Inspector Nicholson v Ibrahim [2011] NSWIRComm 39 (11 April 2011)

Last Updated: 17 May 2011

Industrial Relations Commission New South Wales

Case Title:	Inspector Nicholson v Ibrahim
Medium Neutral Citation:	[2011] NSWIRComm 39
Hearing Date(s):	29 March 2011
Decision Date:	11 April 2011
Jurisdiction:
Before:	Marks J
Decision:	1) The defendant is found guilty of the offence with which he is charged and convicted accordingly. 2) I impose a monetary penalty of $25,000 with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor as assessed in default of agreement.
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY - breach of s 10(1) of the Occupational Health and Safety Act 2000 by corporate defendant - personal defendant deemed guilty of the same offence by virtue of s 26(1) - guilty plea - prior conviction - objective seriousness - relative culpability - general and specific deterrence - cooperation with prosecutor - capacity to pay - orders made
Legislation Cited:	Fines Act 1996 - s 6 Occupational Health and Safety Act 2000 - s 10, s 26
Cases Cited:	Inspector John Patton v Romeo Elias Ibrahim and ors [2010] NSWIRComm 109 Inspector Nicholson v Mackey [2010] NSWIRComm 159 Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40 Inspector Nicholson v Nahed [2011] NSWIRComm 41 Inspector Nicholson v Pymble No 1 & Molinara (No 2) [2010] NSWIRComm 151 Inspector Nicholson v Sawmaa [2011] NSWIRComm 38 Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158 MCColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353
Texts Cited:
Category:	Principal judgment
Parties:	Inspector Nicholson (Prosecutor) Romeo Ibrahim (Defendant)
Representation
- Counsel:	Mr R Reitano of counsel (Prosecutor) No appearance (Defendant)
- Solicitors:	Legal Group, WorkCover Authority of New South Wales (Prosecutor)
File number(s):	IRC 624 of 2009
Publication Restriction:

Judgment

1. As will be seen, these proceedings arise out of certain matters which occurred at a building site at 23 Ryde Road Pymble during May 2007. A number of prosecutions were instituted by the prosecutor in these proceedings against a number of defendants. As far as I am aware, I have dealt with the bulk of those proceedings. In the case of two of them, I acquitted the defendants ( Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151) and in the case of one other the proceedings were undefended ( Inspector Nicholson v Mackey [2010] NSWIRComm 159 and Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40). In most of the remaining proceedings ( Inspector Nicholson v Sawmaa [2011] NSWIRComm 38; Inspector Nicholson v Ibrahim [2011] NSWIRComm 39; Inspector Nicholson v Nahed [2011] NSWIRComm 41), the prosecutor and each of the defendants submitted that the Court should not impose any penalty until the hearing of all of the proceedings had concluded. I have acceded to this request. This explains the apparent delay in the delivery of judgment after the finalisation of the proceedings. Furthermore, I should stress that in considering each of the proceedings, I have deliberately confined myself to the evidence given in each discrete matter and I have not taken into account any evidence given in any other matter.

2. The defendant, Romeo Ibrahim, has been charged by the prosecutor, Inspector Anthony Nicholson of the WorkCover Authority of New South Wales with a breach of s 10(1) of the Occupational Health and Safety Act 2000 ("the Act"). The defendant is alleged to have breached that Act by reason of the application of s 26 of the Act in that the defendant was a director of REI Construction Pty Ltd ("REI"), which company breached s 10(1). By reason of the provisions of s 26, the defendant is taken to have breached the same provision as REI.

3. Relevantly, ss 10(1) and 26 of the Act are in the following terms:

10 Duties of controllers of work premises, plant or substances

(1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.

...

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.

4. The proceedings were originally commenced by application for order filed on 29 April 2009. They were amended to their present form by order made on 29 October 2010, at the commencement of a sentencing hearing upon the entry of a plea of guilty, which had been entered that day.

5. In its amended form, the charge and particulars are that the defendant being a director of REI, is by virtue of s 26 of the Act taken to have contravened s 10(1) in that REI

between about 2 May 2007 and 22 May 2007 being a person having control of premises at 23 Ryde Road, Pymble being premises used by people as a place of work failed to ensure that the premises were safe and without risk to health contrary to section 10(1) of the Act.

The particulars of the charge are that:

1. At all material times, the defendant was a director of the corporation.

2. At all material times the corporation had control of the premises 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 Wessam Chehade and Hasson Mhanna were employees of ANS Formwork Pty Ltd who had a contract or arrangement to provide labour to the corporation to work at the site.

