WHS and duty of care for owners and strata managers

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.