Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover v Kevin R Sheather Services Pty Ltd [2001] NSWIRComm 74 PROSECUTOR WorkCover Authority of New South Wales (Inspector Maltby) PARTIES : DEFENDANT Kevin R Sheather Services Pty Limited FILE NUMBER: IRC5578-5579 of 1999 CORAM: Peterson J CATCHWORDS : Occupational health and safety - alleged breaches of s.16(1) - electrical switchboard - pyrotenax cables - explosion - serious injuries - labour-hire employees - allegation of failure to ensure that persons not in its employment were not exposed to risks - failure to provide a safe system of work - unlicensed electrician - specific instruction to a worker not to perform a particular task - provision of appropriate special equipment and also opportunity to perform the work - failure in context of supervision. LEGISLATION CITED : Occupational Health and Safety Act 1983 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] 100 IR 156 CASES CITED : WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v. Maine Lighting Pty Ltd (1995) 100 IR 248 Riley Australian Hire Pty Ltd [2001] NSWIRComm 31 HEARING DATES: 06/21/2000; 06/22/2000; 06/23/2000; 07/11/2000 DATE OF JUDGMENT: 04/10/2001 PROSECUTOR Ms P M McDonald of counsel SOLICITOR Price Waterhouse Coopers Legal SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr J W Conomos of counsel SOLICITOR McLachlan Chilton JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 10 APRIL 2001 Matter No. IRC5578 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v KEVIN R SHEATHER SERVICES PTY LIMITED Prosecution under s16(1) of the Occupational Health & Safety Act 1983. Matter No. IRC5579 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v KEVIN R SHEATHER SERVICES PTY LIMITED Prosecution under s16(1) of the Occupational Health & Safety Act 1983. JUDGMENT 1 The defendant, Kevin R Sheather Services Pty Limited is charged with two breaches of s.16(1) of the Occupational Health and Safety Act 1983 ('the Act') arising out of events of 15 October 1997 at a Woolworths retail store at 540 George Street, Sydney. On that day Paul Newman and Nicholas Aravanis, being persons supplied to the defendant as day labour employees of Bankstown Personnel Pty Limited, were injured when an electrical switchboard into which they were inserting pyrotenax cables exploded. Mr Newman suffered burns to 75 per cent of his body and other serious injuries which need not be enumerated, but which involve considerable residual effects. Mr Aravanis suffered burns to his legs, stomach and arms. 2 The charges are that s.16(1) was breached in that, in Matter No. IRC5578 of 1999, the defendant "failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking whilst they were at its place of work, in that the Defendant failed to provide a safe system of work for Nicholas Aravanis and Paul Newman whilst they carried out the connection of pyrotenax cables to an electrical switchboard" and in Matter No. IRC5579 of 1999 in that it "failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work, in that the Defendant failed to provide adequate supervision of Nicholas Aravanis and Paul Newman whilst they carried out the connection of pyrotenax cables to an electrical switchboard". 3 The particulars supplied in relation to the first charge were as follows: (a) Failure to ensure persons performing electrical wiring work were properly qualified to do so; (b) Failure to ensure the isolation of a live electrical switchboard whilst electrical wiring work was being performed on the switchboard; (c) Failure to inform Paul Newman that Nicholas Aravanis was an unlicensed electrician. 4 The defendant has pleaded not guilty to both charges. The charges were heard together by consent; the evidence is thus evidence in relation to each charge. 5 The matter was heard on 21, 22 and 23 June 2000 when judgment was reserved. On 11 July 2000 the matter was listed for mention as the result of advice from the legal representatives of the prosecutor due to an issue which had arisen in other proceedings concerning the appropriateness of the procedural steps taken in the initiation of proceedings of this kind. The proposition broadly was that the procedure was erroneous and had the consequence that the proceedings not been properly or validly initiated. It was agreed that the matter should await the outcome of appeal proceedings in another matter which it was anticipated might resolve the issue. That judgment was given on 18 August 2000 in the matter of Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] 100 IR 156 and in November 2000 resolved the difficulty to the point where the defendant withdrew any objection to the matter proceeding to judgment. 