Inspector Nicholson v Mackey [2010] NSWIRComm 159 (22 November 2010)

Last Updated: 26 November 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Nicholson v Mackey [2010] NSWIRComm 159



FILE NUMBER(S):
IRC 625

HEARING DATE(S):
25 October 2010

DATE OF JUDGMENT:
22 November 2010

PARTIES:
Inspector Anthony Nicholson (Prosecutor)
Phillip Mackey (Defendant)

CORAM:
Marks J


CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY – prosecution pursuant to s 8(1) by operation of s 26 of the Occupational Health and Safety Act 2000 – undefended proceedings – inadequate safety procedures and risk assessment – prima facie charge established – evidence that defendant resided outside Australia during the relevant period – whether appropriate to consider defence pursuant to s 26(1)(a) – proceedings stood over for further hearing regarding possible defence pursuant to s 26(1)(a) or appropriate penalty

LEGAL REPRESENTATIVES
Mr R Reitano of counsel (Prosecutor)
Solicitor
Legal Group
WorkCover Authority of NSW
No appearance (Defendant)

CASES CITED:
Inspector James v Ryan [2009] NSWIRComm 215

LEGISLATION CITED:
Occupational Health and Safety Act 2000 - s 8(1), s 26


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: MARKS J

Monday 22 November 2010

Matter No IRC 625 of 2009

INSPECTOR ANTHONY NICHOLSON v PHILLIP MACKEY

Prosecution pursuant to s 8(1) by operation of s 26 of the Occupational Health and Safety Act 2000

JUDGMENT

[2010] NSWIRComm 159

1 In these proceedings, the defendant, Phillip Mackey, has been charged by the prosecutor, Inspector Anthony Nicholson of the WorkCover Authority of New South Wales, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 (“the Act”). Mr Mackey has been so charged because, as is alleged, he was a director of a corporation NT Prestressing Pty Ltd (“NT”), which was guilty of a breach of the same provision of the Act and, as such, is deemed to have been guilty of the same section by reason of the provisions of s 26 of the Act.

2 Relevantly, ss 8(1) and 26 of the Act are in the following terms.

8 Duties of employers

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

...

26 Offences by corporations—liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

3 The charge and particulars are contained in an application for order, which is in the following terms:

... Phillip Mackey ... (defendant) being a director of NT Prestressing Pty Ltd (ACN 117 791 661) (‘the corporation’), a corporation whose registered office is situated at Suite 5, 33 Waterloo Road, North Ryde in the State of New South Wales is, by virtue of section 26 of the Act, taken to have contravened section 8(1) of the Act in that the corporation being an employer did between about 1 May 2007 and 22 June 2007 at 23 Ryde Road, Pymble in the State of New South Wales fail to ensure the health, safety and welfare at work of all of its employees and in particular Benson Morris and Daniel Stewart contrary to section 8(1) of the Act.

The particulars of the charge are:

1. At all material times the defendant was a director of NT Prestressing Pty Ltd (‘the corporation’).

2. At all material times the corporation was an employer at 23 Ryde Road, Pymble in the State of New South Wales (‘the premises’).

3. At all material times the corporation was undertaking construction work at the premises.

4. At all material times Daniel Stewart and Ben Morris were employees of the corporation.

5. At approximately 9 am on 1 May 2007 Inspector Anthony Nicholson of WorkCover NSW visited the premises and observed Daniel Stewart and Bens Morris working on a formwork deck at the edge of a building on the premises, in excess of 6 metres above the ground, without any fall prevention system in place.

6. At approximately 8:15 am on 2 May 2007 Inspector Anthony Nicholson an employee of WorkCover NSW visited the premises and observed Wessam Chehade, Hasson Mhanna and Saleh El Saddick (workers) working on the edge of a building on the site, in excess of 6 metres above ground level, without any fall prevention system in place.

7. Daniel Stewart and Ben Morris were instructed to work without fall protection but refused.

8. At approximately 7.30 am on 22 May 2007 Inspector Anthony Nicholson visited the premises and saw people working at height on the edge of the concrete slab under temporary handrails in excess of 3 metres from the ground below without any fall prevention system in place.

9. On 14 June 2007 Anthony Nicholson again visited the premises and saw people at risk of falling 11 metres from height to the ground below without any fall prevention system in place.

