Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Dieter Franke v Vin Heffernan Pty Ltd. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 [2005] NSWIRComm 151 PROSECUTOR: Inspector Dieter Franke PARTIES: DEFENDANT: Vin Heffernan Pty Ltd FILE NUMBER(S): IRC 6333 of 2003 CORAM: Haylen J CASES CITED: Fernz Construction Materials Limited (No 2) (2000) 100 IR 23 at para 34 HEARING DATES: 05/05/2005 EXTEMPORE JUDGMENT DATE: 05/05/2005 PROSECUTOR: Mr R Reitano of counsel SOLICITOR: Ms Linda Barnes WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr B Hodgkinson SC SOLICITOR: Ms J Williams Timber Trade Industrial Association JUDGMENT: 11 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Haylen J 5 May 2005 Matter No IRC 6333 of 2003 Inspector Dieter Franke v Vin Heffernan Pty Ltd. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2005] NSWIRComm 151 On 9 February 2005 the Court delivered judgment in contested proceedings claiming a breach of section 8(1) of the Occupational Health and Safety Act 2000 by the defendant, Vin Hefferenan Pty Limited. That judgment concluded that the prosecution had established a breach of the Act as particularised in the charge. Today's proceedings have dealt, therefore, with evidence and submissions as to penalty. It was common ground that the defendant has no prior convictions. The evidence called on behalf of the defendant comprised of an affidavit by Mr Vincent Heffernan who described himself as a working director of the defendant. That affidavit outlines the business undertakings and employment of Mr Heffernan from the late 1950s, and his business activities in particular with the defendant which was incorporated in June 1960, and refers to the work performed in the area around or between Bega and Eden. Mr Heffernan talks of employing up to 50 people during those years, currently approximately 20 people being employed, and refers to being a major employer within the Eden district. There are a number of paragraphs of the affidavit that deal with community work in which Mr Heffernan has been involved, I take it both personally and through his company. I don't detail those in this judgment, but over a period of time they speak of a commendable involvement in the community at sometimes some considerable cost to Mr Heffernan and his company. There is also reference made to a significant role played in bush fire protection and prevention going back in fact to the early 1960s and, given the nature of the business of the company and the area in which it has operated and the importance of the forests, that might be expected to be an interest but, nevertheless, there is again a commendable participation in a community activity and one of course, of some considerable danger to those who lend their assistance. Of some significance for this sentencing exercise is Mr Heffernan's affidavit evidence about a recent innovation involving a mechanical faller. He explains that has been a project in development and was in development at the time of the accident which prompted the WorkCover investigation in late 2001, but it was a development which he in a sense brought forward following the death of Mr Munday, one of his workers, and he gives a description of how the new machine operates and how, except for areas in which it is difficult to use the machine, there has been virtually an elimination of felling trees by hand. The particular accident involving Mr Munday was an operation whereby there was a felling of trees by hand. Mr Heffernan notes that over time something in excess of $600,000 has been spent on this project in bringing it to a satisfactory operation and also notes that the only benefit derived for the company from the introduction of this equipment has been an increase in safety and he contrasts the fact that he has spent a considerable amount of money in the development of this piece of machinery to replace a chain saw which commonly costs around $2,000. He also speaks of a number of procedures that have altered since this accident. There has been a fitting of UHF radios to all machines that allows communication between operators. There have been instructions given, regarded as mandatory, to have two four wheel drive vehicles, instead of one at a work site to ensure that there is always emergency transport available. In his evidence he also speaks of being invited by WorkCover, in fact before the accident in November 2001, some time in 2000, to assist in the development of a code of practice for safety in forest harvesting operations. I have been reminded by his counsel during submissions today that in the course of the evidence during the prosecution case prior to today there was a deal of information about the company's reputation for concern for safety and the participation, in particular of its principal, Mr Heffernan, in developing safety and safe working practices in what is clearly an inherently dangerous undertaking, that is harvesting of trees in the forests. He speaks beyond that experience in his affidavit about being contracted around late 1989 by the State Electricity Commission in Victoria to widen a power line easement. He talks about the new safety considerations that were involved in that undertaking and the award given for the safe working of the company in that exercise. The affidavit evidence also speaks of the haulage of logs, often very large logs and the haulage of those logs in circumstances which requires driving along the Princes Highway and other restricted roads within the region and, not surprisingly, Mr Heffernan speaks of being justifiably proud of the safety record of the company's trucks. I might say at this stage he is probably entitled to be justifiably proud of the overall safety record of the company. Mr Heffernan said he usually played a role, personally, in the supervision of the movement of the largest loads and acted as escort. Without detailing them, he refers to two undertakings in 1997 and 2000 with the construction company Barclay Mowlem and the reputation of the company being important to obtaining that work, the dangerous nature of that work and how that work was able to be performed safely and without incident. He also speaks about the incident involving Mr Munday and says now, at the age of 73 years, that having worked in the bush for almost his entire adult life, he had never seen an accident that occurred such as the one involving Mr Munday. His counsel makes something of that and I will return to it shortly. The affidavit also refers to the involvement of the company in organising a benefit day for Mr Munday's widow in the local community and the fact that in excess of $20,000 was raised as a result of that exercise. He speaks with some clear passion about his involvement in the logging industry and his participation in it, his commitment to occupational health and safety systems, especially in the bush, and talks