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Alert24 - Safeguard Update

Asbestos obligations

Asbestos obligations
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New Zealand

New regulations will give WorkSafe NZ – and others – more avenues to prosecute if asbestos is not appropriately identified, monitored and managed, a recent Auckland seminar has been told.

Speaking at the Asbestos Reform and Overseas Mistakes seminar, jointly hosted by law firm Meredith Connell and risk management and compliance consultancy Greencap, health and safety law specialist Sam Moore said MBIE’s exposure draft regulations, which will eventually accompany the Health and Safety at Work Act, place a lot more emphasis on proactive asbestos management: conducting surveys to determine if asbestos is present, developing management plans for all ACMs (asbestos-containing materials) on site, and regular review to ensure controls remain effective.

Moore said there will also be an increasing obligation on those who work with asbestos, moving from a relatively simple certification process to a more comprehensive licensing regime.

He noted that HSE Act prosecutions relating to asbestos had resulted in relatively low penalties compared to those for other work-related incidents.

“Although the consequences of asbestos exposure are potentially more significant than for other typical serious harms, given the worst-case outcome and ability to harm many individuals at once, the penalties for asbestos offences have been much lower – and awards of reparations are not usually considered, even though the psychological harm that accompanies an asbestos-related condition, or even just exposure, can be severe.”

In an evolving legislative environment, however, the legal risks could be expected to change, he suggested, with a growing likelihood that claimants will make full use of legal avenues such as the Construction Contracts Act, the Employment Relations Act, and private prosecutions under the Health and Safety at Work Act, to seek redress.

“I think private prosecutions will be the big one if WorkSafe says it doesn’t want to go there for an exposure that happened 30 years before. However if you’ve got an asbestos-related condition that’s only just been diagnosed, that could get around the limitation period.”

In such cases, Moore said, claimants may not only be eligible for reparation but also for a 20 percent top-up of any ACC payments thanks to a recent reform of the Sentencing Act.

“Add in a fine and you could be looking at a very significant penalty – or, if prosecution does not occur, perhaps an out-of-court settlement to avoid reputational harm.”

Many property owners, he said, are also unaware that insurance usually excludes asbestos-related matters, so cover may not be available.

Organisations will need to adopt a holistic approach to asbestos management, he said, covering legal aspects, technical expertise, and how to assess competency when seeking asbestos contractors.

“You also have to think about the reputational aspect for your organisation – how do you manage worried members of the public, and what information should, or shouldn’t, be shared?”

Speaking after the seminar, Greencap’s New Zealand regional practice manager Tim Wheeler said asbestos management needed an approach that was both safe and reasonable.

“There is a lot of misinformation and scaremongering around, but if you’ve identified that your ACM is low risk and you’ve got a management plan in place to ensure it’s well sealed, you won’t need to touch it unless you have work going on that will disturb it.”

With an estimated 80,000 New Zealand buildings containing some form of asbestos, it was time for stakeholders to start talking about the issue and developing workable strategies to manage it, he said. “That’s the whole point of the new regulations: have a management plan, take a risk-based approach, and be prepared.”

Although the regulations are likely to give PCBUs a period of grace before they are required to formalise their management plans, Wheeler said anyone undertaking structural work on a building that might contain asbestos would be well advised to get a survey done so any issues could be identified from the outset.

“At least start thinking about it, and if you think you may have a problem, put it into next year’s budget so you can get some work done. WorkSafe will probably be quite understanding if they can see you’re actively trying to manage what you’ve got on site, but ignoring it isn’t going to be an option.”



People Mentioned:
Sam Moore; Tim Wheeler
Organisations Mentioned:
Greencap; Meredith Connell
Reference No:

From Alert24 - Safeguard Update

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