5. At all material times Saleh El Saddick was, by contract or arrangement through SS Prime Form Pty Ltd, engaged to provide labour to the corporation to work at the site.

6. At approximately 8.15 am on 2 May 2007 in response to a complaint received, Inspector Anthony Nicholson of WorkCover NSW visited the premises and observed Wessam Chehade, Hasson Mhanna and Saleh El Saddick 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.

7. 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.

8. Between about 2 May 2007 and 22 May 2007 the corporation failed to ensure that the premises were safe and without risk to health by failing to:

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

(b) provide people with any or 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 enforce an occupational health and safety management plan;

(d) provide adequate information instruction and training, in relation to working at heights at the premises;

(e) provide adequate supervision to people at the premises with respect to working at heights.

Wessam Chehade, Hasson Mhanna and Saleh El Saddick were thereby exposed to a risk of serious injury or death as a result of a fall from height.

6. For the prosecutor there were tendered into evidence an agreed statement of facts, a factual inspection report prepared by the prosecutor, including photographs, and, relevantly, a prior convictions notice indicating that the defendant has a previous conviction for a breach of the Act.

7. The defendant tendered into evidence a number of documents, and those of which I consider relevant will be referred to in these reasons for judgment. The defendant also called the prosecutor to give evidence.

8. The agreed statement of facts is in the following terms:

1. At all material times the prosecutor, Inspector Nicholson was duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("OHS Act 2000") and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter

2. At all material times Romeo Ibrahim of 5 Lewis Street, South Wentworthville in the State of New South Wales. ('the defendant') director of REI Construction Pty Ltd (ACN 110 933 983) ('REI').

3. At all material times, REI Construction Pty Ltd (REI) was involved in construction works at the premises

4. At all material times, ANS Formwork Pty Ltd (ANS) provided labour to REI to perform work at the premises

5. At all material times Wessam Chehade and Hasson Mhanna were employed by ANS Formwork Pty Ltd (ANS) and hired as formworkers to REI at the premises. Saleh El Saddick was contracted to REI through SS Prime Form Pty Ltd.

6. At all material times, Millennium Project Australia Group Pty Limited was involved in construction works at 23 Ryde Road, Pymble in the state of New South Wales (the premises).

7. NT Prestressing Pty Ltd ('NT') was involved in construction works at the premises.

8. At all material times, Daniel Stewart and Benson ('Ben') Morris were employed by NT as labourers at the premises.

9. At approximately 8:15 am on 2 May 2007 I visited the premises and observed Wessam Chehade, Hasson Mhanna and Saleh El Saddick ('workers') working on the edge of a building on the premises, in excess of 6 metres above ground level, without any fall prevention system in place. I was informed that Daniel Stewart and Ben Morris were instructed to work without fall protection but refused.

10. At approximately 7.30 am on 22 May 2007 I 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. On 14 June 2007 I 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.

11. REI Constructions Pty Ltd failed to ensure the premises was safe and without risks to health in that it failed to:

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

(b) provide people with any or 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 enforce an occupational health and safety management plan;

(d) provide adequate information instruction and training, in relation to working at heights at the premises ;

(e) provide adequate supervision to people at the premises with respect to working at heights.

12. As a result of REI Constructions Pty Ltd's contravention of the Act, Wessam Chehade, Hasson Mhanna and Saleh El Saddick were thereby exposed to a risk of serious injury or death as a result of a fall from height.

13. I make this affidavit based on the information obtained during the investigation of incidents causing risk to the health, safety, and welfare of persons including Benson Morris, Daniel Stewart, Wessam Chehade, Hasson Mhanna and Saleh El Saddick at 23 Ryde Road, Pymble.

Arrangements at the site

14. At all material times, Pymble No.1 Pty Ltd (ACN 120 745 548) (Pymble No 1) is the landowner and appointed Millennium Projects Australia Group Pty Ltd (ACN 083 238 742) (Millennium) as the principal contractor at the premises. At the premises a multi storey commercial building was being constructed. The value of the project was approximately 4.5 million dollars.

15. At all material times, Yu Hua Yu was a director of Millennium.

16. At all material times, David Roberts was employed as a Manager of Millennium.

17. At all material times, George Nahed was a supervisor employed by Millennium at the premises.

18. Millennium engaged Mike Dalzell to assist in providing occupational health and safety consultancy services at the premises.

19. At all material times, NT Prestressing (NT) was subcontracted by Millennium to undertake concrete stressing activities and work at the premises.

