Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Jim Allison v Australian Water Services Pty Ltd. [2004] NSWIRComm 378 PARTIES : Inspector Jim Allison v Australian Water Services Pty Ltd. FILE NUMBER: IRC 4630 of 2003 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 2000 - s 8(2) - plea of guilty - unplanned work to be performed by contractors in course of specific task - failure to apply usual work clearance procedures - work involved standing on grate - grate not properly seated - contracted workers fall 9 metres - serious breach - general and specific deterrence - early plea and subjective factors generally lead to 35 per cent discount on penalty - penalty imposed HEARING DATES: 12/03/2004 EXTEMPORE JUDGMENT DATE : 12/03/2004 PROSECUTOR: Ms P McDonald of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mrs W Thompson of counsel SOLICITORS: Freehills JUDGMENT: 1 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 3 December 2004 MATTER NO IRC 4630 OF 2003 INSPECTOR JIM ALLISION v AUSTRALIAN WATER SERVICES PTY LIMITED Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2004] NSWIRComm 378 1. In this matter the defendant, Australian Water Services Pty Limited, has pleaded guilty to a breach alleged under section 8(2) of the Occupational Health and Safety Act 2000. The breach to which it has pleaded is contained in an amended application for order. The essence of the charge is set out in paragraph 2 of that amended application and is in these terms: The defendant failed to ensure that persons other than their employees, and in particular Messrs Ferris and Black, were not exposed to risk to their health or safety arising from the conduct of the defendant's undertaking while these men were at the defendant's place of work, in that the defendant failed to ensure that the area of the grate could not be accessed by persons such as Messrs Ferris and Black in circumstances where the grate had been destabilised by the presence of the lay flat hose. 2. A brief description of the incident is set out in paragraph 1 of the particulars to that amended application for order. That particular is in these terms: 14 On 13 November 2001 Messrs Ferris and Black were working at the site, the site being described as the Prospect Water Filtration plant Cowpasture Road Wetherill Park . Specifically they were undertaking the removal of sludge and/or other material from the waste wash water tank. A hose known as a lay flat hose had been inserted into the waste wash water well number 1 to de-water the waste wash water tank to allow work to be done in that space. This was done by lifting a metal grate at waste wash water well number 1 out of its concrete rebate and placing the hose into the well so that the metal grate rested on the concrete rebate and the lay flat hose. During the performance of the de-watering a spray of sludge emerged from the back of the truck into which the sludge was being sucked. The vacuum truck had become full of sludge and an overflow caused a spray of sludge. The sludge sprayed on to the control panel immediately adjacent to waste wash water well number 1. Messrs Black and Ferris were then attempting to clean the sludge which had been sprayed and were standing partly on the concrete and partly on the metal grate referred to above. Without warning the metal grate moved and Messrs Ferris and Black and the metal grate fell into the waste wash wear well number 1 landing in the water sludge below. The fall was a distance of approximately nine metres. 3. In the proceedings today I have had the assistance of an Agreed Statement of Facts, a number of photographs, factual reports all tendered on behalf of the prosecution, and I have also had read an affidavit of Mr Lubrano, the plant manager of the water filtration plant. 4. I do not intend to read on to the record the contents of the Agreed Statement of Facts, but I should note the following matters: It should be clear from what I have already said but is clarified in this document that the defendant owned and operated the water filtration plant at Prospect. There was a tender process, which I will come to shortly, as described in Mr Lubrano's affidavit but for this particular work Gardner Perrott, who contracted in terms that I will also deal with, are in effect a Brambles company. They had experience in this type of work, had undertaken the work previously, and the tender set down a number of matters but importantly in this case it set out that supervision of all of its employees would be provided. That was a focus of some of the submissions and I will return to it. 5. The nature of the tanks, the control panels, where they were set out, the normal position of the grates, the positioning of electric cables are all dealt with in the Agreed Statement of Facts and are demonstrated by the photographs to which I have been taken. The access area approaching the wells was protected by a metal guard rail. Access to the wells and the control panels was provided by a gate in the guard rail. The work commenced by Gardner Perrott started around August 2001. It proceeded intermittently over a period of three months prior to this accident and was close to completion by the date of the accident, 13 November 2001. 6. The Agreed Statement of Facts then sets out various work methods, three in total, that were adopted in relation to this work. The second method involved the use of the lay flat hose to de-water the tank into the well. Prior to implementing this approach Gardner Perrott approached the defendant requesting approval to move the grating so that the lay flat hose could have direct access to the waste wash pump. The defendant approved that approach, taking into account the tank was not operational at the time, the grating would be slipped back over another grating by approximately 75 millimetres to allow access for the lay flat hose and the area was to be barricaded. How that lay flat hose was inserted into the well is then described and is also clear from the photographs. 