By the Paddocks Club team

Below are examples of two questions on the Paddocks Club discussion forum, to show you what is available to our Community members!

Are community schemes required to appoint a health and safety officer?

Member’s question:

Good day Paddocks,

Are bodies corporate and Home Owners’ Associations required to appoint a health and safety officer?

Jennifer’s answer:

Dear member,

Bodies corporate and home owners’ associations are not required to comply with OH&S legislation unless they directly employ a worker.

If a body corporate or HOA engages a worker as an employee, for example a gardener or caretaker, then the BC/HOA will have all the duties of an employer under the OHS laws. However, engaging independent contractors to do repairs and maintenance on common property does not make the BC/HOA an employer.

So as a general rule – no, BCs and HOAs are not required to appoint an OH&S officer, but community schemes that employ a number of workers may choose to do so.

Regards
Jennifer

Member’s further question:

Thank you Jennifer.

So if a contractor is on site at a complex, and they don’t have OHS files, where does the liability fall?

Jennifer’s answer:

Dear member,

Here is an extract from an article Graham wrote on OH&S in ST schemes giving his views on BC contractors and OH&S which you might find helpful:

“If a sectional title body corporate engages a worker as an employee, for example a gardener or caretaker, then the body corporate will have all the duties of an employer under the OHS laws. However, engaging independent contractors to do repairs and maintenance on common property does not make the body corporate an employer… 

When the body corporate employs independent contractors to work on the common property it should ensure that its contract obliges the contractor to comply with all OHS laws when working on common property. In addition the trustees should advise the contractor of any known risks on the common property, and oblige the contractor to produce a copy of a health and safety plan that addresses any known risks. For example, if the independent contractor’s employees will be working at height, on the roofs of the building, the trustees should check that there is a plan to avoid falls from ladders and from the roofs and to resolve any safety issues that may arise. Where high risk work is required, the body corporate must take reasonable steps to ensure that the contractor has complied with OHS laws.”

Ideally a BC wouldn’t engage a contractor that isn’t OH&S compliant. But in the situation you describe, I think where the liability falls would depend on the cause of the accident. If the BC had failed in its statutory and common law duty to properly maintain and repair the common property so that it is safe to use by all who use it, then the injured party may well be able to claim loss and damages from the BC (which hopefully would be covered by the BC’s public liability insurance). On the other hand, if the cause of the accident was the contractor’s lack of compliance with OH&S laws then the injured party may have a claim against his employer (if he is employed), or if he works for himself – he would have no one to blame but himself.

Member leaves AGM after voting with voting slip

Member’s question:

Hi Team,

One of the owners at an AGM completed his voting card and handed his voting card in before the meeting came to an end and left.

Kindly advise if this voting card is valid, he left early but completed his voting card on all the agenda items.

Jennifer’s answer:

Dear member,

I can see how this could be a difficult issue, as the voting card appears to make it clear how the owner would have voted if he had remained at the meeting. However, the law only provides two options, owners can either cast their votes in person or appoint a proxy to appear in person and cast their vote.

PMR 20(1)(b) requires motions at general meetings to be adopted by resolution of the majority of owners in value of the members “present and voting”. As such, this member’s voting card would only be valid in respect of motions (if any) voted upon when he was actually present at the meeting. In regards to any motions voted upon when he was absent, his votes do not count as he was not “present” for the purposes of PMR 20(1)(b).

The chairperson would also need to consider how this owner’s presence and then absence affected the meeting’s quorum. If, once the owner left the meeting, there was no longer a quorum, the meeting would not be able to validly deal with any further business on the agenda.

Kind regards
Jennifer

---

Article reference: Paddocks Press: Volume 17, Issue 11.

Graham Paddock is available to answer questions on the Paddocks Club discussion forum for Community members. Get all your questions answered by joining Paddocks Club.

This article is published under the Creative Commons Attribution license.

Back to Paddocks Press – November 2022 Edition.