Inspector Blume v Tmp Worldwide eresourcing [2003] NSWIRComm 37 (19 February 2003)

Last Updated: 7 March 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Blume v TMP Worldwide eResourcing [2003] NSWIRComm 37

FILE NUMBER(S): IRC 8555

HEARING DATE(S): 26/11/2002

DECISION DATE: 19/02/2003

PARTIES:

PROSECUTOR

Inspector Ian Blume

DEFENDANT

TMP Worldwide eResourcing (Industrial Services) Pty Ltd formerly known as Labour Linq Pty Ltd

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Ms L McManus of counsel

Solicitor: Ms R Panagoda

WorkCover - Legal Group

DEFENDANT

Mr P J Newall of counsel

Solicitor: Mr G Delaney

Corrs Chambers Westgarth

CASES CITED: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) 49 NSWLR 610; (2000) 99 IR 29

Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 432

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464

Petar Ankucic v Drake Personnel Ltd t/as Drake Industrial (unreported, Hungerford J, IRC96/6475, 6476, 6477 and 6479, 25 November 1997)

Rodney Paul Dubois v Industry Staffing Services Pty Ltd t/as Action Workforce (unreported, Hungerford J, IRC97/6900, 8 February 1999)

Tyler v Sydney Electricity (1993) 47 IR 1

Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446

WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Thora Sawmilling Pty Ltd (1995) 59 IR 89

WorkCover Authority of New South Wales (Inspector Ian Blume) v L G Electronics Pty Ltd [2003] NSWIRComm 34

WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163

LEGISLATION CITED: Occupational Health and Safety Act 1983

Supreme Court (Summary Jurisdiction) Act 1967

JUDGMENT:

- 21 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Boland J

Date: 19 February, 2003

Matter No IRC 8555 of 2001

INSPECTOR BLUME v TMP WORLDWIDE E-RESOURCING

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2003] IRComm 37

1 This is a prosecution by Inspector Ian Blume of the WorkCover Authority of New South Wales. In an Application for Order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 filed on 21 December 2001 the Inspector alleged that the defendant, TMP Worldwide eResourcing (Industrial Services) Pty Ltd formerly known as Labour Linq Pty Ltd, failed to ensure the health safety and welfare at work of all its employees, in particular Siva Sivasubramaniam, contrary to s 15(1) of the Occupational Health and Safety Act 1983.

2 The defendant carried on the business of recruitment and labour hire. From time to time TMP provided L G Electronics Australia Pty Ltd with labour hire recruitment services. One of the persons whose labour was hired to L G Electronics by the defendant under the terms of an agreement was Mr Sivasubramaniam. At all material times, however, Mr Sivasubramaniam was an employee of the defendant.

3 On 8 February 2000 Mr Sivasubramaniam was assisting in the unloading of washing machines from a shipping container at L G Electronics' Rydalmere plant when washing machines being transported by a forklift fell on Mr Sivasubramaniam, causing him head injuries. Mr Sivasubramaniam later died in hospital.

4 The particulars of the charge were that the defendant:

a. Failed to make arrangements for ensuring safety and absence of risks to health, to the employer’s employees, in particular Siva Sivasubramaniam, in connection with the transporting of eight (8) cartons of washing machines by a forklift trick, by failing to inspect or examine in a proper and adequate way to ensure that the said method of transporting the said cartons was safe.

b. Failed to make arrangements for ensuring that persons, particularly Siva Sivasubramaniam, were not exposed to risks to their health and safety in connection with the transporting eight (8) cartons of washing machines by forklift on the premises.

c. Failed to provide proper or adequate training in relation to the identification of the hazards involved in transporting eight (8) cartons of washing machines by forklift truck on the premises.

5 The defendant entered a plea of guilty to the charge. L G Electronics was also charged and sentenced in relation to the same incident pursuant to s 16(1) of the Act: see WorkCover Authority of New South Wales (Inspector Ian Blume) v L G Electronics Pty Ltd [2003] NSWIRComm 34.

6 An agreed statement of facts was submitted. The statement described the incident as follows:

Mr Sivasubramaniam was working at the premises on 8 February 2000.

On 8 February 2000 a shipping container, which was on the back of a semi-trailer, backed up to loading dock 5 inside the premises. The shipping container had doors at the rear, which opened out. Inside the shipping container were cardboard cartons, each of which contained a washing machine. These cartons were stacked in an upright position, two (2) cartons high. No carton was attached to another carton. Each carton measured 1080 mm high by 740 mm wide by 685 mm deep. Each washing machine in the carton weighed 54 kilograms.

