Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Atkins v Steggles Limited [2004] NSWIRComm 70 PROSECUTOR Inspector Terry Atkins PARTIES : DEFENDANT Steggles Limited FILE NUMBER: IRC 4250 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 16 (1) of the Occupational Health and Safety Act - Poultry industry - Labour hire employee sustained fatal injuries after being pinned by a tractor - Plea of guilty - No witnesses - Inadequate training, instruction and supervision - English second language of deceased - Offence proven - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 HEARING DATES: 03/11/2004 DATE OF JUDGMENT: 03/25/2004 PROSECUTOR Mr M P Cahill of counsel Solicitor: Mr T Plummer Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT Solicitor: Mr C Barton Freehills JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Thursday 25 March 2004 Matter No IRC 4250 of 2002 INSPECTOR TERRY ATKINS v STEGGLES LIMITED Prosecution under section 16 (1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 70 1 As part of Bartter Enterprises Pty Limited, Steggles Limited ("the defendant") operated a poultry farm at Luddenham in the State. Bartter had an arrangement with Network Production Personnel Pty Limited ("Network") to provide labour at the Luddenham site. Network employed Iv Try Kuoch who worked as a labourer at the site. 2 On 24 July 2000 Mr Kuoch was transporting eggs using a tractor. At about 4.30 pm that day Mr Kuoch was found by fellow workers pinned between the rear wheel of the tractor and a water tank stand. Mr Kuoch had sustained fatal injuries. There were no witnesses to the accident. 3 The defendant was charged with an offence under s 16(1) of the Occupational Health and Safety Act 1983 by Inspector Terry Atkins ("the prosecutor") of the WorkCover Authority of New South Wales. Section 16(1) provides that: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 4 The charge under s 16(1) was that the defendant failed: Contrary to Section 16(1) of the Occupational Health and Safety Act, 1983, to ensure that persons not in its employment and in particular, Iv Try Kuoch ("the deceased worker"), were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely, commercial poultry farming, including but not limited to the management of commercial poultry farming operations, in that the deceased worker sustained fatal injuries at the defendant's place of work, being the site, on 24 July 2000, when he became trapped between the right rear wheel of an orange coloured Kubota Tractor type L3010D, Serial Number: 72605, ("the tractor") and a water tank stand, by reason that the defendant failed: (a) to prevent the deceased worker operating, the tractor at the site, whilst not being sufficiently competent to operate the said tractor, in other than its normal manner of operation. (b) to ensure there was any, or any adequate, safe work method statement for the operation of the said tractor. (c) to adequately ensure, that there was recorded confirmation that the deceased worker understood instructions conveyed to him (d) to adequately assess its' training of the deceased worker to ensure his competency to operate the said tractor, in other than its normal manner of operation (e) to adequately supervise the deceased worker: (i) to ensure he at all times operated the said tractor in the manner he was trained; and. (ii) such that should medical attention be required, it may be provided in a timely manner (f) to carry out any adequate, documented site specific risk assessment of the tasks to be performed by the worker. 5 The defendant pleaded guilty to the charge. Agreement was reached between the prosecutor and the defendant on a statement of facts. The statement contained the following relevant facts: 8. At all material times, Bartter and Network had in place an agreement in respect of the provision of labour to perform functions at sites in the Newcastle/Hunter region for Bartter. There was a subsequent oral agreement between Bartter and Network for the supply of labour for the Luddenham site. 9. As a consequence of the distance of the Luddenham site from Network's Newcastle operations, Network relied upon a related company, Choice HR Pty Ltd (Choice) to recruit for the Luddenham site . 10. At all material times, Avtar Singh, Farm Manager and employee of the defendant, was the Supervisor of all employees at the site. 11. No site inspection was carried out by either Network or Choice prior to the deceased worker commencing work at the site. 12. On 19 June 2000, the deceased worker commenced employment as a Farm Hand at the Luddenham site, and was given the induction training that was then in place. The induction training was provided by Mr Avtar Singh, at the site, but the extent of this training was not documented at that time. However, according to Mr Singh the deceased worker was inducted into the system of work and training was given specifically about egg collection, the grading of eggs, the nesting boxes, the cleaning of the egg service room, the changing of foot dips and general cleaning and washing duties as well as the safe height to use the male feeder for when the chickens are fed. The induction training took a full day. Mr Singh states that he also provided the deceased worker with a copy of the induction program. The deceased worker was then supervised by and worked with an experienced egg collector on 19, 20, 21 and 22 June 2000. 