When it comes to commercial properties, just who is responsible for health and safety around asbestos? It’s an important question and one you want to make sure you have the right answer to. Unfortunately, it’s not an entirely straightforward one due to differences across the states. We are going to outline some of the basics around commercial properties and asbestos management here but to make sure you’re on top of the latest rules and regulations it’s always a good idea to check your state’s legislation. You can check out updates and amendments to your jurisdiction’s implementation of work health and safety laws here.
What are my responsibilities regarding asbestos management if I’m a commercial property owner?
In the past, owners of commercial buildings were largely responsible for the management of asbestos. This changed with the introduction Federal Model Work Health & Safety legislation which moved the onus of responsibility regarding asbestos on to the lessee.
Just to complicate matters and keep us all on our toes, the Federal Model Work Health & Safety legislation has not yet been implemented in every state with Victoria and Western Australia not having enacted these laws as part of their state legislation. With commerce being increasingly fluid and borders mattering less and less to businesses, this can make things tricky to say the least. If you’re confused about where you stand with your interstate businesses and WHS duties, get yourself some legal advice.
In the meantime, we’ll give you some information about what your obligations as a commercial property owner are likely to be if you live in NSW, Queensland and South Australia. Come back next week when we’ll look at Victoria and Western Australia.
In New South Wales, Queensland, ACT, Tasmania, Northern Territory and South Australia
Ok, let’s start with an of important definition. NSW’s Work Health & Safety Act 2011 defines a person with management or control of a workplace as: “a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace” (Section 20). The definition does not include someone who occupies a residence unless they are effectively running their business from that residence. Queensland, the ACT, Tasmania, the Northern Territory, and South Australia all have identical or very similar definitions.
If you’re a property owner but you have nothing to do with running the business that takes place on the property, then your obligations with regard to asbestos management will be greatly reduced from what they once were. However, you may still have some responsibilities pertaining to works carried out on the property and, in any case, you’ll want to be on top of any action or developments regarding asbestos so keeping communication open with the person in control of the workplace on these matters will be a good idea.
Perhaps, however you’re a property owner who also runs a business or undertaking on the premises and therefore has management and control of the workplace. If that’s the case – i.e. you own the property that you are running your business in – then you are the person with management or control of a workplace and as such have primary responsibility for the safe management of any asbestos in the building. Yours is the primary duty of care as set out in Section 19 of the NSW, Queensland, Tasmania, Northern Territory, ACT, and South Australian Acts, and this extends not just to your employees but to the health and safety of any person coming in and out of the workplace.
One of your main tasks will be the preparation and update of an asbestos register and an asbestos management plan. You can check out some templates here to get you started. The best way to get an understanding of the entirety of your obligations is to read your state’s Act. Go straight to the source because that will give you the most up to date information. It can take a little getting used to reading legislation but with practise you get used to it. And remember, while the states have a lot of similarities in their legislation, it’s best not to assume that one is the same as the other. Some differences do apply. For example, the laws around when a building was built with regard to whether a register and plan are required, vary across the states. But the major differences are in the laws of Victoria and Western Australia and we will take a look at them next week.
In the meantime, feel free to check out the asbestos training we provide here at Alert Force and give us a buzz if you have any questions.