Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Alwyn Piggott v CSR Emoleum Services Pty Ltd [2003] NSWIRComm 282 PROSECUTOR: Inspector Piggott PARTIES : DEFENDANT: CSR Emoleum Services Pty Ltd. FILE NUMBER: IRC 1711 of of 2001 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 1983 - s 16(1) - defendant wholly owned subsidiary of a partnership entity - secondment arrangement for defendant to provide employees for the purposes of the partnership venture - defendant employer of persons provided to partnership - nature of the defendant's undertaking - whether defendant's undertaking no more than provision of labour to partnership - consideration of entire partnership agreement shows defendant intertwined with business of partnership - undertaking of defendant included management of contract to refurbish partnership plant and responsibility for occupational health and safety at the plant during refurbishment probject - "place of work" - defendant's place of work held to be the partnership's plant - defendant's failure to maintain a safe system of work in operating a conveyor system - conveyor left unguarded while operational during process to clear blockages - failure to isolate electric motors running conveyor during clearance of blockage - failure to provide appropriate and effective supervision of clearing task - s 53 defence not made out - offence proved Carrington Slipways Pty Ltd v Callaghan (1995) 11 IR 467 at 470 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 455 - 456 Bulding Workers Industrial Union of Australia and ors v Odco Pty Ltd (1991) 29 FCR 104 Inspector Clark v W N Meinhardt & Partners Pty Ltd NSWIRComm 30 June 1992 Inspector Page v Woolworths Ltd, unreported, Peterson J CT93/1044, 9 September 1994 Mainbrace Contructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 CASES CITED : WorkCover Authority of NSW (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 at [66] et seq WorkCover Authority of New South Wales (Inspector Farrell) v Ross Morrison [2001] NSWIRComm 325 WorkCover Authority of New South Wales (Inspector Keenan) v TAFE (1999) 92 IR 251 at 257 WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 WorkCover Authority of New South Wales (Inspector Reed) v CSR Limited t/as CSR Wood Panels (2001) 109 IR 275 at 289. WorkCover Authority of NSW (Inspector Robins) v Labour Co-Operative Ltd (No 1) (2001) NSWIRComm 223, (2001) 108 IR 283 WorkCover Authority v Boral - Montoro Pty Ltd (unreported, 19 December 1997, Matter No CT 1218/996) HEARING DATES: 06/02/2003; 06/03/2003; 06/04/2003; 06/05/2003; 06/06/2003; 06/10/2003; 06/13/2003 DATE OF JUDGMENT: 09/04/2003 PROSECUTOR: Mr S Crawshaw SC with Ms Backman of counsel SOLICITOR: Mr G Diggins WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr J N Gleeson QC with Mr Shume of counsel SOLICITOR: Mr T Plummer Moray & Agnew JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 4 September 2003 Matter No. IRC 1711 of 2001 Inspector Alwyn Piggott v CSR Emoleum Services Pty Ltd Prosecution under s 16(1) of Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 282 1 In 1996, CSR Limited and Vacuum Oil Co. Pty Ltd formed a "Bituminous Road Surfacing Partnership" and made arrangements for the work of the partnership to be performed by CSR Emoleum Services Pty Ltd, the defendant in the present proceedings. One of the locations at which the partnership operated in March 1999 was a batching plant at Unwin Street, Rosehill. The partnership had agreed to carry on the business under the registered business names of CSR Emoleum or CSR Emoleum Road Services. In 1999, CSR Emoleum Road Services, the partnership business, contracted with JCS Engineering Fabrications Pty Ltd (JCS) for the upgrade of the batching plant at Rosehill. This prosecution under s 16(1) of the Occupational Health and Safety Act 1983 revolves around the circumstances leading to the death of a worker during the upgrading project at the plant. As the case was argued, the defendant focused attention on the contractual arrangements between the partnership and the defendant, and emphasised the limited nature of the role and undertaking of the defendant in supplying labour to the partnership for the upgrading project. 2 On 5 March 1999, in the course of clearing a blockage in a new section of a conveyor system which had recently been built at the plant, an employee of a contractor engaged on the project was drawn into an uncovered section of the conveyor and fatally injured when the conveyor unexpectedly started in circumstances where work had commenced on an adjoining conveyor. Inspector Piggott of the WorkCover Authority brought a prosecution against the defendant CSR Emoleum Services Pty Ltd (CSRES) under s 16(1) of the Act alleging that the defendant had failed to ensure that persons not in its employment and in particular, Mr Glen Nolan, were not exposed to risk to their health or safety arising from the conduct of its undertaking at its place of work. The particulars of the charge were as follows: (a) the defendant at all material times provided its employees for the operation of the CSR Emoleum Road Services Plant at Rosehill; (b) the defendant failed to provide or maintain systems of work, to wit, systems in the operation of conveyor systems to ensure the health and safety of persons not in its employment at its place of work; (c) the defendant failed to ensure that the dangerous moving parts of the conveyors were securely guarded; (d) the defendant failed to provide such supervision as may be necessary of persons not in its employment to ensure the health and safety of persons working upon the conveyor system; (e) the defendant failed to ensure that the conveyors of the said plant were isolated when covers had been removed from the conveyor; (f) as a result of the said failures, Glen Nolan was placed at risk of injury and sustained fatal injuries. THE PARTNERSHIP ARRANGEMENTS 3 In 1996, CSR Ltd and Vacuum Oil Company Pty Ltd entered into a "Bituminous Road Servicing Partnership". The partnership came to carry on business under the registered business name of CSR Emoleum Road Services Pty Ltd. As will be seen, the evidence in the present case demonstrates the activities of CSR Emoleum Road Services as the vehicle for the partnership, and it was this configuration of the partnership which entered into an agreement with JCS for the upgrading of the batching plant at Rosehill. In 1996, both partnership entities were making asphalt, selling and placing spray seal and asphalt in most states of Australia, and they wished to combine their resources. Each company agreed to close their existing asphalt and spray seal business and enter into the partnership on terms and conditions set out in the partnership agreement. All their current assets were to be sold to the partnership. 4 The partnership was to be managed by a committee with each partner appointing three members to that body. The committee was to have sole, exclusive, full and complete power and authority to give "all approvals and to make all decisions and determinations" by the partners. The Gate 1, Unwin Street Granville site (known as Rosehill) was with others nominated in a schedule to be licensed to the partnership. 5 Staffing of the partnership was to be achieved by using people nominated from the existing employees of each partner. The partnership was to decide which of the nominated employees would best satisfy the requirements of the partnership business. It was also part of the partnership arrangement that there would be a secondment agreement. Until the secondment agreement was effective, the partners were to second or procure the secondment to the partnership of persons referred to as "selected employees", and that secondment was to take place on terms and conditions as contained in the secondment agreement. Importantly, the partners had to "procure that CSR Emoleum Services" would quickly execute the secondment agreement, and "procure" that CSRES would issue to each selected employee a letter in terms which were set out in a schedule, for salary and wages employees, under which CSRES would offer those employees employment from 1 August 1996. That employment was to be on the same terms, or substantially the same terms, as the employees' existing terms and conditions as provided by either of the partners. Each selected employee who accepted this offer was referred to as a "transferring employee". Those who were not transferring were to be considered for redundancy. Transferring employees were paid out their entitlements or were able to transfer their leave entitlements to CSRES: service with the previous employer was to be recognised by CSRES. 6 Under the partnership agreement, each partner indemnified CSRES against all liabilities in respect of employee entitlements, leave entitlements and superannuation entitlements of that partner's transferring employees due as at 1 August 1996, as well as for employees who were not transferring employees. CSRES also indemnified each partner against all liabilities in respect of the same matters falling due after 1 August 1996. Arrangements were also made for transferring employees to be offered membership of an alternative superannuation fund and requiring CSRES to establish a complying fund. Transferring employees could transfer their existing entitlements in previous funds to this new fund, and the agreement also required that CSRES would apply to become a participating employer in each partner's funds. 7 CSR Limited was also "to procure" that a nominee of Vacuum Oil Company Pty Ltd would be a director of CSRES at all times unless Vacuum declined to nominate a person. There were also extensive provisions for the partners directly or through associated companies to offer the supply of services to the partnership. 8 A schedule to the agreement set out the terms of a letter of offer to be made to those employees of each partner, offering them employment with CSRES, the defendant. The letter opened by drawing attention to the fact that a wholly owned subsidiary of CSR Limited would be formed to employ persons who would provide services to the joint venture. That company was nominated as being CSRES and the offer of employment with CSRES was to commence on 1 August 1996 and, by arrangement with the current employer, employees were to provide services to CSRES from 1 August 1996. Those offered employment were required to become members of the CSR Emoleum Superannuation Fund under terms that were designed to meet the company's obligations under the "Superannuation Guarantee Charge Legislation". Aside from making arrangements as earlier detailed in relation to a transferring of certain leave entitlements, the offer stated that CSR Emoleum Services would have employment policies and procedures in place from time to time. The employment was terminable at any time by an employee and CSRES was permitted to terminate employment immediately by paying a month's salary in lieu of notice. In accepting employment with CSRES, employees were required to sign a notice of resignation addressed to either CSR Readymix Roads Group or Emoleum (Aust). There was a more truncated version of this letter of offer which was to be used in employing wages employees. 9 A further schedule to the partnership agreement was a document entitled "Secondment Agreement". The recitals recorded that CSR and Vacuum were partners in the partnership and that the partnership was formed by the partners to carry on the partnership business. It is also recorded that the "seconder", which was defined to be CSRES, "employs the employees". It was said that, at the partners' request, CSRES had agreed to provide the services of the employees to the partners for the purposes of the partnership business. 10 Under the heading "Secondment", the following was provided: 1.2 While the Seconder retains the right and power to direct the employees in the performance of their work, it is acknowledged by the parties that the Partnership Committee will be responsible for the day to day management of the Partnership Business and to that extent shall have the authority to instruct and direct the Employees in the performance of their work for the Partnership Business. 1.3 The Seconder will accordingly direct the employees to work in accordance with the lawful instructions and directions of the Partnership Committee for the purposes of the Partnership Business. 11 Clause 2 of the agreement dealt with the employer/employee relationship and acknowledged that the employees were at all times during the term of the agreement to remain employees of the seconder, and nothing in the agreement would constitute or deem the employees to be employees of the partners or either of them, and nothing else in the agreement was to be construed as creating an employee relationship between any of the employees and the partners or either of them. Under this heading, clause 2.2 provided: The Seconder will at all times during the Term be responsible for the acts and omissions of the Employees and for all payments to the Employees in respect of wages and salary, annual leave, sick leave, long service leave, superannuation, workers compensation, accident, sickness and life insurance and all other benefits payable to the Employees in respect of their employment. Under Clause 3, the partners were to pay "the fee" to the Seconder during the term, which was a period defined to mean the commencing of the agreement and its continuation until it was terminated pursuant to the terms of the agreement. Under Clause 4, the seconder and the partners were to agree from time to time which employees of the seconder were to be seconded by the seconder to the partners: no employees of the seconder would be seconded to the partners unless the partners had given their prior approval to the secondment. If the partners determined that they no longer required the services of any employee, they could on reasonable notice terminate the secondment under which the seconder provided the services of that employee to the partners. 12 Clause 7 of the secondment agreement dealt with indemnity, and CSRES indemnified the partners against all expenses, losses, claims, damages and costs that arose from any claim for compensation made against the partners by any employee. Under Clause 7.3, the following was provided: If a claim is made against either or both of the partners by a person other than the employee in relation to any acts or omissions of any employee ("claim"), the partners will not make a claim against the Seconder in respect of the Claim, and the Partners release the Seconder from any liability to either or both of them in relation to the Claim. 13 Also annexed to the partnership agreement was a real property licence between the partnership companies whereby the licensor had agreed to licence, on a non-exclusive basis, the licensed premises (as identified in a schedule) to the partners on the terms and conditions set out in the licence. Also annexed to the partnership agreement was a plant and equipment licence, whereby the licensor agreed to license, on a non-exclusive basis, the plant and equipment to the partners on terms and conditions set out in the licence. 14 In July 1998, the partnership, through CSR Emoleum Road Services, entered into a contract with JCS to upgrade the batch plant at Rosehill. The project generally was described as involving the design, supply, manufacture, delivery, installation and commissioning of a third storage silo and load out system, and the design, manufacture, delivery, installation and conversion of the principal's existing batch plant to a plant capable of operating in batch plant or drum plant mode. This contract envisaged that the work would be carried out in two separable portions: separable portion 1 constituted works described as the design, supply, manufacture, delivery, installation and commissioning of a third storage load out system at CSR Emoleum's existing Barber Greene Batch Plant at Rosehill. In short, this work included the construction of three silos and the transfer of material by conveyor. The second separable portion was described as involving the design, manufacture, delivery, installation and conversion of CSR Emoleum's existing Barber Greene Batch Plant at Rosehill, to a plant capable of operating in batch plant or drum plant mode. 15 JCS as contractor was bound to comply with all legislative provisions relating to occupational health and safety, building regulations and CSR Emoleum Rosehill Occupational Health & Safety Rules for contract labour. The contract was signed by Mr Mylvaganam as eastern region manager for CSR Emoleum Road Services. The defendant accepted that the contract appointed a superintendent of the contract, being the Sydney business manager CSR Emoleum Road Services. That person was Mr Ian Pynor, the Sydney business manager of CSR EmoleumRoad Services. As was clear from the evidence, a Mr Kevin Johnson acted as the superintendent's representative on site. It was also accepted by the defendant that Mr Johnson was an employee of CSRES the defendant, as was Mr Pynor. PROSECUTION CASE 16 In opening for the prosecution, senior counsel accepted that the defendant provided labour to the partnership operating as CSR Emoleum Road Services: one place where such labour was provided was at the asphalt production site at Gate 1, Unwin Street, Rosehill. The defendant supplied, amongst others, its employee Mr Kevin Johnson as project manager at that site. His duties were to control the site and the operations of JCS which had been contracted to build, install and commission new plant at the site. It was stated that Mr Johnson was responsible for managing the contract between JCS and CSR Emoleum Road Services. 17 The prosecution asserted that Mr How, Mr Hillier, Mr Clarke and Mr Jedra were engaged on the site as employees of JCS, a fact which was conceded by the defendant. Mr Gareth Davy was the site manager for JCS. Advantage Personnel Pty Ltd was a labour hire company which had supplied workers to JCS for the installation of the equipment. Mr Glen Nolan was a trade assistant, Mr Jim Davidson was a tradesman, as was Mr Gordon DeBoick, with Advantage Personnel: this employment by Advantage Personnel was also conceded by the defendant. The defendant also admitted during the course of opening that Mr Andrew Morrison, Mr Ian Pynor and Mr Mylvaganam were employees of the defendant. The prosecution also asserted that Mr Ward was an employee of the defendant and worked in the control room as a plant operator. 18 t was the prosecution's case that Mr Johnson inducted contractors who came to the site and reported to CSR Emoleum Road Services in relation to those matters. Mr Johnson had authority to intervene with the contractors regarding occupational health and safety but he was not engaged full time at the site. 19 In relation to the accident involving Mr Nolan, it was asserted that separable portion 1 of the contract had been finished in late 1998 and that, at the time of the accident in March 1999, JCS was working on separable portion 2 of the contract. JCS had been called on by Mr Johnson to clear blockages in the conveyor system which was part of separable portion 1 of the contract. Asphalt had been cooling and hardening while in the conveyor and the contractors were clearing the asphalt by removing cover plates from the conveyors and then dislodging the asphalt that was causing the blockages. This was usually performed by manually digging out the cooling asphalt. Mr Nolan had been fatally injured while assisting in the task of clearing the conveyors. This occurred under a system which involved communication with the plant room and the running of the conveyor backward and forward after the removal of an amount of cooling asphalt in order to clear the blockage. While working on the blockage of a second conveyor, having unblocked the first conveyor, Mr Nolan was drawn into the first conveyor which had been activated and was still uncovered as a result of the earlier clearing procedure. 20 It was asserted by the prosecution that Mr Nolan was assisting Mr Clarke and Mr Jedra in clearing the blockages, and that Mr Davy was assisting with the electrical works. Mr Johnson was also present and was communicating with the control room using a mobile phone to indicate when it was desired to have the conveyor activated in order to clear the blockage. The conveyor known as H1 had been cleared by this method and work had commenced on the conveyor known as T1. It was said that H1 had inadvertently been put into operation and had trapped and fatally injured Mr Nolan. 21 The prosecution stated that the work procedure adopted involved the turning of an isolation switch on the conveyor to the off position; the removal of the cover on the conveyor in order to access the internal works and to clear the blockages; to then manually clear the blockage so far as possible by shovel and, when sufficient material had been moved, to have the control room activate the conveyor backwards and forwards to clear the blockage. Power would be returned through the isolation switch for this purpose. 22 It was alleged that the communication procedure for this task was as follows: Mr Clarke would inform Mr Johnson when the time had arrived for the conveyor to be operated to see if the blockage could be cleared; Mr Johnson would use the mobile phone to inform Mr How in or near the control room that the conveyor was to be put into operation; Mr How would inform Mr DeBoick to activate the conveyor, and Mr How would tell Mr Johnson, by way of mobile phone, when the conveyor was ready to operate. When Mr Johnson was told that the conveyor was ready to operate he would call all persons at the conveyor to stand clear; the isolation switch on the conveyor would be turned on, Mr Johnson would confirm that the position was all clear on the conveyor and inform Mr How that this was so. Mr How would then relay that position to Mr Day who was operating the computer console which governed the functioning of the conveyor. THE EVIDENCE 23 Mr Johnson had participated in two records of interview conducted by Inspector Piggott, one on 12 March 1999 and the second on 12 September 2000. In the first interview, Mr Johnson stated that he was employed by the joint venture through CSR Emoleum Road Services in the capacity of project manager. He said that he had worked for CSR Emoleum Road Services since July 1997 and that his supervisor was Mr Ian Pynor. 24 Mr Johnson described the events immediately prior to the fatal accident occurring on 5 March 1999. He stated that JCS was trying to clear conveyors that had blocked and that, about twenty minutes before the accident, he was outside the control room with Mr Larry How. At that point, he heard and saw workers trying to pass on the message from the top of the silo to someone on the ground, although he was not sure who that was. He suggested to Mr How that this was not the most effective way to pass messages and Mr How suggested the use of mobile phones. Mr Johnson offered Mr How his own mobile phone and took a phone from another CSRES employee who was nearby. Mr Johnson then went to the top of the silos and relayed messages between Mr Clarke and Mr Jedra who were working on conveyor H1. Mr Johnson thought that an electrician named Alafogianis employed by JCS was also up on the silo. 25 Mr Johnson described the procedure on the silos with blocked conveyors being that Mr Clarke or Mr Jedra would tell him which way they wanted the conveyor to run (that is, backwards or forwards) and he would relay that message to Mr How. When the conveyor was to be started, Mr Johnson would call out "all clear", Mr Clarke and Mr Jedra would respond "all clear", Jim the electrician would turn on the isolator and then Mr Johnson would relay the message to Mr How. A horn would then sound two or three times, there would be another horn blast and the conveyor would be attempted to be started. 26 Mr Johnson said he was standing on the silo decking with conveyor H1 in view. He could see Mr Clarke and Mr Jedra and he could see Jim the electrician at the isolator. After several attempts, conveyor H1 was freed and Mr Clarke and Mr Jedra then moved to clear conveyor T1. Mr Johnson went to a platform above silo 3 and conveyor T1 was in front of him. He could see all of conveyor T1 including the isolator for conveyor T1. Jim the electrician was standing adjacent to the isolator for T1. 