Work Health and Safety Regulation 2011 Asbestos

asbestos register pic

Chapter 8 Asbestos

Part 8.1                 Prohibitions and authorised conduct

419         Work involving asbestos or ACM – prohibitions and exceptions

(1) A person conducting a business or undertaking must not carry out, or direct or allow a worker to carry out, work involving asbestos.

Maximum penalty – 60 penalty units.

(2) For this section, work involves asbestos if the work involves manufacturing, supplying, transporting, storing, removing, using, installing, handling, treating, disposing of or disturbing asbestos or ACM.

(3) Subsection (1) does not apply if the work involving asbestos is any of the following:-

(a) Genuine research and analysis;

(b) Sampling and identification under this regulation;

(c) Maintenance of, or service work on, non-friable asbestos or ACM, fixed or installed before 31 December 2003, under this regulation;

(d) Removal or disposal of asbestos or ACM, including demolition, under this regulation;

(e) The transport and disposal of asbestos or asbestos waste under the Environmental Protection Act 1994;

(f) Demonstrations, education or practical training in relation to asbestos or ACM;

(g) Display, or preparation or maintenance for display, of an artifact or thing that is, or includes, asbestos or ACM;

(h) Management under this regulation of in situ asbestos that was installed or fixed before 31 December 2003;

(i) Work that disturbs asbestos during mining operations that involve the extraction of, or exploration for, a mineral other than asbestos;

(j) Laundering asbestos contaminated clothing under this regulation..

(4) Subsection (1) does not apply if the regulator approves the method adopted for managing risk associated with asbestos.

(5) Subsection (1) does not apply to:-

(a) Soil that a competent person has determined-

(i) Does not contain any visible ACM or friable asbestos; or

(ii) if friable asbestos is visible-does not contain more than trace levels of asbestos determined in accordance with AS 4964:2004 (Method for the qualitative identification of asbestos in bulk samples);

(b) Naturally occurring asbestos managed in accordance with an asbestos management plan prepared under section 432.

Part 8.2                 General duty

420         Exposure to airborne asbestos at workplace

(1) A person conducting a business or undertaking at a workplace must ensure that:-

(a) Exposure of a person at the workplace to airborne asbestos is eliminated so far as is reasonably practicable; and

(b) If it not reasonably practicable to eliminate exposure to airborne asbestos-exposure is minimised so far as is reasonably practicable.

Note – WHS Act-section 19 (see section 9).

(2) A person conducting a business or undertaking at a workplace must ensure that the exposure standard for asbestos is not exceeded at the workplace.

Maximum penalty – 60 penalty units.

(3) Subsections (1)(a) and (2) do not apply in relation to an asbestos removal area:-

(a) That is enclosed to prevent the release of respirable asbestos fibres in accordance with section 477; and

(b) In which negative pressure is used under that section.

Part 8.3                 Management of asbestos and associated risks

421         Application of pt 8.3

(1) This part does not apply to naturally occurring asbestos.

(2) Sections 425 to 430 do not apply to a workplace that is domestic premises.

422         Asbestos to be identified or assumed at workplace

(1) A person with management or control of a workplace must ensure, so far as is reasonably practicable, that all asbestos or ACM at the workplace is identified by a competent person.

Maximum penalty – 60 penalty units.

(2) A person with management or control of a workplace must:-

(a) if material at the workplace cannot be identified but a competent person 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 the part of the workplace.

(3) Subsection (1) does not apply if the person:-

(a) assumes that asbestos or ACM is present; or

(b) has reasonable grounds to believe that asbestos or ACM is not present.

(4) If asbestos or ACM is assumed to be present at a workplace, it is taken to be identified at the workplace.

423         Analysis of sample

(1) A person with management or control of a workplace may identify asbestos or ACM by arranging for a sample of material at the workplace to be analysed for the presence of asbestos or ACM.

(2) If a person with management or control of a workplace arranges for an analysis, the person must ensure that the sample is analysed only by:-

(a) A NATA-accredited laboratory accredited for the relevant test method; or

(b) A laboratory approved by the regulator in accordance with guidelines published by Safe Work Australia; or

(c) A laboratory operated by the regulator.

Maximum penalty-

(a) for an individual-121/2 penalty units; or

(b) for a body corporate – 60 penalty units.

Note – In relation to the separate penalty for an individual and a body corporate, see the note to section 50(2).

 424         Presence and location of asbestos to be indicated

 A person with management or control of a workplace must ensure that:-

(a) The presence and location of asbestos or ACM identified at the workplace under section 422 is clearly indicated; and

(b) If it is reasonably practicable to do so, indicate the presence and location of the asbestos or ACM by a label.

Maximum penalty – 60 penalty units.

425         Asbestos register

(1) A person with management or control of a workplace must ensure that a register (an asbestos register) is prepared and kept at the workplace.

