Inspector Ron Spence v Allam Homes Pty Ltd and Inspector Ron Spence v Mehrban Allam [2008] NSWIRComm 249 (19 December 2008)

Last Updated: 16 January 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Ron Spence v Allam Homes Pty Ltd and Inspector Ron Spence v Mehrban Allam [2008] NSWIRComm 249



FILE NUMBER(S):
IRC 1336 and 1337

HEARING DATE(S):
15 December 2008

DATE OF JUDGMENT:
19 December 2008

PARTIES:
PROSECUTOR:
Inspector Ron Spence

DEFENDANTS:
Allam Homes Pty Ltd and
Mehrban Allam











CORAM:
Haylen J


CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(2), s 26(1) - corporation and managing director enter guilty pleas - residential building work conducted by sub-contractors - use of specialist void protection system - void protection system dismantled and re-erected by workmen delivering gyprock to site - workmen not trained in dismantling and re-erection of specialist equipment - void protection system fails and sub-contracted carpenter falls over 2 metres - serious breach established - significant injuries - early pleas entered and discount allowed - general and specific deterrence - first offenders - good corporate citizens - steps taken to address risk exposed by accident - contrition - managing director recipient of Order of Australia - good citizenship not in doubt - circumstances surrounding offence operate to exclude granting of order under s 10 of Crimes (Sentencing Procedure) Act 1999 - fines imposed

LEGAL REPRESENTATIVES

PROSECUTOR:
Ms P McDonald of counsel
SOLICITORS:
WorkCover Authority of NSW
Legal Group
(Ms K Longin)



DEFENDANTS:
Mr P Nematalla of counsel
SOLICITORS:
Reimer Winter Williamson Lawyers
(Mr N Williamson)



CASES CITED:
Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 at 62
Cummins J in DPP v Esso Australia [2001] VSC 263; (2001) 124 A Crim R 200

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s 10


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J

19 December 2008

Matter No IRC 1336 of 2008
INSPECTOR RON SPENCE v ALLAM HOMES PTY LTD
Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

Matter No IRC 1337 of 2008
INSPECTOR RON SPENCE v MEHRBAN ALLAM
Prosecution under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000

JUDGMENT
[2008] NSWIRComm 249

1 Allam Homes Pty Ltd has pleaded guilty to a breach of s 8(2) of the Occupational Health and Safety Act 2000. Mr Mehrban Allam, the managing director of the company, has also entered a plea of guilty to a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26(1). This judgment deals with the evidence and submissions on sentence.

2 The breach occurred on 16 August 2006 at a Lane Cove site where the company was building a two-storey house in circumstances where it was also constructing a two-storey house on an adjacent lot. The company's undertaking was the construction of residential houses and it engaged sub-contractors to undertake the construction, co-ordinating the sub-contractors and trades and arranging for materials and utility services for these projects. The company employed supervisors who had a number of building works under their care and at this site Mr Christopher White supervised the construction of the houses. His duties included the supervision of the construction of the houses on site from the excavation stage to the end of the maintenance period, co-ordinating the work of the various sub-contractors, reading safe work method statements received from sub-contractors, monitoring the work of any sub-contractor present on site and comparing their work with the safe work method statement.

3 At its sites, the company used the Flexi-Safe Void Protection System supplied by Oldfields Access Pty Ltd ("Oldfields"). That system was a scaffold platform erected to create a removable floor, with a platform forming a false plywood floor secured to decks and brackets that were in turn secured to the edges of the void. Such a system had been installed at the works and was present on 16 August 2006. During the course of the day, gyprock had been delivered to the building site by sub-contractors to Telik Ceiling Systems Pty Ltd ("Telik"), itself a contractor installing plasterboard sheets at the site. The employees delivering the gyprock removed the Flexi-Safe Void Protection System to allow the sheets to be stacked on the second level of the building. The void platform was then re-installed and the men delivering the gyprock left the site. Those employees had not received any training or information about the Flexi-Safe Void Protection System, its erection or demolition and re-erection. This was a specialist task to be performed only by skilled and trained employees.

4 Mr Martin Doe was a partner in the firm trading as BCM Carpentry Contractors and had been contracted by the defendant company to complete certain joinery work at the site. Mr William Doe, aged 64, was also a partner in that firm and had approximately 50 years' experience in the building industry. Mr William Doe, with Martin Doe, had been on site for a few days over the two weeks before 16 August 2006. Mr William Doe and his partner had walked over the Flexi-Safe Void Protection System after it was installed but at approximately 3.00 pm on 16 August 2006 the platform collapsed while Mr Doe was working on the house. Mr William Doe fell over two metres to the floor below and sustained a fracture to the left scapula, fractures to the 9th, 10th and 11th left ribs, a fracture to the C1 vertebra and minor displacement between C1 and C2 vertebrae, minor fractures to the L1 transverse processor and trauma to the right elbow as well as minor abrasions and slight amnesia.

5 The evidence for the prosecutor comprised of an Agreed Statement of Facts in each matter and in relation to the corporation included: an ASIC historic printout for the defendant corporation and associated companies; an occupational health and safety management plan for Allam Homes; a Void installation report ; 11 photographs taken by Mr White at the scene of the accident on 16 August 2006; an accident/investigation form completed by the corporation in relation to the incident; an Oldfields incident report of the incident; notices and memorandums sent by the corporation after the accident to heads of department, supervisors and gyprock suppliers; an Oldfields Flexi-Safe Void Protection System instruction; Oldfields safe work procedures; Oldfields Flexi-Safe Void Protection System and risk assessment; Oldfields Teach Easy handbook for the installation and removal of Void and fall-protection; Oldfields revised proposal for the supply of the Flexi-Safe Void protection system; a factual inspection report by Inspector Spence conducted on 25 August 2006; further photographs; and, a prior conviction certificate indicating that the defendant corporation had no prior convictions. In relation to Mr Allam, a number of the same documents were annexed to an Agreed Statement of Facts. A prior convictions certificate indicated that Mr Allam had no prior convictions. The Statement of Agreed Facts in relation to the corporate defendant is an annexure to this judgment. It should be noted that there were a number of additional matters dealt with in the Agreed Statement of Facts relating to Mr Allam that reflected his personal position as distinct from that of the corporate defendant.

