Occupational Health and Safety in Sectional Title Schemes
By Graham Paddock
Trustees often ask: ‘Must sectional title bodies corporate comply with the Occupational Health and Safety legislation?’ The answer is ‘no’, unless they directly employ a worker. Under the Occupational Health and Safety Act of 1993 and its construction regulations (‘OHS laws’) duties apply to ‘employers’. In practice, sectional title bodies corporate are exempt from compliance with OHS laws if they do not engage any workers as employees.
Any ‘place where a person performs work in the course of his employment’ is defined as a workplace under the OHS laws. Where the work done on the common property or in sections is done by owners of units in the scheme, they are in the same position as the owners of a free-standing suburban homes – the OHS laws do not apply. However, this does not exempt the body corporate from complying with its statutory and common law obligations to ensure that the common property for which they are responsible is maintained and repaired so that it is safe for use by all owners, visitors and employees. It is also important for trustees of the body corporate to be able to distinguish between an independent contractor and an employee.
If a sectional title body corporate engages a worker as an employee, for example a gardener or caretaker, then the body corporate will have all the duties of an employer under the OHS laws. However, engaging independent contractors to do repairs and maintenance on common property does not make the body corporate an employer. And if owners carry out business operations in sections and have their own employees, similarly this does not make the body corporate an employer or make it subject to the OHS laws.
When the body corporate employs independent contractors to work on the common property it should ensure that its contract obliges the contractor to comply with all OHS laws when working on common property. In addition the trustees should advise the contractor of any known risks on the common property, and oblige the contractor to produce a copy of a health and safety plan that addresses any known risks. For example, if the independent contractor’s employees will be working at height, on the roofs of the building, the trustees should check that there is a plan to avoid falls from ladders and from the roofs and to resolve any safety issues that may arise. Where high risk work is required, the body corporate must take reasonable steps to ensure that the contractor has complied with OHS laws.
If you have any questions on this topic or need any assistance in this regard, don’t hesitate to contact us at consulting@paddocks.co.za for a no obligation quotation.
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