Industrial Relations Commission of New South Wales in Court Session CITATION: Rodney Dale Morrison v Peter Keith Ross; Rodney Dale Morrison v Glennies Creek Coal Management Pty Ltd [2006] NSWIRComm 205 PROSECUTOR: Rodney Dale Morrison PARTIES: DEFENDANTS: Peter Keith Ross Glennies Creek Coal Management Pty ltd FILE NUMBER(S): IRC 452- 453 of 2005; IRC 456- 457 of 2005 CORAM: Marks J CATCHWORDS: OH & S - Pleas of guilty – corporate and individual defendant – assessment of penalty – objective seriousness – whether system of work was in place – whether systematic failure to create or adhere to a safe system – different consideration of general & specific deterrents for each defendant. Held: Aggregation of circumstance reflect basic defect in overall system – corporate defendant – mining inherently dangerous category – change of ownership of colliery- changes to the management – now regular safety audits and regular review – remedial steps to improve safety initiated immediately after incident. Individual defendant - high level of complicity – remains in mining industry – expressed remorse and contrition – actively involved in remedial action; principle of totality to apply to each defendant. LEGISLATION CITED: Occupational Health & Safety Act 2000 CASES CITED: Powercoal Pty Ltd v Industrial Relations Commission of New South Wales (2005) 145 IR 327 HEARING DATES: 16/6/06 DATE OF JUDGMENT: 06/30/2006 PROSECUTOR: Mr M Cahill of Counsel Solicitor: J Morton I V Knight, Crown Solicitor LEGAL REPRESENTATIVES: DEFENDANTS: Mr B Hodgkinson SC with Mr M Shume of Counsel Solicitor: Ms S Kelly Allens Arthur Robinson JUDGMENT: - 32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Marks J Friday 30 June 2006 Matter No IRC 452 and 453 of 2005 Rodney Dale Morrison v Peter Keith Ross Prosecution pursuant to ss 8(1) and 8(2) of the Occupational Health & Safety Act 2000 Matter No IRC 456 and 457 of 2005 Rodney Dale Morrison v Glennies Creek Coal Management Pty Ltd Prosecution pursuant to ss 8(1) and 8(2) of the Occupational Health & Safety Act 2000 JUDGMENT [2006] NSWIRComm 205 1 These four proceedings have been heard concurrently with evidence in one being accepted as evidence in each of the others. The proceedings concern prosecutions brought by the prosecutor Rodney Dale Morrison, Director of Mine and Forest Safety Performance of the Department of Primary Industries in New South Wales, for breaches of the Occupational Health & Safety Act 2000 ("the Act"). The charges brought against each defendant are constituted by amended applications for order filed on 13 June 2006. 2 The defendant Glennies Creek Coal Management Pty Ltd ("Glennies") is charged with two breaches of the Act, brought under ss 8(1) and 8(2) respectively. The charges relate to the operation by Glennies of a colliery near Singleton during the period 31 January 2003 and "about" 7 February 2003. 3 The charges as particularised in the amended order are as follows: (1) The Defendant failed to provide and/or maintain a system of work with respect to the isolation of and obtaining access to the High Voltage electrical reticulation system located in and about the Glennies Creek Colliery for the purpose of conducting electrical and associated work on that system, including but not limited to the routine disconnection and transfer of transportable transformers, armoured HV cable and ancillary electrical equipment, that was safe and without risks to the health and safety of its employees. (2) The Defendant failed to provide its employees, in particular Joseph Patrick Cuskelly and Gregory Scott Sherring, with any or any adequate training with respect to the High Voltage Isolation Procedures that were to be utilised by them for the purpose of obtaining access to and then conducting electrical and associated work on the High Voltage electrical reticulation system located in and about the mine, including but not limited to the routine disconnection and transfer of transportable transformers, armoured HV cable and ancillary electrical equipment. 4 The particulars of charge under s 8(2) of the Act are in identical terms save that they refer to the health and safety of persons other than the employees of the defendant named as Eddie Tobiasz, Luke Thomas and Mark Boyd all of whom were employees of a labour hire company which provided persons to perform work in the mining operation. 5 The defendant, Peter Keith Ross, was alleged to be a person concerned in the management of Glennies who by virtue of s 26(1) of the Act is taken to have breached the same provisions, that is ss 8(1) and 8(2) of the Act. 6 For completeness I set out hereunder the provisions of ss 8(1), 8(2) and 26 of the Act: S 8 Duties of employers 8(1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 8(2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 26 Offences by corporations—liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed (4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 7 Each of the defendants pleaded guilty to each of the charges and this judgment is concerned only with the question of penalty. 8 A Statement of Agreed Facts was filed in the proceedings which is in the following terms: 1. At all material times, the Prosecutor was Director of Mine and Forest Safety Performance at the Department of Primary Industries (which incorporates the former Department of Mineral Resources) and has been given the written consent of the Director General of the Department of Primary Industries to commence these prosecutions pursuant to section 106(1)(b) of the Occupational Health and Safety Act 2000 (NSW) ("the Act"). 2. Glennies Creek Coal Management Pty Ltd (ACN 097 768 093) ("GCCM") is and, at all material times was a company with its registered office located at Level 20, AMP Place, 10 Eagle Street, Brisbane, Queensland. 3. At all material times, Peter Keith Ross ("Ross") was "concerned in the management" of GCCM for the purposes of section 26 (1) of the Act. Management of the Mine 4. At all material times, GCCM was the operator of the Glennies Creek Colliery at Glennies Creek near Singleton in the State of NSW ("the Colliery"). 