On 10 March 2021, a painter was sentenced in the Holland Park Magistrates Court for multiple contraventions of the Work Health and Safety Act 2011 (‘the Act’). The defendant pleaded guilty to two Category 2 offences arising from his failure to ensure the health and safety of his workers and other persons was not put at risk. The defendant also pleaded guilty to three charges of non-compliance with an improvement notice contrary to section 193 WHS Act. For the Category 2 offences, Magistrate Sue Ganesan imposed a court-ordered work health and safety undertaking with a good behaviour period of two years and a recognisance of $25,000. Her Honour imposed a global fine of $9,000 for the three counts of non-compliance with improvement notices.
The defendant was a painter who undertook a painting business and was sub-contracted to repaint a residential home located in Salisbury (‘the workplace’). The dwelling was built in the early 1960s and the roof was made of ‘super-six,’ an asbestos-containing material. The defendant was engaged to wash, seal, and repaint the roof for $500.00.
On the morning of 18 August 2017, the defendant and his worker arrived at the workplace to commence work on the roof. Between approximately 8:00am and 3:00pm that day, the defendant and his worker cleaned the surface of the roof using an externally powered high-pressure water device. The high-pressure water spray disturbed the surface of the roof and asbestos-contaminated dust or debris (ACD) was distributed over the surrounding area. WHS Inspectors observed suspected ACD in greater than minor quantities on the cars, plants, ground, house exterior and fence at the workplace. Inspectors also observed traces of suspected ACD on plants at an adjacent residential property. Subsequent testing of the samples confirmed that the material was ACD.
The defendant hired the worker as an unskilled labourer and did not provide him with any workplace health and safety induction training, including training and information about working with asbestos and the health risks associated with asbestos exposure. The defendant did not provide himself or his worker with personal protective equipment, such as disposable coveralls and respiratory protective devices, prior to carrying out the work. After completing the work, the defendant left the workplace in the clothes he had worn throughout the day.
At the time the work was carried out, several individuals were carrying out unrelated work inside the dwelling. The defendant’s failure to comply with a work health and safety duty exposed five individuals to a risk of serious illness.
Inspectors issued the defendant with three compliance notices pursuant to section 191 of the Act on 31 August 2017, 8 September 2017, and 20 September 2017. Each notice related to the ACD contamination at the workplace and directed that the removal of the ACD must be carried out by a Class A licensed asbestos removalist. The defendant failed to comply with each of the notices.
Remediation of the workplace did not commence until October 2017, when the owner of the property engaged a licensed asbestos removalist. The remediation work took four days to complete at the cost of $17,831.00 and was paid for by the property owner.
In sentencing, Magistrate Ganesan had regard to section 3(2) of the WHS Act and 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. Her Honour also considered the sentencing principles in the Penalties and Sentences Act, and gave significant weight to the need for general deterrence.
Her Honour remarked that the age of the home gave rise to an obvious risk of asbestos, the potential consequences should have been clear, and that there were several simple control measures available to the defendant to minimize or remove the risk. Her Honour considered it particularly concerning that the defendant failed to take any steps to remedy the breach.
In mitigation, her Honour took into account the defendant’s timely plea of guilty and his lack of prior WHS breaches. The Court also took into account that the defendant was currently unemployed and reliant upon social welfare payments to support himself and his dependent children.
When considering the penalty to be imposed, her Honour remarked that the overall criminality of the offending warranted a $34,000 fine. However, having regard to the defendant’s financial circumstances, her Honour moderated the quantum of the penalty and further ordered that the defendant be subject to a lengthy WHS undertaking.
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Charge 1: Sections 19(1) and 32 Work Health and Safety Act; Charge 2: Sections 19(2) and 32 Work Health and Safety Act; Charges 3-5: Section 193 Work Health and Safety Act