Industrial Court of New South Wales CITATION: Inspector Richard Mulder v Baseline Constructions Pty Ltd. Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 [2008] NSWIRComm 136 PROSECUTOR: Inspector Richard Mulder PARTIES: DEFENDANT: Baseline Constructions Pty Ltd FILE NUMBER(S): IRC 148 of 2007 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(2) - offence alleged against head contractor - laying of precast floor planks by sub-contractor - use of temporary support - failure of temporary support - heavy floor planks fall killing principal sub-contractor and injuring three of his employees - inadequacy of temporary supports - insufficient plank end support - plea of guilty entered by defendant after matter listed for contested hearing - significant failures in safety system despite extensive existing safety system - remedial steps not difficult to take - serious breach established - - general and specific deterrence - subjective factors considered - utilitarian benefit of plea - no prior record in 15 year participation in dangerous industry - defendant shows leadership in industry safety standards - good industrial citizen - contrition - co-operation with prosecuting authorities - penalty imposed. CASES CITED: Inspector Mulder v Girotto Precast Pty Ltd Prosecution under s 8(2) of the Occupational Health and Safety Act 2000) and Inspector Richard Mulder v Guiseppe Girotto Prosecution under s 26(1) and s 8(2) of the Occupational Health and Safety Act 2000 [2008] NSWIRComm 94 HEARING DATES: 11 July 2008 DATE OF JUDGMENT: 17 July 2008 PROSECUTOR: Mr R Reitano of counsel SOLICITORS: WorkCover Authority LEGAL REPRESENTATIVES: Legal Group DEFENDANT: Mr G Watson SC SOLICITORS: KQ Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 17July 2008 Matter No IRC 148 of 2007 INSPECTOR RICHARD MULDER v BASELINE CONSTRUCTIONS PTY LTD. Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 136 1 In late May 2004, Baseline Constructions Pty Ltd ("Baseline") entered into a contract as head contractor for the construction of a number of multi-storey buildings located in Marque Street Rhodes known as "The Rhodes Bay Residential Development" ("the Development"). Baseline entered into a number of sub-contract agreements for the provision of a variety of works and services at this site, including the supply and manufacture of Hollowcore floor planks by Rescrete Industries Pty Ltd ("Rescrete") and the provision of tower cranage services by Marr Contracting ("Marr"). In November 2000, Baseline also entered into a sub-contract agreement with Girotto Precast Pty Ltd ("Girotto Precast") requiring that company to supply precast wall panels, co-ordinate the delivery of precast wall panels, take delivery of Rescrete floor planks and erect the wall panels and floor planks. In late November 2004, Girotto Precast sub-contracted the erection of the wall panels and the floor planks to Hi-Rise Erections Pty Ltd ("Hi-Rise"). 2 Work on the erection of the floor planks by Hi-Rise was continuing on 8 February 2005 with the use of two erection crews under the supervision of Mr Brendan Brown. The crews were working on two levels with Mr Brown working underneath the planks being installed. A difficulty was encountered with a floor plank that was not able to be fitted and while arrangements were being made to cut it to size, it was placed over one or more of the already installed floor planks. While Mr Brown was under the installed floor panels, those panels came away and fell. As a result of the accident, Mr Brown was fatally injured and three other workers received injuries through falling while working on the floor panels on the storey above. The incident was investigated by the WorkCover Authority and in February 2007, proceedings were commenced against Baseline alleging a breach of s 8(2) of the Occupational Health and Safety Act 2000 and by the operation of s 26(1) of the Act breaches were alleged against Mr Bettar as a director of Baseline and against Mr Groenwegan, being a person allegedly concerned in the management of Baseline. 3 On the second occasion that the three matters were listed before the Court for plea and directions, each defendant entered a plea of not guilty. Arising from the same accident, prosecutions were also commenced alleging a breach of s 8(2) of the Occupational Health and Safety Act 2000 by Girotto Precast Pty Ltd and by operation of s 26(1) of the Act alleging a breach by a director, Mr Giuseppe Girotto. In the Girotto matters pleas of guilty were entered following the filing of an Amended Application for Order. Those matters have been finalised and are reported as Inspector Mulder v Girotto Precast Pty Ltd (Prosecution under s 8(2) of the Occupational Health and Safety Act 2000) and Inspector Richard Mulder v Giuseppe Girotto (Prosecution under s 26(1) and s 8(2) of the Occupational Health and Safety Act 2000 [2008] NSWIRComm 94. 4 At the end of January 2008, the parties in the Baseline matters indicated that a hearing of five days was required to deal with the case and on 8 February 2008 the parties were informed that the matters would be heard in the week commencing 7 July 2008. By letter dated 25 June 2008, the prosecutor notified the Court (confirming earlier telephone advice) that Baseline would now enter a guilty plea and further noted that the prosecutor would seek leave to discontinue proceedings against the director Mr Bettar and against Mr Groenewegan, a person alleged to be concerned in the management of Baseline. On 27 June 2008, the prosecutor filed a Notice seeking leave of the Court to discontinue the proceedings against Mr Bettar and Mr Groenewegen: those orders were made as sought. By consent of the parties, the hearing of Baseline's evidence and submissions on sentence was listed on the last day of the proposed hearing days. 5 The particulars of the charge against the defendant Baseline were as follows; (a) The defendant was at all material times, an employer; (b) The defendant was engaged in building and construction work at (the) site; (c) The defendant engaged sub-contractors to perform work at the site who in turn engaged other contractors to install and erect precast concrete planks known as Hollowcore planks at the site; (d) The defendant failed to provide and maintain a safe system of work for the installation and erection of Hollowcare planks at the site in that it failed to: (i) Have in place a safe system of temporary support of planks when they were being erected; (ii) Check that the planks were the correct size prior to lifting them in place; (iii) Make sure that the load bearing capacity of the structure where the planks were being installed or erected and where planks might be stored was sufficient to permit the temporary storage of planks during the erection process; (iv) Have in place a Safe Method Statement dealing with all the aspects of the erection (of) floor planks including but not limited to a safe procedure to be followed when those planks were found to be too big for where they were to be installed; (v) Proscribe work being carried out any time during the process of erection of the planks from below the plank or in the bay where any adjustment was being made; (vi) Undertake adequate and proper calculations in relation to the load bearing capacity of all the parts of the structure that might be affected during the erection process; (vii) Make sure that all people working at heights wore harnesses or were otherwise protected by some other appropriate system of falls arrest such as the use of safety net scaffolding; (viii) Have in place an adequate system of checks and safety audits so as to make sure that all the matters referred to in (i) to (vii) were properly in place; (e) The defendant failed to adequately train, instruct and supervise sub-contractors and employees of sub-contractors working at the site. (f) As a result of some or all of the above mentioned omissions by the defendant Brendan Brown was struck by a precast concrete floor panel and killed. Daniel Reeves, Glen Immer and Shane Banks were placed at risk of injury. 