Inspector Colin West v Abigroup Contractors Pty Ltd. [2007] NSWIRComm 88 (11 April 2007)

Last Updated: 20 June 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Colin West v Abigroup Contractors Pty Ltd. [2007] NSWIRComm 88



FILE NUMBER(S): IRC 2700

HEARING DATE(S): 11/04/07

EX TEMPORE DATE: 11 April 2007
PARTIES:
PROSECUTOR:
Inspector Colin West

DEFENDANT:
Abigroup Contractors Pty Ltd


CORAM: Haylen J


CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - guilty plea - collapse of work platform - employee working on platform injured - employee wearing harness but harness not secured - works team adopt short cut - safe work method statement deficient - serious breach in lower range - prior convictions - general and specific deterrence considered - defendant large company employing many people in dangerous industry - detailed system of safety otherwise in operation - prompt action to address risk exposed by accident - early plea - subjective factors considered - penalty imposed




LEGAL REPRESENTATIVES


PROSECUTOR:
Mr P Skinner of counsel
SOLICITORS:
Moray & Agnew


DEFENDANT:
Mr M Tooma (Solicitor)
SOLICITORS:
Deacons


CASES CITED:

LEGISLATION CITED:



JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Haylen J

11 April 2007

Matter No IRC 2700 of 2006
INSPECTOR COLIN WEST v ABIGROUP CONTRACTORS PTY LTD
Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

EX TEMPORE JUDGMENT
[2007] NSWIRComm 88

1 Inspector West, an inspector appointed under the provisions of the Occupational Health and Safety Act 2000, commenced proceedings alleging a breach of s 8(1) of the Act by Abigroup Contractors Pty Ltd. The work in relation to which the charge was brought concerned the construction of a bridge at a location some 15 kilometres north of Taree. In the course of dismantling a work platform or traveller, the platform collapsed and an employee, Matthew Smith, was injured when he fell to the ground from the platform.

2 On the filing of an Amended Application for Order, the defendant entered a plea of guilty. This judgment deals with the evidence and submissions on penalty.

3 The particulars of the Amended Order to which the defendant entered its plea of guilty were as follows:

The defendant failed to ensure that the system of work and the working environment of its employees was safe and without risk to health in that (a) the work of dismantling the platform while the injured worker was standing on it when it was only supported by the chain slings attached to the crane was contrary to the requirements of Clause 142 of the Occupational Health and Safety Regulation 2001 and, (b) the work of dismantling the platform was conducted when the injured worker was standing on the platform when his safety harness was not properly secured to an appropriate fixing point.

A description was given in the particulars of the way in which the employee fell when the work platform suddenly collapsed. It was noted that as a consequence the worker received injuries including fractured ribs and bruising to the right side of his body and leg.

4 The evidence suggests that he was not able to return to normal duties for approximately one month. The evidence for the prosecutor was constituted by: an Agreed Statement of Facts (which will be an annexure to this judgment); a factual report prepared by the inspector; some photographs and a sketch in relation to the incident; a collection of improvement notices; and, copies of the safe working method statement for this work at the time of the accident and a new safe working method statement drawn after the accident. The Court was also provided with a record of prior convictions and copies of the judgments in which those previous convictions were dealt with. That record showed 10 offences against provisions of the Occupational Health and Safety Act 1983 although, the most recently recorded convictions, dating back to 1995 and numbering five breaches, constitute a significant part of that record and relate to the defendant's participation in what might be described in a shorthand way as the Kogarah gas explosion. The evidence for the defendant was constituted by an affidavit sworn by Ronald James Yates, the Group Manager, Contract and Management Services of the defendant and that affidavit was supported by a number of exhibits contained within three folders.

5 Mr Yates was authorised by the defendant to make the affidavit in these proceedings and he set out his history with the defendant, his reporting lines and the various positions he held over the years with the defendant as well as his tertiary qualifications.

