Industrial Court of New South Wales CITATION: Inspector Childs (WorkCover Authority of New South Wales) v State of New South Wales (Department of Services, Technology and Administration [2009] NSWIRComm 202 Inspector Barry Childs (Prosecutor) PARTIES: State of New South Wales (Department of Services, Technology and Administration) (Defendant) FILE NUMBER(S): IRC 1446 of 2008 CORAM: Haylen J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 10(1) - guilty plea entered - large water reservoir project managed by Department - formwork collapses during pour of concrete roof - scaffolding and formwork unsafe - whole of formwork structure fails throwing workers into the reservoir - two workers killed and three received serious injuries - failure to ensure formwork safe - failure to undertake safety audits and to obtain certification prior to concrete pour - failure to supervise project manager who attended site - failure to provide occupational health and safety training and instruction - serious breach established - Department a prior offender - general and specific deterrence considered - subjective factors significant - long established Department with generally good safety record and comprehensive safety systems - widespread review of safety system following accident - numerous steps taken to prevent recurrence of accident - contrition and responsibility demonstrated - Department a good corporate citizen - penalty imposed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, 21A(3)(i) Occupational Health and Safety Act 2000, s10(1) HEARING DATES: 20 October 2009 DATE OF JUDGMENT: 27 November 2009 Mr M Cahill of counsel (Prosecutor) SOLICITORS: WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr P Thompson (Solicitor) (Defendant) SOLICITORS: Sparke Helmore Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J Friday, 27 November 2009 Matter No IRC 1446 of 2008 INSPECTOR BARRY CHILDS (WORKCOVER AUTHORITY OF NEW SOUTH WALES) v STATE OF NEW SOUTH WALES (DEPARTMENT OF SERVICES, TECHNOLOGY AND ADMINISTRATION) Prosecution under s 10 (1) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 202 1 The Lake Cargelligo-Tullibigeal Water Supply Augmentation Project ("Lake Cargelligo Project") involved the construction of a 4 megalitre water reservoir some 300 metres off Uabba Street, Lake Cargelligo. The Department of Public Works and Services ("DPWS") was responsible for the management of the construction of the water reservoir, undertaking the project management role on behalf of the Department of Land and Water Conservation and the Lachlan Shire Council. The construction of the reservoir was to improve the water supply to the townships of Lake Cargelligo and Tullibigeal. On 22 October 2002, formwork had been erected to allow the pouring of a concrete roof for the reservoir. During the course of the concrete pour of the roof slab, the falsework failed and the whole of the formwork structure collapsed. With the collapse of the formwork structure, the working deck and all persons working on it fell into the reservoir. At the time of the collapse the following were performing tasks as indicated: Mr Beytell (sole office holder of BGA Pty Ltd, the principal contractor for the design and construction of the reservoir) was standing on the formwork deck directing the pour; Mr Storr (an employee of Area Concreting Pumping, the supplier of the concrete pump truck) was located on the catwalk attached to the jump form and from that position Mr Storr was operating a concrete pump that was pumping concrete on to the formwork to form the roof of the premises; Mr Abel (a labourer employed by P & B Serena) was screeding concrete on the formwork deck in accordance with Mr Beytell's instructions; Mr Craig McLeod was on the formwork operating a vibrator; Mr Oagile Malothane was on the formwork deck shovelling the concrete; and, Mr Scott Wood was on the formwork deck, acting as a linesman on the concrete pump line and directing placement of the concrete. As a result of the collapse of the formwork deck, Mr Beytell and Mr McLeod received fatal injuries. Mr Wood, Mr Abel and Mr Malothane received serious injuries. 2 Following an investigation by the WorkCover Authority of this accident, a number of prosecutions were commenced under the provisions of the Occupational Health and Safety Act 2000. One such prosecution was brought against the State of New South Wales (Department of Commerce) as the statutory successor to the DPWS. That prosecution continues against the most recent successor to that Department being the Department of Services, Technology and Administration ("DSTA"). 