Presentation to OCN ACT Saturday 14 April 2012

1. Unit
Titles
Law
–
What’s
New,
What’s
Next,
What
Now?
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
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

2. Unit
Titles
Law
ACT
–
What’s
New,
What’s
Next,
What
Now?
PresentaEon
April
2012
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

3. What’s
New?
More
Personal
Responsibility
Privacy
Conduct
Health
&
Safety
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

4. Privacy
Laws
Apply
to
Records
Corporate
register
contains
personal
LimitaEons
on
EC
members
have
informaEon
and
human
rights
to
responsibility
for
must
be
separately
privacy
are
privacy
compliance
displayed,
printed
or
proporEonate
emailed
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

5. Personal
InformaEon
Held
by
OC’s
and
Managers
Owners
credit
Names
Tenancy
details
card
details
Property
Bank
account
Addresses
descripEons
and
details
for
valuaEons
suppliers
SomeEmes
proof
Telephone
Email
addresses
of
personal
numbers
idenEficaEon
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

6. 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
Probably
not
allowed
under
NaEonal
providers
Privacy
Principles
Give
it
to
associated
suppliers
for
cross
Probably
not
allowed
under
NaEonal
markeEng
(e.g.
banks
)
Privacy
Principles
Throw
it
in
the
rubbish
(paper
and
Not
allowed
under
NaEonal
Privacy
redundant
IT)
Principles
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

7. What
Should
Owners
Do
to
Manage
Privacy?
• Limit
informaEon
Protect
• Audit
privacy
collected
to
that
policies
which
is
absolutely
• Secure
info
electronically
and
• Audit
strata
necessary
managers
document
give
traceable
access
only
security
processes
• Use
privacy
policies
Limit
Check
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

8. 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

9. What
Is
Reasonable
Care
&
Diligence?
For
example:
diligence
/
noun
constant
and
earnest
effort
to
accomplish
• Checking
references
and
what
is
undertaken;
persistent
insurance
policy
of
a
new
strata
manager
exerEon
of
body
or
mind
• Considering
external
advice
Macquarie
DicEonary
4th
EdiEon
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

10. The
New
WHS
Approach
PCBU
‘Work’
is
the
PosiEve
duty
Significantly
concurrent
key
concept
for
officers
to
increased
duEes
of
care,
not
exercise
due
personal
consultaEon
&
‘Workplace’
diligence
liability
co-­‐operaEon
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. Your
Insurance
Does
Not
Cover
This
Risk
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au

19. 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

20. 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

21. 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
©
Copyright
2012
Teys
Lawyers
www.teyslawyers.com.au