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.