National Asbestos Awareness Week

National Asbestos Awareness Week (21 – 27 November 2022) is organised by the Australian Government’s Asbestos Safety and Eradication Agency, in partnership with state and territory government agencies and non-government organisations

This year’s National Asbestos Awareness Week (NAAW) campaign reminds “Australians to Think Twice About Asbestos. Asking home occupiers and tradespeople to ‘do things the right way’ by ensuring the proper and lawful disposal of asbestos.

Industrial Relations Minister Grace Grace has shared tips on how to work safely with asbestos materials and the dangers of using high-pressure water blasters to clean asbestos fences and roofs.

“If you’re working on a property that was built or renovated before 1990, it is likely to contain products with asbestos in them,” Ms Grace said.

“More than 3000 asbestos containing materials were used in construction of residential homes in that time.

“Always play it safe before carrying out any renovation work or cleaning the exterior of a home.

“Asbestos products in good condition are not a risk, but if they are disturbed, broken, sanded, blasted with high pressure water or cut, they can release asbestos fibres into the air, putting the health of yourself and others at risk.

“Asbestos fibres are invisible to the naked eye, but they are still dangerous.”

Ms Grace said asbestos was often used in the building industry from the 1940s to 1980s, including on roofs.

“With summer storms on the way, the asbestos safety session on Tuesday 22 November will highlight the dangers of using high-pressure water blasters on asbestos products, which attracts fines and huge clean-up costs to protect the surrounding community,” Ms Grace said.

Asbestos in a Strata Property – Your Duty of Care

WHS Legislation

The Workplace Health and Safety Regulation 2011 (Qld) provides that a person conducting a business or undertaking (PCBU) must ensure that exposure to airborne asbestos is eliminated. If this is not reasonably practicable, the exposure must be minimised.

When asked whether a strata scheme has to comply with WHS legislation in regard to obtaining an Asbestos Register and Asbestos Management Plan, the answer is ‘it depends.’ Is it a workplace?

Since 2012 each State (except Victoria) has adopted the model WHS legislation which requires a safe workplace. Clause 7 of the WHS model regulation provides an exception for a ‘strata titles body corporate’ when it does not engage any worker as an employee’, and also relates to common areas used only for residential purposes.

Is my body corporate a PCBU?

A body corporate responsible for common areas used only for residential purposes is generally not regarded as a person conducting a business or undertaking (PCBU).

However, if the body corporate employs any worker or is responsible for common areas used for commercial purposes (for example, shops or restaurants), it will be a PCBU and have duties under the Work Health and Safety Act 2011 (the WHS Act) to ensure so far as is reasonably practicable:

  • the health and safety of its workers in the workplace
  • the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person
  • the fixtures, fittings and plant are without risks to the health and safety of any person

Get more information on where your body corporate is a PCBU here.

Civil Liability Legislation, Negligence and Duty of Care

People can get caught up with the question of whether the WHS legislation applies to their strata property or not, when they should be asking ‘if our body corporate likely has asbestos or other dangerous materials on the property can the body corporate be sued for negligence if someone suffers harm, and under what legislation?’

Civil Liability Act 2003 (qld) 

What is negligence?

Put simply, negligence occurs when a person (the actor) is reckless or careless, or acts without the degree of skill usually expected of someone in those circumstances which causes some kind of damage or injury to someone else (the victim).

It can arise as the result of an act or a failure to act. Negligence only arises where the actor owed a duty of care to the victim.

What is a duty of care?

A duty of care arises in circumstances where it can be reasonably foreseen that an act or an omission would likely cause injury to another person. If a duty of care arises, the person who owes the duty must perform that duty, or must act to a reasonable standard. If they fail to do so, they will have breached the duty of care.

How would someone prove negligence?

There are three elements that must be proven to claim negligence in Queensland:

  1. A duty of care must have been owed to the victim;
  2. The duty of care must have been breached; and
  3. The breach of the duty must have resulted in some damage or injury to the victim.

When is a duty of care breached?

A breach of duty will arise when the standard of care has not been met. In Queensland, a breach of duty occurs if:

  • The actor (the person who owed the duty) knew or ought reasonably to have known of the risk of harm;
  • The risk was not insignificant; and
  • A reasonable person in the circumstances would have taken precautions against the risk.

The question of whether the duty of care has been breached is determined on a case by case basis.

In determining whether a reasonable person would have taken precautions, the court will consider:

  • How probable it was that the harm would occur if the actor did not take sufficient care;
  • How serious the harm was likely to be;
  • The burden of taking precautions so that the risk of harm might be have been avoided; and
  • The social utility of whatever act or omission created the risk of harm.

Asbestos and Other Dangerous Materials

31 December 2003 was the key cut off date for asbestos use in Australia. Whether dangerous materials are Asbestos Containing Material (ACM), dioxin or some other dangerous chemical, or simply broken glass, the test in negligence and causing harm is the same.

Does the Body Corporate have a duty of care when it comes to Asbestos and Other Dangerous Materials?

The Workplace Health and Safety Regulation 2011 (Qld) provides that a person conducting a business or undertaking (PCBU) must ensure that exposure to airborne asbestos is eliminated. If this is not reasonably practicable, the exposure must be minimised.

While the Work Health and Safety Act 2011 (Qld) primarily refers the responsibilities of businesses and workplaces much of the legislation also covers strata schemes and bodies corporate

Additionally, Bodies Corporate have a general duty of care to ensure the safety of all people on the property, which includes ensuring that asbestos risks are properly managed.

Managing Asbestos Risk

It’s your duty as a body corporate to manage the risks of asbestos and to protect residents, workers and visitors to your strata property from illness.

You need to ensure that you’re aware of any asbestos or asbestos containing materials (ACM) at your property and enact a 4-step process to manage the risk.

Step 1: Identify the Hazard

You will firstly need to identify any asbestos that is present in your property. Under QLD legislation this must done by someone with the proper training, qualification and experience.

If asbestos has been identified you must keep an asbestos register as well as making a an asbestos management plan

Asbestos management plans and registers must be updated at least every five years.

Step 2: Assess the risk

If asbestos has been found, the next step is to make a risk assessment. This will help you figure out:

  • if there is a risk that your workers could be exposed to airborne asbestos
  • whether any effective control measures are in place
  • what actions you can take to control this risk
  • how urgently you should act.

It’s important to know that asbestos or ACM that’s in good condition and left untouched, is relatively low risk. Asbestos is most dangerous when it’s deteriorating, damaged or disturbed. This is when the harmful asbestos fibres become airborne.

Step 3: Control the risk

After assessing the risk of exposure to airborne asbestos in your property, you’ll need to use a control measure. You may need to use a combination of these controls in order to meet your responsibilities under WHS laws.

Step 4: Ongoing Risk Management

If your strata property contains asbestos, risk management should be an ongoing process for you body corporate and review of control measures should be conducted regularly. Don’t wait until something goes wrong.

Work health and safety laws require you to review controls:

  • when you become aware a control measure is not working effectively
  • before a change that might give rise to a new risk
  • when you find a new hazard or risk
  • when your workers tell you that a review is needed
  • after a health and safety representative requests a review.

Asbestos management plans and registers must be updated at least every five years.

Want to know more about managing asbestos risks in your property?

Get in touch with the property compliance experts and contact Strata Umbrella today!