Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover v Gridcon (NSW) Pty Ltd [2000] NSWIRComm 265 PROSECUTOR Workcover Authority of New South Wales (Inspector Wong) PARTIES : DEFENDANT Gridcon (NSW) Pty Limited FILE NUMBER: IRC6248 of 1999 CORAM: Peterson J CATCHWORDS : Occupational Health and Safety - breach of s15(1) - installation of ceiling panels - failure to provide for safety of employee whilst performing work - performance of work contrary to procedures - safety harnesses and lanyards - early plea of guilty - gravity of offence - range in respect of which penalty ought commence to be assessed - first offence - means of defendant - discount applied. LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : Gordon v Mijo NSW Pty Ltd (unreported Cullen J 2 December 1993, CT93/1002) Workcover Authority of NSW (Inspector Hart) v Idofan Pty Ltd t/as Kingsland Transport (1995) 59 IR 295 HEARING DATES: 11/13/2000 DATE OF JUDGMENT: 12/15/2000 PROSECUTOR Mr M L Shume of counsel SOLICITOR WorkCover Authority of New South Wales SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr J P Phillips of counsel SOLICITOR Moray & Agnew SYDNEY. JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 15 DECEMBER 2000 Matter No. IRC6248 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR WONG) v GRIDCON (NSW) PTY LTD. Prosecution under s15(1) of the Occupational Health and Safety Act 1983. JUDGMENT 1 The defendant, Gridcon Pty Ltd, has been prosecuted by the WorkCover Authority of New South Wales (Inspector Wong) in relation to an offence against s15(1) of the Occupational Health and Safety Act 1983 ('the Act'). The offence, in respect of which the defendant has entered a plea of guilty, relates to events which occurred on 12 November 1997 at the The Australian Technology Park, Everleigh in Sydney. 2 Gridcon is a suspended ceiling and petition contractor operating in the wall and ceiling lining industry. It has done so for 25 years and is operated by Malcolm James McMartin and his son. 3 The New South Wales Department of Public Works and Services had let a contract to Aluminium Contractors Sales (NSW) Pty Limited which is a roofing contractor, for the installation of a new ceiling system which consisted of placing "Easiboard" ceiling panels, being compressed 50mm thick acoustic panels laid on steel roofing purlins. The Easiboard panels were 1.2m wide by 3.6m in length. They appear from the photographic evidence to be paper covered compressed fibrous material, of a straw-like nature. The panels were laid at right angles to the purlins, the latter supporting the panels at four points: each end and approximately 1m in from each end. Each long edge of a panel was to be supported by a small T-shaped metal section to be placed across the purlins between each sheet and attached to the purlins with screws. 4 The Easiboard panels were stacked on a scissor lift, then lifted thereby to a mezzanine floor from which they were passed by hand up on to the steel ceiling structure for laying. They were stacked at various points on the steel structure and from there were laid. They were approximately positioned upon the purlins by employees of the defendant and pushed into position by employees on the scissor lift. Those employees attached the metal support strips to the purlins after each panel was positioned. 5 Two days before 12 November 1997 the defendant undertook an induction session with its employees which included an explanation of the installation procedures as follows: 01. Easiboard panels laid across purlins with panel ends joining over purlins and sides of panels supported by 80mm x 40mm T-bars. 02. Work to commence at Mezzanine levels where panels and angles can be installed using scaffold from underneath until sufficient area has been laid down to permit work from top side. 03. Only areas where panel edges are supported on all sides are to be used as trafficable areas. 04. Work to proceed with 2 or 3 men at the work edge using safety harness lanyards and life lines hooked up to overhead roof framing. 05. T-bars as panel edge supports are installed from scissor lift in conjunction with the laying of panels. 06. Hand rail is to be installed around access area openings and if a rail is removed during hoisting a safety harness must be worn. 07. Other works are: a) caulking joints of panels b) Glue fixing of 9mm villaboard on top of easiboard laying sheets in opposite direction with staggered joints and limiting work to no closer than 2.4m from work face. e) CSR fibreglass tape and setting compounds. 08. Area below our work areas is to be cordoned off and signs displayed noting hazardous area men working above. 6 The evidence establishes that certain employees were provided with safety harnesses and lanyards by which they were able to be attached to metal braces in the roof structure above the working area for the laying of the Easiboard panels. The evidence of Mr McMartin was that, consistent with paragraphs 3 and 4 of the installation procedures, persons working at or near the edge of the ceiling being laid were required to be and were harnessed. One lanyard was photographed by Inspector Wong in position over the metal braces. 