5. At all material times, GCCM employed Ross. 6. At all material times, Ross was appointed by GCCM as the Mine Manager of the Colliery pursuant to section 36(2) of the Coal Mines Regulation Act 1982 (NSW) ("the CMRA"). 7. At all material times, GCCM employed Desmond John Edward Hancox. 8. At all material times, Mr Hancox was appointed as the Mine Electrical Engineer for the Colliery pursuant to section 44(3) of the CMRA. 9. At all material times, GCCM employed Andrew John Boyling. 10. At all material times, Mr Boyling was appointed as an Undermanager at the Colliery. 11. At all material times, GCCM employed Graham Stanley Sutcliffe. 12. At all material times, Mr Sutcliffe was appointed as a mine deputy pursuant to section 42 of the CMRA at the Colliery. Mr Sutcliffe's employment involved spending part of his time acting as a mine deputy, supervising mine labourers and carrying out other statutory duties, whilst the balance of his time was spent working as an underground mine worker. 13. At all material times, GCCM employed Joseph Patrick Cuskelly as a Leading Hand Electrician. 14. At all material times, GCCM employed Scott Fryer as an Electrical Fitter. 15. At all material times, GCCM employed Gregory Scott Sherring as an Electrical Fitter. United Mines Support Services 16. At all material times, GCCM was a party to a labour supply contract with United Mining Pty Limited, trading as United Mines Support Services ("UMSS"). Pursuant to its contract for the supply of labour, UMSS supplied various underground mineworkers to work at the Glennies Creek Colliery. In particular, UMSS employed the following underground mine workers and supplied their services as underground mine workers at the Colliery: (a) Edward John Tobiasz; (b) Luke Andrew Thomas; and (c) Mark Alexander Boyd. 17. Mr Tobiasz, Mr Thomas and Mr Boyd worked underground at the Colliery on 7 February 2003. Colliery Operations 18. The Colliery is an underground coal mine located approximately 16km north of Singleton in NSW. The principal mining method employed at the Colliery is longwall retreat mining. 19. The Colliery started production in about May 1999. 20. GCCM took over the management of the Colliery in about August 2001. 21. At all material times, production at the Colliery was taking place in two separate underground panels. One panel was mined using continuous miners, whilst the other panel was mined by the longwall method. The continuous miners and the longwall shearer were powered by electricity. 22. At all material times, electricity was supplied to the mine by Energy Australia at 66kV. The electricity entered a switchyard located on the surface at the Colliery. The electricity was stepped down from 66kV to 11kV and reticulated to the underground workings via armoured high voltage cables ("HV cables"). 23. Underground, in the longwall panel, electricity was supplied to the longwall shearer, and other mine equipment, via HV cables. The HV cables were suspended in the maingate 2 roadways, which were inbye service roads constructed to service the longwall panel. The HV cables provided electricity to transportable transformer sub-stations installed in various cut throughs located between the two headings forming the maingate 2 roadways that stepped down the electricity for use with ancillary mining equipment. 24. From time to time, as mining progressed and the longwall retreated down the longwall panel, ancillary mining equipment, the transportable transformers and the HV cables had to be recovered from the panel and either decommissioned from service, or transported to other parts of the mine. 25. In terms of underground electrical services, this meant that, at regular intervals, 200 metre lengths of HV cables were removed from the power reticulation system in the longwall panel, in conjunction with removal from service of transportable transformers and other ancillary equipment located in various cut throughs on the maingate 2 roadway. This routine reorganisation and/or relocation of the electrical supply services, was designed to keep pace with advancing and retreating coal mining activities, and involved electricians in HV work. Supply of High Voltage Electricity from Energy Australia to Glennies Creek Coal Mine 26. GCCM's staff commenced discussions regarding electricity supply with Energy Australia in 2000. 27. Following a site meeting at the Colliery on 26 September 2000, Ian Hall, Team Leader, Customer Service, Energy Australia, wrote to the Colliery on 11 October 2000 detailing the requirements for high voltage ("HV") connection to the Colliery. 28. On 13 August 2001, Glennies Creek Colliery applied to Energy Australia for a HV connection. 29. Pursuant to clause 3.1 of Energy Australia's Standard Form Customer Connection Contract, which applied to the supply of electricity to the Colliery at the time of the connection of their HV supply on 23 November 2001, the Colliery was required to comply with the requirements set out in the NSW Service and Installation Rules for High Voltage Installations ("the Rules"). 30. Pursuant to clause 7.5.8 of the Rules, the Colliery was required to establish HV operating procedures. 31. Prior to connection on 23 November 2001, the Colliery provided Energy Australia with a copy of SMP004_10a – Isolation Procedures - HIGH VOLTAGE. 32. Attachment A to Section 7 of the Rules prescribes the minimum operating procedures and safety equipment required to ensure the safe performance of work on the installation. Pursuant to Attachment A, the Colliery was required, as part of its contract with Energy Australia, to comply with all procedures detailed in Australian Standard AS 2467 including: a) Having a documented set of electrical safety rules covering all aspects of operating the HV installation; b) Providing all persons engaged in work on HV electrical substations and/or install with a copy of the electrical safety rules; c) Prominently and permanently display the installation's HV system operating diagram in each HV substation; d) Providing and causing the operators to be trained in the use of: i) high voltage earthing equipment designed to facilitate the earthing of all types of HV equipment within the installation; and ii) Insulating mats, screens and other similar equipment necessary for the safe operation of the HV installation; e) Providing testing equipment to prove that HV mains and apparatus are dead; and f) Providing white tape barriers, stands and access permit holders to clearly identify isolated, proven dead and sections of HV installation on which work can safely be performed. 