A brief overview - duties likely to affect commercial landlords and tenants
The Health and Safety at Work (Asbestos) Regulations (Regulations) provide that persons conducting a business or undertaking (PCBUs) that have management or control of a workplace must ensure that a written plan (Asbestos Management Plan) is prepared for the workplace before 4 April 2018 if asbestos or asbestos-containing material (ACM) is identified or likely to be present at the workplace.
The PCBU with management or control of the workplace (Workplace PCBU) has a duty to identify all asbestos or ACM where the Workplace PCBU knows (or ought reasonably to know) that there is a risk of exposure to respirable asbestos fibres. This duty doesn’t apply if it is assumed that asbestos is present.
The exception is where the Workplace PCBU has reasonable grounds to believe that asbestos or ACM is not present.
If asbestos is identified or assumed to be present then an Asbestos Management Plan must be prepared for the workplace before 4 April 2018.
The Regulations also contain significant duties and obligations that will apply where demolition or refurbishment is being carried out in a building or at a workplace.
How does this affect me?
If you are a business, commercial property owner, or a landlord or tenant under a commercial lease then it is likely that you will be considered a PCBU under the Regulations.
The Workplace PCBU can (and often will) consist of more than one PCBU. For example:
Where business “A” leases premises from property manager “B” and B is acting on behalf of the property owner “C” then A, B, and C are all the Workplace PCBU and each has overlapping and corresponding duties and obligations under the Regulations.
In this example as A, B, and C are all the Workplace PCBU they must consult amongst themselves and agree on how they will identify asbestos at the workplace. One of the PCBU’s may take the lead in arranging for identification, however, the duties in the Regulations cannot be transferred or contracted out of. This means that the other PCBU’s will need to ensure that the identification has been completed and the duty has been met.
If a workplace has more than one PCBU then all PCBU’s must, so far as is practicable, consult, co-operate with and co-ordinate activities with one another to make sure they meet their legal duties.
What are my obligations as a Workplace PCBU?
The Regulations provide that a Workplace PCBU who knows or ought reasonably to know that there is a risk of exposure to respirable asbestos fibres in the workplace must ensure, so far as is reasonably practicable, that all asbestos or ACM giving rise to the risk is identified. If your workplace or building was constructed before 1 January 2000 then it is more likely that the building will contain asbestos or ACM.
This means that unless you have reasonable grounds for believing that asbestos or ACM is not present, or you assume that asbestos is present, you must identify all asbestos at the workplace.
More information on identifying asbestos and the requirement to identify asbestos can be found in WorkSafe’s ‘Approved Code of Practice’. The easiest way to identify any asbestos is to arrange for an appropriately qualified asbestos surveyor to assess the building or workplace.
What if asbestos is identified in the workplace?
If the workplace or building does have asbestos or ACM (or you assume that asbestos is present at the workplace) then the Workplace PCBU has a duty to prepare an Asbestos Management Plan for the workplace. Unsurprisingly with the onset of the Regulations, there are a number of asbestos surveyors emerging in the marketplace.
What does the Asbestos Management Plan need to contain?
The Asbestos Management Plan must be in writing and include the information required by the Regulations. A Workplace PCBU could employ an asbestos surveyor to prepare a plan or it could prepare a plan using the guidance in WorkSafe’s ‘Approved Code of Practice’.
What are the penalties for failing to comply with the Regulations?
Failing to comply with the Regulations is an offence and a PCBU who is convicted is liable for a fine of up to $10,000.00 for an individual and $50,000.00 for any other person.
If you have any queries or would like to discuss whether the Regulations apply to you, and how to meet your legal obligations, please feel free to contact a member of our expert Commercial Property Team today.
Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.