If an Owners Corporation (OC) manages and controls a workplace, it must ensure that employees and contractors are not exposed to asbestos.
Failure to comply with asbestos provisions under the OHS Act can result in substantial penalties for both the OC and the OC manager.
OHS Legislation
Section 26 of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act) provides that a person who (whether an owner or otherwise) has, to any extent, the management or control of a workplace must ensure that the workplace and the means of entering and leaving it are safe and without risks to health.
Regulation 4.3.2 of the Occupational Health and Safety Regulations 2007 (Vic) (the OHS Regulations) provides that a person who manages or controls a workplace must either:
- eliminate so far as is reasonably practicable the exposure of persons at the workplace to airborne asbestos fibres; or
- if it is not reasonably practicable to eliminate that exposure, must reduce that exposure so far as is reasonably practicable.
OC managers may also have a common law duty not to endanger persons by exposing them to unsafe materials.
What is a workplace?
A workplace is defined under the OHS Act as ‘a place, whether or not in a building or structure, where employees or self-employed persons work’.
According to the courts, the test to be applied in determining control of a workplace is broad. It extends to any person who can, to any extent, direct or command activities at premises used as a workplace.
An OC and OC manager will manage and control a workplace where:
- employees are engaged by the OC to work on the premises, for example, concierges, caretakers, cleaners, car park attendants, etc.; and
- contractors are engaged to conduct works on the premises.
Depending on the facilities, common property may only be characterised as a workplace from time to time.
Asbestos
The OHS Act requires those who manage or control a workplace to reasonably identify all asbestos containing materials in the workplace and record them in an asbestos register.
OC managers must be aware of any asbestos containing material in areas of common property, and should take steps to actively identify risks and hazards on the properties they manage.
The duties set out in the OHS Act are not optional, and breach of these provisions may expose the OC and the OC manager to significant penalties.
The OC and OC Manager must:
1. Identify asbestos containing material;
2. Maintain a register of asbestos containing material; and
3. Mitigate potential risks.
Practical steps to manage the risk
1. Identify asbestos hazards
Make sure that the OC has engaged an expert to conduct a thorough inspection of areas of common property, and all asbestos containing material has been identified.
Asbestos containing material is more likely to be found in older buildings and particularly in and around:
- vinyl floor tiles;
- electrical switchboard; and
- lagging around pipes.
Any friable material identified must be sealed.
2. Maintain records
If asbestos is identified, the OC must establish and maintain a register of any asbestos containing material found in areas of common property including the location, source, type, and condition of the Asbestos Containing Material.
Signs must be installed identifying asbestos containing material that does not warrant removal.
More broadly, the OC’s OHS responsibilities should be a line item in your management report, and should be dealt with at each AGM.
3. Mitigate potential risks
Make sure that the risk of exposure to airborne asbestos materials is mitigated.
If works which may disturb asbestos containing material are planned, such as renovations or demolition, the OC must review the asbestos register and provide a copy to the builder and contractors engaged to conduct the works.
More information
For more information, or advice and guidance on strategies to manage asbestos risks in your property, please contact Anton Block, Principal Lawyer and Head of Owners Corporation, on (03) 8600 8833 or ablock@kcllaw.com.au.
Note: This update is a guide only and is not intended to constitute legal advice.