6 The proceedings were commenced on what appears to have been the last day of the two- year limitation period. Subsequently, they were amended by consent to correct what was a typographical error. The proceedings in both matters had been commenced against Kevin R Sheather Electrical Services Pty Limited. At the commencement of the hearing the prosecutor sought leave to make a further amendment by deleting the word 'Electrical' from the name of the defendant: the proceedings had been commenced against an incorrectly named corporation, although the correct Australian company number had been used in the earlier Amended Summons. After hearing opposing submissions as to whether the amendment should be permitted, the following ruling was given: I am satisfied that the court should grant leave to amend in this respect. Section 170 of the Industrial Relations Act 1996 authorises the Commission to make such amendment as it considers necessary in the interests of justice. That section clearly applies to criminal proceedings. I contrast it with the provisions of s.169, in particular subs. (5) which notes that section does not apply to criminal proceedings before the Commission in Court Session, no such provision occurs in s.170. It seems to me that the amended summons identifying the defendant as Kevin R Sheather Electrical Services Pty Ltd with the ACN number for Kevin R Sheather Services Pty Ltd, there being no entity with the name identified on the summons would have left the true defendant in no way misunderstand that it was Kevin R Sheather Services Pty Ltd against which the proceedings were brought. I think in those circumstances justice requires that the amendment be made. 7 The defendant is an electrical contractor which undertakes electrical work in the construction industry. The Woolworths Town Hall store, at the date of the alleged offence, was in the course of a major refurbishment which included the aspect for which the defendant was contracted, namely the removal and replacement of all electrical wiring, lighting and power supply systems. The work undertaken by the defendant commenced in about March 1997 and was not completed until approximately March 1998. The number of electrical operatives employed by the defendant on site varied from time to time according to the availability of work, but on the date of the incident which led to these charges it had eight permanent employees on site together with a small number of labour hire employees including Messrs Newman and Aravanis. They had come to be present on site as the result of a request by the defendant on 10 September 1997 by written "purchase order" directed to "Bankstown Group Att. Jim Johnson" for it to "provide 4 men approx 2 wks. For light & power works @ Woolworths Town Hall". I find that the reference to Bankstown Group embraces Bankstown Personnel Pty Limited, an associated company of which is Bankstown Engineering Pty Limited. Both Mr Newman and Mr Aravanis understood them to be the same corporate identity but in evidence Mr Miller, a director of both companies, clarified the position and identified Jim Johnson as a sales consultant for Bankstown Personnel Pty Limited. 8 The latter company operates by having on its books persons who apply to it to be allocated to jobs for which it obtains requests of that kind. Both Messrs Newman and Aravanis had so applied and in due course were offered work in response to the defendant's order cited above. 9 The incident which occurred on 15 October 1997 was an electrical explosion within an Essential Services Switchboard ("EESB") located in the main switchroom in the basement of the Woolworths premises. That room was of rectangular configuration about 10m long by 5m wide with a main switchboard running down the centre of the room and the doorway in the middle of an end wall. In a corner, to the left of the doorway upon entry, was a metallic box fixed to the wall with two metal covers over its "front" and behind which were located electrical cabling, bus bars and circuit breakers. 10 The nature of an ESSB is that it provides the power supply to essential services in the building and must be directly connected to the main power supply at an electrical substation, in this case operated by Energy Australia, and within the Woolworths building. It was suggested in oral evidence that the requirements of the standard wiring rules, AS3000, are that the supply must be continuous so that essential services such as lifts, fire sprinklers, emergency warning systems and the like cannot be simply switched off. This ESSB was concerned with such installations and also with the air conditioning system. The cabling to the ESSB was pyrotenax cable, which is a single copper core surrounded by a mineral insulating layer and then an outer copper layer, which gives the cable the appearance of copper tubing. This form of cable was utilised for the purposes of the essential services wiring because of its heat and damage resistant qualities. 11 The cabling in question was additional to that which had earlier been installed, because of a variation in the construction work which required the installation of a third lift and was the power supply for that lift. 12 On 15 October 1997 Messrs Newman and Aravanis had, together with other electrical workers, undertaken the tying down of the cable to a perforated metal carrier called a cable rack which ran from a number of floors above into the switch room but outside the ESSB box. The tying down was performed by plastic electrical ties tying the metal cable to the metal cable rack. The evidence of Mr Thwaite was that this cable was to gain access to the box from the side rather than coming in through the top as did other cabling, because of the tightness of access within the switchboard itself. 