15 January 2019

Asbestos: your duty of care as an agent

As the managing agent of a property, you are liable for the safety of contractors you send into it. Particularly when asbestos is present.

The Work Health and Safety Act (2011) states the person with management or control of a workplace (property) 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 are without risks to the health and safety of any person. 

What should you know about asbestos

Asbestos is the name for a group of naturally-occurring mineral fibers once used in a variety of domestic and industrial products. There are six broad types of asbestos – all classified as hazardous substances – with blue asbestos (crocidolite) being the most dangerous.

Non-friable or bonded asbestos is commonly found in older style 'super 6' corrugated roofing sheets, fibro sheeting, stormwater downpipes, telecom pits, electrical backing boards, eaves lining boards and some types of linoleum. 

Asbestos containing material is considered friable if it can be crumbled, broken or reduced to powder by hand. For example, lagging insulation around old pipes, loose-fill asbestos insulation and the fill within some fire doors. It is possible for non-friable or bonded asbestos to become friable through physical impact, damage and deterioration over time. 

Fair Trading warning to building contractors 

In October 2018, NSW Fair Trading issued a fact sheet for all building contractors, reiterating the dangers of asbestos and loose-fill asbestos.

"NSW Fair Trading warned contractors that if they suspect a home may contain loose-fill asbestos insulation, they should request the homeowner has it tested prior to commencing with a quote or works," says Shane Foley of BIV Reports, specialists in the identification and control of asbestos. "They advised contractors not to enter roof space or subfloor areas until the property has been assessed by a competent person."

How can you protect yourself and your landlords from asbestos claims

Foley says the only way to effectively protect yourself and your landlords is to engage a competent inspector experienced to perform testing of suspect material and provide an Asbestos Register and Asbestos Management Plan. This plan should be in accordance with the National Code of Practice for the Management and Control of Asbestos in the Workplace [NOHSC: 2018 (2005)].

"There are four simple steps to ensuring you and your landlords are protected against asbestos and asbestos-related claims," he says. "First, speak to an expert to assess high-risk asbestos properties in your portfolio. Next, ensure all owners and contractors are aware of the dangers of asbestos and how to protect themselves. The NSW Fair Trading fact sheet is a great resource that should be shared with your landlords, tenants and contractors."

With the permission of the landlord, Foley says the next step is to order an Asbestos Report.

"An Asbestos Report is a term developed by BIV Reports and includes both an Asbestos Register and an Asbestos Management Plan," he says. "The Asbestos Register identifies asbestos or asbestos containing material and where it is located on the subject property. 

"In NSW and the ACT, an Asbestos Register is mandatory for all commercial, retail, industrial and mixed-use residential properties that contain a common property workplace built before 31 December 2003. There are requirements under Work Health and Safety legislation to prepare and display an Asbestos Register at a workplace. Additionally, an Asbestos Management Plan has to be implemented and reviewed periodically.

"Once the Asbestos Report is complete, you should share it with the landlord, tenant and any contractors attending the property."

Foley says non-compliance can be an expensive and time-consuming exercise and often results in fines and legal action. 

"For the protection of all invested in the property, it is essential and prudent to obtain an Asbestos Register and Asbestos Management Plan," he says. "It could mean the difference between a safe tenancy and potentially life-threatening activity."

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