Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Dennis Howard v Boone & Willard Plumbing Pty Ltd [2002] NSWIRComm 228 Prosecution: PARTIES : Inspector Dennis Howard Defendant: Boone & Willard Plumbing Pty Ltd FILE NUMBER: IRC4274 of 2001 CORAM: Kavanagh J CATCHWORDS : Prosecution under s15(1) of the Occupational Health and Safety Act 1983 - employer as sub-contractor identifies risk to safety - informs head contractor - employees without instruction proceed to site - action of employees for consideration in assessment of culpability for breach - question as to parity with penalty against head contractor with regard to different circumstances in question and different degrees of criminality - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Inspector May v McDonald's Australia Limited [2002] NSWIRComm 179 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143 WorkCover Authority of New South Wales v Main Lighting Pty Limited (1995) 100 IR 248 AXIA Pty Limited v Environmental Protection Authority (1993) 113 LGERA 357 CASES CITED : Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 16 WorkCover Authority of New South Wales v Anytime Industrial Services Pty Ltd (2001) 110 IR 34 R v Thomson, R v Houlton (1999-2000) 49 NSWLR 383 R v Sharma [2002] NSW CCA 142 Warman Ltd v WorkCover Authority (1998) 80 IR 326 HEARING DATES: 08/21/2002 DATE OF JUDGMENT: 09/06/2002 Prosecutor: Mr R. Reitano of counsel Solicitors: Ms R. Parmegiani WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr J.P. Phillips of counsel Solicitors: Ms P. Flynn Cutler Hughes & Harris JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Friday 6 September 2002 IRC4274 of 2001 INSPECTOR DENNIS HOWARD v BOONE & WILLARD PLUMBING PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm228 1 This prosecution is brought by Inspector Dennis Howard of the WorkCover Authority of New South Wales under the provisions of s15(1) of the Occupational Health and Safety Act 1983. The charge as pleaded was amended to read: The defendant failed to ensure the health, safety and welfare at work of all its employees, in particular Aron MacLean, Rohan Carson, Gregory Keighery, whilst installing fire hydrant pipe-work, contrary to section 15(1) of the Occupational Health and Safety Act 1983. 2 The particulars of the charge are: (a) The defendant . . . at all material times, employed a number of persons, including Aron MacLean, Rohan Carson and Gregory Keighery, to undertake the installation of hydraulic services at The Finger Wharf, Cowper Wharf Road, Woolloomooloo in the State of New South Wales. (b) The defendant, at all material times, carried out the installation of hydraulic services at a construction site known as The Finger Wharf, Cowper Wharf Road, Woolloomooloo. (c) The defendant failed to provide or maintain safe systems of work to ensure employees were not at risk of falling a distance greater than 6 metres whilst carrying out work at the said site. (d) The defendant failed to provide adequate instructions, information and supervision to Aron MacLean, Rohan Carson and Gregory Keighery who were installing fire hydrant pipe-work at the said site. (e) As a result of the said failure, Aron MacLean, Rohan Carson and Gregory Keighery were placed at risk of injury. 3 The defendant pleads guilty to the charge. 4 A comprehensive agreed statement of facts was tendered and relevantly states: 3. At all material times the defendant, Boone & Willard Plumbing Pty Ltd were plumbing and drainage contractors. 4. At all material times the defendant, Boone & Willard Plumbing Pty Ltd employed a number of persons at a construction project site known as The Finger Wharf at Cowper Wharf Road, Woolloomooloo, Sydney, in the State of New South Wales (the said site), including: (a) Aron MacLean, 26 years of age, as a plumbing tradesman, (b) Gregory Keighery, 24 years of age, as a plumber, (c) Rohan Carson, 24 years of age, as a plumber, (d) Michael Phillips, 25 years of age, as a leading hand (e) Greg Tavener, 37 years of age, as a project supervisor 5. At all material times Multiplex Constructions (NSW) Pty Ltd was the head contractor and builder of the said site. 6. At all material times Multiplex Constructions (NSW) Pty Ltd employed a number of persons at the said site, including: (a) Anthony Taylor, 35 years of age, as a foreman, (b) James Quinn, 58 years of age, as a site manager, (c) Reginald Fadel, 31 years of age, as a senior site manager. 7. At all material times Multiplex Constructions (NSW) Pty Ltd contracted the defendant, Boone & Willard Plumbing, to install hydraulic services at the said site. 8. On 29 October, 1999 Aron Colin MacLean, a plumber employed by the defendant, Boone & Willard Plumbing Pty Ltd, received severe injuries when he fell a distance of approximately 7 metres at the said site. 9. Immediately prior to his fall, Aron MacLean had been installing a 100mm diameter galvanised fire hydrant pipe on the eastern side of level 3 of the cross over link bridge at grid reference 30 on that site. 10. The area where the link bridge was situated was also known as the transept. There were two walking platforms on the one bridge structure. One platform joined the level 3 corridors. The other platform joined the level 4 corridors. Aron MacLean was standing on a ladder which he placed diagonally across the access stairs to level 3 of the bridge. The ladder had been propped on one side to level it across the stair tread. Gregory Keighery, another plumber employed by the defendant Boone & Willard Plumbing, was approximately one metre away to the right, standing on the floor of the bridge and holding the other end of the pipe. Gregory Keighery had accessed the eastern side of level 3 of the cross over link bridge at his own instigation. 