Victoria

Building owners and managers are required to identify all Asbestos Containing Materials (ACM) within their buildings and include it on an onsite register – What’s your plan to ensure all of your buildings are compliant?

All buildings that were built before 1^st January 2004 must comply. Why this date? It may surprise you to know that while asbestos in the form of Crocidolite was phased out from 1967 asbestos in the form of Amosite & Chrysotile (white) asbestos was used until late 2003.

What are the penalties?

Under the Occupational Health and Safety Act, non-compliance is treated very seriously. An Owners Corporation may face a $1,365,030 fine, and/or damages from civil litigation.

Do residential buildings need to comply?

Yes, the legislation states that “persons with control of premises must ensure all ACM in their workplaces are identified, as far as practicable”. An Owner/Controller (Owners Corporation) of a building also has obligations in relation to a building or part of a building that is a workplace.  Therefore the Owners Corporation must comply with the legislation as contractors, volunteers and self-employed people will often visit the building.  Owners Corporation also have a duty of care under common law to remain responsible for their onsite ACM due to the very real potential threat asbestos poses.

Who are the responsible person(s) under the new legislation?

The definition of a person in control of a workplace like the common area include:-

• The owner of the premises;
• A person, who has, under any contract or lease, an obligation to maintain or repair the premises;
• A person who is occupying the premises;
• A person who is able to make decisions and changes to the structure and use of the workplace.
• An employer at the premises.
• A person with management controls over the workplace, for example, a property management group or agent.

In most cases there will be more than one person with management or control. All share the responsibility and will likely be liable for any fines or prosecutions for non compliance.

How often does common property need to be re-inspected?

We recommend every 12 months if asbestos is left intact onsite in a stable encapsulated state (rather than removing it). The Regulations require at least every 5 years, however there are several reasons why the property should be updated more frequently:

• ACM is often damaged by activities around a building,
• ACM will be continually degrading and must be regularly monitored,
• If the ACM is removed, or disturbed or enclosed within Common Property,
• ACM is particularly dangerous as risks can change rapidly, and,
• If further asbestos or ACM has been identified due to work in non accessible spaces or repairs conduct since the last survey.

 What is the risk from civil litigation?

The risk of only complying with the minimum standard is that a court may not be convinced that you’ve eliminated or minimised the risk of asbestos exposure as far as is reasonably practicable.

The biggest concern for OC’s and Managers is the risk from a civil claim from a person who has contracted a life threatening illness as a result of residing, working in, or visiting a building containing asbestos which has not been properly managed.

For an Owners Corporation to have any chance of defending itself from such a claim it would need to show that it had properly identified, managed and where necessary eliminated any asbestos risks.

Recommended Implementation Plan

Step 1 – Get Surveys Completed.

• Identify a competent survey company, like Solutions in Engineering
• Order surveys for all buildings completed prior to 2004
• It is strongly suggested you preorder the required onsite Asbestos register and management plan in the case where asbestos is found

Step 2 – Implement Survey Recommendations.

• Keep all asbestos documentation onsite
• Ensure contractors are aware of asbestos documentation You can rely on Solutions in Engineering’s competency and experience. We have been supplying you with Asbestos surveys for over a decade.

Asbestos is a serious health risk that must be managed. The existing Occupational Health and Safety Act requires an Asbestos Survey and Asbestos Register to be compliant.

All pre-2004 buildings with common property must comply. Compliance is simple with good quality, properly experienced and trained advisors.

What are your obligations?

Under the provisions of the Owners Corporation Act 2006 an Owners Corporation must take out insurance for all buildings on the common property.

In Part 3, Section 59

• An Owners Corporation must take out reinstatement and replacement insurance for all buildings on the common property in accordance with this Division.

The Act also states that prescribed Owners Corporations must have a valuation completed at least once every 5 years;

Part 3, Section 65

• The valuation must be obtained every 5 years or earlier as determined by the owner’s corporation.

Too many get it wrong…

Many insurance valuation providers use a simple and quick calculations method.  Work out the floor area of the whole building and then multiply it by one rate per square metre.  Simple but not close to accurate.