20. At all material times, NT employed Benson Morris and Daniel Stewart as labourers.

21. At all material times, Philip Mackay was a director of NT.

22. At all material times, NT employed Tom Power as a Manager.

23. At all material times, REI Constructions Pty Ltd (REI) was subcontracted by Millennium to undertake concreting and formwork activities.

24. REI had a contract or arrangement with ANS Formwork Pty Ltd (ANS) whereby ANS provided labour to REI in order to perform work at the premises. Under this contract or arrangement ANS provided Wessam Chehade and Hasson Mhanna to REI to work at the premises.

25. REI had a contract or arrangement with SS Prime Form Pty Ltd whereby Saleh El Saddick was provided to REI to work at the premises.

26. At all material times, REI employed Fred El Ali as a formworker and Anmar Abdulmajeed was employed as a foreman.

27. At all material times, Romeo Ibrahim was a director of REI.

Details of Incidents

28. On 2 May 2007 I received a call from Fred El Ali, formworker and OHS Representative of REI advising me that workers had been directed to undertake work without any fall prevention system in place. This was despite Prohibition Notice No.148860 being issued on 1 May 2007.

29. I then went to the premises. I saw Wessam Chehade, Hasson Mhanna and Saleh El Saddick working on the edge of a wooden formwork deck stripping timbers on the second level of the commercial building under construction on the premises. I considered that Wessam Chehade, Hasson Mhanna and Saleh El Saddick were at an immediate risk of falling in excess of 6 metres to the ground below. I observed that there was no fall prevention system in place and that this incident caused risk to the health, safety, and welfare of Wessam Chehade, Hasson Mhanna and Saleh El Saddick. I observed the director of REI, Romeo Ibrahim to be present at the premises at the time of this breach.

30. This work was being undertaken in contravention of the previously issued Prohibition Notice 148860.

31. Daniel Stewart and Benson Morris told me that they were directed by George Nahed, site supervisor, and his father Antoine Nahed to "tension the strands on the deck before WorkCover gets here".

32. On 2 May 2007, Prohibition Notices 148862 and 148863 were issued to Millennium and REI in relation to risk of falls from heights in excess of 6 metres.

33. On 8 May 2007 I visited the premises to conduct a follow up inspection and I observed that the previously issued Prohibition Notices 148862 and 148863 had not been complied with.

34. On 11 May 2007 further Prohibition Notices 148864 and 148865 were issued to the Millennium and REI in relation to immediate risk of formwork collapse.

35. On 22 May 2007 I visited the premises again and saw people working at height on the edge of a concrete slab under temporary hand rails without any fall prevention system in place. They were at risk of falling 3 metres to the ground below.

36. On 31 May 2007 Inspector Jones issued Prohibition Notices 170203 in relation to working at heights issues.

37. On 14 June 2007, I visited the premises again and saw a person at immediate risk of falling in excess of 11 metres to the ground below, I further observed that no overhead protection system was in place to prevent risk of falling materials into public areas below. I issued Prohibition Notices 148868 to Millennium and 148869 to NT in relation to these issues.

38. On 14 June 2007 Inspector Jones issued Prohibition Notice 170203 in relation to working at heights issues.

Details of the systems of work prior to incident

NT Prestressing Pty Ltd

39. From information obtained during the investigation I became aware that employees of NT (Daniel Stewart and Benson Morris) had been working on the premises for approximately one month without any premises-specific induction training being undertaken.

40. On 1 May 2007 NT employees Daniel Stewart and Benson Morris, had been observed working at heights in excess of 6 metres without any fall prevention system in place. Daniel Stewart and Benson Morris were also observed to be working at heights in excess of 11 metres without any fall prevention system in place on 14 June 2007 and 22 June 2007.

41. NT's Safety Manual specified that work should not commence in any area until scaffolding, access handrails, and toe boards are properly in place. I observed that this equipment was not in place prior to work commencing.

42. There was a lack of information and instruction provided to Daniel Stewart and Benson Morris regarding the risks associated with working at heights on this premises. There was insufficient supervision provided by NT to ensure safe work method statements and procedures were being complied with.

43. The information I had obtained during investigations lead me to conclude that the NT company safety manual had not been complied with during the concrete stressing operations.

44. NT did not have a safe work method statement available for use on the premises.

45. NT management representative Tom Power was aware of the safety issues raised regarding the premises. NT employees were allowed to continue working at the premises in spite of this.