of thinking of the company and its participants as being forerunners in occupational health and safety, identifying risks and problems and then devising means to rectify them and notes with regret that fine record has been stained by this particular incident and the offence which has been found to have been committed. There is clear evidence in that material and from what has been put on behalf of the company of its contrition. The affidavit also annexed a number of references from individuals and businesses in the area. They speak highly of the company, of Mr Heffernan personally, and the safety record of the company. There was reference to Mr Heffernan's important contribution to the national industry training body ELITT and also, from an individual, reference to how Mr Heffernan's workers have appeared to have been safety conscious and obey safety rules when working at other sites. The affidavit evidence, of course, earlier referred to the fact that a large number of the employees have worked for the company for a very long time, many in excess of 20 years. The charge which was brought by the WorkCover Authority Inspector alleged a breach of section 8(1) of the 2000 Act. In summary, the charge alleged that the defendant company had failed to ensure the health, safety and welfare at work of all its employees, and in particular Mr Munday. The particulars, again, in summary being that there was a failure: To provide and maintain systems of work that were safe and without risks to health in relation to its employees working around trees that were at risk of falling a failure To provide and maintain a safe system of work so as to ensure that employees did not walk into the area or zone which included the falling path of a tree that had been scarfed and backcut at a time when that tree posed a risk of falling into that area or zone and a failure To have in place supervision that ensured that employees would not be required to rely solely on their own judgment as to risks to their health and safety, or to the health and safety of other employees, that might arise by reason to trees being scarfed, backcut and left standing. The judgment looks at the evidence extensively and I do not intend to try to summarise it for the purposes of this sentencing exercise. It is sufficient to say that this particular offence concentrated on a work team of three people, one working some little distance from the actual tree felling operation, the other two members of the team working together, one with a large tractor and the other with the equipment necessary, including usually an axe and a chain saw, to fell trees. On a consideration of the evidence it was found by the Court that in the immediate tree felling area the responsibilities for safety of the operation lay directly with the workplace supervisor, or the bush boss, and the faller. I have been reminded again today that the evidence from very experienced and expert people was that the area around the tree being felled was the sole preserve of the feller. The feller had authority in that area to the exclusion of others. There had been, according to the evidence, extensive training by ELITT and that was required training. I should say here that it is abundantly clear from the evidence that this is a highly regulated industry. Before the members of this type of working team can perform these tasks in the forest, they have to be trained and certified as to the skills that will be required of them on the site. They are subject to monthly or two monthly visits by representatives of ELITT directly concerned with safe working systems, and also daily visits by forestry officers whose concerns are not solely with safety but include, amongst other things, safety considerations. The evidence demonstrates that these teams are made up of very experienced people working in the forests and that it is the usual method to have quite small teams of three or so working at a site. So it was in the incident that involved Mr Munday. In this particular work group the evidence demonstrated the importance of the use and having a workable axe and wedges. There were expected practices and obligations which were to be complied with, and the particular case here focussed upon Mr Munday not having with him his axe, the failure of the team supervisor to require him to have that axe before he commenced work, and the system of refuelling the chain saw while in the middle of a task of felling a tree, and not making appropriate assessments or being required to make appropriate assessments about the number of trees to be felled, the time at which it would be appropriate to stop that task and refuel. The other aspect of significance, and again I deal with it in a summary way, is the fact that the supervisor, on seeing Mr Munday refuelling, drove his bulldozer within the area that is normally forbidden to enter unless there was eye contact and a signal from the feller indicating that it was safe to move into the area. He did so because he assumed from the fact that Mr Munday was refuelling his chain saw that it was safe to do so. Mr Munday did not disabuse him of that fact and made no mention that he had substantially cut a tree and that it was in a state that was likely to fall. That event and what followed, that is the two employees then went searching for the axe that Mr Munday had lost the previous week, and went searching in an area directly in the path or the fall path of this tree, raises some questions in this case which ultimately could not be answered. As I have already recounted, Mr Heffernan says that in all his experience - and that is a very long experience - he has not witnessed that type of conduct, that is a faller having cut a tree to this extent not then informing anybody else and in company walking into the fall path of the tree. I was unable and the expert evidence was that nobody else could work out why this particular incident occurred. That undoubtedly explains the focus of the prosecution case, as I note in the judgment at paragraph 112 in particular, was not on why Mr Munday undertook the actions he did on that day but, rather, a broader enquiry into the system of work and its failures and omissions in relation to employees working around trees. That is important to understand in this sentencing exercise and I proceed on that basis. In the judgment I also note the requirement of an employer under the terms of the Occupational Health and Safety legislation to also be active in ensuring safety even when one might experience unusual employee conduct or even negligent conduct. There is no suggestion here that the conduct was negligent, it is simply unknown. In relation to that obligation I noted in paragraph 119 by reference to a number of the authorities that that duty, regardless of the activities, sometimes unexpected activities of employees, did not diminish the responsibility