Inspector Richard Mulder v Axis Metal Roofing Pty Ltd [2008] NSWIRComm 28 (17 March 2008)

New South Wales Industrial Relations Commission

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Inspector Richard Mulder v Axis Metal Roofing Pty Ltd [2008] NSWIRComm 28 (17 March 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Richard Mulder v Axis Metal Roofing Pty Ltd [2008] NSWIRComm 28



FILE NUMBER(S):
IRC1086

HEARING DATE(S):
29/11/07

DATE OF JUDGMENT:
17 March 2008

PARTIES:
Prosecutor:
Inspector Richard Mulder
Defendant:
Axis Metal Roofing Pty Ltd


CORAM:
Kavanagh J


CATCHWORDS: Charge under s8(1) of the Occupational Health and Safety Act (2000) against employer - plea of guilty - construction site - employers failure to ensure penetrations were safely covered - inspections conducted but failed to identify on-going risk - foreseeable risk to safety - contribution of third parties - apprentice not warned of known risk - risk of fall became reality - subjective features - penalty imposed


LEGAL REPRESENTATIVES
Prosecutor:
Mr R. Reitano of counsel
Solicitors:
Mr H. Bell
WorkCover Authority of NSW
Defendant:
Mr P.M. Strickland SC with Mr Martin Walsh of counsel
Solicitors:
Mr P. Snelgrove
Snelgroves


CASES CITED:
Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610
Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch’ng) (1999) 90 IR 464
Markarian v R [2005] HCA 25; (2005) 215 ALR 213
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Tyler v Sydney Electricity (1993) 47 IR 1
WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316

LEGISLATION CITED:
Occupational Health and Safety Act 2000


TEXTS CITED:




JUDGMENT:

- 15 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Kavanagh J

Monday 17 March 2008

Matter No IRC 1086 of 2006
INSPECTOR RICHARD MULDER v AXIS METAL ROOFING PTY LTD
Prosecution under s8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2008] NSWIRComm 28

1 This prosecution is brought by Inspector Richard Mulder of the WorkCover Authority of New South Wales against Axis Metal Roofing Pty Ltd (the defendant) under s8(1) of the Occupational Health and Safety Act 2000 (the Act), by way of an Application for Order.

2 It is alleged the defendant, on 12 July 2004, contravened s8(1) of the Act in that it failed to:

. . . ensure the heath safety and welfare at work of all of its employees and in particular, Louay Sadik, contrary to Section 8(1) of the Occupational Health and Safety Act 2000.

In particular, the defendant:

(b) failed to ensure that penetrations at the construction site and, in particular the covers to penetrations in Fan Room No 1, were secured in a manner that ensured that people working near the penetrations were not at risk of falling through the penetrations;

(c) failed to ensure that there was a proper and appropriate inspection of the area in which persons were working, known as Fan Room No 1, so as to identify and rectify any risks associated with inadequately guarded or secured penetrations;

(d) failed to adequately identify the risks to persons working in the area known as Fan Room No 1 and to warn persons working in that area about the risk created by inadequately guarded or secured penetrations;

(e) As a result of the corporation’s failures Louay Sadik and other persons working at the construction site were placed at risk of injury.

3 The defendant pleads guilty to the charge.

4 Mr R. Reitano of counsel appeared for the prosecution and Mr P.M. Strickland SC with Mr Martin Walsh, of counsel, appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts, several photographs, a Factual Inspection Report and the Prior Conviction Statement of the company.

5 The defendant tendered an affidavit of Hugh Joseph Tabone sworn 28 November 2007, an affidavit of Craig James Christieson sworn 28 November 2007 and four references going to company's attitude to Occupational Health and Safety from Warwick Johnson, Senior Project Manager, Multiplex dated 27 November 2007; A.M. Dragicevich, Managing Director, Red Paper Group dated 27 November 2007; Robert Glass, R.A. Glass & Co, Chartered Accountant dated 27 November 2007; and Robert Garling, Commercial and Industrial Manager, St Hilliers Contracting dated 28 November 2007.

