How A Sensible Push For Nationalised Laws can Go Horribly Wrong

The strata industry Australia-wide is set to undergo major reform on 1 January 2012 if the proposed national harmonisation of work health and safety laws proceeds as planned. The push for the new laws in NSW received the support of the NSW Business Chamber on the weekend (Australian Financial Review Monday 11 April 2011).

Working papers released on the weekend show major companies are concerned that the draft harmonisation laws are unclear, will create more red tape and health and safety representatives would get more powers. The federal opposition, at odds with their colleagues in the new O’Farrell government in NSW, is also critical of the proposed reforms.

Reviewing the laws last week as they apply to owners corporations, I reluctantly came to the same conclusion. I am a great advocate for uniform state and territory laws on as many fronts as possible but this one has some unresolved issues that could send us all into a spin and result in mass confusion for strata owners and managers alike right around the country.

The question is whether work health and safety laws should apply at all to strata communities. The starting point is that these laws don’t apply to freestanding houses so why should they apply to residential apartments that happen just to share floors, walls and ceilings?  On this premise, in 2002 the NSW OH and S boffins had a crack at exempting “residential strata” and we have spent the past nine years or so, unsuccessfully trying to work out what that means.

The fact is, the so called exemption applies only to a very limited number of provisions but the word ‘exemption’ in the context of residential strata in a Google search engine, has meant that anyone looking for a reason not to spend money on compliance, has argued that the laws don’t apply. Meanwhile in Queensland and Victoria, where it is clear the laws do apply, strata communities have largely got on with the job and quite well understood and developed safety regimes have been put in place, at least in the major buildings where these things are taken seriously.

The proposed harmonisation laws that await us when we wake up with hangovers on January 1 lead us down the NSW path of mayhem and confusion of partial exemption for residential strata. Executive committees and strata managers will have no clear-cut guidance from the new laws about what safety regime applies when management rights are in place, what happens if someone is working from home and what applies when some apartments are being used for holiday letting or serviced/executive apartments?

A clear-cut yes or no to the application of the new national laws will be better for everyone than the quagmire of messy what ifs and maybes that await us if we don’t act soon to clarify the laws before they come into play.

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