
The Industrial Relations Act includes a definition of employee:
https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1996-017#sec.5
and lists in Schedule 3 persons deemed employees
https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1996-017#sch.1
Thanks Amanda for the great information!!
No wonder some Strata Schemes do not bother to make sure that people do not have an accident in their premises. We are not liable especially if the person who does not care is a “volunteer.”
Where do I actually go to report H & S problems which a Body Corporate Committee is implementing
Hi Pauline, what state of Australia are you in?