13. On or about 3 July 2000, the deceased worker was first instructed and observed in the operation of an orange coloured Kubota Tractor type L3010D, Serial Number: 72605, ("the tractor"), by Mr Avtar Singh. Mr Singh was an experienced and appropriately qualified person to train the deceased worker in the operation of the tractor. The training provided by Mr Singh consisted of a practical demonstration of all the controls and the instruction and observation of the deceased worker operating the tractor. 14. The deceased worker operated the tractor under the direct supervision of Mr Singh on a number of occasions on 3 July, 7 July, 18 July, 23 July and 24 July 2000. The tractor was required for the movement of eggs used for breeding chickens to the fumigation room, the collection and removal of dead birds and other farm purposes. 15. During the above periods of operating the tractor, the deceased worker was not trained to use the hand throttle but was trained to use the foot throttle for the movement of eggs. The hand throttle was only to be used when a grass cutter was attached to the tractor. Mr Singh was the only person who operated the tractor to cut grass. 16. English was the second language of the deceased worker. According to Mr Singh it was for this reason that the deceased worker was not provided with a copy of the instruction and operation manual for the tractor. 17. Nor was the deceased worker provided with written instructions in how to operate the tractor in either English, or Cambodian his first language. 18. The deceased worker was provided with sufficient instruction in how to operate the tractor in normal conditions including the instruction of how to stop the tractor in an emergency. 19. On 24 July 2000, the deceased worker was operating the said tractor to transport eggs from the production shed to the fumigation area. 20. The job of transporting eggs from the production sheds to the fumigation area necessitated the undertaking of the following process: (a) Carrying trays of eggs from the production shed to a dolly. A dolly is similar to a trolley that has a number of shelves; (b) Appropriately stacking the trays of eggs on the dolly; (c) Moving the loaded dolly onto the transportation platform that is attached to the rear of the tractor; (d) Placing the safety chain around the dolly and attaching the chain to the side of the transportation platform to prevent the load falling off; (e) Operating the tractor to lift the platform; (f) Driving the tractor at low speed to the fumigation area; (g) Lowering the platform and the dolly before moving the dolly off the platform; (h) Moving the dolly and eggs into the fumigation room. 21. At approximately 3.00pm, the deceased worker left the vicinity of shed 4 to take a load of eggs to the fumigation area. 22. At approximately 3.40pm, a fellow employee, Thi Thu Thao Le ("Le"), noticed that the deceased worker had not returned. 23. At approximately 4.00pm, Le stepped out of shed 4 to ascertain the location of the worker. Le noticed the tractor adjacent to the water tank stand and the dolly loaded with eggs lying on its side some 20 metres behind the tractor. Le concluded that with the dolly overturned that the deceased worker would be clearing up the broken eggs. 24. At 4.30pm, Le again left shed 4 to check on the worker. Le noticed the tractor and dolly in the same location as at approximately 4.00pm. 25. Le and a fellow worker could not see the deceased worker and they proceeded to move towards the tractor. There, they discovered the deceased worker pinned between the right rear wheel of the tractor and a water tank stand. Mr Singh arrived at the area a short time later. 26. Mr Singh advised that the tractor was in first gear but the motor was not running 27. Mr Kuoch sustained fatal injuries as a result of the accident. 28. There were no witnesses to the accident and the exact cause of the accident is not known. 29. The road travelled by the deceased worker from the production shed no 4 to the fumigation room was a dirt road. It is believed that the dolly chain was not secured and at a point of the road the dolly loaded with eggs became unbalanced and overturned. 30. The tractor was being driven in first gear at a slow speed. 31. Subsequent examination of the tractor by Inspector Atkins and Test Safe Australia did not reveal any defects with the tractor that may have contributed to the accident. 32. At the conclusion of his examination of the scene of the accident Constable Donald Brett McLennan, of the New South Wales Police formed the opinion that: "….the death was occasioned by the deceased jumping from the tractor…." 