Industrial Relations Commission of New South Wales in Court Session CITATION : WCA of NSW v Rigby Jones Engineering Pty Ltd [2000] NSWIRComm 237 revised - 23/11/2000 Prosecution: WorkCover Authority of New South Wales PARTIES : Defendant: Rigby Jones Engineering Pty Ltd FILE NUMBER: IRC4093-4095 of 1999 CORAM: Maidment J CATCHWORDS : Failure to maintain safe system of work - failure to provide supervision Occupational Health and Safety Act 1983 LEGISLATION CITED : Industrial Relations Commission Rules 1996 Industrial Relations Act 1996 Supreme Court Act CASES CITED : Ridge Consolidated P/L v WorkCover Authority of NSW (unreported, IRC1168 of 2000) HEARING DATES: 06/01/2000; 06/02/2000 DATE OF JUDGMENT: 11/23/2000 Prosecutor: Mr P Skinner of counsel Solicitor: Mr J Lucas WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr G Galluzzo of counsel Solicitor: Mr S Ingate Ingate & Associates JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MAIDMENT J DATE: 23 NOVEMBER 2000 Matter No.IRC99/4093 WorkCover Authority of New South Wales (Inspector Ch'ng) v Rigby Jones Engineering Pty Ltd. Prosecution under s15(1) of the Occupational Health & Safety Act 1983. Matter No.IRC99/4094 WorkCover Authority of New South Wales (Inspector Ch'ng) v Rigby Jones Engineering Pty Ltd. Prosecution under s15(1) of the Occupational Health & Safety Act 1983. Matter No.IRC99/4095 WorkCover Authority of New South Wales (Inspector Ch'ng) v Rigby Jones Engineering Pty Ltd. Prosecution under s15(1) of the Occupational Health & Safety Act 1983. JUDGMENT 1 On 11 August, 1997 Gverino Trdoslavic was severely injured at his place of work when he was pinned to the ground by a 1.3 tonne steel jig which fell whilst being lifted by a mobile crane being operated by Raymond Leslie Jones. Mr Trdoslavic died on 3 October 1997 as a result of subsequent complications. 2 Their employer, Rigby Jones Engineering Pty Ltd ("Rigby Jones"), contests three prosecutions under s.15(1) of the Occupational Health & Safety Act 1983 which arise from the facts surrounding the accident. 3 Mr Skinner of counsel represented WorkCover Authority of NSW ("WCA"), Mr Galluzzo of counsel appeared for Rigby Jones. THE SUMMONSES 4 Subsequent to the decision in these matters having been reserved written submissions were filed on behalf of Rigby Jones in which it was submitted that the summonses are invalid and should be dismissed. 5 It appears that each summons was signed "E. Watterson for the Industrial Registrar". 6 The contentions are that s.165 of the Industrial Relations Act 1996 was not complied with in that the Industrial Registrar did not issue the summonses and that he had failed to give any consideration as to whether or not the applications for summonses and the requisite documents had been properly filed pursuant to rr.219 & 220 of the Industrial Relations Commission Rules 1996. 7 Additionally it was argued that s.170(3) of the Industrial Relations Act 1996 does not apply to criminal proceedings as it has been taken from s.81 (1)(a) of the Supreme Court Act , a section which only applies in respect of civil proceedings. In this regard I am bound by the full bench decision in Ridge Consolidated P/L v WorkCover Authority of NSW (unreported; IRC 1168 of 2000; 18 August 2000), in which it was held (at para 37) that s.170(3) applies to WCA prosecutions brought in this Court. Although the particular argument advanced in these proceedings does not appear to have been considered in Ridge I am nonetheless bound by the decision. 8 Section 170(3) provides: If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. 9 On the authority of Ridge and as s.170(3) has application I reach the view that the matter is properly before the Court and the jurisdictional challenge ought be dismissed. THE MERITS 10 An agreed statement of facts was tendered along with documentary material including statements taken from persons associated with the events. During WCA's case evidence was taken from Senior WCA Inspector James Ch'ng Seng; Raymond Leslie Jones; Kenneth Case, a retired WCA Inspector and Rex Eggins who had been Rigby Jones Factory Supervisor. Stephen Anthony Bell, Rigby Jones Contracts Manager, gave evidence during the defence case. 11 No issue as to credibility arises. 12 The facts are essentially not controversial. I find as follows. 13 Mr Trdoslavic had been employed by Rigby Jones for about 21 years and had been the holder of a Crane Chaser's Certificate of Competency and an Overhead Travelling Crane Driver's Certificate since March 1976. Mr Jones had been employed by Rigby Jones for about 20 years and had held Certificates of Competency as both a mobile crane operator and as a crane chaser for 17 years. 14 The jig was oblong and was about 7 metres x 1.2 metres and 200mm thick. Several angle iron brackets had been tack welded to one face and the jig had been lying with that face down, the brackets keeping the face off the ground. 15 Mr Eggins, who has no crane chasing certificate, had asked Mr Trdoslavic to organise with Mr Jones to move the jig to another location in the yard using the mobile crane. That crane was appropriate to the task. As had been anticipated by Mr Eggins Mr Trdoslavic performed the crane chasing function whilst Mr Jones operated the crane. 