46. The information obtained during the investigation led me to conclude that no safe system of work was provided for Daniel Stewart and Benson Morris to access the formwork decks to prepare for concrete stressing works.

47. Mr Stewart and Mr Morris considered that the only way they could carry out preparation for stressing work was to lie on their stomach on the concrete floor slab and lean over the edge of the floor slab.

REI Constructions Pty Ltd

48. On 2 May 2007 I observed Wessam Chehade, Hasson Mhanna and Saleh El Saddick, to have been working at heights in excess of 6 metres without any fall prevention system in place. This was in spite of WorkCover Prohibition Notice No.148860 having been issued at the site the previous day.

49. Romeo Ibrahim, Director, REI Constructions Pty Ltd was present at the premises on 2 May 2007.

50. Wessam Chehade, Hasson Mhanna and Saleh El Saddick had also not been provided with sufficient premises specific induction training in particular, training regarding the risks associated with working at heights and fall prevention control measures.

51. Fred El Ali, a formworker employed by REI, had also not been provided with sufficient premises specific induction training in particular, training regarding the risks associated with working at heights and fall prevention control measures. He had been working on the premises for approximately 3 months without being premises-inducted. He also undertook formwork activities without holding the relevant WorkCover certificate of competency.

52. Fred El Ali was also appointed as the OHS Representative for the premises. He had no training in this role, including the required WorkCover-accredited OHS Consultation training course. The investigation also revealed that Fred El Ali had no knowledge of the company OHS Policy.

53. There was no safe system of work provided for persons performing work for REI to safely access the formwork decks to undertake formwork activities.

54. On 1 May 2007, safe work method statements were briefly discussed with REI employees. These safe work method statements were not being followed when I was at the premises on 2 May 2007.

55. There was a lack of supervision on the premises. Anmar Abdulmajeed, foreman for REI, had indicated his safety concerns to George Nahed, premises supervisor, regarding the premises.

56. Romeo Ibrahim, director of REI, was aware of safety issues raised regarding this particular premises. REI employees were still allowed to continue working at the premises.

57. There was no safe system of work provided for Wessam Chehade, Hasson Mhanna, Saleh El Saddik and Fred El Ali ('the workers') to safely access the formwork decks to undertake formwork activities.

58. Fred El Ali stated that the workers had to climb scaffolding to access form work decks.

59. The value of the work performed by REI was approximately $600,000.

60. There was no documented system to identify roles and responsibilities with regards to occupational health and safety issues for the premises.

61. The investigations conducted led me to conclude that there had apparently been a delegation of responsibility from Millennium to REI with regards to OHS compliance. This was in contradiction to the indications given by the subcontractors (REI and NT) who stated that they had delegated their OHS compliance responsibilities to Millennium.

Millennium Project Australia Group Pty Ltd

62. Millennium failed to comply with 11 Improvement Notices issued that I had on behalf of WorkCover.

63. WorkCover had previously provided information, assistance and advice to George Nahed of Millennium regarding what was required to achieve compliance with the Improvement Notices.

64. David Roberts, Manager of Millennium, engaged Mike Dalzell, Director of Mike Dalzell Pty Ltd to assist in providing OHS Consultancy services, including documentation and advice regarding compliance with the issued Notices.

65. WorkCover had informed David Roberts that the notices had not been complied with by their due date.

66. On 1 May 2007, Millennium was issued with Prohibition Notice 148860 in relation to persons being exposed to an immediate risk to their health and safety from falls whilst working at heights. REI was not aware that the Prohibition Notice had been issued.

67. On 2 May 2007, REI employees arrived to work on the premises and were not informed of the Prohibition Notice 148860 issued by WorkCover. REI employees were exposed to an immediate risk of falling in excess of 6 metres without any fall prevention system in place. NT employees were also directed on that day to work at heights without any fall prevention system in place.

68. Premises specific induction training was not provided to the NT and REI employees on premises prior to 1 May 2007. In particular, the risks associated with working at heights and fall prevention control measures were not discussed and were not the subject of any instruction.

69. Antoine Nahed gave directions to people on premises. Antoine Nahed had not completed the OHS General Induction for Construction Work Course. Antoine Nahed was also given directions from his son George Nahed, to get the workers doing the prestressing work to sign and date induction forms without having first undertaken premises induction training.

70. On 1 May 2007, safe work method statements were briefly discussed with REI employees at a premises induction. The safe work method statements were not being complied with at the time of the incident on 2 May 2007.

