Blue Mountains Council has received the last of its four interim reports on asbestos management which deals with the circumstances surrounding their five-year delay in bringing in council's asbestos management plan and the adequacy of existing policies and procedures.
The last report reveals that a commitment to the total elimination of asbestos from council properties was never seriously considered by relevant council officers, which was not an unusual scenario for a large organisation with a big property portfolio.
The Gazette understands the report says there was a culture to not put up signage when asbestos containing material was found, because it might instill fear in the community. The council had failed to have a register of asbestos affected properties which was a requirement under the Work, Health and Safety Act and there was also not a safety culture at council because there was a mentality it might cost too much money.
But the independent investigator’s report has cleared the elected councillors who were never presented with the chance to look into the asbestos problems before the improvement notices were issued by SafeWork NSW in May last year.
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The first official report into the asbestos scandal at Blue Mountains Council confirmed a litany of organisational failures at Lawson carpark, Lawson Mechanics Institute and Lawson council storage which exposed workers to potentially deadly fibres. Workers were instructed to sift through asbestos containing material, instead of stopping work.
The report was prepared by lawyer Michael Tooma, an industry expert from Clyde & Co, and showed the problems that arose because council failed to implement a compulsory asbestos management plan or train its workers in handling asbestos, despite it being a legal requirement since 2012.
The second report on asbestos mismanagement by council recommended that the old Blackheath tip was fenced and security cameras installed to monitor illegal dumping. The tip site is now permanently sealed off to the public and may never re-open as it will require millions to remediate.
The third report dealt with policy and compliance issues and found significant gaps in council’s past approach to asbestos management.
A stand alone report – the council-commissioned report by McCullough Robertson Lawyers – examined allegations of improper staff recruitment – “jobs for the boys” – clearing council staff of wrongdoing.
The council resolved to adopt all of the recommendations of the final report, as it has with the other reports.
The reports followed notices issued by the state’s work, health and safety regulator SafeWork NSW late last year. SafeWork issued 21 notices for improvement and six prohibition notices between May and December last year determining council was not complying with their asbestos management.
Last month a SafeWork NSW spokesman said they “commenced a full investigation into the events related to the establishment of Lawson stockpile in late 2017 and the investigation is ongoing”.
“SafeWork has issued 10 notices to Blue Mountains City Council that are yet to be complied with. They are: two prohibition notices Springwood Maintenance Depot, two prohibition notices and two improvement notices at Katoomba Waste Transfer Station, one prohibition notice at Katoomba Depot, one improvement notice at Blue Mountains City Council head office, one prohibition notice and an improvement notice at Lawson Mechanical Institute.”
Last week a report testing asbestos cleared the Lawson site and so as of today [April 5] the following notices have now been lifted: an improvement notice relating to the Blue Mountains City Council asbestos awareness training program; an improvement notice relating to health monitoring of personnel who worked on the Lawson Mechanics Institute carpark; and a prohibition notice at Lawson Mechanical Institute carpark site.
The SafeWork spokesman said: “SafeWork NSW has received a copy of the reports by Clyde and Co. and is considering its content and findings as part of its ongoing investigation. SafeWork is continuing to work with Blue Mountains City Council on the implementation of its asbestos management plan.”
Council is still within the time periods to comply with the notices, Mayor Mark Greenhill said.
Cr Kerry Brown said the health and safety skills set of council’s executive leaders’ had been added to tasks in the performance improvement plan sent to the Minister last month, following recommendations of the first two interim Tooma reports.
Cr Brown, whose move to have the entire reports made public was knocked back, said councillors couldn't be absolutely sure of the level of management directly involved in the events covered by the first two Tooma reports on Lawson Hall and Depot and the old Blackheath Tip because the names and positions are redacted.
"Reading the reports is like reading a whodunnit and not knowing any of the characters or how many there are. All we know is the actions and inactions. Those inactions include missing policies, plans and procedures.”
Her appeal for unredacted copies – at least for the councillors – was rejected by the council because of concerns about “procedural fairness … if we do go to the courts ” Cr Romola Hollywood said appealing against Cr Brown’s bid.
The Tooma report was already controversial due to an alleged conflict of interest between Mr Tooma and a council contractor, Mark Mulligan which has now led to court action between council and the state government in the Land and Environment Court. The stand alone report cleared Mr Mulligan. The mayor said the reports reveal no conflict existed and this would be made clear to the courts.
Local Government Minister Gabrielle Upton, who is in the process of trying to suspend council for the second time is not speaking to the media about the matter, because it is before the courts. The next date for mention is May 28.
Importantly in relation to covering the costs of health monitoring of families, council’s general manager Rosemary Dillon issued a statement to say: “council was committed to covering the costs of health monitoring for the families of workers who were possibly exposed to asbestos containing material at the Lawson Depot and during the Lawson car park works”.
Council’s full statement from April 4 meeting is here:
The final report of the independent investigation initiated by the council in relation to the council’s management of asbestos has been received.
The report, like the three previous interim reports, makes no findings against councillors. Having regard to the Final Report and all available information available to the council, it is clear that the asbestos management issues identified in the interim reports were never raised with the elected Council body before the improvement notice issued by SafeWork NSW on 22 May 2017.
The elected council resolved to adopt all of the recommendations of the final report on the Blue Mountains City Council asbestos investigation at an extraordinary meeting on April 4.
The council has previously adopted all of the recommendations of the investigators' three interim reports. All of the reports were prepared by the highly regarded law firm Clyde and Co, who provide expert work, health and safety advice.
Mayor Mark Greenhill, said: “We continue to demonstrate our commitment to managing asbestos as an absolute priority.
“Implementing the recommendations of all Clyde and Co. reports reaffirms this commitment to manage asbestos and our commitment to the safety of our workers and community.”
The independent investigation identified gaps in council’s past approach to asbestos management. Those gaps have been, and will continue to be, addressed.
The investigation covered asbestos management at:
· Lawson carpark, Lawson Mechanics Institute and Lawson stockpile.
· The presence of asbestos containing material at the former Blackheath landfill, and
· Council’s approach to asbestos management and the systems, policies and procedures guiding operational practices.
In his comments, the mayor noted that a commitment to the total elimination of asbestos from council properties was never seriously considered by relevant council staff. This possibility is often overlooked within large organisations with a significant property portfolio, and has been particularly common in the public sector, where funding for such projects required justification to the community. Unfortunately, the "total elimination" option was never put before the governing body for consideration, as a long-term project.
An additional challenge for the governing body of a council is presented by the Local Government Act, which excludes elected councillors from operational matters. The LG Act states that it is the function of the general manager, and not the elected body, to conduct the day-to-day management of the council in accordance with the strategic plans, programs, strategies and policies of the council.
The council initiated the independent investigation into the management of asbestos in council-owned properties in November 2017.
"The council is on the journey to strengthen our safety systems,” Cr Greenhill said. “We wanted this investigation to identify all relevant matters, to ensure that the council secures appropriate advice and, having regard to that advice, is in a position to address and resolve all relevant issues in relation to asbestos management, past, present and future.”