asbestos a practical guide to your responsibilities under whs laws
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Responsibilities under WHS LawsTRANSCRIPT
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
Asbestos – A Practical Guide to Your Responsibilities Under New Work Health & Safety Laws
Webinar 13 March 2012
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
About the webinar presenter - Michael Teys is the Founder and Principal
Lawyer of TEYS Lawyers. He has a Bachelor of Laws and practices
exclusively in the area of strata title law. He is a Fellow of the Australian
College of Community Association Lawyers. He was formerly an Adjunct
Lecturer with Charles Sturt University. He appears weekly on SKY News
Business Channel's Property Success with Margaret Lomas and is a regular
panellist for the property edition of Your Money, Your Call for the same
channel. You can read Michael’s blog at www.michaelteys.com and follow
him on Twitter at @MichaelTeys.com
Teys Lawyers practice nationally in strata title law representing owners corporations, bodies
corporate and apartment owners. The firm’s practice groups include building defects, strata
community disputes, strata titles property law, by-laws and levy collection.
Subscribe for their free e-newsletter StrataSpace and find out more about them at
www.teyslawyers.com.au
Asbestos – A Practical Guide to Your Responsibilities Under New Work Health & Safety Laws
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
What Do Strata Bodies and James Hardie Industries Have in Common?
• From 1 January 2012 strata bodies are liable for asbestos hazards and risks at work
• There is personal liability and jail time for recklessness by committees and managers
• There are fines for breaches of the regulations
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
Asbestos Cases Are on the Rise
Source: www.asbestos-disease.com.au
“Another 25,000 + Australians will die
over the next 40 years”
“600 new cases are developing a year due to lag time between
exposure and manifestation”
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Your Insurance Does Not Cover This Risk
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Strata Bodies Have Unlimited Liability
• An uninsured owners corporation or body corporate must still pay a damages award
• Unlike shareholders and club members, lot owners do not have limited liability
• An administrator will be appointed to strike a levy to cover damages and costs
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Damages Awards Can Exceed $2M
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In Addition There May Be Fines & Jail • Recklessness / risk
– OC / BC $3million– Committee $600,000 / 5 years jail– SM $300,000 / 5 years jail
• Breach / risk– OC / BC $1.5 million– Committee $300,000– SM $150,000
• Breach– OC / BC $500,000– Committee $100,000– SM $50,000
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
New WHS Laws at a Glance
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Person Carrying on a Business or Undertaking
Volunteer association exemption – strata fails community purpose test
Residential purposes only exemption – applies only
to occupants doing domestic work
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“Strata Title Bodies Corporate Responsible for Common Areas Used Only for Residential Purposes are Exempt”
Exemption will not apply where:•OC / BC employees•Common property with commercial lots•On-site letting agent•Lots used as home businesses•Nannies employed in lots•Lots for short term accommodation•Communication towers / satellite dish / advertising signs
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Primary Duties of a PCBU
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The Latest From the High Court on Safe Systems
• Amputee slipped on chip• “Reasonable care requires
the inspection and removal of slipping hazards at intervals not greater than 20 minutes”
• Damages awarded $580,299.12 + costs
Strong v Woolworths [2012] HCA 5, 7 March 2012
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
A Strata Body’s General Duties About Asbestos
• To ensure that exposure to airborne asbestos is eliminated or minimised so far as reasonably practical
• To ensure that exposure standards for asbestos are not exceeded
s.420 WHS Regulations 2011
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Reasonably Practicable Depends on ……
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All Asbestos Must Be Identified
• There is a presumption in favour of asbestos existing
• If inaccessible it is assumed to be present
• Samples may be tested at an approved laboratory
• Asbestos must be identified with labels and signage
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
Accessible Asbestos Registers
• Asbestos registers must be readily accessible to employees or contractors
• Copies must be provided and should be provided with the work order
• Outgoing strata managers must pass on registers to new managers (reg 428 max fine $18k)
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Asbestos Management Plans
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When Repairing and Maintaining Common Property
1. Review the register and revise2. Provide employee contractor
with copies3. Identify and remove asbestos
prior to demolition or repair4. Develop procedure for limiting
exposure to workers and others
5. Determine what is minor or routine work and therefore excluded
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Duties of an Officer of a PCBU
“An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its duties and obligations”
S.27 WHS Act 2011
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But the Defence for Personal Liability is Clearer
1. Keep up to date2. Understand operations3. Eliminate or minimise risks4. Process information5. Supply resources and
processes 6. Verify provision and use of
resources and processes(Due diligence defence S.27(5)
WHS 2011)
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We Can Help You Develop a Systematic Approach to Due Diligence
Call now on 02 9562 6500 or email us [email protected] for your fixed fee proposal
© Copyright 2012 Teys Lawyers www.teyslawyers.com.au
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