A presentation for QBM 9 April 2013

1. WHS
Compliance
Using
the
Due
Diligence
Defence
A Presentation for QBM April 2013

2. A
Body
Corporate
Duty
of
Care
is
Three
Dimensional

3. The
New
WHS
Approach
PCBU
‘Work’
is
the
PosiCve
duty
Significantly
concurrent
key
concept
for
officers
to
increased
duCes
of
care,
not
exercise
due
personal
consultaCon
&
‘Workplace’
diligence
liability
co-­‐operaCon

4. Work
Health
Safety
Stakes
Are
Higher
• Recklessness
/
risk
– OC
/
BC
$3million
– Volunteer
commiRee
-­‐
Nil
– CommiRee
honorarium
$600,000
/
5
years
jail
– SM
$300,000
/
5
years
jail
• Breach
/
risk
– OC
/
BC
$1.5
million
– Volunteer
commiRee
-­‐
Nil
– CommiRee
honorarium
$300,000
– SM
$150,000
• Breach
– OC
/
BC
$500,000
– Volunteer
commiRee
-­‐
Nil
– CommiRee
honorarium
$100,000
– SM
$50,000

5. But
the
Defence
for
Personal
Liability
is
Clearer
1. Keep
up
to
date
2. Understand
operaCons
3. Eliminate
or
minimise
risks
4. Process
informaCon
5. Supply
resources
and
processes
6. Verify
provision
and
use
of
resources
and
processes
(Due
diligence
defence
S.27(5)
WHS
2011)

6. Persons
Who
Are
Not
A
PCBU
A
strata
body
that
is
responsible
for
any
common
areas
used
only
for
residenCal
purposes
is
not
a
PCBU
so
long
as
no
worker
is
engaged
as
an
employee
(s.7
WHS
Act
2011)

7. Not
Only
For
ResidenCal
Purposes
• OC
/
BC
employees
• Common
property
with
commercial
lots
• On-­‐site
lecng
agent
• Lots
used
as
home
businesses
• Nannies
employed
in
lots
• Lots
for
short
term
accommodaCon
• CommunicaCon
towers
/
satellite
dish
/
adverCsing
signs

8. The
Basic
WHS
Duty
of
Care
“To
ensure,
so
far
as
is
reasonably
pracCcable,
the
health
and
safety
of
workers
and
other
persons”
Hargreaves
v
Telstra
Corp
Ltd
[2011]
AATA
417
(17
June
2011)
is
the
high
water
mark

9. The
Latest
From
the
High
Court
on
Safe
Systems
• Amputee
slipped
on
chip
• “Reasonable
care
requires
the
inspecCon
and
removal
of
slipping
hazards
at
intervals
not
greater
than
20
minutes”
• Damages
awarded
$580,299.12
+
costs
Strong
v
Woolworths
[2012]
HCA
5,
7
March
2012

10. A
Strata
Body’s
General
DuCes
About
Asbestos
• To
ensure
that
exposure
to
airborne
asbestos
is
eliminated
or
minimised
so
far
as
reasonably
pracCcal
• To
ensure
that
exposure
standards
for
asbestos
are
not
exceeded
s.420
WHS
RegulaCons
2011

11. Your
Insurance
Does
Not
Cover
This
Risk

12. Strata
Bodies
Have
Unlimited
Liability
• An
uninsured
owners
corporaCon
or
body
corporate
must
sCll
pay
a
damages
award
• Unlike
shareholders
and
club
members,
lot
owners
do
not
have
limited
liability
• An
administrator
will
be
appointed
to
strike
a
levy
to
cover
damages
and
costs

13. Think
3-­‐D
‘DemonstraCng
Due
Diligence’

14. We
Can
Help
You
Develop
a
SystemaCc
Approach
to
Due
Diligence
• 27
page
checklist
style
report
• Specifically
addresses
the
6
due
diligence
requirements
• Contains
8
easy
to
use
forms
and
precedents
• Customised
for
each
OC
/
BC
at
$395
+
GST

15. About
the
Presenter
About the presenter - Michael Teys is the Founder and Principal Lawyer of
TEYS Lawyers. He has a Bachelor of Laws and practices exclusively in the
area of strata title law. He is a Fellow of the Australian College of
Community Association Lawyers. He was formerly an Adjunct Lecturer with
Charles Sturt University. He appears weekly on SKY News Business
Channel's Property Success with Margaret Lomas and is a regular panellist
for the property edition of Your Money, Your Call for the same channel. You
can read Michael’s blog at www.michaelteys.com and follow him on Twitter
at @MichaelTeys.com
Teys Lawyers practice nationally in strata title law representing owners corporations, bodies
corporate and apartment owners. The firm’s practice groups include building defects, strata
community disputes, strata titles property law, by-laws and levy collection.
Subscribe for their free e-newsletter StrataSpace and find out more about them at
www.teyslawyers.com.au