Prosecution Details

Being the main contractor at a workplace, failed to ensure that asbestos work at the workplace involving more than 10 m2 of non-friable asbestos-containing material was done by the holder of an unrestricted licence or a restricted licence or a person employed or otherwise engaged by the holder of an unrestricted licence or a restricted licence contrary to regulation 5.45(2A) of the Occupational Safety and Health Regulations 1996 (WA) (Regulations).

As at 21 and 22 September 2011, the Accused's name was Fencing Unlimited Pty Ltd (ACN 105 353 580).  The Accused changed its name to Maasprop Pty Ltd (ACN 105 353 580) on 17 July 2012.

As at 21 and 22 September 2011, the Accused was a corporation principally engaged in the manufacture of fencing. The Accused engaged subcontractors to remove existing fencing and install new fencing.

The Accused itself was engaged by the owner of 6 Houston Crescent, Bunbury, to remove the existing corrugated cement fence on the boundary between 6 and 8 Houston Crescent and replace it with colourbond fencing. The existing fence was at least 26 m long and approximately 1.4 m above ground and 0.6 m below ground.

The Accused was aware that the existing fence contained asbestos. The Accused did not hold an asbestos removal licence under the Regulations.

The Accused subcontracted Donald Graham (t/a Distinctive Fencing) to remove the existing fence and install the new fence. Although Mr Graham indicated to the Accused that he was capable of removing asbestos fencing and that he had done so in the past, in fact Mr Graham did not hold an asbestos removal licence under the Regulations. The Accused failed to enquire whether, or otherwise confirm that, Mr Graham held the relevant licence.

On 21 September 2011 Mr Graham began work on removing the existing fence by breaking off the aboveground portion, leaving the belowground portion unremoved and scattering small fragments of fencing on the ground.  This is contrary to Parts 9.5.2 and 9.10 of the Code of Practice for the Safe Removal of Asbestos 2nd edition (Code).

Overnight from 21 to 22 September 2011, Mr Graham left the removed aboveground portion of fencing uncovered in the backyard of 6 Houston Crescent.  This is contrary to Part 9.10 of the Code.

Mr Graham continued work on the remaining portions of the existing fence on 22 September 2011. On neither 21 nor 22 September 2011 did Mr Graham wet the fence to prevent generation of asbestos dust, contrary to Part 9.5 of the Code; nor did he wear appropriate respiratory protective equipment, contrary to Part 9.7.1 of the Code, or erect barriers and warning signs in the area, contrary to Part 9.2 of the Code.

In fact, at the time Mr Graham was entirely unaware of the existence of the Code.

When the Accused was contacted by WorkSafe on 22 September 2011, it immediately engaged a licensed operator to remedy the situation and complete the removal of the existing fence.

In a voluntary interview, a director of the Accused (who is no longer associated with the Accused) explained that Mr Graham was originally engaged because the Accused's preferred operator was not immediately available.

The Accused cooperated with WorkSafe with all stages of the investigation and prosecution.

The Accused entered a guilty plea and was convicted.