Industrial Relations Commission of New South Wales in Court Session CITATION: WorkCover Authority of New South Wales (Inspector Green) v Giannikouris [2005] NSWIRComm 229 PROSECUTION WorkCover Authority of New South Wales (Inspector Green) PARTIES: DEFENDANT Paul Giannikouris FILE NUMBER(S): 4237 of 2003 CORAM: Marks J CATCHWORDS: Occupational Health and Safety Act prosecution - plea of guilty - nature and extent of role of individual defendant where a corporate defendant is charged with offences arising from the same incident - culpability of defendant held to be at lower end of scale - employment of competent persons to perform managerial day to day functions partly discharged defendant's obligations - subjective mitigating factors - fines borne by corporate defendants impacted upon individual defendant as substantial shareholder. LEGISLATION CITED: Occupational Health and Safety Act 1983 s 50(1) Inspector Green (WorkCover) v Metropolitan Administrative Services Pty Ltd, Inspector Green (WorkCover) v Metropolitan Demolitions and Recycling Pty Ltd, Inspector Green (WorkCover) v Giannikouris [2005] NSWIRComm 12 CASES CITED: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd & Anor (No.2) (2000) 99 IR 163 HEARING DATES: 12/08/2004; 12/09/2004; 07/05/2005 DATE OF JUDGMENT: 07/20/2005 PROSECUTOR Mr Agius SC with Ms L M McMannus Solicitor: Abha Devasia WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr J Phillips SC Solicitor: Theresa Sukkar Bowen & Gerathy JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 20 July 2005 Matter No IRC 4237 of 2003 INSPECTOR RITCHIE JOHN GREEN v PAUL GIANNIKOURIS Prosecution pursuant to s 50(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2005] NSWIRComm 229 1 In a judgment delivered on 1 February 2005 in Inspector Green (WorkCover) v Metropolitan Administrative Services Pty Ltd; Inspector Green (WorkCover) v Metropolitan Demolitions and Recycling Pty Ltd; Inspector Green (WorkCover) v Giannikouris [2005] NSWIRComm 12, I imposed penalties on two defendants, Metropolitan Administrative Services Pty Ltd and Metropolitan Demolitions and Recycling Pty Ltd, following the entry of pleas of guilty to breaches of the Occupational Health and Safety Act 1983. The defendant in these proceedings, Paul Giannikouris, had also pleaded guilty but had reserved the right to withdraw the guilty plea depending upon the outcome of certain proceedings before a Full Bench of this Court. Those proceedings are now finalised and the defendant has asked that these proceedings be dealt with on the basis of the plea of guilty previously entered. 2 The circumstances leading to the prosecution, and the relevant factual background are fully set out in my judgment previously referred to and I shall not repeat them. 3 The Prosecutor submitted that the culpability of this defendant was at the lower end of the scale. This was because he had employed competent persons to perform his managerial functions and to that extent had discharged his obligations. The relevant principles are set out in a judgment of Wright J, President, in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd & Anor (No.2) (2000) 99 IR 163. His Honour commented that the level of gravity of the offence attributable to a personal defendant under s 50 of the Act "may be less than that which has been found to have been committed by the corporate defendant …"(at paragraph [38]). At paragraph [39] his Honour said: "In assessing the culpability of the second defendant it is, in my view, important to place particular weight upon the role of the defendant in the management of the corporation and the nature of the gravity of the offence as identified in relation to the first defendant, and to make an assessment in that context of the situation of the second defendant…". 4 On this approach, which I respectfully adopt, it is necessary to have regard not only to the offence committed by the corporate defendant but also to the nature and extent of the role of the individual defendant who, by virtue of s 50 of the Act, was deemed to have committed the same offence. 5 The evidence in these proceedings is to the effect that this defendant occupied an overall managerial role and he took an active interest in the day to day operations of the corporate defendants, even to the extent of chastising Mr Sagiotis for not wearing a safety harness. On the other hand, it is clear from the evidence that he did not have particular responsibilities for day to day management of the operations of the first and second defendants and in fact had employed competent persons in these roles. One of such persons was Mr McInnes whose evidence was discussed in connection with my judgment in matter numbers 4234 and 4235 of 2003. 6 I agree that this defendant's culpability should be assessed at the low end of the scale. 7 This defendant is entitled to the same subjective mitigating factors which were applied to the defendants in the previous proceedings. These include the undertaking of a number of acts which reflected extreme contrition for what had occurred, and full co-operation with the WorkCover Authority of New South Wales. In addition, as a substantial shareholder in the defendant companies which were the subject of the earlier proceedings, the impact of the fines borne by each of the companies would be reflected in a lessening of the value of this defendant's shareholding in those companies. 8 The maximum penalty is the sum of $55,000. In all the circumstances I impose a penalty of $3,500. 9 The Prosecutor sought orders for a moiety and costs, which were not opposed. 10 I make the following orders: 1. The defendant, Paul Giannikouris, is found guilty of the offence charged in the order and convicted accordingly. 2. I impose a monetary fine of $3,500 with a moiety to the Prosecutor. 3. The defendant is to pay the Prosecutor's costs as assessed by the Court in default of agreement, being costs which were not capable of being recovered in proceedings 4234 and 4235 of 2003. 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