ACT OCN - Unit Titles Law - What's New, What's Next, What Now?
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Transcript of 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.
Subscribe for their free e-newsletter StrataSpace and find out more about them at www.teyslawyers.com.au
Unit Titles Law – What’s New, What’s Next, What Now?
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
Unit Titles Law ACT – What’s New, What’s Next, What Now? PresentaEon April 2012
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
What’s New? More Personal Responsibility
Privacy Conduct
Health & Safety
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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)
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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)
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
Your Insurance Does Not Cover This Risk
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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)
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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