6 The prosecution also tendered into evidence the following: · Inspector Atkin's factual report of the accident dated 9 August 2000. · A further report by Inspector Atkins dated 26 October 2000. · A bundle of 13 colour photographs taken by Inspector Atkins on 25 and 28 July 2000. · A certificate of prior convictions of the defendant showing there were seven prior convictions under the Occupational Health and Safety Act 1983. · A certificate of prior convictions of Network Production Personnel Pty Limited showing no prior convictions under the Occupational Health and Safety Act 1983. 7 The defendant tendered an affidavit of Paul Ashley Etherington together with a bundle of material referred to in Mr Etherington's affidavit. Mr Etherington was not required for cross-examination. His affidavit addressed a number of matters pleaded in mitigation. I have taken some trouble to summarise parts of Mr Etherington's affidavit because it reflects what I consider to be a very commendable response to the tragedy of Mr Kuoch's death, not only in respect of the steps taken to assist Mr Kuoch's family but also the defendant's investigation of the accident and the steps taken to avoid a re-occurrence of the accident. The affidavit also sets out the defendant's approach to occupational health and safety that I also consider worthy of some reference. The following matters are relevant: (a) In July 2000, about 2,900 people were employed by Steggles in New South Wales and approximately 4,500 Australia-wide. The Bartter Group currently employs about 2,200 people in New South Wales and 3,900 Australia-wide. (b) Steggles cooperated fully with WorkCover in its investigation of the incident. (c) Steggles carried out its own investigation of the incident. Senior employees: (i) reviewed the condition of the dirt road on which Mr Kuoch had travelled toward the water tank, including surface condition, gradient, tractor tyre tracks and chain tracks marked by police; (ii) reviewed the position of the tractor, dolly, broken eggs and tyre mark on the tank stand besser brick pillar; (iii) evaluated the operational mode of the tractor necessary for the tractor to come to rest where it was found, including the position of the operational levers and pedals; (iv) evaluated the possible actions of Mr Kuoch, including retracing the route taken by reference to the tractor tyre tracks to observe the resultant position of the tractor, the dolly and the safety chain; (v) interviewed the employees at the farm at the time of the incident. (d) the most likely sequence of events was as follows: (i) Mr Kuoch failed to secure the dolly onto the transportation platform with the safety chain. This was indicated by the existence of marks on the ground where the chain had been dragging behind the tractor; (ii) As the tractor neared the amenities block and reached the curve of the road where the left wheels were at their lowest position in comparison to right side, the dolly moved to the left, as it was not secured by the safety chain, and slid off the left side of the transportation platform onto the ground; (iii) Mr Kuoch probably became aware of the dolly moving and jumped from the left hand side of the tractor whilst the tractor was still moving, possibly as the dolly started to move, in an attempt to get the safety chain on or steady the load; (iv) The tractor continued moving forward, heading toward the tank stand; (v) Realising that the tractor was still moving and heading towards the tank stand, Mr Kuoch went around the back of the tractor and along the right hand side of the tractor, in an attempt to stop the tractor; (vi) In doing so, Mr Kuoch placed himself between the tractor and the tank stand and was crushed against the tank stand by the tractor before he could reach the key or cut-off switch to stop the tractor. (e) Steggles took the following steps in the period immediately following the incident: (i) The tractor was taken out of service until it was shown to be safe to use. In this regard, examination of the tractor by Inspector Atkins and Test Safe Australia did not reveal any defects with the tractor that may have contributed to the accident; (ii) Use of tractors was restricted to farm managers and their assistant managers; (iii) Employees requiring further formal training in the operation of tractors were identified and this training was organised at Tocal Agricultural College; (iv) Training was arranged for two employees that allowed them to conduct training and competency assessment of employees who were required to drive tractors in the workplace. (f) Steggles took a number of steps following the incident to assist employees and members of Mr Kuoch's family: (i) On 24 July 2000, trauma counselling services were arranged for Mr Singh, Ms Le (in Vietnamese) and Ms Kaur (in Indian Punjabi). On 25 July 2000, contact was made with the Cambodian Family Welfare Centre and the Cambodian Embassy to discuss the appropriate religious and cultural protocol to be observed in relation to Mr Kuoch's family. On the same day, senior officers of the defendant met with Mr Kuoch's family at the site. (ii) Senior representatives of the defendant attended the family gathering after