6 In relation to the corporate defendant an affidavit by its operations manager, Mr Mark Davey, together with extensive exhibits was read and comprised the evidence for the company. In Mr Allam's case, he supplied an affidavit. Both Mr Davey and Mr Allam were cross-examined.

7 Mr Davey was the operations manager for the defendant corporation and amongst his qualifications he had completed occupational health and safety inductions and the WorkCover accredited safety committee induction course. He was currently undertaking a Bachelor of Housing degree at the University of Western Sydney. Mr Davey had worked as a carpenter and joiner and then as a foreman, working as a contracting carpenter and joiner between 1990 and 1993. The defendant began working for the corporation in 1993, for two years performed duties as a building supervisor and in 1995 he was promoted to the position of senior building supervisor. In 1997 he was appointed construction manager and in June 2003, was appointed to his current position. He was the managerial representative on the Allam Homes occupational health and safety committee and described himself as having responsibility for overseeing the implementation of company occupational health and safety policies at the operational level by the building site supervisors as they were devised and developed by the safety committee and authorised by Mr Bruce Roberts, the company's general manager.

8 On the day of the accident he was informed by the site supervisor, Mr White, of what had occurred and he discussed and reviewed the incident with Mr White. It was decided that the site was to be secured and an investigation initiated and Mr Davey immediately contacted Oldfields requesting that they return to the site, render it safe for other workers or members of the public who may enter the site without authorisation. After Oldfields had secured the site he initiated an incident investigation and reported to the general manager, Mr Bruce Roberts. Mr White also conducted his own investigation into the incident as part of his incident reporting duties. The investigation of the incident was ultimately conducted by Mr Davey, Mr White and Ms Diane Taylor (the safety committee chairperson). Mr Davey concluded that the accident occurred because contractors, delivering gyprock to the site for Telik, removed the support struts and braces of the void structure to allow them to deliver the plasterboard to the upper storey of the building as it was easier to do it that way. The contractors were not qualified to re-erect the structure and they failed to replace, in a proper manner, the support struts and braces resulting in part of the void structure collapsing and Mr Doe suffering injury.

9 Mr Davey accepted that, in relation to the potential risk, the corporate defendant could have done more in the form of signage and education to contractors to heighten awareness of those persons visiting or working on the company's sites. Mr Davey discussed with Mr White the removal of these structures by contractors, such as gyprock fixers, and was told that it was not standard procedure in the building industry for such contractors to take these steps and it was "extremely rare" for that to occur. He described the void device as a scaffold or tower consisting of tube struts joined together with braces and brackets to form a structure to support the decking floor, thus allowing workers to walk on it while they were working. He said that, prior to this incident, it did not occur to him or anyone employed by the corporate defendant that contractors, otherwise experienced in making deliveries to building sites, would interfere with the braces and struts of the structure in the course of carrying out their work. He accepted that the corporate defendant should have been aware that it had to be vigilant in looking for potential workplace dangers. He accepted that the removal by gyprock delivery contractors of some floor decking sheets and the thoroughfare hatch part of the floor could be anticipated because the hatch may not be wide enough for some pieces of gyprock to be passed through to an upper level. From time to time that led to parts of the decking floor surrounding the hatch and the hatch itself to be removed and once removed, the decking and hatch were easy to replace without creating a hazard. He agreed that interference with the supporting components of the structure, such as the struts and braces, by persons untrained in the installation of the Void system could compromise the whole structure and increase the risk of an accident. The identification of this risk and other potential risks in the workplace was the catalyst for a further review of the entire Allam Homes occupational health and safety system.

10 Mr Davey expressed the view that, in his working life with the corporate defendant, this was the most serious workplace incident and injury that had occurred involving the company and any of its contractors. The company had extensive experience in constructing double-storey dwellings involving contractors working at heights. The company had completed 621 dwellings between 1996 and 1999 when it concentrated on project homes and some 30 per cent of those homes were double-storey. Since 2000 the corporate defendant had focused on pre-planned residential developments, developing estates or whole neighbourhoods on its own stretches of land. Under this system approximately 1950 homes had been completed with almost 70 per cent being double-storey. The company had, therefore, accumulated extensive experience in the safety systems and construction methods required in the construction of double-story dwellings and he stated that this was reflected in its otherwise good safety record.

11 Mr Davey, often referring to documents annexed to his affidavit, gave details and explained the company's safety system up to the time of the accident. There was a site management plan containing a policy and procedure manual together with the company's safety policy statement. That document set out the protocols and procedures for reporting incidents to management and the occupational health and safety committee. The occupational health and safety committee comprising of Mr Davey as the managerial representative and an employee representative, administered the implementation and review of company occupational health and safety procedures and plans. There was a regular review of the occupational health and safety system, the plan and the policy by the safety committee members and the last review was held in 2005. Safety issues were on the agenda and Minutes were noted at the monthly building meetings. Safety information was regularly circulated by email and hard copy memorandum to contractors and site supervisors. Safety signs were displayed indicating safe procedures in relation to the void and in particular warning against interference with the struts. The company maintained subscriptions to WorkCover news and industry newsletters dealing with safety changes and regulatory requirements. It also subscribed to safety websites in order to maintain the currency of the company's policies and systems. The site management plan was circulated to all staff and site supervisors, with a copy attached to the staff noticeboard, and displayed in common places around the company's workplaces. It also appeared on the company's internet website. The company developed written descriptions of the roles and responsibilities of staff and management in relation to safety procedures and safe work statements and they were part of the site management plan. An annual review was undertaken of staff performances including a review of the safety performance. Responsibility for hazard identification and risk assessment was delegated to building supervisors who were frequently on construction sites and that task was undertaken in collaboration with contractors. The supervisors had standing authority to raise safety issues at construction and safety committee meetings. The company had developed and distributed a "subby pack" and safe work method statements to all contractors engaged at its sites. The subby pack was an Allam Homes innovation designed to assist sub-contractors to achieve a safer system at the company's sites. The contents of that pack were explained by Mr Davey as were the contents of the safe work method statements.

