Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector James v Flame-Cut Pty Ltd [2002] NSWIRComm 184 PROSECUTOR Inspector Ronald Wayne James WorkCover Authority of New South Wales PARTIES : DEFENDANT Flame-Cut Pty Ltd FILE NUMBER: IRC 6766 of 2001 CORAM: Marks J CATCHWORDS : Occupational health and safety - Prosecution - Held serious offence - Consideration of mitigating factors including early plea of guilty - Fine imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) HEARING DATES: 07/26/2002 DATE OF JUDGMENT: 08/14/2002 PROSECUTOR Ms L M McManus of Counsel SOLICITORS Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Mr I H Wallach of Counsel SOLICITORS Clayton Utz JUDGMENT: INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 14 August 2002 Matter No IRC 6766 of 2001 INSPECTOR RONALD WAYNE JAMES v FLAME-CUT PTY LTD Prosecution pursuant to s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 The defendant Flame-Cut Pty Ltd has pleaded guilty to a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act") as particularised in proceedings for breach instituted by the prosecutor Inspector James of the WorkCover Authority of New South Wales. 2 The parties tendered into evidence an agreed statement of facts which is in the following terms: 1. At all material times the Prosecutor was an Inspector appointed under Division 1 of Part 5 and empowered by Section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in this matter. 2. At all material times the Defendant carried on the business of metal product manufacturing and had a principal place of business at 68 Elizabeth Street, Wetherill Park in the State of New South Wales ( premises ). 3. At all material times the Defendant employed Gabriel Edwin Bruno ( Bruno ) as a crane driver at the premises. 4. On 1 May 2000 Bruno accessed the top of a steel plate which was placed in a steel plate storage rack ( storage rack ) by way of a ladder. Bruno was in the process of attaching lifting equipment (or plate grabs) to the top of the steel plate to allow the plate to be hooked up to the overhead travelling crane ( crane ). Whilst walking on top of the steel plate, Bruno fell approximately 3m to the concrete floor below. Bruno received strain and sprain injuries to his lower back and left knee and ankle and sustained serious longterm injuries to his back. As a result of these injuries, Bruno spent a number of months off work, and returned to work on light duties. 5. Bruno had been working as a crane driver for the Defendant for approximately 10 years and 8 months. As part of Bruno's normal duties, he would access the top of the steel plate in the rack approximately 10 times a day. 6. On 9 June 2000 the Prosecutor attended the premises and observed the following: 6.1 A factory with a number of cutting machines and 4 steel plate storage racks. 6.2 Storage rack 1 was located adjacent to the front office, storage rack 2 was located east of the side rollerdoor, storage rack 3 was located west of the side rollerdoor, and storage rack 4 was located in the south–east corner of the premises. 6.3 Stephen Jenkins, the Manager, and Biskup identified storage rack 2, on the east side of the rollerdoor, as the stack from which Bruno had fallen. 6.4 The storage rack measured 3.1m in height from the top of the metal sheet to the floor and this measurement included the base height of the rack. The storage rack measured approximately 6m long and 6m wide. 6.5 Placed in the storage rack were a number of metal steel plates measuring approximately 2.4m high, 6m long and 30mm thick. A number of the steel plates had some areas removed and all steel plates were leaning at an angle either against another steel plate or against a vertical post of the storage rack. 6.6 Adjacent to each of the storage racks were aluminium stepladders or tube metal stepladders. 6.7 A number of clamping devices were observed around the base of the storage racks. 7. On 9 June 2000 the Prosecutor issued an improvement notice to the Defendant, requiring the Defendant to implement a safe system of work for the placement, removal and access to the steel plate storage racking. On 25 July 2000 the Prosecutor visited the premises to follow up on the improvement notice. The Prosecutor observed a newly painted yellow stand with a number of access ladders to platforms, where the crane operators could access the top of the steel plate to hook up the grabs. 8. As a result of the Prosecutor's observations and investigation, the Prosecutor found as follows: 8.1 It was common practice for employees of the Defendant to access the top of the storage rack via a ladder and then to walk along the edges of one or more steel plates. 8.2 The system of hooking up the sheet plate was performed by the individual crane drivers or sometimes with the assistance of another employee. The individual would sometimes have to carry the remote control for the crane and a wedge to separate the steel plates from each other, whilst performing the task. 8.3 The Defendant had been conducting operations at the premises for 16 years and during that time the procedure employed by Bruno to access the steel plates had been normal procedure for accessing the top of the steel plates. 8.4 Although there was no formal instruction or training given to employees on the risks of accessing and removing the steel plates in the storage rack, the employees were provided with on the job training and instruction by fellow employees in the manner in which to access and attach the lifting equipment. 