11. Whilst Aron MacLean was standing on the ladder, the ladder slipped and Aron MacLean fell through an open void directly below him. He fell a distance that was later measured to be 6.98 metres from the walkway floor surface, at level 3 of the bridge, to the concrete floor below where he landed. 12. Aron MacLean was taken away by ambulance and remained in intensive care at St Vincents Hospital for 6 weeks. 13. On 30 October, 1999 Inspector Howard attended the said site. From his observations he prepared a factual report. On the same date, Inspector Howard also took photographs at the site of the accident. 14. Investigations by Inspector Howard revealed that the timber access stairs had been installed on the eastern side on level 3 of the bridge, the area known as the transept, approximately one month prior to the accident. Permanent handrails had been installed on Level 3 of the Bridge but these handrails stopped short of where the access stairs were located. There was an open void on each side of the timber access stairs to Level 3 of the bridge. No handrails had been in place to prevent persons falling into the open voids on each side of the timber access stairs. 15. Scaffolding had previously been in place, under level 3 of the bridge, to paint the underside of the bridge and install the permanent hand rails mentioned above. The scaffolding had been removed on 16 October 1999 as the painting on the underside of the bridge had finished. 16. The area was then closed off to employees through the use of a wooden barricade system. Multiplex engaged a contractor to block off the entrance to the bridge area. The contractor blocked off the entrance on 16 October 1999. Three pieces of timber were nailed to the entry way of either side of the barrier to prevent access. One length of timber was placed, horizontally, approximately 100mm from the floor. Another length of timber was placed, horizontally, approximately 5 feet above the floor. A third piece of timber was placed mid way between the two other pieces. 17. Multiplex Constructions (NSW) Pty Ltd did not inform any of its subcontractors or employees at the site that level 3 of the bridge was out of bounds. 18. Gregory Tavener, project manager of the defendant, was also not aware that level 3 of the bridge had been closed off, and was out of bounds. 19. The middle rail of the barrier to entry on the eastern side of the bridge was thereafter removed by persons unknown and, as at the time of the accident, was not in place. 20. One or two days before the accident, Gregory Tavener had sent employees of the defendant, Boone & Willard Plumbing, up to level 3 of the bridge to carry out work. He then spoke to Anthony Taylor, the foreman of Multiplex Constructions (NSW) Pty Limited, and asked him to make the corner of the bridge on level 3 safe so that his men could work closer to the corner. Nothing was done by Multiplex Constructions (NSW) Pty Ltd. 21. The next day Gregory Tavener again asked Anthony Taylor to make the corners of the bridge on level 3 safe. On this occasion Anthony Taylor replied that he would not be able to have handrails put up in the near future and suggested that Gregory Tavener ask his men to wear harnesses if working in proximity of those corners. 22. Gregory Tavener told his men to continue work only on the western side of level 3 of the bridge where the handrails were and to go no further. He did not think it appropriate for the men to wear harnesses, as there were no safety or static lines installed in the area. Safety or static lines could only be installed by a certified service provider. 23. On the day of the accident Gregory Tavener instructed Aron MacLean and Gregory Keighery to work on level 4 of the bridge. Gregory Tavener also took Aron MacLean and Gregory Keighery up to level 4 of the bridge where work was to be performed on that day. (i) Gregory Tavener stated to the investigating inspector that he gave Aron MacLean and Gregory Keighery enough work on level 4 of the bridge for that day, and did not give them any instructions to work on level 3 of the bridge on that day. (ii) Aron MacLean stated to the investigating inspector that he was asked by Gregory Tavener to work on level 4 of the bridge. (iii) Gregory Keighery stated to the investigating inspector that he was not told by Gregory Tavener to work on level 3 of the bridge but that he went there of his own volition. (iv) Rohan Carson stated to the investigating inspector that he received no instructions to work on level 3 of the bridge on the day of the accident. 