6 On the hearing of the evidence and submissions on sentence, the prosecutor tendered the following documents: (a) an Agreed Statement of Facts; (b) a Prior Convictions Report showing that Baseline had no relevant prior convictions; (c) an ASIC company search for Baseline; (d) a statement by Inspector Richard Mulder dated May 2006; (e) a statement of Inspector Waterhouse dated November 2005; (f) a Factual Inspection Report by Inspector Mulder dated 11 February 2005; (g) 38 coloured photographs taken by Inspector Mulder during his visit to the site on 8 February 2005 depicting the incident scene; (h) an engineering report entitled "Collapse of Precast Floor, 10-16 Marquet Street Rhodes on 8 February 2005" prepared by Mr Chris Turner B.E on 20 March 2006; (i) a copy of Australian Standard AS 3610-1995, Formwork for Concrete; (j) a copy of Australian Standard AS3610 Supp 2 - 1996, Formwork for Concrete - Commentary (Supplement No 2 AS 33610-1995); (k) a WorkCover Formwork Code of Practice 1998; (l) a Deed of Novation between Statewide and Meinhardt; (m) a Consultancy agreement between Baseline, Statewide and Meinhardt; (n) a drawing reference M1677, B8, H specifically relating to the incident area revised 02.12.04; (o) the Judgment of 9 May 2008 of this Court in the related matter of Inspector Mulder v Girotto Precast Pty Ltd and Giuseppe Girotto [2008] NSWIRComm 94; and (p) Safe Work Method Statement developed by Hi-Rise. The Agreed Statement of Facts appears as an annexure to this judgment. 7 For the defendant, three witnesses were called in order to establish four propositions: firstly, that the defendant had shown its contrition in relation to this accident and in fact, the defendant's director was a close personal friend of the deceased, Mr Brown; secondly, that Baseline was a good corporate and industrial citizen with a clear record that had not only complied with safety standards in the industry, but had been involved in improving safety standards in this industry; thirdly, that Baseline had learned from the incident and had directed its newly appointed occupational health and safety manager, Mr Misdale, to completely overhaul the company's safety procedures; and lastly, that it was an ameliorating factor that physically Baseline representatives on site were located at a distance from the place where the accident occurred. 8 Mr Nicholas Bettar was the sole director of the company and his brother was engaged in a senior management position. Mr Bettar had obtained a degree in civil engineering in 1992 and had established Baseline in 1993. He was a member of a number of professional bodies including the Master Builders Association, the Australian Steel Institute, The National Concrete Association and Engineers Australia. He had taken an active role in the deliberation of these bodies and had also involved employees of Baseline in those activities. Senior members of the company had given much time and energy to this involvement and in particular, Mr Bettar and his staff had been heavily involved in promoting the need for and then drafting what then became the national Code of Practice for Precast, Tilt-up and Concrete Elements in Building Construction, a Code published by the Australian Government in February 2008. Mr Bettar's contribution to the development of the Code had been specifically acknowledged. Baseline had also been involved with an international federation and had arranged for an expert in precast concrete to come to Australia from England to speak to the staff of the company. This person was regarded as a leading figure in the field and the company had invited major engineering and architectural firms to attend the function at Baseline's expense. 9 The core of Baseline's work was in the precast concrete methodology of building in the residential sector and it employed some 70 people. The employees were all known to Mr Bettar and Baseline encouraged them in obtaining additional skills, including by way of undertaking further education. 10 Mr Bettar accepted that the company was guilty of a serious breach of the Act but had continued to pursue high standards of safety in its operations. The company was very proud of its 15 year record without conviction and had learned from the accident. After Mr Misdale had been appointed as the occupational health and safety manager he was directed to review the company's safety practices and as a department head, was given an independent role in relation to occupational health and safety. If Mr Misdale required financial support for any safety related issue, that request was endorsed without question and that would remain the position for the future. Mr Bettar said he had worked closely with the WorkCover Authority and with the industry union, the Construction Forestry, Mining and Energy Union, and had good working relationships with those bodies. 11 The Rhodes project was described as a large scale residential development involving off-site pre-fabricated concrete wall and floor panels being brought to the site and erected on site. This was not a common technique in New South Wales although it was common in other States. In Mr Bettar's view there were only one or two firms who had the expertise and skill to undertake this specialised task and one of those firms was Girotto. Girotto was highly regarded in the field and, as with other contractors and sub-contractors, had been the subject of assessment by Baseline before being engaged. Mr Bettar was satisfied that Girotto Precast was a "top class" company in this field and had a good safety record. He understood that Hi-Rise had been set up by Mr Brown after years of working at a high level in this specialised industry. Mr Brown had an excellent reputation and had worked closely with Girotto Precast and was personally known to Mr Bettar. Mr Bettar regard him not only as very competent but also the best in the field and he was a very good friend and there was a close personal and social relationship between them. 12 Baseline did not tell Mr Brown what to do or exercise day-to-day control over his work. Girotto Precast had their own safety system as did Hi-Rise and there was contact with Mr Monica of Baseline in his role as safety officer. In Hi-Rise's operation there was an "exclusion zone" invoked as a safety measure whereby when erection of floor and wall panels was taking place, the riggers were the only persons to be within the zone. Mr Brown had been emphatic about keeping this exclusion zone and Baseline were thereby excluded from the zone during periods of erection of wall panels and floor planks. 