13 Four holes needed to be drilled in the side wall of the ESSB box, special pyrotenax glands fitted and the pyrotenax cable drawn, or pushed and pulled, through those glands for eventual connection to the switchboard. 14 A major deviation occurred in the evidence in respect of this stage of the work. Mr Thwaite's evidence was that he did not give the instruction to drill the holes, fit the glands and pull the cable through ready for connection. This was a task he anticipated would be done much later after the other work which he contended he instructed the two operatives to perform on level 3 was completed. He knew that the switchboard was live and could not be switched off without interrupting essential services and that such work could only be undertaken during a shutdown of a kind which occurred outside retail hours. Such shutdowns occurred from time to time with the approval of Woolworths and such work was undertaken at those times. 15 Mr Aravanis, on the other hand, Mr Newman being unclear on this, gave evidence that Mr Thwaite instructed them on the morning of 15 October to complete the tying down of the cable in the switch room and to then fit the cable through the switchboard wall by drilling holes and fitting glands and pulling through ready for later connection to the board. 16 Mr Aravanis drilled the four holes in the wall in positions which he said Mr Newman indicated to him and fitted the pyrotenax glands. They had obtained the glands from the storeroom on a floor above which contained Mr Thwaite's office. Mr Aravanis was uncertain whether he had obtained the glands from Mr Thwaite or another person being a supervisor wearing Sheather-branded overalls on Mr Thwaite's floor. 17 Mr Aravanis had pushed one cable through its gland with Mr Newman pulling on the other side of the switchboard wall near the live power circuit. That cable was pulled through approximately 1m and, in photographs taken subsequent to the accident, is shown to be through the wall and then bent in a curving fashion back around to the outside of the wall. The actual explosion occurred when Mr Aravanis was feeding the second cable in through the gland from the outside and Mr Newman was pulling it through. It appears, and I am prepared to find, that this cable struck a copper bus bar which was live causing a short circuit which then caused the electrical explosion. Mr Newman was set on fire thereby and was extinguished outside the room by other employees of Sheather who were working in the vicinity but on other work. 18 Mr Newman is a licensed electrician of very wide experience with much experience on switchboard work, the possessor of electronics and industrial electronics certificates and other qualifications. At the date of the accident he had approximately 28 years' experience as an electrical tradesman. Mr Aravanis, on the other hand, is 29 years of age, and has not completed any trades qualification. He failed one subject in his final year of the electrical trades course a number of years ago and has not returned to complete it. He has undertaken but not completed an apprenticeship to Constructions, doing residential and non-residential construction work and has worked now on and off with a number of small firms in the electrical trade. Although he described his occupation as "Trades Assistant", I note that in the course of his evidence he referred to himself a number of times as "an electrician". His evidence was that when he applied to Bankstown Personnel he informed them that he did not have a licence and that he had his TAFE course to complete. Bankstown Personnel's records, according to the evidence of Mr Miller, showed him at the relevant time as an electrician without licence. 19 Mr Newman's evidence was that when he and Mr Aravanis came together on the Woolworths site he was told by Mr Aravanis that the latter was an electrician. Mr Newman said in evidence that "You don't ask the others for their qualifications - you just accept what they say". He took Mr Aravanis to be a licensed electrician. Mr Newman claimed Mr Aravanis told him he had his own contracting business, which caused him to think the other was a licensed electrician. Mr Newman said had he known the true position he "would have assumed a lot more responsibility". 