If you are landlord or a tenant of a commercial building then there are some requirements relating to Asbestos that you need to be aware of.
There are provisions you need to be aware of which cannot be contracted out of, namely:
Health and Safety at Work Act 2015 (Act)
Health and Safety at Work (Asbestos) Regulations 2016 (Regulations)
Who/What is a PCBU under the Act?
The Act places obligations on the person conducting a business or undertaking (PCBU). A commercial landlord is deemed to be a PCBU under the Act because they are in the business of leasing properties. Tenants are also deemed to be a PCBU under the Act.
There can be multiple PCBUs all with the same duties under the Act, especially if the property is in a complex. When there are multiple PCBU with a duty in the same manner, they must consult with one another so far as reasonably practical. This means that there will need to be co-operation between landlords and tenants.
We note that management and control of the building is an important concept. The extent of the duty to manage asbestos related health and safety concerns is dependent on the ability of the PCBU to influence and control the matter. Both the Landlord and Tenant exert a degree of control and management over the property.
As between a landlord and tenant, the lease may dictate who has prime responsibility for compliance with the legislation but both parties need to review the situation to ensure compliance.
In this regard, an asbestos survey and management plan (if required) should have been made for each property by 4 April 2018.
When does a property require an asbestos survey?
Regulation 10 requires a PCBU who knows or ought to reasonably know that there is a risk of exposure to or breathing in asbestos fibres in the workplace to practically ensure that all asbestos is identified. This can be done via an asbestos survey. So, the first step is to decide whether an asbestos survey is required for the particular building.
Considering the construction date and date of any renovations will help you to make an assessment as to whether the property needs an asbestos survey. If the property was constructed before 1 January 2000, there is a reasonable risk of asbestos containing materials and therefore an asbestos survey is required.
There is no need for an asbestos survey if you have reasonable grounds for believing there is no asbestos containing materials on the property. Reasonable grounds can include:
The property is brand new or built after 1 January 2000;
There has been confirmation that all asbestos has been removed; or
There is proof that the property never contained asbestos.
Do the properties need an asbestos management plan?
If a survey identifies the possibility of asbestos, then the PCBU must ensure the presence and location of asbestos is identified and managed. This can be achieved via an asbestos management plan which is readily accessible. This requires PCBU with management or control of the workplace to ensure there is a written asbestos management plan detailing:
Where the asbestos is or suspected to be located;
The decisions for managing the risk of asbestos;
The procedure to follow in the event of an incident or emergency involving asbestos; and
If any workers carry out work on the building involving asbestos, the plan must detail the information and training those workers have received, their roles and responsibilities and provide how their health will be monitored.
This management plan MUST be reviewed every 5 years or earlier if asbestos has been removed, sealed or disturbed, or if the plan no longer is adequate.
This management plan can be made yourself and WorkSafe provides assistance on how to create a management plan on their website.
Are there foreseeable issues with renovating or altering the properties?
The Act places the primary duty of care on a PCBU. This means as far as reasonably practical, you must ensure the health and safety of workers at work in the business or undertaking, and workers who are conducting work influenced or directed by the PCBU while carrying out that work. There is an obligation to ensure the health and safety of people at work is not at risk.
If a landlord or tenant engages any tradespeople or construction workers, then it is responsible to ensure they are protected from asbestos. This must be considered before any renovations or alterations occur.
What happens if asbestos is found in the property?
The Act merely states that you must either know or have an idea of where the asbestos containing material is likely to be located, and the management plan states what you plan to do about it based on the level of risk. There is nothing in the Act that provides you must remove the asbestos. There are plenty of things that can be done to mitigate the risk without removal.
We recommend that if you are in doubt, speak to an accredited asbestos surveyor.
The above comments are general in nature and are not to be treated as specific legal advice. Each building and each situation will be different so if in doubt please call one of our Really Very Good experts at RVG Law for advice.