Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW v Belmadar Constructions Pty Ltd [2000] NSWIRComm 206 PROSECUTOR WorkCover Authority of New South Wales (Inspector Dubois) PARTIES : DEFENDANT Belmadar Constructions Pty Limited FILE NUMBER: IRC2484 of 1999 CORAM: Peterson J CATCHWORDS : Occupational Health and Safety - Breach of s16(1) of Occupational Health and Safety Act 1983 - plea of guilty - failure to ensure wearing of safety harness- penalty - discounting relating to subjective features LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : Ridge Consolidated Pty Ltd v WorkCover Authority of NSW [2000] NSWIRComm 142 Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 HEARING DATES: 03/28/2000 DATE OF JUDGMENT: 10/26/2000 PROSECUTOR Ms L V Stapleton of counsel SOLICITOR Mr N A Correy Moray & Agnew SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr B D Hodgkinson of counsel SOLICITOR Mr Catanzariti Clayton Utz SYDNEY JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 26 OCTOBER 2000 Matter No. IRC2484 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DUBOIS) v BELMADAR CONSTRUCTIONS PTY LIMITED. Prosecution under s16(1) of the Occupational Health and Safety Act 1983. JUDGMENT 1 Inspector Rodney Dubois, an Inspector in the employ of the WorkCover Authority of New South Wales, has initiated proceedings against the defendant, Belmadar Constructions Pty Limited ACN: 000 817 505 in relation to an alleged breach of s.16(1) of the Occupational Health and Safety Act 1983 ('the Act'). Section 16(1) of the Act imposes upon every employer a duty to "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 his place of work". The defendant has pleaded guilty to the charge and this judgment concerns the issue of penalty. 2 Subsequent to the hearing of this matter, while judgment was reserved, the defendant filed a notice of motion seeking an order setting aside the summons in the matter and an order for costs. The motion concerned a question which had arisen in other proceedings concerning the validity of the procedures adopted within the Commission for the purpose of the issue of such summonses. That question was resolved, as I understand it, by the judgment of the Full Bench in Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 142. On 12 October 2000 the solicitors acting for the defendant in these proceedings wrote to my Associate in terms the substance of which is as follows: We wish to advise that the solicitors for WorkCover have consented to the withdrawal of our client's Notice of Motion with payment of any costs applicable to the Notice of Motion in the event of a costs order in favour of WorkCover eventuating from the substantive proceedings. Accordingly, I hereby give leave to the defendant to withdraw the notice of motion and now proceed to finalise judgment. 3 The circumstances which give rise to the charge concern a construction site at the corner of Australia Avenue and Homebush Bay Road, Homebush Bay where the defendant was engaged in the construction of a road bridge. On 13 June 1997 steel erection work was being carried out by Galicia Constructions Pty Ltd, a subcontractor to the defendant. An employee of Galicia, Jerko Vrankovich, was working on site as a rigger. A number of steel beams approximately 750mm in height had been placed in situ and on this day Mr Vrankovich was assisting in the attachment of smaller cross beams which were to be bolted to the underside of the large beams. He was standing on a cross beam which had already been attached, at a height of approximately 5m from the ground, without any safety harness or personal restraint equipment. He was to position another cross beam, which was suspended from a mobile crane manoeuvring it into position. As he attempted to lever the beam into its correct position using a podger (a metal bar), he put his hands onto the beam, which was still being supported by the crane, transferring his weight forward. At that moment, the crane's lifting mechanism failed and caused the steel beam to free-fall to the ground. Its fall caused the worker to fall with it and in so doing he struck the crane and then fell to the ground. He sustained a broken arm and other injuries of a soft tissue nature and was treated at Westmead Hospital. 4 The agreed facts record that the defendant's foreman was aware the worker was not wearing a safety harness. In the evidence of Mark Madani, the Quality Manager of the defendant company, it appears that the incident arose in circumstances where the work was being rushed to completion at night in order that Homebush Bay Road could be reopened to traffic. 5 In December 1998 the defendant became aware that Mr Vrankovich was not able to be employed by Galicia Constructions on light duties in accordance with his rehabilitation programme because of an absence of such work with his employer. The defendant, in January 1999, commenced to employ him on light duties and as at the date of hearing it was anticipated that he would shortly be able to perform normal duties with the defendant. 6 An agreed statement of facts was tendered which I do not intend to set out in full but upon which I base my approach to this matter. What follows is a recitation of what appear to me to be the essential aspects of the facts in the case. Mr Madani's statement of evidence elaborates the nature of the defendant's operations and its size. It commenced operations in 1971 and has developed to the point where it employs 29 head office management and support staff, 40 site supervisors and engineers, 14 tradesmen, 22 plant operators, 25 labourers and 6 apprentices. In addition, it utilises the services of more than 300 subcontractors who between them employ approximately 400 workers per month at the defendant's various work sites. The Homebush Bay works, the subject of these proceedings, utilised 15 subcontractors who, over the period of the job, employed a total of approximately 150 workers thereon. The construction works undertaken by the defendant now include schools, hospitals, residential commercial buildings in addition to road and bridge works, sewerage and water treatment works and the like. 7 The defendant, for whom Mr Hodgkinson of counsel appeared, tendered through Mr Madani a substantial volume of material which related to the management and planning of site operations with a particular emphasis upon the approach to occupational health and safety. It was demonstrated that in 1995 and again in 1999 the defendant satisfied the requirements of the Construction Policy Steering Committee, an agency of the New South Wales Government which reviews contractors proposing to undertake contract work on behalf of government departments and instrumentalities. It appears further that the Committee reviews the approach of such contractors to occupational health and safety and rehabilitation and gives an accreditation which is necessary for the contract work to be accessed. Ms Stapleton dealt with that material in the following submission: From the subjective viewpoint, the defendant