Work Health & Safety – QLD
Committee Responsibilities?
Does the committee have responsibilities under WH&S Act 2011?
A body corporate committee has an existing responsibility, under both statute and common law, to
maintain common property.
If it has been determined that your body corporate is a “person
conducting a business or undertaking” (“PCBU”) and
therefore subject to the Work Health and Safety Act 2011 the
legislation imposes additional specific duties on body corporate
officers.
1. Who is an Officer
Broadly, an officer of a PCBU is a person who makes, or participates in making, decisions that affect
the organisation’s activities. A voting member of the committee would, in all likelihood, be an
officer.
2. Duty of an Officer
The WH&S Act 2011 introduces and imposes a specific duty on officers to exercise due diligence
to ensure that the PCBU meets its work health and safety obligations. This duty applies irrespective
of whether there has been an incident.
Officers are deemed to be liable for health and safety offences committed by their corporation
unless they can show they proactively exercised proper diligence to ensure that the corporation
complied with the WHS Act. In the absence of materials showing that they have acted with due
diligence, it will be difficult to prove that both they and the corporation did not commit health and
safety offences.
3. Volunteer Officers
While still required to exercise due diligence, officers who are volunteers cannot be personally
prosecuted under the WH&S Act 2011 for an offence as an officer. A committee member would be
considered a volunteer officer if working on a voluntary basis without payment or reward (although
some may receive compensation for out-of-pocket expenses).
However, a volunteer could also be considered a worker under the legislation. An individual can have
more than one role and as a worker you have a duty to take reasonable care that your acts or
omissions do not adversely affect your own and other peoples’ health and safety. As a volunteer
worker you may be held liable, if you do not comply with these duties.
What is due diligence?
The Queensland Government’s guide to the Work Health & Safety Act 2011 explains that in
demonstrating due diligence, officers will need to show that they have taken reasonable steps to:
•
acquire and update their knowledge of health and safety matters;
•
understand the operations being carried out by the person conducting the business or
undertaking in which they are employed, and the hazards and risks associated with the
operations;
•
ensure that the person conducting the business or undertaking has, and uses, appropriate
resources and processes to eliminate or minimise health and safety risks arising from work
being done;
•
ensure that the person conducting the business or undertaking has appropriate processes in
place to receive and respond promptly to information regarding incidents, hazards and risks;
•
ensure that the person conducting the business or undertaking has, and uses, processes for
complying with duties or obligations under the WHS Act 2011.
Can the Body Corporate insure against offences under the WH&S Act 2011?
We have been advised by our Insurance Broker that all Body Corporate Insurance Polices exclude
cover for any “Liability imposed by the provisions of legislation”. This exclusion also extends to
include any fines that arise as a result of a breach of the legislation. Accordingly the intent of this
exclusion is to omit Workplace Health and Safety Fines for Bodies Corporate.
Last updated: August 2012
Disclaimer: The information provided above is a general guide only and not intended as a substitute for legal advice.
The company disclaims all responsibility and all liability for any expenses, losses, damages and costs which might be
incurred as a result of the information provided by the company in this article.