Inspector Sara Bestre v Jontari Pty Ltd and Inspector Sara Bestre v Tempo Services Ltd [2006] NSWIRComm 373

Industrial Court of New South Wales

CITATION: Inspector Sara Bestre v Jontari Pty Ltd and Inspector Sara Bestre v Tempo Services Ltd [2006] NSWIRComm 373

PROSECUTOR: Inspector Sara Bestre

PARTIES: DEFENDANTS: Jontari Pty Ltd and Tempo Sevices Ltd

FILE NUMBER(S): IRC 5843 & 5844 of 2005

CORAM: Haylen J

CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1), s 8(2), s 28(a), s 28(b) - prosecution of cleaning contractor and wholly owned subsidiary providing labour to perform the contract - cleaners working early morning and late afternoon shifts - work performed in separate areas of school - lack of established systems of communication between cleaners working in separate areas of school - isolated location of school - risk of assault of cleaners not adequately addressed by safety system - system of "team cleaning" introduced after incident of assault - lack of adequate risk assessment - defences raise suggested impossibility of preventing assault by young and powerful intruder intent on criminal enterprise - defence addresses wrong issue by focusing upon the incident rather than the particulars of charge - offences proved - statutory defences raised - steps taken after incident indicate defendants able to comply with provisions of the Act - evidence does not establish that commission of offence due to causes over which defendants had no control and against the happening of which it was impractical for the defendants to make provision - defences fail.

Cullen v State Rail Authority (1989) 31 IR 207 at 209 CASES CITED: Inspector Jessica Doyle v Gignen Pty Ltd and Tempo Services Ltd [2006] NSWIRComm 374 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110