Published on March 4, 2014
Essential Strata Management Module 7 Compliance with Strata & Other Applicable Laws September 2013 © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Compliance Involves More Than Strata Laws EPA Tax Privacy Owners Corporations Discrimi -nation WHS © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
How Long has the Privacy Act Applied to Strata? • Since 1988! • Because an OC discloses personal information for a benefit , service or advantage • What strata managers do as a contractor under Privacy laws binds the OC © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Dispelling Some Privacy Act Myths • Privacy relates to individuals – wrong, it’s about organisations and what they do with personal information • Privacy stops information flow – wrong, it just regulates how information is collected, used, disclosed and stored © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Personal Information Collected by Managers for OC’s & BC’s Names Tenancy details Owners credit card details Addresses Property descriptions and valuations Bank account details for suppliers Email addresses Telephone numbers Sometimes proof of personal identification © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
What is Discrimination? ‘Discrimination means treating somebody unfairly because they happen to belong to a particular group of people.’ (Discrimination and the Anti Discrimination Board of NSW , Anti-Discrimination Board of NSW Factsheet reprinted 4/01). © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
The Many Faces of Discrimination in Strata Corporations By-laws with age restrictions Enforcing a by-law about restricting modifications for a wheel chair user Banning children from playing on common property House rules about breastfeeding at the pool Asking a new resident manager about his or her marital status or sexuality Restricting certain food types being cooked in a communal kitchen Chairman flirting with the strata manager Discussing at a meeting the desirability of a person based on their appearance Refusing to install a new and easier to use pool area access device © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Recognising Indirect Discrimination is a Key Issue for Strata Living Direct discrimination Indirect discrimination © Copyright 2013 Teys Lawyers • Treating a person less favourably because of their disability • Telling someone they can’t use the pool because their appearance will upset others • A person is prevented from doing something a person without a disability can do • A person with a disability can’t open the pool gate without the aid of a proximity device which the OC won’t install www.teyslawyers.com.au
New WHS Laws at a Glance Effective 1 January 2012 in QLD, NSW, ACT No ‘grace period’ for compliance (OHS plans good for 12 months) OC / BC = Person carrying on a business or undertaking Residential strata exemption confusing & virtually useless Reverse onus removed - prosecution must prove breach © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Persons Who Are Not A PCBU A strata body that is responsible for any common areas used only for residential purposes is not a PCBU so long as no worker is engaged as an employee (s.7 WHS Act 2011) © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Only For Residential Purposes Means No • OC / BC employees • Common property with commercial lots • On-site letting agent • Lots used as home businesses • Nannies employed in lots • Lots for short term accommodation • Communication towers / satellite dish / advertising signs • Paid workers temporarily on site © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
The Tax Commissioner’s Starting Point • Income tax ruling 2505 • Strata entities are treated as ‘public companies’ • Taxed at corporate rate of 30% • Taxed as a ‘for profit’ company • Principal of mutuality applies © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Tax is Not Assessable on Mutual Income • ‘One cannot make a profit out of oneself’ • Where there are identical contributors and participants in surplus, there is not assessable income • Can apply to strata entities © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Examples of Non-Mutual Income ie Assessable • Interest from a bank • Access fees from non owners eg occupants • Rental income from external parties • Profit on the sale of assets to external parties • Fees paid on the transfer of management rights where the rights are held separately to the manager’s lot © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Fire Safety Inspections and Orders • Environmental Planning Assessment Act 1979 • Local council inspectors have powers to inspect and issue orders • Non-compliance has serious personal liability and insurance consequences © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
The Fire Order Compliance Process Notice of Intention to Issue Order Final Order 14 days Comply Take advice Appeal Report 28 days Negotiate Negotiate Difficult Negotiate © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Redevelopment as a Compliance Option • Redevelopment may be a better financial option • Difficult to negotiate owner buy-in, development approval and finance • Negotiate this before final order is made © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
About the Presenter 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 is 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 on our website www.teyslawyers.com.au 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 www.teyslawyers.com.au © Copyright 2013 Teys Lawyers www.teyslawyers.com.au them at
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