Question: In what circumstances is the body corporate a PCBU under the WHS Act?
Our body corporate engages a service provider who lives in his own lot of the complex to provide onsite caretaking and letting business and does not employ anyone else. Is a body corporate a PCBU under the WHS Act?
I have come across two different answers to this question that contradict each other.
I read that a body corporate will be a PCBU if any of the lots or common property are used for non-residential purposes, including letting businesses conducted by owners under management rights business agreements.
I also found information on the WorkSafe website suggesting that even if an individual owner conducts a business on the premises and is considered a PCBU under the WHS Act, it does not automatically make the body corporate a PCBU. Instead, whether or not the body corporate is a PCBU depends on the activities of the body corporate as a whole rather than of any individual owner.
Could you please clarify whether the body corporate can be regarded as a PCBU in our scenario?
Answer: The predominant view among lawyers in the industry is that if a letting agent uses the common property as part of their letting business, the body corporate is caught within the ambit of being considered a PCBU.
The predominant view among lawyers in the industry is that if a letting agent uses the common property as part of their letting business, the body corporate is caught within the ambit of being considered a PCBU.
I am aware that the WorkSafe Qld website indicates a less stringent view on bodies corporate but I do not think a body corporate would be able to rely on the website’s statement if something were to take place and enforcement action were to be undertaken against the body corporate under the WHS Act.
This post appears in the May 2023 edition of The QLD Strata Magazine.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
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