MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Agius v Sana Benchtop Installation Pty Ltd; Agius v Martin Mailei

[2025] ACTMC 18

INDUSTRIAL LAW - Work Health and Safety - Category 3 offence - crystalline silica exposure - guilty findings

Work Health and Safety Act 2011(ACT), ss 12A, 17, 18, 19, 28, 33, 244A

Work Health and Safety Regulation 2011 (ACT), ss 418B, 418A

Kirk v Industrial Court of New South Wales [2010] HCA 1

Orr v Hunter Quarries Pty Limited [2019] NSWDC 634

SafeWork NSW v Scharfe [2021] NSWDC 260

WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67

WorkCover Authority of New South Wales (inspector Gordon) v Gregory Ronald Wallis

Managing Silica Dust at Construction Sites, WorkSafe ACT guidance note, January 2022

1. The Defendants, Sana Benchtop Installation Pty Ltd (Sana Benchtop) and its director Martin Mailei, are charged with Category 3 Work Health and Safety offences contrary to s 33 of the Work Health and Safety Act 2011 (WHS Act). The offences are strict liability offences (s 12A, WHS Act).
2. The charges arise from work undertaken by Mr Mailei (for Sana Benchtop) in 2023 when he cut engineered stone benchtops at the 'Del Ray' apartment complex in Coombs (the Work Site). It is alleged that, on 19 January 2023, Mr Mailei dry cut the engineered stone that he had installed in the laundries of eight of the units at the Work Site, which posed a risk to the health and safety of persons at the Work Site as a result of exposure to silica dust.
3. Sana Benchtop is also charged with contravening the Work Health and Safety Regulation 2011 (WHS Regulation), which required that particular control measures be adopted when cutting engineered stone. However, this charge was a back-up charge to the primary charge of contravening the WHS Act.

1. As is the case in all criminal prosecutions, the Prosecution bears the onus of proving the guilt of the Defendants. While the Defendants did not contest the charges, they did not have to prove that they did not commit the offences with which they were charged. Similarly, while neither Defendant gave evidence during the hearing, no inference, adverse to them, can be drawn from that fact. I have had regard to the statement that Mr Mailei gave during the WorkSafe ACT investigation.
2. The standard of proof the Prosecution must meet is proof beyond reasonable doubt. The Defendants cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of their guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Defendants, or I am unsure of where the truth lies, then I must find that the charges have not been proved to the standard of proof required by law.
3. I also note that, while I have referred to the Defendants collectively, I must consider the case against each Defendant separately when considering my verdicts. I will return a separate verdict in respect of each individual defendant.

1. Chase Construction (ACT) Pty Ltd (Chase Construction) was responsible for the construction of the Del Ray apartment complex in Coombs. In August 2021, it engaged Jason Marble & Granite Pty Ltd (Jason Marble) to supply and install stone benchtops in the individual units. Jason Marble supplied engineered quantum quartz stone benchtops for the laundries in the relevant units, which it had cut to size at its factory.
2. Working with quantum quartz engineered stone is potentially hazardous. The crystalline silica content of the stone used for the relevant benchtops exceeds 88% and dust created when the product is cut, grinded or machined may contain respirable crystalline silica (RCS). Known risks to health from exposure to silica dust include silicosis, bronchitis, emphysema, lung cancer, kidney damage and scleroderma.
3. While brief exposure to RCS is likely to pose a lower risk of adverse health conditions than longer-term exposure, even short-term exposure to high levels of silica dust can lead to serious conditions. Health risks from brief exposure depends on several factors, including the concentration of airborne silica dust, the duration of the exposure and the affected individual's susceptibility.
4. Given these risks, the manufacture, supply and installation of engineered quartz stone benchtops (and other surfaces) was banned from 1 July 2024. While its use was still permitted at the time it was installed at the Del Ray apartment complex, preventative steps needed to be taken to eliminate or minimise the risk of exposing people at the Work Site to the inhalation of silica dust.
5. In January 2022, WorkSafe ACT issued a guidance note, 'Managing Silica Dust at Construction Sites', which outlined the risks associated with silica dust and the ways in which those risk could be managed through a hierarchy of controls. Level 1 (eliminating the risk of exposure by using materials that do not contain crystalline silica) provided the highest level of protection and Level 6 (using respiratory protective equipment) provided the last line of protection, being employed to reduce the remaining risk once the available steps in Levels 2 to 5 had been taken.
6. The Level 4 control was aimed at reducing the risk of exposure by using engineering controls. Examples of those controls were:

