by Lynda Kypriadakis
04th August, 2020
Theme park turned WHS nightmare: Lessons on maintaining common property
Four years on from the Dreamworld tragedy, we are now learning that the director(s) of the entity that owns the fun park have been charged with criminal offences.
You would not be the only one to wonder whether those charges include manslaughter or grievous bodily harm or some other charge relating to the tragic deaths of four innocent people, but that is not the case. Instead, an abundance of media releases show that the Queensland Work Health and Safety prosecutor has filed three charges in the Brisbane Magistrates Court for the following:
- Failing to maintain infrastructure and provide records of maintenance and compliance as proof.
- Failing to have a current Work Health & Safety Plan for the workplace.
- Failing to have records of training and induction of the workers into the WHS Plan for the workplace.
If I had a dollar for every residential strata body corporate committee or caretaking services provider that I had explained the importance of having a site-specific WHS Compliance Management Plan and 100 percent compliant records of maintenance of common property, I would single-handedly be able to pay the $1.5 million fines anticipated for each of these three charges!
Why is it then, that some residential strata bodies corporate and their caretaking services providers have so much difficulty in linking the maintenance of common infrastructure – particularly the safety provisions contained within Class 2-9 structures – to WHS duties and obligations?
WHS Act and implications for the common property of a residential strata scheme
There are approximately 25 sections of the commonwealth WHS Act and Regulation that impose duties and obligations upon residential strata bodies corporate around the maintenance of common property in most states and territories of Australia, including Queensland, the Northern Territory and New South Wales (Victoria follows their state-specific OHS Act, which is fundamentally the same as the WHS legislation).
These WHS/OHS obligations are also imposed on all those that work on the common property, including the caretaker, the trade contractors, and the cleaning/gardening services providers. Even volunteer workers and strata managers that coordinate and arrange work orders or quotes for common property works have duties under WHS legislation.
To you and me, Dreamworld is a fun-park. We go there to enjoy recreational pursuits with our loved ones (well, we used to go there!), but to the corporation that owns Dreamworld, the “fun-park” is a serious workplace to which they are held accountable for the health and safety of all those that work there, and any innocent guests that stumble into a “workplace”.
Just like the Dreamworld fun-park owner, the body corporate is a corporation that holds accountability over the common property workplace. The health and safety of all workers who work on the common property becomes the responsibility of the body corporate that enters into commercial arrangements with them. Any incident that occurs during work activities on the common property becomes a similar nightmare for that body corporate.
First line of defence in a WHS incident
A workplace incident involves a worker and/or work – and includes any non-worker that might have access to the work area while work is occurring [e.g. someone slipping up on wet floors having been recently mopped by the body corporate cleaner in the lift lobby]. If an adverse workplace incident occurs on the common property, the very first thing the WHS investigator will ask for is:
- A copy of your documented safe system of work, i.e. your WHS Compliance Management Plan.
- Copies of training and inducting your workers into the WHS Compliance Management Plan.
- Copies of all your records of maintenance and compliance for the essential services infrastructure and safety provisions installed on the common property.
Interestingly, we can assume that these fundamental records must not have been available during the Dreamworld investigation as evidenced by the charges now laid upon its director(s).
Here is the opportunity for those that hold influence and control over a common property workplace in residential strata to learn from Dreamworld’s fundamental errors so as to ensure that the body corporate and all workers and users of common property are protected.
Risk mitigation for bodies corporate and caretakers
Accidents do happen, including on common property in residential strata complexes.
The best and simplest way to minimise the risk of exposure to regulatory infringement or criminal charges is to ensure the workplace has an up-to-date, site-specific WHS Compliance Management Plan with records of training and induction for all workers. Along with full records of maintenance and compliance of common property infrastructure, you are off to a good start should a workplace incident, or public liability event, occur on the common property.