Industrial Court of New South Wales CITATION: Inspector De Silva v Boral Construction Materials Group Ltd [2007] NSWIRComm 43 PROSECUTOR Inspector Prasad De Silva PARTIES: FIRST DEFENDANT Boral Construction Materials Group Ltd SECOND DEFENDANT Boral Resources (NSW) Pty Ltd FILE NUMBER(S): IRC 2374 and 2375 of 2006 CORAM: Staff J CATCHWORDS: Occupational health and safety - Prosecution under s 8(1) and s 10(2) of the Occupational Health & Safety Act 2000 - Building and construction industry - Accident occurred whilst cleaning cement truck - Defendants had systems of safety although deficient - Equal culpability - General and specific deterrence - No prior convictions - Good corporate citizenship - Subjective factors - Plea of guilty - Penalty imposed - Costs. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health & Safety Act 2000 Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT 90/1214, 30 June 1992) CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 HEARING DATES: 16 February 2007 DATE OF JUDGMENT: 1 March 2007 PROSECUTOR Mr R Reitano of counsel Solicitor: Ms F Miller WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANTS Mr L King SC Solicitor: Mr A Morrissey Hunt & Hunt JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 1 March 2007 Matter No IRC 2374 of 2006 INSPECTOR PRASAD DE SILVA v BORAL CONSTRUCTION MATERIALS GROUP LTD Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 Matter No IRC 2375 of 2006 INSPECTOR PRASAD DE SILVA v BORAL RESOURCES (NSW) PTY LTD Prosecution under s 10(2) of the Occupational Health & Safety Act 2000 JUDGMENT [2007] NSWIRComm 43 1 Boral Construction Materials Group Ltd ("the first defendant") employs concrete truck drivers which operate out of premises owned by Boral Resources (NSW) Pty Ltd ("the second defendant") at 1 Mort Street, Granville, New South Wales ("the site"). 2 Both defendants have pleaded guilty to charges brought by Inspector Prasad De Silva, an Inspector of the WorkCover Authority of NSW under s 8(1) and s 10(2) respectively of the Occupational Health & Safety Act 2000 ("the Act"). 3 The offences arise out of an incident which occurred at approximately 4.30 pm on 26 May 2004, when Mr Foord, an employee of the first defendant, having completed concrete deliveries, returned to the site. 4 Mr Foord commenced cleaning hardened concrete from the barrel of the concrete truck that he had been driving. This process is known as "de-dagging". Mr Foord had a remote control to turn the barrel of the truck, if required, which controlled the speed and direction of the barrel. Mr Foord was standing on a platform approximately 2.8 metres above ground level, chipping away at the concrete when the barrel suddenly started to turn. Mr Foord stated that the moving barrel grabbed the hand chisel he was holding and the air line of the pneumatic hammer wrapped around his right wrist and dragged him into the barrel of the truck. Mr Foord was thrown around inside the barrel for between three to seven minutes. 5 As a result of the incident, Mr Foord suffered multiple lacerations and bruising to his entire body, chemical burns to both eyes and a fractured hand. Subsequent to the incident, Mr Foord required a corneal stem cell transplant to both his eyes. 6 Arising out of the incident on 26 May 2004, Inspector Prasad De Silva, of the WorkCover Authority of New South Wales, prosecuted the first defendant pursuant to s 8(1) of the Act, and the second defendant, pursuant to s 10(2) of the Act. 7 These sections provide: 8 Duties of employers (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. 10 Duties of controllers of work premises, plant or substances … (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. 8 In an application for order in relation to the first defendant, it was alleged that the first defendant: FAILED TO ensure the health, safety and welfare at work of all its employees and in particular, Stephen Foord, contrary to s8(1) of the Occupational Health and Safety Act 2000. 9 The acts or omissions of the first defendant that were alleged to have constituted the breach were that the first defendant: (a) failed to provide and maintain a safe system of work in relation to the process of cleaning the barrel and related parts including the fins, hopper and chute of concrete trucks; (b) failed to provide equipment that was safe when properly used for the purpose of cleaning the barrel and related parts including the fins, hopper and chute of concrete trucks; and (c) failed to properly train, instruct and supervise its employees in relation to the process of cleaning the barrel and related parts including the fins, hopper and chute of concrete trucks. (d) As a result of the said failures the defendant's employees and in particular Stephen Foord were placed at risk of injury. 10 In an application for order in relation to the second defendant, it was alleged that the defendant, being a person who had control, including only limited control, of plant which was: (a) not plant used by employees of the defendant; (b) not plant used only in private dwelling; (c) plant controlled in the course of the defendant's trade, business or undertaking; (d) used by people at work on 26 May 2004, at 1 Mort Street, Granville, in the State of New South Wales FAILED TO [E]nsure that the plant as aforesaid described, was safe and without risks to health when properly used contrary to Section 10(2) of the Occupational Health and Safety Act 2000. 