(a) no dry cutting (use wet methods);

(b) use on-tool water suppression technology or dust extraction;

(c) use well-positioned local exhaust ventilation; and

(d) use H or M-class vacuums.

1. The risk of a person at the Work Site inhaling silica dust needed to be managed by persons conducting a business or undertaking (PCBU) and workers at the Work Site in accordance with the general Work Health and Safety obligations imposed by the WHS Act. In addition, the WHS Regulation imposed specific obligations on PCBUs with respect to the cutting of engineered stone. They reflected the engineering control measures which had been identified in the 'Managing Silica Dust at Construction Sites' guidance note.
2. Section 418B of the WHS Regulation, which commenced in November 2022 (and remained in the WHS Regulation at the relevant time), prohibited a PCBU from directing or allowing a worker to cut engineered stone with a power tool unless:

(a) a water delivery system supplying a continuous feed of water over the cutting area was used to suppress airborne crystalline silica produced by the cutting; and

(b) at least one other crystalline silica control measure was used.

1. Under s 418A, the other prescribed crystalline silica control measures were, relevantly:

(a) a wet dust suppression method;

(b) the attachment of a Class H vacuum to the tool used for cutting;

(c) the use of a local exhaust ventilation system; and

(d) the isolation of the place where the cutting occurs from other workers.

1. Consistently with the above requirements of the WHS Regulation, Jason Marble required that a number of control measures be taken with respect to the installation of stone benchtops at the Work Site. They were set out in two site safety documents.
2. A 'Job Safety Analysis' document provided that no dry cutting was to be done at the Work Site and a 'Work Instruction' document provided that:

(a) where elimination of RCS work processes was not practicable, it was necessary to use a tool extraction fitted directly onto the tool and water attachment to supress dust;

(b) wet cleaning methods needed to be used, at the right levels for the whole time that the work was being carried out;

(c) it was necessary to separate the RCS work process from other work areas and to restrict access (create an exclusion zone, use barricades and signage);

(d) it was necessary to clean up dust with an M or H-class industrial vacuum cleaner; and

(e) in combination with higher level controls, it was necessary to use a respirator with at least P1 filtration in accordance with the relevant Australian standard.

