Businesses should prepare for new asbestos regime

Friday 28 July 2017

Authors: Tim Clarke and Renee Yoon

​Building owners and occupiers who manage or control a workplace have less than eight months to become fully compliant with the Health and Safety at Work (Asbestos) Regulations 2016 (Regulations). The Regulations were introduced in 2016 and include a number of obligations that took effect immediately. Key obligations to prepare and review an asbestos management plan do not come into force until 4 April 2018.

Key asbestos management obligations for building owners and occupiers

Identifying and locating asbestos

Currently, building owners or occupiers who manage or control a workplace must ensure that asbestos is identified at the workplace. This requirement means that if a building owner or occupier knows, or reasonably ought to know, that there is a risk of exposure to respirable asbestos fibres, it must, so far as is reasonably practicable, identify all asbestos (including asbestos containing material (ACM)) that poses a risk of exposure.

In New Zealand, a significant proportion of buildings, both industrial and residential, are likely to contain some form of asbestos, particularly those built, altered or refurbished between 1940 and the mid-1980s. Buildings constructed after 1 January 2000 are less likely to contain asbestos or ACM.

In order to identify asbestos or ACM, businesses will need to conduct an asbestos survey of all buildings in their workplace. Where asbestos is identified, the building owner and occupier must keep a record of the location and condition of the asbestos, update their risk register , and clearly indicate the presence and location of asbestos or ACM.

If a building owner or occupier believes, on reasonable grounds, that asbestos is not present in the workplace, they will not be required to perform an asbestos survey. For example, if they have recorded evidence that all asbestos has been previously removed. However, many building owners and occupiers will not know whether asbestos or ACM is present. Therefore, it will be prudent for most building owners or occupiers to conduct an asbestos survey.

Asbestos management plan

From 4 April 2018, building owners or occupiers who manage or control a workplace, and who have identified the presence of asbestos or ACM in the workplace, must prepare and review an asbestos management plan.

An asbestos management plan is a written plan, which contains information about:

  • the identification of asbestos or ACM,
  • decisions (including reasons for those decisions) on how the risk caused by the asbestos is managed,
  • procedures for detailing incidents or emergencies involving asbestos or ACM at the workplace, and
  • the workers who carry out work involving asbestos, including:
    • ​information and training,
    • roles and responsibilities, and
    • ​any health monitoring.​

A building owner or occupier must ensure that the asbestos management plan is kept up-to-date and a copy is readily accessible to any worker (or their representative) who, or any business which, has carried out, carries out, or intends to carry out work at the workplace.

Additionally, after 4 April 2018, businesses that have an asbestos management plan must review and revise the plan (if necessary) in certain circumstances. For instance, where asbestos is removed from or disturbed at the workplace, or if five years have passed since the plan was last reviewed.

Air monitoring

The Regulations also require businesses that manage or control a workplace to ensure that a person's exposure to airborne asbestos is eliminated so far as is reasonably practicable, or minimised where it is not reasonably practicable to eliminate the risk.

After 4 April 2018, a business which commissions "Class A" asbestos removal work (removal of easily crumbled asbestos), is required to ensure that an independent licensed asbestos assessor undertakes air monitoring of the asbestos removal area. Until then, a "competent person" may carry out "Class A" air monitoring.

Expectation that building owners and occupiers will work together

There will often be situations where both the building owner and the occupier will be considered to have "management or control of a workplace" and therefore have overlapping duties under the Regulations. In these scenarios, the Health and Safety at Work Act 2015 requires both parties to consult, co-operate and co-ordinate activities with one another, to ensure there are no gaps in protection. Parties will need to share information on how they will meet their obligations under the Regulations. For example, who will take responsibility for maintaining the asbestos management plan and what process will the building owner and the building occupier use to communicate relevant information when it comes to light.

Further guidance on how to identify and control the work health and safety risks caused by asbestos can be found at WorkSafe's Approved Code of Practice: Management and Removal of Asbestos here.

Asbestos-related disease

The dangers of asbestos exposure are well-known. According to WorkSafe, asbestos is New Zealand's single largest cause of deaths from work-related disease. WorkSafe has targeted a reduction in asbestos-related disease by 50 per cent by 2040. This aim is in line with WorkSafe's renewed focus on managing work-related health risks, detailed in their "Strategic Plan for Work-Related Health 2016 to 2026", and highlights the increasing importance for businesses to manage any work-related health issues in their workplace.

This update does not deal with the licensing regime under the Regulations for demolition and removalist work.

If you would like to talk to us further about the new Health and Safety at Work legislation and what it means for your business, please contact one of our team.


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Tim Clarke

    Partner Auckland
  • Rachael Brown

    Partner Wellington
  • Jane Holland

    Partner Auckland
  • David Chisnall

    Partner Wellington
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