NEW ASBESTOS REQUIREMENTS
The Work Health & Safety Act and Regulation 2011 introduced new requirements in regard to identification and management of asbestos which will apply to strata and community title schemes from 1 January 2012.
The legislation applies to all persons conducting a business or undertaking, whether or not for profit. All group title entities will come within this definition subject to the exemption set out in Regulation 7.
Regulation 7 excludes from the definition of persons conducting a business or undertaking a strata title body corporate that is responsible for any common areas used only for residential purposes but the exemption does not apply if the strata title body corporate engages any worker as an employee. A strata title body corporate is defined as an owners corporation constituted under the Strata Schemes Management Act 1996.
The exemption does NOT cover the following classes of group title entities:
(a) Community, precinct and neighbourhood associations;
(b) Group title companies;
(c) Any residential strata title body corporate which engages a worker as an employee;
(d) Strata title schemes where any common area is used for a non-residential purpose;
(e) Commercial and industrial strata title schemes.
The Act imposes a primary duty of care which requires that every person conducting a business or undertaking must ensure, so far as is reasonably practical, the health and safety of workers engaged, or caused to be engaged by them and workers whose activities in carrying out work are influenced or directed by them, while the workers are at work in the business or undertaking. Further, a person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
The person with management or control of the workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace is without risk to the health and safety of any person. The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.
To be a person with management or control a person must be conducting a business or undertaking and be a person with management or control to the extent that the business or undertaking involves the management and control of the workplace, fixtures, fittings or plant.
Resident unit managers may also have duties under the legislation as a “person conducting a business or undertaking”.
There are a range of obligations set out in the legislation but the Regulations make particular provisions relating to asbestos.
A person conducting a business or undertaking must not carry out, or direct or allow a worker to carry out work involving asbestos. That person must ensure that exposure of a person at the workplace to airborne asbestos is eliminated so far as is reasonably practicable and, if it is not reasonably practicable to eliminate exposure to airborne asbestos, exposure is minimised so far as is reasonably practicable. The person must also ensure that the exposure standard for asbestos is not exceeded at the workplace.
Starting on 1 January 2012 where a building was built before 31 December 2003 and a business or undertaking is being conducted the person with management or control of the workplace must:
• Ensure that all asbestos or asbestos containing material (ACM) is identified by a competent person, assume that asbestos is present or have reasonable grounds for believing it is not (reg 422).
• Clearly indicate the location of any identified asbestos or ACM (reg 424).
• Prepare and maintain an asbestos register (reg 425).
• Review and revise the asbestos register as necessary (reg 426).
• Ensure the asbestos register is accessible to workers, worker’s health and safety representatives, persons conducting a business or undertaking who carry out work or who require or intend to require work to be carried out at the workplace (reg 427).
• Ensure the asbestos register is transferred to any new person taking over control of the workplace (reg 428).
• If asbestos or ACM is identified, assumed to be or is likely to be at the workplace, ensure that a written asbestos management plan (AMP) is prepared and maintained (reg 429).
• Review and revise the AMP when there is a review of the asbestos register, asbestos or ACM is removed or disturbed in the workplace, the plan is no longer adequate, a health and safety representative requests review or at least once every 5 years.
Asbestos registers and asbestos management plans which have been created under previous legislation will be considered compliant during a twelve month period of grace.
We recommend that a motion be placed on the agenda of a meeting where the entity is one to which the legislation applies, it controls a building built on or before 31 December 2003 and has no reasonable ground to believe that asbestos or ACM is not present. A suggested form of motion is set out below:
“That the (owners corporation or other applicable entity) resolves to retain a competent person to conduct an asbestos and ACM survey in order to identify all asbestos or ACM within (strata or other scheme, land or building as applicable) controlled by it, obtain any sample analysis recommended by that person, properly identify and indicate any asbestos or ACM as required by the Work Health & Safety Regulation 2011 (“Regulation”), prepare an asbestos register as required by the Regulation, if asbestos or ACM is identified or is likely to be present, prepare an asbestos management plan as required by the Regulation and implement that plan.”
THE SECOND TRANCH OF HOME BUILDING ACT AMENDMENTS COME INTO EFFECT FROM 1 FEBRUARY 2012
The Home Building Amendment Act 2011 provided a number of amendments to the home building legislation which became effective on 1 February 2012. In summary they are as follows.
1. Reduction of the statutory warranty period to six (6) years for structural defects and two (2) years for non-structural defects in relation to all new work.
2. Home warranty insurance is only mandatory for residential building work worth more than $20,000.00 being an increase in the threshold from $12,000.00.
3. A new category of written contract for small jobs comes into effect for work worth between $1,001.00 and $5,000.00.
4. The excess on any claim decreases from $500.00 to $250.00 on all new insurance policies.
5. The minimum insurance cover increases to $340,000.00 regardless of the value of the work.
6. The definition of corporations related to builders and developers and exclude from being beneficiaries of home warranty insurance is extended.
NEW SUPREME COURT CASE GRANTS A LOT OWNER AN INJUNCTION TO PREVENT WORKS BEING DONE PURSUANT TO AN EXERCISE OF DELEGATION BY AN AGENTUNDER S162
Jennifer Elizabeth James v The Owners – Strata Plan No SP11478 [2011] NSWSC 1641.
The Facts
The strata scheme was under compulsory management and the agent managing the scheme sought to enter into a contract to conduct fire safety work in compliance with notices received from the local council together with work which the lot owner alleged constituted improvements to the strata scheme under s65A of the Act.
The agent held a meeting pursuant to which the works were approved and in conjunction with those works certain obligations were cast upon the lot owner pursuant to s52 and s65A of the Strata Schemes Management Act 1996 (“Act”). The lot owner’s written consent was not obtained.
The lot owner brought an application in the CTTT to set aside the exercise of the delegated authority by the agent. The agent sought to enter into a contract for performance of the works shortly before Christmas and before a determination on the application was made. The lot owner approached the Supreme Court for an order restraining the owners corporation from entering into that contract until a determination is made by the CTTT.
The Findings
Justice Slattery found that there was an arguable case that the works comprised improvements to which s65A may apply and notwithstanding the s162 appointment, the consent of the lot owner was required in so far as obligations were cast on that lot owner. He found that the CTTT determination would be ineffectual if the contract was entered and the works performed. He accordingly granted an injunction restraining the owners corporation from entering into the contract except in so far as the contract related to fire safety work. His Honour found that the fire safety work was work under s62 of the Act and, in order to maintain the safety of the building, excluded it from the scope of the injunction.