NAT: WHS and duty of care for owners and strata managers

The tragic incident involving a gate collapse in a strata titled body corporate highlights the critical importance of duty of care for owners and strata managers in ensuring the safety of residents and occupants. This case underscores the potential legal ramifications of neglecting workplace safety standards in residential, commercial and industrial strata titles schemes.

Table of Contents:

• QUESTION: A tenant is aggressive to our groundsperson. The matter was reported to the police. What is the committee’s responsibility under the WHS Act to provide a safe workplace for workers?
• QUESTION: As the strata manager is a PCBU, are they only responsible for what they intend to control regarding the management and control of common property?
• ARTICLE: The Incident

Question: A tenant is aggressive to our groundsperson. The matter was reported to the police. What is the committee’s responsibility under the WHS Act to provide a safe workplace for workers?

Our Scheme has over 200 residential-only Lots. We have an escalating situation where a tenant has started to approach the full time groundsperson aggressively, verbally abusing him and causing him to feel unsafe working on his own (the tenant appears to be ‘seeking him out’ when he’s working on site).

The groundsperson is employed by a company who are contracted to the strata company, but other than when he is on holiday, he is the only person carrying out the duties. He has been working in this role for over 8 years.

The committee has provided evidence of the reported incidents to the strata manager, and the lot has been issued breach notices. The worker has reported the incidents to the police.

We understand that there is little else that the committee are able to do under the Strata Act.

The groundsperson now works reduced hours to avoid interaction with this tenant, affecting the gardens. If the committee insists that they return to full time work before the tenant vacates, could there be implications under the WHS-Act in terms of providing a safe workplace for workers (which also now include contractors)?

Answer: By implementing practical safety measures, managing tenant behaviour proactively, and consulting with all parties, the risks can be minimised, and compliance ensured.

In answering this question, there are two key considerations:

• Part A: Is the 200-lot residential scheme exempt under Section 5(8) of the WHS (WA) Act (NSW, Qld & SA – Regulation 7)? and
• Part B: Who is considered a PCBU, and what are their duties and responsibilities?

Part A: Why a residential strata company should be considered a PCBU

Under the Work Health and Safety (WHS) Act, a residential strata company is considered a Person Conducting a Business or Undertaking (PCBU) unless it meets the narrow exemption in Subsection 5(8). This exemption applies only if:

1. The common property is used exclusively for residential purposes, and
2. The strata company does not employ any persons.

Most residential strata companies do not qualify for this exemption due to the following four points:

1. Common property use beyond residential purposes

The exclusion does not apply if the strata scheme is used for non-residential purposes, such as:

• Short-stay accommodation: If a lot is used for short-stay (e.g., Airbnb), visitors or customers access shared spaces like hallways and parking, removing the residential-only use.
• Home businesses: Lot occupiers operating businesses from their units may disqualify the exemption. If customers or delivery personnel traverse common property, it becomes a workplace.

2. Engagement of workers or contractors

Even if the strata company does not directly employ staff, it still engages contractors (e.g., groundskeepers or cleaners). Under the WHS Act, contractors are considered workers, and the strata company has a duty of care towards them.

3. Control over common property

The strata company controls the common property, which constitutes a workplace when contractors perform duties. This includes enforcing by-laws, maintaining safety in shared spaces, and addressing risks like tenant aggression.

4. Psychosocial hazards

PCBUs must manage psychosocial risks, such as aggression or harassment. If a tenant’s behaviour creates a hostile environment for contractors, the strata company is responsible for addressing this risk through enforcement actions (i.e. SAT) or by-laws breaches.

Conclusion

A residential strata company is a PCBU unless it meets the strict 5(8) exemption, which is rare in practice. By engaging contractors, managing common property, and controlling the workplace, the strata company assumes WHS obligations. It must take reasonable steps to address risks to ensure a safe environment for all workers.

Part B: Ensuring a safe workplace

The WHS Act imposes a primary duty of care on all PCBUs to ensure, so far as reasonably practicable, the health and safety of workers, including contractors. This includes protecting workers from physical and psychological risks, such as aggressive or abusive behaviour from tenants. Multiple PCBUs can share responsibilities for the same worker’s safety. In this scenario, the following entities are PCBUs and have overlapping responsibilities:

1. The strata company: Responsible for the common property and engaging contractors.
2. The committee: The decision-making body directing the strata company’s actions.
3. The strata manager: The administrative support helping coordinate the strata company’s day-to-day operations
4. The contracting company: The employer of the groundskeeper.
5. The property manager: The entity managing the tenant’s lease and ensuring compliance with the tenancy agreement and property rules.

