Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Insp Guillarte) v Genner Constructions Pty Ltd [2000] NSWIRComm 87 PROSECUTION: PARTIES : WorkCover Authority of NSW (Insp Guillarte) DEFENDANT: Genner Constructions Pty Ltd FILE NUMBER: IRC4898&4900 of 1998 CORAM: Kavanagh J CATCHWORDS : As to penalty - prior hearing as to liability - three charges dismissed, two charges found proven - lack of training and instruction proven but a safe system of work in place - abandonment of system of work by worker due to lack of training and instruction - good industrial record of company in inherently dangerous industry - application of s10 Crimes (Sentencing Procedure) Act 1999 - not appropriate - principle of totality applied to penalty for two breaches of the Act. Crimes Act 1900 s556A LEGISLATION CITED : Occupational Health and Safety Act 1983 s15 Crimes (Sentencing Procedure) Act 1999 s10 Crimes Legislation Amendment (Sentencing) Act 1999 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Insp James Swee Ch'ng) (1999) 90 IR 464 CASES CITED : Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) Van Rooy Machinery Pty Limited v WorkCover Authority of NSW (Insp Wolf) [2000] NSWIRComm 48 (published on 21.3.00) Pearce v The Queen (1998) 72 ALJR 1416 HEARING DATES: 04/28/2000 DATE OF JUDGMENT: 06/06/2000 PROSECUTOR: Mr P.M. Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr R.J. Grady of counsel SOLICITORS: Peta Bollinger JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Tues 6 June 2000 IRC4898 of 1998 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR GUILLARTE) v GENNER CONSTRUCTIONS PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 IRC4900 of 1998 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR GUILLARTE) v GENNER CONSTRUCTIONS PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT (As to Penalty) 1 This judgment deals with the issue as to penalty for two breaches of the Occupational Health and Safety Act 1983 ("the Act"). A prior judgment published on 23 February 2000 addressed the issue as to liability on five charges brought against the defendant by the WorkCover Authority. Two of the charges brought under s15(1) of the Act were found proven, the other three were dismissed. 2 The prosecutor, still represented by Mr Skinner of Counsel, submits that the maximum penalty at the time of each of these offences is $550,000. The prosecutor reveals that the defendant has had no prior convictions under the Act. 3 As to the consideration of penalty for the offences proven against this employer, namely a failure to properly train and instruct Mr Ingram, the deceased, as to vehicular access and egress from a worksite, the court in Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Insp James Swee Ch'ng) (1999) 90 IR 464 has recently enunciated the principles the court must have in mind in making such an assessment. The Court stated (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH & S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'. and further said (at 474): It has observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to the consideration of the nature and quality of the offence. The Full Bench gave approval (at 476) to the passage from the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. The Full Bench noted (at 476): The proper approach is first to consider the gravity of the offence viewed objectively. And relevantly (at 476): In the case of an offence under s 15(1) of the OH & S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at p 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant; see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. 4 The prosecutor laid five charges against this defendant. Three charges related to the provision of a system of work and the maintenance of same have been dismissed by the court. The two charges relating to the lack of training and instruction of a worker were found proven. The court has found there was a system of work in place that was a proper system of work related to the vehicle access to and from the worksite but that this established system of work was not complied with by the two workers on site on the day of the accident because of their lack of training and instruction and because the employer's worker did not assume control of the site. As one of the workers on site was an employee of the defendant company the charges were laid under s15 of the Act; the other worker on site was a sub-contractor. 5 As to the gravity of this offence, although the accident led to a most devastating result, the death of a worker, I find the nature and quality of this offence does not fall into that of the most serious of breaches. There was a system of work in place at the worksite and there was on-the-job training and supervision of this company's workers. On the day of the accident the workers on site amended that system of work for the entrance and exit of vehicles. However there is an absolute duty borne by this employer to ensure its worker on site was sufficiently trained and instructed to ensure he did not, with abandon, change an established system of work that, had it been followed, would have provided safe working. The circumstances reveal this as an offence where, with the appropriate training and instruction, the risk to injury could have been avoided. The circumstances reveal a sub- contractor imposed his will over an employee to bring about the risk to safety on this site. The line of authority on this worksite was not determined and so should have been better determined so the defendant company's worker was properly trained and instructed as to procedures if circumstances required a change to the safe system in place. There was no defined policy if circumstances required an alteration to work procedures (in this case because of wind) and no defined line of authority on the worksite. Mr Ingram, the deceased, was therefore not instructed or properly trained as to the entrance and exit of vehicles on to this workstie. 