27 The same communication system was adopted with Mr Johnson calling out "all clear" and moving away from the conveyor. He could see Jim the electrician turn on the isolator, a message would be relayed to Mr How, who confirmed that they were ready to start, Mr Johnson would say "all clear" again or "ready to start", and then there would be two or three horn blasts activated from the control room, after which there would be a single horn blast and an attempt made to start the conveyor. 28 Mr Johnson said that, on the second last attempt, Mr Johnson and Mr Jedra managed to get the conveyor running in reverse and they asked that the conveyor be stopped and run in forward mode. Mr Johnson passed this message to Mr How. When they were ready, Mr Johnson called out "all clear" and Mr Clarke and Mr Jedra called out "all clear". Jim the electrician turned the isolator on and Mr Johnson passed that message on to Mr How that it was all clear. The horn sounded two or three times, then there was a single horn blast and the conveyor started. The next thing Mr Johnson heard was Mr Clarke swearing, and Mr Johnson jumped down from where he was standing. Mr Johnson sensed there was something wrong and he yelled into the mobile phone to stop the conveyor. He then remembered being behind Mr Jedra, looking into conveyor H1 and seeing Mr Nolan's arm and the top of his head - he could see some blood around his neck. Mr Johnson then commenced to make arrangements for an ambulance to come. 29 Mr Johnson said that he had not seen where Mr Nolan was before his accident and was not aware where Mr Nolan was at that time. He was "not sure" who was co-ordinating the operation of cleaning the conveyors. He had been on the site for 12 years and had limited experience of slat conveyors, although he had been shown how to operate endless belt conveyors around the site. 30 He had heard the warning sound before conveyor T1 started just before the accident, but he did not hear the horn sound again after T1 started. 31 Mr Johnson described his role as "broadly" to manage the contract on behalf of "CSR" on the upgrade works at Rosehill. He said that, at the time of the accident, he was assisting in relaying messages between "JCS personnel". Managing the contract involved Mr Johnson in the preparation of some of the contract documentation once the contract had started and he co-ordinated the contract programme for all people on the project. It was a staged project, with some activities being conducted in advance of others and he would recommend payment when certain milestones were reached. He corresponded with contractors relating to "issues". 32 Mr Johnson said he was aware of warning signs on the sides of the conveyor stating: "Contact with the moving drive components can result in personal injury or death. Do not operate this equipment without guards in place". He was also familiar with isolating procedures which incorporated danger tagging and locking out. 33 Mr Johnson stated that he was not aware of any reason why the on-off switch for the H1 conveyor had not been tagged - that switch was under the control of the electrician. He stated that CSR Emoleum Road Services had an isolating system and it incorporated danger tagging and lock out systems. 34 In the second record of interview conducted in September 2000, Mr Johnson stated that, on 5 March 1999 the day of the accident, he was employed by CSR Emoleum Services Pty Ltd as project manager. Mr Johnson said that the contract with JCS referred to CSR Emoleum contractual requirements and cited specific rules. There was a CSR Emoleum health, safety and environment system which included the Environmental Health and Safety work book and Occupational Health & Safety management training. CSR Emoleum Services Pty Ltd monitored contractor compliance with these provisions by observing what was done through informal audits: it would be part of requirements for the contractor to identify and notify any incidents or potential incidents. The system would be reviewed and amended as appropriate. Contractor personnel were encouraged, as part of the induction process, to notify Mr Johnson of any concern that they might have in relation to occupational health and safety. 35 Mr Johnson said that as project manager he was the CSR Emoleum Services Pty Ltd person responsible for ensuring contractor compliance with occupational health and safety requirements prior to and at the time of the accident on 5 March 1999. 36 During the interview, the Inspector drew Mr Johnson's attention to the CSR Emoleum Road Services documents entitled "The requirements for contractors and contracting labour working on the premises of CSR Emoleum Road Services" where the following was stated: CSRE has the responsibility for the safety of all who enter CSRE premises. CSRE also has the responsibility for the environmental peace of all site activities. Therefore contractors are required to allow authorised CSRE employees to inspect, intervene or provide instructions regarding contractor site activities where necessary, where occupational health and safety or environmental issues are involved. These employees may also conduct random inspections to ensure contractor compliance with all relevant occupational health and safety and environmental legislation, codes of practice and standards (both for CSRE and external standards). On all such occasions, the contractor will agree to comply with the authorised CSRE employee directives. Failure to do so could result in the direction to stop work or the termination of the contract. In relation to this requirement, Mr Johnson said the responsibility for safety of those entering CSR Emoleum premises extended to Mr Nolan. Mr Johnson also accepted that his occupational health and safety responsibilities extended to ensure that contractors complied with the document entitled "WI-037A Isolation of equipment (lock out/danger tag)". Further, during the contract he had exercised the rights to inspect, intervene or provide instructions regarding contractor activities in the course of the asphalt plant installation prior to the accident on 5 March 1999. He had done so in relation to incidents that were reported to him. Mr Johnson accepted that, at the time of the accident, he had the authority to intervene with regard to occupational health and safety issues. 37 Mr Johnson said that practical completion of separable portion 1 of the contract had been granted some time in December although there were certain omissions for works which had not been completed. He said that this meant that silos 1 and 2 and conveyor H1 had basically not been proved or commissioned at the time of the accident. CSR Emoleum Services had not taken control of this part of the plant by 5 March 1999 because the contractor had been unable to demonstrate consistent performance of the conveyor system. 38 In the document "Site Rules for Contractors and Contract labour", Mr Johnson had been identified as the nominated representative. The term "CSRE nominated representative" was followed by these words: Person nominated by CSRE as the first point of contact for the contractor and who is authorised by the company to control the works undertaken by the contractor Mr Johnson said in this role he managed the contract and had responsibility to ensure the contractor met its obligations. He had responsibility to alter the contract system if it was found to be deficient. 39 In relation to the accident which took place on 5 March 1999, during the day Mr Johnson had spent periods of time between the office, the control room, the old plant and the new plant. There had been blockages in the conveyors prior to the accident and at this time he had been with Mr How discussing matters relating to the contractor. Up until the time the conveyor blocked and prior to the accident, CSR Emoleum Services personnel were being trained in the operation of the plant. This was being carried out by Mr John Day from Industrial Software and Electronics but Mr Johnson was unaware whether there were other persons in the control room. Mr Johnson was unaware whether JCS personnel were working on the conveyor system or associated system prior to the blockage. 40 When asked on what basis JCS personnel become involved in clearing the blockages, Mr Johnson said the plant was still in the commissioning phase and, when there were problems on the plant, JCS corrected the problems. He was unaware of any CSR Emoleum Services personnel involved in clearing the blockages at the time. He said that CSR Emoleum Services were operating the plant during the period of the blockage but under the direction and training of Mr John Day. 41 Mr Johnson said that, on the day of the accident, CSR Emoleum Services personnel were producing asphalt for a commercial sale and that the storage silos were being used as part of the commissioning phase and for the contractor to demonstrate proper operation. For a period of some weeks, CSR Emoleum Services personnel had been operating the new plant but, with ongoing problems with the conveyors and the silo system, part of production was put through the old plant. He noted that during the commissioning phase any asphalt that had been produced and was of saleable quality was sold. 42 In oral evidence, Mr Johnson's attention was drawn to the fact that, in his first statement to Inspector Piggott, he said that he had been employed by CSR Emoleum Road Services and in the second interview had stated that he was employed by CSR Emoleum Services. He confirmed that his statement in the first interview was incorrect and the statement as to his employer contained in the second interview was correct. 43 Mr Johnson confirmed that he had accepted a letter of offer to fill the position of project manager which was dated 20 June 1996. That employment was with CSR Emoleum Services and was to commence on 1 August 1996 although, by arrangement with his current employer, he was asked to commence to provide services to CSR Emoleum Services on and from 1 July 1996. This offer of employment with CSR Emoleum Services contained a letterhead as follows: CSR Construction Materials Under the letter of offer, he was required to devote the whole of his working time and attention to carrying out his duties and responsibilities to CSR Emoleum Services and to the "business": the term "business" was defined in the letter of offer as meaning the business of the joint venture to carry on the business of bituminous road surfacing in all Australian states and territories. In relation to policies and procedures, the following was set out in the letter of offer: CSR Emoleum Services will have employment policies and procedures in place from time to time which will affect your employment. CSR Emoleum Services reserves its right to replace, withdraw or alter any of its policies or procedures in its absolute discretion without prior notice to you. In his oral evidence, Mr Johnson confirmed the performance and functions of production manager in March 1999, and that he held that position and performed those duties from August 1999 and that he not held other positions at that time. 44 After his role as project manager at Rosehill, he took on a different position as "business development manager" and his duties as production manager were then allocated to another person. Mr Johnson left CSR Emoleum Services in December 2000 and, on leaving CSR Emoleum Services Pty Ltd, Mr Johnson had accepted an ex gratia payment of $10,000 and had provided a release discharging CSR Emoleum from all damages or costs whatsoever and howsoever arising at any time against CSR Emoleum and arising out of or in relation to his employment, his termination or any other matter. The terms of the separation agreement were contained in a letter dated 18 December 2000 on the letterhead of CSR Emoleum Services Pty Ltd and signed by "Deva Mylvaganam, Eastern Region Manager". 45 The document entitled "The Site Rules" for contractors and contract labour working on the premises of CSR Emoleum Road Services was a document that carried a front page headed "CSR Emoleum Road Services". Mr Johnson said that this document had been developed for the Rosehill site works by himself and Mr Andrew Morrison. After its development, it was used as part of the induction of employees at the site. Employees were also given a document entitled "Personnel Safety Handbook", a booklet carrying the title "CSR Emoleum Road Services". That document, under the heading "Responsibilities", provided as follows: While CSR Emoleum will endeavour to comply with Codes of Practice and Government legislation, it is the responsibilities of employees/contractors to observe safe work practices and procedures and the correct Personnel, Protective Equipment (PPE) for the task . Later, the document stated that supervisors and managers were responsible for the safety of all employees and contractors under their control. The document laid down a number of rules and practices for safe working, and under the heading of "Conveyors", stated: All conveyors must be stopped, isolated and locked-out before ANY work repair or cleaning is done. No employee is permitted to work or ride on a moving conveyor. At the end of the booklet was a page where employees could acknowledge in writing (noting the date and location that they had received their copy of the CSR Emoleum personal safety handbook) that they had attended induction training and the induction training session and agreed to follow safe work practices and procedures. 46 Mr Johnson said that there was a standard form used for inductions that was developed for this project and this was given to people who came to work on the project. He conducted the majority of induction training although Mr Morrison did some of the induction training. During induction, he took employees through the booklet and referred to the policy document dealing with the lock out system and danger/out-of-service tags systems. The isolation of equipment (lockout/danger tags) document with the number WI-037A was contained in an instruction sheet under the heading "CSR Emoleum Road Services" and under that heading "E H & S Work Instruction". These were the instructions that were referred to in the booklet, but the separate instruction sheet may not have been given to all people who attended the induction. 47 The document entitled "The requirements for contractors and contract labour working on the premises of CSR Emoleum Road Services", which was headed "CSR Emoleum Road Services", was a document that Mr Johnson had developed with Mr Morrison and others. It had been produced for sub-contractors working at the Rosehill site. The documents were given to people working on the project including civil contractors. Mr Johnson was not sure if the document was given to JCS but there was no reason why it had not been given to JCS. This document spoke about the CSRE nominated representative as being the first point of contact for the contractor and being the person authorised by the company to control the works undertaken by the contractor. Under the heading "General Information", the document stated: CSRE (being a reference to CSR Emoleum Road Services) has the responsibility for the safety of all who enter CSRE premises. CSRE also has the responsibility for the environmental impact of all site activities. Therefore, contractors as required to allow authorised CSRE employees to inspect, intervene or provide instructions regarding contractor's site activities where necessary, where occupational health and safety or environmental issues are involved. These employees may also conduct random inspections to ensure contractor compliance with all relevant occupational health and safety and environmental legislation, codes of practice and standards (both CSRE and external standards). On all such occasions, the contractor will agree to comply with authorised CSRE employee directives. 48 A document dated 5 December 1996, under the heading "CSR Emoleum Road Services", dealt with the "contractor induction check list". Mr Johnson said this was a check list for the induction of contractors and was developed by him and Mr Morrison. The document was a prompt to himself to ensure that he covered the items set out in the check list and referred to his nominated role as the CSRE representative on site. The induction check list, in Clause 1, contained the following: Assemble all contract staff together. The nominated CSRE representative should then revise the contract job plan and: 1.1 develop an understanding of the work to be undertaken; 1.2 discuss the location the contractors will have access to; 1.3 discuss what vehicles will be on site; 1.4 discuss what equipment will be used; 1.5 discuss what facilities they may need to access on site; 1.6 discuss the risks involved with the project and work practices to be complied with; 1.7 discuss the assistance/resources/information to be provided by CSRE; 1.8 verify the number of contract labourers (and sub-contractors) who will be working on site. 49 In cross-examination, Mr Johnson was unable to say why he had told Inspector Piggott that he was employed by CSR Emoleum Road Services Pty Ltd. In March 1999, he saw himself as "probably" employed by Road Services - the works, letters and documents were signed for Road Services during his employment. 50 When shown an organisational chart for CSR Emoleum Road Services, Eastern region, Sydney business unit, last updated in December 1998, showing Mr Mylvaganam as regional manager, Mr Andrew Morrison as EH & S manager, Eastern Region and Mr Johnson as business development manager, Mr Johnson stated that he became a business development manager for CSR Emoleum Road Services sometime later in 1999. 51 Mr Johnson was then shown a number of documents from his personal file which he was able to identify and verify. A selection of those documents showed the following: (a) Mr Johnson's letter of resignation from CSR Limited/Emoleum Pty Ltd effective 31 July 1996; (b) a record of bonus payments payable to Mr Johnson on a document headed "CSR Emoleum Road Services"; (c) a termination and redundancy calculation sheet on a document headed "CSR Emoleum Road Services". This document showed rates for the final payout for Mr Johnson and was signed by Mr Mylvaganam as "Eastern region manager" in December 2000; (d) an acknowledgment of termination of services from CSR Emoleum Services Pty Ltd dated 8 December 2000; (e) a document headed "CSR Construction Materials" dated 22 August 1996 advising Mr Johnson he had been "transferred to CSR Services Pty Ltd", with a record of leave entitlements transferred to CSR Services Pty Ltd; (f) a document covering the period July 1996 to May 1997 evaluating the performance of Mr Johnson as "production manager" at Rosehill on a document with the heading "CSR Emoleum Services" in the left hand corner; (g) a performance discussion document covering the period 1 January 1998 to 31 December 1998 headed "CSR Emoleum Road Services" with a review being carried out by Mr Mylvaganam; (h) a document headed "CSR Emoleum Road Services" being a memorandum from Mr Pynor dated 8 July 1998 dealing with the 1998 salary review for Mr Johnson; (i) a document containing information of payroll deduction in 1997 concerning the car allowance for a company vehicle for Mr Johnson carrying the heading "CSR Emoleum Road Services". A personal safety handbook with foreword which carried the heading "CSR Emoleum Road Services" had been signed by Mr Ray Fisher as Chief Executive Officer. Mr Johnson stated that Mr Fisher was the CEO of CSR Emoleum Road Services and he held this position at the time the booklet was handed out at the site. Mr Johnson also stated that, at the time he made his first statement in March 1999, Mr Pynor, his supervisor, was the Sydney business manager of CSR Emoleum Road Services Pty Ltd. 52 In relation to the accident involving Mr Nolan, this had happened around 6.30 pm and Mr Johnson said he had been on the silo at the blockages of the conveyor about twenty minutes beforehand. He had been on the silos earlier that day when an isolator "blew" and, although he had suggested by-passing it, the isolator had been replaced. It was later in the day that he was involved, when the accident took place. In these twenty minutes he had seen Mr Clarke, Mr Jedra, Jim the electrician and, he thought, Tom MacFaddin had been there, but he saw no one else. When he arrived at the silo at around this time, the work on the H1 conveyor blockage had already begun but he did not see Mr Nolan at any time while he was at the silo. 53 Mr Johnson denied that the silos and conveyors were operating in full commercial production. There were a variety of things which were going wrong with the system. Between December 1998 and March 1999, maximum production for portion 1 did not occur. The records showing in excess of 50,000 tonnes produced did not all relate to the Rosehill plant. There was a variety of reasons why silos 1 and 2 had not been commissioned. 54 Mr Johnson did not recall arrangements being made to unblock conveyor H1 and having the JCS sub-contractors mustered while he and Mr Hillier were present. He repeated that the process of clearing the conveyor had already commenced when he arrived at the silo. Mr Johnson added that he was not superintendent of the contract between CSR Emoleum Road Services and JCS, as that was a role occupied by Mr Pynor: Mr Johnson was Mr Pynor's representative. 55 Mr Andrew Morrison was interviewed by Inspector Piggott on 6 September 2000. Mr Morrison stated that, on the day of the accident 5 March 1999, he was employed by CSR Emoleum Services Pty Ltd as the environmental health and safety manager, eastern region. He had worked for CSR Emoleum Services from 15 December 1998. On 5 March 1999, his supervisor was Deva Mylvaganam. 56 Prior to 5 March 1999, his duties as the environmental health and safety manager were providing health, safety and environmental support, advice and coaching to all levels of management and employees within CSR Emoleum eastern region, which encompassed Queensland, Australian Capital Territory and New South Wales. It included assisting line managers in implementation of the occupational health and environmental systems and procedures. 57 Mr Morrison confirmed that CSR Emoleum Road Services had a safety management programme. When asked what systems were in place at the time of the accident to ensure contractors conformed to occupational health and safety requirements, Mr Morrison stated that there were a number of systems or controlling factors in operation: there was the contract for the works, the CSR Emoleum contractors' documents being the requirements for contractors and contract labour working on the premises of CSR Emoleum Road Services; safety and quality plans and the acknowledgment by the contractor to follow these requirements which was contained in a facsimile signed by Mr Hillier and sent to Mr Johnson at CSR Emoleum Services on 29 May 1998. 58 When asked how CSR Emoleum Road Services monitored how the contractors complied with the documents, Mr Morrison said it was by the use of the management system which incorporated the CSRES nominated representative who liaised with the contractor. The nominated representative liaised with the different contractors through the varying stages of the civil works through to commissioning stage. CSR Emoleum Road Services had nominated Mr Johnson as their representative. 59 Mr Morrison's attention was directed to CSR Emoleum Road Services documents, being the requirements of contractors and contract labour working on the premises of CSR Emoleum Road Services. It was his view that, while on CSR Emoleum Road Services' property, CSR Emloeum Road Services had responsibility for Mr Nolan and all who entered the premises. He added that, at the commissioning stage, the plant and activities were under the control of the contractor, JCS. It was part of the induction process and the responsibility of CSR Emoleum Road Services to ensure that contractors complied with the document WI-037A - Isolation of equipment (lockout/danger tag): JCS had acknowledged the requirement to follow that document. 60 CSR Emoleum Road Services had exercised the right to inspect, intervene and provide instructions regarding contractor activities in the course of the asphalt plant installation prior to the accident on 5 March 1999, as referred to in the document dealing with the requirements for contractors on the premises of CSR Emoleum Road Services. 