7. At the time this second work method was adopted safety precautions had been put in and around the grate under instructions of Mr Moodley, the plant operations co-ordinator employed by the defendant. They were described as including a binding together of the two grids above the well with rope, placing a safety tape completely around the enclosure, including underneath the staircase adjacent to the tank, and tying the gate that allowed access to the tank and tying it closed, thereby making it impossible for it to be inadvertently opened. These safety measures were removed before 13 November 2001, the day of the accident. As it turned out the second work method was discontinued for reasons that are set out in the Agreed Statement of Facts which I do not need to read. Then the third method of work is set out. 8. In relation to the employees of Gardner Perrott it is said that both Mr Ferris and Mr Black received site specific induction prior to commencing work at the site: that was usually conducted on the site by Mr Moodley. A job safety analysis was prepared by Mr Black on 1 November 2001 prior to the commencement of the latest round of work on the tank. The job safety analysis was read and signed by Messrs Black, Ferris, Osborne and Phillips, all employees of Gardner Perrott. 9. The accident is then described and again, in view of the description I have already read from particular 1 of the amended charge, I do not need to revisit that matter. It is agreed that as a result of the accident the two employees of Gardner Perrott suffered injuries. Mr Black suffered a compound fracture of the left leg and a scrape to the forehead. Michael Ferris suffered haematomas to the right calf, behind the right knee, severe bruising and swelling, a bruised right elbow and nerve damage to the right arm. Mr Ferris returned to work on 18 December 2001. Mr Black returned to work approximately 17 February 2002. 10. For the defendant a very substantial affidavit with a large number of annexures was sworn by Mr Lubrano, who I have already indicated was the plant manager at the Prospect water filtration plant. I have been taken to a number of parts of the affidavit and have read it, including a number of the annexures to which counsel has taken me today. 11. I should, however, mention these matters: The defendant is described as a specialist operation in the maintenance of water and waste water treatment plants, both in Australia and New Zealand. It was incorporated in 1991 with its first major project being the management of the Prospect site. I think it later becomes clear in the affidavit that the works were commissioned about 1996. The safety record of the defendant is then gauged against its operational mode over the period since that time. It was said that the defendant currently employs 33 employees. That was clarified: There are 17, primarily based at the Prospect site. 15 of those employees are employed as operational staff. There are two administrative staff. 12. In relation to the commissioning of the site that was commissioned in October 1996 as a greenfields project. The affidavit speaks of the defendant adopting a pro-active policy of actively taking steps to engineer out safety risks through the implementation of agreement modifications. 13. Mr Lubrano then deals with the use of contractors by the defendant. The manner in which they are engaged, by looking at the quality of their work and trying to keep a continuity of those who perform well, that is by using them again. Gardner Perrott fell into that category. He notes that in their tender amongst the things that were to be provided was a supervisor. In relation to contractors it was the policy and the practice of the defendant to have mandatory site inductions for all contractors working on the plant, and one of the topics covered by the induction process is work clearances and work clearance certificates. Mr Black and Mr Ferris from Gardner Perrott were both the recipients of an induction prior to commencing work at the Prospect site. 14. The affidavit then deals in detail with the way in which the defendant produces and applies work method statements, especially identifying risks associated with the works. The job safety analysis prepared by Mr Black, the training of staff in relation to confined spaces and the fact that all operating staff at the Prospect site had been trained in confined space entry procedures. 15. It then deals with supervision of contractors. Here Mr Lubrano makes the point that the level of supervision is determined during the work clearance process and is assessed to be either continuous or intermittent. In the course of this work by Gardner Perrott, Mr Jonkryg was to be the supervisor, and it appears that only after the accident Mr Lubrano became aware that the contractor proposed that would not involve continuous supervision. In fact the supervision was supplied through one of the employees, Mr Ferris. In those circumstances the defendant assigned one of its employees as an intermittent supervisor. 16. The nature of the site at the time of the accident is then described. This is consistent with the statement of facts. It deals with the barricading and the protection of the area from inadvertent entry. Mr Lubrano records the circumstances of him observing the overflow from the truck and asking the employees from the contractor where their supervisor was and the need for the mess to be cleaned up that had resulted from the overflow spraying, as has been described in the Agreed Statement of Facts. The point is also made that after the alarm was raised when the two employees fell into the tank, the defendant's usual emergency procedures were adopted, the two employees were able to be promptly rescued and first aid applied until an ambulance arrived. After the accident Mr Lubrano made a number of telephone calls to the supervisors of the injured work employees of Gardner Perrott, enquiring of their recovery. 17. There is then quite a deal of detail about what was done after the investigation. Observations made by Mr Lubrano indicated that the task of removal of material from the tank was not adequately manned. He refers to the requirement of Mr Black's duties as the operator of the truck to remain with the vehicle and that the truck overflowed because it was operated unattended by the contracting staff. 18. There was an investigation by the defendant of this incident using consulting engineers. They tested the integrity and the loading capacity of the grating that fell. The photographs demonstrate that there was no bending or distortion of the grate and that is consistent with the results that were given to the defendant by their consulting engineers. This incident does not appear to result from some failure of the grate. 