A demolition and asbestos removal business was charged with one offence contrary to s 200(1) of the Work Health and Safety Act 2011 (the ‘Act’) for failing to comply with a non-disturbance notice without reasonable excuse. It was also charged with one offence contrry to s 43(1) of the Act, for directing or allowing a worker to remove over 10m2 of asbestos containing material when it did not hold an asbestos removal license, in breach of s 487(2) of the Work Health and Safety Regulation 2011 (the ‘Regulation’). On 9 November 2020, the defendant company pleaded guilty to both offences and was sentenced in the Southport Magistrates Court.
The defendant company conducted a business of demolition and asbestos removal. It had previously held an asbestos removal licence, but a decision was made by the Regulator to refuse to renew that licence in August 2018 based on previous non-compliance issues. In January 2019, the defendant was engaged by a member of the public to demolish a residence in Mermaid Waters with the scope of works including, “Removal of 70 square metres of asbestos eaves”.
A complaint was received by Workplace Health and Safety Queensland in relation to work conducted at that site. On 11 February 2019, an Inspector attended and issued a non-disturbance notice on the basis material had been identified which was suspected to have been Asbestos Containing Material (‘ACM’). The notice was in effect until 6:30am on 16 February 2019 and required that the defendant secure the site and cease work, including demolition works and operation of plant, as well as ensure workers were informed not to enter the site. On 12 February 2020, in contravention of that notice, the defendant’s operations manager attended the site and collected tools and an excavator bucket.
Work resumed at the site after the notice expired. On a date unknown between 16 and 22 February 2020, the defendant directed a worker who held asbestos removal qualifications to remove the eaves. In accordance with that instruction, the worker removed at least 53.5m2 of material from the eaves, which was subsequently determined to be ACM. Neither the defendant nor the worker held a class A or B asbestos removal licence.
Magistrate Dowse acknowledged that working with asbestos was a serious matter, with there being substantial costs associated with its safe removal. Her Honour acknowledged that this removal work would no doubt have been of concern to the neighbours. Regard was had to the fact that the worker engaged to do the asbestos removal work held asbestos removal qualifications, but her Honour observed that the defendant should have, in any event, done something about its lack of licence and engaged a company that held the appropriate licence.
The entry by the defendant’s operations manager onto the site in contravention of the non-disturbance notice was observed to be harmless, with no further work being done at that time. Her Honour observed that a warning should have at least been provided to the Inspector.
Her Honour had regard to the quite severe maximum penalties for this offending and accepted there was a need for general deterrence and specific deterrence, given the business had not been adopting ‘best practice’. In sentencing the defendant, her Honour considered the defendant’s guilty plea and that the defendant had co-operated with the investigation through participating in a voluntary interview. It was acknowledged the defendant was experiencing difficult times financially and had been impacted by COVID-19.
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s 2001(1) Work Health and Safety Act 2011 & s 43(1) Work Health and Safety Act 2011 and reg 487(2) Work Health and Safety Regulation 2011