16 Mr Trdoslavic slung the load whilst Mr Jones was in the cabin of the crane. Two hooked chain slings of equal length which were attached to the small hook at the end of the crane jib were used to sling the load. Mr Trdoslavic hooked the end of one chain to a square cut out hole near a corner of the upper surface of the jig, he slung and hooked the other end around an angle iron bracket which was welded to the underside and roughly diagonally opposite the cut out hole. 17 Neither the cut out hole nor the bracket was intended for the purpose of slinging the jig. 18 When the load was slung Mr Jones instructed Mr Trdoslavic to stand clear, which he did, Mr Jones then commenced the lift. As the chain between the jib and the bracket end of the jig was shortened as a consequence of it being hooked around the bracket that end lifted first. 19 As he commenced the lift Mr Jones instructed Mr Trdoslavic to stand clear. Whilst the cut out hole end was on the ground and the other had been lifted such that the jig was moving towards the vertical the load slewed towards the truck cabin, Mr Trdoslavic moved to arrest its swing, Mr Jones called "just leave it", the jig hit the side of the crane, the bracket weld parted and the jig fell on Mr Trdoslavic. 20 The allegations as particularised are that Rigby Jones: failed to provide and maintain systems of work for the lifting of metal jigs that were safe and without risk to health. In particular it failed to ensure that the system of work used for lifting metal jigs was safe and without risks; failed to ensure that the mobile crane used was appropriate to perform the task of lifting the metal jigs so as to ensure safety of employees; failed to ensure that appropriate and safe lifting points were used to lift the steel plate jigs and in particular failed to ensure that employees did not attach the lifting chain around steel angle tack welded on the steel plate jig during lifting operations as it was not designed to bear the weight of the steel plate being lifted.(99/4093) failed to provide such instruction and training as may be necessary to ensure the health and safety at work of its employees. In particular failed to ensure that its employees were aware of the risks posed in the system of work utilised to lift the metal jigs; failed to ensure that its employees were adequately instructed and trained as to ensure their safety whilst carrying out lifting work and in particular the lifting of metal jigs with a non slew mobile crane.(99/4094) failed to provide such supervision as may be necessary to ensure the health and safety at work of its employees. In particular it failed to provide such supervision that would have ensured the safety of its employees engaged in lifting of steel plate jigs by means of a non slew mobile crane; failed to adequately supervise its employees so as to ensure that appropriate and safe lifting points were used on the steel plate jig to be lifted; failed to ensure that the steel angle tack welded on the steel plate jigs and which was not designed, as a lifting point was not used as an anchor point for the lifting chains.(99/4095) 21 The evidence established that the system of work adopted by Rigby Jones in respect of lifts in the yard was to require that the lift be performed by the mobile crane and that both a certificated mobile crane driver operator and a certificated crane chaser attend to the task 22 My understanding of the evidence is that such lifts required the crane chaser to sling the load whilst the crane driver was in the cabin and able to adjust the tension on the lifting chains as necessary to the slinging process. The method of slinging was to be that chosen by the crane chaser who was expected, in accordance with his training, to select equipment and a method of slinging suitable to the particular lift being performed. Upon the load being ready to lift the onus fell upon the crane driver to apply sufficient tension upon the lifting chains to establish that the load was stable, once that had been established the lift would be completed and the crane would transport the load to its destination. 23 Rigby Jones was entitled to expect that Mr Trdoslavic would sling the load safely in accordance with his training and that Mr Jones would not commence the lift if he had any doubt that the slinging was safe and appropriate. 24 Mr Skinner submits that Mr Trdoslavic had been unaware that the angle iron had only been tack welded to the jig and that it was unsuitable to used as a lifting lug. However the evidence is that Mr Trdoslavic had been employed by Rigby Jones for some 28 years and was a good general hand whose work included the cutting and welding of steel. The general practice was to tack weld angle iron to jigs as markers to assist in the fabrication process. There is no suggestion in the evidence that Mr Trdoslavic was unaware of the purpose and method of attaching brackets to jigs. The brackets do not resemble lifting lugs if for no other reason that they do not have the eyes used for attaching hooks. In this particular case the brackets were on the underside of the jig whereas lifting lugs are located on the upper side of a load. 25 I am unable to reach the inference that Mr Trdoslavic was unaware that the