In relation to the nature of the company, the defendant was a wholly owned subsidiary of Abigroup Limited, itself a major Australian engineering and construction group specialising in civil engineering, building construction, mining works, project management asset management and various maintenance and other activities.

6 The defendant was incorporated in New South Wales in 1957. It carried out both civil construction operations and building operations and was said to currently employ approximately 1,750 employees in Australia and had total revenue for the year ending December 2006 of 1.47 billion dollars. The defendant had operations in all states of Australia and currently had civil and building projects worth approximately 3.2 billion dollars in the central region of New South Wales, northern region of Queensland and southern region of South Australia and in Victoria.

7 Mr Yates spoke about the defendants' commitment to ensuring a safe work place and the attitude adopted by the board of directors identifying in the group's policies the prime position of ensuring work place health and safety. The defendant had an occupational health and safety management system. The judgements that have been mentioned, in a number of places, referred to the extensiveness of that system and I have had (by reference to the exhibits to Mr Yates' affidavit), the opportunity of having that information placed before this Court. It was said that the defendant had developed an integrated occupational health and safety management system which was audited against the Australian and New Zealand Standard 4801 dealing with Occupational Health and Safety Management System - specifications with guidance for use.

8 It was said that this management system was a comprehensive series of integrated occupational health and safety procedures to cover the defendants' expanding operations and the exhibits supported that statement. The affidavit set out the key components of that occupational health and safety management system at the time of the incident. There was a reference to a safety risk management, requiring risk assessments to be undertaken for project work activities and involving the identification and assessment of risks, implementation of controls to eliminate or control risks and to review the risk assessment. There was a requirement for the preparation of a safe work method statement or hazard control plan. That required for each work activity a number of issues to be addressed including the identification of the qualification or experience of personnel, instruction and training requirements, the identification of the applicable legislation, codes of practice and standards, the level of supervision and inspection to be provided, the plant and equipment to be used, the protective equipment to be used, warning signs and control measures required, and, details of emergency procedures.

9 There was reference to safety induction and training designed to ensure that all of the defendant's employees and group employees were properly inducted prior to commencing work, and having their training needs identified to ensure all personnel were properly skilled, qualified and competent to perform their assigned duties or tasks. There was a notification and investigation of incident form ensuring that accidents and dangerous occurrences were appropriately reported, notified to the relevant authorities, investigated and that adequate planning was undertaken to prepare for and respond to emergencies. There was reference to contractor safety management, internal audits, and procedures to adequately monitor and assess their suitability and relevance and those things were implemented for the effective day to day operations of the group. There was provision for an external auditor (to ensure that the group maintained externally certified operation systems for occupational health and safety), safety inspections involving conduct and records of regular safety walk inspections at relevant sites and work activities, consultation with safety committees and safety recommendations and, identification and control of specific hazards and risks in relation to relevant sites and work activities. Those procedures involved a number of specific practices dealing with items such as asbestos, confined spaces, excavation, personal protective equipment and working at heights. There were a number of policies and procedures under the management system. There were policies for rehabilitation, alcohol and drug use, harassment and work place discrimination.

10 The safety management system involved the defendant requiring quarterly reports to the board and to the Abigroup Limited board assessing the occupational health and safety management system and other management systems in relation to the implementation of those systems and the management of the day to day operations of various projects. Those quarterly reports had been prepared since July 2001. The assessment of the management system and other management systems contained in those quarterly reports was based on the results of operational audits conducted either internally or externally and the assessments included a review of statutory notices issued on various projects by relevant health and safety authorities. A key responsibility of the board and other managers was to review the relevant report and to act on any recommendations in relation to the relevant management system and that process was said to ensure that the board and other managers were involved in the application, implementation and maintenance of an effective management system.

