On 28 October 2021 a building repair and rectification company was sentenced in the Gympie Magistrates Court for breaching section 33 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with their health and safety duty pursuant to section 19(1) of the Act. Magistrate Callaghan imposed a $20,000 on the defendant company and did not record a conviction.
The defendant company was engaged by the Gympie Regional Council (‘Council’) as the principal contractor to assess and coordinate repair works to damaged property, caused by serve hailstorms in October 2018. In the course of those works, the defendant engaged a sub-contractor to remove vinyl floor tiles within the Gympie Library. The vinyl tiles within the library were comprised of chrysotile asbestos containing material (‘ACM’), which was documented by the Council in an asbestos register.
Over three days in late October 2018, the Senior Maintenance Officer of the Council met with the defendant to inspect and assess approximately 50 properties damaged by the storms, including the Gympie Library. During this time, the Maintenance Officer provided the defendant with the asbestos register for the library.
On 14 November 2018, the defendant sub-contracted the work and did not provide the sub-contractor with a copy of the asbestos register, or otherwise notify them that the vinyl floor tiles within the building contained ACM. On 17 December 2018, at approximately 8:30am, two employees of the sub-contracted company attended the library to carry-out the refurbishment works, while the library was operational and open to the public (although the Heritage Room, where the work was being conducted, was not). The workers proceeded to remove part of the flooring in the Heritage Room without any respiratory protection, which included the removal of carpet tiles, vinyl sheeting and vinyl tiles. The broken pieces of tile were poured into the tray of a utility vehicle in the carpark using a bucket.
The Council maintenance team were alerted to the potential disturbance of ACM at the library by concerned library staff and the building was evacuated at approximately 2:30pm. Subsequent analysis confirmed the presence of asbestos in the materials dispersed throughout the library from the refurbishment works.
In sentencing the defendant, Magistrate Callaghan took into account the defendant’s early plea of guilty as an indication of remorse, and a willingness to facilitate the course of justice.
His Honour considered the offending as serious and had regard to the maximum penalty for the offence of $500,000. His Honour also noted section 3(2) of the Act, which provides that regard must be had to the principle that workers and other persons should be given, so far as is reasonably practicable, the highest level of protection against harm to their health, safety, and welfare from hazards and risks arising from work.
Magistrate Callaghan noted that since the offending the defendant had implemented, at great cost, remedial steps to ensure that a breach of this nature does not occur again. His Honour also had regard to the defendant’s lack of prior convictions and considered that specific deterrence was not of considerable relevance.
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Section 19(1) and 33 of the Work Health and Safety Act 2011