71. Millennium did not have an OHS management plan in place for the premises prior to work commencing.

72. Millennium also did not verify that persons on premises held the appropriate qualifications for the work activity being undertaken.

73. Millennium failed to ensure adequate supervision was provided. Anmar Abdulmajeed, foreman with REI, had indicated his safety concerns to the premises supervisor, George Nahed and to Antoine Nahed on many occasions. OHS Representative for REI, Fred El Ali, raised safety issues consistently during the construction works.

74. George Nahed, premises supervisor, was absent from the premises on several occasions and was the only qualified and designated First Aid Officer for the premises.

75. No safe system of work was provided for the REI employees to safely access the formwork decks to undertake formwork activities. Nor was there a safe work platform provided for REI and NT employees to work without being exposed to falls from heights. There was also a lack of access and egress was provided for REI Construction and NT Prestressing employees to safely undertake their work without being exposed to trips, slips & falls.

76. There was no documented system in place to identify the roles and responsibilities with regards to OHS issues for the premises.

Pymble No 1. Pty Ltd

77. Apart from its Director, Silvio Molinara, Pymble No 1 relies on contracted services to maintain its administrative office.

78. WorkCover requested Pymble No 1. Pty Ltd to provided documentation of its contractual relationship with Millennium. Pymble No 1. to date has not provided documentation of its contractual relationship with Millennium to WorkCover.

79. During the investigations I observed that there was no evidence to indicate that a principal contractor had been formally appointed. I observed no signage to indicate who the principal contactor was. However I noted that George Nahed, premises supervisor for Millennium, has authority to sign documents on behalf of Pymble No.1 Pty Ltd in relation to matters that were approved by the board.

Details of the systems of work after incident

NT Prestressing Pty Ltd

80. Subsequent to the incident on 1 May 2007 I issued the following Notices:

Prohibition Notice 148869 issued to NT:

81. Reason for issue - Persons and employees exposed to immediate risk of falls from heights; NT employees preparing for pre-stressing work on edge of building on level 2; Persons at risk of falling in excess of 11 metres.

Improvement Notice 261623:

82. Reason for issue - Employees/persons exposed to risk to health and safety due to inadequate supervision whilst carrying out prestressing work activities at the premises.

Improvement Notice 261624:

83. Reason for issue - Principal contractor failed to make available for inspection a written safe work method statement for works being carried out at the premises.

84. The Safe Work Method Statements provided to WorkCover by NT were generic and dated October 2005. This Safe Work Method Statement did not adequately address control measures for fall prevention and overhead protection for persons working below.

85. The Safety Manual provided to WorkCover by NT was also dated October 2005 and it specified that work should not commence in any area until scaffolding; access handrails and toe boards are properly in place. Scaffolding, whether fixed or mobile was to be erected and maintained in accordance with regulations.

86. Tom Power, Manager, NT Prestressing Pty Ltd was notified by WorkCover about the lack of commitment displayed with regards to providing a safe and secure workplace.

REI Constructions Pty Ltd

87. Subsequent to the incident on 2 May 2007, the following Notices were issued to REI:

Prohibition Notice 148863:

88. Reason for issue - Persons and employees exposed to immediate risk from falls whilst working at heights.

Prohibition Notice 148865:

89. Reason for issue - Persons and employees exposed to immediate risk to their safety from collapse of formwork.

Improvement Notice 261625:

90. Reason for issue - Employees of REI stripping formwork above open penetration on level 2; Handrails that were in place had been removed; fall distance in excess of 3 metres.

91. REI, through Millennium, provided a shared Safe Work Method Statement to WorkCover.

92. This statement was generic and incomplete. It did not adequately address approved harness anchor points or rescue procedures.

93. 'Raymond' Ibrahim, representative of REI, and George Nahed, representative of Millennium, had signed this document.

94. Anmar Abdulmajeed and Saleh Saddick subsequently used a harness and fall arrest system to install temporary timber handrails to the edge of the formwork decks, in circumstances.

95. Inspector Nicholson observed that persons performing work for REI had continued to work at the premises despite no appropriate scaffolding and fall prevention measures being in place.

96. Inspector Nicholson also observed that persons performing work for REI continued to work when there was inadequate supervision.

97. Romeo Ibrahim, Director of REI, was notified by WorkCover about the lack of commitment displayed with regards to providing a safe and secure workplace.

Millennium Project Australia Group Pty Ltd

98. Following the incidents on 1 and 2 May 2007, I issued the following Notices to Millennium:

Prohibition Notice 148860:

99. Reason for issue - Persons and employees are exposed to immediate risk from falls whilst working at heights without fall prevention measures in place.