11 The acts or omissions of the second defendant that were alleged to have constituted the breach were that: (a) The defendant owned a pneumatic hammer, air hose, compressor, a de-dagging platform and a remote control that was used to operate the barrel of a concrete truck ("the plant"). (b) The plant was used by people at work who were employees of Boral Construction Materials Group Limited at 1 Mort Street Granville and in particular was used by Mr Stephen Foord; (c) The defendant had as owner of the plant control including limited control of the plant. (d) The defendant failed to ensure that the plant was safe and without risks to health when properly used in that it failed to ensure that people who were using the plant were using it in accordance with a safe system of work for the purpose of cleaning the barrel and related parts including the fins, hopper and chute of concrete trucks. (e) The defendant failed to ensure that the plant was safe and without risks to health when properly used in that it failed to ensure that people who were using the plant were provided with adequate training, instruction and supervision in relation to its proper use; (f) The defendant failed to ensure that the plant was safe and without risks to health when properly used in that it failed to ensure that people who were using the plant were using it for a purpose and in a manner in which it was intended to be used; (g) As a result of the defendant's omissions employees of Boral Construction Materials Group Limited, including Stephen Foord were placed at risk of injury. 12 The prosecutor tendered an agreed statement of facts on behalf of both defendants. The statement incorrectly refers to Boral Construction Materials Group Ltd (the employer of Mr Foord) as the second defendant and Boral Resources (NSW) Pty Ltd as the first defendant. The statement contained the following relevant agreed facts: 4. The defendants were both part of the Boral Group and were subsidiaries of Boral Limited. The defendants adopted Boral Group policies, practices and procedures. 5. The first defendant, operates 2 businesses in metropolitan Sydney namely, Metro Quarries and Metro Concrete. It also owns and operates the concrete plant (as part of Metro Concrete) in Granville where the incident occurred. 6. The second defendant is an employer in NSW of certain employees within the Australian Construction Materials Division and the Cement Division of Boral Limited. 7. The second defendant was an employer on 26 May 2004. The first defendant was not an employer on 26 May 2004. 8. The first defendant owned and controlled premises located at 1 Mort Street, Granville ("the premises"). 9. The first defendant owned the truck, rattle gun, platform, air hose and the air compressor, referred to below, and was responsible for the operation and maintenance of the equipment. 10. At all material times the second defendant employed Stephen Foord as a relief company driver. Mr Foord's duties included delivering concrete to sites. At the time of the incident on 26 May 2004 Mr Foord had been employed by the second defendant for approximately twelve years. 11. On 26 May 2004 at approximately 4.30pm Mr Foord returned to the premises after completing his concrete deliveries. 12. It was the last day of the particular relief duty Mr Foord had been undertaking and he decided to clean excess concrete from the concrete agitator truck he had been driving. Concrete hardens on all parts of the barrel that concrete comes into contact with. Cleaning of hardened concrete from the barrel is known as "de-dagging". It is carried out using either a sledgehammer (also known as lump hammer) or a pneumatic hammer (also known as an air operated chisel or pneumatic gun). 13. Mr Foord started to clean the hardened concrete off the truck barrel using a sledgehammer but the concrete was too hard. He then asked the site yardman, Billy Burnett for a pneumatic hammer to use to remove the concrete. Mr Burnett provided him with the pneumatic hammer. He then parked the truck near a de-dagging platform located at the premises and from the platform started to de-dag the concrete from the two back fins of the concrete barrel of the truck with the pneumatic hammer. 14. Whilst Mr Foord was de-dagging the back fins he kept the motor of the truck running. Mr Foord had a remote control to turn the barrel of the truck on if required and control the speed and direction of the barrel. Mr Foord was not supervised and was working alone. 15. The platform Mr Foord was standing on was located approximately 2.8m above the ground level. Mr Foord was chipping away at the concrete from the platform when the barrel suddenly started to turn. Mr Foord stated the hand chisel he was holding was grabbed by the moving barrel and the air line of the pneumatic hammer wrapped around his right wrist. He was unable to release his hand from the hose and was dragged into the barrel of the truck. 16. Mr Foord was then thrown around inside the barrel. He was unable to access the remote control for the barrel of the truck to stop the rotating. He ran around inside the rotating barrel until he ran out of energy. A lump of concrete hit him on his head, which threw him to the bottom of the barrel, and he was wedged between the fins and the front of the barrel. 