The risks around asbestos being present in buildings has been a significant issue for many years. According to Worksafe, it’s a leading workplace hazard with more than 170 people dying each year from past asbestos exposure. Both landlords and tenants are very sensitive to even the likelihood of asbestos being present, whether a real health risk or otherwise. Leasing deals have been known to fall over when there’s a sniff of asbestos in the air…
In further response to reducing this workplace disease, the Government has recently introduced new requirements dealing with the identification and removal of asbestos. These are contained in the Health and Safety at Work (Asbestos) Regulations 2016. The regulations came into force on 4 April 2016.
Changes coming into effect April 2018
Under these new regulations by April 2018 if you own or occupy a building that contains (or is suspected to contain) asbestos you need to have an Asbestos Management Plan in place.
As a tenant, what does the legislation mean for you?
Well, the new legislation covers all PCBU’s – persons conducting a business or undertaking –a concept under the Health and Safety at Work Act. That’s most likely to mean you, if you are a company director and tenant in an office building, with overarching responsibilities for the health and safety of a team.
Essentially, if you have reason to suspect there is asbestos in your workplace, either through prior knowledge, locating asbestos during renovations, hearing about it from the building contractors or in some other way, you are obligated to take steps to do something about it.
For a tenant, this will normally be reporting the presence, or likely presence of asbestos to your landlord, if it’s contained within the building structure (landlords are also PCBU’s). The landlord will then have the obligation to arrange management and removal by a licensed contractor. We expect some landlord’s are likely to carry out initial invasive testing where there is some uncertainty about its presence or otherwise.
If asbestos is known, or even suspected to be present, then an Asbestos Management Plan needs to be put in place. Asbestos has been used in the past in floor tiles, textured paints, wall tiles, external claddings and as an insulating material. It may be present in building constructed prior to 2000.
Asbestos Management Plan – the basics
The plan needs to identify where the asbestos (or suspected asbestos) is, decisions made on the risks associated with the presence of asbestos, roles, responsibilities and training of workers who are to deal with it, and how incidents will be dealt with.
We believe these plans will normally be the responsibility of the landlord to put in place and manage, however if the asbestos present is part of an old fitout you have taken over or purchased, then the obligation is likely to be yours to put in place a plan and arrange removal.
The asbestos plans will inform both landlord and tenant contractors when carrying out maintenance and building work in the workplace in the future.
As tenant, here’s what’s important
We suggest you check with your landlord if they have identified any asbestos in the building, or believe based on a building’s age, construction materials used, and past evidence whether your premises are likely to contain asbestos. If so, you should request a copy of the Asbestos Management Plan (remember, these need to be in place by April 2018), familarise yourself with its procedures and pass onto your contractors so they are familiar with the risks when carrying out work for you.
We also recommend that your lease (or future lease) includes an obligation on the landlord to have identified asbestos removed at the landlord’s cost, and that where this interferes with your use of the premises, an abatement of rent apply.
If you need any help with negotiating these terms or understanding your obligations, please get in touch with one of our team.