Prohibition Notice 148862:

100. Reason for issue - Persons and employees are exposed to immediate risk from falls whilst working at heights.

Prohibition Notice 148864:

101. Reason for issue - Persons and employees exposed to immediate risk to their safety from collapse of formwork.

Prohibition Notice 148868:

102. Persons and employees exposed to immediate risk to their safety from falling materials at the premises

103. Millennium failed to comply with Prohibition Notice 148860.

104. Inspector Nicholson issued a further 13 Improvement Notices to Millennium since the incidents on 1 May 2007 and 2 May 2007 in relation to safety breaches at the premises.

105. Yu Hua Yu, Director of Millennium, managed another premises in Bowral. Mr Yu stated that George Nahed influenced his decisions at the Bowral and Pymble premises.

Prior Convictions

106. The defendant was convicted of an offence pursuant to s8(2) of the Occupational Health and Safety Act 2000 and was fined $13,000.

9. I observe that, as is obvious, some of the material in the agreed statement of facts was seemingly taken from an affidavit, which I assume had been sworn by the prosecutor. In making this observation, I should not be seen to be in any way critical of the form of the agreed statement of facts; I do so merely to explain that it was put together in some haste, because the defendant had not indicated that he would change the not guilty plea, entered some time ago, to a guilty plea until just prior to the hearing. I should observe, also, that the defendant's then current solicitor had only recently been retained by him. (He filed a notice of ceasing to act before the final hearing.)

10. There emerged from the evidence given by the prosecutor, when called to give evidence by the defendant, the following additional matters:

1) The platform upon which the persons had been seen performing work at height was a solid structure and apparently safe apart from the fact that there was no fall prevention mechanism in place.

2) On 22 May 2007, there were in place temporary handrails, as referred to in [35] of the agreed statement of facts. However, as shown in the photographs, there were significant gaps in the handrails.

3) A photograph of the then top floor showed an open penetration with timber protruding around the edges. The timber which was protruding might impede the risk of someone falling into the open hole although the risk of falling was exacerbated because of the potential to trip on the protruding timber.

4) Some of the persons performing the work who were at risk of injury because of the lack of fall prevention measures told the inspector that they were doing so because they had been directed by the builder, that is representatives of Millennium Projects Australia Group Pty Ltd ("Millennium"). None of them had been directed to work under those conditions by a representative of REI. Indeed, when the defendant arrived at the site on 2 May 2007, he told the persons concerned to cease work.

5) REI had a written occupational health and safety plan for its form workers, although there were some deficiencies in it.

6) It was the inspector's experience that on sites of this kind, the head builder normally arranged for scaffolding and similar protective devices.

7) Overall, supervision on the site and the giving of directions to persons, including those engaged through subcontractors, was undertaken by the site supervisor, George Nahed, representing Millennium or, in his absence, his father.

8) The inspector had had a number of conversations with the defendant who was endeavouring to co-operate with him.

11. There was tendered into evidence a quotation submitted by REI to Pymble No 1 Pty Ltd dated 2 January 2007 which the Court was informed was the documentary material pursuant to which REI performed work on the site. That quotation appears to have been annexed to, or form part of, a one page "contract agreement" with Pymble No 1 Pty Ltd, signed on 2 January 2007.

12. On 27 March 2007, REI wrote to Pymble No 1 Pty Ltd pointing out that a number of items were "lacking" including labourers to undertake general site works including clean up.

13. A further letter dated 13 April 2007 referred to the fact that the building site had been previously shut down twice after "the union and WorkCover had been on site 5 times over the last 2 weeks and 13 notices had been submitted to you to improve the site conditions, safety and amenities ...." The letter asked Pymble No 1 Pty Ltd to "take immediate measures and actions to comply with the union and WorkCover demands ...."

14. Another letter dated the same day asked for the provision of a number of items including, relevantly, safety scaffolds at a number of designated areas and "Proper ramp to allow safe access to the site (refer to WorkCover note) and to be installed by your scaffolders."

15. In a further letter, dated 29 May 2007, addressed to Pymble No 1 Pty Ltd and Millennium Projects Pty Ltd, REI referred to discussions on the site, to the fact that "no measures have been taken by you to rectify the situation and to improve the safety matter at the job" and then provided a list of all matters which REI required the addressees to attend to. There included the provision of safety scaffolding at the back of the job and the provision of a fall protection system "in this dangerous area." The letter also sought, relevantly, the supply of safety scaffolding inside the lift shaft, the supply of a fixed handrail to a ground floor area and "safe access to the job and to each floor."