17. At least a half a dozen times he was taken to the top of the barrel and he fell down. Then the barrel stopped. Subsequent to the incident the truck was washed out and the remote control was found in the wash out pit. The remote may have been knocked and stopped the rotation. Mr Foord was in the barrel for between 3 – 7 minutes. 18. When the barrel had stopped, Mr Foord had to get his breath to yell but could not because all his nasal passages were full of slurry. When Mr Foord could, he yelled out. Billy Burnett heard him yelling and came to his assistance. He pulled Mr Foord out of the barrel with the help of other employees at the site. 19. Possibly 80 – 100 litres of slurry was contained in the barrel at the time of the incident. The depth of slurry at the front of the barrel was approximately two feet. The height of the fin was approximately one foot. The gap between two adjacent fins was approximately two feet. 20. As a result of the incident Mr Foord suffered multiple lacerations and bruising to his entire body, chemical burns to both eyes and a fractured hand. Subsequent to the incident Mr Foord required a corneal stem cell transplant to both his eyes. Mr Foord spend three weeks in hospital for treatment of the injuries received in this incident. 21. Mr Foord returned to work on suitable duties approximately 4 months after the incident. 22. It was part of normal duties of the drivers to clean outside the barrel and parts of the back of the trucks using a sledgehammer or other de-dagging equipment. Mr Foord advised he had undertaken the task hundreds of times in the past 11 or 12 years. 23. Approximately two years prior to the incident the defendants determined to outsource de-dagging the inside the barrel. Mr Foord was verbally advised by his Transport Manager that drivers were not allowed to enter the barrel to de-dag inside the barrel. Mr Foord stated he was instructed that he could not enter whole body into the barrel, but that they could de-dag as far as they could reach from outside the barrel. Mr Foord advised he was instructed he could de-dag the loading hooper, A frame and rear two fins of the barrel. 24. At the time of the incident a de-dagging platform, air compressor, pneumatic hammers and the hose used for de-dagging were available at the premises. Pneumatic hammer, air hose, compressor and the platform were available to employees when they needed them. The pneumatic hammer, air hose and compressor were usually kept in Mr Burnett's office. 25. Prior to the incident employees of the second defendant and other contractor drivers used the platform and pneumatic hammers for cleaning at intervals varying from twice a week to once in six months. Glyn Jackson, the Assistant Operations Manager was aware that trucks were being de-dagged from the platform. The site supervisor, Mr Dempsey was aware that persons used the pneumatic hammer to clean trucks at the premises. 26. The defendants had a written lock out procedure dated 30 September 2003 for the maintenance of or repairs to Trucks, Front End Loaders and Backhoes. Mr Foord stated that that he was not aware of this procedure. Mr Dempsey, site supervisor was aware of the procedure. When asked if Mr Foord should have followed the procedure Mr Dempsey advised "not for general cleaning. At the time there was no need to lockout for general cleaning. But since then we have developed a lockout procedure particular for the task (de-dagging of the "A" frame on trucks)." 27. At the time of the incident the defendants did not have in place a safe work procedure or method statement for de-gagging (sic) concrete trucks. 28. Subsequent to the incident the defendants undertook a risk assessment and created a Safe Work Method Procedure for the removal of hardened concrete from the rear of a concrete mixer. 13 Annexed to the agreed statement of facts were 18 colour photographs taken by Inspector Prasad De Silva on 10 June 2004; a factual inspection report of Inspector Prasad De Silva dated 2 March 2005; a diagram of a concrete agitator truck; a post accident Risk Assessment and Safe Work Method Procedures dated 11 June 2004 and records of prior convictions for the two defendants showing no prior convictions for either defendant. 14 Mr L King SC, who appeared for both defendants, tendered affidavits by the following: (i) Nigel Ward, General Manager, Human Resources and Employee Relations, Australian Construction Materials, being one of the six operating divisions of Boral. Mr Ward was not required for cross-examination. (ii) Ross William Dill, General Manager, Occupational Health and Safety, Boral Limited. Mr Dill was not required for cross-examination. (iii) Nabil Battal, Occupational Health and Safety Manager for Metro Concrete Division of the second defendant, who was required for cross-examination. 