Asbestos is a serious health risk that must be managed. Immediate action to comply with the legislative changes is prudent. All pre-2004 buildings with common property workplaces need to comply. Compliance is simple with good quality properly experienced and trained advisors.
Most would perceive that the duty for managing asbestos in buildings is the responsibility of the owner. Although that was largely true once, the Model Work Health Legislation has changed some obligations concerning the detection and management of asbestos containing materials in their leased premises to the tenant. This responsibility concerns buildings constructed before 31 December 2003 (the date that a complete prohibition in the use of asbestos in building materials was imposed). Hence, the Legislation has determined that whoever is leasing the building based on this age limit and set criteria, is accountable for maintaining an asbestos register and for preparing an Asbestos Management Plan.
Work Health and Safety Regulations 2011
Part 8.3 Clause 422 of the Regulations states:
“Asbestos to be identified or assumed at workplace
- A person with management or control of a workplace must ensure, so far as is reasonably practicable, that all asbestos or ACM at the workplace is identified by a competent person.
- A person with management or control of a workplace must:
(a) if material at the workplace cannot be identified but a competent person reasonably believes that the material is asbestos or ACM – assume that the material is asbestos, and
(b) if part of the workplace is inaccessible to workers and likely to contain asbestos or ACM – assume that asbestos is present in the part of the workplace.”
A person conducting a business or undertaking (PCBU) with control of a workplace must ensure that any asbestos at the workplace is identified, recorded in a register (Reg. Clause 425) and subject to an Asbestos Management Plan (Reg. Clause 429).
The obligation to keep an asbestos register applies to buildings constructed before 31 December 2003. An asbestos register is not required to be prepared in circumstances where (Reg, Clause 425):
- the workplace is a building that was constructed after 31 December 2003
- no asbestos has been identified at the workplace, and
- no asbestos is likely to be present at the workplace from time to time
However, even if no asbestos is identified or is determined not be present based on reasonable grounds, the register must state that:
“no asbestos or ACM is identified at the workplace if the person knows that no asbestos or ACM is identified, or is likely to be present from time to time, at the workplace.” (Reg. Clause 425)
If there is uncertainty about whether asbestos is present, it must be assumed that it is asbestos or arrange for samples to be analysed.
Many might falsely presume that this obligation falls upon building owners. However, the Tenant (or Lessee) as the PCBU has had the responsibility to ensure a register is maintained and if necessary, an Asbestos Management Plan from 1 July, 2013.
Victorian and West Australian OHS Legislation
As Victoria and Western Australia have yet to take on the Harmonised Work Health and Safety Act, their legislation in general does not have the lessee of a building and who runs the business from that building as the entity that has responsibility to maintain an asbestos register or management plan.
However, his does not affect the businesses’ responsibilities under Victorian or West Australian OHS Legislation to sustain an asbestos controlled environment, ensuring and maintaining a safe workplace. This would include ensuring the control risk of exposure where asbestos is identified, the control of asbestos-related work and specify the location of asbestos.
Ensuring Compliance: Asbestos Registers and Management Plans
There is a requirement to survey the building area and identify all loose and friable asbestos as well as stable categories found in building materials. These stable Asbestos Containing Materials (ACM) can be located in all manner of building materials (e.g. old concrete pits, fibro sheets, etc…).
In order to assess the situation and be compliant, a survey to ascertain which buildings were completed prior 1st January, 2004 and order an asbestos survey (buildings that were completed prior to 31st December, 2003 which were strata titled at a later date should be included).
The surveys whereby asbestos or ACM are located must be kept onsite and available. When they are located, an onsite asbestos register and Asbestos Management Plan is to be developed and made available to those who might be at risk.
If asbestos or ACM is located, and the decision made is not to remove it but leave it onsite in a stable encapsulated state, a regular audit of the building will be necessary. The location of any asbestos needs to be clearly indicated (labelled) with the asbestos register that must be maintained, outlining:
- The location of the asbestos
- The type of asbestos-containing material
- The nature of the material (friable or non-friable)
- The likelihood of the material posing a health risk
- Any work activities that may affect or cause deterioration to the material.
Depending upon the condition of the asbestos it must be removed or monitored to ensure that it is in safe condition.
Asbestos Management Plan
Every workplace where asbestos is present or may be present must have an Asbestos Management Plan. “A person with management or control of the workplace must ensure that a written plan (an asbestos management plan) for the workplace is prepared.” (Reg Clause 429).
An asbestos management plan must include information about the following:
- the identification of asbestos or ACM,
- decisions, and reasons for decisions, about the management of asbestos at the workplace,
- procedures for detailing incidents or emergencies involving asbestos or ACM at the workplace,
- workers carrying out work involving asbestos
A copy of the asbestos management plan for the workplace is readily accessible to:
- a worker who has carried out, carries out or intends to carry out, work at the workplace, and
- a health and safety representative who represents this worker and
- a person conducting a business or undertaking who has carried out, carries out or intends to carry out, work at the workplace, and
- a person conducting a business or undertaking who has required, requires, or intends to require work to be carried out at the workplace
The Asbestos Management Plan must be reviewed at least once every five years and, as necessary revised:
- Before asbestos is removed , disturbed, or otherwise work undertaken on it
- If the Asbestos Management Plan is no longer adequate
- If a health and safety representative requests a review
Asbestos removal must be done by a licensed removalist and the regulator must be notified of any work taking place.
An asbestos case study
An apartment owner in a block of 12 apartments built in the 1970s phoned the strata manager indicating that both her door and that of her neighbour were sticking. She asked the strata manager to organise a tradesman to take a look at the problem.
The tradesman took the two doors off their hinges and proceeded to shave the doors (without a catcher). The doors were tagged indicating that they were made of asbestos material however the tradesman didn’t see this tagging. As well as shaving the doors in the apartment, he took them down to the garage and worked on them.
The owner was previously in the building industry, and became concerned about the dust in her apartment, the common area, and the garage. The owner contacted the strata manager with her concerns.
The strata manager arranged for the dust particles to be tested and it was confirmed that they were asbestos particles. Immediate measures were taken to contain it. Black plastic was placed over the carpet and soft furnishings in the owner’s apartment, as well as in the common areas. The garage was blocked off. A qualified asbestos consultant was contracted to safely clean up the areas where asbestos particles were identified.
The presence of asbestos in buildings isn’t insurable, so the owner’s corporation was responsible for costs incurred in cleaning up and replacing carpet, furnishings in the contaminated apartment, carpet in the common areas, and cleaning up the garage. Several special levies had to be raised to cover the costs.
All three members are of the Construction, Forestry, Mining and Energy Union, and all three of them were found to be unfit and not “proper persons” to enter worksites.
The officials are Gareth Stephenson, who was part of a conflict in 2009 on the West Gate Bridge; Michael Powell, who was declared by Fair Work Australia to be responsible for “disregarding various aspects of industrial law”; and Shaun Reardon, who was found to have broken building laws in five incidents; such as the Melbourne closure in 2009.
Commissioner Leigh Johns is not confident that three officials will be able properly carry out their jobs because of the lack of permit.
CFMEU state secretary Bill Oliver said the union is considering an appeal.