6 The Agreed Statement of Facts relevantly reads (as amended):

3. In October 2002 Waste Services NSW entered into a public/private partnership with Global Renewables Ltd to construct the UR-3R Facility at Eastern Creek, New South Wales. Global Renewables Ltd is jointly owned by GRD Ltd (GRD Minproc’s parent company) and Hastings Funds Management Ltd. Global Renewables Ltd developed, owns and operates the Eastern Creek UR-3R Facility under contract to Waste Service NSW.

4. At all material times GRD Minproc Ltd (“GRD Minproc”) was contracted to design and construct the UR-3R facility at a construction site located at the Waste Management Centre, Wallgrove Road, Eastern Creek, in the state of New South Wales (“the site”).

5. On 30 January 2004 GRD Minproc, as the main contractor, entered into a contract with Axis as a subcontractor, to install and erect wall & roof cladding at the site. The contract between GRD Minproc and Axis was a written contract no. 50766-3008.

6. Axis commenced work at the construction site in March 2004.

7. GRD Minproc established a Health Safety & Environment (HSE) Plan for the site. A requirement by GRD Minproc was for all of its contractors to comply with this system of work. Each contractor at the site also needed to submit a copy of their own HSE plan to GRD Minproc for review once awarded the contract to undertake works.

8. GRD Minproc contracted Process Engineering to provide construction/project management services at the site including the provision of a Construction Manager. The Construction Manager had overall responsibility to implement the HSE plan on site, ensure that contractors complied and adhered to HSE requirements and monitor and report on OHS issues that were raised. Mr Griffith performed the role of Construction Manager at the site.

9. Mr Griffith was an employee at Process Engineering. He was a member of the site safety committee. In the role of providing a Construction Manager, Process Engineering required Griffith to be on the site at all times performing the duties required of the defendants Construction Manager as required by the contract between GRD and Process Engineering. This included displaying 'due diligence' in all health and safety matters, enuring that risk assessments were conducted for all major site activities and ensuring that all persons on site were informed of hazards associated with their work and making sure all occupational health and safety requirements were adhered to.

10. A system in health and safety was implemented on the project by GRD Minproc and the subcontractors including AXIS to ensure the site was safe. This included:

a. a hazard analysis conducted before the commencement of work on the site;

b. the implementation of the project specific HSE plan;

c. monitoring of conformance to that plan;

d. various levels of internal auditing;

e. personnel employed specifically to ensure that the site was safe;

f. review of sub-contractor health and safety plans and procedures;

g. on-going monitoring of the performance of sub-contractors;

h. the formation of regular inspections by health and safety committee;

i. regular safety audits

11. Axis as a subcontractor was required to comply with the HSE Plan adopted by GRD Minproc. Axis was also required to submit its own HSE Plan to GRD Minproc for review.

12. Axis indicated that it was using two OHS Management Systems to cover the UR-3R Facility project. A Site Specific Safety Plan dated 9 August 2004 and OHS&R Management system dated 10 August 2004. The documents provided to WorkCover are dated post the incident date of 12 July 2004. Hugh Tabone director of Axis indicated that similar documents were in place at the time of the incident.

13. Part of GRD Minproc’s HSE plan was for subcontractors to conduct daily documented inspections of subcontractor work areas, pre-start meetings and the development of Job Safety Analysis (JSA) for work to be carried out. JSA’s were to be submitted to Griffith for review.

14. GRD Minproc and a number of sub-contractors held weekly safety walks. During those walks, the covers of the penetration holes were inspected and assessed.

15. GRD Minproc also contracted JR Wright Consulting Pty Ltd as a Mechanical Supervisor for specific areas of the Construction site. James Wright (“Wright”), director of JR Wright Consulting Pty Ltd performed the role of Mechanical Supervisor and was responsible for supervising installation and erection of wall and roof cladding; plastic pipe installation; pipe work systems and mechanical fit out in compost hall area. Wright was required to report to the defendant.

