On 9 April 2024, a company was sentenced in the Southport Magistrates Court for breaching section 300(1) of the Work Health and Safety Regulations 2011 (‘the Regulation’). The defendant company’s director pleaded guilty to failing to put in place arrangements to ensure high risk construction work was carried out in compliance with its safe work method statement (‘SWMS’) at its workplace.

The defendant company conducted a business of providing civil construction services to various locations within Queensland. On 25 October 2023 it was providing these services at a large housing construction workplace located at Upper Coomera.

On this date Workplace Health and Safety Queensland (‘WHSQ’) Inspectors attended at Upper Coomera to undertake a compliance audit of the workplace. The inspectors observed a large excavator being operated within the workplace and observed it to be excavating along a rock wall, abrading the edge of that wall. The inspectors observed the excavation works to be generating dust, which was dispersing, uncontrolled, around the workplace. From their experience the inspectors reasonably believed the rock wall to be comprised of sandstone which they knew to have an element of crystalline silica present.

Dust generated from Crystalline silica is hazardous if inhaled by humans and sandstone is a known material to contain RCS (respirable crystalline silica) – reference to this hazardous material and controls to be implemented (including in construction works where plant is used) to address the risks therefrom are contained in the ‘Managing respirable crystalline silica dust exposure in construction and manufacturing of construction elements’ Code of Practice 2022.

The inspectors approached the excavator operator and requested he stop his work activities. They had a discussion with this person and another worker where both workers stated they worked for the defendant company. Upon being asked by the inspectors if they knew the silica content of the rock wall he was excavating, the plant operator stated he did not.

The inspectors undertook inquiries with the defendant company which included a request to be provided with the SWMS for the excavation works at the workplace. The document detailed, in part, a water truck is to be used during any dust creation activities to reduce dust levels. There was no evidence of a water truck being utilised to suppress the dust being generated by the excavator works. Nor was there any evidence of any other form of dust suppression evident.

In sentencing, his Honour took in to account the statement of facts outlining the offending and observed that silica dust exposure was a serious hazard though he noted the exposure was a one-off, over a very short period of observation by the inspectors. He noted that any penalty to be imposed ought to take in to account an element of general deterrence.

His Honour noted the defendant company’s SWMS had been significantly amended post incident to incorporate specific reference to silica exposure and the controls to be implemented along with the defendant company organising training for its workers in silica exposure hazards within the construction works it undertook. The company had further implemented tool box talks around this subject as well as auditing its own safety management systems.

His Honour noted the company had entered an early plea, on the second mention of the matter, and the defendant company was entitled to a discount on the penalty to be otherwise imposed.

His Honour further noted that there was no direct evidence of silica being present in the stone wall being abraded. His Honour accepted the company was aware of the likely presence of silica in the rock wall as this was accepted by the defendant company’s director who was present and acknowledged this fact at the sentence hearing.

His Honour noted the defendant company had no previous convictions for any health and safety breach and he imposed the penalty noted above. His Honour exercised his discretion not to record a conviction.

OWHSP contact: enquiries@owhsp.qld.gov.au