Prohibited asbestos could now cost your organisation $500,000

Safe Work Australia’s amended Model Work Health and Safety Bill and Code of Practice, How to manage and control asbestos in the workplace will give WHS regulators greater power in relation to dealing with asbestos in workplaces.

The December 2019 amendments follow a recommendation made by the Federal Senate Economics References Committee in its November 2017 interim report on the threat of asbestos-containing material imports. The recommendation made was “to strengthen WHS legislation on this issue by specifically providing that where illegally imported asbestos is discovered, it be removed and disposed of, providing it is safe to do so”. It also follows the ongoing identification of prohibited asbestos in Australian workplaces by WHS regulators, despite a total ban on asbestos (making it illegal to make, use or import asbestos) being implemented in Australia in 2003.  

What is “prohibited asbestos”?

Prohibited asbestos has been defined in the amended Bill as “asbestos or asbestos containing material fixed or installed in a workplace on or after 31 December 2003”.

Asbestos containing material means “any material or thing that, as part of its design, contains asbestos”.

What do the amendments mean?

The prohibited asbestos amendments make it mandatory for a WHS regulator to issue a prohibited asbestos notice if they reasonably believe prohibited asbestos is present in a workplace.

Is removing and disposing of prohibited asbestos mandatory?

While the issuing of prohibited asbestos notices in prescribed circumstances has become mandatory, the amendments provide the WHS regulator with flexibility to determine the measures a person must take under a prohibited asbestos notice to deal with the prohibited asbestos. WHS regulators will also have flexibility to determine who receives the notice. In some circumstances, a WHS regulator may also issue multiple notices in relation to the same workplace.

What happens if our organisation doesn’t comply?

As with existing provisions on prohibition notices, WHS regulators will also have the power to take any remedial action they believe reasonable to make the workplace or situation safe if the person who receives the prohibited asbestos notice fails to take reasonable steps to comply with it or the notice can't be issued because the person in control of the workplace or another relevant person can't be found. The WHS regulator can then recover the costs of the remedial action from the relevant person.

Failure to comply with directions detailed in a prohibited asbestos notice could also result in penalties of up to $100,000 for an individual and $500,000 for a body corporate.

What should your organisation do now?

At this stage the amended Model Work Health and Safety Bill and Code of Practice have not been passed through Parliament and as such, has not yet become law. We will continue to monitor this and provide you with updates as the amendments are passed in each state and territory. 

For more information about the changes, see the Explanatory Memorandum on the Model Work Health and Safety Legislation Amendment (Asbestos) 2019 (Prohibited Asbestos Amendments) and the latest versions of the Model Work Health and Safety Bill and Code of Practice, How to manage and control asbestos in the workplace.