15 Mr Ward deposed that the first defendant was incorporated on 17 April 1934 and that the second defendant was incorporated on 11 February 1970. Both defendants have the same shareholders and are both wholly owned by Boral Construction Materials Ltd, with the ultimate holding company of the first and second defendants, being Boral Ltd. 16 Mr Ward stated that Boral is Australia's largest building and construction materials supplier and conducts its business through six operating divisions. One of the six operating divisions is Australian Construction Materials ("ACM"). Mr Ward described that ACM operates through a regional management structure throughout Australia with each region then being split into separate operating businesses largely reflecting the different product streams ACM operates, being quarries, concrete, transport and asphalt. Mr Ward deposed that in New South Wales and the Australian Capital Territory there are five operating businesses: Metro Concrete; Metro Quarries; Boral Transport; Boral Asphalt and Country. Each of these operating businesses has a General Manager who reports to the Regional General Manager. Various levels of management, then operate under each operating business General Manager. The regions and within them each operating business has accountability for how they perform. This accountability includes revenue, profit as well as environmental and occupational health and safety performance. 17 Mr Ward stated that the chain of accountability for occupational health and safety runs from an employee on the shop floor through that operating business management structure to the operating business General Manager to the Regional General Manager and then to the Executive General Manager of ACM. 18 Layered onto this operating and accountability structure is a technical corporate structure, which, in part, reflects the historical ownership of assets of which the second defendant is part. It carries on business in New South Wales, which involves the ownership and operations of quarries and concrete plants together with the manufacture and sale of concrete products. The second defendant trades under the name Metro Concrete of which the Granville Concrete Plant forms a part. 19 Mr Ward stated the first defendant's primary function is now as the "blue collar" employing entity for ACM across Australia. The first defendant employs wage employees for Metro Concrete. 20 Mr Dill deposed that he commenced employment with Boral Ltd on 3 July 2006. Mr Dill described Boral Ltd, of which the defendants are wholly owned subsidiaries as a large corporate entity involved in the supply of diverse manufactured products and raw materials for the Building and Construction Industry. He stated that the diverse businesses that make up the group comprise some 173 controlled entities, which operate in all areas of building and construction. At the date of the incident Mr Dill stated that Boral Construction Materials Group Ltd ("BCMG") employed 111 persons at Metro Concrete sites including the Granville Concrete Plant. 21 Mr Dill described Boral's occupational health and safety structure, which recognises the scope and diversity of the businesses in the group. Mr Dill is responsible for the corporate development of occupational health and safety strategies and provides assurance and advice to the Board, CEO and Management Committee and businesses in the groups. Mr Dill described that the management of occupational health and safety is decentralised to divisions and business units within those divisions, with each business unit having an occupational health and safety manager who reports to the Business Unit General Manager. The Occupational Health and Safety Manager for the second defendant is Mr Battal. Mr Dill stated that the ACM Division and its Business Units have systems which are at least "good practice" whilst some do things that would be considered as leading edge activities in occupational health and safety in any industry in Australia. He gave an example of the latter as ACM New South Wales Metro Quarries which was recently awarded the Bradken Gold Hard Hat, widely recognised as the highest accolade for safety in the Quarrying Industry in Australia for initiatives in areas such as explosives management. 22 As General Manager, Mr Dill stated he had a global overview of occupational health and safety issues. Dissemination of occupational health and safety information has been formalised through the use of the Boral Internet and includes various safety programs. Mr Dill exhibited to his affidavit various programs dealing with safety. 23 Mr Dill stated that every Business Unit in the ACM Division has an "Overlay General Manager" who, in addition to their managerial work, is also tasked to develop consistent national occupational health and safety strategies and to attend to the dissemination of occupational health and safety information of particular relevance to the Business Unit. There is a reporting back system of minutes and actions that deal with occupational health and safety issues that is kept by the Divisional or Business Unit Occupational Health and Safety Manager to ensure that occupational health and safety issues have been addressed. Reports are prepared on a monthly basis on occupational health and safety performance and displayed within each of the operating sites for the information of all employees. A report analysing and summarising the group's occupational health and safety performance is also prepared and submitted to the Board on a monthly basis. 