Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIRComm 16

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIRComm 16

PROSECUTOR: Inspector Dieter Franke PARTIES: DEFENDANT: Vin Heffernan Pty Ltd.

FILE NUMBER(S): IRC 6333 of 2003

CORAM: Haylen J

Occupational Health and Safety Act 2000 - s 8(1), s 28 - professional tree faller fatally injured by tree he had left substantially cut and ready to fall - work requirement of training and accreditation by body external to the defendant - system of inspections by State Forests officers and accreditation body - defendant engages consultant to produce and maintain safety manual and conduct toolbox meetings - system of training and accreditation relied upon by defendant as part of safe system of work - evidence discloses that work rules and industry practices endorsed by training not followed by two members of the three membe work team - gaps in defendant's written system - some practices "unwritten" - risk foreseeable - defendant to ensure workplace safety - system should recognise possibility of employees not adhering to workplace rules - inadequate measures to address such possibility - breach established - defendant relies on s 28 defences - evidentiary burden not satisfied - defences not made out CATCHWORDS:

Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Inspector Haynes v CI&D Manufacturing Pty Ltd & ors (1995) 60 IR 149 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Kirkby v A & M I Hansen Pty Ltd (1994) 55 IR 40 at 50 O'Sullivan v The Crown in Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 Riley v Australian Grader Hire Pty Ltd [2001] 103 IR 143 WorkCover Authority v Main Lighting (1995) 100 IR 248 at 257 CASES CITED: WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 at [72] and [73] WorkCover Authority (Inspector) Egan v ATCO Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] 100 IR 64 WorkCover Authority of New South Wales (Inspector Keelty) v Police Service of New South Wales (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001)] 105 IR 81 WorkCover Authority (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [101]