24. Neither Aron MacLean nor Gregory Keighery had been told on the day of the accident by Gregory Tavener or by Multiplex Constructions (NSW) Pty Ltd that level 3 of the bridge area was closed off, and was out of bounds. Gregory Tavener was also unaware that level 3 of the bridge was out of bounds on the day of the accident. 25. Once Aron MacLean and Gregory Keighery completed the work on level 4 of the bridge, they decided to carry out work on level 3 of the bridge. 26. Aron MacLean and Gregory Keighery gained access by ducking under the length of timber that had been placed across the doorway. Neither of them saw any signs to indicate that the area was a prohibited area. There were no signs or barricades and the area was not taped off. 27. Neither had to remove any of the timbers to gain access to level 3 of the bridge. 28. Rohan Carson also gained access to the bridge, at his own instigation, by walking up the stairs onto the bridge. At entry he saw two lengths of timber, one approximately 100mm off the floor and the other approximately 5ft off the floor. He saw no signs or barricades to indicate that access to that area was prohibited. He did not remove any of the timbers to gain access. 29. Once on the bridge, Rohan Carson set about soldering some shower recess assembly together using an oxy-acetylene set he knew had been left there on a previous occasion, by another contractor. Gregory Keighery and Aron Mac Lean went about installing fire hydrant pipe work. 30. On level 3 of the bridge, at that time, were Gregory Keighery, Aron MacLean, Rohan Carson and a painter. The painter was not an employee of the defendant. 31. Aron MacLean asked Rohan Carson for a hand. Rohan Carson went over to help him. They were installing a 4" galvanised steel pipe. Rohan Carson was at one end, Aron MacLean was holding the other end on the ladder and Gregory Keighery was in the middle putting a clip on. Gregory Keighery put the clip on and Rohan Carson walked away. Rohan Carson then heard Gregory Keighery yell and turned around to see Gregory Keighery watching Aron Maclean falling down the hole. 32. Bruce Anthony Johnson, a fitter employed by Otis Elevators, was working on level 1 installing a doorframe for a lift shaft. He observed a number of workers on level 3 of the link bridge. He saw Aron Mac Lean fall. At the time of Aron Mac Lean's fall Bruce Johnson went to the area where Aron had been working and observed that there were no barriers to stop access to the stairs, there was no scaffolding or platforms to prevent persons falling and there were no signs, at the entrance to level 3 of the bridge, to prevent access. 5 Mr R. Reitano of counsel appeared for the prosecution. Mr J.P. Phillips of counsel appeared for the defendant. The prosecutor relied upon an agreed statement of facts, coloured photographs of the site and a factual inspection report of Inspector Howard. Also tendered was the industrial record of the company. 6 The Industrial Relations Commission sitting in Court Session must first address the nature and quality of the offence, that is, the gravity of the offence (see Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 at 474). The court must determine the culpability of the defendant for the offence as charged. The actions of others can be relevant to the assessment of the culpability of the defendant (see Inspector May v McDonald's Australia Limited [2002] NSWIRComm 179; WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 [at 42-43]). 7 The evidence revealed Mr Tavener, the supervisor on this site employed by the defendant company, had identified his workers had to perform work on level 3 and further the worksite contained a risk to safety in relation to the existence of a void. He determined the area needed hand rails. Having so identified a risk to safety in accordance with the site safety plan, he approached the head contractor, Multiplex, through its supervisor on the site, Mr Taylor. I accept that two conversations occurred between Mr Taylor and Mr Tavener. I accept once the difficulty was explained, Mr Taylor in answer to the identified risk rejected the installation of handrails and proposed: Just get your men to throw a harness on. 8 I further accept that Mr Tavener had a conversation with Mr Phillips, his foreman, by way of radio, and informed him the work at level 3 could not be done until hand rails or static lines were installed. I accept on the day of the offence the workers were taken by their supervisor, Mr Tavener, to level 4 to perform duties. However, expecting the workers would stay on level 4, both Mr Tavener and his foreman went to another area. There is no evidence the employees were told either by Mr Tavener or the foreman of the recognised risk to safety on level 3. These workers, who one must assess as keen but foolish, entered level 3, which site had a partial barricade upon it. They then performed duties in a manner which exposed them further to risk. 9 The culpability of the defendant must be for the breach as charged. While the evidence reveals it had a system of work in place, it did not maintain it. Further, it did not give adequate information, supervision or instruction to its workers. It is the culpability of the defendant with that breach to which the court directs its attention. The defendant submits the inexplicable decision taken by its employees to proceed to work on level 3 must be considered in the assessment of its culpability. While the act of an employee can be taken into account in an assessment of the culpability of the defendant, it is the gravity of the risk to safety created by the employer to which this court gives its attention (see Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143 [at 15]. 