A company pleaded guilty and was sentenced in the Brisbane Magistrates Court on 24 July 2020, for breaching s 43(1) of the Work Health and Safety Act 2011 (the ‘Act’). The company removed in excess of 10m2 of Asbestos Containing Material (‘ACM’) without holding an asbestos removal licence, contrary to s 487(1) of the Work Health and Safety Regulation 2011 (the ‘Regulation’). The defendant company also pleaded guilty and was sentenced for breaching s 446(3) of the Regulation, having allowed a broom to be used on asbestos containing material in a manner that was not controlled.
On or about 27 November 2018, the defendant conducted work on a residential property in the suburb of Auchenflower to renovate the property’s bathroom, including installing new wall sheeting. It was initially intended that the new wall sheeting would be placed over the existing sheeting, which the defendant was aware likely contained asbestos. The defendant did not hold and had never held an asbestos removal licence.
In the course of the work, it became necessary for the existing wall sheeting to be removed, with one of the directors of the company removing the sheeting and placing it in various locations throughout the property including in a void beneath the floor, in a council rubbish bin, and in a bathtub in the yard. The investigation determined that the sheeting contained asbestos. It totalled approximately 15m2, exceeding the statutory limit of 10m2.
During a site visit on 28 November 2018, Workplace Health and Safety Queensland Inspectors discovered a soft-bristled household broom inside the bathroom, which was determined to contain asbestos dust and debris in its bristles.
In sentencing the defendant, Magistrate Daley accepted the need for general and specific deterrence due to the deadly nature of asbestos and the likelihood of the defendant encountering asbestos in the course of future work. Her Honour observed that the amount of asbestos removed was not a huge amount, but accepted that even if the amount removed complied with the limit for unlicensed removal, the method of removal did not comply with the requirements of the Regulation.
In mitigation, Magistrate Daley took into account the defendant’s early plea of guilty, lack of previous offending and full cooperation with the WHSQ investigation. In particular, it was acknowledged that the defendant promptly engaged a licenced asbestos removal company to conduct remedial works and the defendant, through its directors, voluntarily attended an interview with WHSQ during which admissions were made. It was acknowledged that one of the directors had now participated in a short asbestos awareness course and that, post-incident, the defendant probably did everything it could have. Her Honour accepted that the defendant did not initially conduct the works with the intention of dealing with the asbestos in that manner, although it was foolish to continue work once the need to remove the asbestos was recognised.
In determining the penalty, the Magistrate took into account that the defendant company is a very small business, essentially comprising only two people, with a limit on its capacity to pay a fine.
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Section 43(1) Work Health and Safety Act 2011 & Section 446(3) Work Health and Safety Regulation 2011