• Mhari Clark-McCall
    2
    Kia Ora safety professionals,

    I have a landlord PCBU refusing to assess for presence of asbestos claiming they don't need to as they have a generic asbestos management plan that presumes its there. I'd like to test my interpretation of the legislation on you and seek any hard examples from similar differences of opinion please.

    I believe the legislation does allow for this approach in circumstances where PCBU's with shared duties cannot influence the PCBU with greatest control to get the survey done. However, I don’t believe it is the correct interpretation of the law for a landlord PCBU in full control of the decision making. I also believe they are not meeting their general duty to manage risk by not surveying. Here’s why I think they’ve interpreted it as legal, but incorrectly applied its use to their scenario:

    10 - Duty to ensure asbestos identified at workplace
    (1)
    A PCBU with management or control of a workplace who knows or ought reasonably to know that there is a risk of exposure to respirable asbestos fibres in the workplace must ensure, so far as is reasonably practicable, that all asbestos or ACM giving rise to the risk at the workplace is identified.
    (2)
    A PCBU with management or control of a workplace must,—
    (a)
    if material at the workplace cannot be identified but the PCBU reasonably believes that the material is asbestos or ACM, assume that the material is asbestos; and
    (b)
    if part of the workplace is inaccessible to workers and likely to contain asbestos or ACM, assume that asbestos is present in that part of the workplace.
    (3)
    Subclause (1) does not apply if the PCBU—
    (a)
    assumes that asbestos or ACM is present;

    10 (2)(a) allows for a PCBU to assume there is asbestos when they “cannot” identify it. However, the test is about whether they have done everything “so far as is reasonably practicable” as stated in clause (1) to do that identification before deciding they cannot. I would argue their reason for not testing (that they have 600 plus properties and it is cost prohibitive) is not reasonably practicable as the risk from asbestos exposure is greater than the cost it would incur to survey those properties. If they weren’t the property owner and could not get cooperation from the PCBU that was, that would be a different matter

    The reason I think they are not meeting the general duty to manage risk is that if they don’t survey, when it is reasonably practicable to do so, they cannot know the condition the asbestos is in. It’s one thing to assume it is there and create a generic AMP that puts controls in place for any future disturbance of it, but what have they done to assure all those undertaking “work” (and that doesn’t mean tradies, but anyone working in the building including staff and volunteers) that they are not being exposed to ACM fibres in the air due to the present condition of it?

    The law requires that they have to provide their AMP to workers (our staff in the building) , representatives of workers (Health and Safety Representatives of our staff), and PCBU’s who engage people to work in the building (my PCBU). The landlord has asked whether we have any intention to carry out work - I believe the landlord has misinterpreted this to think this regulation means a tradesperson disturbing the fabric of the building – it doesn’t – it’s the definition of work inferred from worker and workplace from the Health and Safety at Work Act and means anyone carrying out an activity under 13 (5) of the Act.

    In short, they legally must provide us with a copy of their AMP. Within that AMP we will want to see how they’ve identified the asbestos and its condition. They can state they’ve assumed its presence , but what have they done to assess its condition and therefore the risk to safety and health of those present?

    Would love considered responses, thank you.
  • MattD2
    106
    Roughly without getting to technical I would say that they could reasonably go down the route of "assuming asbestos is present" under Reg 10.2... but in doing so they have to treat it as if asbestos has been identified in the workplace (Reg 10.5). Regulation 10 is primarily about the identification of asbestos that may be a risk of exposure to respirable asbestos fibres...
    However under Regulation 13 they have the duty to prepare a Asbestos Management Plan, and specifically Reg 13.4(b) they need to include in that plan the "decisions, and reasons for decisions, about the management of the risk arising from asbestos at the workplace" - this is where they need to get specific about the risk and why they are taking the actions they are taking (or not taking as may be the case).
    And as you have said, to complete this they need to know the condition of the asbestos and the actual risk, if it is a generic plan that states management actions such as "ACM Firbelite board - seal and monitor condition" and it has not been sealed or the condition is poor then you could request that the plan is reviewed/revised under Regulation 14 as "the plan is no longer adequate for managing the risk arising from asbestos or ACM at the workplace".

    The other gameplan is - as your company is also a PCBU with management or control of a workplace (specifically the area of the building you occupy) you could complete your own asbestos survey and Asbestos Management Plan. Obviously there will be areas that you cannot enter due to not having access from the landloard; swithcboards, lift shafts, etc. but here you can reasonably assume presence of ACMs (and you may need to undertake air monitoring/samples as a means to confirm the risk of respirable fibres). This will likely end you up in a similar place of debating with the landlord if work needs to be done or not, but you will have more evidence to back up your side of the argument (and you can also defend that you have done what is reasonably practical to manage the risk in the circumstances).
  • Mhari Clark-McCall
    2
    Hi Matt,

    Thanks for your response its a helpful perspective! I've not seen the AMP as yet as they've failed to provide it, but I do not believe they have specified any management actions as they've a generic statement of "all of our properties are assumed to have ACM". I suspect the catch all of "monitor condition", but how can you monitor something you've no benchmark condition of? I'll get a copy and explore further. I'm happy to email a response on how the AMP has been developed (once I get a copy) but want to avoid any potential commercial damage by naming and shaming on the forum.

    Many thanks

    Mhari
  • MattD2
    106
    No worries @Mhari Clark-McCall, and definitely agree not to name and shame publicly on the forum.

