Asbestos – What You Need to Know as a Building Owner, Occupier or Manager

There’s a lot of attention on asbestos at the moment.  So what’s all the fuss about and why now?

Asbestos is a naturally occurring mineral that has been mined and used extensively since the industrial revolution.  Because of its fire resistance and tensile strength, asbestos became ubiquitous in buildings around the world.  Common uses include pipe and boiler lagging, board products, wall and roof cladding, electrical components and even textured coatings and vinyl floor tiles.

Asbestos is the boogie man in the closet (perhaps literally) because of the health risks arising from the inhalation of asbestos fibres.  These risks include lung cancer, mesothelioma and asbestosis.  And asbestos is all about the long game: symptoms can take decades to develop and the above conditions are often fatal.  But none of this is news.

What is news is the recent Health and Safety at Work (Asbestos) Regulations 2016, introduced under the Health and Safety at Work Act 2015 (‘the Act’) to impose specific obligations regarding the identification and management of asbestos in the workplace.  These obligations come into full effect on 4 April 2018.

So what do you need to know?  Firstly, you need to establish whether you’re a ‘person conducting a business or undertaking’ or ‘PCBU’.  This is a term introduced by the Act that includes those that influence or direct work carried out by others, thus extending the reach of the Act beyond just employers.  The Act imposes obligations on PCBU’s that ‘manage or control workplaces and/or fixtures, fittings or plant at workplaces.  A workplace is anywhere that work is being carried out or is customarily carried for a business or undertaking.  The Regulations are therefore widely drafted in this regard and body corporates and building managers are caught by the net.

As most workplace buildings are leased, the question arises whether the obligations under the Asbestos Regulations fall to the landlord or tenant.  Both parties may have duties under the Regulations but the respective extent of these will ultimately depend on the wording of the lease.  Auckland law firm Bell Gully note the expectation that landlords and tenants will work together to ensure there are no gaps in protection (see https://www.bellgully.com/publications/businesses-should-prepare-for-new-asbestos-regime).

Landlords are commonly responsible for maintaining the structure and fabric of a building with the tenant responsible for internal maintenance.  Any asbestos containing materials (commonly referred to as ‘ACM’s’) in the building are likely to be owned by the landlord, whether or not these are ‘internal’.   Our experience suggests that landlords are taking the lead on compliance with the Regulations.  Regardless, it’s important that compliance is not delayed due to any ambiguity on the apportionment of responsibility.

If you’re a PCBU in any way responsible for a workplace, you have two key obligations that come into effect on 4 April 2018.  These are the duty to ensure that asbestos at a workplace is identified and the duty to prepare an asbestos management plan where this is the case.  The management plan records the presence of asbestos, the approach to managing the risks this presents and the procedures for dealing with incidents and emergencies.  This must be reviewed and revised every five years or earlier in the event of certain works or information coming to light.

Only a suitably trained asbestos surveyor should be used for any asbestos management survey and asbestos management plan.  The work may include sampling (recommended) of suspected ACM’s and the use of untrained surveyors places those in the building at risk from possible asbestos fibre release.

Compliance with the above obligations can be achieved in one of two ways.  The first is a presumptive approach, where any material that could potentially contain asbestos is treated as if it does.  By implication, this is highly conservative and often results in a management plan that is unnecessarily onerous, including a plethora of warning labels around your building.  The second and more effective approach is to have a survey that includes sampling of suspect materials.  These samples are tested by an accredited laboratory and this ensures that your management plan and emergency procedures reflect the actual risks.  You can expect the slightly lower cost of a presumptive survey to be far outweighed by the additional management/ongoing costs with this approach.

The other key duty for building owners and occupiers, which is already in effect, is the requirement to identify (and remove) any asbestos present in a building prior to demolition or refurbishment.  This applies to any building (or part) constructed prior to 2000, or where asbestos has been identified or likely to be present from time to time.  ‘Demolition’ includes the removal of a loadbearing or structurally integral part of the building.  ‘Refurbishment is not defined but minor work and routine maintenance is specifically excluded from this obligation: minor and routine work is likely to be adequately dealt with through the asbestos management plan.

Demolition or refurbishment of a building requires a far more invasive and destructive survey – referred to as a ‘pre-demolition survey’.  While this is likely to prove problematic for an asbestos management survey within an occupied building, there is generally little concern about ripping a building apart that is soon to be demolished or substantially altered.  In contrast, an asbestos management survey/plan will simply note any areas of the structure and fabric that were not opened up and include procedures for managing the risks associated with the isolated absence of this information.

With the April Asbestos deadline looming, time is in short supply for the limited number of trained asbestos surveyors to get around all of the workplaces in New Zealand: you can expect demand for asbestos management surveys and plans to increase as the 4 April 2018 deadline gets closer.  Our top tip: find yourself a trained asbestos professional early and watch out for potential cowboys jumping in to make a quick buck from increasingly desperate PCBU’s.

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