PCBUs and their duties

1. The strata company

The strata company is responsible for managing common property and overseeing contracted work. Its duties under the WHS Act include:

• Ensuring common property is a safe environment for workers and contractors.
• Implementing controls to minimise risks posed by tenants, such as enforcing strata by-laws and addressing tenant misconduct.
• Coordinating with other PCBUs, including the contracting company, the committee, property manager, and strata manager, to mitigate risks.

2. The committee

As the decision-making body for the strata company, the committee must:

• Approve and implement safety measures to address risks to workers.
• Support enforcement of strata by-laws, such as issuing breach notices to the tenant.
• Allocate resources to manage safety risks, such as hiring additional workers or installing security measures.

3. The strata manager

The strata manager provides operational and administrative support and acts as a liaison between the strata company, the committee, and other stakeholders. Their role as a PCBU includes:

• Escalating safety concerns raised by the groundskeeper or contractor to the committee and strata company.
• Assisting in issuing breach notices and coordinating enforcement actions.
• Supporting communication and cooperation between all PCBUs to address safety concerns.

4. The contracting company

The contracting company directly employs the groundskeeper and holds primary responsibility for their health and safety while working. Their obligations include:

• Advocating for the worker’s safety by requesting work schedule adjustments or additional support from the strata company.
• Providing the groundskeeper with necessary support, such as safety training, equipment, or access to mental health resources.
• Cooperating with other PCBUs to resolve safety risks, such as tenant aggression.

5. The property manager

As the entity managing the tenant’s lease, the property manager is also a PCBU under the WHS Act. Their responsibilities include:

• Managing the behaviour of the tenant and addressing misconduct that poses a risk to workers’ safety.
• Working with the strata manager and the committee to enforce tenancy terms that prohibit harassment or aggression toward contractors.
• Ensuring the tenant complies with any directives issued under the Strata Act or tenancy agreement, noting that the by-laws of the scheme form part of the tenancy agreement.

The property manager has a unique role in directly influencing the tenant’s behaviour and ensuring compliance with tenancy agreements and property rules. They must act quickly to address tenant behaviour that jeopardises worker safety.

Shared and overlapping duties

All PCBUs involved in this situation share overlapping responsibilities under the WHS Act, meaning they must:

• Consult and coordinate: PCBUs must communicate and cooperate to address risks effectively. For example, the contracting company and strata manager should work with the property manager to escalate the tenant’s behaviour.
• Prevent risk exposure: All parties must take reasonable steps to eliminate or control risks to the groundskeeper’s health and safety.
• Demonstrate compliance: Each PCBU must maintain records of risk assessments, consultations, and actions taken to address safety concerns.

Fair Work Act considerations

The Fair Work Act complements the WHS Act by ensuring workplace safety protections extend to psychological well-being and safeguarding workers against adverse actions. Specific considerations include:

1. Psychological safety

The aggressive behaviour of the tenant is affecting the groundskeeper’s mental health and creating a hostile work environment. PCBUs must:

• Address the groundskeeper’s safety concerns promptly.
• Ensure that the work environment is free from harassment and aggression.

2. Adverse action

Pressuring the groundskeeper to return to full-time work without addressing his safety concerns could constitute adverse action under the Fair Work Act, leading to potential claims and liability.

3. Adjustments to work arrangements

Allowing the groundskeeper to work reduced hours to avoid interactions with the tenant is a reasonable adjustment under both the WHS and Fair Work Acts. Any changes to this arrangement should be made in consultation with the groundskeeper and contractor.

Recommended actions for all PCBUs

1. Risk assessment and safety measures

• Conduct a risk assessment: All PCBUs, led by the strata company and contractor, should assess the risks associated with the tenant’s behaviour and identify control measures.
• Implement safety measures: Actions could include:
  
  • Adjusting the groundskeeper’s work schedule to avoid interactions with the tenant.
  • Hiring additional personnel or providing on-site security.
  • Installing surveillance or other safety systems in common areas.

2. Tenant Management

The property manager, in collaboration with the strata manager and the committee, should:

• Take decisive action to address tenant behaviour under the tenancy agreement. This may include issuing warnings, enforcing by-laws, or seeking termination of the lease.
• Educate the tenant on acceptable behaviour and the consequences of non-compliance.