1. In August 2022, Jason Marble engaged Sana Benchtop to install benchtops at the Work Site. Mr Mailei signed the Job Safety Analysis document and the Work Instruction document, acknowledging the stipulated control measures.
2. On 19 January 2023, Mr Mailei installed the engineered stone benchtops into the laundry cupboards of eight units at the Work Site. Subsequently, one of the plumbers engaged at the site, Mr Lenffer, realised that the benchtop in one of the units had been cut incorrectly because the sink he was trying to install did not fit. He identified that more stone needed to be cut from each of the stone benchtops in the eight units.
3. The site foreman for Chase Construction raised the issue with Mr Mailei and they agreed to meet at the Work Site to discuss a solution. The foreman advised Mr Mailei that action would need to be taken that day before the silicone used to adhere the benchtops had cured. He wanted the benchtops to be removed and cut off-site.
4. Mr Mailei returned to the Work Site that day, but he did not meet with the site foreman. Instead, he went to each of the units and carried out dry cuts of the stone benchtops in each of the units using an angle grinder (a power tool). There is inconsistency in the evidence as to whether Mr Mailei's angle grinder had an attached vacuum but I have proceeded on the basis of his statement that it did and that he isolated each unit by locking the door of the unit while he was working in it. However, he did not utilise any ventilation and, critically, he did not use any wet methods or water suppression techniques. The only protection Mr Mailei used was a respirator mask.
5. It is clear that Sana Benchtop (through Mr Mailei) failed to comply with its obligations under s 418B of the WHS Regulation and, similarly, failed to adhere to the control measures identified in Jason Marble's safety documents. There is no doubt that Sana Benchtop was, at the relevant time, a PCBU.
6. On Mr Mailei's exit from one of the units he was seen by two plumbers on site (including Mr Lenffer) (the Affected Persons) to be covered in white dust. Mr Mailei walked passed the Affected Persons on exiting the unit. There were also tilers at the Work Site at the time, however there is no evidence that they were near the relevant units.
7. The Affected Persons were at the Work Site to undertake fit-off tasks. They entered the unit and observed a haze of dust, in response to which they covered their noses with their shirts. Mr Lenffer, the more senior of the plumbers, remained in the unit for a short time to take photos for an incident report, while the more junior plumber, Mr Craig, left the unit immediately.
8. Mr Lenffer could immediately smell and taste the silica dust when he entered the unit. It felt like it was burning his nostrils. He started coughing once he was outside the unit.
9. The haze of dust seen by the Affected Persons, and the film of dust they saw on the benchtops and tap fittings, indicated a high concentration of airborne dust. Dr Warren Harrex, a consultant occupational and environmental physician engaged by WorkSafe ACT as part of its investigation, said that Mr Mailei's use of a respirator mask provided some level of protection but is unlikely to have been sufficient given the high levels of dust generated and the lack of ventilation. Dr Harrex considered that the plumbers' use of their shirts to cover their noses would have been ineffective in reducing exposure to harmful particles.
10. Dr Harrex opined that the exposure of Mr Mailei to RCS was moderate to high. Dr Harrex said that the silica exposure of Mr Lenffer is likely to have been low to moderate given the high concentration of airborne dust but the short period of time he was in the unit. Dr Harrex said that the exposure of Mr Craig was minimal given the brief period of time he was in the unit. Dr Harrex said that it is most unlikely that there was any risk to his health from such short-term exposure.
11. I accept the opinions of Dr Harrex.

1. Under s 33 of the WHS Act, a person commits a Category 3 offence if the person fails to comply with a health and safety duty. A health and safety duty includes the duty imposed on PCBUs by s 19 of the WHS and the duty imposed on workers by s 28 of the WHS Act.

1. As a PCBU, Sana Benchtop owed a 'primary duty of care' under s 19 of the WHS Act to workers and others. One aspect of that duty was the need to ensure, so far as was reasonably practicable, that the health and safety of other persons was not put at risk from work carried out as part of the conduct of the business or undertaking (s 19(2), WHS Act).
2. Under s 17 of the WHS Act, the duty imposed on Sana Benchtop to ensure the health and safety of others required it to eliminate risks to health and safety, so far as was reasonably practicable and, if that was not reasonably practicable, to minimise the risks so far as was reasonably practicable. In determining what was reasonably practicable, s 18 of the WHS Act required that regard be had to all the circumstances, including:

(a) the likelihood of the hazard or the risk concerned occurring;

(b) the degree of harm that might result from the hazard or risk;

(c) what the person concerned knows, or ought reasonably to know about the hazard or risk and ways of eliminating or minimising the risk;

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

1. Under s 33 of the WHS Act, a person commits a Category 3 offence if the person fails to comply with a health and safety duty (including the duties in ss 19 and 28 of the WHS Act).
2. Accordingly, the Prosecution must prove that:

(a) it was reasonably practicable for Sana Benchtop to ensure the health and safety of the persons alleged to be at risk; and

(b) Sana Benchtop failed to take reasonably practicable steps to ensure the health and safety of those persons.

