Details of successful prosecution against E218806

Incident description

The defendant, a construction company, held duties as a person with management or control of a workplace. It was engaged to undertake refurbishment works at a kindergarten commencing in the school holidays of September 2015. The renovation works required removal and disposal of existing ceiling tiles, vinyl flooring and external awning, and removal of the internal kitchen and cabinets for reuse. Asbestos was not identified at any time, other than in the internal wall sheeting which was not being removed.

The kindergarten was originally owned by a local council before two Queensland Government Departments. The building housing the kindergarten was believed to have been constructed in the mid-1970s due to the type of building fabric used. Plasterboard ceiling tiles were installed throughout the building. In approximately 2005 the plasterboard ceiling tiles over the kitchen, store, staff and student toilets were removed and replaced by fibrous cement tiles that were presumed not to have comprised asbestos containing material, for the reason that asbestos had not been used in building products in Australia since the 1980s, with the use of all asbestos products being finally banned in Australia on 31 December 2003. An asbestos audit was conducted of the building on 7 November 2013 and minor repair works were undertaken in early 2015. In May 2015 a firm of architects were engaged to act as project managers for the kindergarten's refurbishment. The defendant was engaged through the project manager to undertake the refurbishment works.

Three workers were engaged to perform the removal work which was undertaken between 19 and 21 September 2015. In the course of the removal work ceiling tiles were smashed and vinyl tiles which were glued to the floor were removed with a scraper. No protective equipment was worn by the workers and the demolished material was simply transported to the local dump without being wrapped or treated in any way. A council employee advised the workers on 21 September 2015 that asbestos was suspected of being present in the materials which had been transported to the dump. From then, the remaining materials removed were wrapped in plastic and left on site for removal by council workers. The site was not properly decontaminated, with asbestos dust on the floor being swept up, and the verandah hosed. None of the workers' clothing, vehicles or tools were decontaminated. Subsequent testing of sample taken from the kindergarten and dump sites conducted by a NATA accredited laboratory revealed that chrysotile asbestos was present at both sites.

No evidence was revealed to support a conclusion that any person was exposed to airborne asbestos as a result of the failures of the defendant. The defendant contributed $35,000 towards the cost of site decontamination.

Court result

On 28 March 2018, the defendant pleaded guilty in the Cairns Magistrates Court to breaching sections 422(1) and 448 of the Work Health and Safety Regulation 2011.

Magistrate Sandra Pearson fined the defendant $4,500 and ordered professional and court costs totalling $1,692.30. The court ordered that no conviction be recorded.

In reaching a decision, the Magistrate took into account there were failures on the part of a number of parties which resulted in the contamination. The defendant had been required to abbreviate its otherwise robust processes which would have insisted on the production of the asbestos register by the Queensland Government Department and its project manager, by the request of the Department to undertake the works in the September school holidays. She also took into account the defendant's sole director had been unable to be present due to the birth of a child. Changes to the internal processes of the defendant rendered the likelihood of the offending reoccurring highly unlikely.

In deciding penalty, Magistrate Pearson took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty. She also took into account the substantial contribution to decontamination costs made by the defendant. She noted that the sentencing range of $5,000 to $7,000 submitted by the prosecution was entirely appropriate.

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 airborne asbestos or asbestos contaminated dust or debris, duty holders should consider the following:

• The likely presence of asbestos in buildings constructed prior to 1990
• Not disturbing asbestos in building materials
• If it is necessary to disturb 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)
• Work Health and Safety Act 2011

Details