On 8 May 2020 the Queensland Premier outlined ‘Queensland’s Roadmap to Easing COVID-19 restrictions’. On 1 June 2020 Stage 2 of easing restrictions came into force.
One of the changes brought about by Stage 2, was gyms and health clubs could re-open for gatherings of up to 20 people. Whilst many are cheering about jumping back on the treadmill, the compliance requirements set a high standard for patrons and businesses alike. Bodies corporate are also caught by these compliance requirements – a common property gym is being treated on the same basis as a commercially-operated gym.
What are those compliance requirements, and can a body corporate meet them if the gym is reopened? We explore those issues below.
Under the Industry Covid-Safe Plan (the Plan), a 19 page document, businesses must implement certain strategies and protocols to re-open.
The Plan provides a ‘…framework for the fitness industry, which includes gyms, fitness centres and health clubs. The purpose of the plan is to help fitness facility businesses demonstrate to Queensland Health and the community that they operate safely and can service more customers than outlined in the roadmap.’
Whilst stringent hygiene standards must be met (including gyms must be compliant with Safe Work Australia Cleaning Guidelines) and participant cap is calculated at one person per seven square metres of operational space, there is also a requirement that gym floors are supervised. Under the Plan:
[u]nsupervised facilities and services must not operate during stage 2, all services must be supervised and meet the requirements outline[d] in this document.
Further, the Restrictions on Businesses, Activities and Undertakings Direction (the Direction) provides gyms and health clubs may only open if supervised and staff are available to conduct regular cleaning and enforce social distancing.
In the context of all other requirements under the Plan and Direction, one of the main drivers behind requiring supervision at all times is to ensure proper high standards of cleaning equipment can be maintained.
An example of the stringent hygiene standards required under the Plan, includes:
In practice example – machine equipment in an open gym
During operational hours a piece of equipment may be used six times per hour over a ten hour period, equating to 60 uses. Under these proposed guidelines, members will clean the touch points of the equipment before and after use, staff will clean the equipment once an hour with an additional full clean of each equipment daily. In this example a piece of equipment used 60 times in a 10 hour period would be cleaned 131 times with no member using a piece of equipment without prior cleaning.
When we think about how this applies to common property gyms, we must consider what ‘supervise’ means and whether there is a requirement for an individual to be present at the gym at all operational times to monitor compliance with the Plan and Direction.
What does it mean to supervise the gym during all operational hours?
The term ‘supervise’ is not defined in the Plan or Direction. According to the Cambridge Dictionary, ‘supervise’ is defined as to watch a person or activity to make certain that everything is done correctly, safely, etc
The examples provided are:
- The UN is supervising the distribution of aid by local agencies in the disaster area.
- The children play while two teachers supervise make certain that they behave correctly and are safe.
It is evident from the use of language in the Plan and Direction that it is directed at commercially operated health clubs and gyms.
It is likely that the Government did not consider bodies corporate and common property facilities prior to rolling out those requirements. Nevertheless, bodies corporate are required to comply with these rules if they re-open the gym.
In the context of stringent hygiene standards that must be maintained in gyms, we are of the view that ‘supervise’ requires someone to be present and/or monitoring use at all times to supervise and ensure compliance.
We find it difficult to reconcile how that level of hygiene may be achieved and the Plan and Direction complied with, if an individual is not present in the gym monitoring the use of equipment at all times.
For many bodies corporate it will not be practical to have someone supervise the gym during all operational hours. That may be beyond the call of duty for building managers and a laborious task if an active member of the community was to volunteer their time.
Under the Direction if a person fails to comply with the requirements the maximum penalty is 100 penalty units. The penalty unit value in Queensland at present is $133.45. As such, the maximum penalty imposed is $13,345.00.
We have considered the power of bodies corporate to elect to prohibit access to areas of the common property including the gym, in circumstances where requirements in the Plan and Direction cannot be met.
Can a body corporate prohibit access to the gym?
Under the Body Corporate and Community Management Act 1997 (Qld) (the Act) a body corporate must administer, manage and control the common property and body corporate assets for the benefit of lot owners. The gym and its equipment fall squarely within that.
The rules that regulate the use and enjoyment of common property and body corporate assets must be outlined in the by-laws. That is because by-laws are approved by the members of the body corporate.
Most bodies corporate will have a by-law regulating the use of the gym and / or swimming pool, such as setting opening and closing hours. It is not open to a committee to then impose other rules on its community, such as closing the gym or limiting its opening hours.
So where does this leave a body corporate unable to comply with the strict requirements under the Plan and Direction?
There is no straightforward answer to this question.
Both closing the gym and leaving the gym open will expose a body corporate to risk.
If a body corporate elects to re-open the gym doors it should have close regard to what is required of it, because the financial burden if found in contravention of the Direction is significant.
It would only take one owner or occupier to complain to the Queensland Police Service or another government authority that compliance is not being achieved for a body corporate to be hit with a significant fine.
If a committee elects to keep the gym closed because it is unable to comply with the strict requirements under the Plan and Direction. Strictly speaking, it will be in contravention of the Act, as the use and enjoyment of common property can only be regulated through a by-law made by the body corporate.
This may result in an owner or occupier filing an application in the Office of the Commissioner for Body Corporate and Community Management demanding the gym be re-opened.
In circumstances where a committee has considered its obligations under the Plan and Direction and has determined that the body corporate is unable to meet those, we think an adjudicator will be troubled by the prospect of having to order the body corporate to re-open the gym. On the other hand, an adjudicator could say that the costs and inconvenience of re-opening the gym and complying with the Plan and Direction is something the body corporate simply has to wear until such time as a by-law is made authorising the continued closure of the gym during the pandemic, or further limiting its operating hours.
The middle ground may be found in a committee temporarily reducing the operating hours (because the Plan and Direction need only be complied with during the operating hours) to mitigate the costs and inconvenience of compliance, while still providing some access to these recreational facilities for the use and enjoyment of residents.
Whatever way a body corporate elects to proceed, there will be tension in the industry caused by bodies corporate seriously considering whether they can re-open the gyms in compliance with these strict requirements for cleaning, hygiene and supervision against owners and occupiers demanding the right to work up a sweat by using gym equipment their levies or rent has paid for.
If not now, when?
Given the tough restrictions it might be too soon to start opening those gym doors for a lot of bodies corporate.
However, Stage 3 of ‘Queensland’s Roadmap to Easing COVID-19 restrictions’ comes into force on 10 July 2020. The only indication given at this stage is that Stage 3 will allow up to 100 patrons to attend a gym; signifying once again that restrictions will be easing.
The message to send to your communities is that on the current trajectory, restrictions will continue to ease. These are not long-term impositions for your communities, but short-term requirements to keep your community safe from infection.
For now, keep pounding the foot paths.
This article was contributed by Jason Carlson, Partner and Eloise Soper-Smith, Associate – Grace Lawyers.
 Body Corporate and Community Management act 1997 (Qld), 152(1)(a).