Details of successful prosecution against E195327

Incident description

Two complaints were laid before the Court charging the defendant with offences relating to asbestos under the Work Health and Safety Act 2011 (the Act) and the Work Health and Safety Regulation 2011 (the Regulation). The first complaint contained two charges. Charge 1 was in relation to not complying with section 425(1) of the Regulation (i.e. failing to ensure an asbestos register was prepared and kept at the workplace) and Charge 2 was in relation to not complying with section 429(2) of the Regulation (i.e. failing to ensure a written asbestos management plan for the workplace was prepared). The second complaint before the Court was in relation to failing to comply with a requirement under section 43(1) of the Act, by carrying out work without being authorised under section 487(1) of the Regulation (i.e. by not being the holder of an asbestos removal licence). All of the charges arose out of the same incident.

On 1 March 2014 the defendant was observed removing soffit sheeting from the underside of an awning at a commercial property. Dust and debris were seen to fall onto the footpath. The defendant was observed removing batons and pieces of broken sheeting. He was also observed sweeping up dust and debris with a broom. A group of shops were at this location, some with tenants. Pedestrians were walking under the soffits while the work was being done.

A witness who observed the defendant doing the work believed the soffit sheeting may have contained asbestos and contacted WHSQ.

The defendant advised a WHSQ Inspector later in the day that:

• he owned the property and did the work on the assumption that the soffits may contain asbestos;
• two panel sheets had fallen from the shops onto to the pavement due to white ant damage;
• he picked up pieces of material and swept up the area and put the debris into plastic bags in his trailer;
• he would call the Council to arrange disposal;
• he didn't have an asbestos removalist licence; and
• he was doing the work on the assumption the damaged material may be asbestos containing material.

The inspector provided advice to him, particularly that he needed to have a licence if he intended to remove more than 10m2 of asbestos containing material. The defendant told the inspector he would do the work safely and not engage a licenced removalist, and also that there was no asbestos register or asbestos management plan for the property. The inspector advised the defendant not to do work more than the limit. He issued the defendant with a verbal prohibition notice and a written notice was sent to him on 3 March 2014.

On 4 March 2014 another WHSQ inspector attended the incident site. He observed that the awning soffit sheeting of the shops had been recently altered and replaced with what appeared to be low profile ribbed metal sheeting. He measured the soffit removal area (total of 62.79 m2) and seized samples. This second inspector spoke to the defendant. The defendant told the inspector he had performed the work on 1 March 2014 to remove suspected ACM from the awning soffit because it was a public safety issue. The defendant then showed the inspector a pallet loaded with fibre cement sheeting that was sealed in polystyrene boxes and wrapped in thick black plastic. The inspector seized the pallet containing the fibre cement sheeting. The inspector returned to the incident site on 6 March 2014 and took more samples. The samples were sent away for analysis and the majority were found to be positive for asbestos.

On 8 April 2014 a third inspector spoke to the defendant, who told him he had nothing to do with the buildings as they were owned by his mother. The defendant said that on 1 March 2014 he went to the building and saw a soffit hanging with debris lying on the ground. He cleaned the debris up and then went to have lunch. He returned from lunch and inspected the rest of the soffits. As a result of the inspection the soffits fell out. He cleaned them up and replaced the soffits as he thought they were a public safety issue.

After the visits from inspectors, a business was engaged by the defendant to remove asbestos in connection with the work done by the defendant.

Court result

The defendant pleaded guilty in the Bowen Magistrates Court on 15 March 2016. Magistrate Simon Young fined the defendant $750. No conviction was recorded.

In deciding penalty, Magistrate Young took into account the following considerations:

• Timely plea of guilty
• Defendant conceded the facts
• No criminal history
• Defendant had a high standing in the community
• Act was out of character – five references provided
• Act did endanger the health and safety of the community
• The penalty had to act as a deterrent to others
• The schedule of other asbestos prosecutions were not of a similar nature with the majority against builders/workers in the asbestos industry

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the construction industry where there is exposure to risks from incomplete or defective scaffolding, duty holders should consider the following:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• How to safely remove asbestos code of practice 2021 (PDF, 2.22 MB)

Details