12 It was noted that Mr Doe and his son had been given a copy of the safe work method statements at their on-site induction and they had acknowledged their receipt of that statement by signing it and passing it to the site supervisor. Telik had been provided with a safe work method statement for ceiling fixers and gyprock contractors. Mr Davey said that after contractors had been given work on one of the company's sites, they were monitored by the site supervisor for their compliance with the safe work method statements. Breaches of the statements could result in a non-compliance certificate being issued and the offending contractor's engagement suspended until there was compliance with the requirements laid down in the statements. The supervisors had responsibility for rendering the site safe for access by the various trades and the corporate defendant considered that the supervisors at the worksite were in the best position to inspect workplaces and implement appropriate safe work systems for their trades. The company also conducted induction courses for employees and contractors who had not previously worked at its sites.

13 Mr Davey then dealt with how the company was developing a best practice safety system. In doing so he stated that the company accepted that, as principal contractor, it had a responsibility for ensuring that a safe system of work was in operation at its sites and for identifying and assessing existing hazards or anticipated hazards that might arise as work progressed. It was accepted that the company had a responsibility to provide warnings and safeguards to protect those coming on to the site. To ensure that this type of accident did not occur again, the corporate defendant had introduced best practice safety standards for the building industry at its various sites. Immediately following the incident, Mr Davey increased his efforts to emphasise to ceiling fixers and installation contractors entering the company's sites that at no time, or for any reason, were the struts and brace supporting components of the void platform be to be interfered by their staff. Further, the defendant company commissioned a consultant to conduct a thorough analysis and review of the safety system in existence at the time of the incident in order to identify deficiencies in that system and to make recommendations for improvement. The consultant had completed that analysis and had upgraded the safe work system adopted by the company. It was noted that the upgraded system would be implemented over several stages and the system would be fully compliant and consistent with the company's statutory obligations and building industry best practice. It was anticipated that the upgrade would be completed and fully implemented by September 2009.

14 Mr Davey had proposed that the company take the initiative and display new and more eye-catching warning signs on void structures than those used by the manufacturer. The proposal had been adopted and new signs containing the word "WARNING" in large white letters against a red background were now displayed in prominent positions over the entire void apparatus, together with signs fixed by the manufacturer.

15 Both Mr Davey and Mr White had made ongoing enquiries since the accident of Mr Doe's welfare and his rate of recovery. It was understood that, while Mr Doe's recovery was initially slow, Mr Davey said he was pleased to learn that Mr Doe had now been successfully rehabilitated and was otherwise well and had returned to work with BCM carpentry. The corporate defendant continued to engage that company.

16 Mr Mehrban Allam gave an outline of his background and how in 1946, with his parents, he had arrived in Australia from Pakistan. Mr Allam had acquired significant experience in real estate and as an employee had received promotions. He later purchased a real estate office in Wentworthville and later at Merrylands and Penrith. Those operations ran between 1978 and 1991 when he decided to sell his real estate business and in 1990 he formed Allam Homes as a builder of project homes. The defendant company grew steadily and by the end of the 1990s was ranked as the fifth largest builder of project homes in New South Wales.

17 Between 2001 and 2003, the project homes component of the business was wound back and the defendant company began to concentrate primarily on pre-planned residential development "spec" housing on its own land. Mr Allam described the core business activities of the company to include acquisition, planning and development of small, medium and large scale residential community developments, pre-planned attached housing, residential land sales, medium density development (townhouses/villas) and community facilities (amenity within community developments). The company also had some limited interest in commercial developments.

18 Mr Allam said that, during his business and personal life, he had always taken a strong interest in the community. The company had engaged in community projects with the Wesley Mission where it had raised in excess of $500,000 through the Hope Programme. The company had also raised a further $300,000 to assist the central coast youth drug initiative. Mr Allan was given recognition for these activities and in 2004 was honoured by being awarded the Order of Australia Medal for services to the community.

19 The role of director of the company was described by Mr Allam as primarily involving him in working on opportunities for developing the business so that it was strategically placed to continue to grow into the future. He had direct involvement with the acquisition of land and the seeking out of joint ventures for development and was ultimately responsible for all functions of the corporation. He regarded himself as having assembled a strong managerial team with competence and experience in the building industry and to whom he had delegated the day to day tasks and in particular, the construction activities of the company. Mr Allam said that he had always held the view that workplace safety and the welfare of his employees, contractors and the public were of paramount importance to the business. The company had a safety system in operation with a policy and procedure manual and a safety policy statement. He referred to the operation of the safety committee and how that committee oversaw the implementation and review of the company's safety policy and conducted regular reviews to ensure that the safety information was disseminated to site supervisors and contractors.

20 He was aware of the accident involving Mr Doe and regarded it as the most serious accident that had occurred since the company commenced operation. He understood that contractors had entered the site while delivering gyprock and had interfered with the supporting rails and brackets of the stair void safety platform structure and had failed to correctly replace the rails and brackets. The company's immediate response to the incident was to have its operations manager secure the site from any further accidents occurring and to prevent access to the site by unauthorised people. Mr Davey conducted an investigation into the incident and the relevant documents from Oldfields, dealing with proper maintenance and use of their void safety platform device, were brought to the attention of supervisors and contractors.

21 Since the incident, Allam Homes had embarked upon a complete review of its safety systems in order to adopt measures that would prevent this and any other type of accident from occurring again. The company had engaged consultants to conduct a complete audit and review of the company's safety systems and to make recommendations as to improvements. The consultants had recommended that the company adopt a comprehensive strategy bringing the company up to current best practice standards. Mr Allam described how, amongst other things under the new system, there would be staff re-training with a view to improving hazard identification and risk assessment procedures. Consultative procedures and protocols as well as upgrading the safety documentation would be established.

