Details of successful prosecution against E212728

Incident description

The defendant held duties under ss.446(3) & 484(1) of the Work Health and Safety Regulation 2011.

He was a sole trader whose business included painting over asbestos using a fibroseal system.

He was engaged to undertake roofing work at a residential property including repairing capping and fibroseal painting of the roofing which contained asbestos.

Work occurred over 2 days. A tenant, who was pregnant at the time, observed workers chiselling areas on the roof with large and small pieces of debris falling to the ground, in the pool and surrounding parts of the property. Fine dust and debris were spread by the use of a leaf blower and broom. Work continued for approximately four hours with the tenant making observations while keeping inside the property.

Before leaving the property the workers used a household wheelie bin to place some of the debris. Workplace Health and Safety investigators attended the site on the same day, taking samples and photographs. They also noted some contamination of an adjoining property and a nature strip at the front of the property.

A remediation plan was prepared for the site. During the investigation it was confirmed that there had been an earlier contamination by unrelated workers cleaning down the roof.

Court result

The defendant pleaded guilty in the Redcliffe Magistrates Court on 11 July 2017 to breaching s.446(3) and 484(1) of the Work Health and Safety Regulation 2011.

Magistrate Bucknall imposed a global fine of $2,000. In addition a 12 month court ordered undertaking pursuant to s 239 of the Work Health and Safety Act 2011 was imposed for the s 446 (3) offence. Orders for professional and court costs totaling $1,092.90 were made. No conviction was recorded.

In reaching a decision, the Magistrate acknowledged the defendant had been a self-employed painter for over 20 years. He had started offering services in asbestos coating approximately 3 years earlier using a product which ordinarily does not require disturbance of asbestos. The defendant had underquoted on the job as issues arose during the works. Attempts had been made to clean up the premises prior to completion.

In deciding penalty, Magistrate Bucknall took into account the defendant had not been prosecuted previously for any work health and safety breach, had suffered significant financial and psychological stress (including hospitalization) from the incident. He accepted the defendant had shown remorse by pleading guilty and agreeing to pay partial costs of remediation works in excess of $8,000, taking into account the earlier contamination.

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 asbestos, 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 illness 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 asbestos containing material, using hand tools together with suppression or control methods of airborne asbestos;
• If it is absolutely necessary to disturb asbestos using power tools, the fitting of dust suppression or other control devices which are commercially available.

Details