33. Mr Sherring and Mr Cuskelly attended the Energy Australia Safe Working Practices for High Voltage Operators and Access Permit Issuers and attained a certificate from Energy Australia, having successfully completed the course on 29 November 2002 and 1 March 2002, respectively. The course consisted of six modules: (a) substation safety awareness and release from live electrical apparatus; (b) de-energising and isolating; (c) proving apparatus de-energised and earthing; (d) identification of the safe area for work; (e) access permits; and (f) energisation. Management of Underground High Voltage Electricity Reticulation 34. The operator of a coal mine has an obligation pursuant to section 103 of the CMRA to provide procedures with respect to the examination and testing of the HV electrical reticulation system. To this end the original operator of the Colliery, Namoi Hunter Pty Limited, issued an electrical management scheme for the Colliery pursuant to section 103 of the CMRA ("the s103 Scheme"). 35. The s103 Scheme contained procedures for HV isolation and HV work. The s103 Scheme (at page 13 of 16) provided that: · "… high tension switching will only be done by a person on the high tension permit and instructions worksheet. · Incoming and outgoing cables will be checked carefully to ascertain whether they are in fact incoming or outgoing. · No plug joints will be broken, or conductors exposed until the circuit is proved "DEAD" "EARTHED". · The testing procedure will be carried out as per the instruction and only under the supervision of the person in charge." 36. Further, clause 27 of the Coal Mines (General) Regulation 1999 (NSW) ("the Coal Regulation") requires that: "Procedures must be developed and implemented at a mine or declared plant to ensure that: (a) potentially damaging energy is isolated from persons who are to work on electrical or mechanical equipment, and (b) sources of potentially damaging stored energy are isolated or dissipated before work commences." 37. On 1 February 2002, Ross signed, as Mine Manager at the Colliery, SMP004_10a – Isolation Procedures HIGH VOLTAGE. The original version of this document was prepared by Mr Hancox in his capacity as Mine Electrical Engineer and issued by him on 12 November 2001. 38. SMP004_10a provides a comprehensive safe working system for the conduct of electrical works on the HV reticulation system at the Colliery: "The purpose of the Glennies Creek "High Voltage Isolation Procedures" is to control any work performed High Voltage Electrical Apparatus and Cables, or near exposed High Voltage Conductors." 39. Further, the HV isolation procedures set out in SMP004_10a are said to apply to: "• the Glennies Creek Mine; · the isolation of electrical energy above the limits or low voltage (ie above 1,000 volts AC and 15,000 volts VC); · all electrical employees of Glennies Creek; * all contractors working on site; * all persons employed by Electricity Supply Authorities working on site; [and] * any visitors." 40. SMP004_10a provides, as its "Basic Safety Principles", that: "All high voltage exposed conductors, electrical apparatus and cable must be regarded as live Until Isolated and proved de-energised And Earthed and short circuited And A high-voltage switching and access permit issued" 41. SMP004_10a also provides that: "If in doubt with work on high voltage – seek advice from your supervisor before proceeding ." [emphasis added] 42. As to the earthing of HV apparatus and cables, paragraph 6.4 of SMP004_10a provided that: "• All circuits shall be tested and confirmed dead with a correctly rated live line detector attached to a correctly rated insulated application stick, prior to the application of any form of earth or discharge stick. • Fault make (spring action) earth switches that are interlocked to a circuit breaker or isolator may be applied without testing for dead. • NEVER touch an isolated high voltage conductor UNLESS there is a visible earth on the conductor or the circuit tested for dead and an earth has first been applied. (sic) • Always discharge equipment to earth following any high voltage testing activity." 43. Further, SMP004_10a also requires the use of live line detectors in HV work as follows: "• Ensure that the Tester is suitable for the voltage being tested and it is within its test validity period. • Ensure the tester is attached to an insulated stick (without defects and within its test validity period) and that the stick has a voltage rating equal to or in excess of the voltage of the circuit being tested. • Test that the Live Line Tester is operative before & after use before accepting the result. The testing may either be (sic) via an inbuilt test circuit or dedicated test box, OR test the tester on a known live source if available. NOTE: Take care in using live line detectors so as not to create a hazard due to the head portion of the tester not being a high voltage insulator." 44. SMP004_10a also provided a comprehensive system for the preparation, opening and closure of High Voltage Switching and Access Permits ("Access Permits"), as well as providing an actual format for the Access Permits to be used within the Colliery. 45. The responsibilities of the Mine Manager are defined in SMP004_10a as follows: "• Ensure [the] management plan is established, audited, continually monitored and reviewed. • Ensure that all persons affected by [the] management plan are trained and receive ongoing refresher training in accordance with Glennies Creek JCB Order 34. • Ensure that people are appointed as High Voltage Switching officers." 