Units, apartments and townhouses operating under a community title scheme (sometimes also known as 'strata title') have a body corporate established to administer the common property of the complex on behalf of its owners (see: Body Corporate and Community Management Act 1997).
The term 'body corporate' is used in the context of a community titles scheme. Section 32 of the BCCM Act provides that the Corporations Act 2001 (Cth) does not apply to a community title scheme body corporate.
The content on this page includes:
- Duties under the WHS Act
- Community title scheme body corporate ('body corporate')
- Body corporate officers
- On-site managers of a body corporate
- High risk plant and dangerous goods
- Further information on non-WHS issues and community titles schemes
While most will be owner occupied or leased to tenants, some complexes will vary by:
- operating as holiday rental properties
- having mixed purpose use (e.g. shops and restaurants on the ground floor of a high rise residential unit block)
- having on-site management to oversee property management and rental.
Duties under the WHS Act
This page outlines the instances in which apartment owners and bodies corporate have obligations under the WHS Act. Briefly:
- general WHS duties – an apartment owner or body corporate will have duties under the WHS Act if it falls under the description of a 'person conducting a business or undertaking' (PCBU)
- high risk plant and dangerous goods - even where a body corporate is not categorised as a PCBU, in the interests of public safety, it still has duties under the WHS Act with regards to high risk plant and dangerous goods.
An owner or occupier of a unit, apartment or townhouse used for residential purposes only has duties under the WHS Act (the WHS Act) only if the owner/occupier falls under the definition of a 'person conducting a business or undertaking' (PCBU) for the purposes of the WHS Act and conducts that business or undertaking on the premises.
Even if an individual apartment owner, as a PCBU, has duties under the WHS Act, this does not affect the applicability of the WHS Act to the body corporate. Whether or not a body corporate has WHS duties depends on the activities of the body corporate – not that of any individual apartment owner.
Community title scheme body corporate ('body corporate')
Under the WHS Act, a body corporate which uses its common areas for residential purposes only and does not employ a worker under a contract of service is not regarded as a PCBU. Note, that, where a body corporate engages a person to do repairs (e.g. an electrical contractor), this does not make the body corporate a PCBU for the purposes of the WHS Act.
However, if the body corporate engages any worker as an employee, it will be treated as a PCBU and owe the following duties as a PCBU and/or as a person with management and control of a workplace (PWMC) under the WHS Act:
- ensuring, as far as reasonably practicable, the health and safety of its workers in the workplace
- ensuring, as far as reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace do not pose risks to the health and safety of any person
- ensuring, as far as reasonably practicable, that the fixtures, fittings and plant do not pose any risks to the health and safety of any person.
If the body corporate is responsible for common areas used for commercial purposes (e.g. shops or restaurants), it is considered to be undertaking a business or undertaking. Accordingly, as a PCBU, it has duties of care under the WHS Act for these areas.
Body corporate officers
Where the body corporate is responsible for common areas used only for residential purposes (and so is not regarded as a PCBU), the WHS Act does not apply and officers of the body corporate do not have 'officer' duties under the WHS Act.
If the body corporate is a PCBU, then the WHS Act applies and its officers must exercise due diligence to ensure that the body corporate complies with its duties under the WHS Act (see s27). Volunteer members of the body corporate are excluded from being prosecuted as officers under the WHS Act; however they can be prosecuted in their capacity as a worker if they fail to meet the duties of a worker under the WHS Act.
On-site managers of a body corporate
A body corporate may decide to engage or employ an on-site manager to:
- arrange for contractors to carry out maintenance and other work on the common property of the residential complex
- arrange for short term property rentals.
Under the BCCM Act, resident managers are engaged by the body corporate under a contract for service. If the body corporate engages an on-site manager as a contractor and is responsible for residential common areas, it would not be regarded as a PCBU under the WHS Act. If a community title scheme manager lives on-site, the manager may use their domestic premises to carry out work for the body corporate or a separate office area for managing the complex.
High risk plant and dangerous goods
The WHS Act applies to the storage and handling of dangerous goods, even if the dangerous goods are not at a workplace or for use in carrying out work. Therefore, even where a body corporate does not meet the definition of a PCBU, it must comply with the duties imposed by the WHS Act and WHS Regulation regarding the storage and handling of dangerous goods. It also applies to the operation or use of high risk plant, affecting public safety, even if the plant is not situated, operated or used at a workplace or for use in carrying out work.
Specifically, WHS duties apply if high risk plant and dangerous goods are stored in quantities over the statutory threshold (s.328, table 328 of WHS Regulation) at the complex.
These duties include the:
- management of risks for high risk plant and dangerous goods
- registration, maintenance and inspection of the high risk plant and dangerous goods.
Dangerous goods' refers to:
- anything defined under the Australian Code for the Transport of Dangerous Goods by Road and Rail (ADG Code) as dangerous goods
- goods too dangerous to be transported.
'High risk plant' includes (but is not limited to the following):
- air-conditioning units
- cooling towers
- liquefied petroleum gas (LPG) cylinders.
Further information on non-WHS issues and community titles schemes
The BCCM Act is administered by the Department of Justice and Attorney-General.