Industrial Court of New South Wales CITATION: Inspector Alan Jones v Nick Kollias [2006] NSWIRComm 155 Prosecutor: Inspector Alan Jones PARTIES: Defendant: Nick Kollias FILE NUMBER(S): IRC4806 of 2005 CORAM: Kavanagh J CATCHWORDS: Occupational Health and Safety Act 2000 - breach of s8(1) - bobcat operator - seat belt faulty - safety mechanism of bobcat overriden on connection - no foreseeability element to offence - reporting system failure - elements of specific and general deterrence - no prior convictions - guilty plea - penalty LEGISLATION CITED: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Capral Aluminium Ltd v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 CASES CITED: Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 Tyler v Sydney Electricity (1993) 47 IR 1 HEARING DATES: 28/03/06 DATE OF JUDGMENT: 05/31/2006 Prosecutor: Mr M.J. Cahill of counsel Solicitors: Mr G. Johnson Phillips Fox LEGAL REPRESENTATIVES: Defendant: Ms M.A. Painter of counsel Solicitor: Mr Ashley Neilson A.R. Neilson JUDGMENT: - 15 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Wednesday 31 May 2006 Matter No IRC 4806 of 2005 INSPECTOR ALAN JONES v NICK KOLLIAS Prosecution under s8(1) of the Occupational Health and Safety Act 2000 by operation of s26(1) of the Act JUDGMENT [2006] NSWIRComm 155 1 This prosecution is brought by Inspector Alan Jones of the WorkCover Authority of New South Wales against an individual, Nick Kollias, (the defendant) under s8(1) of the Occupational Health and Safety Act 2000 (the Act), by way of an Amended Application for Order. 2 It is alleged the defendant contravened s8(1) of the Act by operation of s26(1) of the Act in that: . . . the Defendant, Nick Kollias . . .on 22 September 2003 at 22-28 Ricketty Street, Mascot, New South Wales ( premises ), the Defendant was a director of NMK Pty Ltd (ACN 092 132 440) ( the corporation ), which contravened section 8(1) of the Act in that on 22 September 2003 at the premises, the corporation, being an employer, failed to ensure safety and welfare at work of all its employees, in particular Paul Grant. . . . 3 The particulars of the contravention of the corporation are: 1. Failure to provide and maintain a system of work for the operation of the Thomas 133S front skid steer loader ( machine ) that was safe and without risk to health in that the machine was operated by operators who were not wearing the seatbelt; and 2. Failure to ensure adequate systems for inspecting, reporting and correcting deficiencies in regard to the seatbelt of the machine. As a result of the said failures, Paul Grant was exposed to risk of injury. 4 The defendant pleads guilty to the charge. 5 Mr M.P. Cahill, of counsel, appeared for the prosecution and Ms M.A. Painter, of counsel, appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts and photographs, two factual inspection reports by Inspector Jones dated 14 October 2003 and 17 December 2003, a bobcat operator manual entitled "Thomas-T133-'S' Series", a EMI Skid Steel Loader safety manual, Optus itemised invoice and an Invoice from Rapid Equip Pty Ltd dated 23 September 2003 and prior convictions report. 6 The defendant relied upon the affidavit of Mr Nick Kollias sworn 28 March 2006. The defendant was called to give evidence. 7 The Agreed Statement of Facts was tendered and relevantly reads: 4. At all material times NMK Pty Ltd (ACN 092 132 440) ( NMK ): 4.1 Was engaged in the business of demolition and earthworks; 4.2 Had been engaged by Hansen Yuncken Pty Limited to prepare foundations, driveways and pathways at the premises 4.3 Employed Paul Grant ( Mr Grant ), 33 years of age, as an operator/labourer at the premises; 4.4 Owned and operated a Thomas 133S front skid steer loader ( Bobcat ) at the premises. 5. At all material times, Nick Kollias, currently of 6 Shortland Avenue, Strathfield, New South Wales, was the sole director, secretary and shareholder of NMK. Incident 6. On 22 September 2003 ( date of the incident ), Mr Grant, whilst in the course of his ordinary duties, was told by his supervisor, Mr Kollias, to take the Bobcat and use it to transfer a pile of excavated dirt on the ground into the back of a truck parked some 30 metres away at the premises. The retracting mechanism on the seat belt had a tendency to stick when the belt was pulled. As such it required some effort on occasion to operate the seat belt. Mr Grant had not been wearing the seat belt when operating the Bobcat for up to four months prior to the incident. According to the Defendant, he was unaware that this was the case. Mr Grant was not wearing his seat belt on the day of the incident. 7. According to Mr Grant, whilst he was travelling in the Bobcat, transporting the dirt to the back of the truck, he struck a ditch and bounced forward in his chair; his feet sliding out from underneath him. As his feet slid out from under him, his left foot struck the left pedal which raises and lowers the bucket whilst his right foot slipped over the footing guard towards the bucket. The pedal having been depressed, caused the bucket to lower, catching his right foot on the way. Mr Grant's foot became caught between the bucket and the chassis of the Bobcat. Mr Grant suffered crush injuries to his right foot and subsequently had half of his right foot amputated. Subsequent complications resulted in further amputation to Mr Grant's right leg, to below the knee. Investigation 8. On 14 October 2003, the Prosecutor attended the premises and there met with Ross Pearson, site manager for the project. The Prosecutor made the following observations: 8.1 The driveway leading into the site from Ricketty Street. 8.2 Located on the western side of the driveway were several concrete ground floor slabs. 8.3 Located on the eastern side of the driveway was a metal shipping container. 8.4 Inside the shipping container was an orange coloured Bobcat. 