22 Mr Allam expressed his extreme sorrow that the accident had occurred on one of his building sites and stated that he had genuine sympathy for Mr Doe and the injuries he sustained and, with more stringent vigilance in relation to work safety systems, those injuries may have been avoided. He had made enquiries about Mr Doe and had been informed that he had returned to work with BCM Carpentry and that they had continued to work for the defendant company. Mr Allam spoke of his commitment to ensure that the company conducted safe work sites and operated to standards of best industry practice. He stated that, in his personal and professional life, he always strived for the highest standards and he was determined that the safety standards of the company would not be compromised.

23 In cross-examination, Mr Davey said that Mr White had some 30 years' experience in the building and construction industry and that was why it was significant that Mr White did not regard it as usual practice for sub-contractors to dismantle the core elements of the void system when delivering gyprock. In relation to Mr White's obligations as a supervisor, although it covered a wide area, the area was reviewed for the number of construction sites that were included in this area.

24 Mr Davey was not aware of an Oldfields' document that drew attention to the fact that contractors could dismantle the void structure and thus create risks and that certain fees would be applicable if Oldfields were required to attend the site to re-establish the void system. He accepted that, at the time of the incident, the safety system was available to the company staff on the company intranet, but the system was not given to sub-contractors although each supervisor had a personal copy that was kept with them but not kept separately on site. As a result of discussion with the occupational health and safety committee, directions were sent to all the sub-contractors that they were not to dismantle the void mechanism. One such instruction was sent to Telik but there was no instruction that Telik was to inform the delivery sub-contractor of these requirements. Mr Davey accepted that fact and said that he assumed Telik would pass it on to its sub-contractors. At the time of the accident, a warning sign supplied by Oldfields had not been used at the site.

25 In relation to the consultant's report, it carried the date November 2007 and then had a timeframe for implementation of its recommendations beginning in September 2008. Mr Davey was not sure why there was a 12 month delay between the accident and the consultant's report. He said that it took some time to engage the appropriate consultant but he was otherwise not able to say why the delay was of that order, nor was he able to say why there was a delay between the November 2007 report and the implementation of the recommendations beginning in September 2008. In 2000, the company had been given a WorkCover award for excellence in safety and that was presented at an HIA award night. The award had been received by the company when it was largely involved with project homes.

26 In cross-examination, Mr Allam agreed that a recent change in shareholding in which he bought out another partner in the business was an indication of his decision to remain involved in the business of Allam Homes. He agreed that he was ultimately responsible for the functions of the company and that one of the company's functions included performing its operations safely and ensuring the safety of its employees as well as sub-contractors and members of the public.

27 The terms of the November 2007 report submitted by the consultant engaged by the defendant company were drawn to Mr Allam's attention and in particular the following passages were referred to:

An organisation's future position as a responsible corporate citizen is affected by its ability to prevent workplace injuries and illness. A managed systematic approach is considered the most effective way to improve OHS performance and response to occupational health and safety legislation.

Having said that we found that there is little understanding about the OHS Management System at Allam; what it does, who it applies to and how it is managed and controlled, it is a hit and miss affair. Most of the responses received were guesswork.

A broad understanding that such a system exists or rather that it should exist was agreed, beyond this point however, the significance, relevance and substance of the system was lost on most of those interviewed.

A corporate OHS Management System will demonstrate an Organisation's OHS structure, policies and resources and will identify who is accountable for this. It will also demonstrate the integration of OHS requirements with the general management procedures, practices and performance standards of the organisation. The responses of those interviewed did not in any way demonstrate the company's capacity to meet this standard requirement. In fact, on the simple fact as to who might be accountable, nobody really knew (at p 12).

...

Simply the company does not appear to have put effort or energy into managing OHS in a systematic and process driven manner since it first commenced its recognition to be compliant in 2000 through to 2004 when the company operated under a different business structure and focus. Since the business focus changed from Project Home Builder direct to the public, to development of Speculative Homes, OHS has lost its importance and relevance in the business. The restructure and downsizing of the business lead (sic) to the eventual demise of OHS and its perceived necessity to the business.

The current OHS Management Manual is a document which for its time met the basic requirements of the legislation, however lacks substance simply through failure on the part of the company to review and assess it currency under changing conditions and pressures of the industry.

The focus and attention to safety in the manual is as it would have related to the Project Home business in 2004, when obligations and compliance was specific to direct employees and sub-contractors. The current document does not cover the obligations of the company being the client working with principal contractors. (at p 13).

28 Mr Allam said that he had read the report when it was provided and that he agreed with its findings. When his attention was drawn to the specific criticisms mentioned above, Mr Allam was less accepting of the findings made by the consultant and pointed out that these were issues identified some time ago and actions had been taken to overcome the problems. Mr Allam's attention was directed to his affidavit evidence that he had assembled a strong managerial team of competence and experience in the building industry and to whom he had delegated a task and in particular, the construction activities of Allam Homes. Mr Allam said that he believed that this was true at the time of the accident but by the time of the 2007 report it was not so and he was unable to explain how that deterioration arose. Ultimately, he stated that he did not particularly agree with the criticisms made in the consultant's 2007 report. When it was put to him that he was actually implementing the changes that had been recommended in the report he stated: "The others in the office are, yes". In relation to the consultant's criticism that the company did not appear to have put effort or energy into managing occupational health and safety in a systematic and process driven manner, Mr Allam said that he found it a little unusual that the company had won an award for occupational health and safety (identified by Mr Davey as being an award conferred in 2000). When asked if, up until November 2007, there was any type of system whereby the company reviewed and assessed its occupational health and safety obligations Mr Allam said he was not certain and that would be Mr Davey's responsibility. When asked if it was fair to say that as managing director of the company he really did not concern himself with occupational health and safety matters, Mr Allam replied that he was concerned but he did leave those matters to the managers of various departments. He said that he demonstrated his concern with instructions to his managerial team that whatever the company's legal obligations, they were to be complied with.

