One of the more common disputes between caretakers and bodies corporate revolves around the engagement of tradespeople and specialist contractors under a caretaking agreement. These problems are often caused by a lack of clarity and understanding of when such persons can be engaged at the body corporate’s expense.
The starting point is to identify if your agreement excludes any duties which are the responsibility of a skilled tradesperson or specialist contractor. It should not be assumed that an agreement will always include a ‘carve out’ provision or that it will distinguish the type of work a caretaker is or is not required to carry out. In the absence of an exclusion, a caretaker may not be able to compel a body corporate to engage tradespeople or other contractors for certain work that falls within the caretaker’s duties.
Even where an agreement contains a carve out provision, disputes still often arise. Where there is uncertainty, a practical approach should be taken to avoid the prospect of a dispute. While duties of a tradesperson are more easily identifiable (i.e. plumbing, building or electrical work where a licence must be held), the need for a specialist contractor is not as clear. In those circumstances, ask yourself the question – if it were your own home, in your own backyard, would it be something that you would ordinarily do yourself?
As a reference, you should have regard to the extent of which the work must be carried out, the requirement for any specialist equipment or skills as well as the extent of the work itself. Take mulching for example. It might be reasonable for a caretaker to mulch a single garden bed that is relatively small in size (where it is not overly time consuming), whereas mulching large garden areas across an entire complex is substantially different in comparison. As a general rule, if the type or extent of the work is of such nature that that requires a specific degree of knowledge, or particular equipment that requires extensive training and experience to use, then it will likely be caught under the scope of a specialist contractor.
Here are certain examples of how QCAT and the Commissioner’s Office have determined disputes of this particular type.
- Tile cleaning. Where tiles require regular and relatively frequent scrubbing, QCAT held that this is not work of a specialist nature. The member found that while a tile scrubber is a specialist piece of equipment, it is not something which requires a trade qualification or intensive manufacturer’s training to use (similar to a lawn mower). The caretaker was responsible for undertaking tile scrubbing at no cost to the body corporate.
- Inspecting and monitoring fire services equipment. The body corporate argued that the caretaker had failed to keep records which resulted in it receiving infringement notices. It was determined that the duty to inspect and monitor the equipment did not make the caretaker responsible for the record keeping obligations of the body corporate under fire safety legislation. The adjudicator indicated that the onus fell upon the fire safety specialist to properly advise the body corporate.
- The caretaker had an obligation to “ensure that the lawns, gardens and shrubs in the said complex and the adjacent footpath are regularly watered and maintained at a high standard”. This meant that the caretaker was responsible for pruning the palm trees with equipment the body corporate was prepared to hire and provide to the caretaker (and actually did so for the external contractor it engaged). The body corporate was entitled to reimbursement of the fee it paid to an external contractor to do the pruning.
It is clear from the examples above that there are circumstances where a caretaker may be required to carry out work, at their cost, for work that might ordinarily be done by tradespeople or specialist contractors. It is not always the case that your agreement will clearly set out what you are required to do. Where an agreement includes broad obligations to maintain common property, this could extend to duties such as mulching and pressure washing. It is not a ‘one size fits all approach’ and will ultimately depend on the interpretation of your agreement and what the circumstances require.
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