Answer: Can a caretaker refuse roof cleaning duties under WHS rules? If so, can the body corporate recover the cost of this maintenance from the caretaker?
Our caretaker has not performed a key duty of checking and cleaning all roofs and box gutters each month as outlined in the service agreement in over 10 years.
After recent weather damage, we discovered that the uncleaned gutters contributed to the issue. The caretaker claims this task falls outside the agreement, which excludes work requiring a skilled tradesperson or specialist.
The service agreement dates back to 2008, before the current WHS “working at heights” regulations took effect. The building is four storeys high with a flat roof, internal access, and anchor points that meet height safety standards.
Would this task require a skilled worker under current WHS regulations? If not, should the caretaker resume the service with proper training and PPE?
If the caretaker is not responsible, can the body corporate hire external contractors and recover the cost? Alternatively, can we formally remove the task from the agreement and adjust their pay?
Answer: The ability to have the caretaker pay for the costs of a third party to perform the work will depend on the terms of the agreement.
Whether the duty to clean gutters is a caretaking duty will depend upon the precise wording of the clauses (and any exceptions). However, it does sound like it would be a specialist task if the gutters are four stories high and require the use of anchor points and the like.
The ability to have the caretaker pay for these costs of a third party to perform the work will also depend on the terms of the agreement.
The body corporate and the caretaker can agree to amend the agreement to remove the duty and adjust any remuneration to avoid a dispute on the issue.
I would suggest that the committee consider seeking specific legal advice on the precise terms of the agreement.
This post appears in Strata News #754.
Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753