29 Mr Allam confirmed that the corporate defendant had decided to implement the consultant's plan but he was unsure where in the time scale implementation had been reached and stated that Mr Davey would be able to give details about that matter. Mr Allam thought the company was at stage four of the programme but Mr Davey's evidence made it clear that the company was at stage three: Mr Allam said that it was Mr Davey's responsibility for the day to day monitoring of the programme. In relation to reporting back mechanisms operating within the defendant corporation, Mr Allam said that there was a reporting line from Mr Davey to Mr Bruce Roberts, the general manager but not directly to Mr Allam. Mr Roberts did not report to Mr Allam in relation to these matters. Mr Allam was unable to say why there was a delay in bringing in the consultants when the accident occurred in August 2006 and the review was conducted 12 months later. Again, he thought that this was a matter left to the general manager and Mr Davey.

DELIBERATION
30 The defendant's plea of guilty to the offence had at its core acceptance of the following particulars:
· the defendant company failed to provide adequate instructions not to dismantle and/or reinstall the struts and infills of the Flexi-Safe Void Protection System to sub-contractors and to persons delivering material to the site;
· Allam Homes failed to provide or distribute information, including safety information about the Flexi-Safe Void Protection System, to sub-contractors and to persons delivering materials to the site;
· Allam Homes failed to ensure that, if components of an installed Flexi-Safe Void Protection System such as struts and infills were removed from the installation, only trained personnel reinstalled these components;
· Allam Homes failed to undertake any or any adequate risk assessment of the dismantling and reinstalling of the Flexi-Safe Void Protection System at the site;
· Allam Homes failed to distribute a risk assessment prepared by Oldfields Access Pty Ltd dealing with the Flexi-Safe Void Protection System to sub-contractors and to persons delivering materials to the site;
· Allam Homes failed to provide adequate supervision to the site.

31 The several aspects identified in the particulars establish a thorough going failure on the part of the defendants in relation to this aspect of its business operation.

32 The prosecutor has drawn attention to the following matters: the defendant company was constructing residential houses and engaged sub-contractors while co-ordinating sub-contractors and trades for the projects; the company did not have a full-time presence at the site and trades and sub-contractors were able to turn up unannounced; different sub-contractors and other entities delivering materials attended the site at different times; the company placed itself as dealing with other sub-contractors and therefore it had the relevant knowledge and information and the ability to pass on information about safety and risks to other persons; there was a good deal of material identifying the risk that would arise from the dismantling and re-installing of the void platform by untrained persons and it was clearly set out in the Flexi-Safe instructions, the risk assessment and the proposal sent to the defendant in June 2006; the Flexi-Safe System instructions directed that struts and infill support angles were never to be removed from an installation and if required to be moved, then contact was to be made with Oldfields with the further advice that incorrect installation of the struts could cause serious damage; the Flexi-Safe risk assessment identified as a risk that components could be incorrectly installed and that one control measure was installation by competent and trained installers acting in accordance with erection instructions, with an inspection by a competent person to be carried out on completion; also identified as a risk was the incorrect placement of removed components with the suggestion that only decks be removed from void platforms by users and that trained competent installers were to install or alter the components of the platform with both risks being classified at a level five, namely, "catastrophic"; the June 2006 proposals from Oldfields stated that, if all components were removed from the void platform including telescopic struts and infills brackets, it was the responsibility of the hirer to ensure that trained Oldfields' access installers re-installed the platform in accordance with the installation procedures; the proposal included charges for re-installation fees and futile call fees which were charged in circumstances including where installers were requested to return to the site for re-installation of void platforms due to removal by other sub-contractors working on the site; none of the information contained in the documents about risk to health and safety to workers and others on the site for the removal and installation of the void platform was given to sub-contractors or to persons delivering material to the site; the risk of the platform collapsing if it was incorrectly re-installed was foreseeable and that the defendant should have foreseen the risks; the risk of the void platform collapsing when it had been re-installed by untrained persons was foreseeable and the defendants were clearly on notice of that the risk. Those various elements identified by the prosecutor were not challenged by the defendants: indeed, having regard to the material in the hands of the defendants, it was accepted that the risk was foreseeable in circumstances where the platform was re-installed by untrained persons such as sub-contractors and that there was a personal/professional assessment wrongly made and the defendants "wholeheartedly" accepted their liability. Counsel for the defendants accepted that the shortcomings were "deep seated" and were exposed by the consultant's report. Despite Mr Allam's equivocation about accepting all the terms of the report, the corporate defendant did accept all the criticisms and all the recommendations to address deficiencies in the safety system. Finally, counsel for the defendant accepted that the breach was serious, falling within the lower mid-range to mid-range of penalties.

33 It might be said that all breaches of legislation like the Occupational Health and Safety Act might be regarded as serious but each breach has to be considered for its various components in order to place it appropriately within the range of penalties that might apply. The defendants' concession that the breach was serious, rather than trivial, and as to where it lay in the range of penalties were concessions properly made. It should be noted that it was submitted for the defendants that two additional matters should be considered: firstly, the fact that in the long experience of a person such as the supervisor, Mr White, this was a rare, almost unheard of occurrence in the project home building industry, and secondly, that Mr Allam had set up a senior and experienced management structure and had relied on their experience to deliver appropriate and effective safety systems. To the extent that those matters indicate that the defendant company had turned its mind to issues of safety and at least had addressed safety issues then that may be accepted, however, once the warnings had been been received from Oldfields about the dangers associated with removal and re-installation of the platform system by untrained sub-contractors then any prior experience held by Mr White and others was irrelevant in the face of these warnings by the specialist operator of that platform system. Equally, it is difficult to give a great deal of consideration to the fact that the entirety of the safety system of the company was delegated to others and was not subject to audit and review at the highest level of the company.

34 In this incident, the fact remains that there were simple remedial steps available to the defendants and it was as simple as passing on information already in their hands to sub-contractors and others coming on to the site. On consideration of all these matters, the offences are to be considered as serious breaches of the Act.