the funeral of Mr Kuoch. Steggles provided flowers at the gathering. (iii) Steggles provided Mr Kuoch's family with access to counselling services (in Cambodian) and an interpreter. (iv) On 14 August 2000, Steggles provided Mr Kuoch's family with a document prepared by WorkCover entitled "Fatality in the workplace: Information for family and friends" . (v) On 15 August 2000, Steggles provided Mr Kuoch's family with financial assistance in the sum of $7,000 to meet the full cost of the funeral and the food provided at the gathering after the funeral. (vi) In September 2000, Steggles established a fund for the deposit of donations from Bartter and Steggles employees to provide assistance to Mr Kuoch's son and provided a cheque to Mr Kuoch's widow. Steggles matched the amount donated by employees, and provided a cheque to Mr Kuoch's widow. (g) As part of the Bartter group, Steggles now has an integrated national approach to occupational health and safety. The key features of this approach are as follows: (i) The Bartter Group consults widely with its employees with regard to the development of policies and procedures that are relevant and practical to its business operations. It applies risk management techniques to minimise and manage hazards. Consultation occurs within all areas and on all issues from local OH&S and safety meetings, team meetings, supervisors meetings, regional safety focus groups, the National Safety Steering Committee through to Board level. (ii) From this comprehensive consultation process, the Bartter Group works to formulate and develop national safety policies and procedures which are documented and made available to all employees and contractors; (iii) Steggles trains all employees and monitors their compliance with these policies and procedures; (iv) Steggles provides induction training to all new employees and contractors at each of its sites. This induction training is followed up with on the job training; (v) The Bartter Group has people and resources dedicated to occupational health, safety and rehabilitation management including a National Safety Coordinator, HR managers with safety responsibilities, Occupational Health & Safety Co-ordinators in different regions, numerous trainers and clerical support; (vi) Steggles has OH&S and Safety Committees at all of its sites which meet regularly. (vii) Steggles has a formal audit system in place. (h) In November 2000, the Bartter Group began implementing the National Safety Program which involved: (i) the development and practical implementation of policies and procedures; (ii) further development of the main induction programs to include area specific inductions, tailored to meet the requirements of each work area and site; (iii) toolbox talks and training programs in support of the national policies and procedures for all employees; (iv) further improvement to the risk management systems; (v) control over the introduction of new or modified processes, practices, procedures and equipment; (vi) improved incident reporting and investigation; (vii) improved hazardous substance management; (viii) training on issues relating to isolation in all work areas including on farm sites; (ix) auditing and monitoring to ensure continuous improvement in safety; and (x) safety performance measurement and review. (i) National Safety Program policies and procedures that have been developed and are being implemented include: (i) Induction (ii) Introduction of New or Modified Processes, Practices, Procedures and Equipment (iii) Incident Reporting and Investigation (iv) Isolation (v) Hazardous Substance Management (vi) Safety Responsibilities (vii) Asbestos Management (viii) Manual Handling (ix) OH&S Risk Management (x) Work Instructions (xi) Personal Protective Equipment (PPE) (xii) Mobile Equipment (xiii) Working at Heights (xiv) Hot Work Permit Procedure (xv) 'Working Alone' (xvi) Dock Safety (j) Self audits in relation to the implementation and operations of policies and procedures are conducted. The National Safety Program is on-going and further policies and procedures are added as and when a need is identified. (k) As at July 2000, the training conducted by Steggles at all of its sites, including Luddenham, consisted of: (i) A four hour safety training component of the induction program. The safety training covered topics such as safety awareness; site safety rules and procedures; signage rules; Danger and Out of Service Tags; Isolation and Restoration of Power Rules; Emergency Procedures; Fire Fighting Procedures; Personal Protective Equipment; Manual Handling Procedures and Safety Committees; (ii) Steggles' managers, supervisors and leading hands underwent a Two Day Safety Workshop covering: safety management, safety walks, safety meeting requirements, injury management, risk management and incident investigation; (iii) Prior to the incident at Luddenham, training in incident reporting and investigation included the section mentioned above in the Two Day Course, plus a training session for managers and supervisors in small groups by the OH&S