3 Although the Department was charged with a breach of s 8(2) of the Occupational Health and Safety Act it was also charged, in the alternative, with a breach of s 10(1) of the Act. On the first return date of the order and summons, the Department entered a plea of guilty to the alternative charge brought under s (10)(1) of the Act. The s 10(1) breach, to which the Department entered its plea of guilty, was particularised as follows: IN THE ALTERNATIVE The defendant, being a person who had control of premises which were used by the people as a place of work, namely a construction site at which a 4 megalitre water reservoir was under construction as part of the Lake Cargelligo-Tullibigeal Water Supply Augmentation Project, which site was located approximately 300 metres of Uabba Street, Lake Cargelligo in the State of New South Wales which was used by people as a place of work, in particular Anton Beytell, Craig McLeod, Michael Abel, Scott Wood, Oagile Malothane and Ralph Storr on 22 October 2002. FAILED TO ensure the premises was safe and without risks to health in circumstances in which: 1. the subject premises were not used only by the employees of the defendant; 2. the subject premises were not occupied solely as a private dwelling; and 3. the subject premises were controlled by the defendant in the course of a business or undertaking of the defendant contrary to section 10(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are as set out above with respect to alleged breach of s (2) of the Act. (a) the defendant failed to ensure that the scaffolding access tower, erected on the outside of the water reservoir at the site was safe and without risk to health; (b) the defendant failure to ensure that the concrete formwork erected on the site was safe and without risk to health; (c) the defendant failed to undertake adequate safety inspections at the site; (d) the defendant failed to undertake any safety audits at the site; (e) the defendant failed to ensure that the formwork erected with respect to the forming of the concrete roof of the reservoir was properly certified prior to the commencement of the subject concrete pour; (f) the defendant failed to properly supervise its employee, Mr Ooi, in his role as the Superintendent's Representative under the contract for the construction of the subject water reservoir; (g) the defendant failed to properly supervise Mr Ooi in his role as the project manager with respect to management of the construction of the subject water tower; (h) the defendant failed to provide proper training and instruction with respect to the superintendence of occupational health and safety to Mr Ooi in his role as the Superintendent's Representative under the contract for the construction of the subject water reservoir; (i) the defendant failed to provide training and instruction with respect to the project management of occupational health and safety to Mr Ooi in his role as the defendant's project manager with the construction of the subject water tower. As a result of the abovementioned failures, Craig McLeod, Anton Beytell, Michael Abel, Scott Wood, Oagile Malothane and Ralph Storr were placed at risk of injury and both Craig McLeod and Anthony Beytell received fatal injuries. 4 On the hearing to receive evidence and submissions on sentence, the prosector tendered a lengthy Statement of Agreed Facts being a document running to some 141 paragraphs. In view of the extensive documentation put before the Court by both parties, the Agreed Statement of Facts appears as an annexure to this judgment and allows the nature of this case to be put into context. In addition to the Agreed Statement of Facts, the prosecutor also tendered a bundle of documents contained in two lever arch folders containing some 42 individually identified documents. Those documents included the following: specifications for the Water Supply Augmentation Project; an engineering report on the formwork collapse at the site on 22 October 2002; a number of photographs taken during construction of the water reservoir following the accident; a number of documents used by the Department, including its occupational health and safety and risk management system guidelines, its safety management manual and the construction safety management procedures, together with a number of memoranda; a review of the adequacy of project occupational health and safety risk management plans, a checklist for projects over $3m, a variety of inspection circulars and guidelines and reports, including minutes of site meetings, a 29 October 2002 memorandum requiring a review of safety procedures on all building sites; the BGA Pty Ltd integrated management system and safety management plan site safety rules; the WorkCover Code of Practice for pumping concrete (1994) and formwork (1998); and, a number of Australian/New Zealand Standards being AS/NZS 4576: 1995 - Guidelines for scaffolding; AS/NZS 1576.1: 1995 - Scaffolding Part 1: General Requirements; AS/NZS 1892.5: 2000 Portable ladders - Part 5: Selection, safe use and care; and AS/NZS 3905.2: 1997 - Quality system guidelines Part 2: Guide to AS/NZ Standards ISO 9001, 9002 and 0993 for construction. The prosecutor also tendered a certificate of prior convictions showing that the present defendant (under its various titles over the years) had three previous convictions. In November 1999, the predecessor Department was found guilty of a breach of s 15(1) of the Occupational Health and Safety Act 1983 and the Chief Industrial Magistrate imposed a penalty of $1500. In November 2002, a predecessor Department was found guilty of a breach of s 16(1) of the Occupational Health and Safety Act 1983 and a fine of $119,000 was imposed by the Commission in Court Session. In 2004, a predecessor Department was found guilty of a breach of s 15(1) of the 1983 Act and a fine of $94,250 was imposed by the Commission in Court Session. 