Asbestos Reports
As you may be aware in NSW the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001 were repealed and from 1 January 2012, the Work Health Safety Act 2011 (WHS Act) and the Work Health Safety Regulation 2011 (WHS Reg) came into effect. So in the near future, you will hear 'OHS' intermingled and eventually replaced with 'WHS'. You will also hear the term 'Person Conducting a Business or Undertaking' (PCBU) which captures a much wider range of person being responsible under the WHS legislation.
We have been asked by many of our Strata Manager clients whether they need to obtain an Asbestos Report. The short answer is 'YES' (for all buildings constructed before 1 January 2004).
The reasons are many, but primarily are:
1. Prudency. The cost of obtaining a current Asbestos Report is very small (from $440) relative to the multiple fines that can be imposed (from $6,000 for a Corporation - Body Corporate). (Note that our Asbestos Report includes an Asbestos Register and an Asbestos Management Plan).
2. All commercial, retail, industrial, mixed use residential properties built before 1 January 2004 need to obtain an Asbestos Register (see cl 425 WHS Reg and the Code of Practice PDF or Code of Practice Doc*).
3. The legislation does not specify that a Strata Manager acting on behalf of a strata title body corporate is to be included within the limited residential strata exemption (see below), and would depend upon the engagement contract or agency agreement. The legislation does not state 'a strata title body corporate or its agent', it is silent on the role of the agent. In addition, a Strata Managers' day to day activities of operating their business would deem them to be a PCBU in any case.
Limited residential strata exemption
Note: s5(6) of the WHS Act allows the WHS Regulation to provide exemptions for a person NOT to be a Person Conducting a Business or Undertaking. In this regard Clause 7 of the WHS Reg states
7 (1) For the purposes of section 5(6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a Person Conducting a Business or Undertaking in relation to those premises.
(2) Subclause (1) does not apply if the strata title body corporate engages any worker as an employee.
Note that the definition of 'worker' is very wide and includes volunteers, employees, contractors and sub-contractors, amongst others (see s7 WHS Act).
Many town planning instruments allow home business type uses within residential buildings, and a home business or occupation may cause a loss of the residential exemption under the WHS Reg.
4. The WHS Act imposes a duty upon a PCBU (read as a Strata Manager in their day to day business).
Division 3 Further duties of persons conducting businesses or undertakings
20 Duty of persons conducting businesses or undertakings involving management or control of workplaces
20(1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace …
20(2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.
Another very important section of the WHS Act defining 'reasonably practicable' is set out below in full.
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Our recommendation is that a WH&S Report also be obtained if the Strata Manager wants to comply with the duty imposed under section 20.
Contact us on 02 9114 9800 to arrange an asbestos inspection in order for you comply with the NEW Work Health and Safety legislation.