Manager. (l) Training programs have been revised and extended as part of the National Safety Program. The training Steggles' currently conducts involves an extension of the earlier training modules and includes an additional component covering incident investigation. (m) Steggles' senior management maintain a vigilant approach in relation to safety issues. Safety is the first agenda item for most management meetings, including Board meetings. Steggles' senior management, human resources managers and regional managers receive and review reports of any significant incidents within 24 hours of the occurrence of the incident. (n) Senior management have an at risk component of their salary which is directly dependent on the achievement of set safety objectives each year. (o) Steggles has active Occupational Health and Safety committees. In July 2000, all employees at Luddenham were included in safety meetings that were held regularly, usually straight after lunch when it was most convenient for them to attend. (p) As well as the OH&S and Safety committees, Hazard and Incident Reporting Forms are used to enable employees and contractors to document and report safety concerns. Identified hazards are logged on a Hazard Register or Joblist with completion dates set which are closely monitored. (q) Steggles conducts regular site safety audits. The audits form part of the National Safety Program and results are provided to the Board. Workplace inspections and audits address a range of occupational health and safety issues, such as the continued development and implementation of safety policies and procedures, the identification of risks to health and safety and the training of employees. The program is one of continuous improvement and ensures that each site's operations comply with Steggles' procedures and policies. (r) As a measure of its success in encouraging a safety culture at its sites, there has been a significant reduction in lost time injuries in New South Wales and nationally. (s) Steggles has a good relationship with WorkCover. WorkCover inspectors are provided with the full assistance and cooperation of managers and employees, and Steggles has always undertaken any corrective action recommended by WorkCover in a thorough and timely manner. Steggles has in the past invited WorkCover senior inspectors to address senior management, contractors and employees on safety issues and attend OH&S committee meetings. Submissions of the prosecutor 8 Mr M Cahill of counsel appeared for the prosecutor. After referring to the evidence in the proceedings Mr Cahill made submissions on the objective and subjective factors to be taken into account by the Court in sentencing the defendant. Those submissions may be summarised as follows: § The obligation to ensure safety under s 16(1) of the Act is both strict and necessarily of a high standard. (See WorkCover (Inspector Reid) v CSR Ltd Unreported, 10 August 1995, Industrial Court (NSW) per Bauer J). § The defendant has a record disclosing seven prior convictions. The relevant maximum penalty is $825,000. The maximum penalty available for an offence reflects the "public expression" by Parliament of the seriousness of that offence. § The primary factor to be considered in determining the sentence to be imposed is "…the objective seriousness of the offence charged" and "(e)ach crime…has its (own) objective gravity…". The proper approach to sentencing involves an initial consideration of the gravity of the subject offence viewed objectively. (See R v Dodd (1991) 57 A Crim R 349 at 354; see also WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty (2000) 99 IR 163; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476). § The objective seriousness of the offence will be reflected in the "nature and quality" of the offence: Independent Cargo and Wool Services Pty Ltd v Inspector Frank Paul Mingare (Industrial Court of NSW [Full Court], Unreported, 10 March 1994 at 4). § The authorities recognise that breaches of the duties imposed by the Act may occur both by commission and by omission. The Act imposes an obligation on employers to be pro-active with a view to preventing risks of injury – not merely reacting to them: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 § It is common ground that the defendant did address itself to issues of occupational health and safety prior to the subject incident. The Agreed Statement of Facts indicates that the defendant provided occupational health and safety induction training to persons employed on its farms, including Kuoch. However, the present case highlights the extent of the defendant's obligations under the Act and the need for constant vigilance. The risks associated with the operation of farm machinery, including tractors, are manifest and the obligation to "ensure" imposed on the defendant by section 16(1) of the Act requires that the defendant provide safe work method statements and training designed to meet all foreseeable exigencies, particularly where workers are required to operate machinery without direct supervision. § Similarly, the