On 13 May 2024, an asbestos removal company was sentenced in the Toowoomba Magistrates Court for three breaches of the Work Health and Safety Act 2011 (‘the Act’) (committed between 1 September 2021 and 11 September 2021). The defendant was charged with two breaches of section 33 of the Act, having failed to comply with its primary health and safety duty to both workers and other persons, and one breach of section 43(2) of the Act, having allowed a worker to carry out work they were not authorised to carry out.

In August 2021 renovation works were being undertaken in the Unit of a Hospital in Toowoomba when the contractor discovered vinyl flooring, suspected of containing asbestos, underneath the carpet in one of the rooms. The Hospital’s asbestos register did not identify the room but did advise that there was vinyl flooring containing asbestos in the Unit. The contractor removed a section of the room’s floor for testing and the results confirmed that it was asbestos backed vinyl floor sheeting containing chrysotile asbestos. This type of flooring contains no asbestos in the vinyl itself, however the backing would have been 80% to 100% asbestos and was classified as friable.

The Hospital’s project manager was informed that the product was friable and required a Class A licence holder to remove it using Class A asbestos removal methods. A quote was provided by an asbestos removal company to perform this work.

The quote was not accepted and the project manager approached the defendant. On or about 1 September 2021, the defendant’s director attended at the Hospital. The director held a Class B licence and although he had prior experience removing vinyl tiles, he had not removed vinyl sheeting before.

The defendant performed a visual inspection of the vinyl and a small portion of the floor was lifted with a scraper to see if any asbestos, which could potentially be crushed into a fine dust, could be observed. The defendant also reviewed the Hospital’s asbestos register.

The project manager told the defendant that the flooring was textile backed, had been tested, and that chrysotile asbestos fibres had been detected. Although the defendant was also provided with a copy of the lab report, it did not specify whether the asbestos was friable or non-friable.

The project manager did not inform the defendant that other persons had identified the work as requiring Class A removal methods, nor did he advise that a quote had been previously provided on that basis.

The defendant erroneously concluded that the asbestos was non-friable and therefore they could perform the removal. The defendant was engaged by the Hospital and carried out the removal work between 6 and 7 September 2021 using Class B removal methods.

Whilst it was not alleged to have actually occurred, by using Class B methods to remove friable asbestos, there was the potential for both the defendant’s workers and other persons, including hospital staff, to be exposed to the risk of breathing in airborne asbestos particles.

Post removal the defendant engaged a licenced asbestos assessor who performed a visual inspection and issued a clearance certificate certifying that all asbestos contaminated materials had been removed, no residual fragments or debris were sighted on the ground, and the area was safe for reoccupation.

After reviewing photographs of the room, which showed that the adhesive used to stick the vinyl sheeting to the concrete floor was still present, the original contractor raised concerns that the room was still contaminated with asbestos; further testing confirmed this to be the case.

The defendant entered a plea of guilty and was sentenced by Magistrate Shephard.

In arriving at her sentence, her Honour had regard to the maximum penalty for the offences and observed that whilst specific deterrence was of less weight in this matter, general deterrence was a key consideration in determining the appropriate penalty to be imposed.

Magistrate Shephard accepted that the defendant did take steps to check whether the asbestos was friable and was not intentionally deceitful in categorising the removal work as suitable for Class B removal methods. However, given that the defendant had not previously worked with this type of flooring, Her Honour found that more needed to be done, such as taking a sample of the floor and having it tested.

Her Honour observed that it was not a failure to carry out the work in accordance with Class B removal methods, but that the defendant had failed in their duty because the removal required Class A methods to be conducted safely.

In mitigation the Court had regard to the fact that the defendant was otherwise a good corporate citizen and her Honour accepted that both before and after the incident the defendant had a genuine and proper regard to health and safety matters. Her Honour further noted the post incident steps taken by the defendant and the additional training undertaken by the director which was passed along to the defendant’s other workers.

The Court also took into account that the defendant had cooperated with the investigation and entered an early plea of guilty. Particular weight was given to the fact that, prior to the sentence, the defendant had cooperated in the trial of the asbestos assessor who was also charged in relation this matter.

Her Honour fined the defendant $15,000. No conviction was recorded.

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