Severe penalties for lessees under wider asbestos regulations

May, 2013

In the past, responsibility for asbestos management largely fell upon the owners of buildings. That position has changed under the Federal Model Work Health & Safety legislation.

The Model legislation imposes obligations on lessees of a building concerning the detection and management of asbestos containing materials in their leased premises. The obligations relate to buildings constructed before 31 December 2003.

For buildings which meet a certain set of criteria, a lessee is responsible for maintaining an asbestos register and, to the extent that they are required, preparing an asbestos management plan. A failure to comply may result in penalties of up to $3,000,000 for an organisation and $600,000 and 5 years imprisonment for individuals.

Currently, the Model legislation operates in all States except for Victoria and Western Australia although it is almost certain to come into play in these two states in due course.

QLD, NSW, ACT, SA & Tas:

A person with “management or control” of a workplace must ensure asbestos at the workplace is identified, recorded in a register and (if applicable) subject to an asbestos management plan.

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 circumtances where:
• 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.

Even if no asbestos is identified or is determined not be present based on reasonable grounds, the register must state that no asbestos is identified or present in the workplace.

Under the previous regulations, an asbestos register was not required if the workplace building was constructed before 1 January 1990. If an asbestos register was not required under the previous regulations but is now required under the new regulations, a person has until 1 January 2014 to comply with these new requirements. If an asbestos register was previously required, from 1 July 2013 the lessee now has the obligation to ensure a register is maintained and, if necessary, an asbestos management plan is maintained. By and large, this obligation previously fell upon building owners.

Vic & WA

The Model Work Health & Safety legislation has not yet come into force in these jurisdictions.

Generally speaking, in Victoria and WA, a lessee of a building who runs a business from that building is not the person who has responsibility to maintain an asbestos register or management plan.

This does not, however, affect the employer’s obligations under the OHS Act and Regulations in the respective States to maintain a safe workplace. This would include an obligation to control risk of exposure where asbestos is identified, control asbestos-related work and indicate where asbestos may be located.

Further, as indicated above, it is almost certain that the Model legislation will be introduced in Victoria and WA sooner rather than later.

Contact Mills Oakley

Adam-lunn-mills-oakley

Adam Lunn | Partner
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

james-price

James Price |  Partner
T: +61 3 9605 0824
E:jprice@millsoakley.com.au

 

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