13 Whilst acknowledging the company's guilt in relation to this incident, Mr Bettar also spoke about being deeply affected by Mr Brown's death. He was close to Mr Brown's family and had offered them whatever support was required, including financial support. There were strong personal relationships between Mr Brown, the directors of Girotto Precast and Mr Bettar. Mr Brown was known to be a practising Catholic and a Catholic priest blessed the site following the accident and on the anniversary of the accident. Representations had also been made to the local Council to re-name an internal street at the site "Brendan Brown Way" and that approach had been approved. Baseline had provided counselling for its employees after the incident and had paid $30,000 towards the legal fees of Mr Groenwegan in relation to the prosecution that was commenced against him. 14 In cross-examination, Mr Bettar accepted that Baseline was the head contractor and was undertaking this project on behalf of Statewide. It was accepted that Baseline was to ensure safety on the site. While there was no Baseline employee present before work started at the time of this incident nor was there supervision being exercised on the day, Baseline had a safety manager on site. Baseline had been involved in the preparation of the safe working method statement proposed for this work, both before the incident and was involved in amending that document following Mr Brown's death. Through the safety manager, Baseline had conducted inductions on the site and the safety manager had examined the safe work method statements proposed by Girotto Precast and Hi-Rise. Baseline recognised the expertise of Girotto Precast and Hi-Rise in pre-cast concrete production and erection but nevertheless would correct matters where they thought it was necessary and appropriate. Mr Bettar accepted that Baseline employees could judge if the safe work method statements were appropriate although here, the document proved to be deficient. The approach now adopted overcame the deficiency in the previous safe work method statement and required a step-by-step erection process where every step was examined and signed off before the next step could be undertaken. Mr Bettar was confident that if this system had been adopted on the day of the accident, the deficiency in the support for the flooring would have been discovered and rectified before further work was undertaken. In addition, where a floor plank was found to be too wide it would no longer be permitted to be left on the working deck but would be required to be lowered to the ground and rectified on the ground. 15 Mr Wayne Misdale had been employed by Baseline as the company's occupational health and safety manager approximately six weeks after the accident. He had 30 years' experience in the building industry and had held national positions with large construction firms. When he was interviewed for the position with Baseline, he was told of the accident and the need for the company to improve its safety standards. Upon employment, he undertook a wholesale review of the entire Baseline safety system and made a number of improvements to that system. He was given absolute authority to enforce occupational health and safety procedures and on those matters could not be overruled by Mr Bettar or his brother. He had brought in external experts with a variety of skills to assist in this task of reviewing the company's safety systems and this had occurred at considerable cost to the company. 16 Baseline employed two full-time safety co-ordinators and they were located at each project site. In relation to safety systems and training, Mr Misdale said that the company's systems were now equal to a "tier one standard", that is, a standard expected of a major construction company. Mr Misdale regularly attended the sites and engaged external auditors to inspect and report on the company's work sites. He spoke of having good relations with the industry union and with the WorkCover Authority. Training included the use of workshops and scrutiny of contractors and sub-contractors to ensure that appropriate safety standards were followed on Baseline jobs. The company had never refused to spend any money where he had recommended such expenditure for a safety related matter. 17 Mr Robert Power was the general manager of Girotto Precast and had held that position since 2003. He spoke of the close relationships between Girotto Precast and Baseline and also referred to Girotto Precast's strong commitment to safety and its promulgation of safety systems. He had come to Girotto Precast when the Rhodes project began and noted that the company had a strong commitment to safety. There was an integration of safety not only between contractors and sub-contractors but also between Baseline and Girotto Precast. These safety standards were applied at the Rhodes project and Girotto Precast had the national occupational health and safety manager, Mr Sweeney, involved in that project. Girotto Precast had sub-contracted the erection of the floor and floor panels to Hi-Rise. Mr Brown was well known to Mr Power, having worked for Girotto Precast in Melbourne and Sydney and was known for his excellence within the industry. 18 In cross-examination Mr Power accepted that, at the time of the accident, there were no Girotto Precast employees on the site on the day but that had changed and with Baseline jobs there was now a full-time supervisor present. Mr Power said that persons such as Mr Sweeney, for safety purposes, could be placed within the exclusion zone during the erection process. 19 A number of references and letters of commendation were tendered by the defendant. There were three references from senior members of the construction industry union, the CFMEU, and references from the Master Builders Association of New South Wales and the National Precast Concrete Association of Australia dealing with Baseline's commitment to safety and its participation in promoting industry safety standards. In addition, there was a letter giving some details of Baseline's involvement with the CFMEU's Aboriginal liaison officer and Baseline's sponsorship of a junior rugby league club as a means of keeping Aboriginal children out of trouble. Baseline had sponsored not only the club, but had given apprenticeships and jobs to a number of graduates from courses conducted by the Redfern Waterloo Enterprise Committee where a Koori Job Ready course in construction had been established. Baseline had also held a golf day and had raised $60.000 for the Sydney Childrens Hospital Foundation. In a variety of ways these documents spoke of Baseline's involvement in the community, its charitable works and its involvement in safety and the good reputation it generally enjoyed in the construction industry and in the community. DELIBERATION 20 During his evidence, Mr Bettar readily accepted that this was a