Industrial Relations Commission of New South Wales in Court Session CITATION : WCA v Galicia Cons. Pty Limited [2000] NSWIRComm 195 PROSECUTION: WorkCover Authority of New South Wales (Insp Dubois) PARTIES : DEFENDANT: Galicia Cons. Pty Limited FILE NUMBER: IRC2485 of 1999 CORAM: Maidment J CATCHWORDS : Plea of guilty, consideration of culpability in unusual circumstances, penalty unduely repressive, company discharged on condition of good behaviour bond. Occupational Health & Safety Act 1983 LEGISLATION CITED : s15(1) Crimes (Sentencing Procedure) Act 1999 HEARING DATES: 05/31/2000 DATE OF JUDGMENT: 09/29/2000 PROSECUTOR: Mr M Cahill of counsel SOLICITOR: Mr N Correy Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr R Reitano of counsel SOLICITOR: Ms D Banks Gilbert & Tobin JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MAIDMENT J DATE: 29 SEPTEMBER 2000 Matter No. IRC/2485 of 1999. WorkCover Authority of New South Wales (Insp Dubois) v Galicia Cons. Pty Limited. Prosecution under s 15(1) of the Occupational Health & Safety Act 1983. JUDGMENT 1 On 13 June, 1997 Jerko Vranjkovic, an employee of Galicia Constructions Pty Ltd (Galicia), was injured whilst working as a rigger on a road bridge construction site, the head contractor being Belmadar Constructions Pty Ltd (Belmadar). Galicia has entered a plea of guilty to a consequential prosecution under s.15(1) of the Occupational Health & Safety Act 1983. 2 Ignacio Gil gave evidence in Galicia's case, otherwise the matter went forward by way of documentary evidence. Mr Gil gave his oral evidence in Spanish, the services of an interpreter being utilised. Subsequent to the decision being reserved judgment was delayed in order to afford the parties an opportunity to consider the validity of the summons, however, following the decision in Ridge Consolidated Pty Ltd v WorkCover Authority of NSW , [2000] NSWIRComm 142, the parties chose not to make any further submissions. 3 The accident occurred during the positioning of a structural steel beam in order to fix it to two larger beams which had been fixed some 5 metres above a roadway. Belmadar had supplied a mobile crane and driver to lift the beam, Mr Vranjkovic, who was standing on one of the fixed beams, was leaning on the beam being positioned when the lifting mechanism of the crane failed and the beam fell to the ground. Mr Vranjkovic fell with it some 5 metres to the ground incurring a broken arm and lesser injuries, he was off work for in excess of seven days. Mr Vranjkovic was neither using a safety belt nor harness. 4 Mr Gil had performed welding, rigging and labouring work for Belmadar since September 1993; his evidence is that Belmadar would not employ him and would only provide him work as a contractor a condition being that he form a company for that purpose. Galicia was formed in September 1993 for that purpose, the only directors and shareholders being Mr Gil and his wife. 5 The evidence is that a Belmadar foreman supervised the work of Galicia employees and instructed them as to how their work was to be performed. Mr Gill contends that a safety harness would have made the job more dangerous on account of there having been no safe attachment location and that, but for the failure of the crane over which Galicia had no control, no hazard would have existed. 6 It was the practice of Galicia to provide its employees with safety hats and boots and to require their attendance at job safety courses which were organised by Belmadar. The Belmadar foreman was in charge of safety and, before any job was performed, a safety assessment meeting, which would take about 30 minutes, was conducted by the foreman. Galicia employees were instructed to raise any matters of concern with the Belmadar foreman. 7 It would seem that, on the day of the accident, Belmadar had provided scaffolding for the purpose of facilitating work on the bridge which, for one reason or another, proved to be inadequate for the work to be performed by Mr Vranjkovic. The foreman, who I understand was employed by Belmadar, was aware of the inadequacy of the scaffold and failed to institute an appropriate alternative method of ensuring the safety of Mr Vranjkovic. No precautions were taken to ensure that he could not fall. 8 Galicia has only ever performed work for Belmadar and ceased trading in December 1998, Belmadar having no further requirement for its services. The company is in debt in an amount exceeding $3.6K and has no source of income 9 Galicia has received no income since December 1998 and Mr Gil has had to find work elsewhere as an employee, he earned between $35 and $40K up until January 2000. 10 In January Mr Gil was diagnosed with chronic granulocytic leukaemia and has not been able to work since, he is receiving intensive treatment and his prospects for survival are unknown. He has used up part of his superannuation funds and relies upon his wife's earnings which are of the order of $190 gross per week. The family includes two dependant children. 11 It is apparent that Galicia has no funds with which to pay any penalty which might be imposed upon it in these proceedings. Its relationship with its only ever client was severed in December 1998 and its principal has been unable, on account of chronic granulocytic leukaemia, to work since January 2000. 