10 I find this employer's culpability is diminished because of the act of its employees both in going onto a worksite where access had been limited and by adopting the use of a ladder in a manner which was inherently dangerous. Evidence revealed the employees entered onto a worksite which was partially barricaded. They went to this site without instruction even though the latter act is reflective of their keenness to work. They also chose to work above a void without appropriate safety equipment. However, the breach exposes a serious failure on the part of a defendant company which was aware of a risk to safety but failed to properly supervise its workers. While there was a system of work in place, there was a complete failure to maintain that system so it worked with safety. As was said by Bauer J in WorkCover Authority of New South Wales v Main Lighting Pty Limited (1995) 100 IR 248 (at 257): . . . The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 11 A risk to safety actually foreseen must affect the court's consideration of the level of culpability of the defendant (see AXIA Pty Limited v Environmental Protection Authority (1993) 113 LGERA 357). The conversations Mr Taverner had with the supervisor of the Head Contractor, Multiplex, reveals the defendant company was aware workers would be required to have access to level 3. His request for hand rails reveals the supervisor was aware of the risk to safety in working on that level. It was a particular failure given the supervisor had assessed the site was not suitable for the alternative use of harnessing which he had discussed with the major contractor. The agreed facts reveal there was an absence of the static lines needed for harness support. Even though the defendant did not give to the employees the instructions to work on level 3, he did not properly inform, instruct and supervise them. In the circumstances, there was a positive obligation on this employer given its knowledge of the risk to safety on the level 3 site, to warn its workers not to seek access to it. Such is the offence which has been pleaded against this defendant. 12 I find the gravity of this offence serious. 13 A number of subjective features to the offence are relevant in consideration as to penalty although they are to be viewed in the context of being secondary to the consideration of the objective seriousness of the offence (see Lawrenson Diecasting at 474). 14 The maximum penalty under the Act is $550,000. The defendant company has no prior breach of Occupational Health and Safety Act 1983 and holds an unblemished industrial record. 15 The defendant company was incorporated in 1956. It has performed plumbing work in residential areas of metropolitan Sydney and on housing projects in the Newcastle, Bathurst and Lithgow areas. Mr Michael Bruce Willard who gave evidence, in affidavit form, on behalf of the defendant company took over the company from his father in June 1985 and has expanded its work to service multi-dwelling and high-rise projects. The company also provides services for schools and hospitals. Depending on the business of the day, the company employs between 70 and 180 employees: generally, qualified tradespersons. Its turnover is approximately $20 million per annum. It is a company which has contributed significantly to the industrial reputation and employment opportunity within New South Wales. 16 Elements of deterrence must be given consideration in an assessment of penalty (see Capral Aluminium Pty Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 81-82]). Under the contract between the defendant company and the head contractor, Multiplex, the defendant company bore much of the obligation for site safety. Evidence revealed the company not only adopted a site safety policy, it took part in safety walks, monthly safety audits and tool box meetings. An examination of both this documentation and its practical application reveals it had implemented the policy rigorously. 