Great to see roof painting contractors undertaking their work on a strata complex professionally and safely.

There has been a lot of debate over the years since the introduction of the latest Work Health and Safety Legislation in 2012 about the obligations of Owners Corporations and Bodies Corporate.

It is generally agreed that purely residential strata are not covered by the WHS Act and are not deemed to be a “Person In Control of a Business or Undertaking” (PCBU). However, when there is a commercial component to the scheme, it is still likely that the definition of a PCBU can NOT be met. But the site now may be classed as a “Work Place”.

This is where the whole WHS Act gets complicated. It was originally designed to make specific persons responsible, the PCBU, for all safety at a Workplace. It even further specifies that there may be more than one PCBU responsible for any workplace.

This is all well and good when you think of a painter going to a property to undertake a re-paint. It is clear that the painter is the PCBU and the place they are painting is the Workplace.

However, a clear and definite answer cannot always be given on responsibilities when works are undertaken on common property.

Thus even though the Owners Corporation is not the PCBU in most cases, the common areas may be, or become workplaces.  The actual lots may also be workplaces full-time.

Although not defined in the WHS Act we tend to classify the strata site as being or not being a “PCBU Site” in an attempt to assist the strata to understand their responsibilities.

 

Body Corporate	Classed as a workplace Internal of lots Common areas		Responsibility under WHS ACT
Residential only – all long-term residents (> 6 months)	No	No	Nil
Residential only – all long-term residents (> 6 months) – with a Resident Manager	No	Yes	Full for common areas as these areas are now the workplace for the resident manager, cleaners, tradesperson, rental agents, etc. The Resident Manager is the PCBU unless this person is an employee of the BC/OC which then makes the BC/OC the PCBU.
Residential only – Short-Term Rentals	Yes – Short-Term Rentals only	Yes	Full for common areas as these areas are now the workplace for the cleaners, tradesperson, rental agents, etc. Internal lots are the responsibility of individual PCBU’s
Residential with Commercial lots	Yes – commercial lots only	Yes – to any common areas to commercial lots and common areas shared by both	Full for commercial and shared common areas as these areas are now the workplace for the site’s staff, cleaners, tradesperson, rental agents, etc.
Commercial Complex	Yes	Yes	Full for common areas as these areas are now the workplace for the site’s staff, cleaners, tradesperson, rental agents, etc. Internal lots are the responsibility of individual PCBU’s

 

Do purely residential complexes have any responsibility?

Yes

Even though they may not have a specific responsibility for safety covered by the WHS Act, they still must abide by the requirements of Strata legislation. Plus they also have responsibilities under Common Law Duty of Care.

Statute Law

All legislations covering Strata in all states and Territories have a specific requirement for “common property” to “properly maintain and keep in a state of good and serviceable repair”.

The Act also states that no decision on common property repairs is to be taken if that decision will affect the safety of any building, or structure of common property. Thus the common property must be kept in a safe condition at all times.

Common Law

The Strata has a “Duty of Care” to take reasonable care for the safety of all persons using common property.

This “Duty of Care” has been proven many times over in the courts and through financial payments to persons injured on common property.

How then do residential complexes meet their responsibilities?

1. Accept that you have these responsibilities
2. Have a professional conduct a safety audit regularly – at least yearly
3. Abide by the requirements of the WHS Act and Regulations.
4. Ensure tradespersons performing works on site abide by the WHS Act and Regulations
5. Keep the common areas properly maintained and in a safe condition.

Find out more about roof painting and strata. Contact QBM today!