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Presentation to OCN ACT Saturday 14 April 2012
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ACT OCN - Unit Titles Law - What's New, What's Next, What Now?
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
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