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Working with asbestos

From 31 March 2022, Western Australia has adopted a suite of new Work, Health and Safety Regulations which made changes to a range of requirements including working with and reporting on asbestos.

Set out below is a general overview of the new requirements for working with asbestos under the Work, Health and Safety (General) Regulations 2022 (WHS Regulations).

What do I need to consider first?

Most of the asbestos-related prescriptions are contained within Chapter 8 of the new Regulations, however there are some transitional arrangements.

An ‘unrestricted removal license’ under the old laws is now defined as a ‘Class A’ license and a ‘restricted removal license’ is now defined as a ‘Class B’ license.

What about the current Code of Practice?

It’s important to remember that in WA, the new WHS Regulations will take precedent over the existing National Code of Practice for the Safe Removal of Asbestos (2nd Edition – NOHSC:2002(2005)) (NCOP).  Note however that this code has been identified as containing some provisions that do not align with the new WHS Regulations in WA, for example:

1. Inspections

Irrespective of build date, a person with management or control of a workplace must ensure, so far as is reasonably practicable, that all asbestos or asbestos containing material (ACM) is identified by a competent person unless it is assumed that asbestos is present.

If part of the workplace is inaccessible to workers and likely to contain asbestos or ACM it must be assumed that asbestos is present in that part of the workplace.

Any area that has been subject to asbestos removal (Class A (friable) or Class B (non-friable)) is required to undergo a clearance inspection by a competent person as defined – in addition to ensuring that the asbestos register is updated.

2. Air monitoring

Part 9.8 of the NCOP notes that air monitoring should be performed whenever ACM (asbestos-containing material) is being removed.

However, WA’s new WHS Regulations (at Part 8.8, r475) notes that air monitoring is only required (by an independent competent person) for a Class A (friable asbestos) removal - and there is no prescription for Class B (non-friable asbestos) removals.

Are registers still required?

Registers and Inspections continue to be required however the WHS Regulations require that an asbestos register is required for all buildings whenever constructed, except for buildings constructed after 31 December 2003 if no asbestos or ACM has been identified and none is likely to be present from time to time.

For buildings constructed prior to 31 December 2003 a register must be prepared and kept at the workplace irrespective of whether or not asbestos, or ACM, is identified.

If a competent person has determined that the building does not contain asbestos or ACM, or that asbestos or ACM is not likely to be present from time to time at the workplace the register must state this.

Are there any changes to Asbestos Management Plan requirements?

The new WHS regulations prescribe additional matters that must be included (r429 and r430), such as procedures for incidents and emergencies, and the workers carrying out work involving asbestos.

There are also additional requirements to review the plan at least every 5 years or when asbestos is removed from, or disturbed, sealed or enclosed, or if a health and safety representative requests a review.

What about any transitional periods?

The WHS Regulations, includes two transitional periods defined at Part 11 – a longer (twenty-four (24) months) and a shorter (twelve (12) months) transitional period.

An asbestos register kept for the purposes of Occupational Safety and Health Regulations (under reg 5.43) prior to 31 March 2022 is taken to be an asbestos register under the WHS Regulations until the earlier of 31 March 2023 or when a control measure is required to be reviewed under regulation 426 or 448.

It’s also important to note that under the WHS Regulations the current and valid restricted or unrestricted asbestos removal licensing will now either:

  • be a Class A or Class B until it expires, or
  • expire twelve (12) months after the day on which it would have otherwise expired.

All other regulations and considerations for asbestos, or ACMs, come into effect from the commencement date.

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