3. Legal and administrative action

The strata manager and the committee should:

• Continue issuing breach notices under the Strata Act for the tenant’s behaviour.
• If necessary, escalate to legal proceedings to enforce compliance or restrict tenant access to common areas.

4. Collaboration and consultation

All PCBUs must:

• Consult with the groundskeeper and contractor to address safety concerns.
• Coordinate their efforts to manage risks effectively, ensuring all parties are informed of actions taken.

5. Documentation

• Maintain detailed records of reported incidents, risk assessments, and measures implemented.
• Ensure all communications and consultations with other PCBUs, the groundskeeper, and the tenant are recorded.

Consequences of non-compliance

Failure to address these safety concerns could result in:

• WHS penalties: Regulatory fines or enforcement action for failing to ensure a safe work environment.
• Fair work claims: Adverse action claims or compensation claims if the groundskeeper is forced to work under unsafe conditions. The groundskeeper can lodge a complaint with the Fair Work Commission listing all PCBU’s for failing in their duties.
• Worker compensation claims: Liability for psychological or physical harm suffered by the groundskeeper.
• Reputational damage: Negative impacts on the strata company, the committee, and property manager’s reputation for failing to act.

Conclusion

This situation involves multiple PCBUs with shared responsibilities under the WHS and Fair Work Acts. The strata company, the committee, strata manager, contracting company, and property manager must work together to mitigate risks to the groundskeeper’s safety, address the tenant’s behaviour, and ensure compliance with all legal obligations. By implementing practical safety measures, managing tenant behaviour proactively, and consulting with all parties, the risks can be minimised, and compliance ensured.

Scott Bellerby
B Strata
E: scott.bellerby@bstratawa.com.au
P: 08 9382 7700

This post appears in Strata News #734.

Question: As the strata manager is a PCBU, are they only responsible for what they intend to control regarding the management and control of common property?

The strata management company is a person conducting a business or undertaking (PCBU). What advice would you give strata managers trying to ensure they are only made responsible for what they intend to control regarding the management of common property?

Answer: Clear and comprehensive communication and policies are essential for ensuring safety and minimising liability.

Strata managers are not only responsible for what they intend to control in relation to common property. Depending on the specific circumstances, a strata manager can be responsible under WH&S laws for anything that occurs on common property because the strata manager is often in control of common property by virtue of their role.

To proactively address safety, strata managers should always ask for enough information when they become aware of potential risks and take urgent action when necessary. Clear and comprehensive communication and policies are essential for ensuring safety and minimising liability.

Consider the terms of your agreements and whether it is necessary to incorporate further provisions into your contracts to address risks and provide clarity as to the scope of your role and responsibilities.  Be clear in your work orders about who is actually engaging your contractors. In some work orders, it appears the strata manager directly engages the contractor. Make sure it’s clear you’re doing this as an agent for the owners corporation.

Discuss safety with your clients. You can put resolutions in place that empower strata managers to take action without necessarily going through the processes of detailed approvals.

Have policies and procedures in place in the context of your own workforce, such as regular training of your workforce about their responsibilities and how to deal with situations that may cause risk.

Carolyn Meighan
Bugden Allen
E: carolyn@bagl.com.au
P: 08 9254 6304

This post appears in Strata News #710.

The Incident

On the night of 4 June 2020, a van collided with a gate and water meter in an industrial strata titled body corporate at high speed. The gate remained upright but was bent out of shape, partially pulled off its track, and disconnected from its electric motor. The guideposts were also damaged, and the stopper had come out of position and was no longer capable of preventing overtravel of the gate. As a result of the collision the gate was at a 30-degree angle and was inoperable.

The NSW Emergency Services attended to the site and placed warning tape around the gate and the damaged guideposts.

On 5 June 2020, a number of occupants within the industrial complex removed the tape and undertook makeshift repairs to the gate. These repairs resulted in the gate being able to be operated manually.

From 5 June to 12 June 2020 the gate was manually opened and closed by various persons at the complex.

At 5:45am on 12 June 2020 an occupier in the complex was opening the gate manually when it became stuck and came out of its guide posts and rollers. Because there was no stopper, the gate became unstable and fell onto the occupier. The gate pinned the occupier to the ground at the entrance to the site until other occupiers arrived about 15 minutes later and lifted the gate off him. The incident was recorded on CCTV footage.

The occupier sustained fatal crush injuries as a result of the incident. He was 64 years old.

The gate was removed by a crane on the day of the incident and replaced in late September 2020.

