If you are a worker or in control of a workplace, you have duties under the WHS/OHS legislation in Australia to manage the risk of any adverse effect to the health and safety of yourself, as well as those you have influence and control over in a workplace.
This includes the work that routinely occurs on the common property of a residential strata property, mixed-use commercial building or aged care facility.
Definition of a PCBU or Duties Holder
A person conducting a business or undertaking can be loosely defined as the party(s) that either conduct, supervise or control works in a workplace – including volunteers. For the purposes of residential strata and community living premises, the common property of the scheme becomes a “workplace” whenever work is being carried out, and the Committee for the Body Corporate or strata scheme become the supervising entity.
Persons conducting a business or undertaking who have management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace is without health and safety risks to any person. Ref: Managing the work environment and facilities Code of Practice 2011.
This means that the duty to provide and maintain a safe work environment and adequate facilities may be shared between duties holders. For example, a Body Corporate or Owner’s Corporation owns the common property, however the Caretaker or Facilities Manager coordinates and arranges the works to occur on the common property. In these circumstances the building owner and the building manager have a duty to consult, collaborate, cooperate, and coordinate safe work activities with each other for 100% compliance.
Residential strata schemes and aged care facilities have unique WHS peculiarities where one entity cannot be fully compliant without the assistance of the other. The Body Corporate relies on the Caretaker to deliver its duties compliantly under the Caretaking Agreement in order to satisfy WHS requirements. The Caretaker relies on the Body Corporate to deliver its duties [e.g. approve important repairs and maintenance works to be done or ensure a compliant WHS Plan is in place] so it can be compliant under both its Caretaking Agreement and WHS duties.
Duties of the PCBU or “Duties Holder”
A Caretaker under a Caretaking Agreement has a duty to “coordinate and arrange” works on the common property – with the approval and instruction of the Body Corporate. This fundamentally causes the Caretaker to become the “Health & Safety Representative” [“HSR”] for the common property workplace. The HSR is elected to champion the health and safety requirements and interests of their work group, which for the purposes of residential strata would be those that work on the common property of the scheme. The duties holders or PCBU’s in residential strata and aged care facilities, with respect to the work that occurs on the common property, include:
In terms of the common property as a workplace environment, the WHS Regulation places specific obligations on the PCBU [building owner and its building manager] in relation to the work environment and facilities for common property workers.
For example, the Body Corporate must:
So in a residential strata scheme or aged care facility, this means that the Body Corporate must ensure that all workers on the common property had adequate work facilities, are site inducted to those facilities and have a point of contact to report hazards and concerns to – i.e. the Health & Safety Representative [or building manager].
First Step – Demonstrate a duty of care
The ultimate goal for every Body Corporate [in terms of their common property workplace obligations] is to be in a position to demonstrate compliance under WHS legislation should an adverse workplace event occur in the future. The way to do this is to collate an audit trail of vigilance as a “duty of care”, which fundamentally includes the following list. Consider answering these questions as a “risk assessment”, which basically a “health check” of the common property workplace.
A compliant Body Corporate should be able to answer “Yes” to all these questions and provide an impeccable system of record keeping as proof:
If you have answered “No” to any of these questions, then you need a conforming WHS Plan for the common property workplace, which should provide strategies for compliance in all these aspects.
Application of WHS duties and the COVID-19 hazard
The risk of contracting or transferring Coronavirus in the common property workplace is essentially just another hazard that needs mitigation by the building owner and its HSR. Just like the risk of slip/fall during work, or electrical shock or physical injury from lifting heavy objects and manual labouring [etc.], managing the risk of COVID-19 in the common property workplace is a duty for all PCBU’s.
Return to the questions above. These can all be applied to the COVID-19 hazard, as follows:
Liability for COVID-19 contracted in the workplace
We are yet to understand the implications of a COVID-19 death arising from contraction that can be traced back to a workplace, however, in this ever-increasing age of civil litigation, it isn’t much of a stretch to imagine claims for personal loss or damages could arise out of circumstances where a bereft family could trace infection back to a mis-managed common property workplace.
WHS is a common-sense, systematic and documented approach to managing the risk of injury, illness or death in a workplace. How does your common property workplace measure up?