Domestic Dwellings and Asbestos Registers

Our business recently responded to a situation and a block of units where a handyman inadvertently disturbed asbestos whilst performing works on one of the units.

The units were rented individually but owned by a single owner and managed by an external real estate company.

The owner found themselves in the invidious position of having to firstly assess the proliferation of the release of the asbestos fibres and then remediate the location. Naturally apart from the costs involved in created great angst for the residents within the complex as certain areas required cordoning off with barrier tape.

The handyman was unaware of asbestos being at the location he was working, and the owner was unaware they had breached any legislation by not advising the handyman prior to attending the unit block. So, what is the legislation in Queensland and how does it affect owners of leased residential real estate and those that manage them.

S. 422 of the Work Health and Safety Regulation 2011 provides that 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. S. 423 provides that such identification may consist of a laboratory analysis however a competent person viewing the workplace and determining areas likely to be asbestos would also suffice.

S. 425 of the Work Health and Safety Regulation 2011 provides that a person with management or control of a workplace must ensure an asbestos register is prepared and kept at the workplace. The asbestos register must be maintained, to ensure the information in the register is up-to-date. Under the following circumstances an asbestos register is not required:

  • the workplace is a building that was constructed after 31 December 1989
  • no asbestos has been identified at the workplace
  • no asbestos is likely to be present at the workplace from time to time.

The Code of Practice – How to manage and control asbestos in the workplace 2011 clearly articulates that such legislation does not apply to domestic premises. Where complications arise with this definition though are when a property is leased and or managed under a body corporate arrangement. S. 185 of the Residential Tenancies and Rooming Accommodation Act 2008 provides for Lessors general obligations and they include the following subclauses:

(b) the premises are fit for the tenant to live in; and

(c) the premises and inclusions are in good repair; and

(d) the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises

If asbestos is exposed and or could potentially be exposed through normal living arrangements then a strong argument would exist that the premises are not fit for the tenant/s to live in and critically the lessor may be in breach of relevant work health and safety legislation (more on this below).

Remedies for breaches of the RTA, whilst usually mediated without the need for court action, can also be heard in the Queensland Civil Administrative Tribunal; however a savvy tenant may also seek legal recourse for being exposed to any such asbestos within the dwelling.

The Work Health and Safety act 2011 provides for duties of persons including for those persons with management or control of a workplace. Examples of such duties include ensuring, so far as is reasonably practicable, that anything arising from the workplace are without risks to the health and safety of any person.

How does this effect the landlord or body corporate you ask; well the issue will arise if a worker is sent to the dwelling, as often occurs, to conduct repairs or maintenance to the premises. If the scenario we have provided above then evolves than a strong argument exists that such dwelling will now be a workplace for such maintenance person etc. If the landlord, real estate agent or body corporate (persons with management or control of a workplace) have not provided a ‘heads up’ about asbestos being present, similar to that of an asbestos register, that an argument exists that a breach of the WHS act may have occurred. Also, as defined within the Residential Tenancies and Rooming Accommodation Act 2008 the lessor must not be in breach of a law dealing with issues about the health or safety of persons using or entering the premises.

The Queensland government has provided guidance on this issue, aside from the information we have provided. Such information can be found at the following sites:

https://www.asbestos.qld.gov.au/practical-guidance/residential-tenants-lessors-and-landlords

https://www.asbestos.qld.gov.au/practical-guidance/body-corporate-and-apartment-owner-occupiers

At Peninsula Asbestos we can provide asbestos registers and plans for commercial premises, as required by the WHS regulations, and we can also provide a register and plan for domestic premises specifically those managed by landlords, real estate agents and body corporates.