The system employed by L G Electronics to unload the cartons from inside the container included the following:

a. two (2) men moved the cartons inside the container to the rear edge of the container;

b. a forklift truck (“the forklift”), which had carton clamps fitted to it (“the clamps”), was then driven onto the loading ramp. The forklift then reached into the container with the clamps and clamped eight (8) cartons in a configuration of two (2) cartons wide, two (2) cartons deep and two (2) cartons high;

c. the clamps were constructed of steel and included two steel plates (“the plates”) each of which measured 1188 mm high by 1202 mm wide. The plates were covered with a high friction rubber compound sheet of 8mm thickness by 1.43 square metres to assist in gripping the cartons. The plates moved together to grab the cartons. The clamps were controlled by hydraulic rams operated off the forklift’s hydraulic system;

d. the forklift lifted the cartons from the container using the two plates by pressure and friction;

e. In lifting the eight cartons the plates were placed on either side of the cartons and clamped to a preset pressure. Friction between the load and the plates on the clamps allowed the load to be lifted as the plates were raised.

In carrying out this procedure of lifting the eight (8) cartons there was a large area of contact between the plates and the surface of the four (4) cartons on the bottom level. There was a smaller area of contact between the plates and the four (4) cartons on the top level. The plates reached a height of approximately 100mm from the base of the top cartons. Each of the cartons was approximately 1080 mm high. Approximately 980 mm of the surface area of the four (4) cartons on the top level was not clamped.

After clamping the eight (8) cartons as described in paragraphs 11 and 12 above the forklift then moved in reverse taking the cartons out of the container and into the premises over a ramp on the loading dock at the premises. The forklift then placed the load on the ground so that the top four (4) cartons could be partly wrapped in plastic to consolidate or secure the load. The top level cartons were wrapped approximately three quarters of the way up the cartons.

The cartons were again picked up and transported by forklift and placed in their storage locations.

The cartons were wrapped for employee safety and product protection.

Apart from the plastic wrapping the four (4) top cartons were not tied or affixed to the bottom four (4) cartons.

Whilst this procedure involving the forklift occurred, two (2) men in the container positioned another load of eight (8) cartons from the container to be taken out by the forklift into the premises.

Initially and until more room was created inside the container by the removal of cartons, it was considered too dangerous to wrap the cartons in the container. However once the first 2 or 3 stacks of 8 cartons had been removed wrapping took place inside the container.

At about 9.00am on 8 February 2000, the forklift, driven by Mr James Zammit, an employee of Advance Recruitment, another agency, took a group of eight (8) cartons from the container, clamped in the manner described above. The group of 8 cartons on the forklift had been set up in the container by Mr Wayne Robson and Mr John Marr, employees of L G Electronics. This was the third load of cartons removed from the container.

Mr Sivasubramaniam was ready to perform his task of wrapping plastic around the top four (4) cartons. Mr Zammit said:

"I picked the stack of eight up, at this stage the ramp was not raised. I reversed back over the ramp, turned the rear of the fork to my right. My intention was to place the stack alongside the previous stack so that Siva could secure the load. I commenced forward across the ramp when I saw Siva dash behind the load of washing machines".

No one saw exactly what then occurred. Mr Zammit, who was driving the Forklift at the time, said:

"My back wheels were still on the ramp, I had travelled approximately four feet in the forward direction. My foot was on the brake. I leaned over the right hand side of the fork to try and locate where Siva was. Unable to see him I leaned to the left of the fork. That is when I heard the noise of creaking cardboard. I looked up at the load and saw a gap appearing between the top washing machines. I sat up to the centre of the fork and that is when they fell, I heard them fall. I jumped off the fork and proceeded forward. I saw one washing machine on the side, I saw Siva on the floor and the other washing machine to the left hand side of him".

After receiving treatment at the Premises in relation to head injuries, Mr Sivasubramaniam was taken to hospital. Mr Sivasubramaniam died at hospital.

The work procedure that was used at the time of the accident was standard procedure for the Premises. Mr Kinchela, the defendant's then Warehouse Supervisor, confirmed that Mr Sivasubramaniam had carried out the task "many times" and "daily". Mr Rochford, the defendant's then Warehouse Manager, said that Mr Sivasubramaniam had carried out the work on previous occasions "without incident."

