Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Chris Henson v ABB Australia Pty Ltd [2005] NSWIRComm 373 PROSECUTOR: Inspector Chris Henson PARTIES: DEFENDANT: ABB Australia Pty Ltd FILE NUMBER(S): IRC 2674 of 2005 CORAM: Haylen J Occupational Health and Safety Act 2000 - s 8(2) early plea entered by defendant - extensive safe working methods adopted by defendant but not enforced by supervising foreman - labour hire employee seriously injured by fall - defendant's system required work at heights to be performed with fall protection equipment - safety harnesses available but not used or directed to be used by defendant - prompt and thorough steps taken by defendant following accident to address risk of working at heights - significant subjective factors - no prior convictions - sizeable undertaking employing and engaging a large workforce - substantial discount allowed on penalty CATCHWORDS: HEARING DATES: 10/18/2005 EXTEMPORE JUDGMENT DATE: 10/18/2005 PROSECUTOR: Mr D Chin of counsel SOLICITORS: Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Mrs W Thompson of counsel SOLICITORS: Carroll & O'Dea JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Haylen J 18 October 2005 Matter No IRC 2674 of 2005 Inspector Chris Hanson v ABB Australia Pty Ltd. Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2005] NSWIRComm 373 1 ABB Australia Pty Ltd is the defendant in proceedings commenced under s 8(2) of the Occupational Health and Safety Act 2000 and has entered a plea of guilty in relation to an offence arising from its work for Delta Electricity at Lake Munmorah Power Station after an incident that took place on 5 June 2003. I have heard evidence and submissions from both the prosecutor and the defendant in relation to the appropriate penalty to be imposed having regard to the nature of the offence. 2 In relation to the evidence that has been called, the prosecutor tendered an Agreed Statement of Facts which is adopted by both parties and I will return to it shortly. Also tendered was a factual inspection report prepared by an Inspector of the WorkCover Authority, and a large number of photographs depicting the site and the nature of the work undertaken on the day in question. I have been assisted by counsel for the prosecutor in understanding the work being undertaken on the day in question by reference to those photographs. There was also tendered a certificate to the effect that the defendant had no prior convictions 3 The Agreed Statement of Facts covers a number of pages and it is not necessary to reproduce it for the purposes of these proceedings which I have heard before the adjournment. 4 The nature of the work may be summarised in this way: The defendant was involved in an undertaking as a project manager engaged by Delta Electricity to perform what might be called upgrading services in connection with a coal conveyor. In these proceedings that has been referred to as the S1 Conveyor Sampler Building. In the performance of this work subcontractors were engaged and a Mr Pietraszek was engaged through a labour hire company. 5 The prosecutor summarises the nature of the work in a way in which I accept and as follows: That Mr Pietraszek, together with employees of the defendant, were in the process of constructing a walkway within the building. The construction of the walkway required the installation of a metal frame which was lowered by use of a crane onto rolled steel joists which formed the support structure of the walkway. In order to install the frame onto the joists, planks were removed which exposed Mr Pietraszek to risk of falling from a height of 3.54 metres above ground level. 6 The particulars of the offence charged under section 8(2) of the Act was that the defendant had failed to, firstly, Ensure a system of work that was safe and without risk to health for the task of installing a frame into an elevated walkway at the place of work in that it failed to enforce compliance with safety requirements in relation to the use of fall protection harnesses and lanyards, And, secondly a failure, to provide adequate instruction, training and supervision to ensure the implementation of and compliance with safe systems of work for the task of installing the frame. 7 The Agreed Statement of Facts refers to the incident on 5 June 2003 and the fact that Mr Pietraszek was working under the guidance of a foreman, Mr Kerseboom, who was employed by the defendant. Mr Kerseboom provided site supervision for the defendant on the day of the incident. Mr Pietraszek, it is agreed, was an experi enced rigger. He had been employed in that capacity for some 11 years, had a rigger's certificate and had a history of working for the defendant through labour hire companies. He had been placed with the defendant for the entire period of his employment with the labour hire company, a company referred to and known as Advantage Personnel. That employment had been for something over two years and four months. 8 The circumstances leading to the incident are of some significance. On 2 June, in accordance with what the evidence shows, I am satisfied, is the usual practice of the defendant, a Job Safety and Environmental Analysis ("JSEA")for this work was completed and it was distributed amongst Mr Kerseboom and others, including Mr Pietraszek. There was a list of 15 types of personal protective equipment requirements in that document and 12 of these were ticked for the job including the height requirements category. It is common ground that the JSEA, as it has been referred to in these proceedings, did not specify what type of personal protective equipment was required or how it related to the job. The document was prepared prior to the modification of the installation of the walkway platform that occurred during the course of the job. 9 On 5 June 2003 there was a toolbox meeting which was attended by Mr Pietraszek and also Mr Kerseboom. That meeting discussed the schedule of activities for the day, including work to be performed at heights, but there was no discussion about safety harnesses or lanyards or other methods of fall protection or fall prevention for the task, although the work permit required the crew to wear safety harnesses. At the time of the toolbox meeting the difficulty that arose later in the day with the positioning of the walkway platform had not been anticipated. It was accepted that the issue concerning the positioning of the walkway platform magnified the fall risk. 10 The work permit was signed by the work crew - that was a daily requirement - and Mr Pietraszek was one of those who signed it and acknowledged that he had read and understood the terms of it. The work permit itself stated that safety harnesses were to be worn and attached via lanyards or fall arresting devices when working at height. 