11 Details were given of occupational health and safety reports, the review of the occupational health and safety management system policies and procedures, the feedback mechanism as part of that review process, the provision of substantial resources to facilitate the integration of the safety management system in the day to day operation of the defendant and an explanation of the safe working method statement process and how the defendant conducted planning sessions to encourage input from all areas of a project including the employees involved in the relevant activity. That in turn involved pre-construction risk assessments prior to the commencement of each project. Those risk assessments and their results were regularly reviewed throughout the project. There was, in addition, subcontractor safe working method statements and safety plans and they were also reviewed by the defendant in accordance with New South Wales Government guidelines and Occupational Health and Safety management system guidelines.

12 Some detail was provided about the employees involved in this incident. The work crew on the day of the incident involved Mr Malcolm Smith, Mr Lance Fischer and Mr Paul Atkins. Mr Smith had been employed since August 2004 as a labourer and there was a description of the work he performed including dogging work, fork lift and crane operating work. He was a qualified dogman having 27 years experience at the time of the incident. He had been provided with occupational health and safety training including work place induction, site induction and had attended numerous tool box meetings. He had received training in the relevant safe working method statements including the formulation of the method statement dealing with this particular work and prepared in March of 2005. Mr Smith had also completed the WorkCover construction induction training certificate. The three people who comprised the work crew attended the tool box meeting in March of 2005 that provided training in the safe working method statement dealing with parapets.

13 The defendant had engaged an engineering firm to certify that the travelling formwork system was structurally adequate for use in the construction of parapets and that the formwork complied with the relevant Australian standards. After the incident, an investigation was commissioned from that engineering firm including the formulation of a new safe working method statement in relation to parapets. The defendant retrained all employees on this updated safe working method statement. There was reference in the affidavit to the assistance provided to the injured employee, detail of co-operation with the WorkCover authority and reference to a number of exhibits dealing with the good citizenship of the defendant through its support of groups from local sporting teams to health education and national research foundations and its provision of scholarships, cadetships and apprenticeships for those in the engineering and building industry. There was also a list of causes supported in 2006 by the Abigroup and material dealing with number of awards and prizes for excellence and high standards granted in relation to a number of projects.

14 It is against that evidence that the Court comes to consider an appropriate penalty. That task commences with a consideration of the objective seriousness of the offence. The offence has been briefly described and it has been accepted, in the Agreed Statement of Facts, that the safe work method statement in place for the conduct of the work on the day that this accident occurred was deficient in not specifying (a) that the platform should be dismantled into sections, (b) that the worker should not stand on the platform when it was supported by the crane, and (c) that there were clear instructions as to where a safety harness should be connected. The injured employee was wearing a safety harness but it was not effectively connected.

15 It seems from the material before the court that what indeed occurred on this day is aptly described as a short cut taken by the team involved in the work. They were skilled. They knew their obligations under the Act and the Regulation especially as to work platforms of this nature. It might be said that this platform, being joined in the way it was and in two sections, that the transfer of weight to one of those sections meant that there was a degree of foreseeability that the platform would move, and it would move when somebody was walking on it and there was a likelihood then that either the employee or the platform or both might fall. Here, it appears that the fall involved was between two and a half to three metres. The photographs indicate that this was a low level bridge but the Court has no evidence before it as to the range of work upon which this type of work platform was used by the defendant. The court is left therefore with the evidence of a short cut taken by trained and able employees involving the risk of a fall of somewhere between 2 and half to 3 metres. It was frankly conceded by the prosecutor that this was not an offence at the highest level of the range of penalties available: here the maximum penalty being $825.000.

16 The record of the defendant shows ten prior offences, five of those relating to a 1995 incident that was not concluded before the Full Court until 2004. It is to be noted at this early stage that for a long period of time, up until the mid 1990's and after some 40 years of participating in this industry, the defendant was able to do so without being convicted of any offence. Over the period of nearly ten years that these ten offences have been recorded, the most severe of those penalties were those imposed in relation to the Kogarah gas explosion. Again, the prosecutor frankly stated that the seriousness of this offence could not be considered as the equal of or a more serious offence than any of the five offences found in relation to the Kogarah gas explosion. I accept that concession as being properly made. Nevertheless, this incident did involve a foreseeable risk. It involved a platform falling a relatively short distance and the employees standing on that platform suffering broken ribs, bruising injuries and requiring absence from work for a period of approximately one month. In those circumstances this is a serious offence but it is one that might be properly considered to fall towards the lower end of the range of penalties.