8.5 A black coloured roll over protective structure was fitted to the cabin of the skid steer loader. 8.6 A black coloured driver's seat and seat belt were located inside the cab. 8.7 The Bobcat could not be removed from the container for further inspection as there were no ignition keys on site. 9. On 17 October 2003, the Prosecutor revisited the premises and, in the company of Mr Kollias, inspected the Bobcat that had been removed from the shipping container and made the following observations: 9.1 Written on the front of both bucket arms in black and white letter was the word 'Thomas'. 9.2 Written on the manufacturer's compliance plate were the words 'Model A701/T133S' and then Serial No. LE 007988. 9.3 The driver's seat beat appeared to be new; there were no cuts or abrasions or marks. 9.4 Attached to the seat belt was a white label. 9.5 The following letters and numbers were written on this label in black letters: 9.5.1 SAE J386 9.5.2 FMVSS 302 9.5.3 Aug 03. 9.6 Located on the floor of the cabin were two foot pedals. 9.7 Located in front of and above these pedals was what appeared to be a foot guard. 9.8 The top of the foot guard was approximately 210mm above the top of the pedals. 9.9 The top of the foot guard was turned back into the cabin horizontally for approximately 115mm. Outcome 10. As at the date of the incident, Mr Grant had been employed by NMK for approximately 18 months. 11. At the time of the incident, employees of NMK had been engaged in digging footings and placing the dirt from the footings in the driveway at the premises. Mr Grant was asked by Mr Kollias to use the Bobcat to transfer the dirt from the ground to a truck that was approximately 30 metres away. 12. When Mr Grant operated the Bobcat, the seat belt was not used and was plugged in behind him. This had the effect of overriding the dual safety mechanism of the Bobcat, which required a person to be sitting on the seat and the seat belt to be engaged before it could be operated. As such, when travelling over the uneven surface, Mr Grant was not secured to the seat. 13. An employee of NMK, Con Quach (Mr Quach) said that the seatbelt of the bobcat did not pull out, so it was joined together on the seat, but that he did not report it to Mr Kollias as he understood that Mr Grant had already reported the matter to Mr Kollias. Mr Ebbs, also an employee of NMK, did not report this to Mr Kollias despite signing a document titled 'Plant Inspection Report' for the Bobcat dated 18 September 2003 (four days prior to the incident). Following the incident 14. Since the incident NMK has: 14.1 Ordered a replacement seat belt for the Bobcat on 22 September 2003. 14.2 Obtained an inspection report from Dayone Mech Pty Ltd on 23 September 2003. 14.3 Replaced the seat belt on the Bobcat. 14.4 Introduced a more detailed form of plant inspection report, which includes the seatbelt of the Bobcat as a category for inspection. Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 9 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at[32]). 10 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 11 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace, is a relevant consideration. Of relevance particularly is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 12 In a consideration of penalty, the court must consider the objective seriousness of the offence or, as has been said, the nature and quality of the offence. The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . . 13 NMK Pty Limited is a corporation which operated in the construction industry. The defendant was the sole shareholder and director. His wife provided administrative assistance. NMK Pty Ltd is still in existence, however, it has not carried on a business since 30 June 2004 and an application has been made to strike it off the company register. The defendant currently operates two other companies, namely, NMK (Aust) Pty Ltd and NMK Plant Hire Pty Ltd, which provide a similar service within the construction industry. 14 The injured employee, Mr Paul Grant, commenced casual employment with NMK on about 2 July 2002. He was an excellent employee and was given full time work. He was operating a bobcat on the day of the incident. Mr Grant was transporting a load of soil to the back of a truck when his machine struck a ditch. He bounced forward in his chair, his feet sliding out beneath him. His left foot struck the left pedal of the bobcat and his right foot slid over the footing guard towards the bucket. The pedal having been depressed with his left foot caused the bucket of the bobcat to lower catching his right foot in its path. Mr Grant suffered crush injuries to his right foot which resulted in the amputation of his half foot and due to complications had his right leg amputated below the knee. 15 Mr Grant was not wearing a seat belt which seat belt, on the day of the incident, was secured on the seat of the bobcat behind where he sat. 16 The charge relates to the failure to ensure a system of work through training and instruction, to ensure the operator understood the imperative of wearing a seat belt for his own safety. Also relied upon was the defendant's failure through a reporting system in place, which proved inadequate, to ensure the maintenance of machinery. 17 The evidence revealed there was a system in place for the daily servicing and reporting on each machine used at the site. The defendant denies that he knew the seat belt of the bobcat was defective. He asserted the seat belt was functioning. The evidence, however, establishes that before the incident the seat belt was sticky on retraction. On the day of the incident Mr Grant was driving the bobcat with the seat belt joined and fixed behind him on the seat. The fact that the seat belt was connected behind him is relevant as by connecting the belt it had the effect of overriding the dual safety mechanism of the bobcat. The seat belt had to be engaged before the machine could operate. 