17 Further, after examining the circumstances of the breach and the acts of its supervisor and foreman, the defendant company has re-assessed its training policies which it determined were inadequate in the circumstances. Both the supervisors and the foreman and its employees did not comply with much of the company's policy for safe working at heights nor its training of them in the relevant safe working procedures. I am, however, satisfied the company has re-educated all employees to its site safety standard and procedures through a further induction course. It has introduced a supervisor line manager's course. Tool box meetings are now held on a weekly rather than on a monthly basis. More walkie-talkies are made available for communication between supervisors, leading hands and the workforce. Employees moving from one site to another now have to have a certified authority to so do. All identified risks now demand a revised work method. I accept the company has addressed specifically the element of site safety enforced through this breach. However, the penalty must also be proportionate to the offence committed (see Capral Aluminium Pty Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay). 18 Evidence reveals the company supported the injured employee in a rehabilitation programme. He is now back to full duties in his trade with the same employer having been gradually brought through his rehabilitation programme. He did, however, suffer serious head injuries and was hospitalised for a considerable period of time. Evidence revealed he is a most well motivated young man. 19 I accept there is some evidence of mitigation as to penalty. This company had in place significant occupational health and safety polices and procedures prior to the incident. As the subcontractor, having identified the risk, it should however have been sufficiently empowered in the contractual arrangement to be able to ensure it could order a revised work method for the task. In WorkCover v Anytime Industrial Services Pty Ltd (2001) 110 IR 34 this court (at 26) spoke of the head contractor's responsibility to empower a subcontractor. The court said: Large corporations, once they contract-out their work must empower, within the contractual relationship, the contractor to play a role in the decision-making process . . . The subcontractor here recognised the risk and within the working relationship with the head contractor should have been empowered to redefine the work method in co-operation with the large contractor. The evidence suggests there was argument between the head contract and the sub-contractor as to what safety measures would make the site safe for work to be performed 20 feet (approximately) above the ground. The evidence suggests the head contractor deflected all responsibility onto the sub-contractor. Industrial common sense should prevail. Once a risk to safety is identified both companies, as employers, have obligations under the Occupational Health and Safety Act 1983 and bear the responsibility for devising a safe work method and providing a safe place for workers who are required to perform duties. 20 An amended Application for Order was filed in this matter and a plea of guilty was then entered. I am satisfied the plea was entered at the earliest opportunity and, accordingly, the defendant should have the benefit of a 25 per cent discount for the utilitarian value of the plea (see R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; R v Sharma [2002] NSW CCA 142). 21 I find the defendant guilty. 22 The question as to the application of the principle of parity in sentencing arises. This breach of the Occupational Health and Safety Act 1983 was examined in a prosecution brought against Multiplex Pty Ltd. The principle of parity was discussed by the Full Bench in Warman Ltd v WorkCover Authority (1998) 80 IR 326 (at 340-341): We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione -v- The Queen has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: `The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe -v- R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe -v- R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to `a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.' That principle was referred to by Mason J in Lowe -v- The Queen (at 610) as follows: `Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.' 23 I find it is proper, in the circumstances, in my consideration as to penalty to reflect on the notion of equal justice. This sub-contractor showed real concern for an identified risk to safety but it failed to supervise its employees and maintain the safety element of its system of work. The head contractor, when on notice, did not address the identified risk except by a relevant casual comment. While both defendants are culpable for the offences as charged and both have pleaded guilty, the companies differ as to some of the objective and subjective elements to the offences as charged. I find there are difference circumstances and different degrees of criminality applicable between the two defendants. This defendant works in a high risk work environment; has no prior breach of the Act and operates with a much smaller financial commitment. Both companies contribute positively to the industrial and employment climate of New South Wales. 24 The defendant is fined in the sum of $135,000 with a moiety to the WorkCover Authority. 25 There has been agreement between the parties as to quantification of costs in the sum of $11,426.45. I order the defendant to pay the prosecution's costs as agreed at $11,426.45. 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