LASA Q Focus Magazine - Leading Age Services Australia ...

RETIREMENTLIVINGold legislation), retirement villageunits themselves are also caught.Concepts of “workplace” and“worker”“Workplace” is relevantly definedas “a place where work is carriedout for a business or undertakingand includes any place where aworker goes, or is likely to be,while at work”.“Worker” is relevantly definedto mean a person who “carriesout work in any capacity for aperson conducting a business orundertaking, including work as:(a) an employee;(b) a contractor or subcontractor;or(c) an employee of a contractoror subcontractor”.It is important to note thatthese definitions are very broad,particularly as a “workplace”includes any place where aworker goes, or is likely to be,while at work. Further, “worker”includes not only employees, butcontractors, subcontractors andtheir employees as well.Both these definitions rely onthe concept of “work” which isnot a defined term. However,commentary on this legislationsuggests that the concept of“work” is a broad one.It is easy to envisage manyscenarios in which a retirementvillage operator’s employees(such as an on-site manager)or contractors (including theirsubcontractors and employees)are likely to enter retirementvillage units, including:• to assist residents with minortasks;• to discuss residents’ concernsor complaints;• to check on residents’ welfareor respond to an emergency;and• to inspect or reinstate a unitafter a resident’s departure.Accordingly, it appears difficultto argue that retirement villageunits are not “workplaces”within the meaning of the newlegislation, even though they arealso private domestic residences.While the asbestos provisionsof the previous legislationexempted structures used fordomestic residential purposes,this exemption has not beenincluded in the new legislation.Further, many other provisions ofthe new legislation make it clearthat domestic premises can alsoconstitute a workplace.Concept of “person withmanagement or control of aworkplace”Many of the obligations referredto above are imposed on a“person with management orcontrol of a workplace”. Thisterm is (unhelpfully) relevantlydefined to mean “a personconducting a business orundertaking to the extent thatthe business or undertakinginvolves the management orcontrol, in whole or in part, ofthe workplace”.While none of the terms“business”, “undertaking”,“management” or “control” aredefined in the legislation, theirpotential scope appears quitebroad. It seems prudent toassume that a retirement villageoperator is conducting a businessor undertaking. The criticalquestion, then, is whether theoperator can be considered tohave management or control (inwhole or part) of their retirementvillage units, given that they arealso private domestic residences.Even if it can be successfullyargued that operators do nothave management or controlof their retirement village unitswhile they are occupied byresidents (which is doubtful),this does not address the periodduring which the units arevacant, for instance, followingthe departure of one residentand the commencement ofoccupation by a new resident.It is during this period that theoperator (and its employees andcontractors) are likely to haveaccess to the units for purposessuch as reinstatement works. Itappears difficult to argue thatthe operator does not have“management or control” of theunit during this period.Transitional provisionsTransitional provisions in thenew legislation mean thatthe obligations relating toasbestos registers and asbestosmanagement plans will not applyto retirement village units until 1January 2014. These obligationsmay also be deferred until thatdate in relation to other areas ofretirement villages, dependingon when they were constructed.However, other obligations, suchas those referred to in Sections419, 420, 422, 424, 446(1) and446(3) above, have alreadycommenced.RamificationsGiven the broad concepts of“workplace”, “worker” and“person with management orcontrol of a workplace” used inthe new legislation, it appearsprudent for operators to assumethat the asbestos obligations inthe new legislation apply to theirLASA-Q Focus | Autumn edition 2013 9