On 15 September 2023, a company that operated a business as a principal contractor of commercial construction projects was sentenced in the Brisbane Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty pursuant to section 19(1) of the Act.

The defendant was engaged as the principal contractor for a project involving the supply and installation of air conditioning units at a State School. After being awarded the contract for the project, the defendant was provided with a copy of the asbestos register for the school. That register specifically identified that the ceiling sheeting of a number of classrooms, had been confirmed to contain asbestos. The defendant made enquiries with an asbestos removal contractor to have asbestos removed from specific rooms, but this was not progressed due to time constraints.

The defendant engaged a Site Foreman to oversee the day-to-day works at the school and to give directions and instructions to sub-contractors on site. A proposed schedule for works was prepared by the defendant and provided to subcontractors. That schedule was colour-coded to show the rooms that were known or suspected to contain asbestos, but it did not indicate the specific location of asbestos in each room. As part of the installation work, holes needed to be cut in the ceiling of classrooms to allow workers to access the ceiling cavity and install air-conditioning units and associated cabling.

On 10 March 2020, the Site Foreman directed a worker to cut access panels in the ceiling of a classroom, which contained asbestos. The worker cut four square holes in the ceiling using a power tool and handsaw and, in doing so, created dust. He wore a mask while making the cuts, but did not use any dust suppression and did not wear protective clothing. After cutting at least one of the panels, the worker took a piece of the cut ceiling sheeting to the Site Foreman as he thought it could be asbestos. The Site Foreman indicated there was no asbestos in the ceiling and directed that the worker continue to cut out the panels, which he did until another worker instructed him to stop.

The defendant was charged with a Category 2 offence on the basis it failed to ensure, so far as reasonably practicable, the health and safety of workers by:

1. Failing to provide all subcontractors with the asbestos register for the workplace, or a document with equivalent detail;
2. Directing, through the Site Foreman, that work be conducted on the ceiling in room A011, in circumstances where it was aware the ceiling panels contained asbestos; and
3. Failing to ensure appropriate measures, were implemented to manage the hazard and risk associated with asbestos exposure.

There were reasonably practicable control measures the defendant could have implemented to eliminate or minimise the risk, namely ensure a system of work was implemented that removed the need to cut holes in the ceiling, such as replacing ceiling panels, or prohibiting the performance of the work until appropriate measures were implemented to manage the hazard and risk associated with asbestos exposure. The failure by the defendant to comply with its duty exposed the worker who cut the holes to a risk of death or serious illness.

In sentencing the defendant, His Honour Magistrate Pinder had regard to the relevant factors at section 9 of the Penalties and Sentences Act 1992 including the need to punish the defendant and to make it clear that the community denounces the defendant’s conduct. His Honour accepted that general deterrence was significant sentencing consideration in the circumstances and had regard to the maximum penalty for the offence, which indicated the seriousness of the offence.

His Honour applied the factors referred to by her Honour Judge Fantin DCJ in the matter of Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20. His Honour observed the risk was obvious, clearly identifiable, and foreseeable. The defendant was aware that asbestos was in the ceiling and this was not drawn to the attention of the worker. The risk could have been eliminated or minimised at relatively minor cost and inconvenience. The risk was identified as being relatively serious and the offending fell in the middle of the range of Category 2 offending.

Regard was had to the transcript of sentencing remarks of two prior Magistrates Court matters involving asbestos-related Category 2 offences. His Honour observed that both of those matters were more serious than the present case and concerned a longer period of exposure.

In mitigation, his Honour had regard to the defendant’s cooperation with the investigation and the post-incident steps taken. The defendant was noted to be a good corporate citizen and active participant in the industry. It was accepted that the defendant’s plea was an early plea, noting that amendments had been made to the particulars in the complaint. The defendant had no prior convictions at the time of the offending, but had been convicted in 2022 of a Category 2 offence in relation to offending that post-dated that of the present charge.

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