© Copyright 2012 Teys Lawyers www.teyslawyers.com.au

The 10 Step Guide To WHS & Asbestos Compliance

Last Revised 23 April 2012

Michael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He has

a Bachelor of Laws and practices exclusively in the area of strata title law. He

is a Fellow of the Australian College of Community Association Lawyers. He

was formerly an Adjunct Lecturer with Charles Sturt University. He appears

weekly on SKY News Business Channel's Property Success with Margaret

Lomas and is a regular panellist for the property edition of Your Money, Your

Call for the same channel. You can read Michael’s blog at

www.michaelteys.com and follow him on Twitter at @MichaelTeys.com

© Copyright 2012 Teys Lawyers www.teyslawyers.com.au

1. WHS & Asbestos Laws Apply If

Strata entities directly employ staff;

or

Common areas are used for non-residential

purposes

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2. Non-Residential Purposes Means No• OC / BC employees• Commercial lots in a scheme• On-site letting agent• Lots used as home businesses• Lots used for short term

accommodation• Communication towers /

satellite dish / advertising signs• Paid workers temporarily on

site.

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3. Residential Strata Have Strict Liability For Repairs & Maintenance

Seiwa case principles for OC / BC’s:1.Must means ‘must’2.Proactivity required3.Fix defects first, sue later4.Applies to all the common property5.Lot owners can sue for breach

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4. The Basic WHS Duty Of Care

“To ensure, so far as is reasonably practicable, the health and safety of workers and other persons”

Hargreaves v Telstra Corp Ltd [2011] AATA 417 (17 June 2011) is the high water mark

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5. Strata Officers Must Consult On WHS

• Committee members• Strata managers• Building managersMust• Consult• Communicate• Co-operate

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6. Strata Officers Must Be Proactive“An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its duties and obligations” 1.Keep up to date2.Understand operations3.Eliminate or minimise risks4.Process information5.Supply resources and processes 6.Verify provision and use of resources and processesS.27 WHS Act 2011

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7. Special Rules For Asbestos

• Must identify all asbestos

• Must have a register in any event

• Register must be kept on site

• Asbestos management plan required if asbestos is identified

• For major repair or demolition special rules and procedures must be devised

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8. The Personal Stakes For Non- Compliance Are Higher

• Recklessness / risk– OC / BC $3million– Committee $600,000 / 5 years jail– SM $300,000 / 5 years jail

• Breach / risk– OC / BC $1.5 million– Committee $300,000– SM $150,000

• Breach– OC / BC $500,000– Committee $100,000– SM $50,000

• Directors and officers insurance not available for this risk

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9. Common Law Safety Duties Overlap With Statutory Laws

The common law of occupiers liability

SM 159 / AM 157WHS Act 2011

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10. We Can Help You Develop A Systematic Approach to Due Diligence

• 27 page checklist style report

• Specifically addresses the 6 due diligence requirements

• Contains 8 easy to use forms and precedents

• Customised for each OC at $395 + GST