The 10 Step Guide to WHS & Asbestos Compliance

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The 10 Step Guide to WHS & Asbestos Compliance

  1. 1. The 10 Step Guide To WHS & Asbestos Compliance 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 www.michaelteys.com and follow him on Twitter at @MichaelTeys.com Last Revised 23 April 2012 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au at
  2. 2. 1. WHS & Asbestos Laws Apply If Strata entities directly employ staff; or Common areas are used for non-residential purposes © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  3. 3. 2. Non-Residential Purposes Means No OC / BC employees Commercial lots in a scheme On-site letting agent Lots used as home businesses Lots used for short term accommodation • Communication towers / satellite dish / advertising signs • Paid workers temporarily on site. • • • • • © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  4. 4. 3. Residential Strata Have Strict Liability For Repairs & Maintenance Seiwa case principles for OC / BC’s: 1.Must means ‘must’ 2.Proactivity required 3.Fix defects first, sue later 4.Applies to all the common property 5.Lot owners can sue for breach © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  5. 5. 4. The Basic WHS Duty Of Care “To ensure, so far as is reasonably practicable, the health and safety of workers and other persons” Hargreaves v Telstra Corp Ltd [2011] AATA 417 (17 June 2011) is the high water mark © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  6. 6. 5. Strata Officers Must Consult On WHS • Committee members • Strata managers • Building managers Must • Consult • Communicate • Co-operate © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  7. 7. 6. Strata Officers Must Be Proactive “An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its duties and obligations” 1.Keep up to date 2.Understand operations 3.Eliminate or minimise risks 4.Process information 5.Supply resources and processes 6.Verify provision and use of resources and processes S.27 WHS Act 2011 © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  8. 8. 7. Special Rules For Asbestos • • Must have a register in any event • Register must be kept on site • Asbestos management plan required if asbestos is identified • © Copyright 2012 Teys Lawyers Must identify all asbestos For major repair or demolition special rules and procedures must be devised www.teyslawyers.com.au
  9. 9. 8. The Personal Stakes For Non- Compliance Are Higher • 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 • Directors and officers insurance not available for this risk © Copyright 2012 Teys Lawyers www.teyslawyers.com.au
  10. 10. 9. Common Law Safety Duties Overlap With Statutory Laws The common law of occupiers liability WHS Act 2011 © Copyright 2012 Teys Lawyers SM 159 / AM 157 www.teyslawyers.com.au
  11. 11. 10. We Can Help You Develop A Systematic Approach to Due Diligence • 27 page checklist style report • Specifically addresses the 6 due diligence requirements • Contains 8 easy to use forms and precedents • Customised for each OC at $395 + GST © Copyright 2012 Teys Lawyers www.teyslawyers.com.au

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