61 Mr Morrison's attention was directed to the document entitled "Site rules for contractors and contract labour" showing that Mr Johnson had been identified as the nominated representative for CSR Emoleum Road Services. Mr Morrison was then asked to what extent control was vested in the nominated representative in relation to occupational health and safety, to which he replied that Mr Johnson ensured that inductions were conducted: he explained the site requirements, he was the contact and liaison person for the contractor and in conjunction with the contractors' on site supervisor and/or contractor's managers. Together they managed any occupational health and safety issues that arose. 62 Mr Morrison said that, as a result of the accident, everybody was put through re-training of the isolation procedure and there may have been some things done that he just could not recall. There was a review of the "operative system", being a general review of the whole process. 63 Prior to 5 March 1999, a number of inspections had been carried out. Mr Morrison said his role in those inspections was to accompany Mr Johnson, and sometimes the supervisor, as an advisor on issues. Sometimes he was requested to give advice on specific issues. During the inspection he did identify occupational health and safety issues which required corrective action, and gave as examples issues dealing with the isolation, guarding and fencing of the recycled asphalt conveyor, signage and consultation over environmental issues. Guarding and isolation issues were dealt with under the Australian Standard for Conveyors, and he assisted in interpreting a solution that was practical and met the requirements of the standard. Employees were instructed and counselled on the requirements for wearing the right personal protective equipment and people were instructed to clean up and maintain work areas in a manner which reduced trip hazards. There were also other issues addressed. 64 In oral evidence, Mr Morrison had his attention directed to a letter he signed on 2 June 2000 directed to Inspector Piggott and answering several questions raised by the Inspector. That letter was on CSR Emoleum Road Services letterhead and Mr Morrison signed it as the "E H & S Manager, Eastern Region". In correspondence to Inspector Piggott, Mr Morrison said that, in April 1998, Brian Sullivan, Kevin Johnson, Mel Green, Ian Pynor and Deva Mylvaganam "of the company" met as members of the "CSRE re Rosehill Upgrade Team" in relation to the project. At that April meeting, there was a review of the safety responsibilities of the project and upon whom those responsibilities rested. In May 1998, an issues document was presented to the Board dealing with how safety and environmental issues were to be incorporated into the plant design and operations, and this was reviewed by the Board. In his letter to Inspector Piggott, Mr Morrison continued: As the company E H & S Manager, I further reviewed the final tender documentation, pre-contractual documents and the contract and discussed with Kevin Johnson proposed amendments and additional occupational health and safety considerations and requirements, including the requirements for contractors and site rules referred to in Clause 11 of the contract, which clearly sets out and defines the contractor's responsibility. The final contract was also forwarded to Jeff Hillier and Larry How of JCS for their review. 65 In answer to the Inspector's query about how an assessment was made of the capacity of the contractors to perform their duties under the contract, Mr Morrison stated that induction training was supplied by "the company" to all contractors on site. Each month, Mr Johnson reported "to our company" on outstanding works which included reports on continuing occupational health and safety compliance by the contractors and issues involving the safe operation of the plant. Mr Johnson also received reports from Mr Davy and Mr How of JCS on issues on occupational health and safety continuing compliance. Mr Morrison's letter continued: As part of our company's on-going assessment of the capacity of the contractors, our company provided (post induction) instruction in relation to safe working practices, particularly dealing with tagging and lock-out procedures. 66 In relation to the persons responsible for the day to day management of occupational health and safety issues, Mr Morrison, in his letter to the Inspector, stated that the JCS site supervisor, Mr Davy, was responsible for day to day management and supervised the reporting and implementation of work safety on the site. Mr Davy's role as site supervisor was consistent with representations made by JCS during the tendering negotiations that he would supervise, delegate and be responsible for the qualified personnel and the work safety inspectors in the JCS project team. In addition, Mr Davy received work safety induction training on 1 October 1998: he reported to Mr Johnson if there were incidents involving an assessed occupational health and safety risk. Mr Morrison stated that the supervisory role of Mr Davy in relation to occupational health and safety issues were both contractually and operationally responsibilities of JCS through the involvement of Mr Davy. JCS provided the sub-contactors and was directly responsible for their supervision, instruction and training in relation to work safety issues. Mr Morrison, in his letter to Inspector Piggott, continued: In addition, our companies' involvement in the day to day management of O H & S issues related to determining which systems/standards were relevant to the site, consulting with JCS and its safety managers in relation to implementation of safe working practices, and on going review of how the O H & S issues were being managed and monitored. Throughout this letter, Mr Morrison made frequent reference to "our company" but did not specifically identify that company in the correspondence. In cross-examination, Mr Morrison's attention was drawn to the letters he had written to Inspector Piggott in March 1999 and June 2000, enclosing a number of documents including the contract agreement and the site rules. These letters were on CSR Emoleum Road Services letterhead and signed by Mr Morrison as E H & S manager. Mr Morrison said that at 5 March 1999 he was the E H & S manager for Road Services and the duties he performed were carried out for Road Services. The "Eastern Region" was a reference to the eastern region of CSR Emoleum Road Services. 67 In March 1999, Mr Hillier was a contract employee with JCS Engineering Fabrication Pty Ltd. He was contracted for the completion of the specific CSR project including the project at Gate 1 Unwin Road, Rosehill. On that project he was the proposals engineer and dealt with the administration of the contract. He was responsible for liaising with the designers, overseeing suppliers and procurement for the work. In that role he reported to Mr Barry How. 68 During the course of his work, he was located in Brisbane but he was on site at the Rosehill plant on average twice a month. He was present at the site on 5 March 1999. He was at the site on that day to fill in for Mr Davy who had been given time off from the project. 69 On the morning of 5 March 1999, there was a blockage at the T1 conveyor and Mr Johnson had requested JCS to unblock the conveyors. Mr Hillier organised the crew to go up on to the silos and clear the conveyors and put the plant back in production. Mr Hillier went with the crew up on to the silos to undertake this task. 70 Mr Hillier recalled that there were two blockages earlier that day and a subsequent blockage, which was a very large one when the accident occurred involving Mr Nolan. Mr Hillier had been on the site with the conveyors in the morning to assist in unblocking the conveyor. 71 Later in his evidence, Mr Hillier firstly denied that he was instructed by Mr How to go up on to the silos and clear the blockage, stating that Mr Johnson was there but then stated that, whether he was instructed by Mr How or was in fact instructed by Mr Johnson, he could not remember but he was instructed to go up on to the silo to perform that work. 72 Mr Hillier gave the following evidence as to the procedure adopted in clearing the blockages: … I assembled a crew of people that were required to go up there to do it. The procedure was that we isolated the motor concerned with the blockage, the operator was informed that we were clearing a blockage and the computer was locked out. We then proceeded to take the covers off, ascertain what the problems were, and we had previous blockages where lumps of metal were in the conveyors, so we were there to ascertain and we asked Kevin Johnson and a visitor from the States who designed the equipment and was also there as well, and we proceeded to dig out the hot ash. During this time the motors had to be reversed a couple of times and run a couple of times. The procedure was that when we had to run the motor I had all the people lined up against the far railing, did a head count and warned them we were going to start the conveyor and then we started the conveyor and then we isolated again and we went back and cleaned out and that happened two or three times. 73 Mr Hillier stated that isolation of the conveyor was through an isolation switch adjacent to the motor: it had a lockable isolator switch that could be turned to the off position and a pin put through so that it could not be turned either on or off. Mr Hillier said that the pin was used, and also lock out tags were available at the silo and would have been put on the lock out. Those tags said "Lock out. Do not operate". 74 Mr Hillier said that, before 2.00 pm on that day, communication with the control room was mostly done through a mobile telephone with Mr Johnson communicating on some of the occasions - it was mainly Mr Johnson who would have been communicating on the telephone. After 2.00 pm, when the silos were unblocked, Mr Hillier did not go up on to the silo to deal with the further blockage. However, Mr Hillier thought that Mr Johnson was up on the silos for the majority of the time that day. There was a problem with an isolator which had "blown" and Mr Hillier went to an electrical wholesaler to get a replacement and returned to the site between 5.30 pm and 5.45 pm. When he returned, he was instructed by Mr How to go to the back of the switch room and supervise the phase reversal, whereby the conveyors were moved backwards and forwards to help clear the blockage. Mr Hillier performed that task with an electrician called Gordon. 75 Mr Hillier said he worked with Gordon the electrician and relayed messages to make sure that he was performing the phase reversal on the correct unit. He described it as basically a two man operation. While the phase reversals were taking place, Mr Hillier said that the communication was received from Mr How who had received word on his mobile telephone: Mr How would say "Reverse the phase and let me know when it's done". Mr Hillier would do that and tell Mr How that it was clear. Mr How would speak to the person on the mobile telephone and say the phase reversal was clear, then there would be another communication from the other person back to Mr How, and Mr How would ask Mr Day (who was also in the control room) to start the conveyor while nominating which one was to be started, for example, "Start T1". The conveyor would start and Mr How would be told on the mobile to stop the conveyor and he would shout up the stairs to Mr Day to stop the conveyor. 76 Mr Hillier described the work performed by Mr Day at the computer. He sat at the computer and, when he was instructed to do something, he did it by pressing the appropriate buttons. Mr Hillier recalled that when Mr How shouted up to the control room "Start T1", a whole group of contactors came on instead of just one and Mr Day said something like "Oh shit, I've pressed the wrong button". He then said that immediately after, all the contactors came "out again". 77 Mr Hillier stated that the employees who were with him and involved in the task of clearing the blockages at the top of the silo before 2.00 pm were Mr Jedra, Mr Clarke, "Gordon", Mr Nolan, Mr Johnson and "the visitor from the States". Mr Hillier said that, when he assembled the team to do the work on the blockage, he implemented a procedure that he thought would ensure the safety and health of the people who were in the crew, based on the safety requirements that CSRE had for that site, and based on the necessary safety precautions under the Act and based upon his own experience. JCS "took on board" the safety requirements of CSR Emoleum Road Services. 78 Mr Hillier explained that on the silo there were a number of conveyors each with its own motor and isolator. The lock out procedure was performed on the isolator that was closest and connected to the particular motor. The lock out procedure would not necessarily therefore be done in the control room. A console operator in the control room would have been informed that work was taking place in the area and the operator would have been given an instruction not to do anything to the controls unless instructed to do so by members of the crew or those conveying the instructions. Before the motors were reversed, Mr Hillier conducted a head count after taking the covers off the conveyor. He made sure that the men were next to the handrail and, when assured of that situation, he arranged for the conveyor to start. 79 Mr Hillier had satisfied himself that the method of operation and the method of communication complied with CSRE's safety rules and with his own experience. He was also aware that he was working with the "safety officer" for CSRE on the top of the silo - although he knew Mr Johnson was the project manager he also regarded him as the safety officer. Mr Hillier accepted that he was in charge of the crew for this task and therefore had responsibility for their safety. Mr Johnson's role was a site wide role. Mr Hillier thought the procedure for the work was appropriate for the circumstances but he did not approve the procedures - they were submitted to CSRE and they were part of the procedures in the manual. In Mr Hillier's view, there was full production available from the plant between January to March 1999. He also disagreed that there were so many problems with the plant as at 5 March 1999 that it had not been commissioned. 80 On 5 March 1999, while dealing with a blockage, Mr Hillier was not on top of the silo all the time and he could not remember whether Mr Johnson was there all the time. Mr Hillier denied that his role in the afternoon in the control room was to relay messages from the silos. He was working with the electrician changing the phases and telling Mr How when the phases had been changed. Mr Hillier agreed that his supervisor was Mr How and that, in relation to the morning blockage, Mr Hillier was supervising the JCS labour force. Mr How may have taken over the supervision in relation to the further blockage after Mr Hillier left the plant if requested by CSRE to clear the blockage. 81 On 5 March 1999, Mr Hillier could not recall a reason he would have asked Mr Gordon DeBoick to turn off the 110 volt power supply. The only reason he thought that might be done was when they were changing over the phases and there might have been a possibility of a shock from the 110 volt supply. When pressed, Mr Hillier said that he could not remember turning off the 110 volt supply prior to this accident either on that day or on any other day. He did not think he had ever spoken to Mr How about the 110 volt supply and whether it should be turned on. 82 Mr Davidson was employed by Advantage Personnel to work with their client JCS on the plant and he was present at the plant on 5 March 1999. He was interviewed by Inspector Piggott and stated that he had been employed on the site as an electrical fitter/mechanic. He said that he had no idea who was his supervisor at Advantage Personnel but at the time of the accident, his supervisors at JCS were Mr Jedra and Mr Clarke. Prior to the accident involving Mr Nolan, Mr Davy was his supervisor. 83 Mr Davidson had been asked to assist in clearing a blockage at conveyor T1 on the day of the accident. It was almost cleared when more product was loaded into the conveyor, and he said they had to start all over again because it blocked conveyor H1. This involved removing all bolts from the top covers from H1 so that a cover could be slid back. Mr Jedra and Mr Clarke slid back the cover closest to T1 so that it could be unblocked. The unblocking was done by digging the product out - it was a very hot job. After eventually clearing H1, work started on conveyor T1. Earlier, an attempt to clear T1 led to the isolator on T1 burning out. After unblocking conveyor H1, Mr Davison was given a new isolating switch and he replaced the burnt out isolating switch. He said that eventually the T1 conveyor came loose and started to operate and they were ready to bolt the covers back on, then, "for no reason I can think of", conveyor H1 started up. He thought that Mr Nolan must have been sitting on the covers of H1 and the vibration caused his feet to go on to the conveyor, so dragging him in feet first. 84 Before the accident, Mr Davidson last saw Mr Nolan sitting on the south-end of the conveyor and out of the way. Mr Davidson said that he had shown him a cover bolt to indicate that Mr Nolan should start bolting the covers back on from the south-end, but he did not know if Mr Nolan understood what was being indicated because of the noise of the other conveyor. Mr Davidson put the bolt down and left it. 85 Mr Davidson said he did not isolate conveyor H1 when the blockage had been cleared on that conveyor. At the time, he was on a platform six or seven feet high and ten feet away and that is why he did not personally isolate the conveyor but, in addition, there was no need to isolate it as the conveyor was not being used. Mr Davidson was not aware of anyone operating the isolating switch on H1 during the time it was being cleared. 86 Mr Davidson confirmed that the on/off motor drive switch located on the side of conveyor H1 adjacent to the motor, if turned to the off position, would not permit the conveyor to run. 87 In his view, this work was being co-ordinated by a combination of Mr Jedra, Mr Clarke and Mr Johnson who was relaying messages to the ground by mobile telephone. Each time, before the conveyors started, it was ensured that everyone and the tools were out of the conveyor before it was started. There was an "all clear" warning given before the conveyor started. Mr Jedra and Mr Clarke would ask if everyone was all clear and this would be relayed to the people on the ground. Mr Davidson said that no one had asked for H1 to be started - it started for no apparent reason. 88 Mr Davidson had heard a warning sound before the T1 conveyor started just before the accident but he did not hear another warning sound after conveyor T1 started. He did not hear any warning sound before conveyor H1 started at the time of the accident, but would have heard it even with conveyor T1 operating at the time. 89 He had been given instructions and induction training to the site by Mr Johnson. Everyone on site had been issued with safety instructions and they had been taken through them by Mr Johnson with everybody in conference. Mr Davidson was not aware of any written instructions on how to operate the conveyor. JCS basically left to CSR the occupational health and safety training. Mr Davidson said that there was no way of cleaning the blockage without taking the covers off. No one had raised any issue about the conveyors not being securely guarded during the cleaning up process. Mr Davidson was aware of warning signs on the side of the conveyor stating that contact with moving driver components could result in personal injury or death and also stating that they were not to operate the equipment without guards in place. He was familiar with isolating procedures which incorporated danger tagging and locking out. These procedures were carried out during the clearing of the blockages on T1 when the isolator was switched off and he had stood beside it. He had not received any occupational health and safety training from Advantage Personnel and did not recall receiving any documents relating to occupational health and safety from Advantage Personnel. 90 In cross-examination, Mr Davidson said that he had been given instructions on how the site worked, had been given the site rules and a personal safety handbook. He said his direct "boss" was Mr Davy but "management" was CSR Emoleum. 91 Mr Clarke was employed by JCS Engineering Fabrications Pty Ltd as a boilermaker. He had worked for that company since September 1987: at the time of the accident he reported to either Mr Davy or Mr How in that company. 92 He recalled the accident at the Rosehill plant on 5 March 1999. An hour or so before the accident he was unclogging a conveyor (which he described as conveyor T2 but which, on the evidence, was in fact conveyor T1) and also worked on clearing conveyor H1. Mr Jedra and Mr Nolan were helping him with this task and they were taking it in turns to dig the product out of the conveyor. There was only room for one person at a time to do this work and it was hot work. The work was either being done from the floor next to the conveyor or by sitting on the lid of the conveyor. This clearing of the blockage was being performed where the two conveyors met. Mr Jedra was helping with clearing the blockage of conveyor T1. 93 The procedure used to clear out conveyor H1 was to scrape out the product with shovels or spades. The lid on the conveyor at the point of blockage had to be removed. Because of its weight, the lid was not lifted clear but was slid back along the conveyor to allow access to the blockage point. They would ask for the conveyors to be started in the control room and if they would not run, they would ask for the wiring to be changed and to reverse the run of the conveyor. If the conveyor would still not run and clear itself, more product was dug out. Because of the heat of the asphalt, it was better to clear the blockage using the conveyor. There was an electrician involved in this process and he was in the control room changing the wiring. 94 During the process of unblocking the conveyor, the electricity was isolated by a local isolator which was placed at the end of the conveyor. The isolator was turned off by either Mr Clarke or Mr Nolan, but he did not recall who actually had turned off the isolator. The isolator was switched on only when they wanted to start the conveyor again. It would only take one or two attempts at starting the conveyor to clear the blockage. After clearing conveyor H1, they went on to clear the blockage at conveyor T1. Apart from the fact that conveyor H1 later started, Mr Clarke could not recall if the isolator switch on H1 was turned off. 95 Mr Clarke could not see the electrician in the control room from where he was standing. Previously, they had used hand signals but Mr Johnson came to the top of the conveyor and silos with a mobile telephone and was passing messages backwards and forwards to the control room saying when they wanted the conveyor started and when they wanted it reversed or stopped. There was no difficulty speaking to Mr Johnson when the conveyor was not running because it was fairly quiet and they could be easily heard but when the conveyor was running one had to be in the line of sight and shout to be heard. 96 To clear the blockage in T1, the same process was used as for clearing conveyor H1. Mr Clarke stood in much the same position but swivelled slightly to perform the task. There was an electrician there named Jim who was operating the isolation switch. He was doing this at T2 because it was easier for him to do so - Mr Jedra or Mr Clarke would have to climb down and walk across the silo and then come back again to do the isolation. 97 Conveyor T1 was cleared and was running when Mr Clarke heard conveyor H1 start up and that is when he saw Mr Nolan being trapped in the conveyor. 98 When Mr Clarke asked Mr Johnson for T1 to be started he was aware that Mr Nolan was on top of H1. At that time, he had his back to Mr Nolan and therefore could not say exactly where Mr Nolan was placed but he was on top of conveyor H1 and Mr Clarke had seen him in that position earlier. Mr Nolan had been on top of H1 the whole of the time during the clearing of the blockage of T1. Mr Nolan had taken no part in cleaning out T1 because there was only room for Mr Jedra on one side and Mr Clarke on the other side. Mr Nolan was less than an arm's length away from Mr Clarke when he was sitting on conveyor H1. Mr Clarke did not hear a warning sound before conveyor H1 started on the last occasion but noted that it was fairly noisy when the other conveyor was running. 