3 Confusing Issues in the Work Health & Safety Act Explained


Are you confused about the Work Health & Safety Act 2011? You Should Be.  Just have a read of these 3 confusing issues below. But relax, we have also explained them!

  1. A residential body corporate is specifically exempted from being a Person Conducting Business or Undertaking (PCBU) under the WH&S Act 2011. Unless it isn’t…
  2. A committee member has duties as an officer under the Act, but no liability. Except as a worker…
  3. The requirement for an annual Workplace Health & Safety inspection and report has been removed. Or has it…?

1.    Although residential bodies corporate are specifically excluded from the Act, it takes very little for them to be brought back under its jurisdiction. Any of the following would make a residential body corporate a Person Conducting a Business or Undertaking (PCBU):

  • An onsite manager
  • An occupier working from home
  • A nanny being employed on site
  • A volunteer regularly attending to carry out work (such as gardening)
  • The body corporate receive income for a telephone aerial being located on site
  • A short let on site

So, although the exemption is made, it doesn’t hold much water. Very few bodies corporate will actually be exempted once the above factors are brought in. It is our advice that almost all bodies corporate should assume the WH&S Act 2011 applies to them.

 

2.    So, if the body corporate is a PCBU, then the people who have the control over its activities – the committee members – are officers.

Officers have a duty of due diligence. As the Queensland Government’s guide to the Work Health & Safety Act 2011 explains: “Due diligence includes personally taking reasonable steps to:

  • Acquire and keep current information on work health and safety matters
  • Understand the nature and operations of the work and associated hazards and risks
  • Ensure the PCBU has, and uses, appropriate resources and processes to eliminate or reduce risks to health and safety
  • Ensure the PCBU has appropriate processes to receive and consider information about incidents, hazards and risks, and to respond in a timely manner
  • Ensure the PCBU has, and implements, processes for complying with their duties and obligations (e.g. reports notifiable incidents, consults with workers, complies with notices, provides training instruction and ensures Health & Safety Representatives (HSR) receive training entitlements).”

As volunteers, committee members are exempt from liability for failure to comply with their Duties. However, as volunteers they are also considered Workers for the purposes of the Act – the law specifically allows for individuals to have more than one role – and have liability for any act or omission that might affect the health and safety of themselves or another.

Frank Higginson of Hynes Solicitors advises:  “In our view, failing to act with due diligence is an act or omission which could lead to health and safety risks for others.”

So, although committee members are excluded from liability as officers, they are bound back in as workers under the Act.

 

3.    The Queensland legislation that the WH&S Act 2011 replaces required annual health and safety inspections and reports. The new Act does not specifically state the regularity with which the reports should be undertaken and there might, therefore, be a temptation to have them carried out less regularly.

However, referring back to the first part of the duty of due diligence set out above an Officer has a duty to keep current information on work health and safety matters. But how does one determine currency? We would recommend annual reports. If a refurbishment is undertaken, then a report should be carried out immediately after.

So, in summary, it is safest to assume that your body corporate is a PCBU for the purposes of the Act and, therefore, the members of the body corporate committee have a duty of diligence as officers. They hold liability for a failure to perform the duty of due diligence as workers under the Act. This duty of diligence means that individual committee members must take in active interest in the health and safety of workers and visitors to your premises and ensure the processes are in place to remove or minimise risks.



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