WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 APPELLANT: WorkCover Authority of New South Wales (Inspector Patton) PARTIES : RESPONDENT: Fletcher Constructions Australia Limited FILE NUMBER: IRC5014 of 2001 CORAM: Wright J President at 1; Walton J Vice-President at 5; Schmidt J at 103 CATCHWORDS : Appeal - Appeal from decision of Chief Industrial Magistrate - Chief Industrial Magistrate found offence proven but that a defence under s 53(a) had been established - Occupational health and safety - Prosecution arose from accident on defendant's construction site - On appeal defendant conceded it was guilty of offence but that it had done all that was reasonably practicable in the circumstances - Defendant contended dynamic nature of a construction site meant it needed the capacity to alter work methods as part of its daily operations - Corporate defendant could only act through its employees - System of work adopted by defendant involved selection of appropriately qualified person as site manager and delegating to him all authority necessary to design and implement safe methods of work - Defendant did not check to ensure that its direction to develop safe methods of work were developed and implemented on site - Defendant submitted that by appointing an appropriately trained and qualified site manager the defendant had done all that was reasonably practicable to comply with the obligations imposed by the Occupational Health and Safety legislation - Nature of obligation imposed by s 15 of the OH&S Act 1983 - Practical effect of such an obligation for a corporate defendant - Matters of health and safety are non-delegable - Matters of health and safety are matters to which a managerial mind should be directed - Distinction between a system of work and the particular methods of work - Methods of work merely part of a system of work - Inspector Cullen v State Rail Authority and State Rail Authority v Dawson considered and explained - Operation of s 53(a) of the OH&S Act 1983 - By failing to ensure that the site manager had developed and implemented safe methods of work defendant corporation had not done all that was reasonably practicable to ensure that its place of work was safe - Offence proven - Conviction entered Industrial Relations Act 1996 s197 LEGISLATION CITED : Occupational Health and Safety Act 1983 s15 s16 s19 s53 Occupational Health and Safety Act 2000 s28 ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (Unreported, Fisher P, Bauer and Hungerford JJ, 2 May 1997) Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 Caltex Petroleum Ltd v Harmer (1999) 92 IR 264 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Collins v State Rail Authority (NSW) (1986) 5 NSWLR 209 Crampton v The Queen [2000] HCA 60 Cullen v State Rail of New South Wales (1989) 31 IR 207 Department of Mineral Resources (Insp McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) (2001) 110 IR 57 Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 Kennedy-Taylor v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 CASES CITED : Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 WorkCover Authority of New South Wales v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/as Stylewise Interiors (2002) 113 IR 78 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (No. 1) (2000) 101 IR 239 WorkCover Authority of New South Wales (Insp. Gordon) v Wallis (Unreported, Fisher P, Glynn and Hill JJ, 14 August 1995) WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362