Maximum penalty – 36 penalty units.

Note – Section 425 does not apply to a workplace that is domestic premises-see section 421(2).

(2) The person must ensure that the register is maintained to ensure the information in the register is up to date.

Maximum penalty – 36 penalty units.

(3) The asbestos register must-

(a) Record any asbestos or ACM identified to be at the workplace under section 422, or likely to be present at the workplace from time to time including-

(i) The date on which the asbestos or ACM was identified; and

(ii) The location, type and condition of the asbestos or ACM; or

(b) State that no asbestos or ACM is identified at the workplace if the person knows that no asbestos or ACM is identified, or is likely to be present from time to time, at the workplace.

(4) The person is not required to prepare an asbestos register for a workplace if a register has already been prepared for that workplace.

(5) Subject to subsection (6), this section applies to buildings whenever constructed.

(6) This section does not apply to a workplace if:-

(a) The workplace is a building that was constructed after 31 December 1989; and

(b) No asbestos has been identified at the workplace; and

(c) No asbestos is likely to be present at the workplace from time to time.

426         Review of asbestos register

 A person with management or control of a workplace where an asbestos register is kept must ensure that the register is reviewed and, as necessary, revised if-

(a) the asbestos management plan is reviewed under section 430; or

(b) further asbestos or ACM is identified at the workplace; or

(c) asbestos is removed from, or disturbed, sealed or enclosed at, the workplace.

Maximum penalty – 36 penalty units.

427         Access to asbestos register

 (1) A person with management or control of a workplace where an asbestos register is kept must ensure that the asbestos register 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 health and safety representative who represents a worker mentioned in paragraph (a); and

(c) a person conducting a business or undertaking who has carried out, carries out or intends to carry out, work at the workplace; and

(d) a person conducting a business or undertaking who has required, requires, or intends to require work to be carried out at the workplace.

Maximum penalty – 36 penalty units.

(2) If a person conducting a business or undertaking carries out, or intends to carry out, work at a workplace that involves a risk of exposure to airborne asbestos, the person with management or control of the workplace must ensure that the person is given a copy of the asbestos register.

Maximum penalty – 36 penalty units.

428         Transfer of asbestos register by person relinquishing management or control

 If a person with management or control of a workplace plans to relinquish management or control of the workplace, the person must ensure, so far as is reasonably practicable, that the asbestos register is given to the person, if any, assuming management or control of the workplace.

Maximum penalty – 36 penalty units.

429         Asbestos management plan

 (1) This section applies if asbestos or ACM is-

(a) Identified at a workplace under section 422; or

(b) Likely to be present at a workplace from time to time.

(2) A person with management or control of the workplace must ensure that a written plan (an asbestos management plan) for the workplace is prepared.

Maximum penalty – 60 penalty units.

(3) A person with management or control of the workplace must ensure that the asbestos management plan is maintained to ensure the information in the plan is up to date.

Maximum penalty – 60 penalty units.

(4) An asbestos management plan must include information relating to the following-

(a) The identification of asbestos or ACM; and

Example:- Reference or link to the asbestos register for the workplace and signage and labeling.

(b) Decisions, and reasons for decisions, about the management of asbestos at the workplace; and

Example:- Safe work procedures and control measures

(c) Procedures for detailing incidents or emergencies involving asbestos or ACM at the workplace; and

(d) Workers carrying out work involving asbestos.

Example:- Consultation, responsibilities, information and training

(5) A person 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 health and safety representative who represents a worker mentioned in paragraph (a); and

(c) A person conducting a business or undertaking who has carried out, carries out or intends to carry out, work at the workplace; and

(d) A person conducting a business or undertaking who has required, requires, or intends to require work to be carried out at the workplace.

Maximum penalty for subsection (5) – 36 penalty units.

430         Review of asbestos management plan

 (1) A person with management or control of a workplace that has an asbestos management plan must ensure that the plan is reviewed and, as necessary, revised in the following circumstances:-

(a) There is a review of the asbestos register or 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 asbestos or ACM at the workplace;

(d) A health and safety representative requests a review under subsection (2);

(e) At least once every 5 years.

Maximum penalty – 36 penalty units.

(2) A health and safety representative for workers at a workplace may request a review of an asbestos management plan if the representative reasonably believes that:-

(a) A circumstance mentioned in subsection (1)(a), (b) or (c) affects or may affect the health and safety of a member of the work group represented by the health and safety representative; and

(b) The person with management and control of the workplace has not adequately reviewed the asbestos management plan in response to the circumstance.

Part 8.4                 Management of naturally occurring asbestos

431         Naturally occurring asbestos

 The person with management or control of a workplace must manage risks to health and safety associated with naturally occurring asbestos at the workplace.