serious breach of the Act by Baseline. The seriousness of the offence is indicated by the particulars of the breach accepted by Baseline: there was a failure to have in place a safe system of temporary support of planks while the Hollowcore planks were being erected; there was a failure to check that the planks were the correct size prior to being lifted into place; there was a failure to ensure that the load bearing capacity of the structure where the planks were being installed or erected or where they might be stored was sufficient to permit the temporary storage of planks during the erection process; there was a failure to have in operation a safe work method statement dealing with all aspects of the erection of floor planks especially where the planks were found to be too big when ready for installation; there was a failure to prohibit work being carried out from below the planks or in the bay during the process of the erection of the planks; there was a failure to undertake adequate and proper calculations in relation to the load bearing capacity of all parts of the structure that might be affected during the erection process; there was a failure to make sure that all people working at heights wore harnesses or were otherwise protected by some other appropriate system of fall arrest such as the use of safety net scaffolding; there was a failure to have an adequate system of checks and safety audits so as to make sure that all the matters referred to above were addressed; and there was a failure to adequately train, instruct and supervise sub-contractors and the employees of sub-contractors working on the site. 21 The Agreed Statement of Facts have put those particulars into context: the timber used to provide support was shown on the Recrate connection drawing detailed as temporary support and Hi-Rise was responsible for the supply of hardwood for this temporary support of the Hollow core planks but there appeared to be no other measurement or specification relating to the dimensions, grade and classification of timber to be used; no checks were made of the temporary supports by Baseline or Girotto to ensure that they had been installed in a manner that would enable them to support the floor planks during the erection process and it was not know whether Mr Brown performed any checks on this area; how to deal with oversized planks was something that had been dealt with by Hi-Rise without any reference to Girotto Precast including the system of landing the oversized plank on the deck adjacent to its final position and either jack hammering or saw cutting it to size; Baseline had taken the view that the erection process involved a number of parties and had a system of regular induction sessions for sub-contractors including a review of the sub-contractors' work method statements; Baseline did not provide any training nor did it undertake any checks or audits of any training given or administered by others in the erection of pre-cast panels; neither Girotto Precast or Baseline supervised the work being undertaken at the time of the incident; Baseline did not perform any audits of its own although Girotto Precast, through its occupational health and safety manager, was to conduct weekly audits and report "non-conformances"; by failing to have an adequate audit process Baseline failed to maintain a safe system of work for the installation and erection of the floor planks; Baseline had also prepared a safe work method statement for the site but that dealt only with the erection of pre-cast wall panels and not pre-cast floor panels and Baseline did not identify this deficiency in the safe work method statement; both Baseline and Girotto Precast failed to identify the absence of reference to the erection of floor panels within the safe work method statements in relation to the installation of Recrate floor planks; Baseline irregularly attended toolbox talks although Baseline required such talks for all sub-contractors; Baseline had amended the system of work by requiring workers to wear harnesses while working at height but both Girotto Precast and Baseline failed to ensure that this new system was being used; Baseline reviewed the progress of work but chose to have no direct input into the erection process or methods used by Hi-Rise when the work was being performed; Baseline sought to limit its role at the site to conducting safety inspections and audits to ensure that the sub-contractors were complying with the work methods with Baseline believing the sub-contractors it had engaged were experts in their field; and, no system was in place to ensure safe work methods for dealing with oversized floor planks, particularly in relation to the location and storage of those planks. It is to be noted that it required only simple and straightforward steps to address these deficiencies in the system of work. Upon a proper consideration of these various matters, Baseline's offence is properly considered to be a serious breach of the Act. 22 No party contended that general deterrence should not be considered in setting an appropriate penalty although there was some discussion about the extent to which specific deterrence should feature in the variety of considerations undertaken in the sentencing exercise. Baseline is a significant employer in the State and continues to operate in the residential construction industry. While there is evidence of Baseline's previous commitment to occupational health and safety, its support for industry safety standards, its 15 year clean record and the fact that it acted promptly to address these defects identified in the system of safety, nevertheless there is a role for specific deterrence in setting an appropriate penalty in this case although that is an element that ultimately does not loom large as a consideration. 23 As was pointed out by the prosecutor, the particulars of the charge under s 8(2) of the Act in relation to Baseline were different to the particulars ultimately pressed under the same section of the Act against Girotto Precast arising from this incident. However, there were a number of common features such that it may be concluded that the substance of the offence committed by Baseline is very similar to the offence committed by Girotto Precast. The prosecutor submitted that, in those circumstances, it was appropriate to approach the sentencing task on the basis that there was the same level of culpability evident in the acts and omissions of each defendant. The prosecutor also pointed out, however, that there were also significant differences. The maximum penalty was different because Girotto Precast had a fairly recent previous conviction that the Court had considered relevant although the nature of the offences were quite different. In addition, there were different roles played by the parties with Baseline being the head contractor and Girotto being a sub-contractor although one that was an expert in its field. Another difference was that Girotto Precast had entered a plea of guilty at an early stage while Baseline had entered a plea of not guilty at an early stage and two weeks before the five day hearing was to commence, indicated that it would change its plea to guilty and use one of the hearing days to deal with the evidence and submissions on penalty. 