Asbestos A Practical Guide to Your Responsibilities Under WHS Laws

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

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


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
“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


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 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


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.
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)


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


Notes


23 www.teyslawyers.com.au

Asbestos A Practical Guide to Your Responsibilities Under WHS Laws

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