Note – WHS Act-section 20 (see section 9)

432         Asbestos management plan

(1) This section applies if naturally occurring asbestos is:-

(a) identified at a workplace; or

(b) likely to be present at a workplace.

(2) A person with management or control of the workplace must ensure that a written plan (an asbestos management plan) for the workplace is prepared in relation to the naturally occurring asbestos.

Maximum penalty – 60 penalty units.

(3) A person with management or control of the workplace must ensure that the asbestos management plan is maintained to ensure the information in the plan is up to date.

Maximum penalty – 60 penalty units.

(4) An asbestos management plan must include information relating to the following –

(a) the identification of naturally occurring asbestos; and

(b) decisions, and reasons for decisions, about the management of naturally occurring asbestos at the workplace;

Example:- Safe work procedures and control measures

(c) procedures for detailing incidents or emergencies involving naturally occurring asbestos at the workplace;

(d) workers carrying out work involving naturally occurring asbestos.

Example:- consultation, responsibilities, information and training

 (5) A person with management or control of a workplace must ensure that a copy of the asbestos management plan for naturally occurring asbestos at 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 health and safety representative who represents a worker mentioned in paragraph (a); and

(c) a person conducting a business or undertaking who has carried out, carries out or intends to carry out, work at the workplace; and

(d) a person conducting a business or undertaking who has required, requires, or intends to require work to be carried out at the workplace.

Maximum penalty for subsection (5) – 36 penalty units.

433         Review of asbestos management plan

 A person with management or control of a workplace that has an asbestos management plan for naturally occurring asbestos must ensure that the plan is reviewed and, as necessary, revised if the plan is no longer adequate for managing naturally occurring asbestos at the workplace.

Example:- A control measure is revised under section 38.

Maximum penalty – 36 penalty units.

434         Training in relation to naturally occurring asbestos

 A person conducting a business or undertaking must ensure that the training required under section 445 includes training in the hazards and risks associated with naturally occurring asbestos for workers who carry out work where naturally occurring asbestos is likely- to be found.

Maximum penalty – 60 penalty units.

Part 8.5                 Asbestos at the workplace

 Division 1            Health monitoring

 435         Duty to provide health monitoring

 ( 1) A person conducting a business or undertaking must ensure that health monitoring is provided under section 436 to a worker carrying out work for the business or undertaking if the worker is:-

(a) Carrying out licensed asbestos removal work at a workplace and is at risk of exposure to asbestos when carrying out the work; or

(b) Is carrying out other ongoing asbestos removal work or asbestos-related work and is at risk of exposure to asbestos when carrying out the work.

 Maximum penalty – 60 penalty units.

 (2) For subsection (l) (a), the person must ensure that the health monitoring of the worker commences before the worker carries out licensed asbestos removal work.

 (3) The person must ensure that the worker is informed of any health monitoring requirements before the worker carries out any work that may expose the worker to asbestos.

 Maximum penalty – 60 penalty units.

436         Duty to ensure that appropriate health monitoring is provided

A person conducting a business or undertaking must ensure that the health monitoring of a worker mentioned in section 435 includes:-

(a) Consideration of:-

(i) The worker’s demographic, medical and occupational history; and

(ii) Records of the worker’s personal exposure; and

(b) A physical examination of the worker; unless another type of health monitoring is recommended by a registered medical practitioner.

Maximum penalty – 60 penalty units.

 437         Duty to ensure health monitoring is supervised by registered medical practitioner with relevant experience

 (1) A person conducting a business or undertaking must ensure that the health monitoring of a worker mentioned in section 435 is carried out by or under the supervision of a registered medical practitioner with experience in health monitoring.

 Maximum penalty – 60 penalty units.

 (2) The person must consult the worker in relation to the selection of the registered medical practitioner.

Maximum penalty – 60 penalty units.

438         Duty to pay costs of health monitoring

 ( 1) A person conducting a business or undertaking must pay all expenses relating to health monitoring mentioned in section

 Maximum penalty – 36 penalty units.

 (2) If 2 or more persons conducting businesses or undertakings have a duty to provide health monitoring for a worker and have arranged for one of them to commission the health monitoring, the costs of the health monitoring for which any of those persons is liable must be apportioned equally between each of those persons unless they agree otherwise.

Maximum penalty – 36 penalty units.

439         Information that must be provided to registered medical practitioner

A person conducting a business or undertaking who commissions health monitoring for a worker must provide the following information to the registered medical practitioner carrying out or supervising the health monitoring:-

(a) the name and address of the person conducting the business or undertaking;

(b) the name and date of birth of the worker;

(c) the work that the worker is, or will be, carrying out that has triggered the requirement for health monitoring;

(d) if the worker has started that work, how long the worker has been carrying out that work.

Maximum penalty – 36 penalty units.