has put forward extensive material which it relies upon to address the omission that occurred on the evening of 13 June 1997. The evidence was that that material is now required by the Construction Policy Steering Committee for the purposes of accrediting the defendant and of course the defendant's motivation in having the systems set up now is not particularly relevant, but it could not be said, in my submission, that the defendant's interest in the welfare of employees and other persons on site was motivated solely by its concern for the health and safety of those persons. There is a commercial interest and it is generally reflected in the more detailed nature that these requirements have to fulfil, as demonstrated by the material my friend took us through this morning. Mr Hodgkinson countered that such an inference is not open and that applying the approach of Walton J in Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16, unreported 15 March 2000 it would be necessary that it be established beyond reasonable doubt; the evidence would not permit that conclusion. 8 In Hoipo the following relevant observations appear: The approach to be adopted in seeking to resolve factual disputes in sentencing proceedings is dictated by the decision of the High Court in R v Olbrich (1999) 166 ALR 330 at 336. There Gleeson CJ, Gaudron , Hayne and Callinan JJ rejected the contention that: … a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. As to the standard of proof that should be applied, their Honours (at 336) endorsed what was said by the majority in R v Storey [1998] 1 VR 359 at 369, that a sentencing judge: … may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. 9 Mr Madani's oral evidence only touched this matter briefly. In cross-examination this evidence was elicited: STAPLETON: Q. The corporate occupational health and safety rehabilitation system which Belmadar now has in place, that has a responsibility by Belmadar to comply with the requirements of the Construction Policy Steering Committee of the New South Wales Government, in relation to accrediting the company for tendering for public works, hasn't it? A. What do you mean by that? Q. It is necessary for you to have the accreditation from the Government committee - - A. Yes. Q. -- before you can tender for Government works, is that correct? A. Yes, recently. It wasn't like that in 1995. It was at a much higher level. Q. A much higher level now? A. It was then. I think you had to have $20 million on certain jobs before you were required to have the accreditation but now it's $2 million. Maybe even less. It is a self-evident proposition that the pursuit and achievement of a form of accreditation which is necessary solely to qualify for government contract work will be motivated, at least in part, by a commercial interest, if not imperative. I find it difficult to see how that matter would require any proof at all. In any event, it seems to me somewhat immaterial that in order to achieve government work, it is necessary to obtain accreditation from the Construction Policy Steering Committee. I am not apprised in detail of the material which was put to the Committee upon which it passed. I consider the defendant is entitled to rely in its defence upon any coincident advantage to safety which might accrue, regardless of any element of commercial motivation. I consider the evidence must be given such weight as it might reasonably bear, given its reflection or effect upon the approach of the defendant to occupational health and safety considerations. What that fact constitutes in this context, is merely that the defendant has made an attempt, recognised by its accreditation, to illustrate its actual approach to occupational health and safety. That recognition does not seem to me to carry more weight than the direct evidence before the Court on the approach to employee safety. 10 I am not persuaded that I should discount to any extent the company's pursuit of an adequate indeed perhaps creditable occupational health and safety and rehabilitation management system. The defendant is not a small employer and yet it has for about 29 years engaged in the construction industry, an industry perhaps notorious for its risks and the approach sometimes taken by those in the industry less concerned with occupational health and safety, without having incurred any prior convictions in this area. It seems to me that given that history, the proper inference to draw is that the policy, which was in existence at the date of the accident, 13 June 1997, and the policy as it is now revised (it having been revised in some respects a number of times even before 1997) has been to attempt to ensure, so far as it can, the safety of its employees and those of subcontractors on its sites. 11 There is no question that on the date of the accident which led to these proceedings there was a clear breach of policy and thus a failure by the defendant to ensure the safety of Mr Vrankovich. The site foreman was aware of the defendant's obligations and his own responsibility to ensure those obligations were met by the wearing of a safety harness working at a height of 5 metres. He was aware that the employee was undertaking the work without a safety harness where, from the photographic evidence, it would appear that such would have readily been able to be worn. The evidence does not suggest more than that this was an unfortunate incident occasioned by the combination of that failure and the unpredictable failure of the crane's clutch mechanism which caused the beam to fall to the ground. Accordingly, I do not accept that this should be treated as a serious failure to comply with the statutory requirements but that rather it was an aberrant failure in the particular context, the effect of which has been to in part reiterate and enhance the approach to occupational health and safety which the defendant accepts must be observed. 12 In assessing penalty I take into account the fact of a plea of guilty which was entered at the first appearance before the Registrar after an amendment of the summons. This I would describe as a very early stage. The defendant is also entitled to credit for the fact of its cooperation with WorkCover. I consider that contrition is evidenced in the matter by the treatment of the rehabilitation of Mr Vrankovich who, as I have earlier noted, was actually an employee of its subcontractor. The maximum penalty in operation at the time of the offence was $500,000. Taking into account my approach on the objective question of the defendant's culpability, I consider that the offence should be treated towards the lower end of the scale. I would assess the penalty for this breach at $65,000 but, taking into account the subjective features I have listed, I would afford a discount of 30 per cent. 13 The defendant is convicted and fined the sum of $45,500 with a moiety to the WorkCover Authority. The defendant shall pay the prosecutor's costs as agreed or as assessed. 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.