1. Under s 244A of the WHS Act, the conduct engaged in by Mr Mailei (including both his acts and omissions) is taken to have been engaged in by Sana Benchtop with respect to the physical elements of the offence with which Sana Benchtop was charged.
2. I note that it is not necessary for the Prosecution to establish that a person has suffered harm, or that a person has been exposed to a risk of harm, for a PCBU to have breached the duty identified in s 19 of the WHS Act (Kirk v Industrial Court of New South Wales [2010] HCA 1 at [13]). It is the existence of the risk, and the failure to take reasonably practicable steps to eliminate (or, if that is not reasonably practicable, minimise) the risk that constitutes a breach of s 19 of the WHS Act.
3. Thus, while an incident causing harm may be evidence of the presence of a risk, it is not necessary that there has been an incident in order to establish a breach of s 19 of the WHS Act. A distinction must be drawn between the specific risk that manifested in the incident and the general class of risk on which the analysis must focus. Risk in this context means the possibility of danger and not necessarily actual danger (Orr v Hunter Quarries Pty Limited [2019] NSWDC 634 at [14] - [16]) although the likelihood of the danger arising is a relevant consideration under s 18 of the WHS in determining what control measures were reasonably practicable in the circumstances.

1. Mr Mailei was, in addition to being the director of Sana Benchtop, a worker. Under s 28 of the WHS Act, Mr Mailei was required to take reasonable care to ensure that his acts or omissions did not adversely affect the health and safety of other persons.
2. That duty is complimentary to the duty owed by a PCBU under s 19 of the WHS Act. It imposes obligations on a worker 'to assist a PCBU to ensure safety, so far as that is reasonably practicable, by co-operating in the elimination or minimisation of risk' (SafeWork NSW v Scharfe [2021] NSWDC 260 (Scharfe) at [97]). However, a worker does not have to exercise reasonable care to eliminate or minimise all risks to another person at the workplace. A worker is only obliged to exercise reasonable care not to expose a person to a risk to their health and safety as a result of the immediate conduct of the worker (Scharfe).
3. In determining what reasonable care required in the circumstances, the question to be asked is what should, in all the circumstances, reasonably be expected of a person holding themselves out to be able to undertake the relevant work (WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 at 475). Relevant circumstances include the worker's state of knowledge, qualifications, experience and role on-site, and the extent to which it could be foreseen that the worker's act or omission would affect the health and safety of another person (Scharfe, citing WorkCover Authority of New South Wales (inspector Gordon) v Gregory Ronald Wallis (unreported, Full Bench of the Industrial Relations Commission, 1996)). The test 'is an objective one and the act or omission need not be deliberate' (Scharfe at [93]).

It was reasonably practicable for Sana Benchtop to ensure the health and safety of persons at the Work Site

1. In order to establish that it was reasonably practicable for Sana Benchtop to ensure the health and safety of persons at the Work Site, the Prosecution must identify the relevant risk with sufficient precision to determine if it was reasonably practicable to eliminate the risk or, if not, if it was reasonably practicable to minimise it (Orr v Hunter Quarries Pty Limited [2019] NSWDC 634 at [17]).
2. In this case, the Prosecution has identified the relevant risk as being the risk to the health and safety of persons at the Work Site from the inhalation of RCS as a result of the dry cutting of the stone benchtops.

1. I accept the Prosecution's submission that the risk of other persons at the Work Site, particularly the Affected Persons, inhaling RCS was a real one given the high concentration of RCS in the relevant units and the range of people at the Work Site who might have had reason to access the units.
2. It was a construction site and, as such, occupied from time to time by a range of tradespeople and people responsible for the management of the construction work at the Work Site. In particular, as Mr Mailei knew, the issue he had been asked to address was the inadequacy in the cut in the laundry benchtops because the plumbers who had been engaged to install sinks in the benchtops had been unable to do so because the sinks did not fit.
3. It was therefore likely that there would at least be plumbers at the Work Site who would seek to access the units to complete that work once Mr Mailei cut the benchtops to the correct measurements. I note that Mr Mailei in fact walked past the Affected Persons on exiting the relevant unit. There were also tilers at the Work Site.
4. Mr Mailei was also aware that the site foreman was at the Work Site and wished to talk to him about the benchtop cut issue. It is therefore possible that the site foreman may have decided to enter the units to consider the issue or find Mr Mailei at some point.

