An Ipswich caravan park failed to ensure, so far as reasonably practicable, that all asbestos or Asbestos Containing Material (‘ACM’) at the workplace was identified by a competent person, contrary to section 422 of the Work Health and Safety Regulation 2011. On 28 April 2021, the defendant pleaded guilty and was sentenced in the Ipswich Magistrates Court.
In October 2019, Workplace Health and Safety Queensland (‘WHSQ’) received an anonymous complaint regarding concerns of ACM at accommodation at an Ipswich caravan park. On 11 October 2019, WHSQ Inspectors attended the workplace and observed suspected ACM in numerous fibre cement vent pipes, three of which were broken, and a broken ceiling in the amenities block. The fibre cement vent pipes were stamped with “Fibrolite” and a number suggesting they were manufactured in 1973.
WHSQ Inspectors reasonably believed there was ACM present at the workplace and requested to view an asbestos register for the workplace. No asbestos register was prepared or kept at the workplace, and the managers denied there was any asbestos present at the workplace. The defendant was issued an infringement notice for failing to prepare and keep an asbestos register at the workplace.
The defendant did not ensure that a competent person had identified, so far as reasonably practicable, the presence of ACM at the workplace. The defendant subsequently facilitated removal of ACM at the workplace, including the fibre cement vent pipes, by a licensed removalist on 6 November 2019.
In January 2020, WHSQ Inspectors returned to the workplace and took samples of suspected ACM from the amenities building and surrounds. Testing revealed both samples contained asbestos fibers. An asbestos register report commissioned by the caravan park on 9 March 2020 also identified ACM in the owner’s residence and the amenities block, including in floors, ceilings, and bathroom vent pipes.
In sentencing, Acting Magistrate Turra had regard to the maximum penalty of $30,000, which reflected the seriousness of the offence. His Honour noted that the defendant undertook a business of providing residential accommodation and commented that residents are entitled to expect the business had taken steps to identify and address the asbestos when required. His Honour determined that the presence of ACM was obvious and simple measures could have been implemented to identify it. His Honour accepted the prosecution’s submission that the defendant failed to take even the most basic steps to identify the asbestos.
His Honour accepted the long-understood dangers of exposure to asbestos and gave significant weight to denunciation. His Honour also considered that general deterrence was a significant consideration, and that a message must be sent to others in a similar position that breaches of work health and safety obligations will be met with significant penalties.
His Honour had regard to steps taken by the defendant post-incident, including an outlay of $100,000 to remediate the workplace. However, his Honour determined these matters did not mitigate the penalty and accepted the prosecution’s submission that this conduct merely complied with legislative obligations that ought to have been met.
In mitigation, the learned Magistrate took into account the defendant’s timely guilty plea and cooperation, which showed remorse and willingness to facilitate the course of justice. His Honour also considered the defendant company a long-standing and contributing member of the community, in that it was a valuable employer providing affordable accommodation and support to community events. His Honour had regard to the defendant’s lack of prior convictions and concluded the defendant was otherwise of very good character.
His Honour rejected the defence submission that a significant fine would be crushing where the defendant had not provided to the Court any material outlining its financial circumstances. His Honour determined the most significant consideration to be reflected in the penalty was general deterrence. His Honour considered that while the matter before the Court was not the most serious example of offending, it was in itself serious. His Honour imposed a fine of $4,000 and no conviction was recorded.
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Regulation 422 of the Work Health and Safety Regulation 2011