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Details of successful prosecution against E165293 - Individual

Incident description

The defendant was employed as a project officer in charge of repairs to a bridge from 5 January to 8 May 2012. The work required removal of fibro sheeting using power tools.

After work had commenced, workers suspected that the fibro may contain asbestos. They cut a portion of the sheeting and requested that the defendant have the sample tested to ascertain whether it was asbestos containing material (ACM). The defendant did not have the sample tested.

When workers asked about the test results, the defendant stated that the results were negative and ordered the employees to return to work. The defendant reiterated this to several workers over a period of four months until another manager had tests performed.

The results were positive for asbestos. The defendant was informed of the results and still did not act upon them. The manager who tested the fibro informed the relevant people and the site was shut down.

The defendant held duties under s. 28 of the Work Health and Safety Act 2011 being a worker employed by a large government department trading as a private undertaking, sourced to repair damage to a public bridge.

Court result

The defendant pleaded guilty in the Ipswich Magistrates Court on 22 September 2014 to breaching s. 32 of the Work Health and Safety Act 2011, having failed to meet his work health and safety duties and was sentenced.

Magistrate Ms Donna MacMallum fined the defendant $5000 and ordered professional and court costs totaling $1083.50. No conviction was recorded.

In reaching a decision, Magistrate MacMallum recognised the dangers of exposure to ACM and the potentially dire health outcomes for workers and members of the public that may develop asbestos related illnesses. The magistrate also noted that her decision reflected that the community does not condone misleading behavior that puts people at risk.

In deciding penalty, Magistrate MacMallum took into account the defendant had not been prosecuted previously for any work health and safety breach and entered a timely plea of guilty as well as the defendant’s financial status and ability to pay the fine.

Considerations for prevention

(Commentary under this heading is not part of the Court’s decision)

There are a number of factors that may be taken into account to identify if asbestos is present in a workplace. In particular if the building or structure was constructed or renovated before 1990, it is likely to contain asbestos.

Managing the risks associated with asbestos involves:

  • identifying asbestos and ACM at the workplace and recording it in an asbestos register
  • assessing the risk of exposure to airborne asbestos
  • eliminating or minimising the risks by implementing control measures
  • reviewing control measures to ensure they are effective.

There may be more than one person in the workplace responsible for identifying asbestos or ACM. It’s important that all duty holders consult, cooperate and coordinate with each other as well as consulting with workers and health and safety representatives.

A person with management or control of a workplace must ensure asbestos or ACM is identified by a competent person.

The Work Health and Safety Act 2011 defines a competent person as someone with the knowledge and skills to carry out the identification of asbestos through training, a qualification or experience. A competent person who can identify asbestos is:

  • trained to handle and take asbestos samples, has the knowledge and experience to identify suspected asbestos and able to determine risk and controls measures
  • familiar with building and construction practices to determine where asbestos is likely to be present
  • able to determine that material may be friable or non-friable asbestos and evaluate its condition.

Details

Industry:
Construction
Defendant:
E165293
Date of offence:
05/01/2012
Injury:
Nil
Court
Ipswich Magistrates Court
Magistrate:
Ms Donna M MacMallum
Legislation:
s.32 of the duty under s.28 Work Health and Safety Act 2011
Decision date:
18/12/2014
Penalty:
$5 000
Maximum Penalty:
$150 000
Conviction recorded:
No
CIS event number:
E165293
Last updated
02 July 2018

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