Inspector Charles v Wollondilly Mobile Engineering Pty Ltd [2010] NSWIRComm 187

Industrial Court of New South Wales

CITATION: Inspector Charles v Wollondilly Mobile Engineering Pty Ltd [2010] NSWIRComm 187

PARTIES: Inspector Steve Charles (Prosecutor) Wollondilly Mobile Engineering Pty Ltd (In Liq) (Defendant)

FILE NUMBER(S): IRC 355 and 356 of 2009

CORAM: Staff J

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - defendant in liquidation - offences dealt with on ex parte basis - findings - statutory defences considered - offences proven.

Corporations Act 2001 (Cth) LEGISLATION CITED: Criminal Procedure Act 1986 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001

CASES CITED: Inspector Charles v Penrose Pine Products Pty Ltd [2010] NSWIRComm 186

HEARING DATES: 11 June 2010

DATE OF JUDGMENT: 17 December 2010

Mr R Reitano of counsel (Prosecutor) LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales

No appearance (Defendant)

JUDGMENT:

- 1 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: STAFF J

Friday 17 December 2010

Matter No IRC 355 of 2009

INSPECTOR STEVE CHARLES v WOLLONDILLY MOBILE ENGINEERING PTY LTD

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

Matter No IRC 356 of 2009

INSPECTOR STEVE CHARLES v WOLLONDILLY MOBILE ENGINEERING PTY LTD

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT

[2010] NSWIRComm 187

1 On 11 June 2010, this matter proceeded ex parte. Mr R Reitano of counsel appeared for Inspector Steve Charles. Counsel asked the Court to defer determining this matter until judgment had been delivered in respect of a related prosecution of Penrose Pine Products Pty Ltd ("Penrose Pine") in which that defendant had entered a plea of guilty. Sentencing occurred on 16 December 2010: Inspector Charles v Penrose Pine Products Pty Ltd [2010] NSWIRComm 186. 2 In these proceedings Wollondilly Mobile Engineering Pty Ltd (In Liq) ("the defendant") has been charged with offences pursuant to s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 ("the OHS Act"). These sections relevantly provide: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 3 The offence under s 8(1) was that the defendant: ... a corporation whose registered office was located at, 127 Remembrance Drive, Tahmoor in the State of New South Wales, being an employer [and since 15 February 2010 c/- Peter A Amos, liquidator, of Amos Insolvency Pty Ltd [ACN 134 425 997] whose address is 25/185 Airds Road, Leumeah in the State of New South Wales], on 22 March 2007, at 1 Forestry Road, Penrose in the State of New South Wales ("the site") FAILED TO ensure the health, safety and welfare at work of all its employees, in particular Benjamin Pendergast ("Pendergast") and Jarrad Thornton ("Thornton"), contrary to section 8(1) of the Occupational Health and Safety Act 2000. 4 The s 8(2) offence was that the defendant: ... a corporation whose registered office was located at, 127 Remembrance Drive, Tahmoor in the State of New South Wales, being an employer [and since 15 February 2010 c/- Peter A Amos, liquidator, of Amos Insolvency Pty Ltd [ACN 134 425 997] whose address is 25/185 Airds Road, Leumeah in the State of New South Wales], on 22 March 2007, at 1 Forestry Road, Penrose in the State of New South Wales ("the site") FAILED by its acts or omissions particularised below to ensure that people other than its employees, in particular Stanley Battersby ("Battersby"), were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. 5 The particulars of the s 8(1) charge were: (a) The risk to the health and safety of Pendergast and Thornton was the risk of injury or death from fire and/or explosion created by the conduct of "hot work" (work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment) on or about the wood shavings storage bin at the site, including the risk of injury or death sustained in the course of responding to such fire and attempting to escape any such fire and/or explosion.