17 In setting an appropriate penalty regard has to be had to general deterrence and I believe in this matter, specific deterrence also needs to be considered. This is a very large company employing a large number of people and in certain respects its record might be thought to be a comparatively good safety record. Its long history of operating without breaching relevant safety laws is now to be considered in the context of a period in which there have been some ten offences. That circumstance alone requires some significant element for specific deterrence in setting a penalty although, I accept on the evidence, that the defendant has a very well documented, audited and apparently enforced system of occupational health and safety in operation throughout its sites.

18 In relation to subjective factors, the defendant entered its plea promptly after the amended application for order was filed. That is to be regarded as an early plea and the defendant is entitled to a discount of 25 percent for that early plea. I take into account the existing significant system of safety already in operation and the steps taken to address the risk identified by this accident, although I must say it appears that risk might be more appropriately identified to the workforce who are to engage in the use of these work platforms. With that reservation I accept that there were prompt steps taken to address the risk. The evidence demonstrates the good corporate citizenship of the defendant, its involvement with a range of worthwhile causes, its promotion of cadetships and apprenticeships and those matters are all to be taken into account. I accept that it has co-operated with the WorkCover Authority in relation to this incident and that it has demonstrated contrition, not only by its early plea but by steps taken to address the detriment to safety demonstrated by this accident, its treatment of the injured employee and the expressions of contrition and regret which Mr Yates was authorised to give on behalf of the defendant. All of those matters will be taken into account in mitigation of the penalty.

19 Having regard to those matters the Court makes the following orders:

(1) The defendant is found guilty of a breach of s 8 (1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in matter number IRC 2700 of 2006.
(2) The defendant is fined the sum of $80,000 with half that sum to be paid to the Prosecutor by way of moiety.

(3) The defendant is to pay the costs of the Prosecutor, in a sum agreed or, in the absence of agreement, as ordered by the Court.

ANNEXURE

AGREED STATEMENT OF FACTS
1. At all material times the prosecutor was a inspector duly appointed under division 1 of Pt 5 of the Occupational Health & Safety Act, 2000 and empowered under s106(1)(c) of the said Act to institute proceedings in the within matter.
2. At all material ABIGROUP CONTRACTORS PTY LTD [ACN 000 201 506] (‘the defendant’) was a company duly incorporated and having its registered office at 924 Pacific Highway, Gordon in the State of New South Wales.

3. At all material times the defendant was an employer.

4. At all material times the defendant employed Malcolm Joseph Smith (‘the worker’) as a labourer/dogman.
5. At all material times the defendant was involved in the construction of a road bridge over Ghinni Ghinni Creek on the Pacific Highway approximately 15 kilometres north of Taree near the town of Coopernook, New South Wales (‘the site’).
6. On the morning of 7 May 2005 the worker was engaged in the process of dismantling a suspended work platform (‘the platform’) located beneath the bridge under construction by the defendant.
7. Prior to the dismantling process being undertaken on 7 May 2005 the worker, the crane driver, Lance Fischer and the foreman, Michael Sheehan, had discussed the work process to be used in dismantling the platform.
8. Arising from discussions between the worker, Sheehan and the crane driver, Fischer, it was determined to lift the platform to the ground as one platform.
9. Prior to the moving of the platform it was attached to four chain slings which were connected to a 20-tonne Franna Crane. The crane was being operated by Fischer at all material times.
10. The chain slings were placed around the horizontal supporting beams of the platform by the worker with the positioning of such chains being determined in consultation with Fischer.
11. Once the chain slings were in place supporting the platform the worker removed the supporting bolts that connected the platform to the vertical droppers or hangers, which hangers remained connected to the bridge.
12. Approximately 11.30am on 7 May 2005, when the worker disconnected the final bolt from the vertical dropper, he walked towards the southern end of the platform and as he did so, that end of the platform pivoted in the manner of a fulcrum when the weight is transferred to one end. As it did so, two sections of the platform tore apart and the southern end platform collapsed to the ground with the worker in it and the northern platform remained partly suspended on the slings of the crane.
13. As a consequence of the collapse of the platform the worker sustained a number of fractured ribs on his right side with additional bruising to the right side of his body and right leg. As a result of the incident the worker was unable to resume work for a period of approximately one month.
14. An inspection of the site was conducted by the prosecutor on 9 May 2005 where the following observations were made:

