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Hi !FirstName,
The new Work Health & Safety Laws that commenced in January 2012 saw the introduction of a new code of practice (Code) for the management and control of asbestos in the workplace.
Under this Code a Person Conducting a Business or Undertaking (PCBU) with management or control of a workplace must ensure, to the extent required by the Work Health & Safety Regulations, that an Asbestos Register and Asbestos Management Plan are prepared, maintained, reviewed and kept at the workplace (see the Code for further information).
Considerations for Commercial Agents
Because the definition of 'person with management or control' is quite broad there is no definitive ruling on whose responsibility it is (Agent's or Client's) to comply with the Code and may vary on a case by case basis.
As such it would be prudent for Agents to confirm that such documentation, where the Property is required by the Act to have it, has been obtained from the Client prior to the Appointment being entered into. Agreeing to sell or manage a Property where such documentation is required but has not been obtained could put the Agent at risk of significant fines under the Act, particularly where it is found that the Agent is considered the 'person with management or control'.
There have already been instances where a Managing Agent has been considered the person with management or control of the Property and the Client has relied on the Agent to ensure the Property complies with the Code, where applicable to the Property. In respect to the Asbestos Register, it is thought that the Managing Agent would hold the master copy and the Lessee would be given a copy of the Asbestos Register.
Changes to Commercial PAMD 21a Appointment of Agent Forms
To reflect the above requirements we have made further changes to the Asbestos Item and related clauses in our Commercial PAMD 21a Appointment of Agent forms for leasing, managing and selling commercial properties.
The changes include:
- A detailed Item in the Item Schedule requesting information from the Client in respect to Asbestos compliance under the Code and WHS Regulation. This information can be used to determine what further requirements, if any, need to be complied with for the Property.
- An obligation on the Client to provide copies of the relevant documentation prior to entering into the Appointment where the Client is required to comply with the Code.
- New Work Health & Safety Clauses giving the Agent authority to take appropriate steps, at the Client's expense, to ensure compliance where the Property is required to comply with the Code and the Client has not complied or the Client has complied but failed to provide the Agent with copies of such relevant documentation.
We feel these changes bring awareness to the parties of the Code's requirements and provide the Agent with a means for taking steps to ensure compliance where necessary.
Other Amendments Made to These Forms:
PAMD 21a - Lease & Property Management
- Added a Client's Public Liability Insurance Item
- Created a clause heading for Material Facts and moved relevant existing clauses under this heading.
PAMD 21a - Commercial & Industrial Sales
- Amended the Conjunction Agent Item to allow for Jointly Exclusive arrangements
- Created a clause heading for Client's Warranties & Client's Obligations to be consistent with the Lease & Property Management PAMD 21a form.
- Created a clause heading for Material Facts and moved relevant existing clauses under this heading.
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