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Posted 04 September 2024
Category: Strata, WH&S
The District Court has made its third decision following on from our articles regarding SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274 and SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277, but this time against the strata managing agent (the “Managing Agent”).
To briefly summarise the findings of these three cases:
In SafeWork v Maluko, the employer, ‘Maluko’, was found liable for failing to comply with its work health and safety duty owed as a person conducting a business or undertaking (PCBU) pursuant to section 19 of the Work Health and Safety Act 2011 (NSW) (‘Act’); which exposed Mr Jose Martins to a risk of death or serious injury contrary to section 32 of the Act. Maluko plead guilty and were penalised $375,000 plus $44,000 in costs.
In SafeWork v SP93899, the ‘Owners Corporation’, also as a PCBU was found liable for failing to comply with its work health and safety duty but as a ‘person with the control and management of a workplace’ (PCMW) pursuant to section 20(2) of the Act; and thereby exposed persons, including Mr Martins, to a risk of death or serious injury contrary to section 32 of the Act. SP93899 plead guilty and were penalised $225,000 plus $40,000 in costs.
In Safework NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360, the Court found that the Managing Agent, as a PCBU had also breached its work health and safety duty as a PCMW under section 20(2) of the Act and thereby exposed persons, including Mr Martins, to a risk of death or serious injury contrary to section 32 of the Act. The Strata Managing Agent plead guilty and were penalised $150,000 plus costs.
The critical provision again section 20(2) of the Act provides that a PCBU:
“… must ensure, so far as reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.”
The details of the case are explored below but following this most recent decision against the Managing Agent, strata managing agents will be surprised to find that they can be found as a PCMW in so far as their client’s properties are concerned and strata managing agents will want to ensure that they have:
Prosecution’s Case against the Managing Agent
“The defendant failed to ensure so far as is reasonably practicable, that the
means of entering and exiting the Site, were without risks to the health and
safety of any person, and in particular Mr Martins, in that it failed to take one or
more of the following reasonably practicable measures to eliminate, or
alternatively minimise if not reasonably practicable to eliminate, the risks to the
health and safety of any persons:
(a) Require that a competent person promptly repair or replace the
damaged Gate after the defendant was notified on 5 June 2020 of the
motor vehicle incident resulting in damage to the Gate.
(b) Arrange for the damaged Gate to be immediately tagged out, or
otherwise taken out of service to prevent it from being manually
operated, until repairs or replacement of the Gate had been completed
by a competent person.
(c) Communicate to the owners at the Site such as by use of warning
signs, exclusion zones and/or temporary barricades that the damaged
Gate should not be operated unless and until such operation of the
Gate was deemed to be safe by a competent person.
(d) Confirm and follow up with relevant competent persons the required
timeframes for repair or replacement work, to be undertaken, once the
defendant had been notified by the Owners Corporation of the damage
to the Gate.”
Guidance Material
In short, the above guidance material provides that when plant is damaged and poses a risk to health and safety, it should be immediately withdrawn from service until the risks have been controlled. Some key steps to manage risks of damaged plant are as follows:
By following these steps, strata managing agents can ensure damaged plant is quickly taken out of service, repaired by qualified personnel, and appropriate precautions are in place until the plant is restored to safe working condition. This helps eliminate the risks posed by damaged plant and fixtures.
The Managing Agent’s Conduct following the Incident
The events following the collision highlight significant lapses in safety management and operational protocols by the Managing Agent, raising concerns about the effectiveness of their risk assessment processes and adherence to safety standards.
Incident Overview
Courts Findings
The court findings regarding the Managing Agent’s culpability were found to be at the lower end of the mid-range, based on several key factors:
The court’s ruling emphasises the importance of adhering to safety protocols and the legal responsibilities of managing agents in ensuring the safety of common property in strata schemes.
Parity Principle in Sentencing
The principle of parity in sentencing was a key consideration in these cases, which posits that sentences for similar offences should not differ significantly to avoid a sense of injustice among offenders. The court recognised that while the culpability of the parties involved may differ, the overall penalties must reflect the seriousness of the breaches while ensuring fairness in sentencing.
The Managing Agent’s Level of Culpability
The Court’s findings regarding the culpability of the Managing Agent compared to the Owners Corporation highlight several key points:
Overall, the Court concluded that the Managing Agent’s level of culpability was less than that of the Owners Corporation due to their lack of direct involvement and the absence of critical information regarding the gate’s condition and the urgency of repairs.
Mitigating Factors
The mitigating factors which were considered by the Court was that the Managing Agent:
Take Away
These cases underscore the critical importance of adhering to health and safety regulations in the strata industry. They serve as a reminder for owners corporations and managing agents to implement robust safety procedures and create a culture to protect the health and safety of all individuals on their premises. The outcomes also highlight the legal ramifications of failing to meet these obligations, reinforcing the need for compliance in the strata industry.
This is a complicated area and one in which the strata industry is largely non-compliant but we can assist with:
Related articles
Important WH&S Case Update for the Strata Industry: Part 1
Important Work Health & Safety Case Part 2: Owners Corporation fined $225,000.00 as a PCBU
Work Health and Safety Implementation Guide
Work Health & Safety Act 2011 and the Work Health & Safety Regulation 2011
Is Your Strata Scheme Exempt From Complying With WH&S?
Safety Reports in Strata Schemes and Occupiers Liability
Owners Corporation’s Duty to ensure safety of the Common Property