It would have been hard to miss the recent media frenzy surrounding asbestos after NBN Co. contractors unknowingly exposed members of the community to the toxic substance. Whilst the media frenzy has fizzled, now might be a prudent time look at the obligations imposed on owners or persons in control of a workplace, in particular, owners and property managers of a commercial property.
The management and control of asbestos in Queensland workplaces is primarily governed by the Work Health and Safety Act 2011(“WHS”) and the Work Health and Safety Regulations 2011. This legislation imposes an obligation on a person with the management or control of a workplace to ensure that asbestos at the workplace is identified, and where asbestos has been identified, to ensure that the location of asbestos is clearly indicated and recorded in a register and a written asbestos management plan must also be maintained.
If you are the owner or property manager of a commercial property, you should be aware that the above obligations apply to you. Importantly, the requirements are not transferable, in that you cannot pass these obligations on to a Tenant either through a Lease or any other means (although the Tenant may also have a separate obligation if they are a person in control of a workplace).
The predecessor of the WHS required that an asbestos register had to be maintained for a building constructed before 1 January 1990, however, the WHS now requires an asbestos register must be maintained unless all of the following apply:
- The building was constructed after 31 December 2003; and
- No asbestos has been identified at the workplace; and
- No asbestos is likely to be present from time to time.
Asbestos can also be found in plant and equipment within a building. Generally, you will have reasonable grounds to assume that your plant and equipment does not contain asbestos where no plant or equipment was made or installed before 2004.
Whilst you may think that your property does not contain asbestos, you have to demonstrate that you have made proper investigations as to whether or not asbestos is or is not present.
The diagram illustrates the likely places where asbestos may be found.
In most situations, it will be prudent to obtain a report from a qualified person, and, if asbestos is found to be present, that person can then assist you to develop an appropriate register and management plan.
A buyer of commercial property is often concerned as to the existence of asbestos and whether the seller has obtained an asbestos report or maintained a register and management plan. This may be for one of several reasons including, the buyer wants to ensure that it can comply with the requirements of the WHS or the buyer may be planning some redevelopment of the existing building and would like to factor in the additional costs that may be involved because of the presence of asbestos.
Generally speaking, a Seller is not obliged to provide a buyer with a copy of an asbestos report, register or management plan. However, if this is an important consideration for either party, the standard contract terms can be and should be tailored to suite the circumstances.
The implications of failing to make the proper investigations into the existence of asbestos on your property or to properly maintain a register and asbestos management plan could mean that you have breached your obligations contained in the WHS and could leave you liable in a claim of negligence and significant penalties. That is not to mention the harm that you may inadvertently cause yourself or others.
