What Are the New Laws Around Asbestos?

Asbestos was banned in Australia in 2003 but remains a potential health risk in various workplaces. When asbestos is discovered by a WHS regulator, the regulator may issue a notice requiring the removal or containment of the asbestos.

Unfortunately, the laws related to asbestos were not entirely clear. To address the uncertainty about possible gaps in the existing powers to regulate asbestos under the model WHS laws, Safe Work Australia introduced new laws.

Here is what you should know about the new laws around asbestos.

What Are the New Asbestos Laws?

The new asbestos laws are defined in the Model Work Health and Safety Legislation Amendment (Asbestos) 2019. The amendment includes 11 changes to the WHS Act and two changes to the WHS Regulations concerning asbestos in the workplace.

The changes were made to add new compliance power for WHS regulators to issue prohibited asbestos notices at a workplace. Before the amendment, there was some confusion surrounding the circumstances where a regulator may issue a notice.

WHS regulators are individuals that monitor and enforce compliance with the WHS laws in each jurisdiction. The amendment helps clarify their role and responsibilities for issuing and enforcing prohibited asbestos notices.

The new laws allow WHS regulators to issue a notice when they reasonably believe that prohibited asbestos is present. The notice must be issued to the “relevant person in relation to a workplace,” which is typically the owner of the property.

When issuing a prohibited asbestos notice, WHS regulators must include the following information:

• The basis for the belief that asbestos is present in the workplace
• Details of the asbestos, such as the potential location, condition, and type of asbestos
• Specific measures for dealing with the asbestos
• A set date by which compliance is necessary

The amendment also includes various clarifications to the definitions included in the existing laws. For example, the amendment added “asbestos-containing material (ACM)” in the definitions for asbestos.

The laws also define the power of the regulator to take remedial action if the improvement notice was not complied with. Regulators may now take any action necessary to ensure the safety of the workplace.

Overall, the changes address uncertainty about possible gaps in the existing powers to regulate asbestos under the model WHS laws. The regulator now has greater flexibility for determining what measures need to be taken to deal with the asbestos.

While the immediate removal of asbestos is the ideal solution, removal is not always appropriate. For example, there are situations where the asbestos does not pose a health risk in its current state but may create a health risk during removal.

When Did the Laws Come Into Place?

The new laws were introduced in 2019 as an amendment to the model WHS Act and model WHS Regulations. The original WHS laws were developed by Safe Work Australia in 2011. The laws are known as “model” laws.

For model WHS laws to become legally binding, each state and territory must separately implement them. The model laws include the model WHS Act, the model WHS Regulations, and the model Codes of Practice. The change will not apply until a jurisdiction enacts them.

Who Does it Affect?

The new laws affect WHS regulators and the “relevant person in relation to a workplace.” The WHS regulator must determine who should receive the notice.

In some cases, multiple people may be responsible for dealing with asbestos in the workplace due to different workplace arrangements. The relevant person may include the property owner, manager, or employer.

If you are a company that carries out work in a setting where asbestos may be present, you should ensure that your employees have the necessary training. The new laws do not change the requirements for identifying or removing asbestos.

There are several types of asbestos removal training courses intended for different roles. Any employees whose work may reasonably involve exposure to asbestos should complete the 11084NAT Course in Asbestos Awareness (previously 10675NAT).

Asbestos awareness training provides the skills and knowledge needed to identify asbestos in the workplace. It is a nationally recognised training course, but it does not meet compliance for the removal of asbestos.

Employees whose work may require the removal of asbestos or asbestos-containing material (ACM) must complete the Remove Non-Friable Asbestos (Class B) course or the Remove Friable Asbestos (Class A) course.

Non-friable (Class B) asbestos contains less of a health risk compared to Friable (Class A) asbestos. With non-friable materials, the asbestos is bonded to other products, such as cement or plastic mixed with asbestos.

Friable asbestos includes materials that are powdery or can easily become dust when crushed, increasing the risk of inhalation and exposure. As the asbestos is easily released into the air, it poses a greater threat.

What Measures Should Companies Take?

Companies should continue to follow the model Codes of Practice for dealing with asbestos and asbestos-containing material (ACM).

Under the Codes of Practice, workers require specific training for removing asbestos or carrying out work when asbestos is present. As mentioned, there are asbestos removal training courses available that directly address the identification and removal of asbestos.

Why Do You Need to Comply?

Complying with a prohibited asbestos notice is necessary under the model WHS Act and model WHS Regulations. Failure to comply with a notice may result in steep penalties.

The amendment makes it an offence to not comply with a prohibited asbestos notice. The law allows a maximum penalty of $500,000 for corporations and $100,000 for individuals.

WHS regulators also have the power to take other remedial action on top of the penalty. For example, a regulator may choose to carry out the measures specified in the notice and any other measures that the regulator believes may increase the safety of the workplace. In these situations, you are required to cover the costs of the measures.

The amendment was designed to increase the safety of workplaces concerning asbestos, which was banned in Australia in 2003. To maintain compliance with WHS laws, always follow the outlined recommendations when presented with a prohibited asbestos notice.