On 30 August 2021, a not-for-profit incorporated entity was sentenced in the Gladstone Magistrates Court for breaching section 43(2) of the Work Health and Safety Act 2011 (‘the Act’) by carrying out unlicensed asbestos removal work contrary to section 487(2) of the Work Health and Safety Regulation 2011 (‘the Regulation’) and for breaching section 446(3) of the Regulation by directing or allowing a worker to use a broom and electric floor sander in an uncontrolled manner. Acting Magistrate Scoines imposed a fine of $4,000 for both offences.
The defendant owns and operates a property at Gladstone. When the defendant purchased the property in 2017, an asbestos management plan and asbestos register, identifying asbestos in the property, were already in place. The defendant received funding under the Queensland Government’s ‘Skilling Queenslanders for Work’ program, which provides work opportunities for disadvantaged workers. The defendant employed trainees to participate in training at the property with host employers.
Six trainees were tasked with removing vinyl tiles on the basement level of the property, to expose wooden floorboards. An external flooring contractor provided a quotation for sanding the floorboards. He was not a licensed asbestos removalist.
The defendant, through two of its staff, instructed and supervised the six trainees in removing the tiles, between about 22 May and 24 May 2019. The trainees signed a Safe Work Method Statement (‘SWMS’) noting safety requirements for dealing with the asbestos, which required wearing personal protective equipment, including P2 masks, gloves, disposable overalls, disposable boot covers, and safety goggles. The trainees and the contractor were told there was a low level of asbestos in the tiles. The asbestos management plan and asbestos register noted that the vinyl tiles contained asbestos.
The trainees did not turn on the air conditioning units on in the vicinity of the work, as required in the SMWS. The trainees disposed of the tiles in plastic garbage bags, taped them up and placed them in a storage area. The plastic bags split due to the presence of the tiles. No vacuums or water dust suppression methods were used. Some workers were also told to use a dustpan, brush, and broom to sweep up dust and debris and chunks of tiles.
The total area from which the vinyl tiles were removed was 104.70 m2. Once the tiles were removed, the contractor sanded the floorboards with an electric floor sanding machine.
Complaints about the work were brought to the attention of the defendant, who commenced an internal investigation. Work Health and Safety Queensland also received an anonymous complaint and commenced an investigation. Samples of the tiles and the adhesive beneath the tiles were tested. Testing confirmed the presence of non-friable (bonded) chrysotile asbestos in both the tiles and the adhesive.
In sentencing, Acting Magistrate Leanne Scoines said it was clear that the defendant failed in its duty to the trainees. It did not provide a safe workplace and that put the trainees at risk. Her Honour noted the Work Health and Safety Act 2011 aims to protect workers from exposure to asbestos.
The learned Magistrate opined that the community is more educated than it once was, regarding the dangers of asbestos exposure, even from a single occurrence. The legislation provides unambiguous and strict guidelines on who can deal with asbestos, and in what circumstances.
Balancing against those factors, her Honour said, were the defendant’s early plea of guilty, its lack of prior convictions, its contribution to the local community, and that it had taken ameliorating steps to remedy the error after the event, including proactively investigating how it had occurred.
Her Honour decided not to record a conviction, noting it was the first offence of this type by the defendant, and that the organisation had yielded good outcomes for the community. Her Honour noted that given the proactive steps it had taken, the defendant’s reoffending risk was low.
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Charge 1: Section 43(2) of the Work Health and Safety Act 2011; Charge 2: Section 446(3) of the Work Health and Safety Regulation 2011