11 When the crane crew arrived to assist in the walkway construction there was a further discussion about the work to be performed but there was no discussion about the use of harnesses and lanyards. The risk of working at heights should then have been identified due to the open penetrations that became evident after the removal of the wooden planks. 12 The Statement of Agreed Facts sets out in detail the nature of the work, the way in which the alterations to the work method arose on that day, and the fact that there was ultimately a large void over which Mr Pietraszek was working. 13 It is noted that during the course of this work when there was some requirement of the employees to manoeuvre the frame, that Mr Kerseboom at one stage left the crew and later returned and called to the two people who were performing this task, that is Mr Cooper and Mr Pietraszek, and asked them if they were all right and if they wanted to have their harnesses. The harnesses were available and present on the site. Mr Cooper apparently replied that he was all right. Mr Pietraszek did not respond, and it is said that Mr Kerseboom trusted their judgment because he had experience of working with both men. 14 It is said that the change in the sling increased the risk associated with the task in that Mr Pietraszek and Mr Cooper took a more physical role in manoeuvring the frame into position. While the frame was being manoeuvred both Mr Pietraszek and Mr Cooper were pushing the frame, the frame moved on the platform, and at the end where Mr Pietraszek was pulling, he was moved towards the void and fell. He lost his balance and fell from his position, as it is said, some 3.5 odd metres. Mr Pietraszek sustained spinal fracture injuries and a fractured right hip. He was fit to return on work on suitable duties from 18 December 2004, a period of some one and a half years. 15 The systems of work are described in this way: The defendant had a safety management system in place that identified hazards at both the initial stages of the project and on an on going basis. The defendant's safety management plan for this project included a requirement for full parachute harnesses to be worn by persons exposed to risks of falls whilst working outside hand rails. The JSEA and work permit noted the risk of working at heights. The work permit signed on the day of the incident noted the need to wear a harness and lanyard as fall protection. 16 The defendant had a system of conducting on site daily toolbox talks to identify hazards relating to the task and to relay them to workers. The toolbox meeting on this day did not include discussion or instruction about harnesses or lanyards or other methods of fall protection or fall prevention for the task to be completed, although the full extent of the risk was not anticipated at the stage of the toolbox talk. Mr Pietraszek was working under the direction and control of the defendant on this day and was not instructed by his supervisor, Mr Kerseboom, to wear a safety harness once the planks were removed. 17 Mr Pietraszek as a rigger was qualified to work at heights, but he had not received fall prevention training from the defendant, although the evidence would support a finding that earlier in his career from another employer he had received training in that area from another employer. Mr Kerseboom had received training in regard to personal protection equipment and height safety in January 2001 and was due for retraining in January 2003, which did not occur. 18 There is reference in the agreed statement of facts to Mr Pietraszek's employer, Advantage Personnel Pty Limited. It appears the only training that Advantage Personnel provided to Mr Pietraszek in relation to working at heights was through its induction handbook and video. It is noted that after this incident Advantage Personnel Pty Limited were placed into liquidation, together with what appears to be a related company. 19 Following the incident the defendant took a number of actions. They are described in this way: Firstly, Mr Kerseboom was reprimanded and was retrained in the application of the JSEA and the work permit and his responsibility to enforce the requirements contained in those documents. The defendant required supervisors in the Newcastle region to be retrained in their safety responsibilities and accountability and that program was to be rolled out across all the defendant's operations. There was also a requirement for the JSEAs and work permits to be reviewed for adequacy and redesigned by work crews on a daily basis with line managers to ensure all agreed control measures were in place prior to work commencing. There was an amended induction program for the project and there was a safety alert issued following the incident that related to the incident and raised falls in general. 20 Advantage Personnel also undertook a review of its risk management system, conducted an audit on its site inspection regime in relation to adequate supervision of employees and upgraded its site evaluation and compliance form. 21 For the defendant two affidavits were read, both with annexures which formed part of the evidence. Ms Marion McLean held the position of country and regional occupational health and safety manager for the defendant. In her affidavit she described that role as covering Australia and the Asia Pacific region and said that there were 12 dedicated occupational health and safety co-ordinators within Australia who all reported to her. There were other staff that had roles in occupational health and safety and she referred to an organisational chart to describe the manner in which that took place. 