Industrial Court of New South Wales CITATION: Inspector Gary Mason v Inverell Shire Council [2007] NSWIRComm 81 PROSECUTOR: Inspector Gary Mason PARTIES: DEFENDANT: Inverell Shire Council FILE NUMBER(S): IRC 2338 of 2006 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - alleged breach of s 8 (2) - guilty plea - causeway repairs being made by Council - work involving employees and labour hire contracted labour - system of work involved employee holding large blocks of concrete - concrete falls while being held awaiting removal by tractor - absence of work method statement - absence of instruction, information or training regarding handling of large pieces of concrete - broken arm and crush injuries received - serious breach - general and specific deterrence considered - early plea - no prior convictions - penalty imposed HEARING DATES: 19/03/07 EXTEMPORE JUDGMENT DATE: 19 March 2007 PROSECUTOR: Mr M Cahill of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr D O'Neil of counsel SOLICITORS: DLA Phillips Fox JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 19 March 2007 Matter No IRC 2338 of 2006 INSPECTOR GARY MASON v INVERELL SHIRE COUNCIL Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2007] NSWIRComm 81 1 Inverell Shire Council has entered a plea of guilty to an amended application for order alleging a breach of s 8 (2) of the Occupational Health and Safety Act 2000. The amended application for order notes that work was being performed at Mile Creek causeway on Havelar Park Road, Inverell, and alleges that contrary to s 8 (2) of the 2000 Act, the Council failed to ensure people other than employees of the Council, and in particular, Shane Kennedy, were not exposed to risk to their health or safety arising from the conduct of the defendant's undertaking while those persons were at the defendant's place of work. 2 The particulars specified in the amended application state that on 18 October 2004 at the Mile Creek causeway the defendant failed to ensure a safe system of work for the removal of concrete slabs, in that it failed to ensure that workers remained clear of the concrete slabs whilst they were being lifted by the backhoe, and also failed to provide adequate information, instruction or training in relation to the safe removal of concrete slabs at the site. 3 It is common ground that on the amendment of the Application for Order, there was a prompt entering of a plea of guilty by the defendant. It is also significant at this point to note that the defendant Council has no prior convictions, and therefore the maximum penalty being considered in this matter is $550,000. 4 The evidence tendered before the Court in relation to this plea was an Agreed Statement of Facts, a factual investigation report prepared by Inspector Mason, bundles of photographs that assisted in understanding what occurred on this particular day, and a certificate of prior convictions. 5 In relation to the evidence for the defendant, there were two affidavits, one sworn by Mr Richard Jane, the executive engineer of Council, and the second by Mr Kenneth Beddie, Director of Corporate Services. 6 The Agreed Statement of Facts was a fairly concise document and it is sufficient to say this in relation to it: Council was performing this particular work using a combination of its own employees and employees from a labour hire company referred to in the documents as JVUM Pty Ltd. On 18 October 2004 the Council was using its employee, Mr Kirk, as a general labourer and Mr Mitchell was the maintenance foreman and Mr Toomey was a supervisor. Mr Kirk and Mr Toomey had long experience with the Council. On the same day, Mr Cauchi and Mr Kennedy were employed from a labour hire firm as general assistants. Mr Cauchi seemed to have some prior experience with the labour hire company. His duties included sign directions, road works and traffic control, and at the time of the incident he had a certificate of competency in the use of a front end loader. 7 It is agreed that prior to 18 October 2004 Council had determined that repairs were needed at the causeway, and that involved the repair of several cracks at the site by the removal of concrete and the replacement of that concrete. The initial assessment was that approximately 30 square metres of cracked concrete were required to be removed and replaced, but after some work had been undertaken, it was assessed that the defect was more extensive, and the majority of the slab on the causeway was to be removed. 8 On 29 September 2004,Mr Mitchell attended the site. He conducted a hazard survey and a risk assessment. In relation to hazards for mobile machinery and plant, Mr Mitchell ranked that as a high risk and recommended risk controls, according to the Council's safe work procedures, at a level 9 for mobile plant, 10 for operating mobile plant, and 26 for plant transport. It is noted that the loader arms of the front end loader had a safe working load at the front of 750 kilograms, and at the back, 1,500 kilograms. 