I must take this opportunity to apologies to the formal matter in which we are handling this matter, but trust that you would appreciate the seriousness of the matter after reading this document. In some case we have already discussed this with some of our trustees but due to seriousness and the urgency have not been able to discuss this with all our clients.
We have decided to send this registered post to ensure you receiving it and to ensure you understand the seriousness of this matter. We need a signed agreement back by no later 25th September 2007. As we have started with the preparation work this agreement would be effective from September 2007 and will end on the 31st October 2008. We are charging you an annual fee for this work but would for cash flow purposes collect it on a monthly basis.
1. Introduction. Topnotch has the last few months researched the implications that the Occupational Health and Safety Act (OHS Act) has on the management of your complex. It is without a shadow of doubt that the Board of Trustees and us, the Managing Agent, is by law compelled to comply with the minimum provisions of the OHS Act. Failing to do so would mean that the Board of Trustees and the Managing Agent could be held criminally and financially liable.
2. Aim. The aim of this letter is twofold, (1) to outline the mechanism suggested to become OHS complaint without going into to much detail and (2) obtaining approval from the Board of Trustees to delegate the lawful responsibilities bestowed on the Chairperson of the Board of Trustees (section 16(1) of the OHS Act) to us, the Managing Agent. Should the Board of Trustees decide not to delegate such responsibilities, Topnotch accepts that the trustees will accept full responsibility and accountability for OHS compliance and that Topnotch cannot be held accountable, financial and/or otherwise for non-conformance to the OHS Act.
3. Why. The Board of Trustees are tasked by the owners of a scheme (Sectional Title) or complex (Homeowners Association) to ensure the proper upkeep, maintenance and repair of common areas and us such compels all owners to contribute towards levies to fulfil this commitment. In terms of the OHS Act, Construction Regulations 2003 "construction work" means:
….any work in connection with-
(a) the erection, maintenance, alteration, renovation, repair, demolition or dismantling of or addition to a building or any similar structure
4. Accountability. When the Board of Trustees appoints a contractor to perform specific work over a specific time (painting, garden services, plumbing, gate repairs, electrical repairs etc) on the premises, the contractor (and his workers) are deemed to be independent contractors as defined in Part 3 of the Code of Good Practice: Who is an employee (Government Gazette Notice 1774 of 2006) and the provisions of the OHS Act, section 8 will not apply to the Board of Trustees. However, Construction Regulations 2003 issued in terms of the OHS Act, prescribe specific duties and responsibilities of the client. The client being …."any person for whom construction work is performed", and by implication the Board of Trustees and if delegated, the Managing Agent. In terms of Construction Regulation 2003, Section 4 the client (Board of Trustees or if delegated, the Managing Agent) is responsible to provide the contractor Health and Safety Specifications.
5. So what? Should any person be injured or suffer any damage, and upon investigation by the authorities (statutory) or other parties (common law and insurance) it is determined that no health and safety specifications were given and/or trustees were negligent and/or acted male fide and/or failed to provide measures deemed reasonable practicable, the Board of Trustees (and thus body corporate or homeowners association) could be held criminally liable and if found guilty, any criminal activities will nullify the cover provided in the short term insurance under public liability and trustee indemnity (Short Term Insurance, Act 1998).
6. Remedy and suggested intervention. Topnotch Properties has secured the services of a highly qualified, industry certified SHE practitioner and -Auditor to assist us in becoming compliant and staying compliant. Topnotch Properties, as the Managing Agent, upon approval and delegation, will for a monthly fee of ……………………excluding VAT), to be added to the existing management fee, provide the following service to ensure OHS compliance:
a. Provide complex specific, Health and Safety Specifications document to enforce compliance by independent contractors with specific reference to electrical work, smaller ad hoc maintenance tasks, plumbing, gardening services and overall general maintenance tasks. Here we refer to daily operational activities.
b. As part of the tender price for major planned projects, negotiate and facilitate the drafting of specific Health and Safety Specifications document for the project to ensure OHS compliance and to access the principal contractors Safety Plan. A hazard and risk analysis will be conducted which forms the basis of the specifications document. Will also include the consolidation of all OHS documentation after completion of the project for safekeeping by the client.
c. Provide a Health and Safety Specifications document and Safe Working Procedures for staff employed by the Board of Trustees.
d. Monthly auditing of all specific, planned projects as per OHS Act, Construction Regulation 2003 to enforce compliance and submission of compliance reports to the Board of Trustees. This could include stopping a contractor from executing work that exposes people, property or environment to unacceptable risks.
e. The investigation of serious incidents on behalf of the Board of Trustees that may occur and report such findings in the appropriate manner to the applicable authorities.
f. Keeping of all OHS records for audit purposes.
7. Board of Trustees. Board of Trustees are to decide if they would like to make use of the service offering proposed by Topnotch. Due to the serious nature of the matter, inherent risk exposure and additional responsibilities, should the Board of Trustees decide not to make use of the proposal, Topnotch can not accept the risks associated with non-compliance to the OHS Act and the Board of Trustees, and specifically the Chairperson of the Board of Trustees, remain solely and collectively, responsible and accountable. Topnotch will however do everything possible, within the bounds of realism, to provide assistance.
Please do not hesitate to contact the writer or your designated portfolio manager for any assistance. If we don't receive a signed agreement back by the 25th September 2007 we would assume that you don't want to make use of our services and that we are then indemnified from any responsibility to your complex.