16. At all material times Axis employed Louay Sadik (“Sadik”) as a 1st year apprentice roof plumber. Sadik was 16 years of age on 12 July 2004. Sadik commenced employment with Axis in February 2004.

17. At all material times Axis employed Shayne Riley (“Riley”) as a labourer. Riley had been employed by Axis for approximately six years at the time of the incident on 12 July 2004.

18. At all material times Axis employed Peter Smits (“Smits”) as the on site leading hand at the site. Smits was responsible for the supervision of Sadik and Riley on 12 July 2004.

19. Fan Room No 1 was on the ground floor with an underground room below it. This was known as the plenum. There were a number of penetrations in the floor of the fan room which opened to the plenum below.

20. Prior to Axis commencing work on the wall and roof cladding for Fan Room No 1 the civil works in this area were to be completed. The civil works contractor at the site was Arenco Pty Ltd (“Arenco”). Initially Arenco used plywood to cover the penetrations within Fan Room No 1. The plywood covers were replaced with 200 x 200 mm square mesh to allow both light and ventilation to the plenum below.

21. During a Site Safety Committee inspection on 2 June 2004 members of the Safety Committee expressed concerns that someone could get their boot caught within the gap of the 200 x 200mm mesh. It was then decided to upgrade the penetration covers with smaller 100 x 100mm squares. Some of penetrations were covered with 100 x 100 mm square mesh (“mesh”). The penetration through which Sadik fell had been covered with reinforcing bars tied at right angles into a mesh configuration (“mesh configuration”) of approximately 100mm x 100mm squares using tie wire.

22. The covers of each penetration were secured by reinforced Steel bars and double ties. A standard type of tie wire was used to secure the mesh or mesh configuration to the reinforcing bars placed under the steel flanges around each penetration. Phil Douch, the Operations Manager Infrastructure for Arenco had inspected the covers during site visits, stood on the mesh of one such cover and was satisfied that the mesh and the fixings were strong enough to hold people standing on it if the method of securing it with ties securely tying the mesh to the metal rods placed equidistantly around the penetration and protruding from under the flange was properly implemented.

23. The upgrade of the penetrations was completed prior to the next Safety Committee inspection on 8 June 2004.

24. On 7 July 2004 GRD Minproc issued a letter to Arenco approving completion for the area of the Compost Building (which included Fan Room No1). Upon the certificate of substantial completion being issued, the work area was handed back to GRD Minproc. Under the procedure that was applied at the site, the contractor remained responsible for works associated with repairing defects but was not otherwise responsible for the general maintenance of the area.

25. Upon completion of civil works, mechanical works commenced in the Fan Room No 1 area. There was no formal handover undertaken by GRD Minproc between construction stages (i.e Civil Works completion to Mechanical Works commencement).

26. Axis employees commenced work in Fan Room No 1 on approximately 9 July 2004. Before AXIS employees commenced work on 9 July, Hugh Tabone, a director of Axis, conducted a visual inspection of the meshing covering the penetration holes. Mr Tabone checked to ensure that in relation to each penetration hole, the mesh was tied down with wire. He did so from a standing position. He did not bend down and closely inspect each piece of the wire to make sure that it was in fact tied and in fact tied securely. He did not touch or move the mesh or the ties in order to ascertain whether or not either was securely attached. He considered the penetrations to be securely covered.

27. Prior to commencing work, Axis requested that other trades not undertake work in the fan room area whilst they were working there to avoid congestion and requested the fans installed within Fan Room No 1 be removed to allow less clutter and better access to the site. Wright was responsible for the removal of the fans, which was carried out prior to Axis commencing work in Fan Room No 1 area.

