Since 1 January 2012, all strata buildings containing a common property workplace built before 1 January 2004 must comply with certain legislative requirements relating to asbestos. In summary, these requirements relate to
(a) the identification of asbestos
(b) the creation of an asbestos register and
(c) the creation of an asbestos management plan.
The relevant legislation is the Work Health and Safety Regulation 2011.
Strata buildings containing a common property workplace may include:-
- Commercial and industrial strata schemes
- Residential schemes, where the common property is used for purposes other than residential purposes
- Residential schemes, where the owners corporation engages a worker as an employee.
Community title schemes and company title schemes are not expressly exempt from the legislation and may also be required to comply with its requirements.
Obtain a survey
For these buildings, there is a requirement to survey the building area and identify all loose and friable asbestos as well as stable kinds found in building materials.
Strata managers should ensure that buildings completed before 1 January 2004 have all considered and voted upon a motion at their general meeting in relation to the obtaining of an asbestos survey. If the owners corporation has directed the strata manager to obtain the survey, that instruction should be acted upon.
Maintain a register
If the survey identifies the presence of asbestos at the site, a compliant onsite asbestos register and Asbestos Management Plan must be prepared and made available to anyone on site who might be at risk – such as contractors carrying out work on site.
If asbestos has been found on site, then the building needs to be regularly audited (if the asbestos is left on site in a stable state and not removed) and the Asbestos Management Plan kept up to date.
Asbestos identified on site
In the event asbestos is identified on site (either through the above survey procedure, or uncovered during works carried out by a lot owner or the owners corporation), the owners corporation is immediately on notice of a risk to health and safety and must act to deal with that risk.
In our view, this would include the owners corporation engaging a qualified asbestos specialist or occupational hygienist to inspect the site (being the common property and, to the extent access is made available, the lot property) for asbestos, and implementing the recommendations of that specialist.
In our view, an owners corporation’s obligation to deal with asbestos and related hazardous materials arises from its obligation under section 62 of the Strata Schemes Management Act to properly maintain and keep in a state of good and serviceable repair the common property. To fail to deal with asbestos – especially once on notice of its existence – may constitute a breach of that obligation, in addition to a breach of the Workplace Health and Safety legislation.
In a situation where asbestos is uncovered during the course of works being carried out by a lot owner, an owners corporation may also wish to notify WorkCover, which has the power to issue orders to contractors to immediately cease works until certain requirements are met. An owners corporation may also wish to involve the local council. Councils usually have specific policies in place in relation to work involving asbestos and other hazardous materials.
The information contained in this article is not legal advice. This article is intended to provide general information in summary form only. You should not rely on the content of this article as legal advice. If you would like advice specific to you and your situation, please contact us.