16. In addition to this correspondence, there was tendered into evidence correspondence between Penhall & Co, solicitors acting for REI, addressed to Pymble No 1 Pty Ltd complaining about late payment of progress payments, and, relevantly, the harassment of workers supplied by REI to the site. Other correspondence between the parties indicates that there was disputation as to who was responsible for the provision of safety scaffolding and the like.

17. The totality of the evidence is to the effect that REI. through the efforts of its director, the defendant, endeavoured to secure compliance with its safety obligations by Millennium, represented predominantly by Mr George Nahed, but to no avail. The defendant, in submissions, asserted that the predominant blame for the conceded lack of appropriate safety standards on the site should be sheeted home to Millennium as the head builder. Whilst I acknowledge that this situation represented the factual state of affairs as established by the evidence, it does not necessarily exculpate REI and, hence, the defendant from the obligations imposed upon REI to ensure a safe working environment on the site.

18. The defendant also adduced further evidence which was intended to link Mr George Nahed with Pymble No 1 Pty Ltd, said to be the owner of the site, and which endeavoured to support other allegations made concerning the role of Mr Nahed. All of these matters are, in my opinion, irrelevant to the determination of what is an appropriate sentence to be imposed in these proceedings and I shall exclude consideration of them.

THE ASSESSMENT OF PENALTY

19. As is obvious, the starting point for the quantification of an appropriate penalty is the objective seriousness of the offence. In this case, it is the culpability of REI that needs to be considered. Given the role played by the defendant in REI as its director and, seemingly, its principal representative in connection with the construction site, the culpability of the two must be equal.

20. The breach of the Act to which the defendant has pleaded guilty is a most serious one. Not only was there an obvious risk of injury to persons working at considerable height by reason of the total failure, initially, to provide any fall restraint system of any kind, but this persisted throughout the period referred to in the charge other than the provision of some handrails which were not effective. Whilst I acknowledge that the primary responsibility for the provision of a safe work environment may have rested, in contractual terms, on the head builder, this does not exculpate REI as a significant subcontractor from the admitted breach by it of the Act in failing to provide an appropriate and effective fall restraint system for persons whom it engaged or arranged to perform work on the building site.

21. In assessing the objective seriousness of the offence, I will take into account the fact that REI endeavoured to secure some improvement from the head builder, but without any success. As was conceded during the course of submissions, it would have been more appropriate, in all the circumstances, for REI to have refused to perform any further work on the building site unless the situation had been rectified by the head builder. In making these observations, I concede that there were considerable cost pressures imposed on REI and that there were time pressures because, apparently on the face of the evidence, the construction site was behind schedule. Nevertheless, none of these matters can excuse the serious breach of the Act that was created by this state of affairs.

22. I would, however, assess the culpability of REI, and thus the defendant, as something less than that of the head builder, Millennium Projects Australia Group Pty Ltd.

23. In determining penalty, it is also necessary to take into account the deterrent effect that any penalty will provide both generally within the construction industry and specifically in terms of this defendant. The Court was advised by the defendant's solicitor during the course of the hearing that the defendant remains employed in the construction industry. Nothing that has been put in the proceedings would deflect the Court from considering both aspects of deterrence in determining the appropriate penalty, and I shall do so.

24. There are some subjective factors that the Court is entitled to take into account in mitigation of the penalty. The defendant entered a plea of guilty immediately upon the amendment of the application for order. However, this must be seen in the context that the proceedings had been fixed for hearing on two earlier occasions and the defendant, on each occasion, had maintained a plea of not guilty. Nevertheless, the defendant is entitled to some discount, as conceded by the prosecutor, and I intend allowing a discount of 5 per cent to reflect the utilitarian value of the plea.

25. It was submitted on behalf of the defendant that, in reality, the breaches which occurred during the period charged were ultimately brought about by the overall control exercised by Mr George Nahed over the construction site and the directions that he had given to persons employed or engaged by REI. Furthermore, as is evidenced from the correspondence between the defendant and representatives of the principal builder, the defendant was alive to the unsafe situation that applied at the building site and endeavoured to do something about it. Furthermore, REI did have a written occupational health and safety plan, albeit that it contained definite deficiencies.

26. I do not propose to allow any discount for these matters because they are accommodated within the assessment of the objective seriousness of the offence and have been so described earlier in these reasons for judgment.

