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Prosecution Details

Defendant SGS Australia Pty Ltd (ACN 000 964 278)
Regulation 5.43
Offence Date 16 June 2010
Description of Breach(es)

Being an employer at a workplace, failed to ensure that the presence and location of asbestos at the workplace was identified, contrary to regulation 5.43 of the Occupational Safety and Health Regulations 1996.

Background Details

The Accused is a corporation that provides inspection, verification, testing and certification services.

The Accused's main headquarters in Australia is located at 10 Reid Road, Perth Airport / Newburn (Newburn Site). One of the services provided by the Accused at the Newburn Site is laboratory testing for asbestos.

The Accused also operates from about 70 other sites across Australia, including premises located at 80 Railway Parade, Queens Park (Queens Park Site), which the Accused owns.

Queens Park Site

The Accused's operations at the Queens Park Site include geochemical services, such as sample analysis of iron ore. The geochemical services (Geochem) division has been operating at the Queen's Park Site since about 2008. The Accused's oil, gas and chemical (OGC) division and environmental division operated from the Queens Park Site until about 2007, before relocating to the Newburn Site.

The Queens Park Site comprises a main laboratory, a sample preparation shed and a yard area adjacent to a car park. There is also a redundant laboratory on the site which has been closed off and locked up to prevent access.

The Queens Park Site was built in the 1980s when the use of asbestos in construction was not yet prohibited.

Coffey Environments Report

In response to an Improvement Notice issued by a WorkSafe inspector on 16 June 2010, the Accused commissioned an expert Hazardous Materials Assessment Report for the Queens Park Site (Report), at a cost of $2,098.58.

The Report identified asbestos-containing materials in various parts of the Queens Park Site.

One place was the electrical switchboard room, in which the ‘risk scores' assigned were variously 7 and 10 out of 15: low and medium risk, respectively.

In respect of the medium-risk material (which contained non-crocidolite amphibole asbestos), the Report noted that associated debris was visible in this area and rated the "likelihood of disturbance" as "routinely disturbed". The Report recommended that access to the area be restricted and the material managed and removed under fully controlled conditions, the highest level of action rating.

In respect of the low-risk material, associated with the electrical mounting board, the Report identified the material as: containing chrysotile (white) asbestos (which is less toxic / carcinogenic than amphibole asbestos); exhibiting significant breakage / many areas of damage revealing loose asbestos fibres but no visible debris; and the likelihood of disturbance was classed as "easily disturbed". There was evidence that some drilling into the mounting board had occurred. The Report recommended periodic management and re-inspection of the mounting board, the lowest level of action rating for asbestos-containing areas.

The Accused's employees had been restricted from accessing the electrical switchboard room at the Queens Park Site. The only persons known to have accessed the electrical switchboard room were electricians periodically engaged by the Accused to carry out maintenance work since at least the year 2000.

The Report also identified materials, rated at low to medium risks, in various other parts of the Queens Park Site, some of which was accompanied by associated debris. In relation to the medium risk material, the Report recommended that access to the area be restricted and the material managed and removed under fully controlled conditions, the highest level of action rating.

In the majority of the locations where asbestos was identified, the Report did not recommend immediate removal because the asbestos-containing material was stable, inaccessible and damage was unlikely. This included asbestos-containing material located in the redundant laboratory, to which access had been restricted, and in an old lunch room which was no longer in use.

Subsequent to 16 June 2010, the Accused engaged a licensed contractor to remove asbestos-containing material from the Queens Park Site in line with the Report's recommendations, at a cost of $1,386.00.

Audits

The Accused had undertaken a range of external and internal safety audits of the Queen's Park Site prior to the Report, but had not previously identified the presence of asbestos.

In 2005, the OGC division of the Accused commissioned an external risk assessment for the Queens Park Site to be undertaken by a risk assessors company. This audit identified hazards and safety risks associated with various tasks carried out at the Queens Park Site. This assessment did not identify asbestos as a hazard or risk.