24 Mr Dill exhibited an extract of Boral's Induction Manual for new employees together with a copy of Boral's most recent management guidelines dated January 2004. The guidelines contemplate that each Division and Business Unit develop specific systems of work for the effective management of occupational health and safety matters. Also exhibited were two relationship diagrams showing links through the group for occupational health and safety management systems. This is designed to ensure that systems fall within the overall strategy for health and safety in the group. A copy of the New South Wales Metro Concrete Strategic Plan for 2005/2010 and the most recent plan for 2006/2011 was also exhibited to Mr Dill's affidavit. 25 Mr Dill deposed that the defendants individually, and as part of the Boral group of companies, contribute to the following charities and community activities: · Living Green, a partnership with Conservation Volunteers Australia · The Bangarra Dance Theatre · Taronga and Western Plains Zoos including "Backyard to the Bush" and "Youth at the Zoo" programs · Outward Bound Australia · Juvenile Diabetes Research Foundation including sponsorship of the "Walk to Cure Diabetes"; and · Building Communities, a World Vision Australia/Boral initiative 26 In addition, the Boral group committed $1,000,000 to the Asian Tsunami Support Appeal. 27 Mr Battal stated that he became the Occupational Health and Safety Manager for Metro Concrete, a business of the second defendant, on 23 January 2006. He stated the business of the second defendant involves the production and distribution of construction materials including concrete and that the first defendant acts as a labour hire firm providing non-staff employees to different entities within the Boral Group, including to the second defendant. 28 Part of the business of the first defendant includes the delivery by trucks of premixed concrete. This business is conducted at a number of sites throughout New South Wales, including the site at Granville. Mr Battal stated that after delivery, there can be a build up of concrete left behind in the barrel located on the truck. The general procedure is for drivers to try and wash out excess concrete at the Granville site. The drivers who deliver the concrete are either employees of the first defendant, or self-employed drivers. The first defendant has a pool of relief drivers available who operate out of any of the plant network for Metro Concrete. Mr Foord was employed as a relief driver with over 12 years experience with the first defendant. 29 Mr Battal stated that in May 2002, at all metropolitan operation sites of Metro Concrete, including the Granville site, a distinction was made between de-dagging on the external part of the barrel, which incorporated general cleaning of the back of the truck (external de-dagging) and de-dagging on the inside of the barrel (internal de-dagging). 30 From about September 2002, a decision was made within Metro Concrete that the work of internal de-dagging of the barrel would be outsourced to Davcron Engineering Pty Ltd ("Davcron"). The new policy was discussed at the Combined Delegates and Consultative Committee Meeting at the Granville site on 24 September 2002. Minutes of that meeting were exhibited to Mr Battal's affidavit, together with a work order form generated for de-dagging of a truck on 16 and 22 April 2004. 31 Mr Battal stated that it was still part of the driver's duties to perform external de-dagging or cleaning around such areas as the external chute and the A frame. The aim was for drivers to clean general external concrete splashes, which occurred during delivery of the concrete to customers. Such cleaning would occur upon return to the Boral Concrete Plant. This was necessary as the excess concrete hardens and has the potential to subsequently dislodge on route causing a traffic hazard or to cause spillage outside the plant, which may incur a fine from the Environmental Protection Authority. 32 Mr Battal described that, as at 26 May 2004, there were a number of relevant safe work procedures in operation at the Granville site including Safe Work Procedure 43, which governed entry into confined spaces. Entry into the barrel of the concrete truck would involve entry into a confined space. 33 As at 26 May 2004, there was in operation a "lock-out" Procedure 46 which required a person working on mobile equipment, including trucks, to isolate the piece of equipment on which work was being performed. Prior to the decision that Metro Concrete would outsource the task of internal de-dagging, a Safety Analysis checklist had been developed for the de-dagging process at an industry level. A job safety analysis checklist was developed in consultation with a number of drivers from the Granville site. Mr Battal exhibited a copy of the Job Safety Analysis checklist. A risk assessment was also developed in respect of the de-dagging procedure. Both procedures no longer applied once the work of internal de-dagging was outsourced. 34 Mr Battal stated in his affidavit evidence that immediately after the incident occurred, an internal investigation was undertaken which included an executive summary, recommendations and background. A copy of these recommendations, which have been implemented, except for those under the sub heading "Currently Underway" was exhibited to the affidavit, together with a Significant Incident Alert Memorandum which was distributed to the Metro Concrete business. 