20 Mr Aravanis said this in cross-examination about his discussions of his qualifications with Mr Newman: Q. Did you say to him that you had your own electrical business at one stage? A. No. Q. Did you ever lead him to think by your actions or your words that you had been involved in the industry as an employer? A. Yes, I was an electrician, yes. Q. You told him that, did you? A. That I had done electrical, yes. Q. Did you tell him that you had been an employer in the industry? A. In the electrical industry? Q. Yes? A. Yes, I did. Q. Why did you do that, sir? A. Why did I do what, tell him that I am an electrician? Q. Yes? A. Because I am an electrician, I have worked in the electrical field. HIS HONOUR: I don't think that question has been understood yet. CONOMOS: I' m not rushing him. HIS HONOUR: I appreciate that [are] but the result is the same. CONOMOS Q. Did you tell Mr Paul Newman that you had conducted an electrical business at any time? A. No. Q. Did you do or say anything which may have led him to believe to your knowledge that you had conducted an electrical business at some time? A. No. Q. Did you tell him that you were a licenced electrician? A.. No, I didn't. 21 Mr Aravanis said of the work he did at the site: Q. What type of work were you performing? A. Putting up light fittings, putting lights for the fittings, putting some cables up and down from the floors, small odd jobs that were given to me. Whenever I finished a job I would go over and get another job and they would say you can help putting in cables or tying cables. There were various small tasks all over the place, adding lights and putting lights up and getting . . . . ready. 22 As to the work in process when the explosion occurred his testimony included: Q. On the day of the accident you said that you had got some directions from David Thwaite? A. That is correct. Q. In words to the effect, can you tell his Honour what David Thwaite said to you? A. Well, he said to me, "Just finish off tying the cable down into the switchboard and put the cables inside the switchboard ready to be terminated. Don't terminate the cables but just be ready to terminate the cables and the board is live and it cannot be shut off." They were his exact words. . . . . Q. What is your understanding of what is meant by "terminated"? A. Well, terminated means actually connecting them on to the circuit breaker so then those cables can be left up there, whatever they are running for used, it can be tested and start working. 23 Gregory John Landers was also called in the prosecution's case. He was a licensed electrician employed by the defendant for a little over 20 years who worked as a leading hand and on some sites as a foreman. His evidence covered the circumstances of the work generally. Of particular interest is his evidence of a conversation with both Messrs Newman and Aravanis. The evidence was: Q. In this conversation what did you say to Nick and Paul? A. Nick and Paul asked where the cables were running to in the basement. I told them they were going to a board in the main switch room and they asked, I told them, it could not be completed, the board was live and they had asked why and I told them why. Q. When you say, "they", who specifically spoke? A. Paul. This conversation was isolated to Monday, 13 October. He then, on what appears to have been the following day, had a further conversation with Mr Newman. The evidence was: Q. What did you say in the second conversation? A. Paul approached me and asked why the job could not be completed and I told him the board could not be turned off it was too unsafe. 24 Mr Landers was also asked about some answers he supplied Inspector Maltby when interviewed by her in relation to the accident on 30 December 1997. The relevant evidence was as follows: Q. The question is, "were you aware at any time that work was being carried out on the board while it was still alive?" and the answer, "I was aware that they wanted to work on it live, both having asked about the entry of the extra cables into the board. I stressed to them both not to attempt the cable entry as it was too dangerous." Was that the answer you gave to the inspector? A. Yes. . . . . Q. . . . Did that conversation take place before or after the accident? A. Before the accident. . . . . This conversation was isolated in cross-examination to Monday, 13 October 1997. Another answer supplied to Inspector Maltby was also raised this way: Q. And question 30, "were you at any stage asked if the switchboard could be isolated?" And your answer, "no, but I told him on a number of occasions not to", is that word tap? A. Take, t-a-k-e. Q. "Not to take the cables into the board, the board could not" and there is a word left out, do you mean, could not be isolated? A. Yes. 25 Mr Landers also agreed with the question: As the leading hand, you would have had to make it clear to each of these men that they were not to feed the cable into the board? 