angle iron had only been tack welded to the jig and that it was unsuitable to used as a lifting lug. The contrary seems to me to be more likely as such jigs are commonplace and an employee of Mr Trdoslavic's experience would be likely to be aware of the purpose of the angle iron and the mode of welding it to the plate. SYSTEM OF WORK (IRC 4093/99) 26 Mr Galluzzo submitted that the system of work adopted by Rigby Jones, namely the requirement that two certificated employees be involved, was safe. He also contended that, on the day in question, the system was maintained. The essence of the submission was that the system required that two qualified employees work as a pair, as happened on the day in question, and that, as they have certificates of competency, the system is safe. 27 He also contended that, as Mr Jones was the senior person, he was there to supervise. I accept this submission to the extent that, having commenced lifting the load, Mr Jones was effectively in charge of it, however, at the point of slinging the load on the day in question the system did not require Mr Jones to approve the method of slinging adopted by Mr Trdoslavic. 28 It is my view that the system was not safe in that it did not require consultation between the crane driver and the crane chaser as to the method of slinging the load, nor did the crane driver have the authority to supervise the work of the crane chaser. He, of course, could refuse to lift a load which he considered to have been inappropriately slung, however, as the system did not require him to either consult with the crane chaser or inspect the method of slinging, he might be unaware of any deficiency in the slinging of a lift. That would appear to have been the case in the present matter. 29 The fact that Mr Trdoslavic was qualified to sling such a load and was employed to sling it does not, in my view, constitute a system of work that was necessarily safe. 30 It follows that I find Rigby Jones guilty of the offence particularised in IRC99/4093. INSTRUCTION & TRAINING (IRC4094/99) 31 The evidence is that each of the two employees were certificated as being competent crane operators and chasers, each had significant experience. Mr Skinner submits that instructions specific to slinging jigs should have been given in order to ensure that the angle iron attachments not be used as anchor points. This submission overlooks the training and experience of those certified as being competent crane drivers and chasers. Upon consideration of the vast range of loads which such employees are required to cope with it becomes plain that there is nothing particularly special or unusual about the jig which was being lifted. 32 Retired Inspector Chase gave evidence that experienced and certificated crane drivers and chasers should have been able to assess an appropriate method of slinging the jig. 33 The evidence of Mr Bell was that the angle iron "doesn't even look like a lifting lug" and that additionally a lifting lug would be found on top of the plate and not underneath it. This evidence is consistent with that of Mr Chase although somewhat more emphatic. 34 Mr Bell, in describing the jig, said; "It looks like a table top; it would be quite an easy load to sling and lift". Mr Bell is a boilermaker/welder who holds certificates of competency as a crane chaser, fork lift operator and as an overhead travelling crane operator. 35 In my view this prosecution is not made out as it has not been shown that this lift was such that some additional instruction and training beyond that necessary to the acquisition of a certificate of competency as a crane chaser coupled with some 20 years experience in the fabrication methods of Rigby Jones should have been provided to Mr Trdoslavic by Rigby Jones in order that he might know how to safely sling the jig. 36 Accordingly matter IRC99/4094 is dismissed. SUPERVISION (IRC4095/99) 37 Mr Galluzzo contended that ample supervision was provided as Mr Jones, the senior employee, was in a position to supervise Mr Trdoslavic and, in any event, as both employees were certificated as competent for the task supervision was not required. 38 Unfortunately the fact is that no formal arrangements were in place to ensure that Mr Jones exercised a supervisory function regarding the slinging of loads which he was to lift. In the subject circumstances no supervision of the slinging was effected and the fact that Mr Trdoslavic held a certificate of compentency did not, in my view, absolve Rigby Jones from bringing to bear appropriate supervision to ensure that he performed his work safely. 39 It is no answer as I see it to merely rely upon the fact that Mr Trdoslavic was certificated as competent for the task, almost all employees require some degree of supervision and it is a requirement of s.15(2)(c ) that an employer provide such supervision as may be necessary to ensure the safety at work of his employees. Although this matter is now being examined in retrospect it is plain that Mr Trdoslavic required, in performing his fatal task, appropriate supervision which was not forthcoming. 40 Accordingly I convict Rigby Jones of this offence. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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