46. Similarly, the responsibilities of the Mine Electrical Engineer are defined as follows: "Ensure that… high voltage switching and access permit[s] [are] issued as required by [the] management plan. • Ensure that apparatus required for carrying out specific tests as required by [the management plan] are made available. • Ensure that access to surface substations and switch rooms are carried out in accordance with the management plan. • Ensure that drawings reflecting any change to high voltage systems are updated. • Ensure that all permits are audited as required by this management plan. • Ensure approval for high voltage procedures." Events Leading Up To The Subject Incident:- Disconnection And Transfer Of An 11kv Transportable Transformer. 47. In late January 2003, as part of the routine progress of the longwall, a transportable 11kV transformer located in 16 cut through on maingate 2 ("the First Transformer") was scheduled for disconnection from the underground electrical reticulation system. On disconnection from the underground electrical reticulation system, the First Transformer was scheduled to be moved, together with an ancillary pump, to 9 cut through on maingate 2. 48. As at 31 January 2003, the First Transformer was still connected to the underground electrical reticulation system via 2 lengths of HV cable. The two lengths of HV cable ran outbye from 16 cut through to 12 cut through on maingate 2 ("the Cables") where they were plugged into another transportable 11kV transformer located in 12 cut through which was being used for ancillary equipment ("the Second Transformer"). 49. As part of the disconnection and transfer of the First Transformer, the Cables were to be disconnected from the electrical reticulation system. After disconnection from the First and Second Transformers, the Cables were to be recovered and transported to another part of the mine. 50. On Friday 31 January 2003, Mr Joseph Cuskelly left instructions for the night shift electrician, Mr Scott Fryer, to commence the move of the First Transformer ("the Longwall Transformer Move"). The 1016 ("Permit 1016") identical in form and content to the High Voltage Switching and Access Permit contained in Appendix 2 to SMP004_10a and a work note. Permit 1016 and the work note were left in a folder in the office above ground for Mr Fryer to collect at the commencement of his shift. 51. On the overnight shift work, Mr Fryer commenced on the transfer of the First Transformer, but the task was not completed. 52. On the following morning, Saturday 1 February 2003, Mr Fryer told Mr Cuskelly that the HV electricity supply to the First Transformer had been isolated. 53. Mr Cuskelly then entered the mine, together with his crew, to complete the longwall transfer move, which Scott Fryer had started on the previous shift. 54. In the course of preparing to complete the transfer, Mr Cuskelly issued, to himself, a second High Voltage Switching and Access Permit, bearing number 1017 ("Permit 1017"). At this point in time, contrary to the provisions of SMP 004_10a, there were two Access Permits open in respect of the one task. 55. Mr Cuskelly then split his crew in two: half to do cable work and half to move the First Transformer. The First Transformer was then moved from 16 cut through to 9 cut through where it was reconnected to the electrical reticulation system. 56. After the First Transformer had been moved from 16 cut through to 9 cut through and reconnected to the electrical reticulation system, Mr Cuskelly proceeded to restore power to the longwall panel. 57. In the process of restoring electricity to the longwall panel, Mr Cuskelly completed steps 7 and 8 set out on Permit 1017. In completing step 7, the cancellation of Permit 1017, Mr Cuskelly indicated that the work covered by Permit 1017 had been completed, including: (a) all covers and guards were in place and secure; (b) the circuit(s) and/or apparatus had been tested and results recorded; and (c) the circuit(s) and/or apparatus had been inspected and it was safe to restore power. 58. However, as at the completion of Mr Cuskelly's shift on 1 February 2003, the Cables were still connected to the Second Transformer and thereby, to the 11kV electrical reticulation system. 59. Further, as at the completion of Mr Cuskelly's shift on 1 February 2003, the plug at the end of the Cables was uncapped. 60. As a consequence, when Mr Cuskelly restored power to the longwall panel at the end of his shift on 1 February 2003: (a) the Cables had not been disconnected from the electrical reticulation system as planned; (b) the Cables were energised or live; and (c) the conductor pins located in the inbye plug at 16 cut through were uncapped, energised and accessible. 61. Mr Cuskelly did not report his failure to properly check the completion of the work scheduled for his shift on 1 February 2003, nor did Mr Cuskelly report that: a) Permit 1016 had been left open at the end of Mr Fryer's shift and that it had not been transferred to Mr Cuskelly; b) Mr Cuskelly had issued himself with Permit 1017 at the commencement of the shift; c) Mr Cuskelly completed and closed Permit 1017 that he had issued to himself on 1 February 2003; and d) Mr Cuskelly had not completed the checks set out in step 7 on Permit 1017 prior to restoring power to the longwall panel at the end of his shift on 2 February 2003. 62. As a consequence, the Colliery's mine maintenance system indicated, as at the end of Mr Cuskelly's shift on 2 February 2003, that all tasks scheduled for 1 February 2003 and 2 February 2003 had been properly completed, including the disconnection of the Cables and that caps had been fitted to plugs and adaptors, where needed, at the completion of the work and prior to the restoration of electrical power to the longwall panel. 63. Thereafter, from 1 February 2003 until the subject incident occurred during the night shift on 7 February 2003, the Cables remained energised with the plug at the inbye end uncapped at 16 cut through so that the three energised conductor pins were exposed. 64. On the 7 February 2003 night shift, the Cables were scheduled for recovery and transfer to another part of the Colliery. 