Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Robinson v JAF Management Services Pty Ltd [2003] NSWIRComm 468 PARTIES : Inspector Robinson JAF Management Services Pty Ltd FILE NUMBER: IRC 1403 of 2003 CORAM: Curtis AJ LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 12/15/2003 EXTEMPORE JUDGMENT DATE : 12/15/2003 PROSECUTOR: Miss PE McDonald of counsel SOLICITORS: Miss R Panagoda WorkCover Authority Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr M Hussain Director JAF Management Services Pty Ltd JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ DATE: 15 DECEMBER 2003 IRC 1403 of 2003 INSPECTOR PETER ROBINSON V JAF MANAGEMENT SERVICES PTY LIMITED Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 EX TEMPORE JUDGMENT 1 The defendant, JAF Management Services Pty Limited (JAF), pleads guilty to a contravention of s16(1) of the Occupational Health and Safety Act 1983 in that on 15 March 2001 it failed, at Macquarie University, to ensure that persons not in its employment were not exposed to risk arising from its conduct in an undertaking while at its place of work, the persons at work being the subcontractors, Badeh Shaddad, Samear Razzak, and an employee of Macquarie University, Daniel Bayer. 2 The relevant facts are to be found in the reasons for sentence given in matters 1402 and 1401 of 2003. 3 The factors relevant to sentencing in the instant case are that it was JAF which contracted with Chubb Securities Pty Ltd (Chubb), holding itself out as sufficiently skilled and able to discharge the duties of armed escort. 4 It is alleged against JAF that JAF failed to undertake an adequate risk assessment of the task to be performed; that it failed to provide safe plant and equipment, in that it failed to ensure that the motor vehicles used were fitted with central locking; that it failed to maintain a safe system in that it did not ensure that the times of the cash transfers were staggered; and that it failed to give any adequate training to its subcontractors. It is apparent from the facts which have been agreed that the defendant is guilty in respect of each particular. 5 JAF in submissions requesting mitigation, suggested they were strictly bound by contractual arrangements with Chubb and totally under the command of Chubb and lacked control over the risk. 6 It is the contention of JAF that, having carried out its own risk assessment, it requested alterations to the system so that the escort was to be in plain clothes and travel directly across the courtyard to the premises of the bank. 7 Accepting for the purpose of this plea that these were the representations of JAF to Chubb, the culpability of JAF is compounded by the circumstance that JAF recognised the peculiar danger to which its employees were exposed and yet failed to do anything to prevent that danger. JAF, if it had been sufficiently concerned for the health and safety of its subcontractors, ought have refused to perform the contract. 8 I regard the objective gravity of the offence, measured by the potential for harm generated by the presence of robbers with guns, and the culpability of JAF in foreseeing that possibility and yet failing to act so as to minimise the risk to be serious. The considerations of parity, however, prevent the imposition of a fine greater than that which has been imposed upon the principal contractor, Chubb. 9 I recognise that the defendant has no previous convictions and that it pleaded guilty at the first available opportunity, so that similar discount is appropriate. 10 Objectively I find that the appropriate fine is $150,000 but, after discount for subjective matters, the defendant is fined $100,000. I direct that a moiety of the fine be remitted to WorkCover and that the defendant pay the prosecutor's costs as agreed, taxed or subject to further order. 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.