By Kathleen Watt & Andrew Lind
Under the Workplace Health and Safety Act 1995 (Qld), the Workplace Health & Safety Regulation 2008 (Qld) places significant obligations on owners of commercial buildings built under an approval by local government before 1 January 1990 (prior to 1 January 2012) for dealing with Asbestos.
However from 1 January 2012, the model Work Health and Safety Regulation 2011 (Qld) will come into force, giving effect to the model work health and safety laws developed by Safe Work Australia, and the Workplace Health and Safety Act 1995 (Qld) will be repealed by the Work Health and Safety Act 2011 (Qld).
The rules for dealing with Asbestos apply to buildings used as a workplace, which is likely to be most commercial property.
Asbestos Management Code
If a commercial building was built under a local government approval given before 1 January 1990 (prior to 1 January 2012) or before 31 December 2003 (from 1 January 2012) and is used as a workplace, the commercial building owner must comply with the Asbestos Management Code (the former ‘Code of Practice for the Management and Control of Asbestos in Workplaces [NOHC:2018(2005)]’).
The Asbestos Management Code requires a commercial building owner to:
- Identify all asbestos containing material (“ACM”) on the property and obtain an Asbestos Inspection Report;
- Develop an Asbestos Register of ACM, (from 1 January 2012 this is required even if no ACM is found); and
- If ACM is found, develop an Asbestos Management Plan.
If you are an owner of commercial building built under a local government approval before 1 January 1990 (prior to 1 January 2012) and before 31 December 2003 (from 1 January 2012) you have an obligation to comply with the Asbestos Management Code.
If you have not complied, you should immediately commission an appropriately qualified person to conduct an asbestos inspection and produce a written report complying with the Asbestos Management Code.
Additionally, should you intend to offer the whole or any part of the building for sale or lease you are obliged to:
- Provide a copy of the current Asbestos Materials Report and Asbestos Register (including the Asbestos Management Plan) to the proposed purchaser/lessee before a contract or lease is entered into;
- If works are to be performed on a go forward basis under the Management Plan, make it clear as to who is obliged to perform those works; and
- Provide copies of the Report, Register and Plan to any contractors working within the building.
Please note that occupiers, managers and persons carrying out demolition and refurbishment work (not just owners) have an obligation to comply with the current Asbestos Management Plan.
Special conditions will need to be included in a sale contract or lease (or intention/agreement to lease) and copies provided to us for annexing to the sale contract or lease to ensure compliance with these obligations. Additionally, if you are a building owner and already have a Management Plan in place it is most important for you to periodically pay serious attention to the contents to ensure that your conduct is consistent with it.
There are significant penalties for failure to comply with obligations (with fines up to $60 000 or 6 years imprisonment) as well as risks of liability for damages under proposed contracts of sale or leases if these matters are not fully and adequately addressed.
Please contact us if we can be of any assistance to you in this difficult to navigate area.