10. The corporation failed to ensure the health, safety and welfare at work of its employees by failing to:

(a) conduct an adequate risk assessment with respect to working at heights upon the premises;

(b) provide employees with any adequate fall prevention system at the premises, including any:

(i) perimeter scaffolding

(ii) temporary handrails

(iii) fall arrest harnesses

(iv) safe work platforms

(v) toe boards

(c) provide and maintain a safe system of work at the premises, including by providing and ensuring compliance with safe work method statements;

(d) conduct any adequate premises-specific induction training before working at heights at the premises;

(e) provide adequate information, instruction or training to its employees at the premises with respect to working from heights;

(f) provide adequate supervision to its employees at the premises with respect to working at heights.

11. The corporation’s employees, and in particular Daniel Stewart and Ben Morris, were thereby exposed to a risk of serious injury or death as a result of the risk of a fall from height.

4 The application for order was served on the defendant at a particular address pursuant to leave granted by a judge of this Court to effect substituted service. Subsequently, on 5 August 2009, the defendant wrote to the solicitor for the prosecutor asserting that he was a non-resident director of NT and that he had lived “in Asia since May 2007 and in particular Hong Kong since October 2007.” Notwithstanding this, Australian Electoral Commission searches conducted in August 2009 and a search of the Road and Traffic Authority of New South Wales indicated an address for the defendant at the address at which service of the application for order has been effected.

5 The defendant has not participated in any way in the proceedings during the case management process, and did not attend the hearing of the matter. It proceeded on an undefended basis.

6 There was tendered into evidence a bundle of documents and the prosecutor gave oral evidence. Included within the documentation was a company search of NT, effected on 18 October 2010. This indicated that the defendant was a director of NT during the period 18 May 2006 to 29 July 2010. No other person was a director of NT during the period during which the contravention allegedly occurred, namely 1 May 2007 and 22 June 2007, save for another named person whose appointment as a director commenced on 7 March 2006 but ceased on 10 May 2007, some nine days after the relevant period commenced.

7 It was the evidence of the prosecutor that he had attended the site on 5 April 2007 and thereafter on a number of occasions

8 On 1 May 2007, the prosecutor observed persons working on a formwork deck at the edge of the building under construction who he said were at risk of falling in excess of six metres to the ground below. There were no fall prevention systems in place. He observed those persons as being Ben Morris and Daniel Stewart, who told him they were employees of NT.

9 On 2 May 2007, the prosecutor again attended the building site and again observed persons working on the edge of a formwork deck on the second storey with no fall prevention system in place. He said that there was an apparent fall distance in excess of six metres. He spoke with a number of persons, including Messrs Stewart and Morris.

10 On 22 May 2007, the prosecutor again attended the construction site. He observed persons whom he recognised as employees of NT working at heights at the edge of a concrete slab with temporary handrails without any fall prevention system in place with a fall distance in excess of three metres to the ground below. He spoke to these employees and said, “They immediately ceased work.”

11 The prosecutor attended the site on 14 June 2007. He observed Mr Morris working on the site. He concluded that persons were exposed to an immediate risk of falls from heights at the project. He observed Mr Morris present on that occasion.

12 On 22 June 2007, the prosecutor again attended the site. Mr Stewart raised concerns with him regarding working space and falls from heights. This was particularly so with respect to an area on level 2.

13 The prosecutor was assisted in his investigations by Inspector Jones of the WorkCover Authority of New South Wales. Statements were obtained from Messrs Morris and Stewart and from a Mr Tom Power. Mr Power’s statement was made on 11 September 2007.

14 He said that at all relevant times, he was an employee of NT. He produced a letter, which he said was signed by the defendant in these proceedings, authorising him to speak on behalf of NT. Mr Power said that Mr Mackey was, to his knowledge, the sole director of NT. He said that Mr Mackey had no involvement in the construction site and that he was “not involved in actual operations at all.” He confirmed that to his knowledge the defendant did not reside in Australia.

15 Mr Power said that he was the manager of NT. He understood that the defendant had no involvement in the day to day operations of NT and that he, Mr Power, was involved in the “day to day running” of the jobs. This involved “paperwork, organising materials, contract administration, managing the customers, making sure the work gets done.”

16 Mr Power said that the supervision on that particular site was undertaken either by two named persons, one a supervisor and the other a project engineer. He had visited the site about 40 times but was not managing it.

17 On each occasion when he visited the site, Mr Power said that he made sure that the site was safe, that there was sufficient materials and that the builder was “providing what he has to provide for us to do our job.”

18 In terms of safety, Mr Power said that NT had a generic safe work methods statement, which covered each site upon which the company conducted operations. He said also that the company’s “induction system was in place” before any difficulties arose on the site. However, he was unable to tell the prosecutor about any particular site induction training given to the employees on that particular site.