26 Mr Newman's memory of the work on the day of the accident and the accident itself is very limited. He said he remembered "the bang, the flames and getting into the ambulance". He had no clear recollection of being given instructions in relation to the work which was to be done that day. Mr Aravanis was not so affected. His evidence ultimately was that the work they were doing was the result of instructions given to them by David Thwaite and that it was in the course of carrying out those instructions that the accident occurred. Mr Thwaite's evidence was that he gave them instructions of a quite different kind and he did not understand that they would have been working on the relevant switchboard on the day in question but that they should have been working outside tying off pyrotenax cables and then working on a different floor on work that should have taken them another two or three days. 27 The conflict in the evidence between Mr. Aravanis, who claims an instruction was given to perform the work and Mr. Thwaite, who denies giving the order, and Mr. Landers, who claims to have instructed the two workers not to do the work in question, raises the difficulty of whose evidence is to be accepted. However, I found both Mr Thwaite and Mr Landers to be witnesses whose evidence I should accept; there was nothing which would cause me to doubt the veracity of their evidence. On the other hand, Mr Aravanis was an assertive younger man who was obviously willing to represent himself, in terms of his work qualifications, in a way inconsistent with the facts. However, I am not prepared to reject his evidence on that basis and, otherwise, I find his evidence equally plausible and acceptable. 28 I am not able to find that the evidence on one side of this matter of instructions should be preferred over the other. The position which is thus left is that the preponderance of evidence on the point of the instruction that the work of taking the cable into the switchboard box be or not be undertaken is in favour of the defendant's supervisory staff. Obviously, if the instruction to take the cable through the switchboard wall was not given, or if the express instruction was given not to do the work, one is driven to wonder why the two workers were so intent to perform that work in such patently dangerous circumstances. However, the question cannot be resolved upon the balance of probabilities, it is for the prosecution to prove the instruction beyond reasonable doubt. I find there exists reasonable doubt on this issue and conclude that the prosecution has not established to the requisite standard that the defendant's staff gave the direction to Messrs Newman and Aravanis as the latter has claimed. 29 This conclusion means that the second particular supplied in relation to the first charge, namely, failure to ensure isolation of the board while work was being performed on it, has not been proven. In the absence of a direction there was no relevant failure. 30 Similarly, the two other particulars advanced concerning failure to ensure proper qualifications of the employees and to inform Mr Newman that Mr Aravanis was an unlicensed electrician seem to me to have not been made out as contributing in any way to the incident, or the risk. While the impression was created that Mr Aravanis had qualifications he lacked, there is no evidence which establishes that he was not actually qualified to do the work which he was instructed to do. As to Mr Newman's understanding of his qualifications, that understanding does not appear to have been material at all to exposure of the employees to risk. Accordingly, it has not been established that the defendant "failed to provide a safe system of work for Nicholas Aravanis and Paul Newman whilst they carried out the connection of pyrotenax cables to an electrical switchboard". It not having been established that they were instructed to carry out the connection of the cables to the switchboard, there was no relevant failure by the defendant in the context of this charge. 31 The second charge, however, deals with an alleged failure to provide adequate supervision to the two workers. In the context of the evidence as I have summarised it, it seems to me this charge is made out. Even accepting the evidence, for example, of Mr Landers, that he instructed the workers not to perform the work in question, the mere fact that they did perform the work of taking the cable through the switchboard wall, unsupervised, is enough to my mind to establish inadequate supervision. To this must be added his knowledge of their apparent intention or eagerness to work on the board and the provision of equipment which enabled it to happen. 32 While it might be thought that a specific instruction to a worker not to perform a particular task might, in the ordinary course, absolve an employer from liability for a breach of that instruction, the fact that employees are enabled, in this case by the provision of appropriate special equipment and also opportunity, to perform the work raises a failure in the context of supervision. As Bauer J observed in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v. Maine Lighting Pty Ltd (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 . This observation was recently referred to by the Full Bench in Riley Australian Hire Pty Ltd [2001] NSWIRComm 31 at par. 15. 33 I find the charge in Matter No. IRC5579 of 1999 made out. The defendant is convicted in that matter. The defendant is acquitted of the charge in IRC5578 of 1999. I will hear the parties on penalty. 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.