9 Work ultimately commenced on 11 October 2004. Mr Toomey had been the supervisor employed by the Council since 11 October, but on 18 October he was not present, being absent at a training course. Mr Cauchi had completed a site specific risk check list document on 18 October, and on that day Mr Kirk, Mr Kennedy and Mr Cauchi were involved in the task of removing the concrete slabs. There was no supervisor from the Council that day, and Mr Cauchi, the labour hire company employee, was asked by Council to act as supervisor in Mr Toomey's absence, and to operate the front end loader. That task had previously been undertaken by Mr Toomey. Mr Kirk and Mr Kennedy, however, were not aware that Mr Cauchi was the designated supervisor that day. 10 The system of work was described as follows. Mr Cauchi was operating the front end loader to lift up concrete slabs that had been cut into sections, and to stand the concrete slabs up vertically. Mr Cauchi would then spin the front end loader around and grab the slabs from the top, using what was described as the four in one bucket, to grab hold of the slabs. Mr Cauchi would then move the slab approximately 30 metres away from the causeway, Mr Kennedy and Mr Kirk acting as spotters, to guide Mr Cauchi in moving the slab. Some of the slabs needed to be supported. Where that was required, both Mr Kennedy and Mr Kirk physically supported either side of the slab with their arms, while the slab was lifted vertically by the front end loader, and for the time that the front end loader took to turn around. Mr Kennedy and Mr Kirk would move away from the slab after giving a signal to Mr Cauchi that the top of the front end loader was in an open position over the slab. 11 During the afternoon Mr Cauchi positioned the bucket to grab hold of the concrete slab being supported by Mr Kennedy and Mr Kirk. When the bucket of the front end loader was over the top of the concrete slab in an open position, the slab started to fall, and Mr Kennedy, whose arms were supporting the slab, had his arms pinned between the inner edge of the bucket of the front end loader and the concrete slab. This concrete slab was approximately 1.5 metres high and 1.5 metres wide, 12.5 centimetres thick and weighed approximately 675 kilograms. Mr Kennedy suffered a broken left arm, a hairline fracture to his right wrist, nerve damage and loss of feeling in his left arm as a result of these crush injuries. He returned to work on light duties one week later, and is now working for another employer as a delivery driver with lifting restrictions. 12 It is agreed that prior to the work being undertaken Council did not have a work method for the removal of the concrete, and that prior to the accident, Council did not provide Mr Kirk, Mr Kennedy or Mr Cauchi with adequate instruction, information or training detailing the safe size to cut concrete slabs and safe removal of concrete slabs. 13 Following this accident, and by a document dated 29 November 2004, the Council adopted a safe working procedure dealing with the cutting and removal of concrete slabs with excavator and attachments, as well as the cutting and removal of concrete slabs with concrete saw and backhoe, or skid steer loader. The procedures ensured that the size of the concrete slabs were marked out before cutting, to ensure it was less than the safe working load of the backhoe or skid steer bucket, and that the maximum width was 1200 millimetres, to allow the four in one bucket to grab the section. Secondly, the backhoe skid steer was positioned to a safe location, ensuring staff were well clear of the concrete slab; and thirdly, while the slabs were lifted by the backhoe skid steer, all personnel were to be well clear while this procedure was being undertaken. 14 The evidence for the defendant was firstly given by Mr Richard Jane, the executive engineer. He was authorised to not only swear the affidavit, but also express the Council's remorse in relation to this incident. He gave background, not only personally as to himself and his qualifications and his position in relation to occupational health and safety, but also gave a description of the nature of the Council, which included the town of Inverell and approximately eleven small towns and villages covering an area of approximately 8,600 square kilometres, with a population of just under 16,000. He describes in that affidavit the incident, and also Council's response to the incident. Immediately after the accident on 18 October 2004, a senior projects manager was assigned the task of completing a report in relation to the incident. On the following day, there was a risk assessment of the site. On 21 October 2004, the investigation report was completed and there was a recommendation to limit the size of the concrete slabs and the formulation of a further safety document. 15 By 27 October 2004, all the workers engaged on this causeway, including the labour hire workers, were provided with training in view of the accident. The hazards were identified as I have already indicated, and on 1 November the Council provided detailed information to the WorkCover Authority, including its own investigation report. By 29 November 2004, the Council had implemented a documented standard operation procedure for the operation of cutting and removing concrete slabs with various attachments. Quite detailed evidence was given, by reference to annexures and other documents, of the system of safety involved and was said to be evidence of the Council's commitment to occupational health and safety. 