18 I accept there is no evidence sufficient to establish that the defendant was told before the incident that the seat belt did not pull out smoothly or was sticky. The fault in the belt was not recorded in the inspection documents. I accept also that the defendant had in place a system for the daily inspection on his machines which was directed to employees reporting if a machine requires maintenance. I accept those reports do not contain any reference to any fault in the operation of the seat belt. 19 The mechanism attached to the seat belt was designed to ensure that such incident did not occur. By connecting the seat belt level behind the driver the safety mechanism, which would not allow the machine to start until connected, was disengaged. 20 While the Court's attention in its assessment of the objective seriousness of the offence must be to the risk to safety, the risk in this circumstance became a reality. The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from the breach and its foreseeability are clearly relevant. and as Wright J, President said in WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) 99 IR 163 (at 22): . . . The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; WorkCover Authority (NSW) (Inspector Hannah) v Wonar Pty Ltd (at 9); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Albury City Council (at 408-409); Lawrenson Diecasting Pty Ltd (at 476); WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383. The risk of injury in this circumstance became a reality which reality demonstrably identifies the gravity of the risk in failing to properly maintain the seat belt of the vehicle in good working order and failing to ensure the operator used the seat belt. 21 I do not accept the proposition that because the seat belt was functioning that in any way mitigates against what was a serious offence. Seat belts are provided to ensure safety. The safety mechanism in this case was overridden given the seat belt was connected behind the driver. 22 This may appear to be a minor maintenance oversight in not maintaining a "sticky" seat belt - one with a retraction problem. However what may appear to have been a minor oversight has led to a most serious risk to safety. It was the failure to ensure that the seat belt was operating without difficulty that was causative of the risk. While the defendant may not have known the state of the seat belt, it still carried an obligation to maintain the seat belt in good working order. The maintenance system of reporting failed in the circumstance. However, having accepted there was no evidence that the employer was aware the seat belt was not being connected correctly, and accepting the retraction fault was not reported I do not believe a foreseeable element to the offence has been established. I am satisfied it was not foreseeable that the belt would be connected behind the driver while the seat belt was still functioning even if that functioning was imperfect. 23 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the Act where Hungerford J held: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: "The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive." These principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610 [at 74] where it was said: . . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 24 It is therefore necessary in the consideration of penalty to consider both specific and general deterrence in the circumstance before me. The defendant is the current sole shareholder and director of NMK (Aust) Pty Ltd and his wife is the sole shareholder of NMK Plant Hire Pty Ltd, in which the defendant is also the director of that company. Both companies are active within the building industry and still employs in the construction industry. 25 At the time of the incident NMK Pty Ltd employed six employees and was working for a major building company preparing foundations, driveways and pathways on building sites. NMK (Aust) Pty Ltd owns and operates a number of heavy pieces of equipment. NMK Plant Hire Pty Ltd acquire, operate and hire out plant and equipment. In such a circumstance I allow an element of specific and general deterrence in the consideration as to penalty. 26 In any consideration of a deduction in penalty for the utilitarian value of a plea the following authorities guide the consideration of the court. In R v SY and Anor [2003] NSWCCA 291 the Court of Criminal Appeal stated: 86 It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis. Nor is it the case that the same discount applies to all the offences for which the offender is to be sentenced and a proper exercise of discretion requires the judge to discriminate between the offences if it is necessary to do so in order to properly reflect the value of the pleas by the discount given. In R v Dib [2003] NSWCCA 117, the Court of Criminal Appeal stated: 4 However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v Sharma (2002) 54 NSWLR 300, distinguishing Cameron v The Queen (2002) 76 ALJR 382. 5 If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. 6 This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability. 7 I think the sentencing judge may also have been in error in referring to the strength of the Crown case. That can be relevant to the question of whether a plea of guilty is indicative of remorse or otherwise mitigating of culpability, but it is not relevant to the discount to be given by reason of the advantages actually flowing to the administration of justice. In WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Ltd ( 2002) 121 IR 1, Walton J, Vice President, in applying the above reasoning stated: 73 . . . (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. . . . 