6 As to mitigation of penalty, a number of subjective features are given consideration in the circumstances. The defendant company, represented again by Mr Grady of Counsel, submits it has been working in the industry performing road works for over 20 years employing between seven and twenty persons. The type of road works performed by the defendant company has an inherent element of danger to it in that workmen are always working beside or on busy roadways which carry various degrees of traffic flow. The district in which the defendant company performs most of its work is by the main carriageway south from Sydney, the Hume Highway. There are numerous small rural retreats in the area and some industrial pockets all of which contribute further traffic flow to the pass-through traffic. Simply put, the defendant company works in an industry which could be called inherently dangerous. Its workers are exposed to moving traffic at various speeds. Operating in this industry for a significant number of years, it is relevant in any subjective assessment of the offences proven that the defendant company has no prior convictions. It has a good industrial record and should be assessed as a fine industrial citizen. 7 The defendant company further has reconstructed and refined its already pre-existing system of work. This system is identified now in document form. A kit has been designed which reflects guidelines drawn up for the construction industry. It is known as the "subbie-pack". This kit is adjusted from a module designed to assist small business in the construction industry to systematically manage workplace health and safety. WorkCover staff have co-operated with the company to assist in the design of this kit so it is directed to the defendant company's particular workforce and their safety needs. 8 A line of command has now been drawn up and identified for each contract worked by Genner Constructions Pty Limited. It is now a procedure for every employee to acknowledge site instructions cannot be changed without consultation and consent from a person in authority. The appropriate telephone numbers and mobile numbers of company supervisors are now provided to workers on site. When materials are ordered, the company requires the nomination of the point of entry and delivery for the materials ordered for the worksites. 9 As before the accident, all employees and personnel are required to hold certificates under Occupational Health and Safety guidelines for traffic management. All present employees have had a further induction course carried out by appropriate experts. These courses have also been complemented by particular training programmes related to safety awareness, traffic control, work in confined spaces and construction work safety training. All foremen are now required to carry out site specific occupational health and training instructions with new employees. These employees have already received the general training in occupational health and safety required by Genner Constructions. 10 An occupational health and safety consultant has been retained and is on call to help solve site related concerns when Mr Genner requires advice. A further kit related to supervisor training is also being prepared. The appropriate reference library is now available with all Australian Standards, the Act, WorkCover documents, traffic controllers' manual etc. This library of information is available in the office staff area and there is easy access to same for employees and sub-contractors. 11 I am persuaded this company has undergone a most thorough review of its occupational health and safety procedures and that part of the review directed to supervising and training of workers, where fault has been found, has been most comprehensive. Mr Genner, the managing director of this company and the major shareholder has already given evidence before this court. I am persuaded of his genuine contrition in relation to this matter and also his concern directed towards the family of the deceased. I am assured the family have been given every guidance and assistance in obtaining their appropriate rights arising from a death at work. While there was no plea of guilty entered to the charges the circumstances reveal three serious charges have been dismissed and it is the court's view the matters before it should attract consideration of mitigation as to penalty. 