Industrial Relations Commission of New South Wales in Court Session CITATION : State Transit Authority of New South Wales v Guillarte [2003] NSWIRComm 128 APPELLANT State Transit Authority of New South Wales known as Sydney Ferries PARTIES : RESPONDENT Inspector Corrie Guillarte FILE NUMBER: IRC 4562 of 2002 CORAM: Wright J President; Walton J Vice-President; Haylen J CATCHWORDS : Appeal - Occupational health and safety - Appeal against conviction - Safe system of work - Decision of Chief Industrial Magistrate - Obligation of employer under s 15 of the Occupational Health and Safety Act 1983 - Recent authority - Defence not available - Decision of Chief Industrial Magistrate correct - Leave to appeal refused - Appeal dismissed. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15 s 53 CASES CITED : WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 HEARING DATES: 04/02/2003 EXTEMPORE JUDGMENT DATE : 04/02/2003 APPELLANT Mr R J Buchanan QC and Mrs W G Thompson of counsel Solicitors: Sparke Helmore (Mr G McCann) LEGAL REPRESENTATIVES: RESPONDENT Mr R M Goot SC with Ms L M McManus of counsel Solicitor: Ms R Parmegiani WorkCover Authority of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Wright J, President Walton J, Vice-President Haylen J Wednesday 2 April 2003 Matter No IRC 4562 of 2002 STATE TRANSIT AUTHORITY OF NEW SOUTH WALES KNOWN AS SYDNEY FERRIES v INSPECTOR CORRIE GUILLARTE Application by State Transit Authority of New South Wales known as Sydney Ferries for leave to appeal and appeal against a decision of the Chief Industrial Magistrate given on 24 July 2002 in Matter No 2015327/00/2 JUDGMENT OF THE COURT Extempore [2003] NSWIRComm 128 1 We have determined that leave to appeal should be refused in this matter. It is therefore unnecessary to provide elaborate reasons for our decision or discuss the factual background which we consider is adequately set out in the Chief Industrial Magistrate's decision of 1 February 2002. 2 Whilst the decision was expressed in relatively summary terms we consider that his Worship plainly concluded that the appellant had not provided a safe system of work because the system adopted by it, such as it was, permitted variation between the practices which represented a risk to the safety of employees and those which did not. 3 His Worship was correct in saying the system was (we would add, at its highest) ad hoc and ultimately that the appellant did not meet its obligations under the Occupational Health and Safety Act 1983, having regard to the system adopted by it. We consider that the Chief Industrial Magistrate was correct in this conclusion. We note the recent discussion as to the obligations falling upon an employer under s 15 of the Occupational Health and Safety Act in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 at [78] and [101] 3, as follows: [78] Thus, in order to meet the requirements of s 15 of the Act, the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. That is, to reiterate what was stated by the majority in Cullen v State Rail Authority [(1989) 31 IR 207] at 219: In order to ensure such a system was safe as required by s 15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case. ... [101] 3. The majority in both Cullen and Dawson [(1990) 37 IR 110] based their judgments upon the existence of an offence, examined against the background of well-established safety-systems, unlike the present case in which there was effectively no system at all, established or otherwise. The extent to which an employer could be held accountable for the conduct of a supervisor was assessed against that same background. Where an employer has established, maintained, and promulgated a relatively detailed system of safe work practices, it becomes meaningful to consider whether that employer has done all that is reasonably practicable. The highest that the respondent could put its "system" in this case was to say that it had delegated establishment and implementation of safe work procedures to the unmonitored discretion of a responsible individual: an unpersuasive argument in the light of Cullen where the majority held that a comparatively small degree of discretion left to the linesman rendered the otherwise detailed system unsafe. The establishment of the offences in this case, both of which included a failure to provide a safe system of work, was not challenged on appeal. The very establishment of an offence assumes a causal nexus between the conduct of the respondent and the consequent risk to the health, safety and welfare of its employees: see Kellogg [(2000) 101 IR 239] at 253. 4 The appellant failed to establish a system of work which required the performance of the requisite work by two persons and excluded the performance of work by a single person. Further the appellant failed to sufficiently, promulgate a requirement to work with two persons when handling a gangway. Those failures fell squarely within the charge in this matter which was concerned with a failure to "provide" a system of work. In this respect the contentions raised by the appellant that the charge did not sustain his Worship's finding because it did not refer to the maintenance of a system of work, falls away. 5 In the light of these findings it is unnecessary for us to consider the further contention of the appellant that his Worship made findings as to training which were improper as they fell outside the charge. This is so, as the appellant conceded, as its case could not succeed on that basis alone. Nor is it separately necessary to consider the submission that it was the employee, Mr Carr, who acted in such a manner outside the system established by the employer as to remove any causal nexus between any alleged failure and the risk to employees. The requisite failure related to a failure to establish a safe system of work per se. 6 In any event, we consider these submissions were erroneous. We refer in this respect to the judgment in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited at [101] sub-paragraph (2), where it was held: As the Full Bench was at pains to point out in Ridge Consolidated Pty Ltd v Mauger [(2002) 115 IR 78], the Act is designed to protect against human errors (including foolish disregard for personal safety) as well as technical risks. Appropriate established systems or procedures known and understood in advance by the workforce, together with a clear, practical, chain of supervision or management, go some considerable way to achieving this aim. The mistakes of an individual are less likely to be made, or left unrectified, if that individual is accountable or if an appropriate system of checks and balances has been instituted. 7 The issue of a s 53 defence was faintly argued by the appellant. We do not consider such a defence could be available in the light of our conclusions. The defence is, in any event, excluded by his Worship's findings, which we consider correct. 8 The Court makes the following orders: 1. Leave to appeal is refused. 2. Appeal dismissed. 3. The appellant shall pay the respondent's costs of the appeal which, in default of agreement, may be assessed. ________________________________________ 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.