24 Senior counsel for Baseline submitted that the defendant's clean record for 15 years in an inherently dangerous industry, together with the lower penalty regime was a significant difference between the two defendants. It was also submitted that Girotto Precast was at the front line of the pre-cast concrete operation and that Baseline was one step back from that type of involvement and in effect did not hold itself out as being an expert in the field. 25 The Court accepts the prosecutor's submission that the substance of the offences are similar and that the culpability of each defendant is much the same. In this particular case there is a significant difference in that Baseline, with a clear record and as a significant employer in a dangerous industry, is entitled to the leniency reserved for a first offender and its penalty is properly to be set against a significantly lower maximum penalty than applied to Girotto Precast. In relation to subjective factors, this is not a case where there has been an early plea but the prosecutor accepts that nevertheless there was considerable utilitarian value in the plea because the alteration in the defendant's position was signalled some two weeks before the hearing and allowed the prosecutor to make arrangements so that witnesses were not organised and present in Court: the necessity for a five day hearing had been reduced to a hearing of less than a day while utilising part of the time set down for the contested hearing in any event. The Court accepts the thrust of that submission and having considered the way in which the plea was finally entered, this is a case where the appropriate discount to be allowed is 15 per cent. 26 The prosecutor accepts that there was co-operation, not only with the investigation but with the finalising of the prosecution, and that the defendant had demonstrated its contrition. The prosecutor also accepted the evidence of Mr Bettar as to the defendant's usual commitment to safety, its participation at a high industry level in bringing about safer methods of working, including a national code referrable to this specialised industry. While that submission is accepted, it needs also to be noted that the evidence demonstrated the defendant to be not only active in promoting safety within its own business and on a wider industry basis, but it also encouraged the acquiring of higher education and additional skills by its workforce. The evidence showed it supported the community both by sponsorship and through charitable donations. The references tendered during the proceedings from a wide variety of sources indicated that the defendant was held in high regard and had a reputation for taking its obligations seriously in relation to safety in its operations. 27 Having regard to these matters, this offence appears to be out of character and although only simple steps were required to address the risk to safety exposed by the accident, the defendant promptly took those steps but went further and initiated a wide ranging investigation of all of its safety systems, making a number of alterations to those systems and subjecting them to external audit. The fact that it is accepted that in operating in this high risk industry without previously being in breach of the Act allows the conclusion that, until this event, the defendant had a good safety record. However, the Court is unable to accept the defendant's submission that it can be legitimately distinguished from Girotto Precast by being one step further back from this specialised task, a submission that seems to rely on the expertise of Girotto Precast in precast concrete operations. There is force in the prosecutor's submission that Baseline as the head contractor should not be distinguished from Girotto Precast in relation to site safety and had indeed involved itself in scrutinising and amending the proposed safe working method statement for this task. After the accident, Baseline also involved itself in the task of drafting an appropriate safe working method statement to perform the task in the future. These matters do not allow a valid distinction to be drawn between its participation at the site and that of Girotto Precast. The variety of subjective factors, otherwise, will be considered in mitigating the severity of the penalty although full recognition will be given to the objective seriousness of the offence. ORDERS (i) The defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 to which it entered a plea of guilty in Matter No IRC 148 of 2007; (ii) The defendant is fined the sum of $160,000 with half that amount to be paid to the prosecutor by way of moiety. (iii) The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1. The prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("OHS Act 2000") and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter. 2. Baseline Constructions Pty Ltd (ACN 058 578 662) (Baseline) is a company with its registered office c/- Parras & Associates situated at Level 7, 111-117 Devonshire Street, Surry Hills, New South Wales. Contractual Relationships at 10-16 Marquet Street, Rhodes 3. On 27 May 2004, Baseline entered into a contract with Statewide Developments Pty Limited (Statewide) for construction of a large-scale residential construction known as the "Rhodes Bay Residential Development" situated at 10-16 Marquet Street Rhodes (the site). The site was divided into 4 zones (known as green, blue, red and yellow) and the buildings being erected were divided into sections, each of each of which was known as a block and identified by the letters "A" to "K". 4. On 13 September 2004, Meinhardt (NSW) Pty Ltd (Meinhardt) entered into a contract with Statewide for consultancy services which were defined in full in Schedule A to the contract. 5. On 13 September 2004, Baseline entered into a Deed of Novation with Statewide, as a consequence of which Meinhardt's contractual obligations (previously owed to Statewide) were novated to Baseline. 6. Baseline entered into a number of subcontract agreements for the provision of various works and services at the site. 7. Baseline entered into a subcontracts for: (a) the supply and manufacture of Hollowcore floor planks with Rescrete Industries Pty Ltd (Rescrete); and b) the provision of tower craneage services for the site with Marr Contracting Pty Ltd (Marr). 8. On 12 November 2004, Baseline entered into a subcontractor agreement with Girotto Precast Pty Ltd ("Girotto Precast"). The agreement relevantly required Girotto Precast to: (a) supply precast wall panels; (b) coordinate the delivery of the precast wall panels; (c) take delivery of Rescrete floor planks; and (d) erect the wall panels and floor planks. 9. On 26 November 2004, Girotto Precast subcontracted the work relating to the erection of the concrete wall panels and the Rescrete floor planks to Hi-Rise Erections Pty Ltd (Hi-Rise). 10. At all material times, the erection of precast wall panels and the Rescrete floor planks on the B Block green zone was performed by the following Hi-Rise employees: (a) Brendan Brown, director and site supervisor; (b) Shane Banks, leading hand; (c) Greg Lee, labourer; and (d) Daniel Reeves, labourer. 