At the time of the accident Mr Sivasubramaniam was carrying out his duties in assisting with the unloading of the cartons of washing machines from the shipping container. His duties included assisting in getting the cartons ready to be taken out of the container by the forklift and, when the eight (8) cartons were taken out by the forklift and placed on the floor of the premises, wrapping plastic around the top four (4) cartons.

The forklift was not misused at the time of the accident.

7 In relation to investigations into the incident the agreed statement said:

An inspection of the forklift conducted immediately after the accident by Crown Equipment Pty Ltd indicated that there were no faults with the operation and functioning of the forklift on the day of the accident. Also an inspection of the clamps conducted immediately after the accident by Cascade Australia Pty Ltd indicated that there were no faults with the operation and functioning of the clamps on the day of the accident.

On 21 November 1999, Ms Elke Small, Consultant for the defendant, had conducted a Client Safety Inspection at the premises. This site assessment was conducted using a questionnaire developed by the defendant. A copy of this document is attached and marked “A”.

The inspection by the defendant did not involve the observation of the specific duties or the processes to be carried out by Mr Sivasubramaniam when he was performing his employment duties at the premises for L G Electronics.

In a document of the defendant headed “Labour Linq Client Profile and Safety Inspection Checklist”, which was used in checking the L G Electronics’ safety policy, to the question “Do you have standard operating procedures?” L G Electronics answered “No”. This issue was discussed with Mr Hull, Logistics Manager for L G Electronics, by Ms Small. Ms Small states that she was advised that L G Electronics was in the process of establishing standard procedures and that the defendant would be provided with a copy of them when they were available. This did not occur prior to the accident on 8 February 2000.

The defendant did not have written safety procedures dealing with the unloading of washing machines. However, Gary Hull, the defendant’s then Logistics Manager, gave the following answer in response to the following question:

"Was there a written procedure for the task of removing the washing machines that was being carried out at the time of the accident on 8 February 2000?

There was not written procedures but there were procedures on how to safely load and unload and these were instructed to personnel who were given that task."

The defendant conducted Occupational Health and Safety (“OHS”) induction training with Mr Sivasubramaniam and conducted assessments of his understanding of OHS as well as his English comprehension. Mr Sivasubramaniam was required to watch a safety video and complete a questionnaire on the video, which was then marked and assessed. Mr Sivasubramaniam scored 100% in his video assessment, 17/20 in English comprehension and 17/17 for his numeracy. Employees were also advised of what should take place in the event of an accident and what were acceptable work practices on site.

Once Mr Sivasubramaniam began work, Ms Small carried out a quality check by phoning both L G Electronics and Mr Sivasubramaniam to ensure both were happy with the working arrangement.

Mr Hull stated that Mr Sivasubramaniam had been warned on occasions that if the product did fall not to try to save it as he would injure himself.

Mr Zammit said that the safety procedure in place in unloading containers was for personnel to stand clear and that Mr Zammit and Mr Sivasubramaniam had been instructed to stand clear when the forklifts were about. There was no written instruction on the procedure.

L G Electronics had a buddy system operating in regard to safety.

There was no OHS committee that covered the premises at the time of the accident.

No formal safety assessment had been performed on the procedure for unloading cartons of washing machines at the premises by the defendant or by L G Electronics.

No formal risk assessment had been carried out to determine the possible risks associated with the use of the forklift and the clamps. The risk of the cartons of washing machines falling whilst being moved on the forklift was not formally assessed.

The forklift had been purchased by L G Electronics as a new piece of machinery and the clamps were designed specifically for the purpose for which they were being used at the time of the accident.

8 The prosecution tendered into evidence a report dated 11 February 2000 by Robert Egan, senior inspector of the WorkCover Authority, who visited the scene of the accident. Also tendered into evidence by the prosecution was a bundle of ten colour photographs showing the scene of the accident, the forklift and carton clamps and eight cartons of washing machines in a configuration of two cartons wide, two cartons deep and two cartons high in the carton clamps. A prior conviction sheet was also tendered showing that the defendant had no prior convictions.

