Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Victor Larobina v Fan Electrics (NSW) Pty Ltd [2002] NSWIRComm 230 Prosecutor: PARTIES : Inspector Victor Larobina Defendant: Fan Electrics (NSW) Pty Ltd FILE NUMBER: IRC8249 of 2001 CORAM: Kavanagh J CATCHWORDS : Prosecution under s15(1) of the Occupational Health and Safety Act 1983 - fatal injury - defendant provided labour under contract for installation of power supply - no specific work method for this task - no instruction or supervision - failure to provide and maintain safe system of work with electricity - failure to ensure employees not exposed to risk and failure to train and supervise employees - action of employees for consideration in assessment of culpability of defendant - foreseen risk - assessment of gravity - guilty plea - 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 Swift Placements Pty Ltd v WorkCover Authority of NSW (Inspector May) (2000) 96 IR 69 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 434 AXIA Pty Limited v Environmental Protection Authority (1993) 113 LGER 357 CASES CITED : WorkCover Authority of New South Wales (Inspector Barnard) v Rail Infrastructure Corporation [2001] NSWIRComm 255 WorkCover Authority of New South Wales v Main Lighting Pty Limited (1995) 100 IR 248 Ferguson v Nelmac (1999) 92 IR 188 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported, CT1062 of 1993, 26 November 1993) Capral Aluminium Pty Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 R v Thomson, R v Houlton (1999-2000) 49 NSWLR 383 R v Sharma [2002] NSW CCA 142 HEARING DATES: 08/22/2002 DATE OF JUDGMENT: 09/06/2002 Prosecutor: Mr R. Reitano of counsel Solicitors: Ms H. Cameron WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr P. Newall of counsel Solicitors: Ms P. Costigan Haywards JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Friday 6 September 2002 IRC8249 of 2001 INSPECTOR VICTOR LAROBINA v FAN ELECTRICS (NSW) PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm230 1 This prosecution is brought by Inspector Victor Larobina of the WorkCover Authority under the provisions of s15(1) of the Occupational Health and Safety Act 1983. The charge as pleaded states the defendant failed on 27 January 2000 to: ensure the health, safety and welfare at work of all of its employees and, in particular, Thomas Rimini, contrary to s15(1) of the Occupational Health and Safety Act 1983. 2 The following relevant particulars to the charge were provided: (a) The defendant, at all material times, was an employer; (b) The defendant, at all material times, provided labour for the purpose of having work performed at a site located at 7-13 Talavera Road, North Ryde; (c) The defendant failed to provide and maintain a safe system of work for persons working at the site who were undertaking electrical work at a shed known as Shed 20. (i) The defendant failed to provide and maintain a safe system for the conduct of electrical work by using tag-out, lock-out or similar procedures to ensure employees were not exposed to risks to health and safety posed by a live electrical current; (ii) The defendant failed to provide and maintain a system of work to ensure that employees were not exposed to a risk posed by live electric current whilst performing their work, (d) the defendant failed to provide adequate supervision as necessary to ensure employees did not become exposed to live electrical current, (e) the defendant failed to provide such adequate information, instruction and training as was necessary to ensure the health and safety of employees undertaking electrical work at a shed known as Shed 20. 3 The defendant pleads guilty to the charge. 4 A comprehensive agreed statement of facts was tendered. 3. At all material times, the Defendant employed a number of persons including Thomas Rimini and Glenn Langby. 4. Thomas Rimini was employed in the position of site Electrical Supervisor. He was a qualified Electrical Mechanic and had 30 years' experience in the electrical construction industry. 5. At all material times the Defendant carried on business as a labour hire company. 6. Some time prior to 27 January 2000 Fanelec Group Pty Ltd, a company related to the defendant entered into a contract with Industrial Constructions Australia Pty Ltd to install temporary electrical services at a site located at 7-13 Talavera Road, North Ryde. 7. The defendant was responsible for providing labour to Fanelec Group Pty Ltd so that it could carry out its contract with Industrial Constructions Australia Pty Ltd. 8. On 27 January 2000, Thomas Rimini and Glen Langby, were working in the site amenities area connecting power to some site sheds. Mr Langby had assisted Mr Rimini with installing a cable to a shed known as Shed 20 which was to have the electricity supply connected. After assisting Mr Rimini to install the cable, Mr Langby proceeded to another area of the site to check on other workers. Mr Rimini remained in the area of Shed 20 in order to complete the electrical connection. Mr Rimini was at the time working alone and unsupervised. 9. After checking on the other workers, Mr Langby returned to his car to get some money to purchase a drink. He passed Shed 20 on his way to his car and asked Mr Rimini if he wanted a drink as well. Mr Rimini told Mr Langby that he had nearly finished connecting the shed. Mr Langby, after returning from the car, again passed Shed 20 and called out to Mr Rimini. Mr Rimini did not reply. Mr Langby called out several times more. Mr Rimini did not reply. 