Asbestos in the Workplace: What Are Your Obligations as an Employer or Landlord?

Who pays for asbestos removal in a commercial building? If you’re reading this, the answer probably is: you do.

It’s estimated that 170 Kiwis die every year due to asbestos-related injuries. It’s 170 people too many and entirely preventable. This is why there is so much legislation around asbestos; it’s not a joke and needs to be treated seriously.

Asbestos wasn’t banned in NZ until the 1980s. Due to many applications of asbestos in buildings, it’s safe to assume if a commercial building was constructed before 1990, it will likely have some form of asbestos in it.

This can be expensive, not just for a landlord but also for employers. What are your obligations? And whose responsibility is it? Is it the landlords? The occupant? And what happens if there is a shared, multi-lease space? The 2016 Health and Safety at Work Act says that there are two roles that have a duty of care in regard to asbestos management.

  1. Person Conducting a Business or Undertaking (PCBU), and this includes businesses, schools, charities, and government departments
  2. PCBU in terms of who manages and controls a workplace (i.e. a landlord, builder, lead contractor)

What Are an Employer’s Responsibilities?

The Health and Safety at Work (Asbestos) Regulations 2016 goes into the responsibilities of an employer. It says that all employers that are aware of asbestos in their premises must have a management strategy and take up all opportunities to reduce the likelihood of asbestos contamination.

An employer must make sure their premises are safe to work in. Failure to comply with health and safety standards can result in significant fines, up to $50,000 for organizations and $10,000 for individuals. If the business is found to have been deliberately negligent, there can even be a jail sentence imposed.

What Are a Landlord’s Responsibilities?

Landlords are ultimately responsible for asbestos in their buildings. As a person conducting business or undertaking (PCBU), they cannot contract themselves out of their responsibilities. However, they can negotiate with their tenants about how asbestos will be managed. This scenario will look different for every agreement, for instance, a tenant could be made responsible for carrying out an asbestos survey before moving into the premises.

Where there are many different parties involved, they are all responsible for the health and safety of those on-site. Even if there is no day-to-day involvement in the business, the landlord still has a duty of care. Once all the PCBUs are in agreement about who will take responsibility for what, the following things need to be done.

Create an Asbestos Management Plan

This plan is designed to be accessed and readable by anyone working on site. It must:

  • Identify all materials in the building that contain asbestos
  • Decide on management strategies for the asbestos, why this choice has been made, and the amount of risk this asbestos presents
  • Processes for managing incidents and emergencies that involve asbestos
  • Detail the monitoring and ongoing inspections of the asbestos
  • Identify the key personnel and what their roles are
  • Explain why or how staff need to be informed or trained

There is also the need to review this management plan regularly and as circumstances change. For instance:

  • If asbestos is removed, moved, or disturbed
  • The plan no longer meets the needs of the organization
  • People who work on-site request a review
  • More than five years have elapsed since the plan was created or reviewed.

Does the Organization Need to Remove All Asbestos?

No. If the asbestos is not at any immediate risk of being moved or causing dangerous asbestos fibres to be exposed, there is no need to remove it. It is often not practical to remove it, but it needs to be managed appropriately though and potentially encapsulated. However, if the building is undergoing renovation or the asbestos has been damaged in some way, then you need to do something about it fast.

Who Pays Wages for Staff During Asbestos Removal?

This will be different in every scenario, depending on the agreement between the landlord and the organisation, as well as the employment agreement with staff.

Things to consider include:

  • Did the employer know about the presence of asbestos before renting the premises?
  • Is the employer able to provide a safe working environment while asbestos is removed?
  • Can the landlord provide another option for a temporary workplace?
  • How long will the workplace be unsafe to work in?

Whatever this looks like, all employers and landlords should carry out negotiations in good faith. The end result should be a healthy and safe workplace for all employees and customers. If you need to speak to an expert about getting a quote (or an opinion on the need to remove or encapsulate), contact us at TechClean. We have branches in Wellington, Canterbury, Nelson and Marlborough, and Dunedin. We will help you create a safe, asbestos-free workplace.

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