9 The defendant tendered an affidavit of Peter Brian Johnston, National Occupational Risk Manager for the defendant. Mr Johnston was not required for cross examination. Mr Johnston's affidavit dealt with the following matters:

· Mr Johnston's background and experience;

· the nature of the defendant's operations;

· Mr Johnston's appointment as National Occupational Risk Manager on 2 February 2000, his role and responsibilities;

· the safety procedures in place at the time of the incident;

· the defendant's investigation of the incident;

· safety measures and procedures implemented by TMP since the incident;

· the defendant's approach to site safety;

· training provided to consultants, coordinators and team members;

· incident/accident reporting procedure;

· occupational health and safety training for employees;

· internal audits;

· assistance provided by the defendant to Mr Sivasubramaniam's family;

· assistance to WorkCover.

10 Ms L McManus of counsel appeared for the prosecution. Ms McManus tendered written submissions on sentence which may be summarised as follows:

· The primary factor to consider in relation to penalty is the objective seriousness of the offence. The objective features in this case which call for a substantial penalty are as follows:

o the maximum penalty, which in this case is $550,000: see WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163 at 185-186;

o the need for general and specific deterrence: see Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 cited with approval in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) 49 NSWLR 610; (2000) 99 IR 29 at 60;

o the defendant had an obligation to inform itself of safe working. When considering a statute giving expression as a matter of public policy, to standards of safety, management has a positive obligation of informing itself of circumstances of safe working: see WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Thora Sawmilling Pty Ltd (1995) 59 IR 89 at 100;

o the nature of the offence in that it involved obvious risks that were reasonably foreseeable: see Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476. The foreseeability of the risk is evident from the following:

· the cartons being carried were two high, two deep and two wide. The cartons were being taken to a place to be secured and at the time of the accident were not tied together in any way;

· the cartons weighed 54 kg each;

· approximately 980 mm of the top cartons was not gripped by the clamps;

· the forklift was moving immediately before the accident, although stationary at the time of the accident.

o the potential risk had been identified by L G Electronics and Mr Sivasubramaniam had been warned on occasions of the risk of the product falling and the prospect of injury to himself if he tried to save the product.

o the defendant had identified that L G Electronics did not have written standard operating procedures for the task of removing the washing machines.

o the nature of the offence in that there were simple steps to remedy the failures. These steps were as follows:

· inspecting or examining the method of transporting the cartons;

· ensuring there was a safe system of carrying the cartons;

· providing proper or adequate training in relation to the identification of hazards in transporting the cartons.

o Since the accident the defendant has implemented a procedure whereby site safety inspection assessments are provided to the National Occupational Risk Manager for sign-off and job safety analyses are conducted on particular tasks

· The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456. Mr Sivasubramaniam suffered fatal injuries.

· The defendant is entitled to have taken into account, as mitigating the objective seriousness of the offence, its plea of guilty. In this case the plea of guilty was indicated at an early stage and before the matter was set down for hearing. The utilitarian value of the plea would be at the higher end of the scale of discount.

· The defendant has no prior convictions.

· The prosecutor seeks a moiety of the fine.

· Costs are sought as agreed or if agreement cannot be reached, leave is sought to approach the Court for final orders as to costs.

11 Mr P J Newall of counsel appeared for the defendant. Mr Newall's submissions may be summarised as follows:

§ The charge goes to the defendant's failure to inspect the work that Mr Sivasubramaniam was involved in and the failure to train Mr Sivasubramaniam in identifying the hazards associated with transporting cartons by forklift.

§ Mr Sivasubramaniam was not engaged for the purpose of moving cartons by forklift. His job was to secure the cartons after they had been transported to the warehouse floor by wrapping them in plastic.

§ There was no reason for the defendant to believe that the system of transporting cartons was defective; there was no evidence any cartons falling from the forklift in the past. Accordingly, the risk to safety was not readily foreseeable.

§ Mr Sivasubramaniam was instructed as to the dangers of falling cartons which he appears to have ignored. It was not readily foreseeable that the deceased would ignore the instructions.

§ As to degree of culpability, there is a difference between knowing about the risk to safety and not doing anything about it and a failure to inspect the work Mr Sivasubramaniam was to carry out.

§ The defendant was not in control of the unloading process and, therefore, was not in a position to take any remedial steps to avoid the accident.

§ The defendant was entitled to have regard to the fact that a buddy system in place in regard to safety.

§ Although there was no written procedure in place in relation to the task of unloading machines from containers there was, nevertheless, a procedure and the defendant was entitled to have regard to that fact.

§ The defendant's culpability was at the low end of the scale.

§ The defendant entered an early plea of guilty.

§ The defendant is a sizeable company with 1500 labour hire placements at any one time.