obligation to "ensure" also requires that the defendant take steps to effectively convey its work methods and safety systems to its workforce – including those for whom English is not their first language. Training is of no value if it is delivered in a manner or in a language that is not effectively comprehended by those being trained. § In these regards, it should also be noted that after the subject incident the defendant took steps to eliminate or otherwise control the risk: (i) Use of tractors was restricted to farm managers; (ii) Employees requiring further formal training in the safe operation of tractors were identified; (iii) Where required additional training was undertaken through the Tocal Agricultural College; (iv) The defendant introduced training for two employees so as to establish the in-house expertise to conduct both training and competency based-assessment of staff members required to drive tractors at the defendant's worksites. § If the defendant had such safe guards in place prior to the subject incident, the risk to the defendant's staff, including the deceased, would have been significantly decreased – if not eliminated. § Both general and specific deterrence are matters that should be taken into account in determining the appropriate penalty to be imposed in the context of the present case. In particular, the Full Bench of the Industrial Relations Commission in Court Session has recognised that in the Industrial context, it is rare that a sentencing court need not impose a sentence that includes an element of general deterrence: See Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29. § The penalty to be imposed should reflect the need to direct the attention of the defendant and to others to the need for a vigilant, pro-active approach to occupational health and safety. § The defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the subject offence. § The defendant entered its plea of guilty following upon the amendment of the Application for Order and, therefore, the defendant is entitled to have the benefit of its early plea reflected in the penalty to be imposed. § The defendant is entitled to a discount with respect to its cooperation with the WorkCover Authority in the investigation of the subject incident. The defendant made its officers available to be interviewed by the WorkCover Authority and provided copies of all relevant investigation reports. § By contrast, however, the defendant has relevant industrial antecedents. As consequence, the defendant is not entitled to the leniency that is normally extended an employer who is not adversely recorded. § Network Production Personnel Pty Limited has been charged under s 15(1) of the Act in relation to the same incident. The decision of the Full Bench of this Court in Warman International Ltd v WorkCover Authority (NSW) (1998) 80 IR 326 in relation to sentencing, as between a labour hire company and its client for respective breaches of the Occupational Health and Safety Act 1983 (NSW) under ss 15 and 16, recognises a need for consistency in the sentencing of offenders for what can perhaps be best described as "related" offences. § Factors such as differences in the maximum penalty for the offence must be taken into account and properly reflected in the respective penalties imposed: Siganto v The Queen (1998) 194 CLR 656 at 670. It follows that in determining the extent to which the penalty to be imposed in the circumstances of the present case should be governed by notions of parity, the Court must have regard to the difference in the maximum penalty applicable in the present case, namely, $825,000.00 – the penalty applicable to a second or subsequent offender, as opposed to the penalty applicable with respect to the offences with which Network has been charged, namely a maximum of $550,000.00. § It is also relevant to have regard to the differing roles played by the defendant and Network Production Personnel. But, the differences in the roles do not of themselves provide a basis for any significant differentiation in determining the penalty to be imposed. § In the present case the major distinguishing factors are the differences in the industrial histories of the defendant and Network Production Personnel – the defendant has a relevant history and is therefore subject to the higher maximum penalty – and the differences in the subjective circumstances between the defendant and Network Production Personnel. § Having regard to the "nature and quality" of the offence and a clear policy of the Act in relation to the establishment of safe standards in the protection of the workforce the Court should impose a significant monetary penalty upon the Defendant. Submissions of the defendant 9 Mr C Barton, solicitor, appeared for the defendant. The main points made by Mr Barton in his submissions for the defendant were as follows: · Steggles has carried on the business of commercial poultry farming for a long time. Steggles was acquired by Bartter Enterprises Pty Limited in August 1999. Bartter has carried on the business of poultry and