22 In relation to this project there was a significant and detailed document prepared by the defendant entitled "The Safety Management Plan for this Work". That was attached to the affidavit and I have been taken to parts of the document that are relevant to these proceedings dealing with the overall health and safety management plan, hazard and risk management, a specific provision dealing with working at heights requiring all employees to utilise fall restraint or arrest systems, and ensuring that they have completed adequate training and instruction to perform the task when working at heights. There is a reference in that context to the JSEA process. 23 It was noted in the affidavit that the defendant used both its own staff and staff from a labour hire company, Advantage Personnel, for this task for Delta Electricity. Both classes of employees were provided with induction on the site and were trained in the defendant's safety system. Ms McLean says that the defendant endeavoured to obtain skilled tradesmen from companies such as Advantage who would be directed to perform and work within that skill set. 24 It was pointed out that Mr Pietraszek was a qualified rigger class 4. He had a number of certificates and there were copies of those annexed to the affidavit. It was confirmed that he had participated in and completed induction for this work. There is also reference to the site specific safety health environment induction conducted by QHS in relation to this work. 25 It is said that Mr Pietraszek was performing work subject to the defendant's procedures. There is a reference to the requirement for a work permit, and I might say the evidence suggests, the application of a comprehensive safety approach by the defendant. It is confirmed that working at height was identified and there was a general instruction that harnesses were to be worn and that they were in fact present on the site and available for use by Mr Pietraszek. 26 Following the accident, Ms McLean sets out the steps taken by the defendant. A number of those I have already referred to from the agreed statement of facts. Apart from the reprimand to Mr Kerseboom (and the terms of that document were in evidence), the defendant also took up Mr Pietraszek's noncompliance with the defendant's safety system with his employer, Advantage. There are three letters in evidence which show that the defendant pursued this matter with Mr Pietraszek's employer and sought to impress upon Advantage the requirements of the defendant's own safe system of work and what steps should be taken by Advantage to ensure that these instructions were to be followed. 27 In addition, the defendant took the somewhat unusual steps of instructing solicitors to communicate with the WorkCover Authority in relation to the incident. In that correspondence the circumstances in which the accident occurred were set out and many of the matters that I have already referred to were in a brief way conveyed to the WorkCover Authority. The steps taken by the defendant were also outlined, but in the course of that correspondence the defendant said that in the event that the Authority decided to commence a prosecution in relation to this incident, instructions had been received to the effect that the defendant would plead guilty to a charge in the circumstances that had been outlined in the correspondence. Indeed, when the matter was first listed, and I think before the matter was given a return date, there was correspondence to the Court from the defendant's legal representative indicating that a guilty plea would be entered, and I will deal with the consequences of that later. 28 Ms McLean's affidavit sets out the nature of the defendant and described it as a multinational electrical engineering company, also performing full service maintenance on clients' sites. The company works for a number of well known and large entities and performs quite a deal of project work for utilities. She described the work of the company as being a highly sophisticated undertaking, requiring a very skilled workforce to carry out its tasks as contracted. It was said that the defendant would employ approximately 1,800 people directly and there would be a similar number retained on contracts on any given day. In New South Wales at the present time it was said that there would be approximately 650 employees and 800 contractors working in various fields for the defendant and that they are spread over some 10 operational sites in Sydney, Newcastle and Wollongong. I was also informed that the company has been in operation since 1989; although in various guises arising from takovers and mergers apparently, the company had been in existence for a very considerable period of time, I think 70 years was mentioned. 29 Ms McLean also spoke of her position as being the most senior safety employee engaged by the defendant in Australia. She reported directly to the chief executive officer of the company. She spoke about discussions with the board of the defendant, the emphasis placed on safety and ensuring compliance with the company's requirements as to safety. She gave evidence about the defendant obtaining accreditation under the latest New South Wales Government Occupational Health and Safety Management Systems Guideline and reporting on a quarterly basis to the board, and how there were structures below the board such as a safety steering committee which kept abreast of safety issues for the work that was being performed by the company. There was quite a detailed description of the role played by Ms McLean. I do not need to set that out in detail, but I have taken it into account. 