5 The evidence for the defendant was constituted by two affidavits sworn by Mr Brian Baker, Deputy Director-General, Department of Services, Technology and Administration. The first of those affidavits ran to 290 paras, covering 67 pages with the second affidavit clarifying a number of issues and running to 7 pages. At the time of giving his evidence, Mr Baker was the Acting Director-General of the Department. He spoke of his personal history and having 30 years experience as a civil engineer in the development and delivery of major infrastructure projects, including public infrastructure. He led and provided strategic direction for the Office of Public Works and Services and occupational health and safety was one of his key accountabilities. Mr Baker explained how, through various means, he was able to review safety performance and set strategic direction for safety management. This was achieved by chairing the monthly safety forum and convening monthly meetings with direct reports to review and discuss the performance of the Office in a number of areas, including occupational health and safety. The senior project manager provided monthly management information and analysis regarding occupational health and safety incidents, including near misses that involved staff or construction contractors together with an analysis of the incidents in relation to causes and trends, information about the lost time injury frequency ratio for contractors, information about audit and reviews of the Offices' safety management system and also in relation to construction contractors. There were also recommendations for improvement. The senior project manager was required to convene an executive safety committee and a safety management review and improvement team that undertook detailed operational analysis of the Offices' occupational health and safety performance. 6 Mr Baker was also a member of and received reports on a regular basis from the construction consultation committee, being a forum of New South Wales Government agencies who carry out construction work. The committee developed, implemented and promoted improved practices and standards in a streamlined approach to Government construction procurements. The reports from this committee addressed a range of matters that were relevant to the construction sector including occupational health and safety. Members of the committee, including his Office, shared information relating to contract or performance reports. Those reports were used in the tender process, especially in relation to contractors who had not previously been used. Mr Baker was directly and immediately briefed on every safety incident where staff or a construction contractor required medical treatment or involved a serious near miss. He was personally briefed about the nature of these incidents, the health of any injured person, actions that the Office was taking in response to the incidents (both immediate and systemic) and where it involved a construction contractor, the actions the contractor had taken in response to the incident. He required follow-up reports including incident reports that were to be reviewed, discussed and evaluated. Mr Baker undertook at least four site visits each year, speaking to Departmental staff on site about safety management at the site. During such visits Mr Baker personally looked for safety risks on site, specifically in relation to how the risks were being managed and if not confident about the safety of the site, would personally speak to the contractor on site. 7 The Department of Public Works was created in the 1870s and in 1995 its name was changed to the Department of Public Works and Services. Mr Baker spoke about the abolition of that Department in 2003 and how a restructure brought about the functions being performed by the Department of Commerce. In July 2009 all the branches of the Department of Commerce, including the Office of Public Works and Services, were removed from the Department of Commerce and added to the newly established Department of Services, Technology and Administration. The Department of Commerce was abolished. The Office of Public Works and Services currently employed approximately 1200 people who were involved in the planning, design and project management of the construction and maintenance of public buildings and other public infrastructure