10. Mr Langby climbed a ladder onto the roof of Shed 20 and moved over to where Mr Rimini was lying. Mr Langby attempted to move Mr Rimini. Mr Langby received an electric shock when he touched Mr Rimini. Mr Langby then used a piece of timber to remove Mr Rimini from the electrical supply. Mr Langby then checked for a pulse but could not detect one. Mr Langby sought further assistance. 11. After seeking further assistance Mr Langby isolated the electrical supply to Shed 20, which was live at the time, by turning off the main switch in the electrical switchboard located in the site amenities area. 12. Mr Rimini died in hospital some days later. The cause of death was electrocution. 13. On 27January 2000 Inspector Whitehead of the WorkCover Authority attended the site and undertook a factual inspection. 14. Inspector Whitehead observed a white coloured site shed with orange trim which had a New South Wales police barrier tape securing the area around it. The shed was identified as Shed 20. 15. An electrical switchboard cabinet was mounted on a power pole with the front cover in the open position. The cabinet contained a clipsal load centre board equipped with a number of switches, circuit breakers and a residual current device. All isolating devices were in the off position. 16. On the top of the rear wall of Shed 20 there was an adaptable junction box with the cover which had been removed and an orange circular cable ran into and from the box. In the terminal box three black wires were terminated with a connector. Two yellow and green wires were also terminated with a connector. In the terminal box two red wires were stripped revealing bare copper wires twisted together for approximately 10mm and one red wire which was not stripped. 17. On 27 January 2000 Energy Australia conducted an investigation into the incident. In a written document Energy Australia concluded that its investigation 'could not determine if the victim was aware that he was working on an energised circuit or that another person on the site had inadvertently energised the circuit.' 18. The defendant did not have its own safety management system but, instead, used that which was provided by Fanelec Group Pty Ltd. The documentation obtained by Inspector Larobina was the Fanelec Group OH&S policy, safety procedures and work method statements. The documentation was broad based and generic and included basic work method statements. The documentation did not include any safe work methods statements, or details of other safe systems, for the connection of amenities to the site temporary power supply. 19. On 31 January 2000 an undated document titled, "Work Method Statement Re: Electrical Connection of Rental Site Offices and Amenities 7-13 Talavera Road" was faxed to Industrial Constructions Australia Pty Ltd. A copy is annexed hereto and marked 'A'. 20. On 1 February 2000 a document titled "Tagging Off Procedures Preparation for Work on De-energised Equipment" was faxed to Industrial Constructions Pty Ltd. The procedures in the document cover things such as identifying and isolating, testing, tagging off and locking off electrical circuits. It also includes an electrical safety checklist. This document is also undated. Investigations by Inspector Larobina revealed that no such procedure was used at the time Mr Rimini was injured. 21. On 17 February 2000 Roger Peter Senkevics was interviewed as a director of the defendant. He informed Inspector Larobina that he had authority to speak on behalf of the defendant. 22. Mr Senkevics informed the inspector that it was under the discretion of Mr Rimini to fit any locks or tags to the circuit breakers on the distribution board supplying electricity to Shed 20 in accordance with the procedures referred to at Paragraph 20. 23. Inspector Larobina was not able to identify any system of training or instructions, in relation to specific safe work method statements provided by the defendant to its employees. 24. The defendant did not ensure that all of its employees were aware of and followed tag and lockout procedures when conducting electrical work. . . . 5 Mr R. Reitano, of counsel, appeared for the prosecution. Mr P.J. Newall, of counsel, appeared for the defendant. The prosecution relied upon an agreed statement of facts, associated photographs, a factual inspection report of the WorkCover inspector prepared on the day of the incident, the industrial record of the company and a diagram of the site. The defendant relied upon an affidavit of Mr Roger Peter Senkevics, a director of the defendant corporation. At the close of the hearing the defendant was given leave to submit any relevant documentation as to the system of work put in place after the breach and any information relevant to the company's financial status. 6 In consideration of penalty, the Commission sitting in Court Session must first assess the nature and quality of the offence, that is, the objective seriousness 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). 7 The two employees, Mr Rimini and Mr Langby were working to connect power to some site sheds on a construction site. They had already installed the electrical cable when Mr Langby went to another shed and Mr Rimini remained to complete the electrical connection. Mr Rimini was a qualified electrical mechanic with thirty years' experience in the electrical construction industry. He was employed as an electrical supervisor. When Mr Langby returned to the site shed on calling out and receiving no reply, he climbed up on to the roof of the shed to find Mr Rimini lying prone. Mr Langby received an electric shock when he ran to Mr Rimini's aid. Mr Rimini died in hospital some days later. The cause of death was electrocution. 