    Hoping there are some others on the forum that can share opinions or insights into how they have dealt with similar situations also.
  • Aaron Marshall
    43
    If you're assuming that asbestos is present, wouldn't that mean that whenever you're doing work, that you have to go through the process of treating any cladding, etc like it is? (and pay the associated management costs)
  • Chris Hyndman
    43


    You're right, although there will always be additional costs associated with refurbishment or demolition activities due to the need for a specific survey for this type of work.

    My own understanding on the requirement for a Asbestos Management Survey is that you would always default to needing one unless it is unlikely that ACMs are present, e.g, due to the age of the building.

    The presumption of ACMs is an acceptable approach where it is not possible to access areas, but shouldn't replace the need to carry out an evaluation of the type, condition and the likelihood of being disturbed. It will also provide advice on any treatment required to ensure that fibres are not released.

    Hopefully any person who may be working on the fabric of the building is provided with this assumption, and has received the right level of training to control the release of fibers from their work.
  • Stuart Keer-Keer
    14
    The regulations has the following

    (5) A PCBU with management or control of a workplace must ensure that a copy
    of the asbestos management plan for the workplace is readily accessible to—
    (a) a worker who has carried out, carries out, or intends to carry out work at
    the workplace; and
    (b) a representative of a worker referred to in paragraph (a); and
    (c) a PCBU who has carried out, carries out, or intends to carry out work at
    the workplace; and
    (d) a PCBU who has required, requires, or intends to require work to be carried
    out at the workplace.

    If you have not seen it or made it available to people that work there, then are you and the owner breaking the law?


    It also states

    Duty to review asbestos management plan

    (1) A PCBU with management or control of a workplace that has an asbestos management
    plan must ensure that the plan is reviewed and, if necessary, revised
    if—
    (a) there is a review of a control measure:
    (b) asbestos is removed from, or disturbed, sealed, or enclosed at, the workplace:
    (c) the plan is no longer adequate for managing the risk arising from asbestos
    or ACM at the workplace:
    (d) a representative requests a review under subclause (2):
    (e) 5 years have passed since the plan was last reviewed.

    You can request a review under (c) (if you get to see it). There is clause 9 in the regulation to minimise or eliminate exposure. Is that being done. There are plenty of other clauses in the regulation I suspect they are not being complied with.
  • Lee Bird
    8
    My god, so many cans with so many worms.

    The practical application of all of the above is actually the most important, not the fact of "holding an AMP". I could wave around a drivers licence manual all day claiming I can drive a car safely, but really?

    I sincerely doubt if audited Worksafe would be happy with a blanket plan where the risk of asbestos exposure rises considerably where brown or blue asbestos may be present, without any effort to identify I would have a field day with my fine book (if I were an inspector). Without sampling directly from suspected materials, and without evidence of it in action, any generic plan is immediately moot.

    By practical application I mean (briefly):

    Has the PCBU(s) advised inhabitants and contractors that asbestos maybe present in the building?

    Do contractors provide reasonable AMP's for the work they do in these buildings, you can presume cladding is white asbestos? Why? Bear in mind pre 1985's (estimate) Hardy ACM products contained brown asbestos also, these were mass produced and installed in nearly every Goverment buidling in the 70's, hospitals, schools and so on.

    This was in roofing, cladding, insulation, gaskets, brake pads and even some concrete fencing. Some internal ceilings (the sparkly type) was a spray on material including blue asbestos.

    The investor is expected to spend a portion of profit on safety, especially one that size. That budget could easily include a builder to take samples of some suspected materials (trust me they will know) for testing, then the AMP becomes relevant.

    It would be reasonable to expect on acquisition of a property the investor (making this his/her primary income) would have knowledge to do such due diligence before handing over the cash, im pretty sure the law would see it that way.

    End of the day, any property investor has the onus to ensure its properties purchased are compliant and significant risks controlled, for occupants and contractors. Builders, electricians and plumbers are most at risk here.

    Sounds like a case of "if I don't know, I don't have to do".

    If you have concerns, contact your local asbestos removal company (a reputable one) and do a limited sample from inside the ceiling and any concrete products and building materials, go back to the Landlord with the results. Once they know, they must do, then forward them the bill :)
  • Lee Bird
    8
    This is also spot on. If the landlord is concerned about cost, wait till they get a bill from a contractor for 3 times as much because they have to assume asbestos is present. Typically however most contractors still shrug shoulders, need the work and blindly go on ahead.

    This of couse would show the AMP is not being followed and the PCBU would be in breach of all manner of things.
  • Stuart Keer-Keer
    14
    My grandfather has a drivers license but you would not want to travel with him. Agree having a plan does not mean they comply. But not having one or a generic one is not a good start. It shows what sort of commitment a PCBU has to ensuring the well being of the occupants of a property.

    An asbestos removal company is not the best option for assessing where asbestos is. How the heck do you know what a good one is and are they any good and surveying for asbestos.

    Worksafe provides very good guidance on what to look for in a surveyor. If they dont have P402 or IP402 and many years of experience (with examples of work) then there is a chance they dont have the required skill set to do the work.

    https://worksafe.govt.nz/topic-and-industry/asbestos/working-with-asbestos/conducting-asbestos-surveys/
  • MattD2
    106
    Worksafe provides very good guidance on what to look for in a surveyor. If they dont have P402 or IP402 and many years of experience (with examples of work) then there is a chance they dont have the required skill set to do the work.Stuart Keer-Keer
    Just want to highlight the experience part - and that it is in asbestos surveying/assesment in the same industry as you - I once saw a survey that claimed a set of brake disc that tested positive for asbestos was low risk because it was bonded into the brake material and in good condition...
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