Details of successful prosecution against E181937

Incident description

The defendant held duties under s.19 of the Work Health and Safety Act 2011 being a person conducting a business offering for sale salvaged demolition building materials. He also held duties under s.703 of the Work Health and Safety Regulation 2011, as a person who held a public health and safety duty in regard to asbestos containing material ('ACM').

Between 1 January 2013 and 1 May 2013, the defendant caused bulk ACM to be brought to, and stored, at his business premises. The material was not contained in accordance with the relevant Asbestos Code of Practice.

The defendant did not have authority to store this bulk ACM at this workplace as it was not a designated asbestos receival centre. 8 x 15 cubic metre bins of contaminated material was subsequently removed from the workplace by a licensed asbestos removalist.

The defendant instructed a worker to cut up scrap timber demolition material, contaminated with ACM, bag it for sale to members of the public.  The defendant failed to supply his worker with appropriate Personal Protective Equipment (PPE) to carry out his daily activities without risk to his health and safety from asbestos fibre/dust exposure. Members of the public were also at risk from exposure when they attended the workplace due to the large amount of inadequately contained asbestos dust and debris.

Court result

The defendant pleaded guilty in the  Wynnum Magistrates Court on 14 July 2016 to breaching s.32 of the Work Health and Safety Act 2011, and s. 706 of the Work Health and Safety Regulation 2011 having failed to meet his work health and safety and his public health duties and was sentenced.

Magistrate Zachary Sarra fined the defendant $30 000 for the breach relating to his duty in respect of his business/undertaking and a further $20 000 for the breach of his public health and safety duty under the Regulations. He ordered professional and court costs totaling $4154.54. No conviction was recorded.

In reaching a decision, Magistrate Sarra recognised that the defendant had been a licensed asbestos removalist and had he followed the proper protocols the materials should never had been anywhere near the property. The magistrate also acknowledged the defendant's actions exposed workers, members of the public and neighbours to risk.

Magistrate Sarra, whilst acknowledging the defendant was under significant financial difficulties at the time of the offences and had made a decision to store the ACM at the workplace to cut costs, these actions resulted in him exposing employees and members of the public to harm.

In deciding penalty, Magistrate Sarra took into account the defendant had not been prosecuted previously for any work health and safety breach though his Honour noted and took into account that the defendant had been prosecuted previously for like offences under legislation administered by the Brisbane City Council.

His Honour accepted medical records tendered at the hearing showed the defendant was in very poor health which had meant he was no longer able to work.  His Honour noted the defendant did not co-operate with the investigation (though this may have been as a result of his medical conditions) nor had he entered an early plea of guilty.

Considerations for prevention

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

When working in the wholesale trade industry where there is exposure to risks from exposure to asbestos containing material (ACM), 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 exposure to ACM, obligation holders should consider:

• How to manage and control asbestos in the workplace code of practice 2021 (PDF, 0.97 MB)
• How to manage work health and safety risks code of practice 2021 (PDF, 0.65 MB)
• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011

Details