16 There was a system of written safe work procedures, a system of creating a safety induction and training plan for each project, a system of workers conducting documented site specific risk assessments, a system of supervisors holding pre-construction meetings with both employees and labour hire workers, there was a mechanical plant record to ensure safety of the equipment being used at the site, and there was an occupational health and safety policy and safety committee. 17 This incident apparently occurred at a time while Mr Jane was in the course of redesigning and updating the occupational health and safety system. His affidavit referred to a number of levels in the job safety system. The first level involved site specific risk assessment; the second level involved the breaking down of the whole job into specific work activities, and identifying hazards and procedures; and the third level created a standard operating procedure for the entire work process. It was said the first and second levels of that safety system were in place prior to the incident, and there is repetition of the evidence that since the incident there has been introduced safe operating procedures as well as site safety rules. 18 In relation to occupational health and safety training, Mr Jane personally provided the training in the site safety rules to internal staff. Those training sessions occupied approximately four hours. He spoke of a key message to workers that they were craftsmen rather than tradesmen, who should be proud of their work, and who were encouraged to do it properly the first time, and do it safely. He said most Council employees had been inducted into safe work procedures that were required for their particular work activities and those safe work procedures were revisited on a regular basis. 19 There was auditing of the Council's occupational health and safety system by using an independent consultant, and also the firm Deare & Fox, who attended in September 2006 over two days to conduct an audit of the occupational health and safety management system. A number of recommendations have been implemented as a result of that activity. There was also an audit of the systems by the Roads and Traffic Authority in 2006, with the acceptance by the Roads and Traffic Authority that Council's systems complied with the New South Wales Government Construction Agency Co-ordination Committee guidelines and the occupational health and safety regulation requirements. 20 There was a role that was emphasised, and it was said to be a leading role, in helping educate other councils about occupational health and safety. There was the provision of a CD and addressing other Councils in relation to occupational health and safety, and that was detailed in Mr Jane's affidavit. There was also a section dealing with labour hire workers, two such workers being involved in this particular incident. They had general induction training for construction work. There was a notice of satisfactory assessment issued in relation to Mr Cauchi, and it was said Mr Kennedy had performed work for Council from approximately 3 April 2004. Council frequently utilised labour hire providers because of fluctuating labour requirements, particularly in relation to its capital works, their use dependent upon different projects and the amount of funding received. 21 The Council usually engaged between five to thirty labour hire workers at any one time, but nevertheless, it was emphasised that labour hire employees were not treated differently to other staff, and they were always given a "fair go" and also the chance of obtaining permanent employment. There was reference to the occupational health and safety committee, the participation of Mr Jane in the committee as the principal decision maker, and there was reference to the size of the current Council workforce being approximately 216 at the present time. It was said the Council workforce was continually undergoing training to improve the delivery of services offered by the Council. 22 In the year July 2005 to the end of June 2006, Council expenditure on approved structured training courses was nearly $250,000. There was some description of those courses. It was noted that the Council in its present form had been in operation since July 1979 and that was connected with the fact of its record of having no prior convictions. That had certain beneficial consequences for workers compensation premiums, and that material was set out in Mr Jane's affidavit. 23 In relation to the subject of contrition, Mr Jane also again expressed Council's contrition for the accident, the injuries suffered by Mr Kennedy, and noted that the Council had supported Mr Kennedy in his rehabilitation and return to full time work following the accident. Together with the labour hire employer, they were able to identify suitable duties to assist Mr Kennedy's return to work. He was for some time given traffic control duties. Mention was also made of co-operation with the WorkCover Authority. 