Details of successful prosecution against E252477

Incident description

The defendant business operated a child care centre. It instructed one of its workers, a maintenance officer, to clean the roof of the centre. On 21 January 2018, the worker hosed the roof with a high-pressure water device. The defendant knew the roof was asbestos cement and that the use of the cleaner was not in accordance with the relevant Code of Practice or its asbestos management plan. The cleaning caused dust and debris to be present in and around the centre. The centre was closed for one week.

Court result

On 3 July 2019, in the Southport Magistrates Court, the defendant pleaded guilty to breaching s.446(1)(a) of the Work Health and Safety Regulation 2011.

Magistrate Bentley fined the defendant $3,500. The court ordered that no conviction be recorded.

In reaching a decision, the Magistrate took into account the circumstances of the offence and the facts, which were the basis on which her Honour sentenced the defendant. Her Honour accepted the complainant's submission that the offences were prevalent, and the serious risks associated with asbestos contamination and that general deterrence is an important sentencing principle. Her Honour noted that the offence was aggravated as the defendant had knowledge that the roof contained asbestos and allowed it to be cleaned with a high-pressure cleaner.

In deciding penalty, Magistrate Bentley took into account the maximum penalty and the defendant's early plea of guilty. Her Honour also took into account the defendant had not been prosecuted previously for any work health and safety breach, had co-operated with the investigation, was a good corporate citizen and that it was out of character for the defendant to fail to comply with any applicable laws. Her Honour noted that a director of the defendant was a well-respected and valued member of the community, particularly in relation to education, and had been awarded an Order of Australia.

Her Honour also took into account the defendant closed the centre, paid for decontamination and replacement of the roof and once notified of the incident, immediately took steps to protect children and staff from the effects of the contamination, steps costing it approximately $22,000.

Considerations for prevention

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

This incident falls within the scope of the Queensland Statewide Strategic Plan for the Safe Management of Asbestos in Queensland and the WHSQ Robust Asbestos Regulator Project specifically implemented to target asbestos related events.

When working in the roof restoration / cleaning, and painting industry where high pressure cleaning equipment is required and there is the potential to come across surfaces containing ACM / asbestos, duty holders must assess the risks posed from the potential to be exposed to airborne asbestos fibres, by complying with what is contained in the following legislation:

• Work Health and Safety Regulation 2011 (Chapter 8)
• How to manage and control asbestos in the workplace code of practice 2021 (PDF, 0.97 MB)

Other relevant Publications to assist with risk management include:

• The WHSQ fact sheet - Cleaning Asbestos Cement Roofs
• The Australian Asbestos Network fact sheet on cleaning and maintenance
• Asbestos – A guide for householders and the general public, February 2013. ISBN: 978-1-74241-736-3. Commonwealth of Australia 2013
• Dos and don'ts for working with asbestos (http://www.asbestos.vic.gov.au)
• Pressure cleaning of asbestos roofs - Safe Work NSW – Safety alert

Details