11. On the day of the incident, the following persons were employed by Marr to perform work at the site: (a) Glenn Immer, as a dogman working with the crew led by Brendan Brown; and (b) Terry Tutaki, as a tower crane operator. 12. At all material times, Baseline employed (amongst others) the following persons to perform work at the site: (a) Nelson Monica - Safety Manager; and (b) Petrus ('Peter') Groenewegen - Construction Manager. 13. At all material times, Girotto Precast employed the following persons to perform work at the site: (a) Nevin Sweeney - Occupational Health and Safety Manager; (b) Andrew Bodman - Construction Coordinator; (c) Anthony Roth - Construction Coordinator; and (d) Robert Power - General Manager NSW. The Incident 14. On 8 February 2005, Hi-Rise were working with two erection crews located in different zones on the site. Work commenced at approximately 7am. 15. Scott Hellicar, Hi-Rise site supervisor, was in charge of the second erection crew working on J and A Block. Annexed hereto and marked 'A1' and 'A2' are drawings indicating the locations where the crews were working. 16. Brendan Brown was in charge of the relevant erection crew working on levels 2 and 3, B Block, green zone (which area is identified on the plans by grid references BL and BN). 17. A series of the Rescrete floor planks which are identified as MBG 6, 50, 51, 52, 54S, 55, 96S and 56S had been installed in the morning and early afternoon. These Rescrete floor planks varied in length from approximately 8100mm to 6000mm long and were, 1200mm wide and 200mm thick, weighing between 2 and 3 tonnes each. 18. A Rescrete floor plank is a concrete slab that is pre-stressed and designed to be self-supporting. It is of uniform thickness which contains largely continuous hollowcores. The Rescrete floor planks once installed provide a platform which is topped with concrete that has been reinforced with steel mesh. 19. Each Rescrete floorplank was put into position using a crane. Each of the precast elements (which include walls, floors etc) were connected according to a connection diagram initially using temporary and thereafter permanent fixtures to ensure the structural integrity of the building. 20. The connection diagrams were produced and supplied by Meinhardt pursuant to the consultancy agreement. 21. Earlier on 8 February 2005, prior to the installation of the Rescrete floor planks, Hi-Rise employees including Greg Lee had installed temporary supports to the precast walls, supplied by Girotto Precast, using "Z brackets" and timber. Annexed and marked 'B1' and 'B2' are two photographs showing examples of a Z bracket. 22. Rescrete noted in their shop drawing plan no M1677 B8 the method of using "z brackets" as temporary support. This method of temporary support was confirmed by Meinhardt by facsimile dated 31 August 2004. 23. Timber and where necessary packing had been placed on the Z brackets to ensure that the correct level for the Rescrete floor planks was achieved. 24. The Rescrete floor planks were lifted into their final position by cradling them in steel chains and landed in position with sufficient room (usually about 100mm) to remove the chains. Steel bars (also known as "bourke bars") were used to lever the Rescrete floor planks sideways into their final position in combination with timber levers from below. 25. When a Rescrete floor plank had to be moved lengthwise to achieve the correct bearing on the Girotto Precast walls or support, workers used a bourke bar from on top of the already positioned Rescrete floor planks to shift it into its correct position. 26. The process is slightly different for the last Rescrete floor plank to be positioned, as there is insufficient room for the steel chains to be removed. As such, the last Rescrete floor plank was lifted by drilling holes into the centre approximately 1 metre from each end of it, inserting a lifting plate and lug to which the chains from the crane were attached in order to lift it into position. 27. While trying to fit Rescrete floor plank MBG 53 (being the last to be positioned in the series), it was found that the Rescrete floor plank was too wide for the opening by approximately 15-20mm. Greg Lee was working with Brendan Brown on the floor below (level 2). Brendan Brown cleaned the 'concrete dags' off the bottom of the Rescrete floor plank using a long handled scrapper and attempted to install it again but was not able to do so. The plank had not been measured prior to being lifted from ground level. The weight of MBG53 was supported by the crane at this time. Brendan Brown and Greg Lee saw that the eastern "Z" bracket under floor plank MBG51 was on a lean. Brendan Brown directed Greg Lee to obtain an Acrow prop and Greg Lee left via the staircase to obtain it. 28. Whilst the Acrow prop was being obtained a decision was made to move Rescrete floor plank MBG53 and store it on adjacent Rescrete floor plank(s) that had already been positioned by Brendan Brown. The exact location of the placement of MBG53 at this time is unknown but it was on or about MBG51 and MBG52. 29. Two pieces of timber (known as gluts) were placed on adjacent Rescrete floor plank(s) (MBG51 and/or MBG52). Plank MBG53 was placed onto the timber gluts and the lifting lugs were removed. 30. Approximately one or two minutes later, Rescrete floor planks MBG51, 52, 53 and 54S collapsed and fell causing Immer, Reeves and Banks who were working on the deck (level 3) to fall to the floor below. As a result Immer, Reeves and Banks sustained injuries. At the time Lee was descending an adjacent stairwell when he heard a crash. 31. Brendan Brown was supervising the three workers from the floor below. He was struck by one of the four Rescrete floor planks that collapsed and died as a result. Erection Process 32. Precast concrete construction is a method of prefabricating concrete elements such as wall panels and floor planks which are placed by a crane into position and incorporated into the building structure by the use of permanent and/or temporary supports until further in-situ works are undertaken to tie the precast elements into a permanent structure. 33. Precast walls and floor elements are connected together according to a detailed connection design. This connection detail may include temporary and permanent fixtures to ensure that the intent of the design meets the structural integrity of the building. Precast walls and floor elements are connected together according to a detailed connection design.. 34. Rescrete noted in their shop drawing plan no M1677 B8 the method of using "z brackets" as temporary support. 35. This method of temporary support was confirmed by Meinhardt by facsimile dated 31 August 2004. 36. In early September 2004, Rescrete sent Meinhardt another shop drawing M1677 A2 revision F, for their approval. Following instructions from Rod Wong, senior engineer, Glenn Reece draftsman for Meinhardt, included a note stating "Temporary 100x10 ea (equal angle) & M16 bolt max 600 spacing" which was sent back to Rescrete approved. 