© 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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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”
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
Your Insurance Does Not Cover This Risk
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
Damages Awards Can Exceed $2M
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
“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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
Reasonably Prac>cable Depends on ……
Likelihood of risk
Degree of harm
Actual or imputed knowledge
Op>ons to eliminate & minimise risk
Cost v risk
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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)
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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)
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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