How should owners and occupiers manage asbestos?

Friday 27 October 2017

Authors: Simon Mee and Renee Yoon

‚ÄčThe Health and Safety at Work (Asbestos) Regulations 2016 (Regulations) require building owners and occupiers who manage or control a workplace to make a number of decisions about managing the risk of asbestos at that workplace. WorkSafe's Approved Code of Practice: Management and Removal of Asbestos (ACOP) will play a key role in those decisions.

The ACOP

As set out in our previous publication on asbestos, building owners and occupiers who manage or control a workplace (workplace PCBUs) who have identified asbestos in their workplace must work together to put an asbestos management plan for that workplace in place by 4 April 2018. The ACOP sets out the process for preparing the plan. Under the ACOP, identifying and locating asbestos (and keeping records of its location and condition) is the first step. Assessing the risk and identifying ways to manage asbestos risks is the second step which is the focus of this update. The ACOP states that workplace PCBUs must first consider eliminating asbestos from the workplace. However, if that is not reasonably practicable, those parties must then minimise the asbestos risk. 

Options other than elimination

The practical issue with elimination (generally by way of removal) is that asbestos has formed part of New Zealand's building materials for decades, including for roofing, cladding, fencing and other major building components such as valves and gaskets. Closing down buildings to remove and replace these items may result in weeks or months of lost production. 

The ACOP recognises this and also acknowledges that materials containing asbestos that have not started degrading do not require removal. 

A workplace PCBU can decide not to remove the asbestos identified in the workplace, provided it records in the asbestos management plan the decision it has made and the reasons for doing so. The risks arising out of asbestos in good condition can be controlled by way of enclosure, encapsulation or sealing. The nature of these methods is further described in the ACOP. These methods all reduce the risk of exposure to asbestos by isolating the hazard from those persons using a workplace, or preventing asbestos fibres from escaping from the asbestos containing material. 

There may be more than one way of controlling the same risk. For example, encapsulation of a roof may ensure that it can be used for its entire economic lifespan, while allowing an owner or occupier to plan for its eventual removal. Active monitoring (including air-monitoring) of the asbestos may be required where asbestos remains in the workplace.

Deciding how to manage asbestos risks

Deciding how to manage asbestos risks in the workplace will depend on the context. The ACOP provides a workplace PCBU with options other than simply removing asbestos which can be discussed further with an appropriate consultant.

Under the new horizontal consultation duty, where a building is leased, the occupier and the owner  must, so far as reasonably practicable, share information and work together to determine responsibility for managing asbestos risks in the building. The allocation of responsibility between the building owner and occupier will depend on the ability each workplace PCBU has to "influence and control" asbestos risks.  In short, the more influence and control a workplace PCBU has, the more responsibility they have.

Conclusion

The Regulations and the ACOP require a proactive approach from workplace PCBUs to work together to identify and manage asbestos risks. The ACOP provides workplace PCBUs with alternatives to the potentially costly elimination of asbestos from a building. Carefully reviewing whether the options such as enclosure, encapsulation or sealing are appropriate for managing asbestos risks may prevent unnecessary costs for businesses.

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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