12 Mr Grady further submits on all the facts this is an appropriate matter for the application of s10 of the Crimes Sentencing Procedure Act 1999. This is the provision of a similar nature to s556 of the Crimes Act 1900 which gives a discretion to the court as to the non recording of a criminal conviction. The prosecutor agrees this is the appropriate Act and provision to be considered in this application. A search as to the Savings and Transitional provisions of the Crimes (Sentencing Procedure) Act 1999 states (subject to the regulations): (a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act may be continued and completed under the old legislation as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted, and (b) subject to para (a), anything done under a provision of the old legislation for which there is a corresponding provision of this Act (including anything arising under para (a)) is taken to have been done under the correspondent provision of this Act. The Crimes Legislation Amendment (Sentencing) Act 1999 amended the Crimes Act 1900 and repealed s556A. A search reveals there have been no regulations made affecting s10 of the Crimes (Sentencing Procedure) Act 1999. I find s10 of the Crimes Legislation Amendment (Sentencing) Act 1999 is the appropriate provision for consideration as to its application in these circumstances. 13 Marks J, when examining the similar provision of s556A of the Crimes Act 1900 in WorkCover Authority of New South Wales (Insp Thomson) v Cruden 67 IR 1469 applied the provision and released the defendant on probation, without proceeding to conviction upon terms, because he did not consider it proper to apply a penalty under circumstances where he found the employer was under a duty to properly instruct and train the defendant. Such circumstances do not apply to this case. Also relied upon was the judgment of Hungerford J in Wong v Melinda Group Pty Ltd (1998) 82 IR 118. His Honour found the real and effective culpability for what occurred in that breach lay with a tenant. He found the defendant had been subjected to extenuating circumstances over which it had no direct control and it was, therefore, inexpedient to inflict any punishment on the defendant. He applied the provisions of s556A of the Crimes Act 1900 in dismissing the charge. 14 Hungerford J in Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) [2000] NSWIRComm 48 (published on 21.3.00) recently revisited the application of s556 of the Crimes Act saying (at par 23): . . . the application of s 556A in respect of offences under the Occupational Health and Safety Act has been said to be unusual. The question has been considered on a number of occasions and I refer in that regard to the decision of Fisher CJ in Schultz v Tamworth City Council (1995) 58 IR 221 at 229 where his Honour (stated): The use of s 556A of the Crimes Act, which in the light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed and is not appropriate in the presence of long-standing adverse work practices. And at par 25: The decision in Schultz was considered by Wright J, President, recently in WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Limited (1999) 90 IR 413 at 430-431 where his Honour, . . . expressed the view that the policy approach discussed by the Chief Judge was pertinent and appropriate. And at par 26: A Full Court ( Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101 also considered the application of s556A to offences under the Occupational Health and Safety Act and said: We consider that in serious cases where, as found by her Honour, the risk of injury from an accident was not one difficult to foresee, where the breach could and did result in serious consequences to the health of the injured man, where the risk of injury was preventable and where a safety fence with an isolation device was installed without difficulty after a second inspection, the operation of s 556A of the Crimes Act to such proceedings would seldom be appropriate. 15 The circumstances before this court reveal Genner Constructions had full control of this worksite and had not properly trained or supervised its worker as to the exit and entrance of vehicles from its worksite. The risk of injury in such circumstances was foreseeable and a serious neglect of its absolute duty on the part of the employer. In that sense, it is the court's view it is inappropriate to consider the circumstances as such as to make it appropriate to apply the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999. I reject the application of the Crimes (Sentencing Procedure) Act 1999 in the circumstances. 16 Nonetheless as the court has stated the subjective features of the breaches which the court has outlined are appropriate matters to be taken into account in mitigation of penalty in these circumstances. 17 In summons No IRC4898 of 1998 I find the defendant guilty. In summons No IRC4900 of 1998 I find the defendant guilty. 18 In summons No IRC4898 of 1998 I fine the defendant $40,000. In summons No IRC4890 of 1998 I fine the defendant $40,000. 19 As the two charges arise out of the same incident, it is appropriate to apply the principles as enunciated recently, in Pearce v The Queen (1998) 72 ALJR 1416 at 1424 where the High Court discussed the application of the principle of totality, but in the context of an offender facing two charges arising out of a single episode. It said: A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. Woods J, in a recent discussion of this decision in Judicial Officers Bulletin , Volume 11, No 5 (June 1999), describes the operation of the principle thus: When an offender stands for sentence in relation to several offences, it will invariably be necessary to pay regard to the principle of totality. 20 In application of the principle of totality I fine the defendant $65,000. 21 The defendant is to pay the prosecutor's costs to be agreed or assessed with a moiety to the WorkCover Authority. 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.