35 On 11 June 2004, Mr L Dempsey, the Area Manager for various sites, including the Granville site and Mr W Biggs, an occupational health and safety advisor undertook a risk assessment. A review of the Safe Work Procedures that were relevant to the work being undertaken by Mr Foord and new Safe Work Procedures ("SWP") were implemented including a new Safe Work Method Statement for external de-dagging of the A frame, loading hopper and mixer rear flight. The new safe work procedures included: i. Safe Work Procedure Number 35 for the task of removal of hardened concrete from the rear of the concrete mixer using a cordless demolition hammer; ii. Safe Work Procedure Number 48 for the task of removal of hardened concrete from the rear of the concrete mixer; iii. Safe Work Procedure Number 49 for the task of de-dagging of a concrete agitator barrel; iv. Safe Work Procedure Number 46 for the task of lock-out of mobile equipment; and v. Safe Work Procedure Number 43 for the task of confined space entry. 36 Copies of the above procedures were exhibited to Mr Battal's affidavit. 37 Mr Battal stated that drivers working for the first defendant attended a series of meetings and training sessions in respect of the new procedures. Minutes of the Granville Plant meeting conducted on 22 June 2004, at which Mr W Biggs conducted training on new De-dagging Procedure 48 and Lock-Out Procedure were exhibited to the affidavit. In respect of new drivers, the new procedures became part of the Agitator Driver Safety Induction Program, which was completed by all new drivers. Mr Battal stated that since September 2004, a formalised training package was introduced for agitator drivers. The package is a competency-based system, part of which consists of 12 days on the job learning with an experienced driver. Once competency is established, there is a refresher assessment completed every 12 months. Since the incident, there has been further development of the Safety Management Plan for Metro Concrete involving a development of procedures for a number of matters including hazard management. A copy of this plan was exhibited to Mr Battal's affidavit. 38 Mr Battal's evidence was that after he commenced employment with Metro Concrete, he reviewed the current systems and previous major incidents and set about developing a program of further improvement. New standards have been set around issues such as consultation, risk assessment and accident investigation. This has involved the implementation of enhanced procedures, which include the increase in frequency of consultation and risk assessments undertaken at the local level. This has resulted in the decrease in the number of open hazards by approximately 50 per cent within the last 11 months. There is an ongoing review of the implementation of site standards and site safety plans. A copy of a summary of implementation of the site safety plan at the Granville site for 2006/2007 was provided. A new system of training in occupational health and safety legislation, consultation, risk assessment and accident investigation with emergency procedures were implemented during 2006. This involved the training of senior management and middle management. It is anticipated that such training will be provided to supervisors and employees during 2007. There has also been the development and implementation of a new tool to assess the quality of consultation as reflected in minutes of meetings exhibited to Mr Battal's affidavit. 39 Mr Battal stated an Occupational Health and Safety Committee has been established for Metro Concrete, which meets every two months at the Granville site. The Occupational Health & Safety Committee has also established working parties, which deal with particular priority issues including such matters as alcohol, other drug programs and fatigue management. Mr Battal exhibited copies of the Minutes of the Committee. In addition, an alcohol and other drug program based on self-management has been fully implemented. 40 Mr Battal stated that senior management within Metro Concrete, including himself, attempt to undertake a site health and safety snapshot of each site twice every quarter. During the safety snapshot the manager has an occupational health and safety conversation with employees to gauge their knowledge of safety and to promote safety initiatives. This includes walking around the sites observing any safety issues. The safety snapshot is documented with copies of the safety snapshot undertaken on 24 May 2006, 21 August 2006 and 6 November 2006, being exhibited to Mr Battal's affidavit. 41 During short oral evidence, Mr Battal stated that as a result of enquiries into the procedures in operation as at 26 May 2004, a driver could, if he wished, try to de-dag into the barrel at arms length. Mr Battal agreed that a driver had a discretion in regard to the de-dagging of the barrel to the extent outlined. Whether Mr Foord exercised his discretion, or did something more substantial, was uncertain. Mr Battal accepted that, upon his analysis of this procedure, there was a weakness in that the driver had a discretion. 