99 After conveyor H1 started, Mr Clarke saw Mr Nolan being dragged into the conveyor. He said he jumped down to turn off the isolator and yelled out to have the conveyor stopped. The lid on conveyor H1 had not been replaced at this time. 100 Mr Clarke had been given induction training to the site by Mr Johnson. There was a general site talk dealing with high visibility vests, hard hats and general amenities and that type of thing. 101 In cross-examination, Mr Clarke said that Mr Davy was in charge of the job with CSR Emoleum, Mr How was his supervisor and it was Mr How who gave him the job to go up and clear the conveyors. Mr How had been up there earlier but later went to the control room. 102 Mr Clarke could not recall whether T1 was isolated when work began on H1. On moving to conveyor H1, the isolation switch was used and the covers were removed. It took Mr Clarke, Mr Jedra and Mr Nolan over an hour to clear H1. At that time they were operating the isolation switch themselves and Jim the electrician did the isolation on conveyor T1. He could not remember if they were taking it in turns to operate the isolating switch on H1. 103 After H1 was cleared, the cover was left in its position and not replaced over the conveyor. Mr Clarke said that Jim the electrician was not isolating H1 because they were readily able to get to the switch themselves. It was a lot harder to get to the isolator on conveyor T1. After T1 had been cleared and the conveyor running, it ran for some time before conveyor H1 started. There had been a short conversation about replacing the covers before H1 started. That may have only been five or ten seconds. Mr Clarke rejected the suggestion that H1 and T1 started at about the same time when the accident occurred. It took about half an hour to clear T1 and, to the best of his recollection, Mr Clarke thought that Mr Nolan was less than an arm's length away from him, waiting around until the job was finished. There was no room for him at conveyor T1 to do the work. Just before the accident, he heard a warning sound before conveyor T1 started. 104 Apart from the induction to the site given by Mr Johnson, Mr Clarke had signed a document acknowledging he had been given the site rules, a copy of the personal safety handbook and had undertaken to familiarise himself with the document. 105 Mr Clarke said that, at the time of the accident, he called out to Mr Johnson to stop the conveyor and then jumped down to turn the isolating switch off. Initially, he said he turned the isolation switch off which stopped the conveyor, but ultimately said he was not sure whether the conveyor had stopped already, or stopped at the time he had turned off the isolation switch. Mr Clarke was closely questioned on this matter and gave the impression that he believed that he had turned the isolator off and had thereby stopped the conveyor at the time of the accident. Mr Clarke appeared to reluctantly agree with the proposition put in cross-examination that, at the time he decided to turn off the isolation switch, the conveyor had stopped. 106 At 5 March 1999, Mr Jedra was employed by JCS as a boilermaker at the plant at Unwin Street, Rosehill. He said that Mr How and Mr Hillier were in charge in of the job for that company. On the day of the accident, Mr Clarke and Mr Nolan were on the silos to clear the conveyor and Mr How told him to go up and give them a hand. The other two had been performing that task for some fifteen to twenty minutes before Mr Jedra joined them. 107 Mr Johnson had asked that they leave the incline conveyor as the product was required to go into the mix silo. It was then that the horizontal conveyor was blocked. Mr Jedra said that the people involved in doing this work beside himself were Mr Clarke, Mr Nolan, Mr Johnson and an electrician whose name he could not remember. Mr How had also been there and they had been using radios to communicate at one time but they were not working: they later changed to mobile telephone communication. Mr Jedra, Mr Clarke and Mr Nolan took turns at digging the product out and Mr Johnson was the one giving the orders. When everybody was out of the way, he would telephone down to have the conveyor turned on to free it up. On further consideration, Mr Jedra thought that an electrician, Jim, was still there but he had difficulty in placing the time when he was there and while the blockages were being cleared. After clearing the first conveyor, they started on the second conveyor. At this point, he had no idea where Mr Nolan was placed. The clearing of the blockage was done only by himself and Mr Clarke. Although his memory seemed unclear, Mr Jedra said that the covers had to be unbolted and slid away in order to be able to dig out the product that was blocking the conveyor. 108 After the second conveyor had been freed and was running, he was involved in a discussion about replacing the cover that had been removed from the conveyor and he heard Mr Clarke yelling "Turn it off, turn the machine off" or something like that. He then saw that Mr Nolan had been taken in by the conveyor. Because of his position in clearing the conveyor, Mr Jedra said that, while working on the second conveyor, he was not able to tell at any given time where Mr Nolan was stationed. 109 When clearing the first conveyor, he had heard a warning sound when it was about to start but he did not think there was a warning sound or horn when the conveyor started while clearing the second conveyor. 110 When he commenced work at the site, Mr Johnson had given him induction training and talked about safety on the site and had given out a white booklet. There were also some other documents given out which Mr Jedra could not recall. 111 In cross-examination, Mr Jedra said that, when unblocking the conveyor, Jim the electrician was up there "somewhere" but there was one conveyor that he did not have anything to do with - that conveyor had been isolated from downstairs in the control room by Gordon. He had no idea who was isolating upstairs. He had not isolated upstairs and he imagined that someone else did. It was clear that Mr Jedra was talking about conveyor H1. He then spoke about moving on to clearing conveyor T1. When Mr Jedra went on to clear the blockage in T1 he knew that Mr Nolan was somewhere around but he did not know precisely where. 112 While working on clearing the blockage, Mr Jedra accepted that the running of the conveyor was communicated to the control room through Mr Johnson using his mobile telephone: the actual work of digging was carried out by Mr Nolan, Mr Clarke and himself. He also accepted that the decision as to whether the conveyor should be forwarded or reversed was one that either Mr Jedra, Mr Clarke or Mr Nolan made or all three made, depending on how much of the blockage had been shovelled out. It was Mr Clarke who was talking to Mr Johnson about reversing or forwarding the conveyor. Mr Jedra also accepted that Mr Johnson would ask Mr Clarke if everybody was out of the way before they tried again to move the conveyor. Sometimes Mr Johnson would ask if they wanted to try the conveyor again and, when everybody was "okay", he would speak to the control room. Mr Jedra also accepted that it was "pretty much" an accurate description that Mr Clarke decided whether or not the situation was ready for another try at moving the conveyor. 113 Mr Gordon DeBoick was employed by Advantage Personnel in March 1999 as an electrician. From December 1998 he had been employed by that company to assist in the construction of the upgrade of the bitumen plant for CSRE. Initially his work was supervised by Mr Davy and after that supervision was performed by Mr Hillier and Mr How. 114 On the day of the accident, and just prior to it, he was in the switch room behind the control room and was engaged in reversing the conveyor belt to help assist in unblocking the conveyor. The conveyor motors were three phase motors and to reverse the motor required him to swap over two of the phases to get it to move the other way. He was required to do this on six to eight occasions that day in relation to conveyors H1 and T1. He performed this task in relation to H1 first and then in relation to conveyor T1. He had been instructed to perform this task by Mr How. He performed this task in the switch room which was very narrow and after performing the task he would go back to the control room and inform Mr How that the phases had been reversed. He isolated the conveyor by turning off the circuit breaker but he did not place any tags or locking devices on the circuit breaker. He did not do it on this occasion because he was not leaving the switch room - he was there all the time. It only took a few minutes to turn it off, unscrew the wires, swap them over and turn it back on. In his view, he did not have to put a tag on them. He heard Mr Johnson speaking on the walkie talkie and he would inform the control room whether the conveyor was working or not and whether or not it should be reversed. 115 In relation to the electricals for the three phase motors, they had control circuits, usually temperature controls, so that if the motor overheated it would shut down. There were also isolating switches and the control circuit was about 110 volts, single phase. The control circuits would sense overheating and trip out the circuit breaker. On this day, he was not touching the control circuit - he was dealing with the 415 circuit, which might be called the power circuit, as opposed to a control circuit. Mr DeBoick said that after each one was cleared of blockage he did not isolate its circuit breaker before work commenced on conveyor T1. Mr DeBoick said that if the isolation switch on H1 was turned to the off position then H1 conveyor could not run. 116 Site training was conducted by Mr Johnson, and Mr DeBoick had received such training. The training was in relation to general site awareness but there was no induction in relation to electrical matters or electrical circuits. 117 In the control room, he was taking instructions from Mr How whom he understood to be talking to Mr Johnson on top of the silo. Mr DeBoick had seen Mr MacFaddin assisting Mr How and Mr Hillier in trying to solve the problem in relation to the blockage on the conveyor. His main task seemed to be assisting the other two supervisors to get the place up and running. 118 The circuit breaker in the control switch room was the means by which the conveyor motors were isolated. The other way of isolating them was to do so through the main breaker which would "kill everything" but, generally, the isolation of the plant would be where people were working because it was not desired to turn off the whole plant. Mr DeBoick said the isolation procedures were "fairly standard Australia wide". 119 Mr Davy was employed as an installation supervisor by JCS and had been working at the Rosehill plant since July 1998. He was not at the plant on the day of the accident but commenced an investigation shortly thereafter in relation to the accident. At the silos, he had inspected how the "gob hoppers" were wired and said there was a lock which was wired and the lock was changed. He identified that there was a problem in the wiring between gob hopper 2 and gob hopper 6. Mr Davy had looked at a cable tray outside the silo where there was a row of terminals and all the wiring that went to the various gob hoppers. He said this was installed for ease of maintenance and allowed isolation or disconnection from one place. He found a wire change had been made during his absence. He had formed the view that, since the Friday of the accident when he was absent until he returned on the Tuesday and started his investigation, there had been a wiring change. He formed that view against the background that he had performed most of the electrical design on the plant. 120 Mr Davy was asked to accept the proposition that a group of contactors came on in the switch room rather than one. He understood that the computer could run in automatic mode or in manual mode. In manual mode with conveyors H1, H2, H3, T1 and T2, the screen identified different conveyors and identified a particular button to press to make a particular conveyor start or stop. In manual mode, when the button was pressed in the computer room, in a second or so, one would hear a click in the switch room - that was the contactor energising. Effectively, what was happening was a circuit was being created so that energy could run up to the motor which was located at the top of the silo and start the conveyor. Mr Davy said that, if one button was pressed and it was confirmed by pressing "enter" on the computer, he would expect one contactor to energise and one conveyor to start. It was not possible to press more than one button at a time representing more than one conveyor. It was only possible to start one conveyor at a time. In Mr Davy's view, there was no way that all contactors could be switched on by using one key on the keyboard. He did not believe that, if something was done to the wiring, it would be possible to cause more than one contactor to come into play at the one time if the computer was in manual mode and only one button had been pressed. Mr Davy accepted that it was possible to run a wire from one particular power source to the next power source so that, as one button was sent the message, it would then cause the power to access across more than one contactor. If that happened, he would expect more than one conveyor to start at the same time on top of the silo. 121 In March 1999, Mr Larry How was a director of JCS. In that capacity, he performed duties in relation to administration, estimating and sales. At the CSR Emoleum Rosehill site, the company had three direct employees and three sub-contracted employed through Advantage Personnel. The company was involved in materials handling, equipment and fabrication. At the Rosehill site, the company had won a contract to supply, manufacture and install a CMI asphalt production facility. Throughout the performance of the contract with the partnership, Mr Kevin Johnson was the company's main point of contact with the partnership. 122 The contract incorporated standard procedures for isolation of equipment using danger tags and out-of-service tags. The system used primary and secondary isolation: the isolators on the conveyors were secondary isolators and the primary isolators were in the control room. 123 On 5 March 1999, Mr How was on site at the plant. The contract was in two separable portions and practical completion of separable portion 1 had been achieved earlier and the plant was in operation and was being used for production. Work was being performed on separable portion 2. During 5 March 1999, there were blockages on the transfer conveyor H1. Mr How recalled that, at the time H1 blocked, Mr Johnson had told him that they wished to transfer bitumen from the batch plant to another silo along a different conveyor: they elected to keep producing and transfer the bitumen into the alternate silo at the end of T1. After H1 was blocked, there was also a problem with T1 blocking. He was informed of this by Mr Johnson. Mr How said that basically Mr Johnson directed how to unblock the conveyors which meant that there would be no production. 124 The employees and the sub-contractors were mustered at the bottom of the silos opposite the control room and Mr Johnson had expressed concern while Mr Hillier was present that the blockage had to be cleared safely. There was a conversation and a work method was arrived at whereby Mr Johnson would take an electrician and some others to the top of the silos and Mr How would go into the control room with another electrician at the primary isolator in the control room to isolate the conveyors while the employees were working on them. The walkie talkies were not working properly and an election was made to use mobile telephones. Mr Johnson gave Mr How a mobile telephone and from then on contact was made which would allow Mr How to direct the person in the control room or switch room to isolate the conveyor. Mr How would then confirm with Mr Johnson that the conveyor had been isolated - that primary isolation had been achieved. He understood that then Mr Johnson instructed the electrician to "isolate the secondary". Mr Johnson would also indicate which way he wanted the conveyor to run and Mr How would instruct the electrician to change the wiring around. Mr Johnson would notify Mr How that everybody was clear of the conveyor and Mr How would ask Mr Day to sound the warning horn. After the horn was sounded, Mr How would say to Mr Johnson on each occasion, "Did you hear the horn?" and he would say, "Yeah, I heard the horn". Mr Johnson would then confirm that everybody was clear, and Mr Day would hit the button to try to start the conveyor. Mr Johnson would say whether the conveyor was running or still bogged. When Mr Day hit the button to initiate movement and there was no movement confirmed by Mr Johnson, Mr Day instructed the person in the switch room to isolate the conveyor at the primary isolator and then Mr Johnson would be informed that the conveyor was isolated. 125 Mr How remembered that H1 was successfully cleared and that "We switched it off at the control panel". Work then commenced on T1. The same process was followed on conveyor T1. 126 Mr How recalled that he had instructed Mr Day to start T1 and then he heard "a lot of contactors coming on at the one time, not just one". He had been used to the click of the contactor pulling in at the switch room but now there was "a whole heap of them that pulled in at once" - at that time he heard an anguished cry coming through the telephone and then the telephone went dead. Mr How said to Mr Day, "What was that?" and Mr Day said: I accidentally hit the wrong button and started all the conveyors but it's alright now I've just got T1 going now. Mr How left the control room and heard Mr Johnson yelling out for an ambulance because someone was caught in the conveyor. Mr How said that he was taking directions from Mr Johnson in relation to the clearance of the blockages. Mr Johnson was the superintendent of the contract and had given Mr How induction training on the site. 127 On 5 March 1999, Mr How believed that the commissioning of the plant dealing with separable portion 1 involved CSR Emoleum running the plant and then fault finding with the plant and repairing that fault. Mr How regarded this as "wet commissioning". Mr How said that his company had warranted that the plant would operate to certain key performance indicators and that the problems came under warranty provisions. The plant was not operating to those key performance indicators as at March 1999. Mr How's view on the day the plant operated, the partnership was doing the commissioning but JCS was not in control of the plant and had no operators to operate the plant. 128 In cross-examination, Mr How reiterated that he and Mr Johnson came to an agreement as to who was going where in relation to the communication between those on the silo and those in the control room. The men doing the unblocking would have taken direction from either Mr Hillier or Mr How. Mr How rejected the view that the system had been altered from an earlier system of using hand signals - that was not possible because of where the blockages were located. 129 Mr How accepted that, in the normal course of operation, hitting a button on the computer to start a conveyor would start only one conveyor. Mr Day, however, had access to an "upper level programme" which allowed it. Mr How did not know the technicalities of how that could happen but believed that a programmer had access to another part of the programme that would enable a number of contactors to come on at once. 130 While in the control room, Mr How said he could hear Mr Johnson giving direction to the workers during the course of clearing the conveyors - he instructed them to vacate the conveyors, to stand clear and instructed them that the conveyors were about to start. 131 Mr How stated that isolation tags had not been used nor lock out tags during the process before the accident. It had been agreed between Mr Johnson and himself that, if a licensed electrician was positioned at the isolator with a direction to isolate the conveyors, that would be sufficient. In addition, primary isolation was used. 132 Mr John Day, as at 5 March 1999, was a director of a company called Klydine Pty Ltd with the trading name of Industrial Software and Electronics. On that day, he was at Gate 1 Unwin Street, Rosehill and was aware of the fatal accident that occurred on that site. Mr Day was on site assisting JCS with the commissioning of the plant. He was starting and stopping parts of the plant at the request of JCS to see if it worked and he was working with the electrician to test out the electrical wiring and pieces of plant as they were installed. In addition, there were three computers and he was operating the computer. His company had developed the software programmes. 133 About 15 minutes before the accident, Mr Day had been working on the computers in relation to the dispatch area. Mr Hillier asked him to turn off the 110 volt supply. He turned off the other two computers and everything was shut down so that Mr Hillier and "Gordon" could do something with the 110 volt system. Mr Day was not sure what they were doing. After that, Mr How said he wanted to start the conveyor that was bogged because he thought the employees had dug it out and it could now run. That was conveyor T1. 134 Mr Day told him that the computers were off because Mr Hillier was doing something. Mr Day left and had a discussion with Mr Hillier and they decided to turn all the power back on, to start up the computers, and to try to get conveyor T1 to run. 135 Mr Day said that, on the computer programme, pressing a key, which would have a particular conveyor start, led to text coming up on part of the screen with a "yes" and a "no". If the operator pressed "enter", the conveyor would start - if "escape" was pressed, nothing would happen and the box would go away and the conveyor motor would not start. 136 Earlier in the day, when the computer tried to open gob hoppers 2 and 6, it would cause an alarm on both 2 and 6 to be operated and Mr Day assumed that there was an electrical problem. They had not found out what was wrong because there were people working there, and for a good portion of the day the computer had to be off. Mr Day recalled at one point that Mr How yelled "Stop the slat" while they were trying to get conveyor T1 operational. Mr Day said he hit what he thought was the button to stop that conveyor and hit the "enter" key straight after. He was watching the screen. The conveyor did not stop so he repeated the action and it stopped. He noticed that, at that stage, H1 had started so he hit the button to stop H1 and it stopped. Mr Day also stated that, on the computer system operating at the plant, he was not able to identify on the screen whether a conveyor had been electrically isolated nor could he have advised anybody if a conveyor was isolated unless he had done it himself and locked it down. 137 Mr Day said that, as at 5 March 1999, he was part of the team for testing and commissioning the plant. That team consisted of JCS and the company had provided his services. 138 During the course of the day, there were problems with the plant, alarm signals on the computer and with the opening and shutting of gob hoppers. In Mr Day's opinion, the fact that the computer showed the alarms were "non current" meant that they were re-set - "someone pressed the evade button". There was nothing prior to that to say it would activate and he did not know what caused the alarm. From a printout shown to him, he said the entries showed that the alarms were re-set at 18:16, and the alarm came back on pretty well straight away. The term "non-current" suggested that someone had hit the alarm reset button. 