7 On 12 November 1997 Paul Dillon, a specialist wall and flooring fixer, whose primary function was to involve the laying of the villaboard surface over the Easiboard, was engaged stacking Easiboard panels, to be laid by others. He was not harnessed, for his work was not required to take him near the edge of the laid panels. He told Inspector Wong subsequent to the accident, the details of which I shall shortly give, that he was laying panels when a panel upon which he stood, but which was defective, gave way causing him to fall 7.5m to the earthen floor below. He struck a 44-gallon (200 litres) drum on the way down. His injuries included a cracked pelvis, a fractured sacrum and a wound to the top right side of his buttocks, left arm haematoma and severe swelling and bruising of his back. He was off work for approximately 9-10 weeks. 8 The offence involved here relates essentially to the failure to provide for the safety of Mr Dillon who, it does appear, was performing work contrary to the installation procedures. As Mr Phillips submitted for the defendant, nevertheless there is a consequential duty arising under s15(1) to care not only for the obedient employee but also the disobedient. 9 Gridcon has employed as many as 50 employees in 1989 and as few as eight in 1999. The number fluctuates depending on the work available. Gridcon has never been charged with, nor convicted of, an offence under the Occupational Health and Safety Act or related legislation. 10 Mr McMartin deposed: My son and I are the only two shareholders of Gridcon, which is a family company. Gridcon traded well in the late 1980's before the last property slump. It has not made any significant profits since then. In fact, a couple of years ago I was doing well but lost a significant amount of money (over $300,000) on one job. Gridcon made its first profit in four years, of $2,326.90, in the year ending June 1999. The 1999/2000 year should be better than the year before but not significantly so. 11 Gridcon assisted and cooperated with WorkCover in its investigation of the matter and pleaded guilty to the offence as charged at an early stage. 12 Mr McMartin also deposed: I was very upset that this accident happened. I visited Mr Dillon in hospital on a number of occasions. I was in contract with his partner and ensured that his family was not in financial difficulties as a result of the accident by ensuring that his compensation payments were made each week without waiting for the insurer to pay. Despite the embarrassment of this accident to my company and myself, I volunteered the circumstances of the accident at an executive meeting of the Association of Wall and Ceiling Contractors of NSW to assist others. 13 Note that the integrity of the floor panel is not particularly in issue given that 5 persons investigating the accident after its occurrence are demonstrated in the photographic evidence to be standing upon laid sheets. The integrity of each panel might be enhanced somewhat by the use of the metal strip. Between panels they also stand in the vicinity of the edge of an unfloored section without safety harnesses. Conclusions 14 I am satisfied that the system of work laid down by Gridcon for this contract was suitable. I am also satisfied that the employees including Mr Dillon were informed of that work procedure. Had the work procedure continued as it was laid down I consider that not only would the accident which gave rise to the investigation not have occurred but the work would have been undertaken in a suitable way. 15 An issue arises with respect to the gravity of the offence involved in this case and consequently the range in respect of which penalty ought commence to be assessed. Mr Shume has submitted that the offence should be viewed in the mid-range, that it does not have aggravating aspects which could put it into the high range. Mr Phillips, on the other hand, has submitted that it should be not viewed so seriously. This case raises the difficulties to which Gordon v Mijo (NSW) Pty Ltd (unreported, Cullen J, 2 December 1993, Matter No CT93/1002) and WorkCover Authority of NSW (Inspector Hart) v Idofan Pty Limited t/as Kingsland Transport (1995) 59 IR 295 referred, where a small corporate employer is subjected to the same penalty range as a more substantial corporation. If one were to view this, for example, as a mid-range offence, then immediately one would be in the vicinity of a $275,000 penalty. That is instantly recognisable as something entirely inappropriate in a case of this kind. Were one considering penalty in the alternative context of proceedings having been commenced for this offence in the Local Court the range of penalty would be of the order of a maximum of $55,000 with a mid-range in the vicinity of half that amount. Whilst the position is, as Mr Phillips submitted, that as a matter of law the corporate defendants' position must be assessed in the context of the larger maximum, nevertheless as a matter of discretion the court is entitled to take into account all relevant matters including the means of the defendant. To that end the approach taken in Mijo and Idofan can produce a result which accommodates both the requirements of the Act and the justice of the case. 16 In this case I consider that a discount of 25 per cent should be extended for the plea of guilty, the contrition shown by the corporate defendant and the cooperation with WorkCover. Taking into account those features and also the other matters to which I have referred, I would assess penalty at $22,500.00 reduced by discount to $14,850.00. 17 The defendant is convicted and a penalty is imposed accordingly with a moiety to WorkCover. WorkCover shall have its 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.