Strata Maintenance – Occupational Health and Safety Concerns

Strata Maintenance
Ever heard that old saying ‘prevention is better than cure’? Issuing maintenance and responsive work to a Multi-trade contractor can now successfully transfer the control of a workplace, not only limiting personal exposure, but ensuring the correct procedures and requirements are followed to allow governed safety within the workplace.
Over the years government agencies, such as Housing NSW, have progressively moved from using single trade to multi-trade contractors. These multi-trade head contractors employ systems and documented procedures to help mitigate workplace risk. Audited periodically from independent parties, it is ensured that they are following typical risk controls such as the induction of sub-contractors and site ‘Safe Work Method Statements’ (SWMS).
For some time now, an uncertainty has existed about specific issues stated in various Acts. Take for example Exemption Order 041/07 – OHS&R 2001 NSW whereby some believe that Strata Managers are exempt from Occupational Health and Safety obligations within the Act. In 2008, legal advice sort by the Institute of Strata Management Ltd confirmed that while Owners Corporations may be exempt from certain requirements, the controller of the workplace is responsible for everything.
So what is the risk involved with a simple maintenance task? Say for example a plumber is engaged by a Strata Manager to repair a water leak. The plumber visits the site, identifies the location of the leak, removes a section of wall for access and undertakes the repair. Easy? Not always. Later it is found that the plumber disturbed a wall lining containing asbestos within a common area stairwell. Broken asbestos dust has spread throughout the common area. What happens now? Who is responsible?
The Code of Practice for the Safe Removal of Asbestos (NOHSC:2002(2005))states that the owner is responsible to provide all workers on the site with a hazardous material report. Should this report not be issued, Workcover will become involved and commence investigations.
The New South Wales Court of Appeal recently found in Laresu Pty Ltd v Clark [2010] NSWCA 180 (Laresu v Clark) that Strata Managers can be regarded as ‘occupiers’ or ‘controllers’ of the property and owe a duty akin to that owed by the owner. In this same case it was also found that a Strata Managing Agent could also be found liable for an injury occurring on common property – salient proof that Strata Managers are not exempt from Occupational Health and Safety laws.
According to the OH&S Regulations 2001, the maximum fines for non compliance include:
(a) in the case of a corporation (being a previous offender)- $825,000,
(b) in the case of a corporation (not being a previous offender)- $550,000,
(c) in the case of an individual (being a previous offender)- Toilet Plumbing Parts $ 82,500 or imprisonment for 2 years, or both
In the event of reckless conduct causing death the maximum possible fines are now:
(a) for Owners Corporations Difference Between Faucet Stem And Cartridge $1.65 million
(b) for individuals $165,000 and up to 5 years jail
The evidence is clear. It is now vital that Strata Managers and Owners Corporations engage qualified and experienced firms to undertake work on their premises.

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