8 The defendant provided labour under contract to a company called the Fanelec Group Pty Limited. Evidence revealed Fanelec was a 'related company'. The question as to whether a labour hire firm is the employer was determined in Swift Placements Pty Ltd v WorkCover Authority of NSW (Inspector May) (2000) 96 IR 69. It is an agreed fact in this matter. 9 The defendant did not have its own safety management system but instead used that provided by the Fanelec Group. The Fanelec Group document has been examined by the WorkCover Authority, who found it was a broad based, generic document which included basic work method statements. However, the document did not include a specific work method devised for this task. The primary documentation was not placed before the court. 10 The recognised, defined, safe work-method for the connection of a power supply requires the covering, identifying, isolating, testing, tagging off and locking off electrical circuits before any work is performed. It had not been followed before this task was performed and before Mr Rimini's tragic death. The WorkCover investigation revealed there was in place no company system of work or instruction specific to the task being performed by Mr Rimini. There was no information placed before the court as to how the electrical cable, which these employees were connecting, came to have the electricity supply connected to it. The defendant pleads guilty to failing to provide and maintain a safe system for work with electricity failing to ensure employees were not exposed to the risk of a live electric current; failing to train and supervise its employees. 11 The defendant relied upon the qualifications of Mr Rimini, a most experienced electrical tradesman, who the defendant company perceived was a careful and fastidious worker "noted by all for his attention to safe work practices." The actions of an employee can be taken into account in an 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]). However, the defendant company cannot rely upon a defence that the incident occurred due to the actions of a careless worker (see Riley v Australian Grader Hire Pty Limited (2001) 103 IR 434 [at 15]). 12 A risk to safety actually foreseen can affect the court's consideration of the level of culpability of a defendant (see AXIA Pty Limited v Environmental Protection Authority (1993) 113 LGER 357). As to the foreseeability of the risk to safety identified in this breach, there are a number of factors relevant to the court's consideration. The dangers associated with working with live electrical wires are not only foreseeable, but obvious. The evidence does not allow the Court to make a finding as to whether the deceased was working with live cabling because they were not switched off, or because they were switched on while he was working with them. However, at the junction site, there was no evidence of any tagging. The deceased worker was familiar with the tagging and lock out procedures for safe working on live electrical lines. Evidence revealed, he was properly trained in these procedures. They are well known, simple measures to implement and guard against the risk of electrocution. 13 The deceased was an experienced electrician, but it is not his obligation to ensure safe working. Although his contribution to the offence can limit the culpability of the defendant, the statutory obligation for safe working falls upon the employer. The duty is imposed upon the employer, not only in relation to the observant and careful employee, but also in relation to the inadvertent and careless employee (see WorkCover Authority of New South Wales (Inspector Barnard) v Rail Infrastructure Corporation [2001] NSWIRComm 255 [at 127]). However, I take the actions of this employee into account as they reflect on the degree of culpability of the employer in an assessment of the gravity of the offence. 14 I find this employer's culpability only marginally diminished because of any error of this experienced and trained employee. The facts have revealed Mr Rimini was working without supervision. While he may have been an experienced electrician there was no specific work method devised for the performance of this task. Further, this employer had no company safety policy in place at the date of the breach. An employer has an obligation to ensure the work an employee is required to perform can be performed safely. 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. 15 In an assessment of the culpability of this offence, the words of Wright J, President are also relevant (see Ferguson v Nelmac (1999) 92 IR 188 at 204): . . . where a fatal injury had occurred, that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious. (see also Tyler v Sydney Electricity (1993) 47 IR 1 (at 5)) 16 I find the gravity of this offence most serious. 17 A number of subjective features to the offence are relevant in consideration as to penalty although they are to be viewed in context as secondary to a consideration of the objective seriousness of the offence (see Lawrenson Diecasting at 474). 