37. Subsequent revisions of all similar temporary support detail drawings included a note to similar effect. The drawing specifically relating to the incident area (M1677 B8 H at Section 10A) detailed a temporary support bracket and timber with the note "temporary 100x10 EA (equal angle) & M20 bolt max 600 spacing" as per "Meinhardt's" earlier notation. This plan was endorsed as being finally revised on 02.12.04. 38. The precast wall panels were designed and manufactured with ferrules. A ferrule is a cast in threaded fitting or insert into a precast element, such as wall panels or floor planks that allow a fitting to be screwed onto the element at a later stage in this case the temporary supports. 39. The temporary supports are a combination of "Z" brackets, plastic packers and timber. The Z brackets are connected to the wall panel through an M20 bolt and cast in 'ferrule'. A 'ferrule' is a steel component, typically of hollow tube shape, internally threaded and sealed at one end. The component is cast into concrete with the open end exposed at or near the surface to receive a compatible threaded bolt, allowing a steel element to be effectively connected to the concrete. Plastic packers and timber are placed on the Z bracket. The packer is being used to set the timber at the correct level to support the 'soffit' of the Rescrete floor planks. A 'soffit' is the underside of a horizontal structural member such as a beam or a slab. 40. The timber is shown on the Rescrete connection drawing details as the temporary support. Hi-Rise was responsible for the supply of hardwood (timber) for temporary support of hollowcore. There appeared to be no other measurement or specifications relating to the dimensions, grade and classification of timber to be used. 41. There were a number of "Z brackets" installed within the area Brendan Brown and his crew were working on 8 February 2005. The process for installation was described by Greg Lee and Scott Hellicar as follows: (a) the Z brackets are fitted to the precast walls by M20 bolt screwed into the cast in ferrules; (b) the "Z brackets" located at the end of each run are installed and levelled; (c) a chalk line is used to mark the soffit level of the Hollowcore floor planks along the precast wall; (d) the Z brackets along the run are placed in position and lined up with the chalk line; (e) the bolts holding the Z brackets are tightened using a rattle gun; and (f) packers are then be placed in the "Z brackets" with timbers on top of the packers to achieve the correct level. 42. The timbers that were used to support plank MBG51 were supplied to the site by Wideform Formwork and had previously been used as formwork at the Rhodes site. 43. The timber which supported plank MBG51 on the northern end of the structure measured approximately 92mm x 70mm in section, with an overall approximate length of 2145mm. The eastern end of the timber had a splay cut at an angle of approximately 28 degrees. At the time of the collapse, this end of the timber rested on the edge of a "Z bracket" by approximately 10mm. The western end of the timber had been splay cut at an angle of approximately 62 degrees and overhung the western` "Z bracket" by 270mm under Rescrete floor plank MBG50. 44. At all material times, no checks were made on the temporary supports by Baseline or Girotto Precast to ensure that they had been installed in a manner that would enable them to support the Rescrete floor planks during the erection process. It is not known whether Brendan Brown performed any checks on this area. 45. The process for installing Rescrete floor planks MBG51, MBG52, MBG53, MBG54S and MBG55 involved: (a) placing MBG51 and MBG55 into position first; (b) inserting steel angles which support MBG52, MBG53 and MBG54S; (c) placing MBG52 and MBG54S into position; and (d) lowering MBG53 into position. 46. Rescrete floor planks MBG 51 and MBG55 spanned a distance of approximately 8.1m and were located on the outside of three shorter Rescrete floor planks (MBG52, MBG53 and MBG54S). Rescrete floor planks MBG51 and MBG55 were designed to sit on the pre-formed Girotto Precast concrete walls located at the northern and southern end of B Block in the green zone. 47. The three shorter Rescrete floor planks (MBG52, MBG53 and MBG54S) were supported by two steel beams which were inserted at the northern and southern ends of the building. The three shorter Rescrete floor planks were located between two voids that would ultimately become the northern and southern staircases of B Block in the green zone. 48. Rescrete floor planks MBG52, MBG54S, MBG51 and MBG55 were placed into position by the crane with the use of chains. Once they were in position a void remained for the placement of MBG53. This void was intended to be the same size as MBG53. The expectation was that the length and width of MBG53 would be within a small tolerance the same as the void. 49. The lifting process of MBG53 was different to the other Rescrete floor planks previously mentioned, in that the chains could not be slung around the plank. The last Rescrete floor plank was lifted into position by drilling two holes in the centre of the plank approximately 1000mm from each end through which lifting devices are inserted. The chains from the crane were then connected to the lifting devices allowing the Rescrete floor plank to be lifted into position. 50. Once the final plank MBG53 was lifted into position it was found to be approximately 15-20 mm too wide for the opening. The system in place for dealing with an oversized plank was to land it on the deck adjacent to its final position and either jackhammer or saw cut it to size. There had been previous experience of oversized Rescrete floor planks at the site. These were dealt with by Hi-Rise without reference to Girotto Precast. 51. ... Systems in place at the time of the incident 52. There were a number of systems of work in place on site for the management of occupational health and safety issues. The systems were promulgated by Baseline, Girotto Precast and Hi-Rise. 53. Baseline had a system of regular induction sessions with the subcontractors on site, which included a review of the subcontractors work method statements. Baseline took the view that as the erection process involved a number of parties, they saw a need for each party to know what the other subcontractors work methods contained. 54. Not all persons on site went through the induction process, in particular, Nevin Sweeney (Occupational Health and Safety manager for Girotto Precast) and Tony Roth (Construction Coordinator for Girotto Precast) were not inducted. 55. Baseline did not provide any training and nor did it undertake any checks or audits of any training given or administered by others in the erection of precast panels. 56. Girotto Precast employed Andrew Bodman and Tony Roth as Construction Co-ordinators. They were provided with general occupational health and safety induction training for construction sites otherwise known as the Green Card. 57. Girotto Precast's safety plan required that the Construction Coordinators facilitate the safe work method for the trade. However, it appears that Girotto Precast's co-ordinators had no involvement in that process. This process was carried out by Nevin Sweeney (Girotto Precast's Occupational Health and Safety & Environment Manager). 