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Asbestos Legislation in New Zealand – Common Misconceptions

Home/Asbestos Legislation in New Zealand – Common Misconceptions

Asbestos Legislation in New Zealand – Common Misconceptions

The Health and Safety at Work (Asbestos) Regulations 2016 (“the Regulations”) require building owners and occupiers who either manage, or control, a workplace and who know, or reasonably ought to know, there is a risk of respirable asbestos fibres, to identify the presence and locations.

The legislation has been imposed, there’s a lot to understand and it is fair to say that the industry is struggling as a result of misunderstandings.

This post is designed to clear some of these up and to help ensure you comply with the legislation!

An Asbestos Management Survey is NOT an Asbestos Management Plan

By 4 April 2018, building owners and occupiers (known as a PCBUs – person conducting a business or undertaking) need to assess whether their building contains asbestos (Regulation 10). A safe way to achieve this is to get an Asbestos Management Survey completed by a “Competent Person” (i.e. a person with knowledge, experience, skills and qualifications) as defined in the Regulations.

The market has generally determined that buildings constructed prior to 1 January 2000 require assessment. This is because of the obligation to undertake Demolition and/or Refurbishment Surveys on buildings built prior to this date, before any building works occur.

If any asbestos containing material (ACM) is found, there is a requirement to document this in an Asbestos Management Plan, which will generally include a register and any survey reports produced (Regulation 13). We have experience of a number of organisations who have said they have an Asbestos Management Plan in place but once we’ve reviewed this we have found that it’s turned out to simply be an Asbestos Management Survey.

A properly produced Asbestos Management Plan will assist you, and any contractors you engage, to safely manage asbestos. It will provide information and guidance to ensure safe working procedures where minor works or maintenance are needed in areas containing, or affected by, asbestos.

Not all Asbestos Management Plans are fully compliant

Unfortunately, we’ve witnessed a number of Asbestos Management Plans that don’t include the mandatory criteria specified in the WorkSafe NZ Code of Practice for the Management and Removal of Asbestos, which has been approved by the Minister for Workplace Relations and Safety under under section 222 of the Health and Safety at Work Act 2015.

WorkSafe says: “Following the code might not be the only way of complying with the Act and the Regulations. Duty holders may adopt other practices to achieve compliance, as long as they provide a level of work health and safety equivalent to or higher than the standard in this code.”

The problem is that many of the plans we see are not equivalent to, or higher than, the standard in this code. They are therefore potentially non-compliant, which could not only put people in harm’s way but also create a greater financial liability for the PCBU. A properly considered plan will give you the tools you need to manage asbestos.

What MUST you include in an Asbestos Management Plan?

The following list is included in the WorkSafe Code of Practice. Your Asbestos Management Plan must include mandatory information as set out in Section 1, plus you may want to include additional optional information, under the headings provided for in Section 2.

Your Asbestos Management Plan must include information about:

Section 1

  1. The identification of asbestos and ACM (e.g. where any signs and labels are located).
  2. Decisions, and reasons for the decisions, about how the asbestos risks are managed (e.g. safe work procedures and control measures).
  3. Procedures for recording incidents or emergencies involving asbestos in the workplace.
  4. information about the workers carrying out work involving asbestos, including
    information and training that has been, or will be, provided
    their roles and responsibilities
    any health monitoring that has been or will be conducted.

Section 2

  1. A timetable for managing asbestos exposure risks (e.g. priorities and dates for removal, reviews, circumstances and activities that could affect the timing of action)
  2. Procedures, including a timetable for reviewing and (if necessary) revising the asbestos management plan and asbestos documentation
  3. Air monitoring procedures, if required.

A standard Asbestos Management Plan often won’t cut it!

Like with any health & safety related document, you will want to go through a consultation process in relation to your Asbestos Management Plan. A plan produced without consultation isn’t likely to be successful as the PCBU probably hasn’t understood their obligations.

Every Asbestos Management Plan will be different and will depend on the extent and type of asbestos found and the risk of fibres becoming airborne. It needs to be developed in consultation with you and in a manner that supports the needs of the organisation and other policies that it may have in relation to Health and Safety, etc.

The identification of asbestos in your building does not necessarily result in the need for asbestos removal works. For example, in a very high risk situation, if the asbestos identified is friable in a particular area, rather than remove it immediately, a business may decide to safely isolate the area and plan the removal at a later date. A good consultant will work alongside you, explaining your obligations as a PCBU and help you to understand what decision you’re making and how to comply.

When you need a Demolition and/or Refurbishment survey and how to make this work for you

Before undertaking refurbishment or demolition works, PCBU’s whose properties were built before 1 January 2000, need to conduct an additional, more extensive, investigation to determine whether asbestos containing material is present.

A common misunderstanding is that because an Asbestos Management Survey has been completed, this is sufficient – it is not. In this situation you need a Demolition and/or Refurbishment Survey. A PCBU is required to reasonably identify all asbestos, including ACM concealed behind building elements, which requires more extensive investigation involving invasive and destructive testing methods. This is the purpose of a Demolition and/or Refurbishment Survey, which is in contrast to an Asbestos Management Survey, which should be considered as simply a preliminary survey. Often asbestos containing materials are hidden from view and are concealed behind other building elements, hence the necessity for the more intrusive investigation.

While WorkSafe’s guidance documentation for Asbestos Surveying says this investigation must be undertaken “no more than three months before the works start” we recommend getting this type of survey done at the project planning stage and then getting it checked within the three month time frame to ensure it’s still current.

The risk of waiting until three months prior to project works commencing is that you could add significant time and cost to your project as a result of the later identification of asbestos. If ACM, likely to be affected by the works, is present it must be removed before any other works start – so there is the potential for significant time and cost implications if you are unaware of the level of preliminary work required.

The presence of asbestos in your building doesn’t always mean it’s going to cost the earth to manage

Asbestos as a material conjures up negative connotations. Other than prior to refurbishment and demolition works, the legislation doesn’t require a PCBU to remove asbestos just because it exists. Asbestos within buildings, plant and equipment can be a safe product when it is left undisturbed, managed, or the fibres are held within a matrix. In these situations, fibres won’t be released into the air and contamination won’t occur.

In the vast majority of buildings we survey, it’s simply a case of monitoring and maintaining asbestos. Knowing it’s there and having an Asbestos Management Plan in place means you have the tools to manage it.

Asbestos is only dangerous when the fibres become airborne, which is typically when the ACM is disturbed. In such cases something does need to be done, but it’s only by working in consultation with an appropriately qualified consultant, that you can ensure the solution is the best one for you.

If you need help identifying, managing or removing asbestos or are concerned that your asbestos management plan may not meet legislative requirements, please call us on T: 09 912 2550

Maynard Marks, a market leading consultancy specialising in asbestos management, assists clients to identify, manage and remove asbestos in and around buildings. We employ a large team of experienced and highly qualified Licensed Asbestos Assessors through Worksafe New Zealand. We also recently won the Royal Institution of Chartered Surveyors (RICS) NZ Building Surveying team of the year award for our services in relation to Asbestos. This should provide you with comfort that we are the right people in the industry to be consulting with you on this issue.