28. On the morning of 12 July 2004 Smits following his general routine, inspected each of the penetrations. He looked at them from a standing position and observed that each of the tie-wires were still in place and were not moving. He did not bend over and inspect the ties or the mesh closely to ascertain whether the ties were securely attached. He gave each of them a kick or two at one point on each cover in order to determine whether the covers were secure. He formed the opinion they were secure. This was part of Smits’ site inspection on that day.

29. Smits did not see anyone working in the plenum on or before 12 July 2004.

30. Smits spoke to the Axis employees on the morning of 12 July 2004 before they started work. The purpose of speaking to them included informing employees of any changes to the Job Safety Analysis through a review, and any changes to the worksite. Nothing specific for the work undertaken by Sadik and Riley on 12 July 2004 was discussed before they commenced work that day. Nothing was said to either Sadik or Riley on that day or on any earlier day informing them about any risk associated with the penetrations or the risk that might arise if the penetrations were not securely covered. Nothing was said to either of them of the risk associated with falling into the penetrations.

31. On 12 July 2004 Smits instructed Sadik and Riley to work in Fan Room No 1 at the site. They were instructed to undertake the task of bolting brackets to a ‘V’ shaped Colorbond Aramax roof sheet and to attach winch cables to the brackets.

32. On 12 July 2004 at approximately 1.45pm Sadik and Riley were attempting to move a 12m Colorbond Aramax roof sheet to place it upon timber provided to make room for the next roof sheet which required brackets to be fixed. They proceeded to slide the sheet along with Riley pulling the sheet and Sadik pushing it from the other side. Whilst pushing the sheet Sadik placed one foot on the mesh configuration covering a penetration. As he attempted to move the 12m Colorbond Aramax sheet, the mesh configuration slipped and tipped beneath Sadik’s foot exposing the penetration. Sadik lost his balance and fell through the penetration down to the concrete plenum floor approximately 4.4 metres below. The penetration was approximately 820mm in width.

33. The incident was witnessed by Riley. Riley attempted to grab Sadik as he fell but was unable to reach Sadik in time. Following the incident Riley looked into the penetration through which Sadik had fallen. It was dark but he could see that Sadik was lying still. He called out but received no response. He then sought assistance from co-workers working in a boom lift at the western end of the fan room. A ladder was obtained to access Sadik and first aid notified. Sadik was lifted out of the hole into which he had fallen through a different penetration.

34. As a result of the incident on 12 July 2004 Sadik suffered from a broken left forearm with medium nerve injury and bruising to the head. Sadik was off work from 12 July 2004 to 9 September 2004. Sadik returned to work under suitable duties from 9 September 2004.

35. On 12 July 2004 shortly after the incident, Martin Fahey an employee of Arenco Pty Ltd was asked by Mike McKenzie and Charlie Katancamp on behalf of GRD Minproc, to undertake rectification work by resecuring all penetration covers in the fan rooms. Three or four of the penetration covers in the area were not properly secured as the wire ties that were supposed to be attached to the reinforcing bars under the steel flange appeared to be cut at one end. The covers were sitting over the penetrations but were not securely tied down which would allow the covers to slide off the penetrations.

36. Axis employees were supervised by Peter Smits and/or the tradesmen on site. At the time of the incident on 12 July 2004, Smits was undertaking work at the site office.

37. Sadik and Riley were trained in installing of brackets on roof sheeting approx 4 to 6 weeks prior to commencing work in Fan Room No1. The training provided was verbal and “on the job” training. Both Sadik and Riley had been inducted for work at the site. The induction did not include any information at all about the risk posed by penetrations at fan Room Number 1 or the risk posed by penetrations that were not securely covered.

38. Prior to Axis being given access to the site of Fan Room No 1 GRD Minproc’s supervisor was to hand over the area safe. Wright stated that an inspection of the site was done and all penetrations appeared to be securely covered and the deck clear. No records were kept of the supervisor’s inspection or handover to the subcontractor. Wright was unaware that daily supervisor checklists were required to be completed. No risk assessment was undertaken in respect of the penetrations prior to work commencing in the area other than to visually check that the penetration covers were over the penetrations.

