ACT OCN - Unit Titles Law - What's New, What's Next, What Now?

© Copyright 2012 Teys Lawyers www.teyslawyers.com.au

About the presenter - Michael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He has a Bachelor of Laws and practices exclusively in the area of strata title law. He is a Fellow of the Australian College of Community Association Lawyers. He was formerly an Adjunct Lecturer with Charles Sturt University. He appears weekly on SKY News Business Channel's Property Success with Margaret Lomas and is a regular panellist for the property edition of Your Money, Your Call for the same channel. You can read Michael’s blog at www.michaelteys.com and follow him on Twitter at @MichaelTeys.com

Teys Lawyers practice nationally in strata title law representing owners corporations, bodies corporate and apartment owners. The firm’s practice groups include building defects, strata community disputes, strata titles property law, by-laws and levy collection.

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Unit Titles Law – What’s New, What’s Next, What Now?


Unit Titles Law ACT – What’s New, What’s Next, What Now? PresentaEon April 2012


What’s New? More Personal Responsibility

Privacy Conduct

Health & Safety


Privacy Laws Apply to Records

EC members have responsibility for privacy compliance

Corporate register contains personal informaEon and

must be separately displayed, printed or

emailed

LimitaEons on human rights to privacy are

proporEonate


Personal InformaEon Held by OC’s and Managers

Names

Addresses

Email addresses Telephone numbers

Property descripEons and

valuaEons

Tenancy details Owners credit card details

Bank account details for suppliers

SomeEmes proof of personal idenEficaEon


What Do Strata Managers Do With This InformaEon?

What?

Allowed or not?

Give it to strata inspectors

Required by strata management laws

Give it to the execuEve commiXee Probably not allowed under NaEonal Privacy Principles

Give it to web hosEng companies Probably not allowed under NaEonal Privacy Principles

Give it to strata management soYware providers

Probably not allowed under NaEonal Privacy Principles

Give it to associated suppliers for cross markeEng (e.g. banks )

Probably not allowed under NaEonal Privacy Principles

Throw it in the rubbish (paper and redundant IT)

Not allowed under NaEonal Privacy Principles


What Should Owners Do to Manage Privacy?

• Limit informaEon collected to that which is absolutely necessary

Limit

• Secure info electronically and give traceable access only

• Use privacy policies

Protect • Audit privacy policies

• Audit strata managers document security processes

Check


A New EC Code of Conduct

1.  Understanding of Act 2.  Honesty and fairness 3.  Care and diligence 4.  Best interest 5.  Compliance 6.  Nuisance 7.  Unconscionable

conduct 8.  Conflict of interest


What Is Reasonable Care & Diligence?

diligence / noun constant and earnest effort to accomplish what is undertaken; persistent exerEon of body or mind

Macquarie DicEonary 4th EdiEon

For example:

•  Checking references and insurance policy of a new strata manager

•  Considering external advice and only acEng otherwise in special circumstances

•  Finding out about responsibiliEes and Eme limitaEons in building defect maXers


The New WHS Approach

‘Work’ is the key concept

not ‘Workplace’

PCBU concurrent

duEes of care, consultaEon & co-‐operaEon

PosiEve duty for officers to exercise due diligence

Significantly increased personal liability


Work Health Safety Stakes Are Higher

•  Recklessness / risk –  OC / BC $3million –  CommiXee $600,000 / 5 years jail

–  SM $300,000 / 5 years jail •  Breach / risk

–  OC / BC $1.5 million –  CommiXee $300,000 –  SM $150,000

•  Breach –  OC / BC $500,000 –  CommiXee $100,000 –  SM $50,000


But the Defence for Personal Liability is Clearer

1.  Keep up to date 2.  Understand operaEons 3.  Eliminate or minimise risks 4.  Process informaEon 5.  Supply resources and

processes 6.  Verify provision and use of

resources and processes (Due diligence defence S.27(5) WHS 2011)


Persons Who Are Not A PCBU

A strata body that is responsible for any common areas used only for residenEal purposes is not a PCBU so long as no worker is engaged as an employee (s.7 WHS Act 2011)


Not Only For ResidenEal Purposes •  OC / BC employees •  Common property with

commercial lots •  On-‐site lepng agent •  Lots used as home businesses •  Nannies employed in lots •  Lots for short term

accommodaEon •  CommunicaEon towers /

satellite dish / adverEsing signs


The Basic WHS Duty of Care

“To ensure, so far as is reasonably pracEcable, the health and safety of workers and other persons” Hargreaves v Telstra Corp Ltd [2011] AATA 417 (17 June 2011) is the high water mark


The Latest From the High Court on Safe Systems

•  Amputee slipped on chip •  “Reasonable care

requires the inspecEon and removal of slipping hazards at intervals not greater than 20 minutes”

•  Damages awarded $580,299.12 + costs

Strong v Woolworths [2012] HCA 5, 7 March 2012


A Strata Body’s General DuEes About Asbestos

•  To ensure that exposure to airborne asbestos is eliminated or minimised so far as reasonably pracEcal

•  To ensure that exposure standards for asbestos are not exceeded

s.420 WHS RegulaEons 2011


Your Insurance Does Not Cover This Risk


Strata Bodies Have Unlimited Liability

•  An uninsured owners corporaEon or body corporate must sEll pay a damages award

•  Unlike shareholders and club members, lot owners do not have limited liability

•  An administrator will be appointed to strike a levy to cover damages and costs


What’s Next?

•  Increased focus on sinking funds (ACT Greens)

•  Forcing faster unit owner acEon on building defects (NSW lead)

•  Building quality reforms (ACT Building Act review)


5 Things Owners Should Do Now

1.  Adopt a privacy policy

2.  Demonstrate reasonable care and diligence

3.  Commission health and safety audit

4.  AXend to asbestos

5.  Develop governance principles