30 There was also evidence given as to audits, scheduled, unscheduled, random, and audits conducted by external bodies as well as audits conducted by clients, giving a picture of a workforce that was under some continuing surveillance from a number of sources in relation to safe working methods. 31 There was also a reference to treating employees and subcontractors and their employees alike, not making a distinction between them in relation to occupational health and safety requirements, and also the use of a hazard alert notebook where employees are directed to record any risk or safety hazard that may be observed during day to day operations and then how that can be logged and considered by the site safety committee. 32 In addition to Ms McLean's evidence there is evidence also of Jean-Paul Wallace, an in-house legal counsel for the defendant. Two things might be said about that short affidavit: It annexes examples of the staff magazine which deals in a specific part, apparently from time to time, with issues of safety. The affidavit also deals with a number of charitable activities undertaken by the defendant and scholarships offered. Again I do not record the details but it might be said that they are impressive and indicate the wider good citizenship of the defendant. 33 It becomes necessary against that evidence to consider the objective seriousness of this offence. This is not a trivial offence. The injuries suffered by Mr Pietraszek are evidence of the nature of the risk. He fell something over three and a half metres. He suffered injuries that kept him out of work for the best part of a year and a half. 34 It should be stated that the unfortunate incident that led to Mr Pietraszek's injuries occurred in circumstances where the evidence otherwise shows a comprehensive approach to occupational health and safety. It occurs from time to time in dealing with prosecutions under the Occupational Health and Safety Act that the Court is provided with evidence from employers who have safe systems of work but are in a documented form, often referred to as mere paper systems, but in this case I am not satisfied that this was a mere paper system. The totality of the evidence convinces me that there was a genuine system of safe work in operation and that this incident was something of an aberration. Later when I come to deal with subjective features the size and the nature of the industry has some relevance but, again, the Court has the experience of genuine employers often spending significant resources in creating, disseminating and speaking to its subcontractors about the requirements of the work and the requirement for safe working methods and, as in this case, actually laying down the method of work which would have prevented this accident. 35 This is one of those cases where the evidence does not demonstrate a negligent or careless approach to safety by the defendant, but a gap in its system. Here, on any analysis, working at this height, as Mr Pietraszek was on the day in question, required some attention to be paid to fall protection. That was all the more to the fore once the nature of the work changed and it became clear that they would be working in circumstances where they were over a substantial void. It is hard to regard this incident as other than foreseeable in that sense. Of course, where the event is foreseeable and there are quite simple steps to address the risk, and here steps laid down by the defendant, then the conclusion is inevitable that it is a serious breach of the Act. 36 Notwithstanding the considerable effort taken by the defendant, the foreman simply asked these two workers, including Mr Pietraszek, whether they wanted to use their harnesses. His obligation was to ensure that the defendant's requirements were complied with and that they did wear their harnesses or some other system to prevent a fall. That is the nature of the offence which has to be dealt with and I regard it as something of a gap in an otherwise comprehensive safe system put in place by the defendant. 37 In relation to general and specific deterrence there is no debate that the principle of general deterrence has a role to play in the fixing of an appropriate penalty in this case. In relation to specific deterrence I accept the submission made on behalf of the defendant that, having regard to its extensive existing system and the steps taken following this incident, that there is a much lesser role to play for the operation of the principle of specific deterrence and I proceed on that basis. 38 In relation to subjective factors; firstly, I am satisfied on the evidence that the defendant has entered an early plea. The steps that it took in contacting the WorkCover Authority, which I have referred to earlier, I think indicate firstly its contrition and, secondly, its determination to plug the gaps that had been exposed by this particular incident. The defendant is entitled to the maximum discount of 25 per cent on account of the utilitarian value of its plea. 39 Also of significance is the fact that the defendant has a good safety record prior to this incident. It has been engaged in an industry where workplace risks abound since 1989 and, as I have indicated in various guises, well before that. It employs a sizeable workforce and engages a sizeable number of subcontractors. This is to be regarded as a good safety record and the other evidence supports a finding that the defendant is a good corporate citizen. There is no contest that there was co-operation with the investigation carried out by the WorkCover Inspector. Those matters all are to be taken into account in setting an appropriate penalty in relation to this particular offence. 40 Having regard to those considerations, the Court makes the following orders: 1. The defendant is found guilty of the charge brought under section 8(2) of the Occupational Health and Safety Act 2000 in matter IRC 2674 of 2005 to which it has pleaded guilty. 2. The defendant is fined the sum of $70,000 with the defendant to pay half the penalty as a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor in the sum of $11,500. 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.