Inspector Gary Bruce Mason v Auscott Limited [2010] NSWIRComm 102

Industrial Court of New South Wales

CITATION: Inspector Gary Bruce Mason v Auscott Limited [2010] NSWIRComm 102

PARTIES: Inspector Gary Bruce Mason (Prosecutor) Auscott Limited (Defendant)

FILE NUMBER(S): 250 of 2009

CORAM: Backman J

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 CASES CITED: Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329 WorkCover v Kevin R Sheather Services Pty Ltd [2001] NSWIRComm 74

HEARING DATES: 11 and 12 November 2009

DATE OF JUDGMENT: 22 July 2010

Mr P Ginters of counsel WorkCover Authority of New South Wales (Ms K Lockerby) LEGAL REPRESENTATIVES: Mr B Hodgkinson SC with Mr M Shume of counsel Kemp Strang Lawyers (Ms L Berton)

JUDGMENT:

- 13 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Backman J

Thursday, 22 July 2010

Matter No IRC 250 of 2009

Inspector Gary Bruce Mason v Auscott Limited

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

JUDGMENT OF THE COURT [2010] NSWIRComm 102

1 Auscott Limited pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000 (2000 Act). At the time of the offence, the defendant operated a cotton gin facility at Midkin near Moree (Midkin Gin). The Midkin Gin operates as a cotton processing plant between about April and July. 2 The charge against the defendant alleged that on 8 March 2007, it failed to ensure the safety of, "all its employees, and in particular, Ricky Lawrence Bella". The defendant's failure to ensure safety was further particularised under four separate heads of allegations. These were: (a) The defendant failed to ensure that plant, known as an "IFP Cotton Banding Machine" or "Auto-Strapper", provided for use by its employees at work ("the Strapper"), was adequately guarded so that the Strapper could not move along the Strapper carriage track whilst Mr Bella was, or in the alternative, Mr Bella and Mr Sutherland were, undertaking maintenance work on the Strapper. (b) The defendant failed to ensure that Mr Bella and Mr Sutherland were provided with such information and instruction in relation to the isolation of power and maintenance of the Strapper as was necessary to ensure the safety of Mr Bella, or in the alternative, Mr Bella and Mr Sutherland, whilst maintenance work was being undertaken on the Strapper. (c) The defendant failed to ensure that the work procedure known as SWG190 was complied with. (d) The defendant failed to ensure that Mr Bella and Mr Sutherland were provided with such supervision as was necessary to ensure Mr Bella's safety or, in the alternative, Mr Bella and Mr Sutherland's safety whilst maintenance work was being undertaken on the Strapper. (e) The defendant failed to adequately maintain such measures, as were identified by a risk assessment, as were necessary to ensure the safety of Mr Bella, or in the alternative, Mr Bella and Mr Sutherland, whilst maintenance work was being undertaken on the Strapper.