19 Mr Power was aware that there had been issues concerning the safety of the construction site. He said that these were accommodated by the giving of instructions to NT employees working on the site not to perform any work if it was unsafe to do so. He said that the safety of the site was under the overall control of the head builder, Millennium Project Australia Group Pty Ltd (“Millennium”), and that he had expected that that company would ensure that all persons working on the site had been properly inducted into the appropriate safe working methods. Mr Power said that this particular site was the first occasion on which NT had worked with Millennium and he was concerned about the number of safety issues that were being raised and the slow response from the builder.

20 Mr Power was shown a number of photographs by the prosecutor and conceded that they depicted persons working at height without any fall prevention systems in place. He said that if he had been on site, he would have instructed NT employees not to carry out the work that they had undertaken, presumably at the request of the builder.

21 Mr Power was asked whether the employees concerned had been trained about the risks associated with working at heights. He said:

Well no they haven’t because they are not supposed to work at heights. They are supposed to, they are supposed to work on building sites, which have adequate fall protection in place, provided by the builder.

22 Benson Morris was interviewed by the prosecutor on 2 May 2007. He said that he was a labourer and that he was employed to perform work that day by a representative of NT at the particular building site.

23 Mr Morris told the prosecutor that he had been inducted onto the site the previous day. He said on that occasion he had been told by a supervisor of the builder to carry out certain work on the decking of the construction site “before WorkCover gets here.” He declined to do so. He said that there was a risk of falling in excess of six metres and that there was no fall prevention system in place. He described the supervisor as being “a tightarse. Just being lazy and not caring really.”

24 Daniel Ian Stewart was also interviewed by the prosecutor on 2 May 2007. He said that he was employed by NT and that he had been inducted onto the site on the previous day.

25 He had been telephoned that day by the supervisor of the site asking him to attend at 6.30am the following day and that he was “putting a handrail up now.” However, when he attended work there was no handrail in place.

26 On the basis of the evidence adduced in the proceedings, I am satisfied that the prosecutor has established a breach of s 8(1) of the Act by NT as alleged and that each of the particulars of the charge has been made out to the requisite standard of proof.

27 On the evidence, it may be concluded that there was a failure by NT to conduct an adequate risk assessment with respect to the particular construction site, that there was a failure to provide any adequate fall prevention system as noted, that there was a failure to provide and maintain a safe system of work at the premises, that no adequate site specific induction training about working at heights had been carried out, that there had been a failure to provide adequate information, instruction or training to the two employees with respect to working at heights and a failure to provide adequate supervision. Furthermore, it has been established that the employees concerned were Messrs Stewart and Morris.

28 I am also satisfied on the evidence that at all relevant times the defendant, Phillip Mackey, was a director of NT. Accordingly, prima facie, the defendant will be found guilty of the charge.

29 However, there is a defence available to the defendant under s 26(1) of the Act. The application of that defence involves a consideration about whether or not the defendant was in a position to influence the conduct of the corporation in relation to its contravention of the provision of the Act.

30 I have set out in some detail my understanding of the provisions of s 26 and the manner in which the defence should be applied in Inspector James v Ryan [2009] NSWIRComm 215. I concluded in those proceedings that it is necessary to consider the individual circumstances or situation of a defendant as a director in determining whether or not the defendant was in a relevant position to influence the corporation (at [160]).

31 In the circumstances of these proceedings, the evidence, consisting of the statement given by Mr Power to the prosecutor, is that the defendant at all relevant times resided out of Australia and had nothing to do with the operations of NT. It is arguable in these circumstances that he may not have been in a position to influence what happened at that particular building site in the period between 1 May and 22 June 2007. Certainly, the only evidence concerning the involvement of the defendant in the activities of NT is that led by the prosecutor in the form of the statement of Mr Power.

32 I am conscious that the onus of proving that the defence may be maintained is on the defendant, albeit to the civil standard. The defendant having chosen not to participate in any way in the proceedings has deprived himself of an opportunity of giving such evidence that he may wish to adduce concerning the availability of the defence under s 26(1)(a).

33 Because I currently have some doubt about whether it might be appropriate to apply the defence in the defendant’s favour on the basis of the available evidence and because the prosecutor has not had an opportunity of considering this matter, I propose to stand the proceedings over to allow the prosecutor to make submissions based on the evidence adduced in the proceedings.

34 I should indicate that if at the conclusion of submissions I am persuaded that the defence is not available to this defendant, I would proceed immediately to conviction and would hear submissions concerning penalty.

35 The proceedings are stood over accordingly. My associate will make administrative arrangements with the prosecutor to conduct a further hearing, with notice to the defendant at his last known address in Sydney and Hong Kong.

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LAST UPDATED:
22 November 2010