Question: Is the strata manager required to include an asbestos register motion at the first AGM, or can they only include motions requested by owners?
When a strata manager first takes over management of a scheme, are they required to include a motion at the first AGM about obtaining information for an asbestos register? I understood that a strata manager cannot include a motion on an AGM agenda unless an owner requests it.
Answer: It is very unlikely that a newly (or recently) built residential strata building would require an asbestos register, and that a motion about an asbestos register should be considered at its first AGM.
I am unaware of the building or the situation. I am thus unable to comment on whether an asbestos register is required in the inquirer’s situation. In practical terms, performing an asbestos inspection or audit may assist an owners corporation in managing any asbestos risk in the building. I can comment generally as follows.
Asbestos registers are required in the context of work, health and safety legislation, which involves employees. This obligation is not imposed only on an employer but extends to any person with management or control of a workplace: c.f section 425 of the Work Health and Safety Regulation 2025 (NSW) (WHSR).
Since 01 January 1988, asbestos has been banned for use in building products in New South Wales, and nationally, asbestos has been banned since 31 December 2003.
Section 425(6), WHSR expressly excludes the requirement for having an asbestos register where:
- the workplace is a building that was constructed after 31 December 2003, and
- no asbestos has been identified at the workplace, and
- no asbestos is likely to be present at the workplace from time to time.
Assuming the building is a workplace for the purposes of the Work Health and Safety Act 2011 (NSW), it is still very unlikely that a newly (or recently) built residential strata building would require an asbestos register, and that a motion about an asbestos register should be considered at its first AGM.
If the workplace already has an asbestos register, there is no requirement to prepare another one: section 425(4), WHSR. Also, pursuant to section 421(2) of the WHSR, the need to maintain an asbestos register does not apply to any part of residential premises that is used only for residential purposes.
Any obligation to prepare an asbestos register, if it’s engaged, would be imposed firstly on the owners corporation, whilst the strata manager may have concurrent obligations if they have been delegated powers of the owners corporation: c.f. section 52 of the Strata Schemes Management Act 2015 (NSW) (SSMA).
In respect of motions to be included in the agenda for an AGM, that is, firstly, the responsibility of the strata committee, particularly the secretary: c.f. section 43, Strata Schemes Management Act 2015 (SSMA), though those powers could be delegated to the strata managing agent – but is important to remember that it is the strata managing agent performing this function on behalf of the strata committee: c.f. section 54, SSMA. Those owners or persons entitled to vote at a general meeting can request a motion be included in the agenda of the next general meeting (so not just an AGM), pursuant to schedule 1, section 4, SSMA.
This post appears in Strata News #786.
Matthew Lo
Kerin Benson Lawyers
E: enquiries@kerinbensonlawyers.com.au
P: 02 8706 7060
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