On 10 August 2023, a company engaged in the business of supplying electrical services was sentenced in the Holland Park Magistrates Court for a Category 3 offence pursuant to section 33 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty pursuant to section 19(1) of the Act.
The defendant was subcontracted by the principal contractor of the project to supply and install air-conditioning units at a Brisbane school, and further subcontracted the mechanical installation work to another company. Prior to the work commencing, the defendant was informed of the presence of asbestos in numerous rooms of the school and was provided with a copy of the asbestos register, which detailed the location of asbestos or suspected asbestos material in each room.
The defendant prepared a Safe Work Method Statement, which was signed by workers and detailed how work involving asbestos was to be conducted and set out some requirements for control measures to be implemented to manage the risk of asbestos. The need for control measures like personal protective equipment (“PPE”) was discussed at weekly toolbox talks with workers, held throughout the course of the works. However, the workers tasked with performing this work did not receive a copy of the asbestos register and were not provided with training in relation to the identification, safe handling, and control measures in relation to asbestos, prior to work commencing. Workers were required to undergo asbestos awareness training, but they did not complete this course until after work was underway. The Project Manager, engaged by the defendant to oversee the project, was also not trained in the identification of asbestos.
Installation work commenced in various rooms at the school on 12 October 2020, ceasing on 25 November 2020. Some of the rooms, including those that contained asbestos, required holes to be cut into the ceilings in order for the air-conditioning units to be installed. Workers engaged by the defendant cut the holes using a hole saw attachment on a power drill, resulting in the disturbance of asbestos material and the creation of asbestos contaminated dust. Workers did not wear disposable coveralls, and initially used paper disposable masks while performing this work. Respirators were eventually provided to some workers. After 21 October, a Class H asbestos vacuum was provided, which workers used to capture dust when cutting the holes, however this was not made available prior to that date.
The drilling and cutting of asbestos ceilings at the school posed a risk to the health and safety of workers and the defendant failed to implement reasonably practicable control measures to manage the risk. The defendant should have requested that a specialist contractor be engaged to remove the asbestos sheets that were to be drilled, and refused to perform such work until that occurred. Alternatively, the defendant should have ensured that appropriate control measures were implemented to manage the risks associated with asbestos, such as PPE, a decontamination process and isolation of the work area, and ensured that workers were adequately trained and instructed in relation to the implementation of those measures.
In sentencing the defendant, Acting Magistrate Ganasan did not accept the submission by defence that the risk in this case was at the lowest level of risk. Her Honour noted that a message must be sent to the community that they should not breach their health and safety duties. Her Honour considered that the defendant company was a small business in the early stages of development at the time of offending, as well as the personal circumstances of the sole director, which meant he was not as involved with the business as he should have been. Her Honour also had regard to the involvement of the principal contractor, who had advised an asbestos contractor would be engaged to identify and remove the asbestos. It was observed that the defendant relied quite heavily on the principal contractor. Reference was made to the objects of the Act and the requirement that duty holders take proactive steps to comply with their obligations.
Her Honour accepted that the defendant’s offending was an aberration, and it was not a case where the defendant did not take any steps to discharge their health and safety obligations, as they had implemented some control measures and training. Her Honour observed that the work could have been stopped by any one of the persons involved at an earlier time. Regard was also had to the unsuccessful attempts by the defendant to obtain approval to alter the works, which would have removed the need to disturb the asbestos material. With reference to the How to Manage and Control Asbestos in the Workplace Code of Practice 2011, her Honour observed that it would have been best practice for the defendant to have requested for the sheeting containing asbestos be removed.
Her Honour accepted that the defendant had entered an early plea of guilty, cooperated with the investigation, and had no history of offending. In all the circumstances, Her Honour fined the defendant $20,000 and exercised her discretion to not record a conviction.
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Section 19(1) and 33 of the Work Health and Safety Act 2011