Here is an accurate valuation calculation approach…

To get the right number a professional will divide the different areas of the building and multiply them all at different rates based on differing levels of finish, area uses and types and quantities of construction materials used.

There are massive differences in construction costs for different areas like open balconies compared to closed fire escapes & common hallways, or cross-flow ventilation car parks compared to enclosed or underground car parks. Buildings with other improvements and assets need to be calculated too; like the type, speed & floors covered by a lift, levels of fire safety barriers and equipment.

Other costs often missed…

All other associated costs need to be calculated accurately such as demolition costs, consultant fees (including architectural and structural engineering) council and other regulatory fees, estimators costs, landscaping and external works.

A comparison with building design

There is a parallel with engineering design, a lazy engineer can simply over allow for tonnes and tonnes of extra concrete and reinforcing steel costing the eventual owners tens or hundreds of thousands of dollars each.

If an Insurance Replacement Valuations is completed by a lazy quantity surveyor or valuer they use massively excessive rates per square metre for all parts of a building regardless of finishes, height above or below the ground or amenity. Lazy over calculations end up costing the building’s owners money and ultimately makes the person who engaged them look bad.

On the other hand when engineering building design is done properly the engineer accurately calculates the wind, weight and design loads so that the structure incorporates the required building strength with a safe margin above it. A quality Insurance Replacement Valuation is approached in exactly the same manner.

An Insurance Valuation, completed by a Solutions in Engineering Pty Ltd APIV valuer, is limited in its liability by a scheme approved under the Professional Standards Legislation.

What are the compliance obligations and the duty of care?

There are two principal considerations:

• Under common law; an Owners Corporation has a duty of care and must take reasonable action to ensure that anyone, including owners, service providers, tenants, visitors and even trespassers who come onto the common property, are not injured.
• Under the Occupational Health and Safety Act (OHS) 2004 (VIC), an Owners Corporation must consider their duties in regards to the health and safety of any workers engaged on their common property. This requirement is also supported by the Occupational Health and Safety Regulations 2017.

Safety is more than just Workplace Health and Safety

While many people use the threat of $3 million fines and 5 year jail terms under the Occupational Health and Safety Act (OHS) to promote the need for safety, the reality is that there are far more compelling risks driving the building’s need for safety obligations: they are the duty of care and the applicable compliance codes, legislation and Australian Standards that apply to buildings.

Duty of care risks?

While compliance means you are taking steps to ensure your property is safe and protecting yourself from the liability of accidents and injury occurring, the reality is that your biggest risk in not a compliance risk- it is trumped by your duty of care risk

What is duty of care?

Under common law, an Owner’s Corporation has a duty of care and must take reasonable heed to ensure that anyone, including owner’s, tenants, visitors and even trespassers who come onto the premises are not injured (if you would like to understand the legal requirement for this, please refer to Hackshaw v Shaw [1984] 155 CLR 614).

What are some potential duty of care risks?

Here are just a few examples of common duty of care risks:

• Cracked, broken or unrepaired surfaces;
• Leaky roofs causing water pooling & potential slipping hazards;
• Uneven surfaces;
• Unexpected elevation changes;
• Slippery surfaces, (e.g. wet or tiled floors);
• Missing or loose handrails on stairs;
• Steps, staircases, handrails that do not comply with relevant building codes;
• Debris or obstruction on walking paths.

What do you need to do to meet your obligations?

Engage a suitably qualified and experienced company to conduct the following steps based on the relevant Australian Standards:

1. Inspect the common property and provide a report that clearly identifies any breaches of compliance;
2. Assess the risks that may result from those hazards;
3. Decide on the control measures to prevent, or minimise the level of risks present and future;
4. Monitor and review the effectiveness of these measures annually.

What are the regulations and legislation that I need to comply with and what are the potential penalties if I do not comply with these regulations?

All pre-2004 buildings with common property must comply. Compliance is simple with good quality, properly experienced and trained advisors.

