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Asbestos A Practical Guide to Your Responsibilities Under WHS Laws
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Asbestos A Practical Guide to Your Responsibilities Under WHS Laws

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Responsibilities under WHS Laws

Responsibilities under WHS Laws

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  • 1. Asbestos – A Practical Guide to Your Responsibilities Under New Work Health & Safety Laws Webinar 13 March 2012 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 2. Asbestos – A Practical Guide to Your Responsibilities Under New Work Health & Safety Laws 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 3. 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 4. Asbestos Cases Are on the Rise “600 new cases are developing a year due to lag time between exposure and manifestation” “Another 25,000 + Australians will die over the next 40 years” Source: www.asbestos-disease.com.au © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 5. Your Insurance Does Not Cover This Risk © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 6. 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 7. Damages Awards Can Exceed $2M © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 8. 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 9. New WHS Laws at a Glance © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 10. 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 11. “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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 12. Primary Duties of a PCBU © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 13. 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 14. 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 15. Reasonably Practicable Depends on …… © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 16. 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 17. 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
  • 18. Asbestos Management Plans © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 19. When Repairing and Maintaining Common Property 1. Review the register and revise 2. Provide employee contractor with copies 3. Identify and remove asbestos prior to demolition or repair 4. Develop procedure for limiting exposure to workers and others 5. Determine what is minor or routine work and therefore excluded © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 20. 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 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 21. But the Defence for Personal Liability is Clearer 1. 2. 3. 4. 5. Keep up to date Understand operations Eliminate or minimise risks Process information 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
  • 22. We Can Help You Develop a Systematic Approach to Due Diligence Call now on 02 9562 6500 or email us at service@teyslawyers.com.au for your fixed fee proposal © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  • 23. Notes © Copyright 2012 Teys Lawyers 23 www.teyslawyers.com.au