of an employer but they may be matters that reflect on the degree of the culpability of the employer when considered n the sentencing exercise. The first task I need to consider in this case is the objective seriousness of the offence. It has been urged on behalf of the defendant by its counsel, and I agree, that this task requires consideration to be given to the nature of the systems of work and safe systems of work that were in place, and the nature of the risks demonstrated by the evidence and that is to be considered in terms of this team. That was the focus of the evidence. This defendant has a number of employees. This is not the only place, I take it from the evidence, it performs this category of work. I do not know anything of the manner in which the work is performed in the forest with other teams. It is perhaps a curiosity that two very experienced people and highly regarded people nevertheless in this short period of time were shown to be adopting approaches which were not in accordance with well known and well documented safety procedures. Nevertheless the defendant had those systems. The defendant was, if I can use the term, pro-active in an industry sense in relation to occupational health and safety as shown by the evidence of its participation at a very early stage, I think a founding stage of ELITT. There is force in the submission for the defendant, which was accepted by counsel for the prosecutor, that this was not a case where there was some reckless disregard of safety or a lack of safety systems. Here there were very considerable systems, some I should say imposed externally, but endorsed and adopted by the defendant. Yet regrettably the omissions and failures of that system were exposed and they were exposed in circumstances where there were fairly simple methods of redress; when an axe is lost or broken it is a fairly simple task to arrange for a spare axe to be present or one to be brought in. There was an existing system of communication and for some reason that system was not followed on the day. I do not repeat those matters again. Bearing in mind the nature of this industry, an inherently dangerous undertaking, this company nevertheless has a very good safety record and I will return to those subjective factors in a moment. Having regard to the well known risks of operating in this industry and the nature of the omissions found, I conclude that this is a serious breach. It is a serious breach that nevertheless has to be considered in a context. I have been reminded today of the statement of this Court in Fernz Construction Materials Limited (No 2) (2000) 100 IR 23 at paragraph 34 to the effect that the seriousness of the offence must be assessed in the light of the policies and procedures which the defendant had in place. The existence of safety procedures and instructions is a factor which may mitigate the seriousness of an offence under the Act, and I think that is the situation with which the Court is faced here. There were very substantial systems, there was very substantial commitment to those systems, but the evidence establishes the omissions and the failures of the system in relation to this particular team. It is also part of this task to consider issues of general deterrence and specific deterrence. The Court has on numerous occasions and at Full Bench level referred to the usual requirement for there to be an element of general deterrence in a sentencing assessment. Here I agree with the submission made on behalf of the defendant that the circumstances of this case do not call for this defendant to be made an example to the community working in this industry or more generally industries at large. Nevertheless this case is another example of an employer with a commitment to safety and with considerable safety systems finding that there are gaps in that system. Specific deterrence involves a different consideration in this case. It was accepted on behalf of the prosecutor that the steps taken by the defendant since this accident in relation to the virtual elimination, except in very special circumstances, of hand felling, the introduction of radio communication, mean that this type of breach has been addressed and there must be a conclusion that there is little risk of this type of breach occurring again. Specific deterrence for an on going employer would usually have some role to play. In my view it will have and should have some role but a very much diminished role in relation to this particular offence. I then come to consider subjective factors. The principal of the defendant has been involved in heavy and dangerous industry apparently nearly all of his life. The company which was incorporated in the middle of 1960 and its participation with up to 50 people over that period of time, remarkably, has no recorded conviction. That record over that time in this type of industry speaks well of its commitment to safe systems, especially when it is recognised that the type of work involves not only the felling of trees but the use of large machines and trucks in the course of that undertaking. It is true that the evidence does not disclose year by year over that very long period of time the number of workers, but it is clearly not an insignificant number of workers involved. It is, I think, an impressive safety record which leads to a conclusion that there are in this matter very considerable subjective factors to be taken into account in mitigation of penalty. The affidavit evidence that I have already referred to speaks of the good citizenship of both Mr Heffernan as principal of the defendant and the defendant company. It is a significant local employer. It appears to have not only a remarkably good safety record but great community support as references from other businesses and individuals show. It appears to have the commitment of its workforce, so many of whom have spent many years approaching often a life time of work with the defendant. There is evidence of the defendant's contrition, its involvement in the collection of donations for Mr Munday's family, the steps it took to address the omissions found in this case, and also the amount of money spent on the development of machinery that makes it unlikely that this type of accident could occur again. Those steps are significant. There appears to have been co-operation with the WorkCover Authority. All of those matters speak highly of the defendant and are proper matters to be taken into account in setting a penalty. In light of all of those considerations the Court makes the following orders: 1. The defendant is convicted of the charge particularised in Matter No IRC 6333 of 2003. 2. The defendant is to pay a penalty in the sum of $75,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor as agreed or, in the absence of agreement, as ordered by the Court. 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