Asbestos A Practical Guide to Your Responsibilities Under New Work Health & Safety Laws

© Copyright 2012 Teys Lawyers www.teyslawyers.com.au

Asbestos – A Prac>cal Guide to Your Responsibili>es Under New Work Health & Safety Laws

Webinar 13 March 2012


About the webinar presenter - Michael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He has a Bachelor of Laws and practices exclusively in the area of strata title law. He is a Fellow of the Australian College of Community Association Lawyers. He was formerly an Adjunct Lecturer with Charles Sturt University. He appears weekly on SKY News Business Channel's Property Success with Margaret Lomas and is a regular panellist for the property edition of Your Money, Your Call for the same channel. You can read Michael’s blog at www.michaelteys.com and follow him on Twitter at @MichaelTeys.com

Teys Lawyers practice nationally in strata title law representing owners corporations, bodies corporate and apartment owners. The firm’s practice groups include building defects, strata community disputes, strata titles property law, by-laws and levy collection.

Subscribe for their free e-newsletter StrataSpace and find out more about them at www.teyslawyers.com.au

Asbestos – A Prac>cal Guide to Your Responsibili>es Under New Work Health & Safety Laws


What Do Strata Bodies and James Hardie Industries Have in Common?

•  From 1 January 2012 strata bodies are liable for asbestos hazards and risks at work

•  There is personal liability and jail >me for recklessness by commiWees and managers

•  There are fines for breaches of the regula>ons


Asbestos Cases Are on the Rise

Source: www.asbestos-‐disease.com.au

“Another 25,000 + Australians will die

over the next 40 years”

“600 new cases are developing a year due to lag >me between

exposure and manifesta>on”


Your Insurance Does Not Cover This Risk


Strata Bodies Have Unlimited Liability

•  An uninsured owners corpora>on or body corporate must s>ll pay a damages award

•  Unlike shareholders and club members, lot owners do not have limited liability

•  An administrator will be appointed to strike a levy to cover damages and costs


Damages Awards Can Exceed $2M


In Addi>on There May Be Fines & Jail •  Recklessness / risk

–  OC / BC $3million –  CommiWee $600,000 / 5 years jail –  SM $300,000 / 5 years jail

•  Breach / risk –  OC / BC $1.5 million –  CommiWee $300,000 –  SM $150,000

•  Breach –  OC / BC $500,000 –  CommiWee $100,000 –  SM $50,000


New WHS Laws at a Glance

Effec>ve 1 January 2012 in QLD, NSW, ACT & NT

No ‘grace period’ for compliance (limited asbestos register transi>on 30/6/13 for buildings 1 Jan ’90 – 31 Dec ’03)

OC / BC = Person carrying on a business or undertaking

Residen>al strata exemp>on confusing & virtually useless

Reverse onus removed -‐ prosecu>on must prove breach


PCBU

Business

Non-‐profit

Undertaking

Profit

Person Carrying on a Business or Undertaking

Volunteer associa>on exemp>on – strata fails community purpose test

Residen>al purposes only exemp>on – applies only

to occupants doing domes>c work


“Strata Title Bodies Corporate Responsible for Common Areas Used Only for Residen>al Purposes are Exempt”

Exemp>on will not apply where: •  OC / BC employees •  Common property with

commercial lots •  On-‐site lepng agent •  Lots used as home businesses •  Nannies employed in lots •  Lots for short term

accommoda>on •  Communica>on towers /

satellite dish / adver>sing signs


Primary Du>es of a PCBU

PCBU Primary Duty of Care

Safe Work Environment

Safe Plant & Structures

Safe Work Systems

Safe Use Handling & Storage

Info, Training,

Instruc>on, Supervision

Adequate Welfare Facili>es

Condi>ons & Health

Monitoring


The Latest From the High Court on Safe Systems

•  Amputee slipped on chip •  “Reasonable care requires the inspec>on and removal of slipping hazards at intervals not greater than 20 minutes”

•  Damages awarded $580,299.12 + costs

Strong v Woolworths [2012] HCA 5, 7 March 2012


A Strata Body’s General Du>es About Asbestos

•  To ensure that exposure to airborne asbestos is eliminated or minimised so far as reasonably prac>cal

•  To ensure that exposure standards for asbestos are not exceeded

s.420 WHS Regula>ons 2011


Reasonably Prac>cable Depends on ……

Likelihood of risk

Degree of harm

Actual or imputed knowledge

Op>ons to eliminate & minimise risk

Cost v risk


All Asbestos Must Be Iden>fied

•  There is a presump>on in favour of asbestos exis>ng

•  If inaccessible it is assumed to be present

•  Samples may be tested at an approved laboratory

•  Asbestos must be iden>fied with labels and signage


Accessible Asbestos Registers

•  Asbestos registers must be readily accessible to employees or contractors

•  Copies must be provided and should be provided with the work order

•  Outgoing strata managers must pass on registers to new managers (reg 428 max fine $18k)


Asbestos Management Plans Management Plan

Asbestos iden>fica>on

Management decisions and reasons

Incident and emergency procedures

Worker’s informa>on

Made available to all workers

Management Plan Review

Asbestos register is reviewed

Asbestos is moved

Plan becomes outdated

WHS representa>ve requests review

At least once every 5 years


When Repairing and Maintaining Common Property

1.  Review the register and revise 2.  Provide employee contractor

with copies 3.  Iden>fy and remove asbestos

prior to demoli>on or repair 4.  Develop procedure for limi>ng

exposure to workers and others

5.  Determine what is minor or rou>ne work and therefore excluded


Du>es of an Officer of a PCBU

“An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its du>es and obliga>ons” S.27 WHS Act 2011


But the Defence for Personal Liability is Clearer

1.  Keep up to date 2.  Understand opera>ons 3.  Eliminate or minimise risks 4.  Process informa>on 5.  Supply resources and

processes 6.  Verify provision and use of

resources and processes (Due diligence defence S.27(5) WHS 2011)


We Can Help You Develop a Systema>c Approach to Due Diligence

Gap analysis of your current process

Porwolio risk assessment workshop

FAQ’s for your staff, website & client handouts

Personalised leWer of advice to send to your schemes

Seven essen>al WHS forms, precedents & checklists

Call now on 02 9562 6500 or email us at [email protected] for your fixed fee proposal

Education

Asbestos A Practical Guide to Your Responsibilities Under New Work Health & Safety Laws