Below is a list of the potential fines and penalties for buildings in Victoria that do not comply:

Australian Standard	Associated fine
AS 1851:2005 Maintenance of fire protection systems and equipment	$2 000
AS 1596:2008 The storage and handling of LP Gas	$2 000
AS 1926.1:2007 Swimming Pool Safety	$2 000
AS 3745:2010 Planning for emergencies in facilities	$200 000
AS/NZS 3000:2007 Electrical installations	$4 000
FINES FOR NON COMPLIANCE (AS)	$210 000
Victoria Legislation	Associated fine
Occupational Health and Safety Act 2004 Safe Environment Resolution of Health and Safety Issues	$1 267 560 $1 267 560 $42 252
Occupational Health and Safety Regulations 2007	$70 420
Electricity Safety (Installations) Regulations 2009	$2 816.80
Electricity Safety (Management) Regulations 2009	$2 816.80
Building Act 1993	$70 420
Building Regulations 2006 Swimming Pool Safety Smoke Alarms Maintenance of Exits Reporting Requirements	$7 042 $7 042 $1 408.40 $1 408.40 $1 408.40
Owners Corporations Act 2006	$8 450.40
Subdivision Act 1988	$2 816.80
FINES FOR NON COMPLIANCE (VIC)	$1 432 342.80

On 1 November 2010, a revised edition, AS 3745-2010 (Planning for Emergencies in Facilities) was released by Standards Australia.  This edition introduced new, stricter emergency planning obligations for employers and owners of buildings.

AS 3745-2010 (Planning for Emergencies in Facilities) introduced, for the first time, a minimum requirement to ‘provide for the safety of occupants’ by preparing an Emergency Management Plan (EMP) (Section 1.1).  The previous edition, AS 3745-2002, established ‘requirements for the development of procedures’.

This represents a substantial change in owners’ obligations. In the past, building owners and employers were obliged to follow AS 3745 only once they had elected to establish emergency procedures.  The new Standard, however, establishes a minimum requirement to ensure the safety of occupants leading up to, and during an evacuation.  There is now a positive obligation to adopt the Standard.

AS 3745-2010 represents a significant overhaul of how emergency planning is to be conducted.

What are the minimum requirements?

Standards Australia has introduced minimum requirements in regards to planning for emergencies in facilities.  In order to meet the requirements the following must be put into place:

• An Emergency Management Plan (EMP) – an evacuation plan for a building’s occupants. Your plan must include contingences in the event of:
  • Fire
  • Bomb Scare
  • Civil Unrest
  • Natural Disaster – e.g., Earthquakes
  • Perimeter Breach
  • Illegal occupancy
• Evacuation Diagrams – diagrams situated around the building showing the way out and a nominated meeting point

How does the new standard include a Strata Scheme in its requirements?

The Standard clarifies the interaction of responsibilities between owners and tenants.  Essentially, AS 3745-2010 has made it clear that both owners and tenants have obligations in relation to fire safety and emergency planning.  Therefore, no one can blame the other for non-compliance.

As the owner and controller of the common property areas, which occupants must exit through in the event of an emergency, a Strata Scheme has an obligation to create an EMP and to put up Evacuation Diagrams in the common property areas.

Which buildings does AS 3745-2010 apply to?

The new standard applies to all buildings*

*All class 1b through to class 9 buildings are referred to as ‘facilities’ in AS 3745-2010.

Which buildings do not have to comply?

Class 1a, 10a&b e.g., Townhouses, Row house, Villa and Standalone houses, and non-habitable structures do not need to comply, except when a standalone house is used as a workplace e.g., if a person works from home.

What ‘duty of care’ do owners owe to visitors of the premise?

The occupier of a premise owes a duty of care towards visitors, whether invited or uninvited, during the duration of their visit.  This duty is based on the law of negligence, which states the occupier ‘must take reasonable care and owe a common law duty of care to ensure that anyone who comes onto those premises is not injured’ (Hackshaw v Shaw).  This duty has been partially codified under the Wrongs Act 1958.

A more stringent Standard

AS 3745 represents the accepted minimum requirements for emergency planning at facilities, and as the accepted minimum requirements become more stringent, amendments and new editions are released. As such, buildings that would not have been required to engage in emergency planning previously will now be required to do so.

