On 14 December 2023, a person conducting a general handyman business (‘the first defendant’) and a worker (‘the second defendant’) were sentenced in the Holland Park Magistrates Court for multiple offences under the Work Health and Safety Act 2011 (‘the Act’). The first defendant was sentenced in relation to three offences under the Act, namely one offence pursuant to sections 19(1) and 32 of the Act, one offence pursuant to sections 19(1) and 33 of the Act, and one offence pursuant to sections 19(2) and 33 of the Act. The second defendant was sentenced in relation to two offences under the Act, namely one offence pursuant to sections 28(b) and 32 of the Act, and one offence pursuant to sections 28(b) and 33 of the Act. A fine of $5,000, community service, and two court ordered undertakings with recognisance totaling $40,000 were imposed.
The business was established under a trust. The first defendant was the sole trustee of that trust. The second defendant was a worker engaged by the business, and also the partner of the first defendant. The second defendant was responsible for the operational side of the business; their role included running the business as well as undertaking the work.
The business had been engaged to clean, seal and paint a roof at the incident address. The roof was made from materials which contained asbestos. The height of the roof measured between 3.077 meters at the lowest point and 5.079 meters at the peak.
The second defendant and another worker engaged by the business attended the address on 17 and 18 August 2021. They both went onto the roof to commence cleaning it in preparation for painting.
No risk assessment was conducted regarding the risk of fall from height, and, accordingly, there were no control measures in place to prevent them from falling from the roof, such as the use of edge protection or other fall prevention devices. Likewise, the business had no procedures in place regarding the risk of falls from working at heights. This is the basis of charge 1 for both defendants.
The business had no policies or procedures in place regarding asbestos. Neither the second defendant or the worker held any licences or qualifications for working with asbestos.
The second defendant and the worker took turns using a pressure washer to clean the roof over both days. As they did this, debris from the roof spread across the property and into neighbouring properties.
On 18 August 2021, one of the tenants of the incident address contacted Workplace Health and Safety Queensland (‘WHSQ’) as she believed the roof contained asbestos.
WHSQ attended the incident address on 18 August 2021. A number of samples were taken from the incident address, neighbouring addresses, and the pressure washer. The samples were analysed and found to contain asbestos.
An improvement notice was issued for the asbestos contaminated dust and debris (‘ACD’) to be removed and the work must be carried out by a class A licence holder.
The business paid for a number of expenses relating to initial remediation work, temporary accommodation for the tenants, car hire and taxi fares for the tenants, and an asbestos inspection and sampling. This amounted to $8,265.95.
The business subsequently advised WHSQ that they did not have the funds to cover the cost of the remaining remediation work. WHSQ arranged for this work to be completed at a total cost to WHSQ of $44,335.28
The second defendant participated in an interview with WHSQ on behalf of the business, during which he advised he had suspicions that the roof may have contained asbestos due to its age.
WHSQ advise that the brand Shield Coat has products to clean, seal and paint asbestos cement roofs which would have cost $1,353.55.
In sentencing, Magistrate Ganasan considered the aims of the Act and noted that employers had to be proactive in securing health and safety. Her Honour noted that it was a significant aggravating feature in this matter that the risk was foreseeable.
Her Honour noted the business was very small and effectively was made up of the two defendants and one other worker.
Her Honour took into account the financial circumstances of the defendants and noted that the business had paid $8,265.95 following the incident which related to initial remediation work, temporary accommodation for the tenants, car hire and taxi fares for the tenants, and an asbestos inspection and sampling.
Her Honour accepted that the actions of the defendants were not deliberate or intentional, but were careless acts that had significant consequences.
Taking into account all matters, including the early pleas of guilty, her Honour made the following orders:
Her Honour exercised her discretion to not record a conviction.
OWHSP contact: email@example.com
Charge 1: Sections 19(1) and 32 of the Work Health and Safety Act 2011 (‘the WHS Act’) Charge 2: Sections 19(1) and 33 of the WHS Act Charge 3: Sections 19(2) and 33 of the WHS Act
Charge 1: sections 28(b) and 32 of the WHS Act Charge 2: sections 28(b) and 33 of the WHS Act