35 It has long been accepted that, in dealing with offences under the Occupational Health and Safety Act, general deterrence should normally be given substantial weight in the setting of an appropriate penalty and that approach will be adopted in this particular case. The building and construction industry is known for the inherent dangers that attend upon the great variety of work performed in that industry and the somewhat unusual facts of this case serve to highlight the need for employers to be diligent in identifying risks to safety before an accident occurs. There is also a significant role for specific deterrence in the setting of an appropriate penalty. The defendants continue to operate in the building and construction industry using significant numbers of sub-contractors. The evidence suggests that, while the defendant company was engaged in the project home business, it was able to maintain appropriate safety systems although being a large participant in this sector of the industry. That approach to safety appears to have suffered when the company altered the focus of its business to the large scale spec building of residential housing on its own land. These matters require the Court to treat specific deterrence as a significant issue in the present case.

36 In relation to subjective matters, both defendants entered their guilty pleas at the first return date of the orders. These pleas are clearly to be regarded as early pleas deserving a full discount of twenty-five per cent. Both defendants are first offenders and are entitled to the leniency which usually attends such a status. That record is to be considered a good record having regard to the extent of the building work undertaken in the housing industry by the defendants and the many contractors and sub-contractors engaged to perform that work. Undoubtedly, through the activities of Mr Allam as managing director, both defendants have demonstrated that they are good corporate citizens involved in considerable charity work. As already mentioned, the defendants had safety systems in operation although the protections of those systems seem to have deteriorated as the focus of the business changed from approximately 2004. The defendants had taken prompt steps to address deficiencies in the system of work and had begun an overhaul of the company's entire safety plan. In relation to contrition, both Mr Allam and Mr Davey expressed their sorrow and regret at the injuries sustained by Mr Doe and progress enquiries of Mr Doe had been made of others. As was pointed out by Boland J, President in Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 at 62, a simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable a Court to find the offender is remorseful. His Honour referred to a statement of Cummins J in DPP v Esso Australia [2001] VSC 263; (2001) 124 A Crim R 200 namely that, "personal expressions of remorse need to be translated into reality". The judgment in Cahill continued:

There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both).

37 In the present case, the evidence travels little beyond the early plea, personal statements or regret and rather remote enquiries about the welfare of Mr Doe. The company has, however, accepted responsibility for the omissions that brought about this injury, although Mr Allam was coy about deficiencies in the safety management of the business as exposed by the consultant's report. In this context remorse and contrition will be taken into account as mitigating factors.

38 A further matter was raised in relation to Mr Allam, namely, that this was an appropriate case in which the Court could exercise its discretion pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. It was readily conceded by counsel that this was not a trivial offence and the Court accepts that s 10 is available regardless of whether the offence can be properly described as trivial. Counsel pointed to the circumstances of the early plea, Mr Allam's seniority in the business and the steps he had taken to delegate safety issues to skilled and competent people and how he had relied on those people to deliver a system of safety that would protect all those who worked for the company. His work for charities recognised by the conferral upon him of the Order of Australia showed that he was an excellent citizen and those considerations outweighed the need for a conviction. Considering all these matters and his good citizenship, it was submitted that he should be allowed to walk from these proceedings without the stigma of a conviction.
39 In giving consideration to an order under s 10 of the Sentencing Act, the Court is to have regard to a number of factors, namely: the person's character, antecedents, age, health and mental condition; the trivial nature of the offence; the extenuating circumstances in which the offence was committed and, any other matter that the court thinks proper to consider. The offence to which Mr Allam has pleaded guilty is a serious breach of the Act and that has been acknowledged by his counsel on his behalf. There are no extenuating circumstances pointed to but rather matters are highlighted that would normally be considered as mitigating factors in the setting of an appropriate penalty (such as early plea, good prior record, existing safety systems and steps taken to improve those systems after the accident). It would seem, therefore, that the application for an order under s 10 rests primarily on Mr Allam's good character and there are numerous examples in the courts of those matters being of such significance as to warrant the exercise of the discretion. In this case, there was little by way of detail as to Mr Allam's charitable works although it was recorded that with the company he had been responsible for collecting large sums for two particular charities. There were no personal references or material that provided any substance to Mr Allam's standing in the community. That is not to say that the Court does not regard Mr Allam as otherwise being a good citizen who has been recognised by his country for his efforts for charity. The issue that stands singularly in the way of an order under s 10 is the circumstances surrounding this serious offence. The company had in its hands the assessment of the expert that supplied and erected this platform that its dismantling and re-erection by unqualified persons, including sub-contractors, posed a serious risk of injury. No steps were taken to pass this information on to contractors and others coming onto the site such as those delivering gyprock and other building materials. Mr Allam sat at the apex of the organisation and totally delegated the responsibility for occupational health and safety matters and took no steps to have those systems reviewed or audited or explained to him so as to satisfy himself that the systems were appropriate and effective. Further, his less than wholehearted support for the findings of the consultants was a concern - he appears to continue in the view that matters of safety can still be delegated to others without his oversight and input. In those circumstances, the Court is unable to exercise its discretion under s 10 of the Sentencing Act.

ORDERS
40 (a) in relation to Allam Homes Pty Ltd:

(i) the defendant, Allam Homes Pty Ltd, is convicted of a breach of s 8 (2) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 1336 of 2008, to which the defendant pleaded guilty;

(ii) the defendant is fined the sum of $140,000 with half that sum to be paid to the prosector by way of moiety;

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

(b) in relation to Mehrban Allam:

(i) the defendant, Mehrban Allam, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26(1) as particularised in Matter IRC 1337 of 2008, to which entered a plea of guilty;

(ii) the defendant is fined the sum of $14,000 with half that amount to be paid to the prosecutor by way of moiety;

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

ANNEXURE

AGREED STATEMENT OF FACTS

1. The prosecutor, Inspector Ron Spence is duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (“the Act”) and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter.

