Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Jim Allison v Brambles Australia t/as Gardner Perrot. [2004] NSWIRComm 398 PROSECUTOR: Inspector Jim Allison PARTIES : DEFENDANT: Brambles Australia Ltd t/as Gardner Perrot FILE NUMBER: IRC 4631 of 2003 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 2000 - s 8(1) - plea of guilty - unscheduled work not subjected to usual safety procedures - working on grate - employees fall 9m into sludge well - serious breach - general and specific deterrence - early plea and subjective factors led to significant 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: Mr Bryce Cross of counsel SOLICITORS: Allens Arthur Robinson JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 3 December 2004 Matter No. IRC 4631 of 2003 Inspector Jim Allison v Brambles Australia Ltd t/as Gardner Perrott. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000. EX TEMPORE JUDGMENT [2004] NSWIRComm 398 The defendant in these proceedings, Brambles Australia Ltd trading as Gardner Perrott, has pleaded guilty to a breach of s 8(1) of the Occupational Health and Safety Act 2000. The nature of the offence to which it has pleaded guilty is set out in the Amended Application for Order. The circumstances are firstly set out in paragraph (d) of the particular and that particular reads as follows: On 13 November 2001, Messrs Ferris and Black (they were employees of the defendant) were working at the site, the site being the Australian Water Services Prospect Water Filtration Plant. Specifically, they were undertaking removal of sludge and/or other material from the Waste Wash Water Tank. A hose, known as a flat lay hose, had been inserted into the Waste Wash Water Tank Well No 1 to dewater the Waste Wash Water Tank to allow work to be done in that space. That was done by lifting a metal grate at Waste Wash Water Well No 1 out of its concrete rebate and placing the hose into that well so that the metal grate then rested on the concrete rebate and the flat lay hose. During the performance of the dewatering, a spray of sludge emerged from the vacuum 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 onto the control panel immediately adjacent to Waste Wash Water Well No 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. In this position the metal grate appeared to Mr Ferris to be properly seated and when Mr Black stood on it there was no movement. However, neither Mr Ferris nor Mr Black checked the metal grate before performing the work. For unknown reasons, Messrs Ferris and Black and the metal grate fell into the Waste Wash Water Well No 1, landing in the water/sludge below. The fall was a distance of approximately 9 metres The offence is then set out in paragraph (e) of the particulars and is stated in this way: The defendant failed to ensure that the systems of work and the working environment of the employees, Messrs Ferris and Black, was safe and without risk to health in that the Defendant failed to: (i) Instruct its employees, Messrs Black and Ferris not to stand on the metal grate or to access the area of the metal grate inside the safety handrails. (ii) Ensure that Messrs Ferris and Black were wearing safety harnesses or had employed other means of fall protection in the event that it was necessary to access the area of the metal grate beyond the safety handrails. (iii) Failed to ensure that the metal grate was secured to the concrete surround by way of bolt or other method of fixation so as to ensure that if the metal grate was stood upon by employees such as Messrs Ferris and Black, the metal grate is unable to fall, exposing employees to the risk of fall. (iv) The Defendant also failed to instruct Messrs Ferris and Black not to undertake activities which had not been referred to within the Safe Work Methods Statement provided to them by the Defendant. (v) The Defendant failed to provide such supervision as was necessary to ensure that only activities referred to within the Safe Work Methods Statement which had been provided to Messrs Ferris and Black were undertaken. (vi) In the subject accident, the Defendant's employees suffered the following injuries: (a) Daniel Black: Compound fracture of the left leg and a scrape to the forehead. (b) Michael Ferris: Haematomas to the right calf behind the right knee, severe bruising and swelling, bruised right elbow and nerve damage to his right arm. They are the particulars of the breach to which this defendant has pleaded guilty. On this hearing, dealing with the appropriate penalty to impose, I have had from the Prosecutor an agreed statement of facts, a number of photographs and a factual report. Also tendered was a list of previous convictions. For the defendant there have been two affidavits, to which I shall return, both substantial documents, the first of Peter Nicholas, the OHS and E systems manager of the defendant, the second by Kerry Wilson, Senior Vice-President, Human Resources of the defendant. I firstly come to the Agreed Statement of Facts, which