42 During cross-examination, Mr Battal acknowledged that he did not have sufficient information to say exactly how the incident happened. He acknowledged that during the process Mr Foord may have done the wrong thing, or he may have exercised his discretion within the existing policy. Mr Battal agreed that there was nothing to stop Mr Foord taking matters into his own hands. Mr Battal further acknowledged that there was a gap in the policy, which may have allowed drivers to take matters into their own hands. Mr Battal admitted that there was still external de-dagging carried out at the Granville site, but employees are no longer permitted to reach arms length into the barrel. Employees are provided with information, instruction and supervision to ensure that this does not occur. At the present time, there is no requirement in any policy or procedure that requires anyone else to be present while the external task of de-dagging is carried out by a driver. Mr Battal's evidence was that there is a requirement for employees not to work alone, but that is not specific to external de-dagging. It is a policy that works across all sites. 43 During re-examination Mr Battal's evidence was that he did not believe that an employee would fall into the barrel, as distinct from being drawn into it, or crawling into it. He stated that as a result of the accident, the discretion had been removed from drivers to carry out any de-dagging inside the barrel. He stated that as many steps as possible had been taken to reduce the human element and therefore the ability for a person to make a decision. Mr Battal referred to the training programs and refresher training, which are now in place. However, he observed that there is no machine that can perform the task of external de-dagging at the back of the truck. Consideration 44 In considering the seriousness of the offences, it is appropriate to set out the salient matters contained in the agreed statement of facts. Approximately two years prior to the incident, the defendants determined to outsource de-dagging the inside of the barrel. Mr Foord was verbally advised by his Transport Manager that drivers were not allowed to enter the barrel to de-dag inside the barrel. He could de-dag as far as he could reach, that is, his arm's length from outside the barrel. A pneumatic hammer, air hose compressor and a platform were available for de-dagging in accordance with the system introduced in 2002. 45 The Operations Manager was aware that trucks were being de-dagged from the platform and the Site Supervisor was aware that persons used the pneumatic hammer to clean trucks at the premises. Although the defendants had a written lock-out procedure dated 30 September 2003, this procedure was not adopted for general cleaning. 46 Mr R Reitano of counsel, who appeared for the prosecutor, conceded that the risk of being drawn into the barrel on the vehicle and being spun around was not as obvious, or foreseeable, as perhaps the risk of being in the barrel and the truck starting up. 47 Mr King stressed that the defendants had pleaded guilty on the basis of what Mr Foord said happened. 48 The defendants resisted the contention that it was obvious that Mr Foord had been drawn into the barrel, submitting that there was doubt about that contention. It was submitted that Mr Foord may have been drawn in, or he may have done something more radical, which, in the circumstances, was even less obvious. In any event, in light of the plea of guilty, it does not seem to me to be a relevant issue. 49 The most important factor in all sentencing is the objective gravity or seriousness of the offence: Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77 - 80; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. The actual or likely consequences of the offence may be taken into account in assessing the gravity of the offence: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT 90/1214, 30 June 1992). 50 Accepting that the nature of the risk was the risk of being drawn into the barrel and being spun around, such a risk was significantly less obvious, or foreseeable after the decision in 2002 to outsource the internal de-dagging of the barrel. The defendants had identified that there was a risk having employees inside the barrel and discontinued that work. However, upon this decision being implemented, it was necessary for the defendant to assess, in light of the discretion that it gave employees to de-dag inside the barrel to the length of the employee's arm, whether there was a risk of being drawn into the barrel with it rotating. Such an assessment did not occur, although it cannot be said that the risk was obvious. However, such a risk assessment would have identified, in my view, that there was a prospect of an employee being drawn into the barrel, particularly in circumstances where such an employee was working alone performing the external de-dagging work. This prospect highlights, as was acknowledged by the defendants, a deficiency in their established systems. 51 I accept Mr King's submission that it took this accident to drive home the possibility of something grave or dramatic occurring. It is this failure on the part of the defendants to take steps to ensure that a person was not dragged into the barrel at a time when it was rotating that led to the serious injuries suffered by Mr Foord and the real possibility of him losing his life. It was assumed that the system of work was safe. This was not so. In addition, no risk assessment was undertaken. 