2. On 22 October 2008, the defendant, Allam Homes Pty. Limited [ACN 003 798 883] a corporation whose registered office is situated at 27 Lawson Street, Penrith in the State of New South Wales entered a plea of guilty to the following charge under section 8(2) of the Act that being an employer on 16 August 2006, at Lot 3, Penrose Street Lane Cove in the State of New South Wales, it failed to ensure that people other than its employees, namely William John Doe, were not exposed to risks to their health or safety arising from the conduct of the defendant’s undertaking whilst they were at the defendant’s place of work.
3. The particulars of the charge are:
(a) At all material times the defendant was an employer.

(b) At all material times the defendant’s undertaking was residential construction. As part of its undertaking the defendant was contracted to construct a house at Lot 3 Penrose Street Lane Cove (“the site”).

(c) The defendant failed to provide adequate instructions not to dismantle and/or reinstall the struts and infills of the Flexisafe Void Protection System to subcontractors and to persons delivering materials to the site;

(d) The defendant failed to provide or distribute information including safety information about the Flexisafe Void Protection System to subcontractors and to persons delivering materials to the site;

(e) The defendant failed to ensure that if components of an installed Flexisafe Void Protection System, such as struts and infills were removed from the installation, that only trained personnel reinstalled these components;

(f) The defendant failed to undertake any, or any adequate, risk assessment of the dismantling and reinstalling of the Flexisafe Void Protection System at the site;

(g) The defendant failed to distribute a risk assessment prepared by Oldfields Access Pty Ltd dealing with the Flexisafe Void Protection System to subcontractors and to persons delivering materials to the site;

(h) The defendant failed to provide adequate supervision at the site; and

(i) As a result of the said failures, William John Doe was placed at risk of injury and was seriously injured while employed at the site.

The Defendant

4. At all material times as at 16 August 2006 the defendant’s undertaking was construction of residential houses. The defendant engaged subcontractors to undertake the construction, and the defendant co-ordinated the subcontractors and trades and arranged for materials and utility services for its projects.
5. Mehrban Allam and George Allam were directors of the defendant.

6. The defendant was contracted by Mrs Yu Dan Yang to construct a two storey house on Lot 3 Penrose Street and by Ms Xiao Hong Huang and Mr Huang to build a two-storey house on the adjacent Lot 4 Penrose Street, Lane Cove.

7. The defendant was an employer and it appointed its employee Christopher White as the supervisor of the construction of the houses at the site.

8. Mr White’s duties included supervision of the construction of the houses on site from the excavation stage to the end of the maintenance period; co-ordinating the work of the various subcontractors; reading safe work method statements of subcontractors; monitoring the work of any subcontractor present at the site and comparing their work with the safe work method statement.
Installation of the Flexisafe Void Protection System

9. Oldfields Access Pty Ltd (Oldfields) manufactures, hires, sells and installs aluminium access products. Its products include a stair void platform known as the Flexisafe Void Protection System.

10. The Flexisafe Void Protection System comprises the following components:

(i) telescopic support strut assemble which adjust to the particular void openings;

(ii) plain decks;
(iii) access decks;
(iv) infill support brackets; and
(v) infill panels to suit specific void configuration.

11. The access decks included a hatch through which a ladder could be placed to allow access to the floor. The decks can be temporarily removed to allow delivery of material to the upper floor.

12. On about 4 May 2005 Oldfields entered into a supply agreement with the defendant whereby Oldfields would supply and install void protection to the defendant.

13. In 2006 pursuant to an order release form issued by the defendant, Oldfields supplied and installed the Flexisafe Void Protection System to the houses being constructed on Lots 3 and 4 Penrose Street Lane Cove.

14. Oldfields subcontracted the installation of the Flexisafe Void Protection System at Lots 3 and 4 Penrose Street Lane Cove to Versato Group Pty Ltd (“Versato”).

15. On 1 May 2006, Adrian Demarco who is a director of Versato installed the Flexisafe Void Protection System, into the partially constructed houses at Lots 3 and 4 Penrose Street Lane Cove. Mr Demarco completed a Void Installation Report which was forwarded to Oldfields.

16. The void in the house on Lot 3 Penrose Street Lane Cove was polygonal in shape, that is, it was in the form of a rectangle approximately 1.6 metres long and 1.9 metres wide, with two (2) triangles either end of the rectangle. The platform consisted of seven (7) components. Two (2) telescopic rails known as struts with brackets at each end spanned the void at the base of the triangle and were screwed into the wall floor plate on one side of the void and into the floor on the other side. Brackets, known as VAW or VAF brackets, were screwed into the floor on the arms of the triangles and plywood was screwed into the brackets to fill the triangular-shaped void. These triangular-shaped plywood sheets are known as infills. Three (3) rectangular-shaped decks hooked over the telescopic rails, to create a platform or deck. The infills or triangular-shaped components and the struts or telescopic rails were to remain undisturbed until they were dismantled by a trained worker from Oldfields or one of its agents.
Delivery of Gyprock

17. The defendant contracted Telik Ceiling Systems Pty Ltd (“Telik”) to supply and install plasterboard (gyprock) sheets to the site.

18. Prior to 16 August 2006 Telik had not received any documentation or instruction concerning the Flexisafe Void Protection System from the defendant.

19. Telik contracted with MMD Transport Pty Limited (“MMD”) to pick up and deliver gyprock to Lots 3 and 4 Penrose Street Lane Cove.

20. MMD employed Adam Russell and Matthew Vincent as labourers and gyprock carters and it employed Dennis Gavin as a supervisor (“MMD employees”).

21. On 16 August 2006 Dennis Gavin, Adam Russell and Matthew Vincent picked up the gyprock to be delivered to the site from CSR at Silverwater.

22. During the morning of 16 August 2006 the MMD employees delivered the gyprock to the house being constructed on Lot 4 Penrose Street Lane Cove.