139 After Mr Day had hit the alarm re-set, he put the computer on the manual screen and he asked Gordon if he was out of the way and "we could run things". He next asked Mr How if it was alright to start that section of the plant and he said "Yes". He reached over to the keyboard of the second computer, blew the horn three times and then he said, "Okay" to Mr How and asked him what he wanted him to do, and he was told to start T1. He then pressed the button to start T1. He did not hear any overload and he assumed that the conveyor had got under way. Mr How then asked him to open up gob hopper 1 and changed it half a second later to gob hopper 2. Mr Day had started to do that key combination for 1 then started to go to key 2: when the computer tried to open 2, it would cause an alarm on both 2 and 6. He was figuring out what he should do next when Mr How told him to stop and ran out of the room. Mr Day said he hit what he thought was the button to stop the conveyor and he hit the "enter" key straight afterwards - he was watching the screen. The conveyor did not stop so he repeated the action and it stopped. He knew that at that stage conveyor H1 had started, so he hit the button to stop H1 and it stopped. 140 In cross-examination, Mr Day said that, if a number of contactors went on when one button was pressed, he could not imagine why that would occur in manual mode on the computer. Pressing one button could cause only one contactor to engage and it was not possible to press two buttons and have two default boxes come up on the computer screen at the same time. He accepted that, if more than one contactor engaged at the same time, he would expect to have more than one conveyor start at the same time. It was possible to start a number of conveyors within 60 seconds and the time sheets being shown to Mr Day were in 60 second sections. Mr Day did not know whether anybody else was doing any wiring work on the day of the accident but he was not doing any. Mr Day understood that after conveyor H1 had been cleared the 110 volt power had been turned off. That was when Mr Hillier asked for it to be turned off. He believed the 110 volt power was turned off only for a matter of minutes. 141 Mr Trimble was employed by CSR Ltd as its Chief Financial Officer of the Construction Materials Division, when interviewed by Inspector Piggott on 8 February 2001. He stated that he was authorised to speak on behalf of CSR Emoleum Services Pty Ltd, the defendant, being a director of the defendant He was also the general manger of the Melbourne CSR Ready Mix business which was part of the Constructions Material Division. This statement was tendered by the defendant without objection and he was not required for cross-examination. 142 Mr Trimble stated that the Rosehill site was owned by CSR Ltd and that the plant and equipment on that site was owned by CSR Emoleum Road Services. On 5 March1999, the site was occupied, to the best of his knowledge, by CSR Emoleum Road Services. He confirmed that Mr Mylvaganam was an employee of the defendant and had been authorised by CSR Emoleum Road Services to sign the refurbishment contract between CSR Road Services Pty Ltd and JCS. He explained that persons seconded from the defendant had been given limits of authority to sign certain documents for CSR Emoleum Road Services Pty Ltd. In relation to the defendant, Mr Trimble said: (a) the defendant did not have a safety committee, but that CSR Emoleum Road Services did have such a committee; (b) the defendant did not have a safety policy to his knowledge, but that CSR Emoleum Road Services did have such a policy; (c) the defendant did not monitor the effectiveness of the safety policy, but that CSR Emoleum Road Services did so; Mr Trimble did not know if Mr Johnson was an employee of the defendant on 5 March 1999. SUBMISSIONS FOR THE PROSECUTOR 143 In the light of a number of concessions and the manner in which the defendant approached the case, many of the formal issues were not in contest. There was no suggestion that the Inspector did not have authority to bring the prosecution, and it was conceded that the defendant was an employer who employed persons at the Unwin Street Rosehill site. Nor was it contested that JCS employed people at the site as well as engaging Advantage Personnel, a labour hire company, to supply employees for the project, including the deceased Mr Nolan. Further, it was conceded by the defendant that it provided labour to CSR Emoleum Road Services (the partnership) and provided such labour at the Unwin Street Rosehill site. The following concessions were made by the defendant: (a) Inspector Piggott was duly appointed and empowered by s 48 of the Act to institute the proceedings; (b) employees at the site included Mr How, Mr Hillier, Mr Davy, Mr Clarke and Mr Jedra; (c) Mr Nolan, Mr Davidson and Mr DeBoick were employed by Advantage Personnel; (d) Mr Johnson, Mr Morrison and Mr Mylvaganam were employees of the defendant; (e) Mr Nolan, Mr Clarke and Mr Jedra were not employees of the defendant; 144 The prosecution alleged that, as project manager, Mr Johnson was responsible for controlling the works undertaken by JCS in relation to the installation, commissioning and warranty of the new asphalt plant and for ensuring compliance with occupational health and safety requirements during the works. Mr Johnson was also said to be responsible for managing the contract between CSR Emoleum Road Services and JCS in relation to the work. 145 In relation to the partnership CSR Emoleum Road Services, it was alleged that persons in its managerial hierarchy, including Mr Ian Pynor, were also employees of the defendant. This was said to be demonstrated by comparing a list of employees of the defendant with the partnership organisational chart of December 1998. These two documents were said to show that the salaried employees of the defendant formed the managerial hierarchy of CSR Emoleum Road Services. 146 The defendant employed Mr Morrison who performed the role of regional occupational health and safety and environmental manager and his duties included advising as to occupational health and safety matters at the site. Mr Morrison reported to Mr Deva Mylvaganam, the eastern regional manager. Mr Johnson reported to Mr Pynor and Mr Mylvaganam. 147 Mr Morrison, Mr Johnson and Mr Mylvaganam were all involved in reviewing and finalising the occupational health and safety requirements and considerations as set out in the contract between CSR Emoleum Road Services and JCS. On 1 July 1998, Mr Mylvaganam accepted for and on behalf of CSR Emoleum Road Services the written offer from JCS to install the asphalt production plant at the site. Mr Mylvaganam signed the contract for and on behalf of CSR Emoleum Road Services, having been given authority by CSR Emoleum Road Services to do so. 148 The document entitled "The requirements for contractors and contract labour working on the premises of CSR Emoleum Road Services" was one prepared by Mr Johnson and Mr Morrison. Within that document, CSR Emoleum Road Services nominated a representative who was "the person nominated by CSRE as the first point of contact for the contractor and who is authorised by the company to control the works undertaken by the contractor". The document also required each contractor, before commencing work on CSRE premises, to be aware who was the nominated representative and to whom the contractor was responsible on the site. All questions and dealings were to be directed through the nominated representative. Mr Johnson was the nominated representative and was appointed and authorised by CSR Emoleum Road Services as the contact person at the site for all safety and environmental matters relating to work under the contract. It was said to be clear from the evidence that there were no CSR Emoleum Road Services employees who carried out the tasks referred to in the "requirements for contractors" document in relation to the JCS works. CSR Emoleum Road Services used the defendant's employees, particularly Mr Johnson, to carry out these tasks. 149 Mr Johnson and Mr Morrison had also prepared the site rules for contractors and contract labour working on the premises of CSR Emoleum Road Services. This document was presented to workers on the site when they were being inducted. The document required all contractors and contract labour to ensure that they complied with the Occupational Health and Safety Act 1983 and stated that a CSRE nominated representative had been appointed to be their contact on all safety and environmental matters relating to their work under the contract and nominating Mr Johnson as the representative. 150 It was Mr Johnson who had supplied induction training to the contract labour on the site and he reported monthly to CSR Emoleum Road Services on continuing occupational health and safety compliance by the contractors and issues involving the safe operation of the plant. This was acknowledged by Mr Morrison in a letter to Inspector Piggott. 151 Mr Johnson had said that, as the project manager, he was the person responsible for ensuring contractor compliance with occupational health and safety requirements at and prior to 5 March 1999. At the time of the accident, he also had authority to intervene at the site during the currency of the contract with regard to occupational health and safety issues and had responsibility to alter the contractors' system if it was found to be deficient. Mr Morrison said that Mr Johnson, in conjunction with the contractors on site, supervisors or managers, managed any occupational health and safety issues that arose when they were brought to their attention through use of the systems or procedures. Mr Morrison also had a role in carrying out inspections, identifying occupational health and safety issues that required corrective action. 152 Mr Johnson received reports from Mr Davy and Mr How of JCS on issues of occupational health and safety continuing compliance. The defendant was involved, through Mr Johnson and Mr Morrison, in the day to day management of occupational health and safety issues including determining which system/standards were relevant to the site, consulting with JCS and its safety managers in relation to the implementation of safe working practices, and ongoing review of how the occupational health and safety issues were being managed and monitored. 153 The involvement of the defendant's employees in the contract between the partnership and JCS was said to be demonstrated in the following way: Under the contract, a superintendent was appointed who was, in fact, Mr Pynor. Mr Johnson, as the superintendent's representative, wrote to Mr How of JCS in December 1998 in relation to the practical completion date for separable portion 1 of the contract and requiring certain matters listed in that letter to be attended to prior to completion of the contract. The letter attached progress certificate No 6 which authorised final payment for "practical completion, separable portion 1" which was signed by both Mr Johnson and Mr Mylvaganam. On 21 December 1998, Mr Johnson signed as project manager and Mr Mylvaganam signed as regional manager a progress payment authorising payment to JCS being the final instalment and completion of separable portion 1 under the contract. 154 Separable portion 1 of the contract included the conveyors H1 and T1 and was completed in December 1998. At the junction of the main conveyor and conveyor H1 was a hopper referred to as a "gob hopper" and there was also a gob hopper at the junctions of T1 and H2 and at T2 and H3. 155 In 1999, JCS was working on separable portion 2, but was called upon to clear blockages of asphalt product from the completed works in separable portion 1 from time to time. In the course of these blockages, the hot mix asphalt was cooling and hardening on the conveyors within the plant. On the day of the alleged offence and in the previous weeks of 1999, CSR Emoleum Road Services had been producing asphalt for commercial sale using the new plant. 156 While there was a good deal of evidence concerning the status of separable portion 1 and whether, at the time of the accident, it was being commissioned by JCS or whether it had been handed over to CSR Emoleum Road Services with JCS providing warranty work, the prosecution submitted that this debate was largely irrelevant. While it did appear that CSR Emoleum Road Services had produced and sold product to a client, all JCS workers were subject to overall control by the defendant's employees including Mr Johnson and this extended to overall control of occupational health and safety matters. Importantly, the task of clearing the blockages was being supervised directly by Mr Johnson on the day of the accident. 157 Mr Johnson agreed that there had been earlier blockages on the day of the accident and before the accident, but had difficulty recalling the detail or how long he had been in attendance at the clearing of those blockages. Later in the day, conveyor T1 and conveyor H1 became blocked with asphalt and rendered inoperative. Mr Johnson directed JCS to carry out the task of clearing T1 and H1 in order to continue transporting previously produced asphalt to the silos for storage. Mr Nolan was working with Mr Clarke and Mr Jedra to clear the blockages. 158 Although Mr Johnson could not remember Mr Nolan being present, the evidence established that he was there during the clearing of the blockages in the afternoon. H1 was cleared of asphalt product and immediately following T1 was similarly being cleared of asphalt product. During the course of clearing T1, conveyor H1 was inadvertently caused to operate resulting in Mr Nolan becoming entrapped within its moving parts. This occurred at about 6.30 pm. 159 The evidence demonstrated that the following procedure was used in the process of clearing both conveyors H1 and T1 on the day in question: (a) the conveyor was isolated in the control room and an isolation switch located in the near vicinity of the conveyor was turned to the "off" position; (b) a cover which securely guarded the internal parts of the conveyor was removed so as to expose a portion of the conveyor and enable access to and clearance of the built-up asphalt; (c) Mr Clarke and Mr Jedra (and, in the case of conveyor H1, Mr Nolan) manually cleared the conveyor of the blockage by shovelling the asphalt product from the exposed portion of the conveyor; (d) once it was considered that sufficient product had been removed, the conveyor was operated in forward and reverse directions in order to finally clear the blockage; (e) in order for the conveyor to operate either forward or in reverse, the following process was adopted: (i) Mr Johnson was positioned above the conveyors and used a mobile telephone to communicate with Mr How that the conveyor was ready to be put into operation; (ii) Mr How was located approximately 30 metres away in the control room at ground level. Mr How conveyed the instructions from Mr Johnson to Mr DeBoick who was supervised by Mr Hillier in the adjacent switch room. Mr DeBoick caused the polarity of the conveyor drive motor to change depending on whether the instruction was to operate the conveyor in the forward or the reverse direction; (iii) the switch, located on or near the vicinity of the conveyor that previously isolated the conveyor, was switched to the "on" position; (iv) Mr Johnson called out "All clear" and notified Mr How that everybody was clear of the conveyor; (v) Mr How relayed the communication to Mr Day (a person who was employed by Klydine Pty Ltd which was supplying computer software to control the plant). Mr Day was positioned in the control room and operated a computer that ultimately caused the relevant conveyor to operate. To cause a conveyor to operate, Mr Day sat at a console keyboard with a monitor in front of him. With the computer system switched to manual mode, displays on the console screen depicted various pieces of plant including conveyors H1 and T1. Boxes beneath these displays contain letters of the keyboard. The computer control system was configured so that the letters displayed corresponded with the top row of the computer keyboard. The letter "R" represented conveyor T1 and the letter "T" represented conveyor H1. To cause the operation of a particular conveyor the letter on the keyboard corresponding to that letter displayed on the monitor was selected. A window appeared on the monitor incorporating a message relating to the starting of the particular conveyor and "yes/no" in boxes with default to the "Yes" box. Striking the "enter" key would start the particular conveyor. To stop the particular conveyor, the corresponding letter was again selected, the window again appeared with a message relating to stopping the conveyor with "Yes/No" boxes and default to "Yes". Striking the "enter" key would stop the conveyor. (vi) prior to Mr Day ultimately causing a conveyor to operate, he would sound the warning signal. The horn was located some 50 to 60 metres from where Mr Johnson, Mr Nolan, Mr Clarke and Mr Jedra were situated at the top of the asphalt plant cleaning the blockages. 160 The procedure using mobile telephones arose out of a discussion between Mr Johnson and Mr How. Even though Mr Johnson said he was not sure who was co-ordinating the operation of clearing the conveyors, the evidence made it clear that Mr Johnson was an active participant as a supervisor in this process on 5 March 1999. Mr How stated that he was taking directions from Mr Johnson. 161 Mr Tom McFaddin was also present on the day. He was employed by CMI Corporation in the USA. He was there in the role of an observer and to check some of the CMI equipment. In a statement tendered, he said he witnessed the clearing operation at the top of the silos. He thought that Mr Johnson was co-ordinating the operation. 162 There were warning signs on or near the conveyors that pointed to the risk of injury or death from operating the equipment without covers and guards being in place. 163 At the time of the accident, there were no written instructions in place for clearing blockages. Mr Hillier gave evidence that he had given a draft maintenance manual to Mr Johnson which included such instructions but it is not clear when this document was forwarded to Mr Johnson. Mr Johnson gave evidence about draft operating procedures not being sent to him until April 1999, but this was a different procedure. The procedure for clearing blockages used on the day of the accident was not in accordance with these instructions which required isolation and tagging to occur at both the switchboard and at the switch on the conveyor. 164 The procedures used on the day of the accident were also not in accordance with similar isolation and tagging requirements set out in the document entitled "CSRE Procedures for isolation of equipment (lock out/danger tags) WI-037A" which applied to all employees and contractors on CSR Emoleum sites. As part of his responsibility, Mr Johnson had to ensure compliance with these instructions by contractors. The procedures required that primary isolation should be used, which meant that tags or locks had to be put on the power circuit not the control circuit. The switches in the control room related to the power circuit, while the isolation switches on or near the conveyors related to the control circuit. This procedure was referred to in the site rules for contractors. The procedure used on the day was not in accordance with similar requirements in the relevant Australian Standard for Conveyors - Design, Construction, Installation and Operation - Safety requirements (AS 1755 - 1986) which was to apply at the site. Mr How could not remember seeing these documents before the accident but said they were standard industry requirements. Mr How also said that this procedure was not complied with on the day of the accident. 165 As a result of these procedures not being complied with, the H1 conveyor was not isolated in the control room in the period before the accident when conveyor T1 was being worked on, nor was the isolation switch for the H1 conveyor turned off during that time. 166 Previously, in the course of clearing conveyor H1 of asphalt product, that conveyor had been isolated from its power source by causing its switch, located in the vicinity, to be turned to the "off" position. Thereafter, a cover was removed so as to enable access to the product. The removed cover measured 730mm in length and 630mm in width and was located in a position approximately 2.5 metres above a platform that spanned the silos. Once the cover was removed, internal parts of the conveyor, including chains, sprockets, sections of angle steel slats and the asphalt product were exposed. 167 The process described above was used for clearing T1 on the day. Mr Day said that during this process he was required firstly to cause T1 to operate and then to cease operation. It was submitted that it appears that, in the process of causing T1 to cease operation, Mr Day inadvertently selected the letter "T" key as distinct from the appropriate letter "R" key and with a default to "Yes", Mr Day automatically hit the "enter" key and, as a result, H1 was caused to commence operating rather than T1 being caused to cease operation. Although Mr Day did not give direct evidence that he hit the wrong key, the prosecutor submitted that it could be inferred that this is what happened. In fact, Mr Day was heard to utter words consistent with his having made a mistake, according to the evidence of Mr Hillier and Mr How. It was the evidence of Mr Clarke, Mr Jedra and Mr Day that conveyor T1 was already going when conveyor H1 was started, although some witnesses thought that T1 and H1 started at the same time. Further, it seems that, immediately before the accident, either there was no warning sound or, if there was a warning sound, it was not heard by those situated near the T1 conveyor. 168 It was submitted for the prosecutor that it was not necessary to make findings as to the exact mechanics by which conveyor H1 started. Each of the scenarios put forward demonstrated the circumstances in which a conveyor could be started inadvertently. If the Court thought it necessary to make a finding on the issue, it was submitted that the evidence of Mr Day, Mr Clarke and Mr Jedra as the most directly involved in the operation should be preferred. In any event, it was submitted, it was clear as a result of conveyor H1 operating, Mr Nolan became entrapped with the moving parts of that conveyor and sustained fatal injuries. 169 The prosecutor submitted that, in summary, between the time conveyor H1 was cleared of asphalt product and during the process of clearing conveyor T1 of product: (a) a cover of some dimensions that securely guarded the internal parts of conveyor H1 was removed in order to facilitate the process of clearing the product from H1 and had not been replaced. Consequently, the internal parts of the conveyor, including chains, sprockets and sections of angle steel slats were exposed; (b) conveyor H1 was not isolated from its power source by any means either in the control room or at the conveyor. Mr Johnson should have been aware that the isolation switch for conveyor H1 was not switched off because it was visible from where he was standing even after he went on to the platform; (c) Mr Johnson did not consider replacing the cover removed from the conveyor H1 or isolating conveyor H1 from its power source prior to clearing conveyor T1; (d) Mr Johnson was not aware of Mr Nolan's whereabouts and took no action to remove him from his position near the moving parts of conveyor H1 immediately preceding the accident. Mr Nolan was last seen seated on top of conveyor H1 adjacent to the exposed internal parts by Mr Clarke who was very near to Mr Nolan and made a grab for him when he got into difficulties. 170 It was submitted that the elements of the offence created by s 16(1) of the Act which are necessary for the prosecution to establish were well settled (WorkCover Authority of New South Wales (Inspector Keenan) v TAFE (1999) 92 IR 251 at 257). In that case, the Full Bench set out those elements as being: (a) that the defendant was an employer; (b) that there were persons who were not employees of the defendant who were exposed to risks to their health and safety; (c) that the risk arose from the conduct of the undertaking of the defendant; and (d) that the exposure to risk was at the defendant's place of work. All of these elements had been satisfied to the requisite level of proof. 171 It was noted that the defendant had conceded that it was an employer, and the evidence demonstrated that it employed Mr Morrison, Mr Johnson, Mr Pynor and Mr Mylvaganam. There was also evidence that the defendant employed a significant number of other salary and wages employees. 