39. Prior to Axis recommencing work at the site following the incident on 12 July 2004 the mesh and mesh configuration were welded down to prevent them from being untied, or moved or otherwise interfered with so that they remained securely in position or serve the purpose of securely covering the penetrations in such a way as to prevent someone falling through them. A procedure was also implemented that no new work area was to be opened without an inspection carried out by an appointed GRD Minproc’s Safety Supervisor.

40. Employees of Axis were of the opinion that AXIS took safety issues very seriously on site.

. . .

Relevant Principles
7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213 and their Honours’ view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the “instinctive synthesis” approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

8 Their Honours recognised the “instinctive synthesis” approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a “staged sentencing process” starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]).

9 Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this “instinctive synthesis” approach to sentencing saying at [57]:

The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.

10 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health, safety and welfare at the workplace.

Consideration
11 In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474)).

12 GRD Minproc was principal contractor at the construction site of the UR-3R Waste Facility at Eastern Creek. It bore the onus for safe working. However, under the Occupational Health and Safety Act 2000, the defendant company Axis Metal Roofing Pty Ltd (Axis) had an absolute obligation to ensure a safe workplace for its employees. Under the contract with the principal contractor GRD Minproc, Axis, the employer of the two employees exposed to the risk to their safety, was also answerable to the principal contractor for all Occupational Health and Safety matters relating to its employees.

13 On 12 July 2004, an Axis employee fell 4.4 metres to a plenum chamber below Fan Room No. 1. He was an indentured apprentice and had worked with the company only six months. As part of its system of work imposed through their Health Safety and Environment Plan (HSE Plan), the principal contractor required them to submit their safety plans for review. While it is asserted the appropriate Axis' Site Specific Safety Plan and OHS&R Management System were in place at the time of the incident, only those documents post-dating the incident have been produced.

14 The activities of the defendant company indicate it was following the system for safe working imposed on contractors on site by the principal contractor and in accordance with the obligations placed on it under the Act.

15 For the purpose of site safety, the activities conducted by the defendant were as follows: on the afternoon of 9 July 2004, before the roofing work was commenced, an inspection of the penetrations in Fan Room No. 1 was conducted by Mr H. Tabone, a director of the defendant family company and active at the worksite. There were a multitude of penetrations in the floor of Fan Room No. 1, each covered by a wire mesh braced with steel bars and the mesh tied onto the reo-bars with tie wire knotted doubly. During the inspection, Mr Tabone asked for some equipment on site to be removed. That was done. In the inspection, Mr Tabone revealed he looked at each mesh cover and was satisfied the site was safe for working.

16 Before work commenced on 12 July 2004, Mr Peter Smits, the leading hand for the defendant company, conducted a further inspection of the penetration covers in Fan Room No. 1. In his inspections, Mr Smits kicked each cover. He also looked at the ties on each penetration cover. His inspection was a safety measure completed in accordance with both the defendant company's and the principle contractor's HSE Plan. There was then a pre-work meeting conducted through Mr Smits on the morning of 12 July 2004 where Mr Riley and the apprentice, Mr Sadik, reviewed their task which was to bolt brackets to "V" shaped Colorbond Aramax roof sheets. Mr Smits, not at that meeting nor at any other time, gave no direct warning as to the risk to safety related to the penetration which risk was identified as a fall through the penetration, 4.4 metres, into a plenum chamber below.

17 Evidence revealed that in the process of manoeuvring one of the roof sheets across the floor, Mr Sadik placed his foot on/against a penetration cover. He had braced himself against the penetration to assist him in pushing one of the long narrow roof sheets across the floor. He therein applied force to the mesh covering on a penetration. Mr Riley was opposite him pulling the sheet to assist in the movement. The mesh cover slipped. Mr Sadik lost his balance and fell down the penetration hole a distance 4.4 metres to the floor below. He suffered a broken arm and has since felt fear.