The Prosecutions 2023 and 2024

• In July 2023, the employer of the occupier pled guilty, was criminally prosecuted and received a fine of $375,000, plus costs of $44,000 ([2023] NSWDC 274 ).
• In July 2024, the owners corporation/body corporate/strata company pled guilty, was criminally prosecuted and received a fine of $225,000, plus costs of $40,000 ([2024] NSWDC 277).
• In August 2024, the strata management company pled guilty, was criminally prosecuted and received a fine of $150,000 ([2024] NSWDC 360).

What is the duty of care for owners and strata managers of a commercial/industrial and residential strata titled body corporate?

Both residential and industrial/commercial owners in a strata titled body corporate have duties to properly maintain and keep in a state of good and serviceable repair the common property and to renew and replace any fixtures or fittings upon the common property.

In this case, under WHS law, whether it had been a residential or industrial complex, after the gate was damaged there was a risk to persons suffering serious injury or death as a result of the damaged gate falling, striking or crushing them once they manually operated the gate.

According to the Judge, the risk was created by persons unknown performing ad hoc repairs to put the gate back into service, before it could be professionally repaired.

Owners in a residential or industrial strata titled building and the strata manager of a said building, have a duty to prevent persons suffering serious injury or death as a result of their actions or omissions, albeit under different sections of the WHS Act depending upon whether the owners are defined as solely residential or mixed use/commercial/industrial as follows:

Solely Residential Owners	Mixed Use/Commercial/Industrial Owners and Strata Managers
Are Others and have duties under s29	Are a PCBU & have duties under s32, s20 and s21
As Others Under s29: A person at a workplace (whether or not the person has another duty under this Part) must: (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons,	As a PCBU: – s20 (2) of the WHS Act The person with 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 are without risks to the health and safety of any person.   – s21 (2) of the WHS Act The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.
The risk, in this case, was created by persons unknown performing ad hoc repairs to put the gate back into service before it could be professionally repaired.
If the Owners as Others chose to perform the act of performing ad hoc repairs to put the gate back into service before it could be professionally repaired, they would be in breach of the WHS Act because they did not:	As a PCBU with management and control of the common property that allowed ad hoc repairs to be carried out and the gate to be put back into service before it could be professionally repaired, they would be in breach of the WHS Act because they did not:
assess the damage to the gate as a result of the collision conduct a risk assessment to determine the extent of the hazard the gate and makeshift repairs represented urgently have the gate repaired by a competent technician remove the gate from service
The Owners as Others would also be in breach of the WHS Act if they omitted to carry out the following:	As a PCBU with management and control of the common property and the common property fixtures, fittings and plant, the owners and the strata manager would be required to:
prevent manual operation of the gate direct people not to operate the gate until replaced or repaired post signage instructing people not to operate the gate until replaced or repaired prevent continuous exposure to the hazard to persons operating the gate manually until it was repaired.

Case for basic policies and procedures

This case highlights the need to raise safety as an issue at AGM’s, adopt a safety-first stance when assessing common property management, repairs, maintenance and at least institute basic rules for a site including:

• A procedure for reporting damage promptly, including urgency if possible
• A policy for damaged plant, fixtures, fittings – isolate people, lock off the equipment, fixture or fitting, take it out of service, assess it and repair/replace it.
• Only engage qualified and insured service providers to assess, lock off, repair, replace and/or maintain common property and common property fittings, fixtures and plant, particularly where specialised expertise, skill or equipment is required.
• Ensure routine maintenance/inspection of the common property and all plant, fixtures and fittings
• Request an onsite owner takes responsibility for managing strata issues and dealing with the strata manager

Case for Common Property inspections

So, what is the duty of care for owners and strata managers? Owners may be unaware of the risks posed by damaged plant or fixtures or deterioration to the common property, but they are charged with ensuring that the plant, fixtures, fittings and common property access and egress ways are safely maintained. This is why regular routine maintenance of plant, fixtures, fittings and regular inspections of the common property access and egress ways are a necessary part of maintaining the common property.

QIA Group
E: info@qiagroup.com.au
P: 1300 309 201

This post appears in Strata News #710.

Have a question about the new WHS legislation and how it relates to strata or something to add to the article? Leave a comment below.

Read next:

• NAT: Q&A Indemnity, Waivers & Hold Harmless Clauses in Strata Management Contracts
• NAT: Work Health and Safety in Strata
• NSW: Important Work Health & Safety Case Part 2: Owners Corporation fined $225,000.00 as a PCBU

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