On 27 July 2023, a sole trader conducting business as a builder and construction project manager was sentenced in the Brisbane Magistrates Court for a Category 3 offence pursuant to section 33 of the Work Health and Safety Act 2011 (“the Act”), having failed to comply with his primary health and safety duty under section 19(1) of the Act.
The defendant was engaged as the principal contractor for a project involving the installation of air conditioning units at a Brisbane school. The defendant maintained responsibility for overseeing and managing the project, but subcontracted the supply and installation of the units to another company, and engaged a contractor to fulfill the role of site supervisor and be his ‘man on the ground.’
During the tendering process, the defendant was informed of the presence of asbestos in numerous rooms at the school and was provided with a copy of the asbestos register, which detailed the location of asbestos material or suspected asbestos material in each room. The defendant confirmed that the sum tendered for included the removal of asbestos material, and advised that he would engage an asbestos contractor to identify and remove the asbestos, however that did not occur. Prior to work commencing, the defendant placed ‘Asbestos Containing Material’ warning stickers in various locations at the school to identify that asbestos was present.
Installation work commenced in various rooms at the school on 12 October 2020, ceasing on 25 November 2020. Some of the rooms, including those that contained asbestos, required holes to be cut into the ceilings in order for the air-conditioning units to be installed. Workers cut the holes using a hole saw attachment on a power drill, resulting in the disturbance of asbestos material and the creation of asbestos contaminated dust. Workers did not wear disposable coveralls, and initially used paper disposable masks while performing this work. Respirators were eventually provided to some workers. After 21 October, the defendant provided a Class H vacuum cleaner, which workers used to capture dust when cutting the holes, but this was not made available prior to that date.
The drilling and cutting of asbestos ceilings at the school posed a risk to the health and safety of workers and the defendant failed to implement reasonably practicable control measures to manage the risk. The defendant failed to comply with his duty by not engaging a specialist contractor to remove the asbestos sheets in which holes needed to be made or, alternatively, by not ensuring workers involved with the installation were notified of the rooms that contained asbestos and that appropriate control measures were implemented to manage the hazard and risk associated with work on that material, such as appropriate personal protective equipment, decontamination processes, and isolation of the work area.
In sentencing the defendant, His Honour Magistrate Saggers observed that the defendant had shown a willingness to assist in the administration of justice, having entered his plea of guilty to the charge at the first available opportunity, and participating in a lengthy voluntary interview during the investigative process. His Honour had regard to the defendant’s good character, noting that he been a builder for 35 years and had not been in breach of work health and safety requirements previously.
His Honour also had regard to the defendant’s financial capacity, accepting that the defendant had a significantly reduced income due to the loss of his major client which previously made up approximately 95% of his contracts. His Honour accepted that this caused the defendant to experience significant stress and anxiety, in addition to that caused by having to attend court. His Honour noted that these circumstances would have caused the defendant embarrassment within his industry.
Magistrate Saggers observed that the defendant had placed significant reliance on his ‘man on the ground,’ but ultimately it was the defendant’s personal responsibility to ensure work health and safety requirements were met. His Honour noted that, while the defendant made some efforts to provide PPE and comply with his health and safety duty, he did not go far enough, noting that those who have oversight bear significant responsibility. His Honour accepted there was a need for general deterrence, to prevent other principal contractors from making the same mistake as this defendant, particularly considering the prevalence of dust diseases.
In light of these factors, Magistrate Saggers imposed a fine of $5,000, along with professional costs and the filing fee. No conviction was recorded.
OWHSP contact: firstname.lastname@example.org
Section 19(1) and 33 of the Work Health and Safety Act 2011