172 In relation to the nature of the defendant's undertaking, it was noted that, in WorkCover Authority of NSW (Inspector Carmody) v Tsougranis [No 2] [2003] NSWIRComm 108, the Court, in dealing with s 16 of the Act, stated that the notion of a "place of work" and "employer's undertaking" had been broadly construed for understandable reasons. A number of cases had been cited for that proposition. In the prosecutor's submission, the word "undertaking" was not to be given a narrow technical meaning divorced from the context of the Act. The width of the term had been accepted by Peterson J in Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994). 173 The prosecutor accepted that the defendant's undertaking had some similarities to that of a labour hire company. The obligations of a labour hire company under the Occupational Health and Safety Act towards its employees had been clearly demonstrated in a number of leading authorities. Those obligations had been held to apply notwithstanding that such companies may be set up as non-profit organisations, have no control of the site in a physical sense and in circumstances where another corporation had purportedly taken over all responsibilities under the Act in relation to the labour hire company's employees, such as the undertaking of all training, supervision, instruction and the devising of systems of work (see WorkCover Authority of NSW (Inspector Robins) v Labour Co-Operative Ltd (No 1) (2001) NSWIRComm 223 per Hungerford J at paragraphs 13, 50 and 53). 174 To similar effect was the judgment of the Full Bench in WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at (35). There the Full Bench reiterated what had been said in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 455 - 456, and the statement that a labour hire employer was under no lesser liability or obligation under s 15(1) than an ordinary employer and, in fact, there were grounds for imposing a particular and positive obligation on such employers to ensure that the premises or the work done did not present a threat to the health, safety and welfare of the labour hire employees in view of the fact they were being sent to a workplace over which their own employer exercised limited control. 175 It was submitted for the prosecution that these well established obligations of labour hire companies could also apply to non-employees although it would depend on the circumstances of each particular case. In the present case, one of the employees supplied by the defendant, Mr Johnson, was supplied for the purpose of project management. That task involved managing the contract between CSR Emoleum Road Services and JCS for the site and controlling works undertaken by JCS at the site, including the overall conduct of and responsibility for the occupational health and safety issues concerning persons working on the JCS works at the site. 176 The defendant's undertaking was the provision of labour and, relevant to this site, that included the provision of the services of managing the contract between CSR Emoleum Road Services and JCS for the site and controlling works undertaken by JCS at the site, including the overall conduct of and responsibility for the occupational health and safety issues relating to persons working on the project at the site. In that context, a labour hire company providing a person such as Mr Johnson to manage the project, with overall conduct and responsibility for occupational health and safety issues, had obligations to ensure the safety of all non-employees, as well as its own employees working on the project at the site. Further, it was stated that the defendant's employees in the present case included management employees, amongst whom were those responsible for any acts or omissions at the place of work that created a situation of potential danger to health and safety. The defendant provided the services of Mr Johnson on the basis that he would exert the authority and responsibilities given to him by CSR Emoleum Road Services. Having done so, the defendant could not abdicate its statutory obligation to Mr Johnson or to CSR Emoleum Road Services. Even if Mr Johnson took direction and control from CSR Emoleum Road Services, this circumstance did not exonerate the defendant and allow it to avoid all liability. The defendant could not avoid liability simply because there were other employers who had similar responsibilities - a single transaction, or activities which take place in the workplace, under the Act can amount to an "undertaking" for more than one industrial person (WorkCover Authority of New South Wales (Inspector Reed) v CSR Limited t/as CSR Wood Panels (2001) 109 IR 275 at 289. 177 Attention was drawn to the judgment of Peterson J in WorkCover Authority v Boral - Montoro Pty Ltd (unreported, CT1218/996 at pages 9-10, 19 Decemeber 1997 for the proposition that the function of the Court was not to determine who, according to contractual arrangements, may be thought to assume some greater or primary responsibility for the meeting of the statutory obligation but rather the question was whether the defendant, in a particular case, had a statutory obligation. If there was such an obligation then, from the point of view of liability to prosecution, it mattered not what the contractual arrangements were between the defendant and any other party. The position was not altered by the fact that a number of persons had responsibilities in the one workplace (WorkCover Authority of New South Wales (Inspector Farrell) v Ross Morrison [2001] NSWIRComm 325 at [45]). 178 In relation to the issue of control, the prosecutor submitted that the actual conduct of the work did not have to be controlled by the defendant in order to be considered part of the defendant's undertaking. The control test was no longer determinative of whether a person was an employer. Further, there was no reason to import a requirement of control into the meaning "undertaking" for the purposes of the Act. 179 Nevertheless, the defendant in the present case did have control of the operation that created the danger to safety. The secondment agreement retained the right and power of the defendant to direct employees, and those employees worked in accordance with the requirements of CSR Emoleum Road Services as a result of the defendant directing them to do so. Moreover, the agreement in its terms made it clear that the defendant was responsible for the acts and omissions of the employees. Here, the persons who conducted and controlled the operation of CSR Emoleum Road Services at the site, in particular Mr Johnson but also Mr Pynor and Mr Mylvaganam, were all employees of the defendant. 180 An alternative proposition was put by the prosecutor. It was submitted that the defendant, in combination with others, actually exerted control over the operation at Rosehill because the operation was conducted jointly by the defendant and CSR Emoleum Road Services. The defendant was, so it was submitted, CSR Emoleum Road Services' "alter ego". It was said the concept of alter ego was well established in the criminal law: for example, a company could simply be the alter ego of the natural person/principal who had sole control of it and was the sole beneficiary of its operation. The act may be considered as personal actions of the natural person, or may be considered actions of an employee or agent of the company. This was a question of fact (R v Cobley (unreported, NSWCCA, 17 July 1992 per Badgery-Parker J at pages 14-16, with whom McInerney J agreed). 181 This alternative proposition was borne out by the evidence. The operation giving rise to the incident and potential risk was so connected with the business activities of the defendant that it occurred in the course of the "undertaking" of the defendant. The defendant's personnel files showed that Mr Johnson was actually appointed to a position in the defendant's operations. Mr Mylvaganam, to whom Mr Johnson was ultimately responsible for his work at the Rosehill site, was eastern region manager for the defendant as well as for CSR Emoleum Road Services, as demonstrated from the letter he wrote to Mr Johnson dated 8 December 2000. The joint nature of the operation could be seen from the whole of the defendant's personal file for Mr Johnson, which contained a number of documents relating to Mr Johnson's performance and activities at the Rosehill site even though some of them were labelled CSR Emoleum Road Services documents. Mr Johnson said, at the relevant time, he was employed by the defendant in the capacity as a project manager. Mr Morrison also said he was employed by the defendant in his capacity as environmental health and safety manager, eastern region. It would appear from this evidence that the management employees held the same position in both CSR Emoleum Road Services and the defendant. 182 In relation to "place of work", it was pointed out that that this term was defined in s 4 of the Act to mean "premises or any other place, where persons work". Reference was then made to the unreported decision of Fisher CJ in Inspector Clark v W N Meinhardt & Partners Pty Ltd (NSWIRComm 30 June 1992) for the proposition that this specialised piece of legislation was to be interpreted in industrial terms as a practical document applying to the customary organisation and industrial circumstances of the building and construction industry. That industry operated so that there were many classes of employees working for many categories of contractor, sub-contractor and manufacture and erection contractors: commonly, they may work one or more sites a day and his Honour considered the phrase "at work" as having a temporal connotation applying equally to all kinds of work. 183 The authorities had been reviewed by the Full Bench in Mainbrace Contructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84. It was accepted that the decided cases made it plain that the question of whether "an employer's place of work" ingredient, in s 16(1) of the Act was made out was a question of fact, notwithstanding any broad construction of the provision that would be appropriate. A broad construction of the term "place of work" in s 16 was appropriate. Further, in WorkCover Authority v TAFE the Full Bench said, at 262: This is not to conclude that, for the purposes of s 16 of the OHS Act, an employer may not carry out its undertaking remote from its principal or primary place of operation. However, each case under the section raising an issue as to the "place of work" must be determined upon its own facts and circumstances. In light of these authorities, it was submitted by the prosecutor that the relevant place of work of the defendant was the CSR site at Rosehill in that its employees were performing work at that site. The defendant was, through its employees, at a minimum providing the services of managing the contract between CSR Emoleum Road Services and JCS for the site and controlling works undertaken by JCS at the site, including the overall conduct and responsibility for the occupational health and safety issues concerning persons working on the project at the site. 184 The defendant had conceded that Mr Nolan, Mr Clarke and Mr Jedra were not employees of the defendant. The prosecutor submitted that there was a risk to the safety of those persons on 5 March 1999 whilst they were carrying out the work of clearing the blockages in the conveyors. That risk was the risk of injury from the conveyors working while persons were in the conveyors or located in close proximity to the active working parts of the conveyors. Warning signs on or near the conveyors were ample testament to the existence of that risk. 185 In this case, the failures alleged did not go to the mechanism by which conveyor H1 was wrongly started. The failures went to the safeguards that had been in place in the eventuality that a conveyor was wrongly started or an attempt was made to wrongly start the conveyor. It was not necessary for the prosecutor to show that the failures of the defendant actually caused the fatal injury to Mr Nolan as a result of coming into contact with a moving conveyor. 186 In relation to the requirement that the risk arose from the conduct of the defendant's undertaking, the prosecutor submitted that s 16 was in similar mandatory terms to s 15 of the Act. The legislation was directed at relevant persons by stating that they "shall ensure" that there is no risk to health and safety, indicating the absolute nature of an offence under the legislation. As was held in Carrington Slipways Pty Ltd v Callaghan (1995) 11 IR 467 at 470, the words "shall ensure" had the ordinary meaning of guaranteeing, securing or making certain the health, safety and welfare at work of all employees. The decision of the Full Bench in Mainbrace further stressed the need for employers to be pro-active under occupational health and safety legislation. 187 In this case, the omissions of the defendant were said to arise as a result of the conduct of its employee Mr Johnson. That conduct was part of the defendant's undertaking. Through the conduct of Mr Johnson, the defendant failed to provide or maintain systems of work in the operation of the conveyor systems and ensure the health and safety of the persons not in its employment clearing the conveyor. 188 More particularly, the defendant failed to ensure that the dangerous moving parts of the conveyors were securely guarded. The cover acted as a guard preventing the exposure to dangerous moving parts including sprockets, chains and sections of angle iron. The cover to the H1 conveyor was not replaced before the process of clearing the asphalt from conveyor T1 commenced. The dimensions of the cover were sufficient to pose a danger or potential danger for an employee to come into contact with the moving parts. The immediate cause of Mr Nolan's death resulted from him becoming entangled in these moving parts as a result of the cover having been removed and not replaced. 189 In addition, the defendant had failed to provide such supervision as was necessary in order to ensure the safety of persons working upon the conveyor system. This included a failure to check the whereabouts of all persons involved in the operation and/or a failure to ensure the persons involved in the operation were not near a conveyor prior to the conveyors starting. It also included a failure to ensure that the CSR Emoleum Road Services' procedures for isolation of equipment (lock out/danger tags W1-037A) which applied to all employees and contractors on CSRE sites were carried out. 190 Associated with the above failures was the failure to ensure that the conveyors were isolated when the covers had been removed from the conveyor. In particular, only primary isolation should have been used which meant that tags or locks should have been put on the power circuit not the control circuit. The power circuit was in the control room. In any event, there was no tag or lock on the isolation switch for the H1 conveyor during the operation of clearing the blockages prior to the accident. The isolation switch on conveyor H1 was not turned off in the time immediately prior to it inadvertently being started. Thus, the defendant did not ensure that the H1 conveyor was isolated from its power source. SUBMISSIONS FOR THE DEFENDANT 191 The defendant accepted the prosecutor's analysis of the four elements that were necessary to make out a breach of s 16(1) of the Act. The defendant admitted that it was an employer and that there were persons not employees exposed to risks to their health or safety. What remained in contest was that the risk arose from the conduct of the defendant's undertaking and that the exposure to risk was at the defendant's place of work. 192 The defendant pointed out that, in opening, the prosecutor in addressing the defendant's undertaking asserted a state of affairs that could not be sustained, namely: The defendant's undertaking in this case was the provision of labour, and relevant to this case, this included the provision of the services of managing the contract between CSRE and JCS for the site and controlling works undertaken by JCS at the site, including the overall conduct of and responsibility for occupational safety issues pertaining to persons working on the JCS works at the site. The relevant place of work for the defendant in this case was the CSR site at Rosehill; in that its employees were performing work at that site. The defendant accepted that it was providing labour to CSR Emoleum Road Services to enable that company to conduct its undertaking. It further accepted that the defendant's undertaking was the provision of labour. However, the defendant did not accept, and submitted that there was no evidence and that there could be no inference drawn from the evidence to show, that, additional to the provision of labour to CSR Emoleum Road Services, the defendant took on the tasks of: (a) the provision of the service of managing the contract between CSRE and JCS ; (b) the controlling of the works undertaken by JCS; and (c) the provision of the service of accepting the overall conduct and responsibility for occupational health and safety issues pertaining to persons working on the works. 193 In relation to the defendant's undertaking, being the provision of labour, the defendant pointed to numerous documents which established that position. It first noted the nature of the partnership agreement which came into existence on 4 July 1996. The partners to the agreement were CSR Ltd and Vacuum Oil Co. Pty Ltd. The business was required to carry on business under the registered business name of CSR Emoleum and/or CSR Emoleum Road Services. "Business" was defined to mean the business conducted by the partnership, of making, selling and placing asphalt and spray seal. The partnership had been brought into existence for the purposes of making and selling asphalt and spray seal and other associated services in Australia and South-East Asia. 194 The management of the partnership was by way of a committee where each partner appointed three members. The committee was charged with the powers to make decisions on behalf of the partnership, such powers being delegable subject to conditions. The partnership was required to obtain various sites for the performance of the partnership business and Gate 1 Unwin Street Rosehill was such a site. The Rosehill site was licensed to the partnership pursuant to a licence agreement. 195 The partnership agreement dealt with the requirements for staffing of the partnership: the partners had nominated from their existing employees persons to be engaged in the business. Those persons would be given letters of offer in terms set out in the agreement which effectively maintained their existing terms and conditions of employment. They would be employed by the defendant, CSR Emoleum Services Pty Ltd. It was said that those provisions in the agreement indicated that it was the partnership that was conducting the undertaking of making, selling and placing asphalt and spray seal and all aspects incidental thereto which led to the accident. The partnership agreement envisaged that the defendant would be engaged by the partnership for the provision of labour. The partnership having selected the relevant employees required the defendant to employ them. When employed, the partnership required them to be seconded to the partnership. Importantly, the partnership agreement contained no provision for the defendant to provide it with services as alleged by the prosecutor. 196 In relation to the secondment agreement, it was submitted that, at the partners' request, the seconder (the defendant) had agreed to provide the services of their employees to the partners for the purposes of the partnership business. While the seconder retained the right and power to direct the employees in the performance of their work, it was acknowledged by the parties that the partnership committee would be responsible for the day to day management of the partnership business and to that extent would have the authority to instruct and direct the employees in the performance of their work for the partnership. This was recognised by the seconder directing the employees to work in accordance with the lawful instructions and directions of the partnership committee for the purpose of the partnership business. It was also a term of the agreement that the employees were at all times to be employees of the defendant and not the partnership. Further, it was emphasised that no employee of the defendant could be sent to the partnership to perform work on behalf of the partnership without the approval of the partnership and the partnership had the right to terminate the secondment of an employee with reasonable notice. 197 It was submitted that it was clear from the secondment agreement that: (a) the employees of the defendant who were seconded were only seconded with the agreement of the partnership; (b) the partnership committee was responsible for the day to day management of the partnership business; (c) once seconded, the partnership had the authority to instruct and direct the employees in the performance of their work for the partnership business. No such right existed with the defendant in respect of the work employees performed for the partnership. From these facts it was submitted that the secondment agreement showed that the partnership committee retained control over its business and all employees seconded to perform work for the partnership. 198 In relation to the contract or agreement to upgrade the plant at Rosehill, that agreement or contract was between the partnership and JCS. The contract appointed the superintendent of the contract as the Sydney business manager CSR Emoleum Road Services. This person was identified as Mr Pynor. The evidence disclosed that Mr Johnson acted as his representative. It was pointed out that the defendant was not a party to this contract. It was not a party identified within that contract as having any obligation, duty or role in the managing of the contract, controlling the works as required by the parties to the contract, or accepting the overall conduct of any responsibility for occupational health and safety issues. It was submitted that the documentation indicated a contrary position because the obligations for these issues were governed by the contract itself. Further, the secondment agreement contained no provisions for the defendant to provide the partnership with services as alleged by the prosecutor. 199 The proper relationship between the defendant and the partnership was further demonstrated by the following matters: (a) the partnership carried on its undertaking under the terms of the partnership agreement by having the premises at Rosehill licensed to the partnership. The partnership had acquired the license of that premises; (b) the plant was owned by CSR Emoleum Road Services. Mr Peter Trimble had given a record of interview to Inspector Piggott, identifying himself as chief financial officer of the construction and materials division of CSR Ltd, general manager of the Melbourne CSR Readymix business and a director of CSR Emoleum Services Pty Ltd. Mr Trimble stated that, on 5 March 1999, the site at Gate 1 Unwin Street Rosehill was owned by CSR Ltd and the plant and equipment on the site at that date was owned by CSR Emoleum Road Services. To the best of his knowledge, CSR Emoleum Road Services was the occupier of the premises at Rosehill on that date. He confirmed that Mr Mylvaganam was an employee of CSR Emoleum Services Pty Ltd. In relation to Mr Mylvaganam signing the contract agreement between CSR Emoleum Road Services and JCS, Mr Trimble said that CSRE had limits of authority by which employees of CSR Emoleum Services Pty Ltd who were seconded could sign certain documents, and he could only assume the nature of the contract fell within the levels of Mr Mylvaganam's authority. Mr Trimble said that CSR Emoleum Services did not have a safety committee but that CSR Emoleum Road Services, to whom the employees were seconded, did have such a committee. CSR Emoleum Services, to his knowledge, did not have a safety policy but it was his understanding that CSR Emoleum Road Services, to whom the employees were seconded, did have such a policy. CSR Emoleum Services did not monitor the effectiveness of the safety policy but he understood that CSR Emoleum Road Services did so; (c) the personnel file of Mr Johnson indicated that, after his secondment, he was under the instruction and direction of the partnership committee. Performance, discussions, self-assessment, payroll deductions and notifications, salary reviews, termination and redundancy calculations were all conducted by, authorised by or carried out by the partnership. The partnership committee had power to terminate if it was dissatisfied with his performance. It was submitted that these matters could only be relevant to the assessment of Mr Johnson's performance on behalf of the partnership in their business undertaking - none of it could be relevant to the defendant; (f) Mr Morrison stated that he was performing his duties for and on behalf of a partnership whilst acknowledging his employment was with the defendant; (g) the financial records and directors' declarations that were in evidence indicated that the defendant seconded its employees to the partnership. This document also showed that the defendant's sole source of revenue was its receipts from the partnership. These funds were dispersed in their entirety to the satisfaction of its employees' wages and related costs. The defendant was paid no money for the provision of a service as alleged by the prosecutor. In addition, there were a number of documents identifying the partnership undertaking and its requirements. Some documents nominated seconded employees to partnership positions for the purposes of the partnership undertaking; (h) there were documents which indicated that the occupier/owner of the premises at Unwin Street Rosehill was the partnership. 