On 7 October 2020, the defendant company was sentenced in the Toowoomba Magistrates Court for multiple offences against the Work Health and Safety Regulation 2011 (‘Regulation’). Magistrate Kay Ryan imposed a global fine of $8,000 order that no conviction was recorded.

The two directors of the defendant company held a duty pursuant to section 27(1) of the Work Health and Safety Act 2011 (‘Act’) to exercise due diligence to ensure, so far as was reasonably practicable, that the company complied with its work health and safety duty under 19(2) of the Act. The directors were sentenced for their failure to comply with this duty, in contravention of section 33 of the Act. Magistrate Ryan imposed fines of $4,000 each and ordered that the convictions not be recorded.

The defendant company was contracted to demolish a residential dwelling at Toowoomba containing asbestos containing materials (‘ACM’) that was required to be removed by the company prior to commencing demolition. The defendant used an excavator to demolish the structure and to push the resulting ACM into piles throughout the site. The company did not implement ‘asbestos removal’ signage on the perimeter of the property as required to alert persons in proximity to the site of those works being undertaken. The company did not adequately prepare an asbestos removal control plan before the ACM removal work commenced. The company also failed to comply with the requirement to notify property occupiers in proximity to the ACM removal site that ACM works were being undertaken. When Workplace Health and Safety Queensland (‘WHSQ’) inspectors attended, the ACM on site was not adequately contained and labelled as required. The two directors of the company held responsibility to ensure that the company complied with these requirements, which it did not.

In sentencing the three defendants, Magistrate Ryan noted that the risks from asbestos and associated illnesses are well-documented, as are the methods for the safe handling and removal of that material. The defendants were licensed asbestos removalists and were well-aware of the safe methods for removal of the material. These were not followed. Her Honour noted that failure to comply with the rules for safe removal of asbestos can result in devastating effects for persons who acquire a related illness, including either of the defendants who had carried out this work at the worksite. Her Honour noted there was a heavy onus on all three defendants to keep this work site safe.

Her Honour noted the three defendants’ timely guilty pleas, their absence of previous convictions for any work health and safety breach, and that they had engaged a contractor at their own cost to remediate the contaminated worksite. Her Honour also noted the company was no longer engaged in demolition or asbestos removal works and was moving towards deregistration.

In sentencing the directors, Her Honour observed that no contamination was found outside the property boundary. Her Honour considered that general deterrence must be considered when determining the appropriate penalty, with specific deterrence less relevant given the company and its directors were no longer involved in this type of work. Her Honour also noted that the maximum penalty, observing that it was a substantial amount, clearly showed the legislature’s view as to the seriousness of the breach. Finally, her Honour noted that it was the two directors who attended the worksite and carried out the demolition works.

Her Honour commented that the defendants had good work histories, also accepting from affidavit material filed by the defendants that the proceedings had negatively affected their health and finances. Her Honour declined to record convictions based on the lack of prior history of offending by any of the defendants.

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