58. Hi-Rise developed a safe work method statement, which did not adequately cover the erection of Rescrete floor planks and did not cover the installation and specifications of the temporary supports to be used during the erection process. Girotto Precast assisted Hi-Rise by having its OHS Manager take down the work methods as Brendan Brown described them to him. 59. Neither Girotto Precast nor Baseline supervised the work being undertaken at the time of the incident. Neither of the two construction coordinators, nor the occupational health and safety manager who attended the site were present. 60. Girotto Precast's OHS manager was to conduct weekly audits of the site and report any non-conformances to Robert Power. Baseline did not perform any audits of its own. Girotto Precast and Baseline failed through the inadequacy of its audit process to provide and maintain a safe system of work for the installation and erection of floor planks MBG55, MBG51, MBG52, MBG53 and MBG54S at the site. 61. Baseline failed to provide and maintain a safe system of work for the installation and erection of floor planks MBG55, MBG51, MBG52, MBG53 and MBG54S at the site during the course of reviewing the work method statements, during the induction process and during regular safety walks. 62. Baseline also prepared a Safe Work Method Statement for the site, which only dealt with the erection of precast wall panels, rather than the erection of precast floor panels. Baseline did not identify this deficiency in the Safe Work Method Statement.63. Baseline and Girotto Precast failed to identify the absence or reference to the erection of floor panels within the Safe Work Method Statements in relation to the installation of Rescrete floor planks. 64. Baseline required all subcontractors on site to partake in a toolbox talk at least once a month. Hi-Rise conducted toolbox talks at approximately weekly intervals. At all times, employees of Marrs were present during these talks. Baseline's attendance at these meetings was irregular and on the basis of the availability of Nelson Monica. 65. On 19 November 2004, Andrew Bodman attended a toolbox talk. During the period between 19 November 2004 and 5 January 2005, neither of the construction coordinators from Girotto Precast attended these talks. The only representation Girotto Precast had at those meetings was on 5 and 19 January 2005 when the OHS manager attended. 66. The toolbox talks on 5 and 19 January 2005 dealt with the issue of workers not wearing harnesses when working at heights. Baseline amended that system through the installation of new attachments. 67. However, following those meetings, both Girotto Precast and Baseline failed to ensure that the new system was being used. 68. The role of the Construction Coordinator was to ensure that any occupational health and safety issues were reported and addressed and to ensure compliance with Girotto Precast's safety management system. The Construction Coordinator failed to identify any of the deficiencies that have been referred to in this Statement of Facts. 69. Baseline reviewed the progress of work but chose to have no direct input into the erection process or methods used by Hi-Rise when the work was being performed. 70. Girotto Precast generally attended the site weekly to conduct safety audits of Hi-Rise's work and two to three times a week on panel delivery requirements. Through their visits, Girotto Precast reviewed the progress of the work undertaken and coordinated the delivery of the next set of panels. Girotto Precast had no direct input into the erection process or methods used by Hi-Rise in erecting precast panels. 71. From the available records, the last safety audit that Girotto Precast conducted took place on 31 January 2005. 72. Baseline sought to limit its role at the site to conducting safety inspections and audits to ensure that the subcontractors were complying with the work methods. Baseline believed that the subcontractors it engaged were experts. 73. No systems were in place to ensure safe work methods for dealing with oversized floor planks, particularly in relation to the location and storage of the floor planks. 74. Mr Chris Turner prepared an engineering report following the incident. This report is annexed hereto and marked "C". Systems of work implemented after the incident 75. A Prohibition Notice (144214) was issued to Baseline on 9 February 2005, requiring Baseline to: (a) Provide and maintain a safe system of work for the installation of pre-cast concrete floor panels. (b) Provide a report to WorkCover by a suitably qualified person specifying the structural integrity of the pre cast concrete flooring and walls in B Block. (c) Review the Safe Work Method Statement for the installation or pre cast concrete floor panels and provide a copy to WorkCover. 76. An Improvement notice (267311) was issued to Baseline on 8 February 2005 requiring Baseline to ensure persons carrying out the installation of pre-cast concrete floor panels are provided with adequate supervision by a suitably qualified person in accordance with the appropriate Safe Work Method Statement. 77. A Prohibition Notice (7-76318) was issued to Girotto Precast on 10 February 2005, requiring the following: (a) Provide and maintain safe systems of work for the installation of precast concrete floor panels. (b) Provide WorkCover a report by a suitably qualified person specifying the structural integrity of the precast concrete flooring and walls in B Block, level 3, Green Zone. 78. The Prohibition and Improvement Notices issued on Girotto Precast and Baseline were complied with in a timely and appropriate manner. 79. Since the incident, the contract for the erection of the precast element has been awarded to MWA Constructions Pty Ltd. 80. Girotto Precast has ensured that the safe work method statement used by MWA Constructions includes a section on the erection of "Hollowcore" precast floor planks and the installation of temporary support angles and specifications of the timbers that are to be used in the temporary support. 81. An additional amendment to the safe work method statement is the inclusion of final positioning of floor planks which requires the following action: (a) In the event of a plank not fitting, the plank should be lowered back to the truck or to a designated area. (b) The adjustment of floor planks shall not be carried out from the area directly underneath the plank. (c) No person may be in the bay area directly underneath the plank when the adjustment is taking place. 82. Baseline has since implemented a number of procedures to improve safety in the erection of precast elements. Firstly, they have developed a written work procedure for areas similar to the location of the incident. Further, additional subcontractor safe work procedure audit checklists have been introduced by Baseline to monitor the erection process. 83. Baseline has no prior convictions under the Occupational Health & Safety Act 2000 or the Occupational Health & Safety Act 1983. 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.