When must a Strata Scheme act to meet their obligations?

AS 3745-2010 has been in place since 1^st November 2010 and all Class 1b – 9 buildings must now meet the new minimum requirement for an Emergency Management Plan and Evacuation Diagrams must be installed in the appropriate place.

The maintenance of essential safety measures is critical to ensuring that your building has operational safety systems in the case of a fire. 

The 13^th June 2009 saw the commencement of important requirements relating to essential safety measures.  Under Part 12, Division 1 of the Building Regulations 2006, an Owners Corporation must:

Regulation 1208

1.  An owner of a building or place of public entertainment, in respect of which a condition on an occupancy permit lists an essential safety measure or a maintenance determination has been made, must ensure that an annual essential safety measures report are prepared in accordance with Regulations 1209 before each anniversary of the relevant anniversary date.

If you are an owner, or a business or person, that is occupying or managing a building in Victoria you have a legal obligation to ensure the safety of any person in that building in the event of a fire or other emergency.

What buildings have requirements to comply?

 Part 12, Division 1 of the Regulation divides the requirements into three subdivisions which apply to:

 (a)  a Class 1b, 2, 3, 5, 6, 7, 8 or 9 building¹; and

 (b)  a Class 4 part of a building; and

 (c)  a place of public entertainment.

What are the requirements for buildings constructed before 1 July 2014?

1. Maintain any Essential Safety Measure required to be provided for that building, in a state which enables it to fulfil its purpose;
2. Produce an Annual Essential Safety Measures Report every 12 months.

What are the requirements for buildings constructed after 1 July 1994?

As well as the above, buildings constructed after 1 July 1994, also have the following requirements:

Maintain any Essential Safety Measures listed on the Occupancy Permit or on an Emergency Order, in accordance with the Occupancy Permit or the

1.  Maintenance Determination for that building; AND
2. Produce an Annual Essential Safety Measures Report every year, before the anniversary of the date the Occupancy Permit or Maintenance Determination was made.

In order to meet these requirements an Essential Safety Measures Report will:

• List all essential safety measures and list the actions necessary to rectify maintenance defects
• Ensure all exits, paths of travel to exits, and paths of travel from the exits to the road are compliant and list any defects and actions required to meet compliance.
• Do a risk assessment as to the need for an Emergency Management Plan*
• Keep defined exits and paths of travel to exits clear and safe
• Complete an annual essential safety measures report

Remember, if building work is carried out your requirements may change.  If you are unsure we recommend contacting a building surveyor.

Requirements to keep documentation and records

The regulation also includes additional requirements to maintain and store documentation and maintenance records to prove all of the requirements have been met. Records that must be kept include:

• Maintenance checks, safety measure and repair work
• Copies of the annual essential safety measures report

These documents must be made available to the municipal building surveyor or the chief officer within 24 hours of notification.

What are the fines for non-compliance?

Under the Building Regulation 2006, the general penalty for non-compliance is a fine of $1,408. However, under the Building Act 1993 for instances of non-compliance, the below fines can apply:

• Up to $14,084 for individuals
• Up to $70,420 for companies

What is the Solution?

Solutions in Fire can help take the monkey off your back with our Essential Safety Measures assessment. All of our Fire Safety Inspectors are trained and qualified in accordance with the regulation.

What’s included?

1. Essential Safety Measures Assessment
   • Identifies whether the essential safety measures have been maintained appropriately
   • That all defined evacuation routes are safe and clear of hazards and obstructions

Solutions in Fire also provides additional services that can help meet your fire requirements, such as:

1. Preparing your fire and evacuation diagrams and emergency management plans
2. Document compliance boxes, including installation²
3. Additional Training Options:
   • Onsite First Response Training
   • Onsite Warden Training

Requirements under AS 3745 – 2010

Under the Australian Standard 3745 – 2010 Planning for emergencies and facilities buildings are required to have and implement an emergency management plan which provides instruction and processes for the occupants to be able to evacuate the building, not only in the case of fire or hazardous material emergency but also in the following:

• Civil Unrest
• Bomb Threat
• Attempted hold ups
• Hostile situations