Industrial Relations Commission of New South Wales CITATION : Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94 APPELLANT Inspector John Patton PARTIES : RESPONDENT Fletcher Construction Australia Limited FILE NUMBER: IRC 5014 of 2001 CORAM: Wright J President; Walton J Vice-President; Schmidt J Appeal - Occupational Health and Safety - Respondent found guilty of two offences in appeal proceedings under s 197A of the Industrial Relations Act 1996 - Matter stood over for hearing as to penalty and costs - Totality - Double jeopardy - Deterrence - Respondent sold its business in construction industry -Specific deterrence - Fine imposed - Certificate under Suitors Fund Act 1951 - Costs. CATCHWORDS : Occupational Health and Safety - Appeal - Respondent found guilty of two offences in appeal proceedings under s 197A of the Industrial Relations Act 1996 - Matter stood over for hearing as to penalty and costs - Totality - Double jeopardy - Deterrence - Respondent sold its business in construction industry - Specific deterrence - Fine imposed - Certificate under Suitors Fund Act 1951 - Costs. Industrial Relations Act 1996 s 197A LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15 s 16 s 47 Suitors Fund Act 1951 Batty v Graincorp Limited [2002] NSWIRComm 49 Crown in the right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 CASES CITED : Vierow v Ridge Consolidated Pty Limited (No 3) [2002] NSWIRComm 345 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Construction Australia Limited [2002] NSWIRComm 316 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 HEARING DATES: 03/31/2003 EXTEMPORE JUDGMENT DATE : 03/31/2003 APPELLANT Ms A F Backman of counsel WorkCover Authority of New South Wales (Ms C Chipizubov) LEGAL REPRESENTATIVES: RESPONDENT Mr J W Nolan of counsel Solicitors: Gillis Delaney Brown (Mr D Newey) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President SCHMIDT J Monday 31 March 2003 Matter No IRC 5014 of 2001 INSPECTOR JOHN PATTON v FLETCHER CONSTRUCTION AUSTRALIA LIMITED Application for leave to appeal and appeal against a decision of the Chief Industrial Magistrate given on 5 July 2001 in Matter Nos 20230284/00/2 and 20230276/00 JUDGMENT OF THE COURT (Extempore) [2003] NSWIRComm 94 1 On 19 December 2002 the appeal brought pursuant to s 197A of the Industrial Relations Act 1996 against a decision given by the Chief Industrial Magistrate on 5 July 2001 was upheld and it was thereby found, by majority, that the respondent, Fletcher Construction Australia Limited, the defendant in the first instance proceedings, was guilty of breaches of ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Construction Australia Limited [2002] NSWIRComm 316. The matter was stood over until today in order to finalise the appeal as to sentence and costs. This judgment concerns those matters. 2 The charges laid under the Occupational Health and Safety Act, the factual matters relevant to the charges and the course of proceedings before the magistrate are conveniently set out in the earlier decision of the Full Bench; see, in particular, the judgment of the Vice-President at paragraph [7] and following. We have also been assisted by additional evidence filed by the respondent, being affidavits of Mr Misdale and Mr Wickham, executives of the respondent company, and the provision of a statement of agreed facts at first instance (paragraphs [10] and [11] of the judgment of 19 December 2002 contain the agreed facts and a number of other relevant unchallenged factual matters). It is sufficient to observe that the risks of injury were alleged to have been occasioned to an employee of the respondent (in the case of the s 15 charge) and to a person not an employee of the respondent (the s 16 charge) by failure to provide and maintain a safe system of work for the pouring of concrete into a formed up column in that the respondent failed to ensure that: (a) persons engaged in the pouring of concrete were not at risk of sustaining injury in falling from an elevated work platform raised approximately five metres above ground level; (b) the elevated work platform raised approximately five metres above ground level was stable and not at risk of toppling over; (c) adequate plant was used in the process of the concrete pour when the boom pump of the pump vehicle did not reach the column; and (d) adequate instructions were provided to persons engaged in the concrete pour as to a safe method of pouring concrete where the boom pump of the pump vehicle did not reach the column. 3 It is agreed the maximum penalty that may be imposed in the appeal is $55,000 (see s 197A(8) of the Industrial Relations Act and s 47(2) of the Occupational Health and Safety Act). It is also accepted that the principles of double jeopardy (WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 at 394; Batty v Graincorp Limited [2002] NSWIRComm 49 at [7]; Vierow v Ridge Consolidated Pty Limited (No 3) [2002] NSWIRComm 345) and totality (Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at [51]) should be applied in these proceedings. 4 We emphasise, as did Ms Backman of counsel for the appellant in her submissions, the primary consideration in sentencing under the Occupational Health and Safety Act is the objective seriousness of the offence. We are satisfied that these were serious offences having regard to the following considerations: 1. The risks to safety occasioned by the respondent were obvious and capable of simple remedy. 2. Those risks and the accident arising therefrom were such that, by their nature, they inevitably had the potential to cause serious injury to the two workmen in the scissor lift. 3. There is a need for general deterrence. This matter concerns a risk which arises in an inherently dangerous industry. 5 The respondent was a company actively involved in the management of occupational health and safety and had established occupational health and safety based systems for that purpose. It had a safety plan for each site, including Macquarie Centre where the offences occurred. The respondent also had a long standing program of safety training and site induction. 6 As to the question of specific deterrence we consider that that matter will have minor significance in these proceedings having regard to the evidence that the respondent has disposed of its construction business in Australia. However, some element of specific deterrence is required because the respondent retains some limited ongoing involvement in the industry. 7 The following significant subjective features should result in a lower penalty in this matter: 1. The reasonably elaborate safety systems introduced by the respondent. 2. The prior record of the respondent. Whilst there is one prior conviction the record is reasonably good having regard to the industry in which the respondent operated. 8 It is also appropriate to apply the principle of double jeopardy having regard to all of the features of the present matter and the authorities earlier referred to on the issue. 9 The Court has also had regard to the particular circumstances of the offender, the overall circumstances both of the proceedings and of the offences, in reaching its conclusion on the issue of penalty. 10 The principle of totality should be applied to the offences in this matter. Having regard to the decision in Crown v Keenan, and having regard to the objective and subjective factors of the matter we consider that the penalty for each offence should be $10,000 giving an overall penalty of $20,000 which should be reduced to $11,000 by operation of the principle of totality. 11 The respondent requested that the court issue a certificate under the Suitors Fund Act 1951. We consider that application should be granted if the respondent is otherwise eligible for the issue for the certificate. 12 The Court accordingly orders: 1. The respondent is convicted of each of the offences charged. 2. The respondent is fined the sum of $11,000 with a moiety thereof to the appellant. 3. The respondent shall pay the appellant's costs of the proceedings before the Chief Industrial Magistrate and the costs of the appeal, such costs to be as agreed or assessed. 4. The respondent is granted a certificate pursuant to the Suitors Fund Act 1951 if it is otherwise entitled thereto. ___________________________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.