12 Mr Cahill, prosecuting counsel, submitted that, bearing in mind the public expression by Parliament of the seriousness of workplace offences of this type which is manifested by the available penalty of $500K, the objective gravity of the offence is such as to require a substantial penalty. He submits that the danger was easily perceived and was readily able to have been remedied and that the seriousness is manifested by the injuries sustained. 13 Mr Cahill reminded the Court that a factor in assessing a penalty is that of providing a general deterrent. 14 Mr Reitano , counsel for Galicia, placed emphasis upon the role of Belmadar in requiring Mr Gil to establish a company before it would provide him with work and the fact that Galicia provided a small return to Mr Gil and his wife to support a submission that Galicia should be treated as a one man company. Additionally he stressed the role of Belmadar as he put it, "who called all the shots" in providing the scaffolding, preparing the statement of works, providing the crane and the supervision and directing Galicia employees as to how they were to perform their work. 15 Mr Reitano relied upon the early plea of guilty and the fact that Galicia has had no prior conviction. He then adverted to the difficult financial circumstances of Galicia and submitted to the effect that in the event that the Court considered that a fine should be imposed it should be at the lower end of the scale. 16 Section 10 of the Crimes (Sentencing Procedure) Act 1999 provides, inter alia , as follows: 10. Dismissal of charges and conditional discharge of offender. (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c ) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 17 The evidence leads to the conclusion that Belmadar accepted the role of on-site safety management by way of providing safety training of Galicia employees and also by assuming the on the job responsibility of directing and supervising their work. This, of course, as is acknowledged by the plea of guilty does not remove the responsibility from Galicia of ensuring the safety of its employees. It does, however, enable Galicia's culpability to be considered in a different perspective. 18 In consideration of the present circumstances I pay particular regard to the remorse of Mr Gil which is manifested not only by his demeanour as a witness but also by the briefing of counsel in circumstances in which Galicia had no funds with which to meet the resultant legal costs. 19 Bearing in mind the nature of the offence and accepting the proposition that Galicia is a "one man show", to adopt the words of Mr Cahill , it seems to me that a penalty would ordinarily be appropriate but for the unusual circumstances that Mr Gil and his company are now faced with. I reach that view having weighed the factors, such as the early plea of guilty, which go in mitigation. 20 It is not in my view appropriate to divorce the circumstances of Galicia from that of Mr Gil. The reality is that his future is that of his company. Accordingly I take into account his illness and uncertain future, his inability to work since January and the extremely limited income of his family which includes two dependent children. His company has no means to pay any penalty which might be imposed upon it and, having lost its only client, it is doubtful that it will again trade even if Mr Gil's health is restored. 21 Under those circumstances it seems to me that it would be unduly oppressive upon Galicia to impose a penalty upon it. Taking into account the demeanour of Mr Gil, his obvious remorse, the submissions on his behalf and the fact that his company is legally represented although it has no funds, I strongly suspect that he intends, as a matter of honour, to stretch his limited resources in order to attempt to himself pay any penalty which might be imposed upon his company despite the fact that he has no legal obligation to do so. 22 Any penalty imposed upon Galicia, unless personally paid by Mr Gil, would render it uneconomic for Galicia to recommence its activities; in the peculiar circumstances of this case that would be oppressive. 23 I considered making an order under s.10(1)(a) of the Crimes (Sentencing Procedure) Act however, bearing in mind the nature of the offence and I reached the view that such an order would not be appropriate. 24 It does seem to me to be expedient, having regard to the antecedents of Galicia its financial circumstances and taking into account the circumstances in which the offence was committed and also the difficulties confronting Mr Gil, its alter ego , to discharge Galicia on condition that it enter into a good behaviour bond by way of self recognisance with a duration of two years, I so order. This should enable the re-activation of Galicia, should other circumstances permit, without it facing a crippling financial barrier whilst demanding that its industrial safety behaviour be exemplary for the period of two years under pain of significant sanction. The public deterrent factor should thus be met. 25 I award costs in favour of WCA against Galicia. 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.