Degree of harm that might result from the risk

1. As I have explained earlier in these reasons, exposure to RCS gives rise to serious health and safety risks, including the development of silicosis, bronchitis, emphysema, lung cancer, kidney damage and scleroderma. While brief exposure to RCS is likely to pose a lower risk of adverse health conditions, even short-term exposure to high levels of silica dust can lead to serious conditions. Accordingly, the degree of harm which could result from the inhaling RCS was significant.

Mr Mailei's knowledge about the risk and ways of eliminating or minimising it

1. While Mr Mailei said that he had not undertaken industry silica awareness training, and therefore could not be expected to have complete knowledge with respect to the risks and controls required to cut engineered stone in a safe manner or in accordance with the WHS Regulation, he was a professional stonemason. He ought reasonably to have known of the health and safety risk posed by exposure to RCS and of the risk of exposure to RCS that Mr Mailei would create by dry cutting the stone benchtops.
2. The risk posed by exposure to RCS was an issue faced by the construction industry in general given the prevalence of engineered stone as a product used for benchtops in construction and renovation projects. It was a significant issue impacting many people. Nor was it a new issue, with WorkSafe ACT's 'Managing Silica Dust at Construction Sites' guidance note being issued in January 2022, before s 418B of the WHS Regulation commenced in November 2022.
3. Significantly, Mr Mailei signed two safety documents prepared by Jason Marble which had identified both the risk and the control measures. Those documents identified the problematic activity (generation of hazardous dust when sweeping, cutting, grinding etc), the practical risk (exposure to RCS) and the health risk (silicosis and other respirable diseases) and, as I have noted earlier, the range of control measures that reflected the requirements of the WHS Regulation. Critically, dry cutting of stone was not permitted at the Work Site.
4. Like Mr Mailei, Sana Benchtop (both through the knowledge of Mr Mailei as its director and as a specialist contractor which had been engaged to instal the stone benchtops at the Work Site), ought reasonably to have known of the health and safety risk posed by exposure to RCS and had knowledge of the information contained in the Jason Marble safety documents that Mr Mailei signed.

Availability and suitability of ways to eliminate or minimise the risk

1. Sana Benchtop was (through Mr Mailei) required to comply with its obligations under s 418B of the WHS Regulation and to adhere to the control measures identified in Jason Marble's safety documents. There were a control measures that Sana Benchtop could, and should, have adopted.
2. Firstly, Mr Mailei could have removed the stone benchtops from the units and cut them off-site. This control measure would have eliminated the risk to people at the Work Site.
3. Removing the benchtops to have them cut off-site is what the site foreman wanted Mr Mailei to do and was the reason he asked Mr Mailei to return to the Work Site on the relevant day, before the silicon used to adhere the benchtops had cured. Further, no special equipment was necessary to remove the benchtops. The silicon could have been cut and the benchtops removed. In this respect, I note that the benchtops were installed in the laundry cupboards and were not particularly big. They could have been carried by Mr Mailei.
4. Secondly, Mr Mailei should have used a water delivery system supplying a continuous feed of water over the cutting area to suppress airborne crystalline silica produced by the cutting. This was a legal requirement under the WHS Regulation and was also required by Jason Marble's safety documents. This control measure would have at least minimised the risk to people at the Work Site.
5. It is not clear if water had been connected to the units in which Mr Mailei was working but, even if it had not, there were other options available to Mr Mailei such as pouring water from a water bottle or using a backpack water supply with either a battery-operated pump or water sprayer. The cost of these options would have been around $500.
6. Thirdly, Mr Mailei could have informed the Affected Persons that he had carried out dry cutting of the benchtops and warned them not to enter any of the units he had been working in. He could have done so verbally or, had he thought more proactively about the issue, he could have erected barricades or put up warning signs. Barricades and warning signs would have protected everyone at the site and not just the Affected Persons.
7. While this control measure would still have required that other steps be taken to remove the silica dust (as Mr Mailei had to take in any event), it would have avoided the Affected Persons being exposed to the silica dust. The erection of barricades and warning signs would have provided time for the silica dust to settle and be removed before anyone else entered the units.