200 The undertaking of the partnership was the making, selling and placing of asphalt and spray seal. It was submitted that this referred to all aspects incidental to and here relevantly included the upgrading of its plant. The undertaking of the partnership was effectively alleged by the prosecutor to be the undertaking of the defendant. This was in the context of the partnership agreement providing for the procurement of personnel by selecting persons already employed by CSR Ltd and Vacuum Oil Co. Ltd, offering them a contract of employment with the defendant, and seconding those employees from the defendant to the partnership. 201 At the time of the accident, the following facts were established: (a) the partnership had occupation of the premises at Rosehill under licences from CSR Ltd; (b) the partnership owned the plant and equipment at the site; (c) the partnership had entered into the agreement for the construction of the new plant where this accident occurred; (d) the partnership selected the employees to be offered contracts of employment for the defendant; (e) the partnership procured the secondment of the defendant's employees for the conduct of its business; and (f) there was no contract, either express or implied, for the provision of services as alleged by the prosecutor. It was submitted that, given these matters, the only conclusion available was that, at the time of the accident, it was the partnership and not the defendant which was conducting the undertaking at Rosehill. A distinction had to be drawn between Mr Johnson, an employee of the defendant, being instructed and directed by the partnership to manage the contract for and on behalf of the partnership and the defendant providing that service as alleged by the prosecutor. 202 The defendant acknowledged that as an employer it had the responsibility for its employees' safety under s 15(1) of the Act. However, it was submitted that the defendant did not have a responsibly for the employees of other unrelated businesses such as JCS and Advantage Personnel, where its undertaking in the circumstances of this case was the supply of labour to the partnership's Rosehill asphalt business and nothing more. The consequence of the prosecutor's submission would be that every labour hire company which provides its employees to various businesses within the jurisdiction would be conducting the business undertaking of the host employer. 203 It was accepted as settled that a labour hire company has a "special responsibility" for its employees at host employers' work places. The obligations imposed on labour hire companies did not go so far as to require them to adopt the conduct of the undertaking of the host employer so that it assumed the host employer's obligations, duties and responsibilities to others as a result of the host employer's undertaking. 204 In the alternative, it was submitted that, if the Court took the view that the defendant was conducting a undertaking as alleged by the prosecutor, then the Court nevertheless could not be satisfied to the appropriate standard that the breaches as alleged could be attributed to the defendant. The prosecutor had alleged a failure to provide and maintain safe systems of work and that failure had been identified by the specification of three particulars relating to guarding, supervision and isolation. 205 On the evidence, it was necessary to remove a cover or guard to obtain access and to clear the blockage. There was no evidence of any other way to gain access to the conveyors to clear blockages. Once the cover was removed, the system relied upon the moving parts of the conveyor not starting. This was ensured by isolating the conveyor so that the moving parts could not start. All the employees understood the system of isolating the conveyors when the covers were removed so that the moving parts could not start. There was no causal nexus between this alleged breach concerning the failure to replace the guard or cover and the detriment to safety in relation to the guarding allegations. In the alternative, s 53(a) of the Act was relied upon on the basis that it was otherwise not possible to clear the blockage than to remove the cover or guard. 206 The evidence demonstrated that, earlier in the day, the same personnel had undertaken the same process of clearing a blockage and isolation was used to ensure the safety of the employees. The evidence also indicated that, whilst conveyors H1 and T1 were being cleared of the blockages in the time leading up to the accident, the conveyors were being isolated at all times other than when the conveyors were being operated to clear the blockage. When they were being operated, there was a system which required all personnel to stand clear from the moving parts of the conveyor. 207 A system of isolating and standing clear as described above was a safe system of work. That system did not fail in relation to the conveyor which was to be operated, conveyor T1. There was no intention to start conveyor H1 nor was there was there any expectation that conveyor H1 would start. 208 There were no witnesses who were able to provide oral evidence of the status of isolation of conveyor H1 at the motor after its blockage was cleared and the employees commenced to clear the blockage in conveyor T1. It was simplistic to suggest, as suggested by Inspector Piggott and Mr Clarke, that it was not isolated because it started. While such a hypothesis may reasonably follow, in the circumstances of the present case it was submitted that a reasonable doubt existed as to the status of the isolation of the motor at the time of the accident. 209 There was evidence which identified a reasonable alternative hypothesis consistent with the conveyor starting while isolated and hence consistent with the defendant's innocence. That evidence was: (a) the alarm log which identified at 18:19 and 18:37 that conveyor H1 was not running but activated. Mr Day stated that this meant that the motor was most probably isolated; (b) the evidence of Mr Jedra, Mr Clarke and Mr Johnson indicated that conveyor H1 was clear from blockage and was able to run prior to the accident; (c) the telephone records showed that the 000 telephone call made after the accident was made at 18:38; (d) the telephone call to 000 was made within one minute of the accident occurring; (e) Mr Johnson, Mr Jedra, Mr Clarke and the electrician Mr Davidson were located in positions that prevented them from changing the isolation to conveyor H1 in the minutes preceding the accident. Mr Nolan was within an arm's length of Mr Clarke; (f) Inspector Piggott identifies that the conveyor might start, although isolated, by introducing a wire loop from a power source to the particular piece of equipment which is isolated; (g) Mr How stated that conveyor H1 was isolated at the control panel after it was unblocked. In all the circumstances, the Court could not be satisfied beyond a reasonable doubt that conveyor H1 was not isolated. The evidence raises a reasonable alternative hypothesis consistent with the defendant's innocence in that the motor was isolated at the time of the accident. If the motor was isolated, there were no further steps that could have been taken by the defendant to ensure the safety of the employees. 210 It was submitted that the undisputed evidence was that there was no intention to start conveyor H1. The evidence as to when H1 started was as follows: (a) Mr McFaddin in his statement of March 1999 stated that both conveyors T1 and H1 started at the same time; (b) Mr Hillier and Mr How described the contactors in the switchroom energising at the same time. Each conveyor had its own contactor and the energising of more than one contactor at the same time was indicative of the fact that the conveyors to which the contactors were related started at the same time; (c) Mr Day and Mr Davy identified the only way that the conveyors could start together with the computer in manual mode was if the wiring to the conveyor had been changed; (d) the computer was in manual mode and there was no suggestion in the evidence to the contrary; (e) Mr Davy stated that he found wiring changes had been made to the wiring after the day of the accident although not to the relevant conveyors. Despite the evidence of Mr Clarke, the overwhelming evidence suggests that conveyors T1 and H1 started at the same time. 211 Further force was given to the proposition that the wiring was changed from the evidence of Mr Day that Mr Hillier had required the 110 volt power supply to be disconnected for up to 30 minutes shortly before the conveyors started. Mr Hillier gave no reason to disconnect the power. Mr Hillier had no memory of this occurring or why it may have been required. Mr Day gave evidence of a discussion between Mr How and Mr Hillier discussing the need to disconnect the 110 volt supply. It was submitted that one reason the power needed to be turned off was to accommodate a wiring change. 212 The defendant submitted that, on the basis that the evidence showed that conveyors H1 and T1 started at the same time, that could only occur as a result of a wiring change. Such a wiring change was not and could have been in the control of the defendant. In those circumstances, it could not be said that the detriment to safety arose from the defendant's failure. 213 The prosecutor had opened the case with the theory that Mr Day had pressed the wrong button. The only evidence supporting such an allegation was a statement made by him at or close to the time of the accident. The evidence given identifies that it was not possible for him to start more than one conveyor at the same time. Mr Day has never suggested that he pressed more than one button nor has it been suggested that he did so. Once it is concluded that more than one conveyor started at the same time then the Court must be left with a reasonable doubt as to what was the real cause of the detriment to safety: it is no longer attributable to the cover being off, failure to isolate or inadequate supervision. 214 In relation to the issue of supervision, no evidence was led in relation to a failure to supervise. The leading hand employed by JCS was in charge and directing the work of Mr Jedra and Mr Nolan on the top of the silo. Mr McFaddin was also located on the top of the silos and observing what was happening. He was a person representing CMI from the USA, sent to observe and help JCS in the installation of the plant. Mr Johnson, the superintendent's representative and project manager, was also there assisting with the communication between JCS employees. In the control room there was a director of JCS, Mr How, and the project manager for JCS, Mr Hillier. There were two electricians assisting with the isolation and phase reversal: one was located on top of the silos and one was in the switch room. Mr Day, computer programmer and the designer of the computer programme for the plant, was operating the computer at the terminal in the control room. 215 In relation to s 53 defences, the defendant referred to WorkCover Authority v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 as indicating the balancing exercise which must be undertaken by the Court. On one end of the scale it could not be reasonably practicable to take precautions against the danger which would not have been known to be in existence. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practical to make provisions against the event. At the other end of the scale, there will be cases in which no or no obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicalable to have complied with the Act by ensuring the persons were not exposed to those risks. Applying that approach in relation to s 53(a), the defendant pointed out that, in order to clear the conveyor, it was necessary to remove the cover. It was not reasonably practicable to perform this task any other way for reasons already addressed. 216 In relation to s 53(b), the defendant submitted that the activity of clearing the blockage, whether as part of commissioning, wet commissioning or defect/warranty work, was at all relevant times under the control of JCS. It was JCS's obligation to demonstrate that the conveyor system worked to the required standard. In order to achieve this, it accepted that it was its obligation to clear the blockage. It commenced the process with Mr Clarke, Mr Jedra and Mr Nolan at the top of the silos with an electrician. It clearly had control of this process and the only relevance to the defendant was related to the issue of communications. 217 On the evidence, the Court would find that Mr Johnson began to provide communication after the clearing of the blockages had commenced. In relation to the particulars alleging failure of isolation and supervision, the defendant relied upon its earlier submission dealing with wiring and isolation to submit that the commission of the offence was due to causes over which it had no control and against the happening of which it was impracticable for the defendant to make provision. DELIBERATION 218 It will be clear that the defendant treated the issue of its undertaking as being central to its defence. In support of this approach, the defendant pointed out that the role of the defendant was almost indistinguishable from that of a labour hire company. The additional features here were, not only was its sole purpose to merely supply employees to the partnership, those employees were substantially under the control of the partnership committee and the partnership undertook all the usual functions associated with employment. The defendant was not a party to the contract to refurbish the Rosehill plant and it did not receive any payment for delivering services as alleged by the prosecutor, namely the management of the contract to upgrade the plant including the contractual arrangements with JCS. It was pointed out that the financial records revealed that the defendant made no money from this labour hire arrangement and the fee it was paid represented the salary and wages bill for the employees and costs directly associated with performing that limited task. 219 There are a number of difficulties with the defendant's argument. Firstly, there was no suggestion during argument that the arrangement whereby previous employees of the partnership entities became employees of the defendant was a sham. While there were certain indemnities to secure that arrangement, the clear terms of the partnership agreement required the defendant to be the employer of staff previously employed by the partnership entities, and clearly stated that there was no intention that the partnership would be the employer of such persons. In the absence of some cogent evidence demonstrating that arrangement to be a sham, the contractual arrangements will inform their legal effect (see Building Workers Industrial Union of Australia and ors v Odco Pty Ltd (1991) 29 FCR 104, at 126). 220 Secondly, the description of the defendant as being, in effect, indistinguishable from a labour hire company in merely supplying labour is unsustainable upon analysis of the evidence. The defendant is not a stand alone labour hire company securing its economic existence by charging fees in relation to the placement of persons and their services. The defendant is not a company independent of those for whom it performs the so-called labour hire task and the relationship is not one which is at arm's length such as demonstrated to exist in Odco and Drake. The defendant owes its entire existence to the fact that the partnership entities engaged in a joint venture and required a separate corporate entity to be the employer for the joint venture. In performing that role, the defendant is nevertheless a wholly owned subsidiary of CSR Ltd as shown by the letters of offer of employment made to persons such as Mr Johnson. 221 The most significant evidence of the relationship between the employees, the defendant and the partnership comes from an analysis of the partnership agreement and the schedule which provides the terms under which previous employees of the partnership entities would become employees of the defendant. Schedule 9 to the partnership agreement specified the terms upon which those offers of employment with the defendant were to be made. The Schedule set out a draft letter containing these terms, which in the opening paragraph referred to the joint venture being established to carry on the business of bituminous road surfacing in all Australian states and territories, which was then defined for the purposes of the letter to be "the business". It was stated that, for the purposes of the joint venture, a wholly owned subsidiary of CSR Ltd would be formed to employ the persons who would provide services to the joint venture and that company would be known as CSR Emoleum Services Pty Ltd, the defendant in these proceedings. Under the sub-heading "Hours of Work", the letter of offer stated that proposed employees were required to devote their "full time and attention" to their work during normal business hours and at such times as reasonably necessary for the efficient discharge of their duties. Under the heading "Outside interests" the letter provided that proposed employees would "… be required to devote the whole of your working time and attention to carrying on your duties and responsibilities to CSR Emoleum Services and the business." (Emphasis added). The proposed employee was not to engage in any activity that created or may create a conflict of interest with either CSR Emoleum Services or the business. It was a letter in precisely these terms which offered the position of production manager to Mr Johnson on 20 June 1996, and which he accepted. 222 These paragraphs in the letter of offer of employment to salaried staff make it abundantly clear that there was an identicality or, at least, an overlap between the business of the defendant, CSR Emoleum Services Pty Ltd and the business of the partnership in relation to the refurbishment of the Rosehill plant. Salaried employees were contractually obliged to promote both the interests of the defendant and the partnership and to do nothing to cause harm to those business interests. The whole of their time was to be engaged in this pursuit. This may be an unusual case, but here the contracts of employment demonstrate that the undertaking of the defendant was inextricably intertwined with the undertaking of the partnership. That result is not surprising when it is understood that the whole purpose behind the creation of the defendant was to enable the partnership to carry out its business in the way in which it wished to do so. 223 It is to be remembered that the prosecution did not allege that the undertaking of the defendant was identical to the undertaking of the partnership - this is the submission for the defendant in support of its analysis that it was merely the supplier of labour, much like a labour hire company. The defendant says the management of the contract with JCS and the overall responsibility for occupational health and safety on the site was its business. The secondment arrangement, however, was the means by which the defendant supplied labour to the partnership and under this arrangement the defendant was to remain the employer of the labour supplied. The labour supplied included high level management and supervisors. The defendant was also to remain responsible for the acts and omissions of its employees while they performed work for the partnership. The defendant accepted therefore its responsibility under s 15 of the Occupational Health and Safety Act but denied that this responsibility could extend to s 16 of the Act. How this was so could only be explained by insisting that the undertaking of the partnership could not be the undertaking of the defendant. 224 The partnership agreement prevents the defendant from claiming that the real employer is the partnership, although its submissions came very close to this position. Once it is accepted that the defendant is the employer of the labour supplied to the partnership, then it follows that the defendant has obligations under both s 15 and s 16 of the Occupational Health and Safety Act. Under s 16, the undertaking of the defendant has to be identified and that identification is largely a question of fact. In this case, a consideration of the overall relationship between the partnership and the defendant demonstrates that the defendant is not merely the supplier of labour, albeit under secondment arrangements, but is intimately involved in the means by which the partnership carries out its business. On 5 March 1999, at the Rosehill plant, the defendant's undertaking included the provision of the service of managing the contract between CSR Road Services and JCS, the control of the works performed by JCS and overall conduct and responsibility for occupational health and safety at the site. That is what the defendant did at the site. To do these things, as part of its undertaking, did not require the defendant to be a party to the refurbishing contract nor did it require the defendant to own the plant. Making a profit from its relationship with the partnership is not conclusive in deciding who is the employer (see WorkCover Authority of New South Wales and Labour Co-Operative), nor is it conclusive in identifying the undertaking of the defendant. The fact that the upgrading of the plant was part of the business of the partnership does not have the consequence that the defendant did not (and could not) supply the services to the partnership in relation to that task, as alleged by the prosecutor. 