egg production since the 1960's. · It is evident that Steggles conducts a sizeable operation in New South Wales and elsewhere in Australia, employing a large workforce dispersed over numerous work sites. · WorkCover had a presence on site soon after the incident and Steggles cooperated fully with WorkCover in its investigation of the incident. On 25 July 2000, representatives of Steggles and Network attended the farm at Luddenham for the purpose of assisting Inspector Atkins with his investigation of the incident. In addition, Steggles carried out its own investigation of the incident. · Steggles took a number of steps in the period immediately following the incident to prevent a recurrence of the incident. · The health, safety and welfare of employees, contractors, visitors and others at Steggles' workplaces is given a high priority. · As part of the Bartter group, Steggles now has an integrated national approach to occupational health and safety. · Steggles has a good working relationship with WorkCover. · Steggles has seven prior convictions for breaches of the occupational health and safety legislation in this jurisdiction. All of these prior incidents occurred before Bartter acquired Steggles. · In considering Steggles' record in the jurisdiction, we submit that it is appropriate to have regard to the size of Steggles operations, the number of employees, the diversity of its operations and the period of time that Steggles has operated in New South Wales as well as the nature of the incidents giving rise to the prior convictions. The work carried out at its sites involves intensive manual processes. · The unfortunate death of Mr Kuoch does not of itself demonstrate that he was recklessly subjected to a serious risk to his health and safety. This is not a case where Steggles ignored a known or obvious danger or failed to take steps readily available to it that would have prevented the incident occurring. · In relation to the principle of general deterrence, the important consideration is "to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive". · In relation to the principle of specific deterrence the Commission can be satisfied on the basis of the materials before it that Steggles' management are aware of their occupational health and safety responsibilities and are continually striving to improve safety systems and to ensure that Steggles meets its obligations. The Commission should also take into account the various matters referred to above including: (i) the size, nature and duration of Steggles operations; (ii) that Steggles took immediate steps to minimise the risk of this type of incident occurring again; (iii) that this is not a case where an organisation has failed to give any or sufficient attention to its obligations or has ignored its responsibilities with regard to the management of risks to occupational health and safety at its workplaces; (iv) that Steggles has a strong commitment to occupational health and safety and has in place a comprehensive system for the management of occupational health and safety risks and is continuing to develop and improve its policies and procedures; (v) that Steggles' contrition is indicated by the plea of guilty it has entered. In addition, Steggles has treated this incident, as it does with all safety issues, extremely seriously and as a demonstration of that concern, present in court to observe these proceedings are several members of the senior management team at Steggles; (vi) that Steggles reacted appropriately and compassionately to the incident, including taking steps to assist the family of Mr Kuoch; (vii) that Steggles has a good relationship with WorkCover; (viii) having regard to the nature and extent of Steggles' operations, that it has a good occupational health and safety record; and accordingly the maximum discount should be applied with regard to these matters. · The plea of guilty was entered by Steggles on 24 April 2003. The maximum discount should be applied in this matter. · Steggles deeply regrets that this incident occurred. It has acted promptly to minimise the risk of this type of incident occurring again and has fully co-operated with WorkCover. Given the circumstances of the incident, the steps which Steggles has taken subsequent to the incident and its continuing commitment to occupational health and safety, Steggles should incur a penalty at the lower range of that available. Consideration 10 In this case a death was involved. However, the consequences of an accident, whilst a matter that must be considered, will not, of itself, dictate the seriousness of the offence and the level of penalty: Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32] and the cases referred to therein. The primary consideration in determining the level of penalty to apply to an offender is the objective seriousness of the offence. This involves a consideration of the following factors: (a) The nature and quality of the offence and whether it involved obvious and foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety; (b) the need for general deterrence; (c) the need for specific deterrence; (d) the maximum penalty for the offence as prescribed by Parliament. 