Asbestos A Practical Guide to Your Responsibilities Under WHS Laws

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

Asbestos – A Practical Guide to Your Responsibilities 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 Practical Guide to Your Responsibilities 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 time for recklessness by committees and managers

• There are fines for breaches of the regulations


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 time between

exposure and manifestation”


Your Insurance Does Not Cover This Risk


Strata Bodies Have Unlimited Liability

• An uninsured owners corporation or body corporate must still 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 Addition There May Be Fines & Jail • Recklessness / risk

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

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

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


New WHS Laws at a Glance


Person Carrying on a Business or Undertaking

Volunteer association exemption – strata fails community purpose test

Residential purposes only exemption – applies only

to occupants doing domestic work


“Strata Title Bodies Corporate Responsible for Common Areas Used Only for Residential Purposes are Exempt”

Exemption will not apply where:•OC / BC employees•Common property with commercial lots•On-site letting agent•Lots used as home businesses•Nannies employed in lots•Lots for short term accommodation•Communication towers / satellite dish / advertising signs


Primary Duties of a PCBU


The Latest From the High Court on Safe Systems

• Amputee slipped on chip• “Reasonable care requires

the inspection 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 Duties About Asbestos

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

• To ensure that exposure standards for asbestos are not exceeded

s.420 WHS Regulations 2011


Reasonably Practicable Depends on ……


All Asbestos Must Be Identified

• There is a presumption in favour of asbestos existing

• If inaccessible it is assumed to be present

• Samples may be tested at an approved laboratory

• Asbestos must be identified 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


When Repairing and Maintaining Common Property

1. Review the register and revise2. Provide employee contractor

with copies3. Identify and remove asbestos

prior to demolition or repair4. Develop procedure for limiting

exposure to workers and others

5. Determine what is minor or routine work and therefore excluded


Duties of an Officer of a PCBU

“An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its duties and obligations”

S.27 WHS Act 2011


But the Defence for Personal Liability is Clearer

1. Keep up to date2. Understand operations3. Eliminate or minimise risks4. Process information5. 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 Systematic Approach to Due Diligence

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


Notes

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Education

Asbestos A Practical Guide to Your Responsibilities Under WHS Laws