· A work platform, used as a part of the bridge parapet formwork system was positioned on the ground approximately 3 metres below the northern bridge where it was originally attached for working on the partly constructed bridge.
· This platform, when observed by the prosecutor, was clearly damaged, consistent with a fall to the ground, with planks and handrails dislodged and strewn around.
· The platform, known as an Enpro Traveller, was constructed from substantial welded steel framework using standard scaffold planks for decking. This platform was constructed in two separate sections, each section 6.7 metres long and 1.85 metres wide. Whilst they were originally bolted together to form one working platform approximately 13.4 metres long, the collapse caused the two sections to separate.
· Each section of the platform was fitted with two substantial steel vertical droppers. These droppers, painted blue, had been designed to suspend the work platform below the parapet traveller, which was positioned above.
· Each platform was surrounded by tubular steel guardrails.
· In general, the steelwork, handrails and structural members of each platform appeared, from initial inspection, to be in sound condition. There was no obvious sign of corrosion that may have weakened the structure on any of the metal parts observable at the time.
· Two lifting chains were attached to each platform at locations near the vertical droppers.
· The general overview of the worksite was one of minimal or no significant extraneous material below the platform, as the ground where the platform impacted was that of freshly levelled dirt on the riverbank, approximately some 10 metres from the water’s edge.

15. At all material times on and prior to 7 May 2005 the defendant had in place a Safe Work Method Statement (‘SWMS’) formulated on 18 March 2005 in respect of the work process referred to as ‘PARAPETS’. At clause 10 of the SWMS stipulated the procedure for ‘Dismantle Shutter and Traveller’, ie, the platform. It noted the major hazard to be ‘crush’ and further noted that the risk controls to be employed could be as follows:

Ensure dismantling operation is directed and controlled by one person/ensure all components are restrained and held via lifting equipment prior to removing all bolts/beware of pinch points or springing of load when removing final bolts.

16. The SWMS also stipulated that during the work performed in relation to parapets:

Protective equipment to be used: All necessary PPE/harness and lanyard.

17. At all material times prior to 7 May 2005 the worker, Fischer and Sheehan provided input in the preparation of the SWMS, although they did not refer to the SWMS in planning the work of shifting the platform on 7 May 2005.
18. At the time the platform collapsed the worker, was wearing a harness but the harness was not connected to any stable point on the bridge to restrain him from falling. This was despite the fact that the SWMS indicated that appropriate anchor points are to be established for harness use (at point 4 of the SMWS).
19. At all material times the SWMS dated 18 March 2005 did not stipulate the requirement that the platform be dismantled in two separate sections.
20. At the time the platform collapsed the worker was standing on it when it was relying for its support on the slings attached to the crane before lowering to the ground and as such, was in contravention of the requirements imposed by clause 142 of the Occupational Health & Safety Regulation 2001.
21. The Safe Work Method Statement which was in place for the conduct of the work of dismantling/ transporting the platform, was deficient in that it did not specify:
(a) The platform should be dismantled in two section;

(b) That the worker should not stand on the platform when it was supported by the crane;
(c) Clear instructions as to where a safety harness should be connected.

LAST UPDATED: 4 December 2007