65. At the commencement of the night shift on 7 February 2003, there was a start of shift meeting at which the tasks scheduled for the shift were co-ordinated. The recovery of the Cables was addressed by Mr Boyling, the Undermanager in charge of the shift. Mr Sutcliffe, a part-time mine deputy, was assigned the task of issuing instructions for the recovery of the Cables. Mr Sutcliffe assigned the recovery task to Mr Sherring, Mr Tobiasz, Mr Thomas and Mr Boyd. 66. Mr Baird, the deputy with responsibility for the longwall panel was not informed that Mr Sherring, Mr Tobiasz, Mr Thomas and Mr Boyd had been assigned to recover the Cables from within his district. 67. Also, Mr Sherring, Mr Tobiasz, Mr Thomas and Mr Boyd did not report to Mr Baird when they subsequently entered the longwall panel during the course of the nightshift on 7 February 2003. 68. As a consequence, Mr Baird: a) did not undertake any supervisory duties with respect to the work assigned to Mr Sherring, Mr Tobiasz, Mr Thomas and Mr Boyd, either prior to, or after they, entered his district on the evening of 7 February 2003; b) did not inspect the Cables scheduled for recovery; and c) did not inspect the surrounding area with a view to supervising the work to be performed by the subject crew. 69. Similarly, Mr Sutcliffe did not attend at the area of 12 cut through to 16 cut through prior to work commencing on the recovery of the Cables. In fact, Mr Sutcliffe was at all material times working at the shaft district of the mine, installing a pump, whilst Mr Sherring, Mr Tobiasz, Mr Thomas and Mr Boyd were involved in the recovery of the Cables some 2 kilometres away in maingate 2. 70. After Mr Sutcliffe had issued them with instructions regarding the recovery of the Cables, Mr Thomas went to get a cable reeler whilst Mr Tobiasz and Mr Boyd travelled to maingate 2. 71. Mr Tobiasz and Mr Boyd arrived at 12 cut through before Luke Thomas and Greg Sherring. When Mr Tobiasz and Mr Boyd arrived at 12 cut through, Mr Tobiasz observed that the outbye end of the Cables was connected to the Second Transformer. Mr Tobiasz also carried out an inspection of the Cables and ascertained that the inbye plug was not connected to any equipment. Mr Tobiasz and Mr Boyd then decided to wait for Mr Sherring. 72. Mr Thomas then arrived at 12 cut through, with the cable reeler, followed by Mr Sherring. 73. After Mr Sherring arrived at 12 cut through, Mr Tobiasz pointed out to him to that the outbye end of the Cables to be recovered was connected to the Second Transformer. This was inconsistent with the task that Mr Sherring and his crew had been scheduled to perform. Nonetheless, contrary to SMP 004_10a, Mr Sherring made no attempt to clarify his instructions, or to ascertain the source of the apparent error. 74. Further, despite the fact that the task to be performed by Mr Sherring, as scheduled, involved disconnecting the connector plugs between two HV cables, Mr Sherring did not have with him the tools necessary to:- a) prove that the Cables were de-energised or "dead"; and/or b) earth the Cables before they were handled. 75. In particular, Mr Sherring did not have any of the following: a) a correctly rated live line detector; b) a correctly rated insulated application stick; and/or c) any form of earth or discharge stick. 76. Rather, Mr Sherring elected to proceed with the task as if there were no conflict between his instructions and the circumstances he found at the site and in the absence of the tools necessary to undertake the task with safety. 77. In fact, without taking any steps to check that the Second Transformer and/or the Cables were isolated, and without proving the Second Transformer and/or the Cables to be de-energised, Mr Sherring proceeded to undo the bolts and earth strap so that the plug of the Cables could be disconnected from the Second Transformer. Mr Sherring then requested assistance from Mr Tobiasz. They then pulled the plug on the outbye end of the Cables from the Second Transformer before placing the plug and the end of the Cables on the transformer base. 78. As the Second Transformer and the Cables were connected to the electrical reticulation system, both the apparatus and the Cables were energised to 11kV. 79. As a consequence of the fact that both the apparatus and the HV armoured cables were energised to 11kV, there was a risk of a high voltage electrical arc as the plug was being separated from the in-bye power outlet on the transportable 11kV transformer. The risk of a high voltage electrical arc carried with it the following additional risks: (a) a High Voltage earth fault; and/or (b) a phase to phase arcing fault that could have resulted in electrical shock through direct or indirect contact; and/or burn radiation injuries, together with physical injury from an electrical explosion. 80. After the plug at the outbye end of the Cables had been disconnected from the Second Transformer, Mr Sherring attached one of the leads of his megger to a screwdriver and the other lead to a bolt on the Second Transformer. Mr Sherring then touched the screwdriver to the socket of the plug on the outbye end of the Cables for the purpose of earthing the Cables and thereby, discharging any residual energy from the Cable. 81. After Mr Sherring had earthed the Cables, he turned and placed the screwdriver, with the leads from his megger still attached, onto a pin located in the plug or adaptor from which the Cables had been disconnected. This created a path to earth from a live conductor, a phase to phase plasma arc occurred, there was a burst of flame and a loud bang. At the same time, the fuse in Mr Sherring's megger blew and the leads from the megger melted. 82. When Mr Sherring made contact between his screwdriver and the pin in the transformer adaptor, he was at risk of electrical shock. Additional immediate risks to Mr Sherring, Mr Thomas, Mr Tobiasz and Mr Boyd, who were within several metres of the unit, included exposure to thermal radiation (including the risk of serious burns), blast injuries from molten metal particles and pressure wave injury including burst eardrums, concussion, disorientation, lung collapse and shock. 83. Mr Ross and Mr Hancox assigned Mr Sherring to additional HV work associated with attempted recovery of the system and Mr Tobiasz, Mr Thomas and Mr Boyd to other general labouring work underground at the mine. Mr Sherring, Mr Tobiasz, Mr Thomas and Mr Boyd continued on the duties to which they were assigned by Mr Ross and Mr Hancox until the end of the shift. 