18 Mr Roger Peter Senkevics, a director of the defendant company gave evidence by way of affidavit. The company was incorporated on 14 April 1989. Mr Senkevics at the time of this fatality employed twenty nine employees. He is a member of the National Electric and Communication Association (NECA) which covers companies at his industrial level. He revealed that Mr Rimini had a copy of a document issued by NECA which was in itself a safety manual entitled "An Employee Guide to Safety at Places of Work in the Electrical Contracting Industry." On 25 November 1999 Mr Rimini had undertaken an occupational health and safety induction training course for work on construction sites. Further, prior to the breach, Mr Senkevics was working with Mr Rod Iland of NECA to develop the company's own occupational health and safety policy. 19 The defendant has produced (with leave, after the close of evidence) a comprehensive occupational health and safety policy. It has produced two documents, one headed Occupational Health and Safety Manual and the other, Work Method Statement. A detailed analysis of the policy reveals the company has introduced six weekly workshops with supervisors/foremen. The task of training the company's supervisors in respect of occupational health and safety issues has begun. In the preparation of work methods, the safe working system now in place requires an involvement of the company together with its employees and supervisors in the designing of specific work methods adopted. The company's director, Mr Senkevics, has himself attended upon a course for the introduction of occupational health and safety into the workplace. He has determined any future project design co-ordinator will also carry the role of rehabilitation officer. The evidence suggests the documentation and policy is a "living policy", updated regularly. 20 Mr Senkevics expressed his contrition and, after the tragic incident, had the task of informing Mr Rimini's wife. He then went to the hospital to provide whatever assistance he could. He arranged accommodation near the hospital for Mrs Rimini. He stayed at the hospital for most of the two days and he and his wife assisted Mrs Rimini until 31 January 2000 at 10.45 p.m. when Mr Rimini passed away. The company arranged and paid for the funeral and assisted Mrs Rimini in any way they could. They have assisted her financially in a small way. They offered to assist in the upkeep of the home. Mr Senkevics expressed absolute contrition for the loss of this worker – one for whom he had profound respect. 21 Mr Senkevics submits to the court on behalf of the defendant corporation it has now become vigilant as to occupational health and safety issues. However, the words of Maidment J in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported, CT1062 of 1993, 26 November 1993) appear apposite in the circumstances (at 7): Commendable though it is to introduce appropriate occupational health and safety measures after the event, it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are accorded safe working environments irrespective of their own laxities. 22 Elements as to deterrence must be given attention in a consideration as to penalty. As to specific deterrence, Mr Senkevics has sought instant help to put in place the company's own safety policy and procedures and to upgrade a training programme for his employees, I am persuaded, rather belatedly, the defendant company has satisfactorily met its obligations as an employer to ensure both an awareness of safe working at its worksite and the introduction of safe working methods. However, as an element of general deterrence the penalty must be proportionate to the offence (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 74]). 23 In mitigation the financial status of the company also becomes relevant. There was no satisfactory evidence at trial as to the company's financial status. Leave was granted for further evidence to be filed as to the company's financial status. The company originally submitted it had an annual turnover of $300,000.00. The prosecutor submits that the Court would approach with some caution the size of this company, given that there was no primary evidence as to the financial status of the company placed before the Court. Leave was granted to the defendant to place any such material before the Court. The defendants have revised their submission to acknowledge "actual average turnover. . . for the last two years was $900,000.00 per annum . . ." I find the defendant is a company with a financial base. 24 As the company has no recorded convictions against it the maximum penalty for the offence is $550,000. 25 I accept that the defendant company co-operated with the WorkCover Authority and that in the circumstances an early plea of guilty was entered. The charge was laid in December 2001 and the plea was entered in May 2002 however there appears to have been negotiations with the WorkCover Authority. I find the plea of guilty has a utilitarian value. Accordingly, I allow a discount of 20% for the plea of guilty entered on the charge (see R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; R v Sharma [2002] NSW CCA 142). 26 I take into account the gravity of the offence and the relevant subjective features placed before the court and the discount allowed for the utilitarian value of the plea. 27 I find the defendant guilty. 28 The defendant is fined in the sum of $130,000.00 with a moiety to the WorkCover Authority of New South Wales. 29 The defendant should meet the prosecutor's costs in a sum as might be agreed. Should there be no agreement, I grant liberty to apply. 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.