Ask anyone and most people would understand that asbestos was banned because it can cause serious health issues, including cancer. Ask the same people what asbestos actually is, and you can imagine a few puzzled faces.
Asbestos in its natural state is a thin fibrous silicate mineral crystal. It was used in our modern infrastructure because it was cheap, easily found and it was an exceptional insulator. It was also able to absorb sound, had average tensile strength, and was resistant to fire, heat, electrical and chemical damage.
By the 1950’s asbestos was very much in fashion and used in fire retardant coatings, concrete, bricks, pipes, fireplace cement, acid resistant gaskets, pipe insulation, ceiling insulations, fireproof drywalls, flooring and roofing. In New Zealand, the sad fact is that it was still being widely used in building products and materials up until the 1990’s.
According to WorkSafe New Zealand, asbestos is New Zealand’s single biggest cause of work-related fatalities, responsible for the deaths of about 170 people each year. Once the airborne asbestos fibres are breathed in, they lodge in the lungs and may cause diseases like asbestosis, lung cancer and mesothelioma.
The importation of Absestos related products into New Zealand is now banned. The Health and Safety risks are managed by the Health and Safety at Work Act 2015 and the Health and Safety at Work (Asbestos) Regulations 2016. The new code of practice for the Management and Removal of Asbestos only came into effect on 3 November 2016.
With Asbestos, sadly, being the number one killer in employment, the new code offers guidance to assist duty holders to provide healthy and safe work for everyone who works in the Asbestos industry through compliance with requirements of the Act and the Regulations. The aim is to reduce asbestos related diseases by 50% by 2040.
Generally, working with asbestos is prohibited in New Zealand, subject to certain specified asbestos related work and asbestos removal work. The regulations make a distinction between asbestos related work and asbestos removal work. It is very important to make sure that any removalist carries the appropriate qualifications and can comply with the regulations.
The new acronym you need to know about is a PCBU. Under the Act this means a person conducting a business or undertaking. It is a broad concept to encompass all types of modern working arrangements.
The extent of the duty to manage asbestos-related health and safety risks depends on each PCBU’s ability to influence and control the workplace. The threshold for duty of care by the PCBUs is “so far as is reasonably practicable.” This entails an officer of the PCBU exercising due diligence, including taking reasonable steps to ensure that the PCBU has, and implements, processes for complying with any duty or obligation under the Act.
The duty is to eliminate exposure to asbestos so far as is reasonably practicable, or if not reasonably practicable, then to control (to minimise) exposure so far as is reasonably practicable. In addition, PCBUs must also make sure that the airborne contamination standard for asbestos is not exceeded at the workplace. This is different to the workplace exposure standard.
Where the duty of care falls on more than 1 PCBU, then all the PCBUs must consult, co-operate and co-ordinate with each other, so far as is reasonably practicable, to ensure that they meet their legal duties and control risks from asbestos properly.
PCBUs with management or control of a workplace are under a duty to manage the risks of asbestos in the workplace. Careful management is required and where there is any risk of asbestos being present in the workplace, expert advice from a properly regulated and qualified removalist is essential.
You should also make sure that your health and safety systems adequately provide for any risk to workers from asbestos.
Rachel Scott, Senior Associate in the Court & Disputes/Employment team at Norris Ward McKinnon. Rachel has a keen interest and experience in regulatory investigations and prosecutions, including Worksafe processes and prosecutions.
Edwin Sheppard, an employment law specialist in the Court & Dispute/Employment team at Norris Ward McKinnon, also advises on Health and Safety aspects in relation to employment law including employment agreements and manuals.
