Summary

The national asbestos ban was dated 31 December 2003.

If your scheme was built before 2004, there is a higher probability that asbestos was used in the building materials.

It was anticipated that the new Work Health & Safety Act 2020 would be proclaimed in March 2022. The WHS Act 2020 will replace the existing Occupation Safety & Health legislation in WA as well as part of other current Acts (Mines, Safety, Petroleum etc). Each state in Australia has adopted the WHS Act 2020, except Victoria.

One of the key changes is moving from the employer/employee relationship to one where a Person Conducting a Business or Undertaking (PCBU) has specific obligations.

More Information

Note that the new WA WHS legislation will impose duties, responsibilities and obligations for some strata schemes, Strata Managers and others – in addition, common law duty of care still remains under the Civil Liability Act 2002, and the Occupiers Liability Act 1985 as well as the general duty to keep in good serviceable repair and properly maintain the common property under Section 91 of the Strata Titles Act 1985.

The question is, is it prudent for a Strata Company to obtain an asbestos register and management plan? The answer is yes.

• Was the risk foreseeable – a risk the person knew or ought to have known (owners cannot place their heads in the sand to save themselves from being sued),
• Was the risk determined as not insignificant from a suitably qualified professional, and
• What precautions would a reasonable person (in control or management) take in those circumstances?

In preparation of these important changes, ESM engaged a number of risk management specialists to provide an understanding of how the new WHS Act 2020 will impact strata companies and the Strata Managers who assist them in the management of their schemes. The Council of the Strata Company is welcome to liaise directly with the following contractors to seek further advice on the management of asbestos within their scheme.

We have attached an article that was published via SCAWA, and also formed part of a presentation from Wal Dobrow of Reserve Fund Plans & BIV Reports Pty Ltd and we thank him for providing this information. The material outlines how the WHS Act 2020 reflects asbestos management (with the addition of a discussion on Covid 19 Safety Action Plans).

When considering asbestos management and asbestos registers, safety and similar issues there are three key areas to consider:

• WHS legislation – being safe from prosecution and other penalties,
• The Civil Liability Act – meeting the key tests and principles above, and
• The right thing to do – those safety and prudent considerations that do not belong under WHS or Civil Liability.

We encourage strata companies to consider asbestos management as part of their 10 Year Maintenance Plan, by engaging a specialist contractor to determine the risk in the first instance. In addition, it would be prudent to have a motion on notice at your next general meeting, to disclose what action your Strata Company is taking on this matter.

Please find following the contact details of asbestos management specialists, that ESM have engaged as part of our trusted supplier network. We also encourage strata companies to take a look at their risk management overall, which may include fire service compliance and emergency evacuation procedures.

Resources

Reserve Fund Plans / BIV Reports - https://www.rfplans.com.au/services/asb/

Reserve Fund  presentation on WHS and Asbestos Legislation and COVID-19 Action Plans - here

Greencap - https://www.greencap.com.au/asbestos-hazardous-materials

QED Environmental Services - https://www.qed.com.au/services/asbestos-hazardous-substances