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Good Governance

GOOD GOVERNANCE Accessible versus inaccessible & other duties clarifi cations

Top 5 most contentious caretaking duties and how to manage them Anyone who has ever been party to a caretaking agreement will no doubt have experienced some sort of need to clarify a duty within the schedules, especially if the duties schedules within the agreement are generic in nature, non-specifi c, or vague.

Where there is a vague or generic schedule of duties in a caretaking agreement, the ‘prescribed’ duties (for instance the duties that are specifi cally detailed) oft en contain ‘inferred’ duties (the ‘other’ tasks required to complete the prescribed task). For example, the prescribed duty might be to “coordinate and arrange the maintenance of the fi re protection system”. For this prescribed duty the ‘inferred’ duties aren’t specifi cally detailed but are required to properly discharge this duty.

Inferred tasks would include:

• prepare an asset register of the fi re safety installations on common property;

• ensure the baseline data is complete and available for review on site; • display the occupancy permit;

• ensure the evacuation plan is up-to-date and current;

• invite appropriately licensed contractors to quote on the maintenance services;

• provide quotes to the committ ee for approval;

• obtain the writt en approval and ensure the committ ee sign the contract;

• coordinate access for the service contractor;

• obtain the service inspection/test report from the service contractor (and any associated defect lists, remedial works quotes and so on);

• provide the quotes/defect list(s) to the committ ee for approval (chase this up within the 28 days mandatory requirement); • ensure defects are fi xed within the 28day time frame;

• obtain compliance certifi cation on behalf of the body corporate (and send to strata manager and committ ee);

• validate invoices from the services contractor and ensure payment is processed by the committ ee and strata manager within terms;

• save records on site;

• deal with any fi re regulator site inspections and/or requests for records;

• and so on…

You can see that one prescribed duty may include a dozen or more inferred duties that all must be undertaken to ensure compliance with the prescribed duty.

Lynda Kypriadakis,

Diverse FMX

So, what are the top 5 most contentious duties that I see as a caretaking performance auditor?

From a performance auditors perspective, the top fi ve most contentious duties in the caretaking agreement appear to be: 1. Defi nition of specialist work versus handyperson work. 2. WHS requirements around who is the PCBU.

3. WHS requirements around safe work at height. 4. Management of ByLaw breaches.

5. Cleaning terminology (eg., mop versus scrub).

What seems to be the issue?

Defi nition of specialist work versus handyperson work. This is where the body corporate committ ee and the caretaking services provider are unable to agree on what constitutes minor works or handyperson duties. The agreement would have calculated that minor task (handyperson works) are anticipated within the common property and would have allowed some remuneration to cover the cost of delivering these duties, so it is quite right for the body corporate committ ee to expect handyperson tasks to be delivered.

But how do we defi ne a handyperson task?

works” tasks are well defi ned within the ABMA Building Management Code in Chapter 16 and refer to repair works that can be delivered without the need for a specialist trade or contractor’s license.

A common misconception is ‘mopping’ versus ‘scrubbing, these are two completely diff erent duties, methodologies, and outcomes

WHS requirements around who is a PCBU

All caretaking services providers are defi ned as persons conducting a business or undertaking (PCBU) in accordance with the WHS legislation, and as such, every PCBU is required to have a documented safe system of work (or WHS Compliance Management Plan). The PCBU WHS Plan must be reviewed annually and properly implemented to be conforming. Unlike the caretaker, the body corporate may not identify as a PCBU, but a caretaker is always a PCBU and always has duties under the Act. These WHS duties may not be clearly defi ned within the caretaking agreement, but they are mandatory under legislation, nonetheless. Chapter 17 of the ABMA Building Management Code can help PCBU’s develop their own WHS Plan.

WHS requirements around safe work at height

The WHS Code of Practice for managing the risk of falls in the workplace is a free document readily available on the internet and clearly defi nes how the PCBU can manage safe work at height in the workplace. The common property is the “workplace” when it comes to caretaking duties. Any work at height that requires specialist fall arrest systems and/or work-in-restraint qualifi cations would fall to the specialist contractor’s exemption under the caretaking agreement. The WHS Compliance Management Plan will also defi ne what the caretaker can/can’t do in terms of working at height on the common property.

Management of By-Law breaches

This duty within the caretaking agreement is likely to require the caretaking services provider to “…monitor the observance of the By-Laws and report any persistent off enses…” to the committ ee or the body corporate for enforcement. It is therefore the caretaker’s duty to maintain a register of By-Law matt ers to record dates/times and nature of off enses to provide an audit trail of vigilance in this monitoring duty. Some issues arise when the caretaker’s att itude to managing By-Law breaches does not align with the body corporate committ ee’s att itude, so it’s best for the caretaker to fi nd out (in writing) how vigilant the committ ee requires the caretaker to be. Some committ ee’s take a relaxed view of managing By-Laws, whereas others are very att entive and look to the caretaker to provide immaculate records.

Cleaning terminology

Sometimes the body corporate committ ee misinterpret the wording of the duties within the agreement and expect more from the caretaking services provider.

A common misconception is ‘mopping’ versus ‘scrubbing, these are two completely diff erent duties, methodologies, and outcomes. ‘Scrubbing’ is generally undertaken by a specialist contractor using a specialist scrubbing machine on a periodical basis. ‘Scrubbing’ is not a duty unless prescribed as so for instance, the work “scrub” is used in the wording within the duty. Also, emergency cleaning is not a prescribed duty within an agreement. For example, spilled milkshake in the lift or storm/cyclone damage aft er a severe weather event. These emergency tasks would be considered extra to the duties with additional charges applying.

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