NAT: Can Committees Stop Unvaccinated Residents from Using the Pool?

This article was prepared on 1 October 2021 and updated on 13 December 2021. This is not health advice and we alert you to the fact that the current COVID situation and Health Advice around Australia changes rapidly. After recently reading an article in Domain: Apartment building residents considering banning unvaccinated residents covering whether committees around Australia can stop unvaccinated residents from using common property facilities such the pool and gym, we contacted a group of strata industry specialist from around Australia for input.

We understand there may be quite a bit of confusion concerning whether committees can ban unvaccinated residents from using common property facilities such as pools and gyms. We hope to offer some clarity to assist you and your building to navigate around the legislation at this time. Below we have responses from the following industry leaders:

• Chris Dobrow, COVID-19 Plans – Covering the situation in New South Wales
• Todd Garsden, Mahoneys + Will Marquand, Tower Body Corporate – Covering the situation in Queensland
• Rochelle Castro, RC & Co Lawyers – Covering the situation in Victoria
• Chris Dobrow, COVID-19 Plans – Covering the situation in Western Australia
• Tyrone Shandiman, Strata Insurance Solutions – Looking at the issue National from an insurance perspective

New South Wales

What is the best way to open up our outdoor pool?

Assuming the pool is common property, the key issue is your civil liability and minimising your risk in relation to the use of that common property. As you know, owners have unlimited liability in dealing with common property and have a positive responsibility to prevent harm to any person (or damage to property).

Any guidance in this regard is tempered by the particular circumstances within your scheme as well as any risk control measures that have been put into place.

Some suggestions are:

1. Use of ‘bubbles’ (family or similar safe bubbles), ie roster the use of the facility and split by a ‘safety bubble’, ie Jones family from 9-11 am, Smith group from 12 to 2 pm, etc,
2. provide sanitisers (or methylated spirits in a spray bottle),
3. more ventilation for indoor areas where possible,
4. place signage reinforcing the message of COVID-19 Safety,
5. cordon off areas to maintain spacing between people, and apply density quotients,
6. minimise congregation (ie arrive, swim, leave)
7. QR Code or other record keeping at every entry to the facility
   

8. signage reminding residents, workers and visitors that it is mandatory to wear a face mask on any common property, which includes shared facilities (where practical. Obviously a face mask is not required when swimming or exercising.
9. notify residents that the pool has been re-opened under the current NSW COVID-19 restrictions, and to conform with signage and sign-in requirements. Within this notice outline the current restrictions for pools and other shared facilities.

Ensure that the COVID-19 Safety Action Plan has made allowances for or been inclusive of any shared facilities when addressing the six COVID Safe Principles. ie high touch surfaces to be cleaned twice daily as per the Hygiene and Cleaning recommendation.

Currently, it is a requirement in NSW for any pools in stay at home areas for a business or organisation to have a COVID-19 Plan for the facility.

Our strong recommendation is for you to purchase our COVID-19 Safety Action Plan (for $440 inc gst) specifically designed for Shared Facilities in a Strata or Community Scheme. This includes pools, saunas, gyms, bbq areas, common rooms, kitchens, bathrooms, open common shared areas, playgrounds, tennis courts, and the like.

In NSW, public pools are being opened to the vaccinated – how do we manage that in a Strata complex? How do we handle pushback from unvaccinated residents? Is there an alternative way to get around this?

In researching the Health webpages, there are currently no restrictions for pool use for unvaccinated residents. They are free to use the pool the same as a vaccinated resident, and must adhere to the same restrictions, with the exception of public outdoor gatherings, or having visitors over to use the pool. There are a number of current NSW Health limitations for vaccinated and unvaccinated persons using ‘public’ outdoor gathering areas ie limited to 5 vaccinated persons, and limited to 2 unvaccinated persons.

Even if the pool was only open to vaccinated residents, there is no way that you could demand someone’s private medical history. This does not stop you from ASKING residents of their vaccination status, however, an unvaccinated person does not have to disclose this information, nor can you phrase the question in a way that is indicative of restricting liberties as a result of the answer, or make it seem as though the question is required to be answered.