§ The defendant has been operating since 1995 and has no prior convictions.

§ The defendant takes its occupational health and safety responsibilities seriously.

§ The defendant took substantial steps, internally and externally, to investigate the incident and has taken steps to avoid a recurrence of the incident. The defendant is also continually updating and improving its occupational health and safety systems and procedures.

§ The defendant has provided assistance to Mr Sivasubramaniam's family.

§ The Court can be satisfied of the defendant's contrition.

Consideration

12 A verdict of guilty has already been entered in this matter. It remains to be determined what should be the appropriate sentence.

13 In Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 432 the Full Bench dealt with the obligations of a labour hire company under the Occupational Health and Safety Act. The Full Bench stated at 455:

The obligations of a labour hire company under the OH&S Act have been considered on a number of previous occasions by this Commission and its predecessors. The judgment of Hungerford J in Petar Ankucic v Drake Personnel Ltd t/as Drake Industrial (unreported, Hungerford J, IRC96/6475, 6476, 6477 and 6479, 25 November 1997) concerned a prior prosecution of the appellant. That prosecution arose from an incident in which an employee of the appellant, Mr Douglas, sustained an injury whilst operating a woodworking machine at the premises of another company, Warman International Ltd. The appellant pleaded guilty in that case and was fined a total of $25,000. Considering the question of penalty, his Honour commented (at p13-14):

The failure here to ensure the safety of Mr Douglas arose in a situation where he was directed by his employer, the defendant, to perform work for a third party, Warman, at that third party's premises. In such a situation, my view is that an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned. The evidence established that the defendant did not satisfactorily attend to this aspect and it was not until Mr Davey was engaged that specially designed safety policies and procedures were implemented. But that was in July 1997, at least two years after the present offences were committed; Mr Douglas thereby suffered injury resulting in absence from employment for a period of at least two months and with a permanent deficit in the use of his right hand.

It is no answer, in my view, in reduction of penalty otherwise considered appropriate for the defendant to plead reliance on Warman as the client to take appropriate steps to ensure safety in the workplace for all persons engaged at its premises. True it may be that Warman itself may have offended against the Occupational Health and Safety Act, but that does not, it seems to me, lessen the seriousness of the offences committed here by the defendant as the employer. It is that feature of this case which gives to the assessment of penalty such a degree of importance as will encourage employers in a business similar to that of the defendant to implement appropriate steps to ensure the safety of their employees whose labour is hired to third parties and at the same time to deter employers for failing to take such steps.

See also Rodney Paul Dubois v Industry Staffing Services Pty Ltd t/as Action Workforce (unreported, Hungerford J, IRC97/6900, 8 February 1999).

The observations of Hungerford J set out above were made in the context of determining the appropriate penalty to be imposed following a plea of guilty. However, we consider that they are equally applicable when considering the liability of a labour hire company under the OH&S Act. A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

14 In the present case, the critical failures by the defendant were that it failed to inspect or examine in a proper or adequate way to ensure that the method of transporting cartons was safe; it failed to make arrangements to ensure that Mr Sivasubramaniam was not exposed to risks to his health or safety in connection with the transporting of washing machines by forklift at L G Electronics' Rydalmere premises; and, it failed to provide proper or adequate training in relation to the identification of the hazards involved in transporting the washing machines by forklift.

15 An inference in Mr Newall's submission was that because the defendant was not in control of the unloading operation and was not in a position to supervise Mr Sivasubramaniam, its level of culpability was necessarily lower than that of L G Electronics. However, I note the observation by Hungerford J quoted above that:

an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned.

And further, what the Full Bench said in Drake Personnel at 456 that:

A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

16 It does not seem to me that the defendant discharged its "special responsibility" in relation to Mr Sivasubramaniam. I do not accept the demarcation that the defendant sought to draw between the work of wrapping the cartons with plastic and the unloading of the cartons by forklift. In seeking to make a distinction between the tasks, the defendant contended that whilst there may have been a failure to inspect and a failure to train employees to identify the hazards associated with their work, the defendant could not have failed to inspect the work of unloading cartons by forklift and could not have failed to train employees to identify hazards associated with that work because that was not the work Mr Sivasubramaniam was asked to do. According to the agreed statement of facts, however, Mr Sivasubramaniam's work included "assisting in getting cartons ready to be taken out of the container by the forklift and, when the eight (8) cartons were taken out by the forklift and placed on the floor of the premises, wrapping plastic around the top four (4) cartons." Further, the "Client Profile and Safety Inspection Checklist" completed by the defendant's consultant in respect of L G Electronics indicated that the duties of the labour hire personnel involved "unloading containers, picking orders."