The Accused had a system for annual internal safety audits of all its sites, which included consideration of whether an asbestos assessment has been conducted. An internal safety audit was undertaken in July 2006 by a member of the Accused's safety management team. This audit reported that an asbestos assessment had been conducted for the Queen's Park Site, on the basis of verbal reports from site management, but did not cite any documentary evidence of it. The Accused has not been able to produce evidence of this assessment.

In 2007, a manager of the Accused who was working in the OGC division at the Queens Park Site at the time, identified material that he suspected was asbestos and collected some samples of this material for testing. The samples were tested by the Accused's Newburn laboratory and the report, approved by Ms White, indicated that the material did not contain asbestos. 

In 2007 the OGC division moved out of the Queens Park Site. The Accused commissioned WSP Australia to do an environmental assessment of the Queens Park Site, in anticipation of selling the Queens Park Site. It was intended that as part of this assessment, WSP Australia would carry out a survey and analysis of environmental contamination on the site, including surveying for asbestos. However, shortly after this the Accused decided not to sell the Queens Park Site so that the Geochem division could commence operations there, and consequently the WSP assessment did not take place.

In November of 2008, an occupational health and safety coordinator employed by the Accused in the Geochem division conducted a Safety Review of the Queens Park Site to identify any OSH issues requiring rectification prior to the Geochem division commencing operations there. This process did not identify or address the possible presence of asbestos-containing materials at the Queens Park Site. The OSH coordinator held a Certificate 4 in OHS, and was studying for a Bachelor of Occupational Health and Safety, in the course of which she had received some instruction in relation to asbestos identification and management in buildings. She had not been specifically directed to address the possible presence of asbestos during the Safety Review, and was not familiar with or formally qualified in the process of identifying asbestos.

Another health and safety officer employed by the Accused, who held a Bachelor's Degree in Health and Safety, as well as a Post Graduate Diploma, performed an internal safety audit of the Queens Park Site, dated 17 February 2009. In that audit the item described as 'asbestos assessment' was deemed to be 'not required', and so was not followed up by the officer, who had not been advised by the Accused as to the potential presence of asbestos. Although he had received instruction on asbestos identification and management in buildings in the course of obtaining his qualifications, he was not familiar with or formally qualified in the process of identifying asbestos.

Improvement Notices

WorkSafe had previously issued Improvement Notices referring to the Accused's failure to ensure that the presence and location of asbestos was identified at its workplaces at 50 Murray Road, Welshpool, 52 Murray Road, Welshpool, and 82 John Street, Welshpool (Asbestos Notices).

The Accused had notified WorkSafe that it had duly complied with each Asbestos Notice. The Welshpool site was decommissioned by the Accused in about 2008/2009.

The Accused's system was that Improvement Notices issued by WorkSafe were collated and managed by its central QHSE (Quality, Health, Safety & Environment) team. Improvement Notices were disseminated within the business to different divisions if they were deemed relevant to the divisions' operations by the QHSE team.

All Improvement Notices were lodged on an intranet system, which had been introduced by the Accused in about 2006, but the Accused did not have a system to ensure that responsible persons for all its sites were made aware of Improvement Notices issued by WorkSafe in respect of any other site.

In particular, as at 16 June 2010, the Accused had not ensured that a responsible person for the Queens Park Site was informed of the Asbestos Notices.

As a result, the Accused had not ensured that the presence and location of asbestos was identified at the Queens Park Site.

Since 2010, the Accused has introduced a system whereby all Improvement Notices are logged in a national register, and all Improvement Notices are disseminated to the General Managers of the respective divisions, for action as they deem appropriate.

The Accused has also commissioned asbestos surveys in a number of its other sites in Australia.




Outcome Summary

The Accused entered a guilty plea and was convicted.

Conviction Date 16 May 2014
Court Magistrates Court of Western Australia - Perth
Fine $5,500.00
Costs No costs
Charge Number PE13313/13