225 The thread running through the defendant's argument that, in labour hire situations, the undertaking of the labour hire company could not be the same as the undertaking of the client employer thus leaving no room for the operation of s 16(1), runs contrary to the express view of the Full Court. In Drake, the Full Court expressed itself generally: in appropriate circumstances, the obligation will require a labour hire company to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. It follows that such employees of a labour hire company who carry out work which is unsafe may do so not only in a way that may endanger employees but also non-employees: in such circumstances there will be liability under both s 15 and s 16 of the Occupational Health and Safety Act. 226 A further important part of the secondment agreement is the provision that the defendant during the term of the agreement is to be responsible for "the acts and omissions of the employees" as well as for all payments to the employees in respect of wages and salaries, annual leave, sick leave, long service leave, superannuation, workers compensation, accident, sickness and life insurance and all other benefits payable to the employees in respect of their employment. Taken in the context of the secondment agreement, which emphasises that the defendant's employees are not and are never to be employees of the partnership, the authority of the partnership committee is limited in two ways: firstly, the defendant retains the right and power to direct the employees in the performance of their work and secondly, the partnership can instruct and direct the employees but only in the performance of their work for partnership business. It is possible under this arrangement for the defendant to give directions to its employees, in relation to safe working methods, even if they be in conflict with any direction given by the partnership committee about how the work is to be performed, because it will be a direction given by the defendant to its employees in relation to its own obligations under the Occupational Health and Safety Act. The partnership agreement acknowledges that the defendant would be responsible for the acts and omissions of its employees, and cannot, in its operation, derogate from the provisions of the Occupational Health and Safety Act. 227 In all of the evidence there does not appear to be any direction given by the partnership committee to employees of the defendant about how they should perform their work upgrading the plant for the partnership business. Site rules and rules for contractors working at the Rosehill plant which are printed on documents bearing the name of the partnership vehicle CSR Emoleum Road Services are not, on the evidence, documents resulting from a direction from the partnership committee. Indeed, the evidence is that those documents, including the induction training, were the result of Mr Johnson and Mr Morrison working together to produce the rules. They did so as employees of the defendant and as they were obliged to under their contract of employment in furtherance of the interests of the partnership business. Further, it is open on the evidence to conclude that the production of site rules and safety rules by Mr Johnson and Mr Morrison under the letterhead of the partnership, CSR Emoleum Road Services (rather than the defendant), was the result of their confusion as to who was their employer. 228 In addition, the contract with JCS, signed by Mr Mylvaganam, required JCS to comply with "CSR Emoleum Rosehill Occupational Health and Safety Rules". These rules were substantially the rules and practices drawn by Mr Johnson and Mr Morrison: for example, the check list on partnership letterhead was in fact a reminder written by Mr Johnson for use in safety induction training. Mr Morrison told Inspector Piggott that the CSR Road Services' safety programme was, in fact, the safety site rules he and Mr Johnson had produced. The only exception may be the Personal Safety Handbook which addressed the general operations of CSR Road Services rather than the specific task of upgrading the Rosehill plant. 229 There is much in the evidence to allow the conclusion to be drawn that there was effectively an integration of the senior management of the defendant and CSR Emoleum Road Services. The defendant accepted that Mr Mylvaganam was its employee, as were Mr Johnson, Mr Morrison and Mr Pynor. Mr Mylvaganam accepted the JCS offer and signed the contract for the partnership, being authorised to do so. Mr Johnson, as has been discussed, was the nominated representative of the partnership on the site. Mr Davy and Mr How of JCS reported to Mr Johnson on issues of occupational health and safety and continuing safety compliance. Mr Johnson and Mr Mylvaganam authorised progress payments to JCS. 230 I agree with the prosecutor that the evidence shows that the essential tasks of carrying on the partnership business of refurbishing the Rosehill plant were performed by employees of the defendant and not by employees of CSR Emoleum Road Services. In the context of the partnership agreement and the secondment agreement, these matters point to the undertaking of the defendant being essentially as alleged by the prosecutor. These matters also demonstrate the flaw in the defendant's contention that its undertaking was no more than making employees available for the partnership. 231 The arrangements between the defendant and the partnership are as complex as they are confusing - but they shed light on the true nature of the undertaking of the defendant. Reference has already been made to the fact that both Mr Johnson and Mr Morrison regarded themselves as employed by the partnership, not the defendant. Mr Mylvaganam signed the contract with JCS as the Eastern Region manager of CSR Road Services when employed, in fact, by the defendant. Mr Pynor was the Sydney business manager of CSR Road Services, but was an employee of the defendant - he was also superintendent of the works at Rosehill (with Mr Johnson as his representative on site). The defendant at no stage explained how this arrangement worked in practice. These people could not have been appointed to positions in CSR Road Services because the Partnership Agreement required all employees to be employees of the defendant and to give all their time to the work of the defendant: indeed, Mr Johnson said that he only ever had one appointment and that was demonstrated by his letter of appointment as project manager of the defendant. 232 Mr Johnson's personal file had numerous documents on CSR Road Services letterhead, but many were signed by Mr Mylvaganam and Mr Pynor, employees of the defendant. Some of these documents approved pay increases or other payments for Mr Johnson, but CSR Road Services did not pay the employees: a fee was paid to the defendant to satisfy the payroll obligations of the defendant. Mr Morrison described himself as the Health and Safety manager for the "Eastern Region" although the defendant denied that it had an Eastern Region - only CSR Road Services had regions. The picture presented is one of the defendant being inextricably intertwined with the business of the partnership. The evidence does not permit a conclusion that the undertaking of the defendant was simply that of a labour supplier with an undertaking quite separate and independent of the partnership. 233 In Odco, Drake and the Labour Hire Co-Operative, the undertaking might be described as supplying labour to certain industries. The partnership agreement and the letters of appointment in this case demonstrate the defendant's undertaking to be the supplier of labour to the partnership and the servicing of the partnership's business, at least at Rosehill. On 5 March 1999, the defendant's undertaking included the management of the plant refurbishment at Rosehill. This position is confirmed by Mr Johnson's evidence that his role "broadly" was to manage the contract on behalf of CSR at the Rosehill upgrade. He co-ordinated the contract programme of all people on the project, he monitored contractor compliance with the Occupational Health and Safety rules and reviewed and amended those rules as appropriate. He exercised the right under the site rules to inspect, intervene and provide instructions regarding contractor activities. This evidence was supported by Mr Morrison who said his supervisor was Mr Mylvaganam (also an employee of the defendant). He described the management system on site as monitoring how contractors complied with occupational health and safety requirements: with Mr Johnson they managed occupational health and safety issues which arose on site. He had been involved in site inspections with Mr Johnson identifying occupational health and safety issues requiring corrective action. There was no suggestion in the evidence that these functions were performed by anybody other than employees of the defendant. 234 The evidence of Mr Trimble tends to add to the confusion about the arrangements between the defendant and CSR Emoleum Road Services. It is difficult to understand why he was not aware that Mr Johnson was an employee of the defendant (for whom Mr Trimble was authorised to speak) when Mr Johnson was reporting to the Board about occupational health and safety compliance at the site and was responsible for occupational health and safety overall at the site. It is also strange that, according to Mr Trimble, the defendant did not have a safety committee and did not have a safety policy - matters which have some significance for other aspects of this case. It will be remembered that the letter offering employment with the defendant stated that it would have employment policies and procedures in place from time to time. The defendant submits that this evidence demonstrates that it was CSR Emoleum Road Services and not the defendant that laid down and monitored the effectiveness of the safety policy on site . As already discussed, the evidence does not support such a conclusion. In light of all the evidence little turns on Mr Trimble's statement about these matters. 235 Having found that the undertaking of the defendant was not only the provision of labour to the partnership for its business undertaking but also the means by which the partnership conducted its business undertaking in refurbishing the Rosehill plant and therefore included the management of the contract between the partnership and JCS, it follows that when the defendant had its employees performing duty at the Rosehill plant then that was its place of work. As pointed out in Mainbrace, the term "place of work" is defined in s 4 of the Occupational Health and Safety Act to mean "premises, or any other place where persons work". Section 4 also provides that premises included (a) any land, building or part of any building. It would seem that, on an analysis of the whole partnership agreement including the secondment agreement, wherever the partnership required employees in the conduct of its business then those employees would be supplied by the defendant. Such a place was the plant at Rosehill and on the day in question that was the defendant's place of work. 236 In Mainbrace, the Full Court made it clear that it was wrong to place an artificial or narrow construction on the words "place of work" as they appear in s 16(1). In paragraph [49]of the judgment attention was drawn to the decision of the Full Court in WorkCover Authority of New South Wales (Inspector Keenan) v TAFE, namely: Decided cases make it plain that the question of whether the 'employer's place of work' ingredient in s 16(1) is made out is a question of fact notwithstanding any broad construction of the provision that is appropriate: see for example, Inspector Clarke v W C Meinhardt and Partners Pty Ltd (unreported, Fisher CJ, 30 June 1992) and Inspector Page v Woolworths. In Meinhardt , Fisher CJ stated that he considered the place of work included every area which may be affected by the work being done. Peterson J, in accepting the broad construction of the words "place of work" in s 16(1) in Inspector Page v Woolworths Ltd, referred to the "immediate environs which may be affected by the conduct of that business" as being included within the meaning of the term. Applying these approaches to the facts of this particular case establishes that the exposure to the risk alleged was at the defendant's place of work. 237 Having decided the major issues raised by the defendant, there remain a number of alternative submissions which were put, although some were but faintly pursued by the defendant. The alleged failure to provide and maintain safe systems of work revolved around three particulars relating to guarding, supervision and isolation. In this context, the defendant pointed out that it was necessary to remove the cover on the conveyor in order to obtain access and to clear the blockage - there was no evidence of any other way to gain access to the conveyors to perform that task. The system was that when the cover was removed the conveyor was isolated and not started until persons working in the area were required to stand back and the "all clear" was given. In short, the system of isolating and standing clear was a safe system of work. This system did not fail and there was no intention to start conveyor H1 nor was there any expectation that it would start. Further, it was said that there was no reliable evidence as to the state of the isolation of conveyor H1. 238 The fact that the cover had to be removed which exposed the internal workings of the conveyor meant that persons involved in this task were required to take significant steps to ensure the safety of those in the vicinity. It is not to the point that the top of the conveyor had to be opened: what was relevant to this system of work was that when the H1 conveyor was cleared and put back into operation, it was not safe, and obviously not safe, to continue work with the cover left off that conveyor. Once conveyor H1 was cleared, it was operational. 239 Further, I am satisfied on the evidence that Mr Nolan was sitting on top of conveyor H1 near the opening while work was undertaken on conveyor T1 and had apparently been in that position for a significant period of time. Mr Johnson appears to have been unaware of Mr Nolan's presence although Mr Nolan was directly involved in the clearance of conveyor H1. A system of clearance where, in a confined work area, a person intimately involved in the clearance process, such as Mr Johnson, was not aware of the presence of other persons in the work area nor their proximity to open and operational conveyors, was clearly an inadequate and unsafe system. It is even more so if Mr Johnson had in fact observed Mr Nolan sitting on top of conveyor H1 just before the opening of that conveyor. In addition, the failure of any other person present to recognise and draw attention to Mr Nolan's position as being potentially dangerous is indicative of the fundamental flaw in the system of work being operated that day. The evidence shows that there was no written method for clearing the conveyors although this was not an infrequent difficulty and that there were other written instructions to the workforce directing their attention to appropriate and safe methods of work. Mr Johnson gave no consideration to replacing the cover on conveyor H1 and certainly took no step to ensure that the cover was replaced before work commenced on conveyor T1. 240 While the defendant relies upon the system of work which included the steps of requiring everyone to be assembled near the rails and calling "All clear", it would appear that in operating this system Mr Johnson did not know that Mr Nolan was present. The system therefore failed to include an effective head count of those involved in the clearance work and rendered useless the step of shouting "All clear". It is not surprising that, according to Mr Morrison, as a result of the accident everybody was put through re-training of the isolation procedure and that there may have been some things done which he was unable to recall when giving his evidence. 241 The failures of this system are emphasised by Mr Jedra's evidence - he had "no idea" where Mr Nolan was placed and had no idea who was isolating the conveyors "upstairs" on the silos. A further difficulty, not dealt with by the defendant, is the evidence of Mr Trimble that the defendant had no safety committee, did not have a safety policy and did not monitor safety. On the evidence, however, that statement cannot be sustained: the evidence of Mr Johnson and Mr Morrison in that respect is to be accepted. 242 I also find force in the submissions for the prosecution that the procedure used on the day of the accident was not in accordance with the isolation and tagging requirements which applied to all employees and contractors on the site. It was part of Mr Johnson's responsibility to ensure compliance with these instructions. I also agree that from the evidence it appears that Mr Johnson was able to observe, even in the absence of tagging, whether the conveyor was in the "on" or "off" isolation position while working on the silos. The system did not appear to require him, especially in the absence of tagging, to check that the isolators were in the "off" position when people were working in and around the conveyor. 243 Mr How said that he and Mr Johnson agreed that there should be an electrician at the silos to isolate the conveyor. The system did not include checking with the electrician or nominating a person who would ensure that the conveyors were isolated - if the task was shared, as the evidence suggests, then tagging was a means of ensuring that the isolation was performed and the people involved could see by the tags that the isolation task had been performed. 244 In relation to the system of isolation employed on the day, there was some inconsistency and confusion in the evidence. Mr Hillier stated that the lock out procedure would not necessarily be performed in the control room and that the control room operator was informed not to start the conveyor unless told to do so by the crew working on the silos. The lock out procedure was performed at the conveyor. Mr Davidson, the electrician, said that he did not isolate conveyor H1 when the blockage was cleared, as he was some distance from the isolation switch. Mr Davidson was present, presumably as a result of the agreement between Mr How and Mr Johnson that an electrician should be present on the silos to perform the isolation task. Mr Clarke said that during the clearing task the isolator was turned off by either himself or Mr Nolan - he could not recall precisely who turned off conveyor H1. After conveyor H1 was cleared and work commenced on conveyor T1, he could not recall if the isolator switch on H1 was "on" or "off". Mr Clarke said that the electrician Jim (Davidson) isolated conveyor T1 while Mr Clarke, Mr Jedra and Mr Nolan had operated the isolation switch for conveyor H1 (a task Mr Jedra denied performing). Mr Clarke could not remember if they were taking turns in isolating conveyor H1. At the time of the accident, Mr Clarke thought he had turned off conveyor H1 to stop it, but he could not be sure that it had not been turned off from the control room although he gave the impression that he believed he was responsible for turning off the conveyor. Mr DeBoick, who was in the control room, stated that after the blockage was cleared he did not isolate the circuit breaker for conveyor H1 before work commenced on conveyor T1. Mr How, however, said that after H1 was cleared "We switched it off at the control panel". The "we" he referred to clearly did not include Mr DeBoick and suggests that someone else in the team had performed that task. It will be remembered that Mr Hillier said that isolation was not necessarily performed in the control room. 245 Mr Jedra said that the last thing done was to turn on conveyor H1 to see if it had been cleared. It is likely that when that conveyor was cleared it was not isolated again at the conveyor motor. Mr Johnson repeated that he was present when conveyor H1 was cleared: he was therefore present at the site of this work for a longer period than he recalled in his evidence, as the work in clearing conveyor T1 was a task not quickly completed. Mr Johnson also thought that the isolation of conveyor H1 was under the control of an electrician. The evidence demonstrates that the so-called system of isolation was in a shambles. The written system laid down for isolation and tagging was replaced by ad hoc arrangements. 246 The defendant then says that, simply because conveyor H1 started, that did not mean it was not isolated at the conveyor at the time of the accident. The defendant reaches this position by way of the convoluted process of reasoning set out in paragraph [209] which I do not repeat. There is nothing in the evidence that supports a finding that wiring was introduced so as to effectively bypass the isolation of conveyor H1. The fact that there was opportunity to do so, and that there was an interruption to the 110 volt power supply, and that in another area there was some wiring which was unrelated to conveyor H1, does not give rise to a reasonable alternative hypothesis as suggested by the defendant. Indeed, if there was such an alternative wiring system which effectively bypassed the isolation of conveyor H1, quite apart from the fact that some direct evidence of it might have been called, simply means that the systems in place at the plant were so deficient that, absent sabotage of which there is no evidence, it was apparently possible to introduce new wiring into the system which would bypass the isolation mechanism in circumstances where none of the employees, including senior management such as Mr Johnson, were informed of those steps being taken. This submission does not avail the defendant in either establishing a reasonable doubt in relation to the prosecution case or a defence under s 53. 247 The defendant also relied upon the fact that, because it was not possible to clear the blockage of the conveyor without removing the cover, that meant that a defence was established under s 53(a). Simply put, the defendant stated that there was no other way of performing the work. Having cleared the blockage, there was no reason at all why the cover should not have been replaced. There was no reason advanced in the evidence why work on the blockage in conveyor T1 had to commence before the cover was replaced on conveyor H1. A defence under s 53(a) cannot be established by the defendant simply because the cover had to be removed to clear the blockage. 248 I also agree with the submission for the prosecutor that it is not necessary to establish precisely how conveyor H1 commenced after work on it had ceased and whether or not it started at the same time as conveyor T1 or at some time thereafter. The surrounding circumstances which allowed work to continue with the cover off conveyor H1 and Mr Nolan sitting near the opening into the conveyor which was then operational establish the offence as particularised in these respects by the prosecutor. 249 In relation to the lack of appropriate supervision, it is clear from his nominated role that Mr Johnson was the person on site in overall control of the operation. It will be remembered that he was responsible, with the assistance of Mr Morrison, for establishing the working rules for the site and he undertook the induction of contractors and sub-contractors before they commenced work on the site. When Mr Johnson involved himself in assisting the task of unblocking the conveyors he was, by his very position, supervising that operation and it was quite natural for those working at the silos to look to him for advice and direction. In that role, he was not merely a disinterested observer nor was he merely there to perform some minor task. On his own evidence, he became involved in the clearing work because of what he regarded as an inadequate system of communication between the silo and the control room in what was obviously a dangerous task. This was observed by Mr Jedra, Mr McFaddin and Mr How, who all formed the view that Mr Johnson was in charge of the clearing operation. Mr Johnson did not provide appropriate or effective supervision although that was his role. The defendant is not able to avoid this conclusion by pointing to other levels of supervision available at the site provided by other entities: nor is it a matter of having to provide additional levels of supervision. The prosecutor has therefore made out that part of the charge relating to a lack of proper supervision leading to the risk as particularised. 250 In relation to the defence raised under s 53(b) the defendant submits that the activity of clearing the blockage was at all relevant times under the control of JCS. This arose because the plant was, on the submission of the defendant, still in the commissioning stage and therefore had not yet been handed over to the defendant and the defendant was not, in any relevant sense, in control of the conveyors. In order to make out a s 53 defence, a defendant is required to prove the necessary elements upon which it relies (WorkCover Authority of NSW (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 at [66] et seq). In the present case, whether there was commissioning or wet commissioning and who was in control of the conveyors is irrelevant. As the cases have laid down on many occasions, especially in relation to building and construction work, there may be a number of participants at a site, each having duties and obligations to employees working at the site under the provisions of the Act. The fact that JCS may have had some obligations in relation to the workers on the silos that day does not provide a defence under s 53 to this defendant. The findings made in relation to the role undertaken by Mr Johnson also leads to the result that no defence has been established. 251 Having regard to these various conclusions I find the charge under s 16(1) as particularised has been made out by the prosecutor. The matter will be relisted at a time convenient to the parties to hear submissions on penalty. oo00oo 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.