Know What You’re Getting In To: Types of Building Contracts
This work is a compilation and updating of two reports by Professor Kim Lovegrove, ‘The Maintenance of Essential Services,’ published in the Australian Building Surveyor October 2006 issue, written by Kim Lovegrove, and ‘Summary of Duties of Managers or Owners of Workplaces,’ written by Lovegrove & Lord, dated July 2009. This report has been compiled by Professor Lovegrove with assistance from Alexander Milne, Lovegrove Solicitors, 17th May, 2011.
Part 1: Occupational Health and Safety as an umbrella concept. Duties on Owners re. OH&S:
Complying with OH&S regulation and complying with duties to maintain Essential Safety Measures are part of the cost and responsibility of being a property owner. Property owners are given a large chunk of the responsibility to ensure workplaces comply with safety regulation. In addition to the regulations governing construction of buildings that are safe, these regulations combine to place responsibilities on owners to ensure that an existing building continues to be a safe workplace.
OH&S legislation is the primary source of duties on owners and occupiers, and dictates that owners and occupiers (as well as employers and employees) can be prosecuted for neglecting workplace safety.
Owners can be implicated as having duties under the following provisions of the Occupational Health and Safety Act 2004.
Section 26 of the Occupational Health and Safety Act 2004 extends a duty to any person (including an owner) who has to any extent, the management or control of a workplace to ensure that the workplace and the means of entering and leaving the workplace are, so far as is reasonably practicable, safe and without risks to health. Contravening section 26 is an indictable offence with very high potential fines.
An owner would potentially be liable under this section for failure to provide a safe workplace in matters which he/she has control of. For example even if a property owner is deemed not to have control of the actual workplace, they could be liable if they fail to take all reasonably practicable steps ensure a safe means of entry and exit from the workplace, as this is in their control.
