Details of successful prosecution against E214693

Incident description

The defendant, a sole trader, was engaged to paint the exterior of a small block of flats. Both he and some of his casual workers were observed using power sanders and other tools preparing the exterior walls. Quantities of fine inhalable dust were created and settled over the grounds around the worksite. The defendant was questioned by some of the occupants at the premises about the possibility of asbestos, however work continued.

Following a complaint to Workplace Health and Safety, samples were taken. Most returned positive for asbestos.

Court result

The defendant admitted that when initially asked by tenants about the possibility of disturbing asbestos, he denied it was asbestos. He acknowledged he did not undertake any sampling and testing prior to undertaking work. He had no training in regards to asbestos nor had he arranged for the training of his workers. His explanation for this was that he did not usually undertake painting work involving premises with asbestos.

An improvement notice was issued to the defendant in relation to the contamination. It involved remediation works. The notice was actioned immediately and the defendant paid all costs associated with same which came to approximately $3000.

The defendant pleaded guilty in the Redcliffe Magistrates Court on 25 May 2017 to breaching s.446 (3) of the Work Health and Safety Regulation 2011 and was sentenced.

Magistrate Mr Bucknall fined the defendant $750 and ordered professional and court costs totaling $592.90. He also made a s.239 order that the defendant not offend against the Work Health and Safety Act 2011 for a period of 12 months, with a recognisance in the sum of $1000. No conviction was recorded.

In reaching a decision, the Magistrate took into account the lack of previous breaches by the defendant, co-operation during the investigation, including record of interview and an early indication of a guilty plea. His Honour considered the initial denial by the defendant that he may have been working with asbestos and continuation of work as serious. But for the swift remediation at his own cost, a more significant penalty would have been imposed.

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 ACM, 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