52 Despite the defendants' failure to ensure that an employee was not drawn into the barrel, the offences do not fall within the more serious class of cases that come before this Court. In relation to the first defendant, it had discontinued the internal de-dagging of the barrel in 2002. It introduced what it believed to be a safer system of work, giving employees a discretion to extend only to the length of their arm within the barrel. The safety procedures that were in operation prior to 2002 and until the incident in 2004 were clearly well established and obviously effective. In relation to the second defendant, I am satisfied it was safety conscious. Although it did not engage any employees, it was part of an elaborate system of assessment and reporting in respect of occupational health and safety. There is no suggestion that any of the plant was in any way deficient. 53 These considerations mitigate the seriousness of the offences, but do not take them into the lowest range of available penalties, as submitted by the defendants, nor, in the circumstances, do they attract an order pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. I have formed the view that the defendants do not have the requisite exceptional circumstances required for the making of such an order: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [21], [24] - [26]; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [57] - [58]. 54 Although the risk was not obvious, the system which gave the employee a discretion to place their arms within the barrel to de-dag using cleaning equipment, which included a pneumatic hammer, air hose and a compressor with the employee working alone, was deficient. The risk was avoidable by removing the discretion from employees to place their arms within the barrel. This occurred after the incident. Although this remedial action appears to be simple and straightforward, it was not that clear-cut. It required the cessation of the work by the defendant in circumstances where such work could only be carried out by human means. There is also the consideration that Mr Foord sustained reasonably serious injuries, thereby indicating the risk was also serious. 55 As to general deterrence, I consider it is appropriate in the case of both defendants to draw attention to the need for employers in the Building and Construction Industry to be constantly vigilant of the need to ensure that workers are not exposed to risks in relation to the process of cleaning the barrel and related parts of concrete trucks and that any equipment is safe when properly used for the purposes of cleaning the barrel of concrete trucks. I have therefore included an element in the penalty for general deterrence. 56 In relation to specific deterrence, I accept that these are not cases that call for the imposition of some additional, significant punishment aimed at deterring the defendants from further offending against the Act and/or for the purpose of compelling the defendants' attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. 57 The defendants have been operating since 1934 and 1970 respectively, in a notoriously dangerous industry and have no record. Both defendants have taken appropriate steps to avoid a recurrence of the offence. However, both defendants continue to operate in the Building and Construction Industry, so a small element of the penalty in each case is in consideration of the need for specific deterrence. 58 The defendants have no previous convictions under the Act. Therefore, the maximum penalty in each case is $550,000. I have considered the question of parity and it is difficult to avoid the conclusion that the terms of the objective seriousness of the respective offences and the culpability of the defendants are about equal. 59 It is therefore appropriate, in my view, that I apply the principle of consistency in punishment, or equal justice in the assessment of penalty in these matters. 60 Turning to the subjective factors, both defendants entered a plea of guilty at the first available opportunity and I am satisfied that a discount of 25 per cent is justified. Both defendants co-operated with the WorkCover Authority in its investigation and in the proceedings before the Court. The defendants have taken steps to avoid the breach recurring by removing the discretion that employees had to place their arms within the barrel. The defendants have taken an exemplary approach to occupational health and safety that warrants them being regarded as good corporate citizens. In addition, the defendants contribute to a number of charities and other community and world projects as set out in the evidence of Mr Dill. 61 In relation to the first defendant, I have decided, having regard to all the circumstances that an appropriate penalty is $50,000. In relation to the second defendant, I have decided, having regard to all the circumstances that an appropriate penalty is $50,000. ORDERS 62 The Court makes the following orders: In matter No IRC 2374 of 2006 in respect of Inspector Prasad De Silva v Boral Construction Materials Group Ltd: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $50,000 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Court's Rules. In matter No IRC 2375 of 2006 in respect of Inspector Prasad De Silva v Boral Resources (NSW) Pty Ltd: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $50,000 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Court's Rules. 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.