84. The failure to provide an appropriate first aid response constituted a breach of clause 74 of the Coal Regulation. 85. Mr Tobiasz, Mr Thomas and Mr Boyd all experienced adverse effects due to the incident. 86. Investigation of the incident disclosed that prior to the subject incident: a) SMP004_10a, had not been provided to persons working on the HV reticulation system at the mine at any time prior to the subject incident, including but not limited to Mr Cuskelly, Mr Fryer and Mr Sherring; b) SMP004_10a: (ii) had been written for use in the Colliery in response to clause 26 of the Coal Regulation; and (iii) had been submitted to Energy Australia, pursuant to the contract for supply of HV electricity, but it was not being followed at the Colliery, either by management or by staff directly involved in work on the HV reticulation system to which the SMP was said to apply, including but not limited to Mr Hancox, Mr Cuskelly and Mr Sherring; c) The Access Permits work system set out in SMP004_10a was breached in that: (i) HV switching tasks, which under the Access Permits system required two "qualified" members of staff, were routinely performed by a single person; (ii) Access Permits were issued by electricians to themselves;and (iii) Access Permits were left incomplete, or were completed in a manner that was not compliant with the system. 87. GCCM and Ross were unable to provide any records of training under SMP004_10a, nor could they produce any records of assessment of electrical staff in accordance with that SMP 004_10a and/or any appointments made pursuant to it. 88. Further, the SMP 004_10a required the Mine Electrical Engineer to review each Access Permit. Mr Hancox, the Mine Electrical Engineer, reviewed only a few of the Access Permits issued. 89. Clause 33 of the Coal Regulation prohibits the performance of live line work in coal mines. In addition, the s103 Scheme and SMP004_10a required that: a) power be removed by isolating the Second Transformer before work commenced; b) following isolation, the apparatus and Cables be tested to ensure that both the apparatus and the Cables were de-energised; c) residual energy be dissipated using equipment specifically designed and fit for that purpose; and d) where there was a clear difference between the task as described and the physical circumstances of the work, Mr Sherring not proceed to carry out any work until he had sought advice from an appropriately qualified supervisor. 9 In addition, a bundle of documents was tendered into evidence on behalf of the prosecutor. Affidavit evidence and annexed documentation was tendered on behalf of the defendant, to which I shall refer later. One of the affidavits filed was that of the defendant Peter Keith Ross who during the course of the hearing was cross- examined on it. 10 In his affidavit evidence, Mr Ross said that whilst he was the mine manager there was a comprehensive occupational health and safety procedure which he outlined and which, in general terms, accord with those referred to in paragraphs 34 and 35 of the Agreed Statement of Facts together with a safety management plan identified as SMP004_10. He said that in terms of the High Voltage procedures at the mine a number of electricians including Messrs Cuskelly and Sherring had received training in the form of a five-day intensive course run by Energy Australia. 11 With respect to the allegation contained in paragraphs 84 and 85 of the Agreed Statement of Facts, Mr Ross said that he had spoken to the employees concerned after the incident and, that they had assured him that they were "ok" and in particular he was assured that Mr Sherring was not required to work by himself. 12 Following the incident, a number of remedial steps were taken by Mr Ross. These included the instigation of an independent investigation, an audit of an underground electrical reticulation system, the engagement of an external consultant to conduct a risk analysis as well as a more general assessment and the implementation of a revised and better system known as SMP004_10a, the details of which are referred to in the Statement of Agreed Facts. Furthermore, Mr Ross said that he had cooperated fully with the investigation conducted by the Department of Primary Industries, had a significant personal commitment to occupational health and safety matters and expressed remorse and contrition concerning the incident. 13 Mr Ross gave evidence of his involvement in certain communal organisations and character evidence was tendered on his behalf. 14 In cross-examination, Mr Ross conceded that he knew generally that employees were issuing high voltage access permits to themselves and that this precluded the review of what was being undertaken by independent persons. The revised procedures adopted after the incident provided for such a review. Mr Ross was unable to point to any documentation that he had issued with respect to any particular authorisation to any person with respect to the undertaking of high voltage work under any of the systems that were being utilised by Glennies prior to the incident. Furthermore, he was not aware of any specific training given to employees of the labour hire company with respect to high voltage work. In this latter regard, it was submitted on behalf of the defendants that those persons were not actually involved in the direct electrical work, although it is clear from the evidence including the Agreed Statement of Facts that those persons were actually assisting in the work which was being carried out involving high voltage live equipment. 