19. Then again there is much detail about steps taken after the accident. I do not read those but they cover a variety of matters, including additional approaches to induction, additional hand rails and anchor points, additional equipment including fall and inertia arresters, additional training on work method statements, survey of all gratings by a structural engineer, two external safety audits, internal audits, work clearance sheets and the fact that a specialist consultant was contracted to review the cleaning procedure and to determine if an engineering or design solution could eliminate the need for clearing the tanks or whether there were alternative methods to clear the tanks. I was told in addresses that such an alternative method had been identified. There was also a revision of contracts or agreements. There was reference to an increased awareness of safety, and a number of other awareness campaigns that were adopted by the defendant. 20. There is reference to the safety committees on site, the risk registrars and emergency procedures, management system reviews, certificates from external organisations, including the National Safety Council of Australia, and accreditation from that body achieved by the defendant. A number of its internal and external audits are also dealt with, and there is reference made to the defendant being able to achieve maximum eligible discounts under the occupational health and safety management premium discount scheme audits. 21. Against that background and that evidence I come to consider the objective seriousness of this offence. The prosecutor submits that this was foreseeable, this was quite a simple workplace accident. There was a flat hose under a grate. It destabilised the grate. There was no inspection of the grate before this cleaning work was undertaken and it was very simple to remedy by removing the flat hose. I accept the force of those submissions. 22. The defendant clarifies the matter this way: It is important from their perspective to understand that the penetration at no stage was open. The charge is a limited charge that occurred in relation to unplanned work. Here the workers did not check the grate. There was also the issue of the level of supervision which the contractor supplied which was not fully known to the defendant until after the accident occurred. 23. They are all relevant matters to consider but I return to the fairly obvious nature of this risk, its foreseeability in circumstances where the flat hose was inserted under the grate and that the grate might be unstable. In those circumstances I am satisfied that this is a serious breach. One also has to take into account the fact that the workers here fell a total of nine metres. The well itself was twelve metres. There was a concrete, for want of a better word, bar across the well, and apparently one of the contractor employees actually hit that part of it. Their injuries were potentially much more serious than they actually suffered. It is as well to reflect here that that is evidence of the risk and is not the evidence by which the penalty is to be set. As I say, the accident could have been much more serious. I have dealt with the nature of those injuries and the remedial steps that were available. 24. I then turn to the issue of general and specific deterrence. There is no issue that general deterrence plays a role in the sentencing process and does so in this case. In relation to specific deterrence, the prosecutor points out that the defendant continues to be an employer in this area, it uses contractors, and that there is a role for specific deterrence. This is not a case where specific deterrence would be reduced to virtually having no impact. 25. For the defendant, it is pointed out, that looked at in its totality the evidence shows that this was an employer who had a number of systems in operation and it was not a case of an absence of systems of work, and this incident arose in the course of what might be referred to as unplanned work. It also points in this regard to its good record and its unlikelihood of re-offending. In the modern workplace I suppose it is something of a bold statement to say that employers will not re-offend. The complexity of our workplaces suggest that even those with good systems, such as I accept are in place with this employer, still need encouragement to enforce these systems and to ensure the safety of workers, whether their own workers or employees of others. So it is in that sense of encouraging continuing monitoring and enforcement of procedures that I take into account specific deterrence in this case. 26. As to subjective factors, here there is an early plea. It is not contested that it was made at the earliest possible time when the amended charge was filed in Court. In those circumstances I think it appropriate that the defendant have the benefit of the full discount of 25 per cent on account of that consideration. 27. In relation to other matters; over a period of eight years this defendant has maintained a clear record in relation to occupational health and safety. It has a modest number of employees but it works in an area where there are inherent dangers. This is to be regarded as a good record and a reflection of the good industrial citizenship of the defendant. It is uncontested that the defendant co-operated with the WorkCover Authority investigation. It is clear from the evidence of Mr Lubrano that there is contrition expressed on behalf of the defendant following the accident to the employees and again expressed in his affidavit today. In those circumstances I would propose to grant a further 10 per cent discount, bringing the total discount to 35 per cent. 28. Having regard to all of those matters I make the following orders: 1. The defendant is found guilty of the offence under section 8(2) of the Occupational Health and Safety Act 2000 to which it pleaded guilty in matter IRC 4630 of 2003. 2. The defendant is fined the sum of $81,250 with a moiety to the prosecutor. 3. The defendant shall pay the costs of the prosecutor as agreed and, in the absence of agreement, as determined by the Court. 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.