17 In my opinion, there was a clear responsibility upon the defendant to inspect the full scope of the work that its employees might be involved in performing for the client company. So much is clear from Drake Personnel. A simple visual inspection of the work to be performed by Mr Sivasubramaniam would have shown that he would be working in proximity to a forklift unloading eight cartons at a time with the top tier of cartons resting insecurely on the bottom tier because most of the surface area of the top tier was not clamped. In those circumstances, the proper course for the defendant would have been to ensure that Mr Sivasubramaniam would not be exposed to the risks of colliding with the forklift and/or of falling cartons even if that meant refusing to allow him to work in that area if the client company did not take steps to avoid the risks.

18 The obligation to make an inspection rested even more heavily on the defendant given the absence of written procedures for the unloading of product by forklift.

19 In relation to deterrence, the principles were discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales 49 NSWLR 610; (2000) 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence, I am satisfied that the likelihood of the defendant re-offending is low. It is evident that the defendant takes its occupational health and safety responsibilities seriously. Further, it is clear that the defendant has taken extensive steps to avoid a recurrence of the accident and is continually updating and improving its occupational health and safety systems and procedures. Specific deterrence, therefore, is not a significant element in my consideration as to penalty.

20 As to my assessment of the seriousness of the offence I disagree with the defendant's submission that is level of culpability is low. I can only stress again that in circumstances where the employees of labour hire companies are to work in a client's premises they must "take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety". General inspection of the premises or merely taking the word of the client that the work is safe and without risk or otherwise attempting to shift the responsibility onto the client to ensure safety will not be sufficient to discharge the strict liability on a labour hire company for the safety of its employees. In my opinion, the offence with which the defendant has been charged is a serious one.

21 The defendant sought to have a number of subjective factors taken into account: its early plea of guilty; its size; the fact that it has been operating since 1995 without any prior convictions; the steps it has taken to avoid a recurrence of the incident; the fact that it is continually updating and improving its occupational health and safety systems and procedures; its assistance to Mr Sivasubramaniam's family; its assistance to the community; and, its contrition.

22 As to penalty I have considered my judgment in WorkCover Authority of New South Wales (Inspector Blume) v L G Electronics Pty Ltd [2003] NSWIRComm 34 in which the defendant was fined $152,750 for an offence under s 16(1) of the Occupational Health and Safety Act 1983. Given that the offence under s 15(1), in respect of which the defendant in the present proceedings is guilty, arose out of the same factual circumstances as those which applied to L G Electronics Pty Ltd, I have given consideration to the question of consistency in sentencing.

23 This question of consistency was addressed comprehensively by a Full Bench of the Commission in Court Session in Capral Aluminium Ltd v WorkCover Authority of New South Wales 49 NSWLR 610; (2000) 99 IR 29 at 56-58:

62 It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald’s Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103):

"Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen" where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour.

Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 ..."

63 When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371:

"It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612:

‘The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.’"

64 In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed:

"In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances."

65 As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.

66 The principle of consistency is relevant to this appeal, as it is a reflection of the notion of equal justice, a fundamental element in any rational and fair system of criminal justice. See for example R v Henry (1999) 46 NSWLR 346 at 353 where Spigelman CJ said:

"12. As I indicated in Jurisic, the purpose of a guideline judgment is to foster consistency in sentencing. The importance of consistency was well expressed by Mason J in R v Lowe (1994) 154 CLR 606 at 610 - 611:

‘Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.’"

and see also R v Howland at 43 – 44 per Spigelman CJ.

24 I have had regard to the nature and quality of the offence, the subjective features of the offence including the early plea of guilty, the overall culpability of the defendant compared to that of L G Electronics, and the principle of consistency.

25 I assess an appropriate penalty at $235,000. Given the early plea of guilty I would allow a discount of 25 per cent with a further discount of 10 per cent for the other subjective factors leaving a penalty of $152,750.

Orders

26 The Court makes the following orders:

1) The defendant is convicted of the offence as charged.

2) The defendant is fined an amount of $152,750 with a moiety thereof to the prosecutor.

3) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

LAST UPDATED: 19/02/2003