Where the obligations come from
If you manage or control a workplace in New Zealand, your asbestos obligations come from two pieces of legislation working together. The Health and Safety at Work Act 2015 (HSWA) sets out your general duty of care. The Health and Safety at Work (Asbestos) Regulations 2016 spell out exactly what you need to do when asbestos is involved.
The term you'll see throughout is PCBU, short for "person conducting a business or undertaking." It covers companies, sole traders, government departments, and not-for-profits. If you're running a business or managing a building where people work, you're almost certainly a PCBU.
The primary duty of care
Under section 36 of HSWA, every PCBU has a primary duty to ensure, so far as is reasonably practicable, that the health and safety of workers and other people is not put at risk by the work carried out. For asbestos, this means you can't ignore the possibility that your building contains asbestos materials, and you can't allow work to proceed in a way that exposes people to asbestos fibres.
"So far as is reasonably practicable" is the key phrase. It doesn't mean eliminating every conceivable risk regardless of cost. It means doing what a reasonable person in your position would do, considering the likelihood and severity of harm and the availability and cost of controls.
Duty to identify asbestos
Regulation 10 requires the PCBU to ensure that all asbestos or ACMs at the workplace are identified, so far as is reasonably practicable. If your building was constructed before 2000, you're expected to take proactive steps to find out what's there.
This typically means engaging a qualified asbestos surveyor. Our step-by-step survey walkthrough explains what that process looks like in practice. If you're uncertain whether a material contains asbestos, you can either assume it does (and manage it accordingly) or have samples analysed by an IANZ-accredited laboratory.
Duty to manage
Once asbestos has been identified (or assumed), several management duties kick in:
- Prepare an asbestos register recording the location, type, and condition of all identified ACMs (regulation 10)
- Clearly indicate the presence and location of asbestos at the workplace through labelling or signage (regulation 12)
- Prepare a written asbestos management plan (regulation 13)
- Ensure that exposure to airborne asbestos is eliminated, or if that's not reasonably practicable, minimised so far as is reasonably practicable
- Provide information about health risks associated with asbestos exposure to workers and other people at the workplace
These aren't optional extras. They're specific regulatory requirements with real consequences if they're not met.
Duty when work may disturb asbestos
Before any demolition, refurbishment, or maintenance work that could disturb asbestos, you must ensure that asbestos in the affected area has been identified. This usually means commissioning a refurbishment and demolition survey for the specific areas where work will take place.
If asbestos is found, the removal must be done safely and, depending on the type and quantity, by a licensed removalist. Friable asbestos removal always requires a Class A licence holder. Non-friable removal over 10 square metres requires at least a Class B licence holder.
Worker rights and obligations
Workers have rights under HSWA too. They must be informed about health and safety matters that affect them, including asbestos in their workplace. They can raise concerns and refuse to carry out work they believe would expose them to a serious risk.
Workers also have obligations. They must take reasonable care for their own health and safety, follow reasonable instructions from the PCBU, and cooperate with health and safety procedures. Health and safety representatives can request a review of the asbestos management plan if they reasonably believe circumstances have changed (regulation 14).
Officers' duties
If you're a director, partner, or other officer of a PCBU, section 44 of HSWA imposes a personal duty on you to exercise due diligence. That means staying informed about asbestos risks in your buildings, allocating resources to manage those risks, and verifying that your organisation's processes actually work.
What happens if you don't comply
Non-compliance can result in enforcement action by WorkSafe, including improvement notices, prohibition notices, and prosecution. The penalties under HSWA are significant:
- Failing to comply with a duty that exposes a person to a risk of death or serious injury: fines up to $1.5 million for a PCBU that is a body corporate, or $300,000 for a PCBU who is an individual
- Reckless conduct in respect of a duty: fines up to $3 million for a body corporate, or $600,000 and up to five years' imprisonment for an individual
WorkSafe can also issue prohibition notices that shut down your workplace or parts of it until asbestos is properly managed.
Practical steps
For most facility managers, meeting these obligations means getting your building surveyed, setting up a register and management plan, making sure contractors and maintenance staff know about it, reviewing the plan when things change, and engaging licensed professionals for removal work. It doesn't need to be complicated, but it does need to be done.
Sources
- Health and Safety at Work Act 2015, s 36 (Primary duty of care)
- Health and Safety at Work Act 2015, s 44 (Duty of officers)
- Health and Safety at Work Act 2015, s 47 (Duties of workers)
- Health and Safety at Work (Asbestos) Regulations 2016, reg 10 (Duty to ensure asbestos identified at workplace)
- Health and Safety at Work (Asbestos) Regulations 2016, reg 12 (Duty to ensure presence and location of asbestos indicated)
- Health and Safety at Work (Asbestos) Regulations 2016, reg 13 (Duty to prepare asbestos management plan)
- Health and Safety at Work (Asbestos) Regulations 2016, reg 14 (Duty to review asbestos management plan)