74 . . . (5) The amended application in Matter No IRC3954 of 2000 resulted in a reasonably substantial reduction in the particulars of the charge in that matter — the particulars being altered from a failure to safely use and store the phostoxin to a failure to safely store that substance. 75 Having regard to the history of the matter, the defendant should be given a moderate discount for the plea of guilty in Matter No IRC3954 of 2000 (when the utilitarian aspects are assessed with other relevant factors referred to in R v Thomson ). The defendant should receive a discount at the top of the range for its plea of guilty (and other relevant factors referred to in R v Thomson ) for the remaining charges. . . . Whether there is a utilitarian value to a plea is therefore a matter of assessing the timing of any charge laid and the effect of the plea on court procedures. It is an objective assessment to be undertaken by the court in the particular circumstance. The defendant originally did not enter a plea of guilty. The matter was set down for hearing for four days given there were to be experts called. The day before the hearing a plea of guilty was agreed. It was entered on the first day of hearing. I accept, on the Amended Application for Order, the defendant is entitled to some benefit of the utilitarian value of a plea of guilty (see Thomson ); but I do not allow full value within the range of 10-25 percent. I allow a 12 percent reduction in penalty in the circumstances. 27 The defendant gave evidence and expressed his remorse. Subsequent to the accident, the defendant took the following steps: · sought advice from the Union, the CFMEU, and in particular with Mr Jason Papanou and Mr Steve Keenan (a demolitions expert within the Union). · sought advice from senior personnel within the principal contacting companies with which NMK dealt. · engaged Ms Maureen Buchtmann, a consultant expert in occupational health and safety who had previously worked for WorkCover. Ms Buchtmann was engaged to advise Mr Kollias and the company in relation to safety issues generally, and · following the advice of Ms Buchtmann he has developed a comprehensive policy and procedures Manual dealing with occupational health safety and welfare. This general manual is supplemented with site specific occupational health and safety Policy and Procedures Manual. 28 The defendant has implemented changes to previous work practices, including: · engaging outside licensed mechanics to service and repair all machinery; · developed work method statements for employees; · regular toolbox talks; · regular employee discussions on each site. These meetings are held monthly as a genal rule and are recorded; · implemented check lists using the Civil Contractors Association forms, including specific monitoring of the condition of seat belts; · required each supervisor on site to check each machine during the day to ensure proper completion of check lists and log books; and · implemented a system of immediate notification of any problems to the site supervisor and to the general office (either Mrs Kollias or an administrative assistant). 29 Further, the defendant has adopted a policy of ongoing training for employees. The various training courses which the defendant and his employees have attended were detailed in his evidence. I accept there has been a genuine endeavour to motivate in his employees an awareness of the need for safe working practices both in following safe systems for tasks and complying with reporting obligations. 30 The maximum penalty for this offence is $55,000 (s12(d) of the Act). 31 The defendant fully co-operated with the investigation. However, the investigation was somewhat frustrated by the defendant's action in removing the seat belt and replacing it straight after the incident. This is a matter of concern. Employers have an obligation to assist WorkCover in its inquiries. Removing and replacing the seat belt then losing the old belt was a breach of this obligation but not one with which the charge deals. 32 Ms Painter submitted the defendant expressed his contrition and his remorse directly to the injured employee by visiting after the incident. The defendant continued to do so until Mr Grant said his " . . . solicitors had advised him not to speak" to the defendant. 33 The defendant presents no financial evidence to persuade me that he should be given any financial relief, except to acknowledge he is operating small ventures within the construction industry. However, the defendant makes a considerable contribution, through his enterprise, to employment in New South Wales. 34 I am satisfied the defendant can meet his liability and, in the operation of the two new companies, safe working procedures are in place. The defendant is a young man entering into the construction industry which is as Boland J stated in Inspector Yeung v Thiess Pty Limited (No 2) [2004] NSWIRComm 96 at [25]: . . . a notoriously dangerous industry and prosecutions in that industry under the Occupational Health and Safety Act 2000 (NSW), . . . continue to constitute a significant proportion of the cases coming before the Commission in Court Session…. 35 The breach of the Act brings to the defendant's attention there must be rigorous application of safe working procedures. I am satisfied he enters his new venture with a commitment to safe working. As a young entrepreneur active in the construction industry and perhaps one of its future leaders this awareness and commitment will serve our community well. There are no prior recorded convictions against the defendant or any of his associated companies. 36 I find the defendant guilty. 37 The defendant is fined in the sum of $20,000. Orders 38 Accordingly, the Court makes the following orders: 1. In Matter No IRC4806 of 2005, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $20,000 with a moiety to WorkCover Authority of New South Wales. 3. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. 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.