Any pushback you may have in this hypothetical scenario is to be forwarded onto NSW Health. As a Strata Committee, you are following NSW Public Health Orders, and are not personally responsible for how or which Orders are made. An example may be a rowdy or non-compliant resident, at some stage, it becomes a Police or Health matter. It is not a responsibility for the Committee or another resident to heavily police or enforce. Remember that each individual is responsible for their own actions and can be individually sued.

Be aware that all the current information regarding the re-opening of pools is for public outdoor pools. It is then left to the common sense of the Committee to employ practical control measures in regards to their own scheme, using their own knowledge of their property and residents.

With our tennis court, NSW Health allows five vaccinated people to be together. How do we monitor this and make sure residents comply?

Short answer: you cannot. All you can do is ask for someone’s vaccination status. If they refuse to answer you are stuck, and even if they have admitted to breaking lockdown restrictions, ie a gathering of more than 2 people for the unvaccinated, you are personally powerless to enforce these restrictions beyond forwarding the matter to the Police or NSW Health.

The best protection for the Committee is to place appropriate signage. If an individual chooses to breach the signage requirements, then it becomes their own responsibility.

Chris Dobrow
COVID-19 Plans
E: [email protected]
P: 1300 828 344

UPDATED 13 Dec 2021: The NSW Government has developed a Toolkit for COVID Safety for Gyms and Excercise Studios. You can access the items in the toolkit, including customisable posters, via this link.

Queensland

Prior to COVID, committees did not have the power to close or restrict occupiers from using common property facilities. By way of example, the adjudicator relevantly provided in Villanella [2017] QBCCMCmr 248:

If there is a safety issue or some other problem with the pool that rendered it unusable, the Body Corporate could potentially resolve to close the pool but that would be a restricted issue for the Committee.

The Justice Legislation (COVID-19 Emergency Response—Community Titles Schemes and Other Matters) Regulation 2020 (Qld) was then introduced to allow committees the ability to close facilities if it is reasonably necessary to ensure compliance with a public health direction.

However, after the introduction of the new modules, this flexibility now no longer exists.

Accordingly, an important principle to be taken from this approach is that restrictions on facilities have only applied to the extent that they are required to comply with a public health direction.

A second principle that is important to consider is what by-laws can provide for. It is made clear in section 180 of the Body Corporate and Community Management Act 1997 (Qld) that by-laws cannot discriminate between different types of occupiers – ie. Those who are vaccinated and those who aren’t.

UPDATED Dec 2021: What all of this means is that in Queensland:

The new covid-19 restrictions that will take effect from 17 December 2021 provide that, in relation to short term rentals or short term accommodation:

1. only persons that have been permitted under the booking are allowed to stay overnight in the short term accommodation;
2. anyone attending the short term accommodation must check in once at the beginning of their stay (but not every time they enter the accommodation);
3. must operate in accordance with the COVID safe checklist;
4. restricted areas, such as cafes, dining rooms, pubs, nightclubs or restaurants within a scheme are unable to be accessed by unvaccinated persons (but unvaccinated persons are permitted elsewhere in the venue); and
5. an occupancy density applies of one person per 2 square meters for indoor areas accessible by visitors and guests.

A copy of the health directive can be found here: Public Health and Social Measures linked to vaccination status Direction. Restrictions on short term accommodation are specifically covered off in “Schedule 1B – Unvaccinated persons may enter – other requirements apply to venue“.

The scope of these restrictions seemingly apply to the operator of the short term accommodation or the restricted area, such that bodies corporate (at the moment):

• will have little or no obligations in relation to these restrictions; and
• are not required to (and still cannot) impose their own restrictions on unvaccinated persons.
• Common property pools are not caught by these restrictions as the restrictions only apply to indoor pools that are open to the public.

There may be ancillary obligations in relation to implementing the COVID safe checklist that the committee ought to at least be aware of.

Feel free to contact our dedicated body corporate team if you need help understanding how restrictions impact your body corporate.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

How about excluding unvaccinated lot owners from meetings?

Similarly, Will Marquand from Tower Body Corporate explores whether unvaccinated lot owners can be excluded from meetings in this short Facebook video post.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

Victoria

With the amendments of the Owners Corporations Act 2006 (Vic) to take effect on 1 December 2020, the strata industry anticipates amendments to the Owners Corporation Regulations 2018 (Regulations) which will likely take effect in 2022. Such changes will provide if the Owners Corporation will be given powers (if any) to restrict access to common facilities.