23. The Flexisafe Void Protection System installed at Lot 4 Penrose St Lane Cove, was removed by Matthew Vincent. The gyprock was delivered to the second floor of the house and Matthew Vincent then reinstalled the void platform.

24. During the afternoon of 16 August 2006, the MMD employees returned to the site to deliver gyprock to Lot 3 Penrose Street Lane Cove.

25. The Flexisafe Void Protection System installed at Lot 3 Penrose St Lane Cove, and in particular the struts and infills were removed by Matthew Vincent. The gyprock was delivered to the second floor of the house and Matthew Vincent then reinstalled the void platform.
26. The MMD employees left the site.

27. The MMD employees had received no training or information about the Flexisafe Void Protection System. The MMD employees were not instructed not to remove or dismantle or reinstall the struts and infills of the Flexisafe Void Protection System.
The Incident

28. The defendant contracted C.J. Doe, M.R. Doe & W.J. Doe, trading as BCM Carpentry Contractors (“BCM”), a family partnership, to complete joinery work, such as, installing eaves, sliding doors, re-nailing straightening and adjusting noggings, and boxing in air-conditioning ducts.

29. The partners of BCM included William Doe and Martyn Doe. William Doe was 64 years old, a carpenter and had approximately 50 years experience in the building industry.

30. Before 16 August 2006, William Doe and Martyn Doe had been at the

site for a few days over the preceding two weeks. William Doe had walked over the Flexisafe Void Protection System at least twice prior to the incident.

31. After the delivery of the gyprock to the first floor by MMD employees and at approximately 3 pm on 16 August 2006, William Doe was working in the house on Lot 3 Penrose Street Lane Cove, he ascended the access ladder through the void platform and commenced walking across the platform when it collapsed.

32. William Doe fell to the floor below. He sustained a fracture to the left scapula, fractures to the 9th, 10th and 11th left ribs, a fracture to the C1 vertebrae and minor displacement between C1 and C2 vertebrae, minor fractures to the L1 transverse processor and trauma to the right elbow as well as minor abrasions and slight amnesia.

33. On 16 August 2006 after the incident, Chris White attended the scene of the incident and took 11 photographs of the incident scene.

34. In its accident and investigation report on the incident, the defendant analysed the cause of the incident as:

Upon delivery of gyprock the support rails for the stair void were removed and not reinstalled correctly.

35. The defendant arranged for Oldfields to attend the site on the night of 16 August 2003 and Oldfields reinstalled the void platform on the site. Oldfields completed an incident report in which it was observed in the section concerning details of what may have caused the incident; “Void was removed for delivery of materials up to first floor, one of the components bent (which needed to be replaced) void reinstalled incorrectly”.

36. After the incident the defendant issued instructions to its heads of departments, supervisors and to directors of gyprock companies working for the defendant, which prohibited the removing of support rails or brackets.

Documentation dealing with the Flexisafe Void Protection System

37. The defendant had received prior to the incident information from Oldfields that clearly identified as a risk the incorrect reinstallation of the void platform.

38. Oldfields had developed documentation for the Flexisafe Void Protection System, namely:

(i) The Flexisafe Void Protection System Instructions;

(ii) Safe Work Procedure;

(iii) Flexi-Safe Stair Void Protection System Risk Assessment, and

(iv) The Teach Easy Handbook for the Installation and Removal of

Voids and Fall Protection.

These documents indicate the seriousness and possible consequence if certain components of the platform are removed and re-installed incorrectly.

39. The Flexisafe Void Protection system instructions stated: “Struts and Infill Support Angles must NEVER be removed from an installation, if required to be moved please contact Oldfields Access Pty Limited on the number above. The incorrect installation of the strut can cause serious damage.”

40. The Flexisafe Void Protection System Risk Assessment identified as a risk that components could be incorrectly installed and nominated as a control measure that the stair void is to be installed by competent trained installers as per erection instructions and the void platform is to be inspected by a competent person on completion. It also identified as a risk the incorrect replacement of removed components and identified as a control measure that only decks be removed from void platforms by users and that trained competent installers are to install or alter other components of the void platform. Both risks were classified as a level 5 – Catastrophic.
41. Oldfields had provided copies of these documents to the defendant.

42. On 6 June 2006 Oldfields supplied to the defendant a revised proposal for the supply of the Flexisafe Void Protection System. The proposal provided under the heading “Flexisafe Void Protection”:

If all components are removed from the void platform, including telescopic struts and infill brackets, then it is the responsibility of the hirer to ensure that trained Oldfields Access installers re-install the platform in accordance with Oldfields Access installation procedures.

43. The defendant did not give any or any adequate instructions to its subcontractors, or to persons delivering material such as gyprock to the site regarding removing and replacing components of the Flexisafe Void Protection System.

44. The defendant did not give to Telik the Oldfields’ documentation concerning the Flexisafe Void Protection System. Telik was not given any instruction or training by the defendant in these documents, or instruction or training with regards to the Flexisafe Void Protection System.

45. The MMD employees had not seen the Oldfields’ documentation concerning the Flexisafe Void Protection System. The MMD employees were not given any information about the Flexisafe Void Protection System. MMD employees had no contact, either direct or indirect, with the defendant’s supervisor Mr White.

46. MMD was not supplied with any documentation that would have alerted MMD to the hazard of incorrect installation of the Flexisafe Void Protection System, and the insistence by Oldfield’s for certified installers.

47. The defendant did not undertake a risk assessment of the dismantling and reinstalling of the Flexisafe Void Protection System at the site.

48. A thorough risk assessment would have identified the foreseeable hazard of the removal of the platform by an uncertified person.

49. The defendant did not provide adequate supervision at the site. The duties of Christopher White, the defendant’s building supervisor, included the supervision of the constructions of the homes at Lots 3 and 4 Penrose Street Lane Cove. At the same time he was supervising the construction of approximately 15 homes on the Central Coast and 9 cottages at Kellyville.

50. There was no system for the distribution of information or the giving of instructions to the subcontractors about the void platform system.

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LAST UPDATED:
19 December 2008