On 19 March 2021, in the Brisbane Magistrates Court, a painter pleaded guilty and was sentenced in relation to three offences against the Work Health and Safety Act 2011 (‘WHS Act’) and the Work Health and Safety Regulation 2011 (‘WHS Regulation’) arising out of the use of a high pressure hose to spray an asbestos roof. The defendant failed to comply with his primary duty, pursuant to section 19(2) of the Act, to ensure the health and safety of other persons was not put at risk from work carried out as part of his business or undertaking, contrary to section 33 of the WHS Act. He directed or allowed another worker to use a high-pressure water blaster on asbestos, contrary to section 446(1) of the WHS Regulation. He also failed to comply with an improvement notice to remediate the workplace, contrary to section 193 of the WHS Act. Magistrate Michael Quinn imposed a global fine of $3,000 and no convictions were recorded.
The defendant operated a painting business and was engaged to undertake residential renovation work, including painting the roof of a residence at Norman Park (‘the workplace’). The defendant was aware the property contained asbestos and included a primer required to paint the asbestos ‘super six’ roof in his quote to the homeowners. The defendant held himself out to hold a current trade contractor’s licence, despite the lapse of his licence when he failed to pay the renewal fee.
On 21 February 2019, the defendant’s workers commenced cleaning and preparation of the roof prior to painting. Several witnesses observed a loud humming noise, a worker cleaning the roof using water, and mud splattering to external areas. Work continued on the following day with spray painting of the roof. At this time, a neighbouring resident observed a ‘muddy splotchy’ substance adhering to their property’s external wall adjacent to the workplace, and a similar substance on the external walls and guttering of the workplace. Residents of the neighbouring property contacted Brisbane City Council with concerns the substance may contain asbestos. Workplace Health and Safety Queensland (WHSQ) inspectors later attended the neighbouring residence and observed that the workplace had a corrugated asbestos cement sheeting roof resembling ‘super six’ roofing and it was recently painted. They also observed that the gutters appeared to have been recently cleaned, with water and dirt run-off and external wall staining visible.
WHSQ Inspectors took samples of a papier-mache like material from the workplace and two neighbouring properties, which they suspected to be asbestos-contaminated dust or debris from the use of a high-pressure water spray on the roof of the workplace. Testing revealed this was consistent with asbestos contamination caused by high-pressure water spray blasting of the asbestos-cement roof.
On 25 February 2019, the defendant was issued an improvement notice to make the property safe and ensure all asbestos was contained, labelled and disposed of by 4 March 2019. The defendant failed to comply with this notice.
The subsequent total cost of remediation to clean and make safe all three properties, and analysis and bulk air analysis, was $48,291.09, none of which was borne by the defendant as he did not comply with the improvement notice issued to him by WHSQ.
In sentencing, Magistrate Quinn observed the seriousness of the offending, particularly as the safety of the community was put at risk of the deadly disease asbestosis and commented that this was a serious example of this type of offence. His Honour had regard to the defendant’s personal circumstances, including difficulties faced by him as an immigrant from Iraq speaking English as a second language.
His Honour took into account the defendant’s positive duty, commenting that the defendant failed to make any enquiries in furtherance of that duty despite being put on notice of the risk of asbestos and asbestosis from his knowledge of the property’s age.
The Magistrate considered the defendant’s failure to repay any of the $6,000 received for the work, to either the homeowner or remediation, was an aggravating factor. However, his Honour took into account the defendant’s financial circumstances, including his impecuniousness and ongoing repayment of fines issued by the Queensland Building and Construction Commission (totalling $6,500). Those fines related to his carrying out work at the workplace without the appropriate licence.
Magistrate Quinn observed that the defendant’s use of a high-pressure hose to remove asbestos from the roof and guttering created an obvious risk and commented that the safety of the public is paramount.
His Honour stated that he would have imposed a very significant fine and ordered repayment of a reasonable percentage of the rectification work, but for the defendant’s impecuniousness. His In addition to the $3,000 fine, costs in the amount of $1,000 were awarded.
OWHSP contact: firstname.lastname@example.org
Charge 1: Sections 19(2) and 33 Work Health and Safety Act 2011; Charge 2: Section 446(1) Work Health and Safety Regulation 2011; Charge 3: Section 193 Work Health and Safety Act 2011