WorkCover Authority of NSW (Insp Richey) v Rail Services Australia [2001] NSWIRComm 60

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW (Insp Richey) v Rail Services Australia [2001] NSWIRComm 60 PROSECUTOR: WorkCover Authority of NSW (Insp Richey) PARTIES : DEFENDANT: Rail Services Australia FILE NUMBER: IRC4643 of 1999 CORAM: Kavanagh J CATCHWORDS : As to penalty for s15(1) breach of the Act - defined as a failure to properly audit equipment which employee required to use - plea of guilty entered - employer assumes responsibility for worker using another employer's site and equipment - employer's obligation similar to that of a labour hire firm - refined procedures required when new corporate entity assumes responsibilities in break-up of an organisation - consideration of subjective features in mitigation as to penalty and the application of the principle of consistency rather than parity to penalty LEGISLATION CITED : Occupational Health and Safety Act 1983 s15 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Haynes v James Glass & Aluminium Pty Ltd (unreported, CT772-775 of 1991, 20 May 1994) WorkCover Authority of New South Wales (Inspector Richey) v State Rail Authority of NSW [2000] NSWIRComm 205 Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 CASES CITED : Inspector Tyler v Sydney Electricity (1993) 47 IR 1 R v Thomson, R v Houlton (1999-2000) 49 NSWLR 383 Capral Aluminium Ltd v WorkCover Authority of NSW (Insp May-Ramsay) (2000) 99 IR 29 R v Howland (1999) 104 ACrimR 273 WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported decision of Maidment J, CT93/1062, 26 November 1993) Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm239 HEARING DATES: 02/19/2001 DATE OF JUDGMENT: 04/11/2001