I do not intend to read onto the record but to note some particular matters. As would be now clear from the amended Application for Order, the defendant here was undertaking works at the water filtration plant, Cowpasture Road, Wetherill Park, which had been opened and conducted by Australian Water Services Pty Ltd. It was that entity which was requiring the removal of the sludge and stones from the tank. The Agreed Statement of Facts describes the area in which this activity was taking place, and I also have had the benefit of photographs, which assist me in understanding the evidence. It is said that the access area approaching the wells was protected by a metal handrail and access to the wells and control panels was provided by a gate in the guardrail. There is then reference to the use of the flat hose being inserted into Well No 1, and again that has been summarised in the particulars. Safety precautions had been put in and around the grate by Australian Water Services including the placing of safety tape around the guardrail, but it was removed around the middle of September. A job safety analysis was prepared by Mr Black prior to the commencement of the latest round of work on the tank. That annexure was read and signed by Mr Black, Mr Ferris, Mr Osborne and Mr Phillips, all of whom were employees of Gardner Perrot. Now, on 13 November 2001, during the dewatering processes, as has already been described, there was a spray of sludge which emanated from the vacuum truck, apparently because it had become full. This was an overflow. The sludge was sprayed onto the control panel and Messrs Black and Ferris were attempting to clean the sludge. Again in the statement of facts it is acknowledged that these two employees of the defendant stood on the grate but, for unknown reasons, they fell into the well, landing in the water sludge below. Again it is acknowledged that was a distance of some 9 metres. In relation to the evidence for the defendants, and I think it was accepted when I raised this matter during submissions, a very large part of this material goes to establish significant steps taken by the defendant to create and maintain safe systems of work and they are well documented and I don't need to reproduce in detail what has been put in those documents, which are annexures to the affidavits. Mr Peter Nicholas, now a self-employed consultant, was employed by Gardner Perrott in a number of positions. He held, at the date of this accident, the position of the national Occupational Health, Safety and Environmental Manager of the eastern region of Australia. He conducted an investigation into the accident and there has been some consideration of his report today. That report attempted, after the event, to establish what may have occurred that led to the two employees of the defendant falling into the well. Mr Nicholas's affidavit then deals with safety measures and safety management plans, induction training, training of supervisors, work place inspections, ongoing training and education, procedures for safety hazard identification control and procedures. He deals specifically with the vacuum loading course and a job safety analysis of the vacuum loading. He deals with the pre-accident training of Mr Ferris and Mr Black which involved confined space training. There was site specific induction training. He refers to tool box meetings as well as other means of providing on site training. He also deals with the work clearance certificate. As it turns out, in this particular case, I think it is accepted that what happened here was an unexpected event and the response to it and the necessity to clean the sludge was taken up by those two employees without going through the processes that might normally have taken place if it was an anticipated work requirement. There would have been some consideration of the safety risks, some documentation and some discussion about it. Mr Nicholas then deals with the defendant's ( through Gardner Perrott's rehabilitation procedures) acknowledgement of counselling offered and that it was applied to the two employees in this particular case. That last matter is of some significance. The other substantial affidavit, that of Mr Wilson, takes a much broader view. It gives a detailed history of Brambles and its various divisions and the way in which it has undertaken its various types of businesses under the corporate system it operates. There is a reference to its management structure, a safety management team established in the Sates of Australia, how it operates, considerations for the environment and there are also, amongst other things, the annexures and a number of documents dealing with the tracking by this defendant of its performance in work place injuries and lost time. Those documents are relied upon to show a significant improvement over time in the effectiveness at the work place of the defendant's safety policies. Now, against that evidence, I come to consider, firstly, the objective seriousness of