The subject of Occupational Health and Safety (OHS) has come up again; particularly since February 2014 when the OHS Act Construction Regulations 2014 were gazetted. (A copy of these regulations can be found here.)
Can a Trustee be held responsible?
When you read these regulations, there is no doubt that trustees are responsible for the safety of workers on common property. While I believe that trustees were always responsible, the new regulations seem to highlight this and bring some clarity.
Can a Managing Agent be held responsible?
The managing agent has contractual obligations and the Prescribed Management Rules provide for a managing agent to be appointed to control, manage and administer the common property. This implies that a managing agent is responsible but it depends on their role in terms of their management contract.
How should a Trustee deal with this?
The common property should be inspected by a suitably qualified safety and loss control consultant or a risk assessment should be done by such a person. This inspection should incorporate risks such as fire extinguishers, stairways, handrails, balustrades, gates, swimming pool compliance, etc. At the same time, OHS compliance can be also be attended to. This person should assess the property, assist the body corporate in preparing the required Specification Document and advise of the procedure to follow when contractors work in the common areas.
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How should a Managing Agent deal with this?
Managing Agents should encourage trustees to see to it that all safety aspects are adhered to, including OHS. It is a good idea for a Managing Agent to coach trustees in this regard and to encourage the use of NAMA affiliated contractors who know and understand the risks associated with sectional title and common property.
Is there insurance to protect trustees and managing agents should injuries occur?
We do not know of any policy which provides a get out of jail free card or which will pay the fines imposed. For this, you cannot transfer the risk. However, liability arising from civil action can be covered and may well already be included under standard policies in place. If there are gaps or if the body corporate would like to take additional cover, a new product namely Saxum OHSI Insurance is available.
Most liability or Professional Indemnity policies require or expect the insured to take all reasonable steps to prevent loss and comply with OHS legislation. While insurance is available to protect the body corporate (trustees) and managing agents to some degree, the key is to comply with the requirements. It is not financial protection that is required as the first priority but to prevent someone from being injured or suffering a loss due to non-compliance.
Author: Mike Addison, Addsure
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