15 As has been established by the evidence, the factual background against which these proceedings were brought discloses the following: a) The persons who were required to perform the work did so in connection with a high voltage electrical system in the colliery with attendant risks of electrocution, explosion and fire. Although no serious injury was sustained by any person, this may be said to have been a matter of good luck. b) These risks of electrocution, explosion and fire were foreseeable. c) Although the corporate defendant had instituted a system of work, it had not implemented the more comprehensive system associated with SMP004_10. d) The incident arose following a number of breaches of basic safe work practices by a number of persons performing work. As the prosecutor submitted: "This is not a case of a single worker departing from an otherwise well established and well maintained scheme. Nor, can it be suggested that the departures from safe working practice occurred because of mere inadvertence or inattention on the part of well-trained employees. This case involved multiple departures from basic safe work practices with many of the steps taken involving deliberation." e) Although, as I have said, the corporate defendant did have in place a system on paper, there is evidence that it was not effectively put into practice on a continuing basis. f) The persons whose work was provided by the labour hire company were not adequately and properly trained in connection with the work which they were required to carry out assisting the corporate defendant's employed electrician. g) There was a failure to adequately supervise the work which was being performed, not necessarily at all times the fault of the supervisor who relevantly had not been informed about the work being carried out by the persons recovering the cable when the incident occurred. h) There was a failure to utilise a system to enable some check to be taken of the work to be performed in connection with the high voltage electrical equipment. The system utilised by the corporate defendant allowed persons to issue authorities to themselves. As was conceded, a system which would have required a third party supervisor to issue such an authority and to ensure that it was adequately documented would have drawn attention to the necessity to utilise basic safety practices. 16 The first requirement in assessing an appropriate penalty is the assessment of the objective seriousness of the offences. Turning first to the offences committed by the corporate defendant, they are, in my opinion, to be assessed as being of a most serious kind. In stating my conclusion in this way I am conscious that any breach of occupational health and safety legislation should be regarded as a serious matter. This in turn compels recourse to some qualitative description of the extent of the seriousness. A further dimension is created by the need to measure the objective seriousness of the offence by reference to a "worse case" scenario. 17 Not unnaturally, the prosecution's submissions focussed on the seriousness of the offence by reference to the matters, which I have set out above. The defendants' submissions focussed on those elements that were said to remove the offences from a "most serious" category to something of the order of less than "medium to high". The defendants' submissions focussed on the fact that the corporate defendant did in reality have in place safe systems of work and employed qualified persons to carry out the work. It was said that if the systems which the corporate defendant had implemented had been followed the work would have been carried out safely. 18 The corporate defendant emphasised that if matters were to be inferred against it they were required to be established beyond reasonable doubt. It was said that the departure by each of the employees from systems which had been established by the defendant was unexplained and could not be used to justify a conclusion that there was some systematic failure to either create or adhere to a safe system of work, especially having regard to the systems that were in place. 19 It is obvious that the corporate defendant did have in place systems of work designed to enhance safety and did employ persons who were ostensibly competent and qualified. However, whatever system of work was utilised by the corporate defendant, it is clear, in my opinion, that the aggregation of circumstances, which created the undoubted risk of injury, must be reflective of a basic defect in the overall system utilised by the corporate defendant for which its management must take some responsibility. 20 I regard the breach by the corporate defendant, in all the circumstances, when viewed objectively, as being in the "medium to high" range using, for convenience, a description ranging from low to medium to high. 21 In assessing penalty it is also necessary to have regard to both the general and specific deterrent effect of any penalty imposed. As has been observed on many occasions, mining operations and coal mining operations in particular are inherently dangerous. This fact alone compels attention to the general deterrent effect of any penalty imposed, so as to provide a further reminder to all operators of coal and other mining establishments to exercise vigilance to ensure that a breach of the Occupational Health and Safety legislation does not occur. In the context of the need to provide specific deterrence to this defendant, evidence was given by Mr Alan Payne that some time after the incident, the ownership of the colliery had changed so that AMCI Holdings Australia Pty Ltd is now the majority owner of the colliery and wholly owns the corporate defendant. Furthermore, significant changes have been made to the management personnel of the colliery with enhanced appointment of managerial personnel directed to safety and environmental matters and the installation of additional safety equipment. It is said that there are now regular safety audits conducted and regular review of safety systems and procedures at the colliery. The defendant has spent approximately $1.6 million on occupational health and safety at the colliery in the period 1 July 2005 to 31 May 2006. 22 Evidence was also given by Mr Payne of remedial steps to improve safety initiated at the colliery immediately after the incident. 23 I am satisfied that whilst specific deterrence should remain a factor in assessing penalty, a lessened regard needs to be taken having regard to the matters to which I have referred. 