A company conducting a business in remediation works of water and storm damaged residences was charged under s 43(2) of the Work Health and Safety Act 2011 (the ‘Act’) and ss 419(1) and 446(3) of the Work Health and Safety Regulation 2011 (the ‘Regulation’), for allowing workers to carry out work involving asbestos whilst the defendant company was not a licensed asbestos removal contractor. The defendant pleaded guilty to all charges and was sentenced on 7 December 2020 in the Brisbane Magistrates Court. Magistrate Tina Previtera imposed a global fine of $6,000.
On 21 February 2018, the defendant company was engaged by the insurer of a homeowner to conduct remedial works on substantial water damage caused by an upstairs bathroom flexihose at the homeowner’s residence in Aspley.
On 22 February 2018, one of the defendant company’s workers attended the residence and performed a risk assessment of building material which was at risk of collapse. The worker obtained approval from the defendant company to drop and remove the water-affected ceiling sheeting in the downstairs rumpus room. The worker removed a total of 11.534m2 of sheeting with a hammer and chisel.
Another worker of the defendant company attended the residence and identified that the removed sheeting could contain asbestos. The workers contacted the defendant company who decided not to complete further work until appropriate testing could be undertaken.
The workers then put on personal protective equipment, wrapped the ceiling sheets in double-layered black plastic bin liners and sealed the bag with tape. The workers then vacuumed the remaining dust and debris from the ceiling sheets using a vacuum cleaner with a HEPA filter (i.e. an uncontrolled device), wet wiped the area and mopped the floors. The wrapped ceiling sheets were transported to the defendant company’s workplace, where they remained until disposed of at an approved waste management facility.
Eventual testing of the residence determined that asbestos was present in the ceiling where it was removed, in the rumpus room and its adjoining bathroom. An investigation by Workplace Health and Safety Queensland (‘WHSQ’) revealed that the insurer indicated the presence of asbestos by issuing a “Make Safe Authority” to the defendant company in the evening of 21 February 2018. The defendant company failed to communicate this to the two workers who attended the residence.
In sentencing, Magistrate Previtera considered the defendant company’s early plea and cooperation with the WHSQ investigation. Her Honour accepted the mitigation measures implemented post-incident, including asbestos awareness training.
Her Honour also observed that the defendant company had previously enlisted a preferred asbestos removal contractor when asbestos arose in the workplace. Her Honour commented that if the defendant company had paid attention to the “Make Safe Authority”, they would not have been exposed to a breach of the work health and safety legislation.
Her Honour stated that sentencing must send a message to others in similar industries and observed that the defendant company should have been aware by reason of the notice that asbestos was present. Her Honour declined to record a conviction and imposed a global fine of $6,000 in respect of all charges.
OWHSP contact: firstname.lastname@example.org
Section 43(2) Work Health and Safety Act 2011 Sections 446(3) & 419(1) Work Health and Safety Regulation 2011