Cost associated with the ways of eliminating or minimising the risk

1. None of the control measures identified above were costly and it is clear that, when regard is had to the likelihood of the risk eventuating and the degree of harm that might result from the occurrence of the risk, the cost was not disproportionate to the risk.

1. Having regard to the above reasons, I am satisfied that it was reasonably practicable for Sana Benchtop to ensure the health and safety of persons at the Work Site. As I have identified, there were a range of available reasonably practicable control measures which would have eliminated, or at least minimised, the risk to the health and safety of people at the Work Site from Mr Mailei's cutting of the stone benchtops, one of which was both legally mandated and required by Jason Marble's safety documents.

Sana Benchtop failed to take reasonably practicable steps to ensure the health and safety of persons at the Work Site

1. By dry cutting the stone benchtops without water suppression, in a room without ventilation, Mr Mailei caused the unit the Affected Persons walked into (and, no doubt, the other units he had worked in) to have a high concentration of airborne silica dust. It is thus clear that Mr Mailei's conduct created a risk to the health and safety of other persons as a result of inhaling RCS whilst at the Work Site. Despite the availability of reasonably practicable steps that Mr Mailei could (and was obliged to) have taken, both to avoid creating that risk and to minimise the risk, he failed to take any of the steps I have identified above, including one measure which he was legally obliged to take.
2. Accordingly, I am satisfied beyond reasonable doubt that Sana Benchtop failed to comply with its duty under s 19 of the WHS to ensure, so far as was reasonably practicable, that the health and safety of other persons at the Work Site was not put at risk from the work carried out by Mr Mailei as part of the conduct of Sana Benchtop's business.

Mr Mailei failed to take reasonable care to ensure that his acts and omissions did not adversely affect the health and safety of other persons

1. Having regard to the above matters I am also satisfied, beyond reasonable doubt, that Mr Mailei failed to comply with his duty under s 28 of the WHS to take reasonable care to ensure that his acts and omissions did not adversely affect the health and safety of other persons.
2. As I have found, it was Mr Mailei's conduct which created the risk, it was reasonably foreseeable that the risk might eventuate and that, if it did, the health and safety of other persons at the Work Site (including the Affected Persons) might be adversely affected (possibly significantly so), and there were a range of reasonably practicable steps that he could (and was obliged to) have taken to avoid exposing other people to the risk of inhaling RCS at the Work Site (as I have identified in relation to Sana Benchtop's failure to comply with the duty that it owed under the WHS Act).
3. It was reasonable to expect Mr Mailei to take each of those steps given his position as a director of a specialist stone installation company, the knowledge within the industry of the health risks posed by exposure to RCS, the legislative ban on dry cutting of engineered stone and the fact that Mr Mailei had signed the Jason Marble safety documents which prohibited dry cutting of engineered stone at the Work Site.

1. In relation to proceedings CC 40080 of 2025, I find Sana Benchtop Installation Pty Ltd guilty of committing a Category 3 offence, contrary to s 33 of the Work Health and Safety Act 2011.
2. In relation to proceedings CC 40069 of 2025, I find Martin Mailei guilty of committing a Category 3 offence, contrary to s 33 of the Work Health and Safety Act 2011.
3. In relation to proceedings CC 40144 of 2025, as a result of my finding that Sana Benchtop is guilty of the Category 3 offence with which it was charged, the back-up charge of uncontrolled dry cutting of engineered stone contrary to s 418B of the Work Health and Safety Regulation 2011 is dismissed.

I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.