Details of successful prosecution against E165293 - PCBU

Incident description

The defendant held duties under s.19 of the Work Health and Safety Act 2011 being a person conducting a business or undertaking and a responsible agency for the State of Queensland. The defendant is a major provider of transport infrastructure projects throughout Queensland, including building and maintaining roads and bridges.

Repair works were undertaken to a bridge over 5 months in 2012. The bridge contained asbestos, yet there was no documentation indicating this and no safety procedures outlining asbestos precautions. The workers were not informed the bridge contained asbestos and were required to use power tools for a period of two weeks, which generated significant dust. They were not provided with appropriate PPE. Despite admissions made by the defendant that workers had been exposed to asbestos, it contended that the asbestos did not expose workers to a risk of serious illness or death.

Court result

The defendant pleaded not guilty in the Ipswich Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011. Following a four day trial, it was found guilty on 1 June 2017 of having failed to meet its work health and safety duties and was sentenced on 24 July 2017.

Magistrate Virginia Sturgess fined the defendant $175 000 and ordered professional and court costs totalling $4717.55, along with disbursements of $3926.19. No conviction was recorded.

In reaching a decision, the Magistrate noted that there were no comparable sentences to provide guidance on the matter. This was a serious offence and there was a significant failure at the hands of the defendant. There was no identification of the asbestos, no testing, no safety plans and no mention or consideration of the presence of asbestos. Her Honour confirmed that at least 6 workers were exposed to respirable asbestos fibres and these 6 workers now had a lifetime of wondering if they will develop an asbestos related disease.

Further, it was stated that the community has an expectation that workers' health and safety will be cared for. The defendant failed to meet this expectation. It was an unacceptable and unfair work environment. The victim impact statements highlighted the ongoing stress the incident had on the workers.

In deciding penalty, Magistrate Sturgess took into account the defendant co-operated with the investigation, and its attempt to resolve the matter via an enforceable undertaking (EU). Remorse was demonstrated throughout the process of the EU. Of most significance was the extensive remedial action taken by the defendant, costing millions of dollars. There were no previous breaches under the Act and admissions were made at the start of the trial to assist in confining the issue. There was also consideration regarding the fact that public money would be funding any penalty. Ultimately, the Magistrate noted that general deterrence and community denunciation were important factors in sentencing.

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 exposure to airborne asbestos or asbestos contaminated dust or debris, duty holders should apply a risk management approach to ensure the selection of suitable control measures.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding and implementing control measures associated with the risk of causing respiratory diseases and cancers through the release of airborne asbestos, duty holders should consider:

• The likely presence of asbestos in buildings constructed prior to 1990;
• Not disturbing asbestos in building materials;
• If it is necessary to disturb the ACM, using hand tools together with suppression or control methods of airborne asbestos;
• How to safely remove asbestos code of practice 2021 (PDF, 2.22 MB)
• How to manage and control asbestos in the workplace code of practice 2021 (PDF, 0.97 MB)

Details