Brambles Australia Limited Trading as Chep Australia v Workcover Authority of NSW (Inspector Foley) [2006] NSWIRComm 107 (13 July 2006)

Last Updated: 13 July 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Brambles Australia Limited Trading as Chep Australia v WorkCover Authority of NSW (Inspector Foley) [2006] NSWIRComm 107

FILE NUMBER(S): IRC 4185

HEARING DATE(S): 10/03/2006

EX TEMPORE DATE: 10/03/2006

PARTIES:

APPELLANT:

Brambles Australia Limited t/as Chep Australia

RESPONDENT:

WorkCover Authority of New South Wales (Inspector Foley)

JUDGMENT OF: Wright J President Walton J Vice-President Staff J

LEGAL REPRESENTATIVES

APPELLANT:

Mr J Agius SC

Solicitor:

Ms L Aitken

Aitken Legal

RESPONDENT:

Ms P McDonald of counsel

Solicitor:

Ms B Fisher

Carroll & O'Dea Solicitors

CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464

U-Rect-It Pty Ltd v WorkCover Authority of New South Wales, (Inspector de Silva) [2004] NSWIRComm 266

Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 59

Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113

WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited (2000) 100 IR 23

Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997)

LEGISLATION CITED: Industrial Relations Act 1996

Occupational Health and Safety Act 1983 s188 s197 s8

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

Coram: Wright J, President

Walton J, Vice-President

Staff J

Friday 10 March 2006

Matter No. IRC 4185 of 2005

Brambles Australia Limited t/as Chep Australia v WorkCover Authority of New South Wales (Inspector Foley)

Application by Brambles Australia Limited t/as Chep Australia for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 20 July 2005.

JUDGMENT OF THE COURT

[2006] NSWIRComm 107

(Ex tempore)

1 These proceedings involve an application for leave to appeal and appeal by Brambles Australia Limited pursuant to ss 188 and 197 of the Industrial Relations Act 1996 against the severity of a sentence imposed by Chief Industrial Magistrate Hart.

2 On 23 April 2003, Mr Elmer Nevales, a mechanical engineer with 15 years of welding experience, was welding a grinder guard close to four flammable containers. The electrode of the welding rod touched one of the cans, starting a fire and he suffered superficial burn injuries to his face. His employer, Brambles Australia Limited, pleaded guilty at the first opportunity to a charge under s 8 of the Occupational Health and Safety Act, 2000.

3 In the decision at first instance, Chief Industrial Magistrate Hart followed precisely the sentencing principles enunciated in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 and endorsed on many subsequent occasions by the Full Benches of this Court. His Honour first considered the objective seriousness of the offence, which he found to be substantial in view of the reasonable foreseeability of the offence and the simple measures required to alleviate that risk, and then took into consideration the need to accommodate both general and specific deterrence.

4 The Chief Industrial Magistrat formulated a penalty of $90,000 having regard to the objective seriousness of the offence by reference to the maximum available penalty of $825,000 (given the prior convictions of Brambles Australia Limited). There is no doubt that his Honour was right to assess the penalty by reference to the statutory maximum rather than the jurisdictional maximum; see U-Rect-It Pty Ltd v WorkCover Authority of New South Wales, (Inspector de Silva) [2004] NSWIRComm 266 at [18]. Finally his Honour took into account subjective factors (for which he allowed a discount of 25 per cent) to arrive at a penalty of $67,500 which was reduced to the jurisdictional limit of $55,000.

5 There is no doubt that leave to appeal will not be granted lightly, particularly in relation to the exercise of discretion, as here, and that some issues of real significance in the interests of justice will need to be identified for such an application to succeed; see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 59 at [13] and Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 at 115.

6 We do not accept the appellant's submission that his Honour is in his assessment of a penalty of $90,000 was manifestly excessive. We agree with the Chief Industrial Magistrate that the objective seriousness was substantial and in that context the penalty imposed could not be described as "manifestly excessive”.

7 Further, we do not accept that the Chief Industrial Magistrate failed to have regard to that matter or to the safety system in place at the time. Both matters are clearly referred to in detail in the Chief Industrial Magistrate's written reasons for decision.

8 Further, his Honour was correct to find that, notwithstanding the, "quite impressive procedures established by the company in relation to occupational health and safety", there was, at the relevant time, a gap between the paper system and the reality of the daily conduct. This finding was consistent with the appellant's plea.

9 The paper system required a "high standard of housekeeping" in the designated workshop to ensure the elimination of sources of ignition and combustion; and yet photographs and observations in the investigation report confirmed that "the work bench where welding was carried out was very cluttered". The investigation report also noted combustible rubbish underneath the work bench. Finally, it is noteworthy that after the accident the appellant included the maintenance workshop on the monthly housekeeping inspections - a practical measure to ensure compliance with the paper system requirements of "high standards of housekeeping".

10 Although the appellant is correct in asserting that settled safety procedures and instructions are factors which may mitigate the seriousness of an offence, the Court must have regard not merely to the system as it existed in theory, but as it is implemented in practice: see WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited (2000) 100 IR 23 at [34] - [35]. This is precisely what the Chief Industrial Magistrate did, even to the point of specifically referring to the statement of Fisher P in Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997).

11 We do not accept that his Honour failed to have regard to the fact that a system was in place which was designed to avoid the risk. He was entitled to conclude, contrary to the appellant's submissions, that that system, the paper system, would not have entirely avoided the risks, even if properly followed. This is so because of the limits of the terms of the system and because of its failed implementation.

12 Nor do we consider that his Honour failed to have regard to the experience of the injured worker. His decision reflected a recognition of that fact and dealt with the matter sufficiently having regard to the manner in which it was raised below.

13 Save for one matter, to which we will now come, we decline leave to appeal in these proceedings for these reasons.

14 We accept, however, the appellant's complaint that the discount of 25 per cent allowed by the Chief Industrial Magistrate for subjective features was too low, given its plea of guilty at the earliest opportunity and other relevant subjective factors. True it is his Honour referred to factors such as contrition and assistance rendered to WorkCover. His Honour also referred to the steps taken by the appellant after the accident, including safety improvements and the establishing and maintaining of a safe system of work. However, his Honour's judgment does not disclose that any of these factors were properly taken into account in the assessment of penalty.

15 We, therefore, consider that leave to appeal should be granted on this aspect which leads to a question whether the appeal should be upheld to that extent.

16 It is unnecessary to formulate precisely how the inclusion of these subjective factors properly in the assessment of the fine at first instance would have altered the ultimate penalty. This is so because, even on the most generous assessment of such matters they could not have resulted in the imposition of a fine less than the $55,000 which was imposed because of the jurisdictional limit.

17 In these circumstances, we make the following orders:

1. Leave to appeal is granted to the extent set out in our reasons.

2. The appeal is dismissed.

3. No order as to costs.

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LAST UPDATED: 13/07/2006