24 The second affidavit by the Director of Corporate Services, Mr Kenneth Beddie, dealt with the way in which Council would need to deal with any fine that was imposed by the Court. It set out the limitations of Council to raise revenue imposed by legislation and dealt with a number of services to the community, its list of capital works and maintenance, and how those limited financial resources meant that quite an amount of work that needed to be done, either by way of capital works or maintenance, in effect, had to be deferred because of budgetary constraints. There were also some details given in relation to Council's contribution to charities, and its involvement in the community. I do not detail that financial information, but I have had regard to it. 25 Against that background I then come to consider the nature of this offence. I am satisfied that this is a serious offence as submitted by the prosecutor. The essential points that establish that conclusion are: the absence of a work method statement; that there was no instruction, information or training regarding the handling of large pieces of concrete; and, the fact that there was no supervisor present when manual handling of the concrete was being performed. The evidence also supported the prosecutor's submission that it was reasonably foreseeable that there was a risk of injury in the way in which this work was to be performed. Having workers holding up unstable and large weighty pieces of concrete, while the backhoe was manoeuvred, was, I think, leaving these workers in a position where it was foreseeable that an incident of this nature was likely to occur. The foreseeability of that risk adds to the seriousness of the offence. 26 Of course, Council, although acting promptly, took really what was no more than commonsense steps to address the risk identified, and that was mainly to ensure or direct that workers were to keep clear of these reduced slabs of concrete when they were being manipulated, for the purpose of having them picked up by the front end loader, and that both the employees and the spotters were to stand clear. 27 In relation to general deterrence and specific deterrence, both aspects require consideration here. In relation to specific deterrence, I regard its role as being reduced in setting an appropriate penalty, because of the very good record of the defendant, its prompt action in addressing the risk, and one suspects the likelihood that if a supervisor had been present, this accident may well not have happened. Those matters cause me to give a reduced role to specific deterrence in relation to this offence. 28 The subjective factors are numerous. This Council in its present form has been in existence since 1979. It has a sizeable workforce. Undoubtedly, a number of them are employed in clerical or administrative duties, but they are also involved in tasks which carry with them risks such as occurred on this particular day. I regard that record as being a good record. There is also evidence of the Council being a good corporate citizen. It has co-operated with the WorkCover Authority, which is an important matter to be taken into account. It has expressed its contrition not only by entering an early plea, by authorising Mr Jane to give evidence of that contrition to this Court, but also in relation to its response to the accident by taking steps that addressed the risk, and also the steps taken to help with the rehabilitation of Mr Kennedy. All those matters serve to mitigate the penalty. 29 I accept that this was an early plea. I think it is appropriate that in this case the penalty should be reduced by 25 percent in recognition of that early plea. As I have indicated, there was some evidence addressed to the financial condition of the council. Section 6 of the Fines Act very generally requires the Court in exercising a discretion to fix an amount of fine, to consider such information regarding the means of the defendant as is reasonably and practically available for the Court to consider. This defendant is well placed to put considerable material before the Court. It has chosen to put certain material before the Court and it does so, as I understand its counsel, not to suggest that it has no capacity to pay, but so that the Court can understand that its financial circumstances are such that the imposition of a penalty means that its capital works and maintenance programs need to be adjusted. I think Councils in today's modern world have to factor in the possibility of legal proceedings such as these, and make some allowances. I nevertheless take into account what has been put by way of the material in Mr Beddie's affidavit, but I think ultimately much of the Council's concerns will be met by an application for the payment of the fine I intend to impose by way of instalment. It seems to me that application would have significant merit. That matter is at least, in the first instance, a matter for the Registrar. 30 Having considered all these matters, I make the following orders: 1. The defendant is found guilty of a breach of s 8 (2) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 2338 of 2006 to which it has entered a plea of guilty. 2. The defendant is fined the sum of $60,000 with half that sum to be paid to the prosecutor by way of moiety. 3. The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. 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.