7 Things Strata Principals Should Do Immediately To Manage Their Risk Of Personal Liability For WHS Accidents

The WHS prosecution against a strata management company for the death of a worker on a small commercial strata site has been concluded. We wrote about the case here. 

The strata management company has been fined $150,000 plus the prosecutors’ costs. There is no insurance available to cover this type of penalty. 

Here are a couple of interesting observations about the sentencing judgement – 

• The strata management company’s breach of duty arose when a large sliding gate that had been damaged by a car and some days later crushed and killed a worker trying to open it manually.
•  The particulars of the breach included not requesting urgent repairs, not arranging an urgent risk assessment, not having the gate tagged as out of commission, and not warning of danger by having signs placed on the gate. 
• The strata management company was found not to be as culpable as the deceased’s employer or the owners corporation that were fined $ 375,000 and $225,000 respectively (excluding costs). 
• The damaged gate that caused the death was out of commission for 8 days and no urgency was assigned to the repairs whereas a water meter damaged on the same day was assigned urgency and fixed on a same day basis.
• The strata management company had no excuse for its breach of duty of care because it had a concurrent duty of care under the WHS laws and had an agreement with the OC that provided for the strata management company to do additional work required to make the workplace safe for which it could charge the OC.
• That the strata management company implemented new WHS procedures and documentations after the accident that should have been in place beforehand. This was considered a mitigating factor in fixing the penalty, as was the early plea of guilty. 

Here are 7 things strata management principals should do immediately to manage their risk of personal liability for WHS incidents in strata sites they manage – 

1. Get advice from your accountant or financial advisors about personal asset protection. Maximum fines for WHS can be more than $1M.
2. Document your WHS procedures in your practice manual and supervision guidelines and train your staff on an ongoing basis about WHS. These documents and processes should make health and safety the first concern in all repair and maintenance cases. 
3. Explain the nature of the WHS concurrent duty of care to lot owners when you welcome them to the strata and in your new committee induction packs. 
4. Make WHS a standing item on each AGM and committee meeting with an explanatory note advising owners about WHS duties in strata schemes on the OC and strata manager. 
5. Review you pricing for risk associated with WHS particularly in mixed-use and commercial strata. 
6. Nominate one person on your team to subscribe for and share relevant the Safe Work Australia bulletins and alerts for guidance on WHS practice and procedure. 
7. Apply health and safety values at our own workplace, including for protection of mental health of your team including from being overworked and/or being abused and harassed by difficult strata owners. 

It’s easy to be wise with the benefit of hindsight when it comes to WHS, however the maximum size of the penalty’s involved for a breach of duty of care signals the importance placed on workers safety by government and the community at large.  Developing a safety culture in your practice and working steadily to monitor and improve your processes will mitigate risks to workers and your personal financial security.