11 Subjective factors, such as a plea of guilty, cooperation, contrition, etc., must be considered by the Court as factors that may mitigate the gravity of the offence but they only come into consideration after the Court has determined what it considers to be the objective seriousness of the offence. 12 As Mr Barton submitted, this is not a case where the defendant ignored a known and obvious danger and recklessly put Mr Kuoch at risk. Mr Kuoch was given training and instruction on how to operate the tractor for the purpose of transporting eggs from one location to another and he received supervision in that respect in his early use of the tractor. But, as is usually the case with workplace accidents, the unexpected appears to have happened. Mr Kuoch appears to have alighted from the tractor because the dolly containing eggs had come off the platform at the rear of the tractor but the tractor remained in motion heading towards the water tank stand. Mr Kuoch appears to have been crushed between the tractor and the water stand as he dismounted from the tractor. 13 Essentially, the accident came about because of inadequate training, instruction and supervision. I note that English was not Mr Kuoch's first language, making it more likely that he did not comprehend completely the instructions and training with which he was provided. In this respect his supervisor did not give Mr Kuoch the instruction manual for operating the tractor because he perceived that Mr Kuoch's English was limited. The case highlights the importance of taking extra care in ensuring that those who do not have an adequate command of the language understand what is required of them, especially when they are to operate mechanised equipment unsupervised. That a worker's English language skills are perceived to be limited is a clear signal to managers and supervisors that they must satisfy themselves beyond doubt that the worker will not be put at risk because he or she lacks understanding. 14 The case also highlights the dangers of what might normally be regarded as a relatively benign piece of machinery. A tractor travelling at low speed does not present itself as a dangerous piece of machinery but the number of tractor-related deaths that have occurred over the years belies such perceptions. 15 As Mr Cahill submitted, the steps available to the defendant to avoid any risk arising from the operation of the tractor were relatively simple and straightforward and, indeed, such steps were adopted following the accident. These were that: (i) Use of tractors was restricted to farm managers; (ii) Employees requiring further formal training in the safe operation of tractors were identified; (iii) Where required additional training was undertaken through the Tocal Agricultural College; (iv) The defendant introduced training for two employees so as to establish the in-house expertise to conduct both training and competency based-assessment of staff members required to drive tractors at the defendant's worksites. 16 I consider that I should give weight to the need for general deterrence in fixing any penalty. As the Full Bench observed in Capral Aluminium it would be rare to impose a sentence under the Occupational Health and Safety Act that did not include an element for general deterrence. As to specific deterrence the defendant has taken comprehensive steps to avoid a re-occurrence of the incident and whilst it has seven previous convictions, given the size of the defendant's operations and its strong commitment to occupational health and safety and commendable policies and practices in that respect, the likelihood of the defendant re-offending is such that it should not attract incur a penalty with a heavy element of specific deterrence. 17 The maximum penalty in relation to the offence is $825,000, which reflects the fact that the community regards second and subsequent offences under the Occupational Health and Safety Act as potentially most serious. 18 As to relevant subjective factors, the defendant entered an early plea of guilty and is entitled to a discount of 25 per cent for the utilitarian value of that early plea. I accept also that by its actions following the accident the defendant is truly contrite. The defendant demonstrated cooperation with WorkCover in its investigation of the accident. A further matter I take into in mitigation is the defendant's impressive regard for occupational health and safety reflected in the policies and practices it now has in place. 19 I consider an appropriate penalty to be $245,000. However, this should be discounted by 25 per cent to take into account the utilitarian value of the early guilty plea and a further 10 per cent for the other subjective factors. This results in a penalty of $159,250. Orders The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $159,250 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ___________________________ 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.