Purpose

The Health and Safety at Work (Asbestos) Regulations 2016 (the Regulations) prohibit persons conducting a business or undertaking (PCBUs) from carrying out work involving asbestos. One exception is if the work involving asbestos is genuine research and analysis. This isn’t defined further.

This clarification explains how we interpret genuine research and analysis.

What does the law say?

Regulation 7(1) prohibits work involving asbestos or asbestos-containing material.

Regulation 7(2) lists a small number of exceptions, including genuine research and analysis.

Regulation 8 allows WorkSafe New Zealand to approve methods for managing asbestos-related risks where the work is otherwise prohibited and doesn’t fit any of the exceptions.

How we interpret genuine research and analysis

We interpret genuine research and analysis as systematic investigative, analytical or experimental activity involving asbestos. It must have the real, primary and substantive purpose of generating, testing, evaluating or advancing knowledge.

Indicators that work involving asbestos is genuine research and analysis include:

• a clear research question, objective or hypothesis that can generate, test, evaluate or advance knowledge
• a need to handle or disturb asbestos to meet the research objective
• a structured methodology designed to investigate, test, evaluate or generate knowledge
• defined processes to record, analyse and evaluate the findings
• the research purpose, methodology and findings can be clearly explained and are transferrable
• a set review or completion point when the research question, objective or hypothesis is resolved
• involvement of people with the appropriate scientific, technical or subject-matter expertise for the research question, objective or hypothesis
• the intent to produce knowledge or findings that go beyond solving an immediate operational problem, even if the research doesn’t produce the expected result.

An activity is unlikely to be genuine research and analysis where:

• its main purpose is to solve an operational problem or implement a commercial solution, rather than to advance knowledge through research and analysis
• it mainly involves trialling an operational method to see whether it will work in practice
• research and analysis is secondary or incidental to the activity
• the research purpose, methodology and findings can’t be clearly explained.

The work may involve observations, data collection, testing or learning, but it won’t fit the exception unless it’s genuinely directed toward research and analysis. 

How we determine if work is genuine research and analysis

We assess the activity objectively and on its merits to determine if the work is genuine research and analysis. We consider whether the work has a real, primary and substantive research purpose, or whether the research is secondary or incidental to an operational or commercial purpose.

We consider the indicators above to help us determine this. They aren’t prerequisites, and no single indicator determines the outcome. The PCBU may provide other information to show that genuine research and analysis is the main purpose of the work.

In practice PCBUs should be able to clearly document why their work is genuine research and analysis and fits the exception. Our inspectors visiting a workplace may ask questions about the work in relation to the indicators.

If the work involving asbestos is genuine research and analysis

If the PCBU’s work involving asbestos is genuine research and analysis, they must comply with the duties in the Regulations and do the work safely. More information is available at Asbestos information for businesses, organisations, and building owners

The PCBU doesn’t need to apply for an approved method under Regulation 8. An authorisation by WorkSafe (such as a licence) is not required.

If the work involving asbestos isn’t genuine research and analysis

If the work involving asbestos doesn’t fit the exception for genuine research and analysis or any other exceptions in Regulation 7(2), then the work is prohibited unless there’s another lawful way to carry it out.

In those circumstances, under Regulation 8, on application or on our own initiative, we may approve a method for carrying out the work. This is explained in our policy How we approve methods for working with asbestos

Work may begin as genuine research and analysis and, once the research is completed, may shift to implementing the research findings. At this point the activity is likely to stop being genuine research and analysis. An approved method may then be needed for the work to continue.