this offence. The offence to which the defendant has pleaded guilty, as I have already set out, involves a number of areas where the defendant has accepted it was deficient. There was some debate about foresight, about what might be inferred from the presence of the flat hose at the grate. Having regard to both the particulars and the detailed statement of facts, I find it unnecessary to make a final determination about that matter. It is sufficient for these purposes to note the range of matters and omissions by the defendant as set out in paragraph (e) of the particulars. Now, I have already described the nature of the work and what occurred when, for some reason, this grate became displaced and two workers fell 9 metres into the sludge. That watered sludge was at least apparently some 3 metres deep. The injuries that they suffered may really well have been much more serious. The particular incident is evidence of the nature of the risk and, considering all of the evidence, I am satisfied that this is, indeed, a serious breach and it is a serious breach for the factual matters set out in the agreed statement of facts and the particulars of the amended Application For Order. In relation to general and specific deterrence, there is no suggestion here other than that an element of the penalty must reflect general deterrence. The issue of specific deterrence is a little different. There are at least two considerations. The first is the way in which the defendant operates through various divisions. From the defendant's affidavit material, the Court has an understanding of the environment and undertakings in which it is involved. It is now no longer involved in this particular type of undertaking. Some six or seven months after the incident this business of Gardner Perrott was sold. However, I cannot accept that in those circumstances there is no role for specific deterrence in fixing an appropriate penalty. Having regard to the evidence, the Court is entitled to look at the totality of the operation of the defendant and, although I will accept that there is a reduced role for specific deterrence in this case, I am unable to accept it has no role whatever to play. I then come to the issue of subjective factors. It is accepted by the Prosecutor, and I agree, that there has been an early plea. I see no reason why the defendant should not obtain the full benefit of a deduction in consideration of that matter and I will allow 25 per cent for that factor. In relation to other subjective features, I accept from the affidavit evidence there was a rehabilitation programme that was made available for those injured employees. They had counsellors, the availability of counselling and access to a rehabilitation programme. They appear to have been able to return to work fairly shortly after the accident. It is accepted also by the Prosecutor that there was co-operation with the WorkCover Authority through its investigation of this matter. The record of the defendant is another matter. There are a number of convictions recorded in an exhibit that has been tendered by the prosecutor. This division of Brambles Australia, Gardner Perrott had, between apparently 1992 and 2002, five convictions, three of them under s 15 of the Occupational Health and Safety Act, one under s 27(1) and one under s 27A. The Industrial Commission in Court Session has imposed two fines, one of $85,000 for a 1999 incident and a $6,000 fine in relation to the same offence. Other divisions of the defendant have been the subject of proceedings. There was a $78,000 fine in relation to a year 2000 incident in the Australia Division that was a s 16(1) offence. In a 2000 incident the Chief Industrial Magistrate under s 8(2) in 2002 imposed a fine of $22,500. There is a considerable record over a long period of time, getting toward 25 years, for that part of the defendant previously known as Brambles Holdings. Many of those are small amounts, the most recent relates to a year 2000 breach of s 8(1) of the Act whereby the Commission in Court Session imposed a $140,000 fine. The type of undertaking there involved was not related to this type of work. I have heard from the Prosecutor that there were other breaches involving falls from a height to the ground rather than falls in this specific type of incident. Now, it is quite correct that as a matter of sentencing principle the record of the defendant and its prior convictions alone does not justify a greater penalty than the offence warrants but it certainly raises the measure of leniency to be accorded to the defendant. I agree with the submission that has been put by the defendant in relation to that matter Having considered those matters, the Court makes the following orders: (1) The defendant is found guilty of the offence under s 8(1) of the Occupational Health and Safety Act 2000 to which it pleaded guilty in matter IRC No 4631/03. (2) The defendant is fined the sum of $97,500 with 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.