Health and Safety With Asbestos – Some Clarification for Landlords and Bodies Corporate

18-Jun-2018 Under the Health and Safety at Work Act 2015 (HWSA) and Bodies Corporate and Landlords must ensure that, when work is carried out at the property, it is done safely and without endangering workers or others occupying or visiting the property.  In the case of Landlords this includes ensuring the safety of all tenants and occupiers at the property.

For ease of reference I will refer to Bodies Corporate and Landlords as the persons conducting a business or undertaking (“PCBU”) for the property as this is the term used in the HSWA.

In terms of the Health and Safety at Work (Asbestos) Regulations 2016 (Regulations) the PCBU must identify asbestos in the workplace and document plans for managing its risks in an asbestos management plan if there is a risk of exposure to respirable asbestos fibres.

In fulfilling your obligations under the Regulations you need to consider issues such as – “is the property of an age and type that is likely to contain asbestos, such as a structure built, altered or refurbished before 1 January 2000 with building elements that may contain asbestos.”

Key Factors

As a PCBU you have numerous obligations under HSWA in respect of matters that take place in or at the property.  You may not be alone in this obligation as you may also be able to rely on other PCBU’s such as building contractors and property managers to coordinate collaborate and co-operate with you when these people share overlapping duties with you where any works are intended to be carried out on the property.

HSWA imposes a duty on the PCBU to identify asbestos and to prepare an asbestos management plan for work involving a risk of exposure to respirable asbestos fibres.  By way of example -  if exposure is likely to occur from dust created when demolition is being undertaken or drilling or cutting into potential asbestos containing materials as contemplated.

The risk of exposure depends on the kind of work that is planned.  Types of work that create potential risk may include (but are not limited to) renovations, refurbishments or demolition work.

Duty

If the proposed works create a risk of exposure in an area of the property the PCBU must ensure asbestos is identified and an asbestos management plan is prepared before the work is carried out.

Application of HSWA and Regulations

There has been a great deal of “drum beating” in the marketplace concerning the Regulations.  A significant number of commentators have stated that as a PCBU you are obligated to have a full survey of the property undertaken and identify the risks relating to potential asbestos contamination.

Worksafe has now clarified the extent of the duty under the Regulations.

The duty only applies:
when you are planning and carrying out the work; and
to the area relevant to the work creating a risk of exposure to respirable asbestos fibres.

This clarification from Worksafe makes it very clear that there is no need to rush out and incur the expense of obtaining a full survey of the property.

As the PCBU you must however consider the potential of asbestos contamination and the risk that any proposed work might have in releasing respirable asbestos fibres into the air and the property.

When engaging contractors to carry out any work at the property, you must take into account the age of the works at the property and give consideration to the potential for there to be asbestos in the building structure of the property and act accordingly.

For more information or advice on this topic please contact Ian Jespersen.

Email:   Ian.Jespersen@burtonpartners.nz
Phone:  64 9 913 1772