18 In this circumstance, the risk to safety became reality.

19 The charge for which the defendant is brought before the Court and to which it pleads guilty is "the offence". Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 re-iterated [at 43]:

. . . the penalty is fixed for the offence found to have been proven. It is, therefore, to the offence itself to which attention is to be directed and not . . . the occurrence of the accident and the contribution of other persons for what occurred.

There was a failure by the defendant to secure, to properly inspect and to warn of the risk posed by the unsecured penetrations.

20 An element of foreseeability to an offence can make that offence more serious (see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [81]-[82]). The defendant as the employer was statutorily obliged to safely secure the penetrations on site. There was a failure to properly secure the unsecured penetrations. The prosecution, urges a finding the failure to properly inspect contributed to the foreseeability of the offence. However, I reject this submission.

21 Taking into account the role of the Site Safety Committee, the history of inspections and how they were conducted and the type of inspections conducted by the defendant's director and foreman, I do not accept such a failure to properly inspect contributed to the foreseeability of the ongoing existence of the risk. The inspections were conducted and they were thorough in the circumstances. On behalf of the defendant company, Mr Smits kicked the penetration covers. There was no movement. The movement occurred with the application of force on a particular angle, whether the covers were cut or not perfectly tied or the reo-bars were out of alignment. The inspections failed to identify the ongoing risk as asserted by the Prosecutor. But I do not accept they contributed to the existence of the ongoing risk. They contributed only to the failure to recognise the risk was still in existence. However, the risk provided by the penetrations was known and therein the failure to warn its employees of the risk contributed to the offence which was a failure to provide a safe system for safe working.

22 The failure to properly secure and the failure to warn gave a foreseeable element to the offence such as to make it more serious.

23 The defendant company presents as a most responsible employer. It employs up to five indentured apprentices ensuring the continuation of their skilled trade. Along with volunteering to take on that industrial responsibility as an employer comes the burden of training and ensuring safety and a safety awareness in its young employees. There was a failure to warn of the dangers faced by this apprentice in performing his duties without caution around the penetrations which were an identified hazard. Whether they were safely covered or not there was an obligation to warn of an identified hazard. It is unacceptable to suggest that, as there was mesh covering the penetrations, a warning was not necessary. The identification of hazards and the associated warnings is integral to an effective and detailed safe working system.

24 Further, the contribution by third parties to the identified risk to safety is relevant to the court's consideration as to the objective seriousness of the offence. GDR Minproc, as the principal contractor on the UR-3R site, had overall responsibility for Occupational Health and Safety matters on its site. It imposed upon its various site contractors a HSE Plan whose purpose was to ensure a safe workplace before any employees commenced on site. It organised the coverings placed over the penetrations through the Site Safety Committee. That Committee had representatives on it from the major contractors. That Committee endorsed the view that the coverings placed over the penetrations in Fan Room No.1 of mesh (100 x 100mm) tied to reo-bars with metal ties, double knotted, was a system to safely secure the penetrations. Activities of third parties at the site did contribute to the creation of the on-going risk on this worksite. As such, there is mitigation to the objective seriousness of this defendant's breach of the Act.

25 The defendant company failed to recognise the safety precautions taken to cover the penetrations were not a guarantee of safety. It carries an absolute obligation to ensure elimination of a known risk to safety on a worksite to which it took its employees. It was held by Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) and is apposite in the circumstances of the present case:

The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant . . .

The potential risk was most serious and in this matter, the risk became a reality.

26 The plea of guilty reflects the defendant's liability for a serious offence under the Act.

27 A level of deterrence must be factored into the consideration as to penalty. Such principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [74] where it was said:

. . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . .

28 The defendant company still operates in the roofing industry so an element of specific deterrence is relevant. An element of general deterrence is also a factor in penalty. The rigor applicable to site safety design and inspections is of paramount importance to ensure the safety of its employees. Neither this defendant nor other contractors challenged the design of the covering chosen to eliminate a known and identified risk and the inspections only re-enforced the assumption the design was adequate to eliminate the risk and to ensure a safe worksite. Each contractor carries the obligation to assess safety. A cursory glance or a casual kick does not account for the thorough examination required of all systems designed for safe working. Further and once again, the construction industry must be reminded of the consequences not only of failing to ensure a site is safe for work but failing to warn its employees of identified hazards, especially vulnerable ones like young apprentices.

29 In considering subjective factors in mitigation of the offence, the company has existed since 1984 and has no prior convictions. It has a fine industrial record, especially in a circumstance where it carries out dangerous work on building sites installing roofing. The maximum penalty is therefore $550,000.

30 Prior to the incident the company had, in accordance with the principal contractor requirement, a Skills Competency Assessment Registrar, a Site Safety Inspection Check List and a Hazard Investigation. It also had its own Occupational Health and Safety Management system setting standards for the Job Safety Analysis. It also rechecked personnel qualifications. The evidence revealed it did site safety checks and held tool box meetings.

31 I note the affidavit of Mr Craig Christieson who has been appointed the Occupational Health and Safety Manager of the defendant company since the incident. He opined as to the role the directors of this family company play in the co-ordination of daily work activities. I accept, prior to the breach of the Act the company was conscious of its obligations to ensure work safety and is especially cognisant of its duties under the Act since the breach.

32 Significant amounts of monies have, since the incident, been spent on further training and the rigorous re-training of all employees and apprentices. There have been changes in the prior existing work safe system of the defendant company. There is now a clearer emphasis on the identification of hazards. The obligation to appropriately inspect and warn is now acknowledged. I accept much thought has gone into the review of the company's safety standards and I accept that significant expenditure has been undertaken to assure the court of a future safe working environment for employees of the defendant company.

33 To its credit the company continues to hire young persons to learn their trade or speciality and that is to be admired. It has some six apprentices currently employed. This makes an important contribution to employment in New South Wales and especially assists meeting the overwhelming demand from industry for qualified tradespersons.

34 I accept the company is scrupulously honest as are its directors. I make particular reference to the financial records placed before the court which are thorough and indicative of the fact that the company is well managed and honest in its dealings. The defendant company presented significant evidence to the court of its financial status. It does not ask for any financial consideration in the determination of penalty.

35 I am satisfied the defendant is industrially held in high regard by its peers in the building industry. It has placed before the court a number of referees who endorse the defendant company and its employees as extremely safety conscious.

36 There is some consideration for the utilitarian value of the plea (see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383). The plea was not entered until the first day of a nine-day hearing which had been set down some months before. The explanation for the delay is the defendant company awaited advice for a lengthy period and then had to seek alternative counsel. Once alternative advice was secured the defendant immediately entered a plea of guilty. In the circumstance another associated matter proceeded to hearing for four days of the nine days set aside. However, it must be of note that there has been some frustration in the use of the Court's valuable time given the lateness of the plea. I allow a discount of 10 per cent.

37 I accept the company, in the investigation, co-operated with the WorkCover Authority.

38 I accept the genuine expression of contrition and remorse conveyed by Mr Tabone, a hands-on Director on behalf of a family company.

39 Taking into account the objective seriousness of the offence but giving weight to the subjective features of the offence, I note the maximum penalty for a first offender is $550,000.

40 I find the defendant guilty.

41 The defendant is to be fined in the sum of $60,000.

42 The defendant shall pay the prosecutor’s costs as agreed or assessed with leave to approach.

Orders
43 The Court makes the following orders:

1. In Matter No. IRC1086 of 2006, I find the defendant guilty of the offence as charged.

2. The defendant is fined in the sum of $60,000 with a moiety to the WorkCover Authority of New South Wales.

3. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.



LAST UPDATED:
18 March 2008