 440         Duty to obtain health monitoring report

 (1) A person conducting a business or undertaking who commissioned health monitoring mentioned in section 435 must take all reasonable steps to obtain a health monitoring report from the registered medical practitioner who carried out or supervised the monitoring as soon as practicable after the monitoring is carried out in relation to a worker.

Maximum penalty – 60 penalty units.

 (2) The health monitoring report must include the following:-

a) The name and date of birth of the worker;

b) The name and registration number of the registered medical practitioner;

(c) The name and address of the person conducting the business or undertaking who commissioned the health monitoring;

(d) The date of health monitoring;

(e) Any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work that triggered the requirement for health monitoring;

(f) Any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the type of work that triggered the requirement for health monitoring;

(g) Whether medical counseling is required for the worker in relation to the work that triggered the requirement for health monitoring.

441         Duty to provide health monitoring report to worker

 A person conducting a business or undertaking who commissioned health monitoring for a worker must give a copy of the health monitoring report to the worker as soon as practicable after the person obtains the report.

Maximum penalty – 60 penalty units.

442         Duty to provide health monitoring report to regulator

A person conducting a business or undertaking for which a worker is carrying out work for which health monitoring is required must give a copy of the health monitoring report relating to a worker to the regulator as soon as practicable after obtaining the report if the report contains :-

(a) any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work that triggered the requirement for health monitoring;

(b) any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the work mentioned in section 435.

Maximum penalty – 60 penalty units.

443         Duty to provide health monitoring report to relevant persons conducting business or undertakings

A person conducting a business or undertaking who commissioned health monitoring for a worker must give a copy of the health monitoring report to all other persons conducting businesses or undertakings who have a duty to provide health monitoring for the worker as soon as practicable after obtaining the report.

Maximum penalty – 60 penalty units.

444         Health monitoring records

 (1) A person conducting a business or undertaking must ensure that health monitoring reports in relation to a worker carrying out work for the business or undertaking are kept as a confidential record-

(a) Identified as a record in relation to the worker; and

(b) For at least 40 years after the record is made.

Maximum penalty:-

(a) for an individual-121/ 2 penalty units; or

(b) for a body corporate-60 penalty units.

Note- In relation to the separate penalty for an individual and a body corporate, see the note to section 50(2).

 (2) The person must ensure that the health monitoring report and results of a worker are not disclosed to another person without the worker’s written consent.

Maximum penalty-

(a) For an individual-121/ 2 penalty units; or

(b) For a body corporate-60 penalty units.

 Note- In relation to the separate penalty for an individual and a body corporate, see the note to section 50(2).

 (3) Subsection (2) does not apply if the record is disclosed under section 442 or 443 or to a person who must keep the record confidential under a duty of professional confidentiality.

 Division 2 Training

 445         Duty to train workers about asbestos

(1) In addition to the training required by part 3.2, division 1, a person conducting a business or undertaking must ensure that workers engaged by the person, whom the person reasonably believes may be involved in asbestos removal work or in the carrying out of asbestos-related work, are trained in the identification and safe handling of, and suitable control measures for, asbestos and ACM.

Maximum penalty – 60 penalty units.

(2) This section does not apply to a worker to whom section 460 applies.

(3) The person must ensure that a record is kept of the training undertaken by the worker-

(a) While the worker is carrying out the work; and

(b) For 5 years after the day the worker ceases working for the person.

Maximum penalty-

(a) For an individual-121/2 penalty units; or

(b) For a body corporate – 60 penalty units.

Note – In relation to the separate penalty for an individual and a body corporate, see the note to section 50(2).

(4) The person must keep the record available for inspection under the Act.

Maximum penalty for subsection (4) –

(a) For an individual-121/2 penalty units; or

(b) For a body corporate – 60 penalty units.

Note – In relation to the separate penalty for an individual and a body corporate, see the note to section 50(2).

Division 3            Control on use of particular equipment

 446         Duty to limit use of equipment

 (1) A person conducting a business or undertaking must not use, or direct or allow a worker to use, either of the following on asbestos or ACM: –

(a) High-pressure water spray;

(b) Compressed air.

Maximum penalty – 36 penalty units.

(2) Subsection (l)(a) does not apply to the use of a high pressure water spray for fire fighting or fire protection purposes.

(3) A person conducting a business or undertaking must not use, or direct or allow a worker to use, any of the following equipment on asbestos or ACM unless the use of the equipment is controlled-

(a) Power tools;

(b) Brooms;

(c) Any other implements that cause the release of airborne asbestos into the atmosphere.

Maximum penalty – 36 penalty units.

(4) In subsection (3), the use of equipment is controlled if :-

(a) The equipment is enclosed during its use; or

(b) The equipment is designed to capture or suppress airborne asbestos and is used in accordance with its design; or

(c) The equipment is used in a way that is designed to capture or suppress airborne asbestos safely; or

(d) Any combination of paragraphs (a), (b) and (c) applies.