In my view, the amended Regulations will likely provide if the Owners Corporation could regulate the behaviour of any persons entitled to use the common facilities (Users). Regulation of Users’ behaviour may include registration of all users’ name, residential address, email address, contact details, date and time of entry and exit from the common facilities and COVID-19 vaccination status (i.e. QR code method to collect these data).

Further restrictions that the Owners Corporation could impose in the amended Regulations, in my view, may include, restricting the number of Users of the common facilities at a certain time or at the same time (i.e. use booking system). These methods are not inconsistent with the government’s guidelines to venues that are open for public access.

In my view, the amended Regulations may empower the Owners Corporation to restrict Users’ access to the common facilities if they have COVID-19, at the time of the intended use.

It is highly unlikely that the amended Regulations will permit the Owners Corporation to hinder Users who do not have COVID-19 vaccinations or fully restrict their access to the common facilities because such is inconsistent with related strata provisions, regulations and case law in Victoria. Such laws’ intention is to not hinder Users from reasonably enjoying the common facilities, on the condition that others’ safety and enjoyment are not adversely affected.

Rochelle Castro
RC & Co Lawyers
E: [email protected]
P: 1300 072 626

Western Australia

The key consideration to have shared facilities open or open with restrictions, has to be measured against the Civil Liability Act 2002 (WA), and the Occupiers Liability Act 1985 (WA). Obviously, most people would gravitate towards the Strata Titles Act 1985, but forget to consider their own civil liability.

Owners have unlimited liability in regard to negligent actions or omissions on the property that they are responsible for. In addition, each individual has personal responsibilities to ensure that their own actions or omissions do not cause harm to any person.

In addition to the above, we utilise six COVID-19 Safety Principles that assist in minimising or eliminating the transmission of the SARS CoV-2 Virus. These can assist the owners in meeting their civil liability responsibilities.

Some of these measures include roster the use of an area, limit the number of people in an area using the density of people quotients, increase the state of hygiene vigilance, provide sanitisation station, use of safety ‘bubbles’ good ventilation for indoor areas when possible, record keeping by QR Code or sign in sheets, display signage (distance, hygiene, symptoms, face masks, cleaning, etc), email notifications to residents, follow State Health Orders and guidance, amongst other things.

Primarily our response for NSW above can be used as a guide for WA.

Chris Dobrow
COVID-19 Plans
E: [email protected]
P: 1300 828 344

National: Insurance

If committees are considering restricting access to common property facilities, a range of potential liabilities can arise for example discrimination claims and claims for loss of income if a tenant seeks a rent reduction for loss of access to amenities etc.

It is important to understand how the insurance policy will work. Most policies will have cover for:

Office Bearers Liability: Covering claims made against office bearers while acting in that capacity. This section covers defence costs and settlements / judgements made against the office bearer up to the sum insured on the policy; and

Legal Defence Expenses: Covering defence costs for claims against the owners corporation / body corporate. It is important to understand this section covers defence costs only and does not cover settlements / judgements and is usually limited to $50,000 – $100,000.

Since COVID, insurers have included exclusions in their policy for claims directly or indirectly arising from or in consequence of an Infectious Disease.

While there would be arguments for and against this exclusion applying to claims associated with restriction of access to facilities based on vaccination, a decision by an insurer in relation to this exclusion would be a highly technical consideration that may involve assessment by qualified insurance lawyers and even the court.

With this in mind, an owners corporation / Body Corporate should be aware that there is a risk that legal claims associated with restriction of access to facilities based on vaccination will be denied by the insurer.

We recommend committees get specific advice from their insurance broker before implementing such policies.

Tyrone Shandiman
Strata Insurance Solutions
E: [email protected]
P: 07 3899 5129

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

Have a question about restricting access for unvaccinated residents to common property facilities or something to add to the article? Leave a comment below.

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Read next:

• NSW: Extraordinary New Health Orders Mean Strata Managers and Secretaries MUST Update Strata Rolls NOW
• QLD: Q&A COVID-19 Strata Regulations & Government Announcements
• VIC: Q&A Clear COVID-19 Guidelines for Owners Corporations

Vaccination and Strata: The Big Issues – Frank Higginson, Hynes Legal & Chris Irons, Strata Solve.

Visit COVID-19 and Strata OR Strata Topics by State pages.

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