24 There are a number of subjective matters that, in terms of the corporate defendant, need to be taken into account in assessing penalty. The first is that the defendant entered pleas of guilty shortly before the hearing. It is entitled to some discount but not the full discount, which would apply if pleas of guilty had been entered at the earliest appropriate opportunity. 25 Furthermore, it is accepted that the corporate defendant has expressed contrition and remorse for what occurred and fully cooperated with the Department of Primary Industries in its investigation of the incident. Evidence has been given with respect to the corporate defendant's charitable and other community contributions. 26 The corporate defendant has no relevant prior convictions. 27 I note that each of the charges brought against the corporate defendant arise out of the same course of conduct and same factual circumstances. The differentiating factor relates to a breach, respectively, of its obligations to its employees and to persons who were working in the colliery but who were employees of the labour hire company. Whilst the Act has created two distinct and separate offences, regard must be had to its scheme. Given this and my earlier observation that both offences have arisen out of the same course of conduct, the corporate defendant should be entitled to rely on the application of the principle of totality. In stating this I have specifically taken into account the different circumstances which would apply to employees whom, in general terms, have been inducted into an employer's workforce having had some degree of continuity of involvement in an employer's operations and those circumstances of persons whom may work in an employer's place of work but nonetheless may not be part of its regular workforce. 28 The prosecutor asked for orders for costs and the payment of a moiety, which were not opposed. 29 The maximum penalty for each offence is the sum of $550,000. Having regard to the matters to which I have referred and taking into account the application of the principle of totality, I would propose to impose a monetary penalty in each case of $80,000. 30 It is now necessary to deal with the circumstances of the individual defendant, Peter Keith Ross. As I have previously indicated the charges brought against him pursuant to s 26(1) of the Act are based on an assertion that he was a person concerned in the management of the corporate defendant and is thereby taken to have breached ss 8(1) and (2) of the Act. 31 I have already described my assessment of the objective seriousness of each of the offences committed by the corporate defendant. In taking into account the proper approach to the assessment of penalty in the case of Mr Ross, I have regard to the principles set out in the decision of the New South Wales Court of Appeal in Powercoal Pty Ltd v Industrial Relations Commission of New South Wales (2005) 145 IR 327. At pp 354- 5, Spigelman CJ (with whom Mason P and Handley JA agreed), concluded that the equivalent provision in the Occupational Health and Safety Act 1983 referred to a person who was involved in that part of the management of the corporation involved in the breach of the Act who has a level of complicity in the commission of the offence by the corporation. 32 As Mr Ross deposed in affidavit evidence, he was at all relevant times the mine manager at the Glennies Creek Colliery and was responsible overall for management of the mine. Thus, Mr Ross had overall responsibility for the safety of employees, the conduct of all operations at the colliery and the promulgation and implementation of safety protocols and the like. Accordingly, the establishment of the high voltage operating procedures and their implementation and the management of the underground high voltage electricity reticulation as referred to in the Agreed Statement of Facts were substantially the responsibility of Mr Ross. 33 Although Mr Ross stated that he had a high commitment to occupational health and safety matters and that he was instrumental in introducing safety systems and the like into the mine, his overall responsibility points to a high level of complicity in the breaches by the corporate defendant. Judged objectively, I would assess the seriousness of the breaches by Mr Ross as of the same order as that of the corporate defendant. 34 Mr Ross remains in the mining industry and therefore I take into account the element of specific deterrence as well as the general deterrent effect of a monetary penalty in assessing the appropriate amount of penalty. 35 As is the case with the corporate defendant, Mr Ross pleaded guilty at the same time in the proceedings and is entitled to the same consideration as was given to the corporate defendant. I accept also that Mr Ross cooperated fully with the investigations carried out by officers of the Department of Primary Industries, has expressed remorse and contrition for what occurred, was actively involved in remedial action taken after the incident and, on the basis of evidentiary material, is a good citizen. I note for completeness that Mr Ross has no other conviction for any offence under the Occupational Health and Safety legislation. 36 I propose to apply the principle of totality with respect to the two offences with which Mr Ross has been charged because they mirror the offences relevant to the corporate defendant. 37 The prosecutor sought orders for costs and a moiety, which were not opposed. 38 The maximum penalty for each offence with which Mr Ross is charged is the sum of $55,000. Having regard to all the matters to which I have referred I intend imposing a penalty in each case of $8,000. 39 Orders 1. Each of the defendants is found guilty of each of the offences charged and convicted accordingly 2. In each of matters IRC 5/456 and IRC 5/457, the defendant Glennies Creek Coal Management Pty Ltd is fined $80,000 with a moiety to the prosecutor. 3. In each of matters IRC 5/452 and IRC 5/453, the defendant Peter Keith Ross is fined the sum of $8,000 with a moiety to the prosecutor. 4. The defendants are to pay the costs of the prosecutor assessed by the Court in default of agreement. 5. Liberty to apply with respect to costs. 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.