27. The defendant has a prior conviction for an offence under the Act. Accordingly, the maximum penalty that may be imposed upon him is the sum of $82,500 or imprisonment for two years or both. The prosecutor did not seek a custodial sentence, nor, in the circumstances, is it appropriate that a custodial sentence be imposed.

28. The prior offence was the subject of proceedings before Backman J in this Court in Inspector John Patton v Romeo Elias Ibrahim and ors [2010] NSWIRComm 109. Those proceedings also arose out of the commission of an offence by REI and Mr Ibrahim was charged with the same offence pursuant to s 26(1) of the Act. The offence occurred on 18 November 2006 at a building site in Kiama. Some persons removing formwork had placed them against a newly constructed brick wall which was "green" and therefore liable to collapse. The wall did in fact collapse injuring an employee of another contractor. Mr Ibrahim who had pleaded guilty was fined the sum of $13,000. The maximum penalty was $55,000.

CAPACITY TO PAY

29. The defendant submitted that the penalty imposed should be fixed by reference to his capacity to pay. The proceedings were adjourned to enable the defendant to adduce evidence concerning his financial circumstances. An affidavit sworn by the defendant on 26 November 2010 was filed on his behalf by solicitors then acting for him. By the time the matter came on for hearing, those solicitors had ceased to act for the defendant. The defendant did not appear at the further hearing. After discussion with counsel for the prosecutor, I determined to admit the affidavit for the purpose of considering the appropriate sentence to be imposed in all the circumstances. In doing so I had regard for the provisions of s 6 of the Fines Act 1996, which is in the following terms:

6 Consideration of accused's means to pay

(cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A)

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

30. Counsel for the prosecutor pointed out that the affidavit was deficient in a number of respects, particularly in failing to annex certain financial records and furthermore the prosecutor was precluded from testing the material in the affidavit.

31. In essence, the defendant swore that he was made bankrupt on 25 September 2009 with creditors of $300,000. I infer from the affidavit that he was involved in a business venture that had failed. He said that for the financial year ended 30 June 2010, he earned wages of approximately $28,000 gross and that at the time of swearing the affidavit he was employed on a salary of approximately $1200 per week. The defendant did not own any assets, was renting premises in which he and three school age children resided, all of whom were dependent upon him. He makes no mention of the presence of any spouse or partner.

32. The defendant said that he did not own a car, did not hold a driver's licence and was then working in Canberra and reliant on other persons to drive him to and from Canberra on weekends. Some of his children attended private schools and he owed approximately $8,000 in school fees. He anticipated that in the course of 2011, his children would attend government schools. The defendant said that he was not an Australian citizen, he did not currently hold a permanent visa and is required to pay annual medical expenses of between $1,500 and $3,000 for each child. Furthermore, he had then recently been seeking treatment for an injured knee.

33. The provisions of s 6 of the Fines Act were considered by a Full Bench of the Court in Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158. There is also reference to s 6 of that Act in the Full Bench decision in McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353, although that latter case is more concerned with the application of the section to corporate defendants.

34. Nevertheless, a number of principles may be derived from the above authorities. Relevantly, for the purpose of these proceedings, the onus rests on a defendant to furnish such information in support of an application under s 6 as is appropriate, albeit to the civil standard. The Court must be satisfied as to the truth of the evidence. The prosecutor should be given an opportunity of testing that evidence. Notwithstanding the mandatory provisions of s 6, the penalty imposed by the Court must ultimately reflect the objective seriousness of the offence.

35. I am prepared to assess the defendant's capacity to pay as being reflective of straitened financial circumstances. However, even accepting his evidence in his favour at its highest, this would demonstrate in essence no capacity to pay any fine no matter how small.

36. The defendant's breach is a serious one. I am constrained to reflect the objective seriousness of the offence. As I have indicated, the maximum penalty is the sum of $82,500. Affording some leniency to the defendant to reflect a general understanding that he has straitened financial circumstances, but nevertheless having regard to the seriousness of the offence, I intend imposing a monetary penalty of $25,000. In doing so, I take into account the other objective and subjective factors to which I have referred.

37. The prosecutor sought a moiety of the penalty and an order for costs, neither of which was opposed.

ORDERS

38. I make the following orders:

1) The defendant is found guilty of the offence with which he is charged and convicted accordingly.

2) I impose a monetary penalty of $25,000 with a moiety to the prosecutor.

3) The defendant is to pay the costs of the prosecutor as assessed in default of agreement.

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