8.5 There was no proper fall protection provided to employees accessing the top of the steel plates. 8.6 Subsequent to the accident, the Defendant installed 4 new storage racks with designated access loaders and platforms to walk along to enable the crane operators to perform the task of attaching the lifting equipment to the steel plates. 9. On 1 May 2000 at the premises located at 68 Elizabeth Street, Wetherill Park in the State of New South Wales, the Defendant failed to ensure the health, safety and welfare of its employees at work, in particular, Gabriel Edwin Bruno. Particulars of the Defendant's failure are as follows: 9.1 Failure to provide a safe system of work for the accessing and removal of steel plates located in a steel plate storage rack at the premises. 9.2 Failure to ensure that employees received adequate instructions and training in the safe accessing and removal of sheet plates from the storage rack. 9.3 Failure to provide adequate fall protection for employees accessing the top of the steel plates at heights greater than 1.8m. 3 In addition to the agreed statement of facts an affidavit of Stephen Jenkins the Manager of the defendant was tendered into evidence. The defendant is a family owned business operating since 1971. It currently employs twenty four full time staff and two part time staff. The defendant has not previously been charged with or convicted of a breach of the Act. 4 The defendant, had, at all relevant times, a safety induction programme and a formal safety training procedure. Since the accident the defendant has implemented a number of changes to the storage system and the storage facility which are summarised, albeit briefly, in par 8.6 of the agreed statement of facts. This work was undertaken at considerable cost to the company. In addition the defendant has introduced a fall arrest system on the overhead crane access ladders, defined clear walkways and safety zones by marking them on the floor of the workplace, introduced safety barriers around scrap material cutting areas and introduced light weight air tools to assist employees in the cleaning up process. 5 It was common ground between the prosecutor and the defendant that the defendant cooperated fully with the WorkCover Authority of New South Wales in connection with this investigation of the accident, undertook remedial action in a prompt and appropriate manner and expressed contrition for what had occurred. 6 In addition, I was informed without objection from the prosecutor by Mr Wallach of counsel who appeared for the defendant that the manner in which the work was performed prior to the accident represented industry practice. This does not, of course, excuse the breach of the Act by the defendant nor, in theory, should it involve any mitigation of penalty. However, it points to the necessity to ensure that there is some general deterrent effect of any penalty imposed. More importantly, it is hoped that the WorkCover Authority of New South Wales will take a proactive role in terms of other employers in this industry. 7 In determining penalty it is first necessary to have regard to the objective seriousness of the offence. I regard the offence as a serious one. The method of stacking these materials and retrieving them involved obvious risks to the safety of employees. The fact that an accident had not earlier occurred seems to be a matter of good luck rather than good safety management. 8 In approaching the question of penalty I take into account the need for general deterrence to which I have earlier referred, as well as the deterrent effect on this defendant. In this regard I note that the defendant has taken positive and proactive steps to remove this risk of injury from its workplace and I note also in this context its overall commitment to health and safety matters. I also have regard to the mitigating features to which I have earlier referred namely the cooperation of the defendant with the WorkCover Authority of New South Wales, its expression of contrition and the remedial steps taken by it. However I must also take into account the need for general deterrence and the serious nature of the breach. In this latter regard I take into account the fact that there was an obvious and foreseeable risk to the safety of employees which could easily have been avoided with requisite foresight. 9 The defendant introduced into evidence a detailed balance sheet as at 31 December 2001 showing income and expenditure and assets and liabilities. These reveal a trading loss as at that date. However there was, in my opinion, insufficient evidence to sustain a claim that the financial circumstances of the defendant should be taken into account in the imposition of any penalty and Mr Wallach did not make any such submission. 10 The defendant entered a plea of guilty at an early stage and is entitled to a discount accordingly. The maximum penalty is $550,000. Having regard to the defendant's previous clear record and all of the matters to which I have referred I would assess an appropriate penalty as being $55,000 to which a discount of 25 percent should be applied leaving a net penalty of $41,250. 11 The prosecutor sought an order for costs and a moiety which was not opposed. ORDERS 12 I make the following orders: 1. The defendant is found guilty and convicted of the offence with which it has been charged. 2. The defendant is fined the sum of $41,250 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the prosecutor's costs as assessed by the Court in default of agreement. _____________ 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.