Last week we started looking at the obligations of a commercial property owner in regard to asbestos management in NSW, the ACT, the Northern Territory, South Australia and Tasmania. In this section we are going to check out the legislation on this issue in Western Australia and Victoria where there are some big differences.
Up until recently, owners of commercial buildings had the burden of responsibility for the management of asbestos. When the Federal Model Work Health & Safety legislation came into play and was implemented in most of the country, the onus of that responsibility was moved from the owner to the lessee or, to use the technical term, the person with management or control of a workplace.
This change, however, has not yet been implemented in Victoria and Western Australia where the legislation still states that the responsibility for minimising risk and ensuring the safety or a workplace still lies largely with owner of a commercial property.
As we mentioned last week, if your business operates in multiple states, this can mean significant differences in the way you will have to enact your organisation’s work health and safety regulations. And if you are a commercial property owner in Victoria and Western Australia, then you need to be aware of your legal duties under the relevant act – especially, say, if you have only previously owned properties in other states where those duties are quite different.
- If you own a commercial property and lease or rent the building or part of the building to a business or businesses then you do have obligations under the OH&S Act 2004 and the associated 2007 regulations. To quote section 26 of the Act you must “ensure so far as is reasonably practicable that the workplaceand the means of entering and leaving it are safe and without risks to health.”
- Yes, you can delegate the responsibility for dealing with asbestos to a property manager but the legal buck, so to speak, ends with you. When it comes to health and safety, you, as the property owner, are ultimately responsible for making sure the workplaces in your property are safe. So make sure your property manager knows what they’re doing.
In Western Australia
Under the OS&H Act 1994 (yep, just to keep things confusing, they say OS&H rather than OH&S), your duties as a commercial property owner are very similar to those in Victoria. You can delegate some of your responsibilities, but the legal duties remain yours alone. You’ll need to do things including, but not limited to:
- Identifying and labelling any asbestos in the building
- Maintaining an asbestos register and making it available to the workplace
- Ensuring that any contract or maintenance workers are made aware of the presence of any asbestos in the building
- Making sure asbestos is removed in accordance the relevant Code of Practice
What about employers? Does that mean we are off the hook in Victoria and WA?
Absolutely not! While it’s likely that the Model legislation will be introduced in Victoria and Western Australia sometime in the future, be aware that in the meantime the existing legislation in those states does not in any way exempt employers from legal duties regarding maintaining a safe workplace. Yes, the owner of the building has certain obligations but yours as an employer are equally important and they are extensive. As an employer you must control the risk around exposure to asbestos in the workplace, identify asbestos, and control asbestos-related work. Just last year, the maximum penalty for a company in reckless breach of Victoria’s OH&S Act doubled to more than $3 million. Ouch.
As is so often the case with work health and safety issues, consultation is your best bet and building owners and employers are likely to be discussing many of these issues. Communication and cooperation will be key to getting the best and safest results.
Remember, check your state legislation and/or get legal advice about exactly what your obligations are and be aware there are differences and inconsistencies between the states and territories. Unfortunately, we cannot yet assume that one law applies in all jurisdictions. When that day comes, our lives will be a little bit easier!