across New South Wales. Eight hundred of those employees were specifically employed in project management of infrastructure projects and the management of construction and contract. Mr Baker provided examples of major projects that the OPWS were constructing or have been involved in, nominating multi-million dollar projects in various locations including the $2.8B New South Wales Department of Education and Training "building the education revolution programme" that was funded through the Federal Government's stimulus grant. Mr Baker said that, at any one time, the Office was involved in approximately 1,000 contracts dealing with construction work and in the last 12 months the estimated dollar value of such contracts was approximately $1B. 8 Between 1980 and 2000, the staff of the OPWS was reduced from over 4,000 to just over 2,500 and the OPWS now employed approximately 1200 staff. In recent years the OPWS had increasingly focused on managing projects for clients and engaging external private sector construction contractors to undertake construction work. 9 In relation to the incident that occurred on 22 October 2002, Mr Baker said that BGA Projects Pty Ltd ("BGA") had been engaged as the principal contractor and was the company designing and constructing the reservoir at Lake Cargelligo. BGA had been engaged by the previous DPWS on behalf of its client, the Lachlan Shire Council. As principal contractor, BGA was responsible for the provision or creation of the systems of work for the project and the carrying out of all work. The DPWS acted in the role of project manager on behalf of Lachlan Shire Council. 10 A Coronial Inquest into the deaths of Mr Beytell and Mr McLeod took place in 2005 and 2006, with the Deputy State Coroner handing down her findings in late September 2006. In relation to the Coronial Inquiry, Mr Baker stated: 37. The following possible reasons for the collapse were outlined by Senior Deputy State Coroner Jacqueline Milledge in her report dated 25 September 2006: · [Anton] Beytell did not have sufficient formwork/scaffolding on hand for the construction; · (Anton Beytell's] dangerous practice was to remove components [of scaffolding] from the lower parts of the formwork to use in the upper parts; · [Anton Beytell] had insufficient components to complete the formwork so would often weld pieces together. This made the components structurally weak and therefore unsound. · There was no diagonal bracing to offset the effects of buckling and to support horizontal loads; · Inappropriate couplers were used as formwork connectors. · The formwork was also erected in bays that were too large to safely accommodate the loads that were being poured. 38. The Department acknowledges that it did not adequately monitor BGA to ensure that BGA had: a. ensured that the scaffolding access tower erected by BGA on the outside of the water reservoir at this site was safe and without risks to health; b. ensure that the concrete formwork erected by BGA on the site was safe and without risks to health; and c. ensured that the formwork erected by BGA with respect to the forming of the concrete roof of the reservoir was independently certified prior to the commencement of the concrete pour. 39. The Department also acknowledges that it did not: d. undertake adequate safety inspections or safety audits at the site; e. adequately supervise Kock Ooi (the DPWS's Superintendent's Representative and Project Manager of the Lake Cargelligo Project) in his roles as both the Superintendent's Representative and the Project Manager; and f. provide Mr Ooi with adequate training and instruction in relation to OHS in his role as both the Superintendent and Project Manager. 11 At the time of this incident, the Department's safety systems were those applicable to projects valued at less than $3M. The Department's safety management system was accredited as complying with the New South Wales Government's Occupational Health and Safety and Rehabilitation Management System Guideline, 3rd ed. Mr Baker described the Department as having a comprehensive system of contractor management at the time of the incident. The main features of the system were: identification of hazards prior to tender; inclusion in the contract of identified hazards; a contractor pre-qualification panel so that requirements were met, including in relation to occupational health and safety management; referee checks on performance of contracts as part of the tender review; review of the adequacy of contractor documentation; site inspections and meetings; internal auditing of contractor systems and safety management plans and contractor safety documentation; monitoring and awarding on contractor safety performance; and, communication and consultation with contractors in relation to safety issues. Mr Baker's affidavit annexed a number of documents that formed part of the contractor management system by which these various issues were addressed. 12 Mr Baker acknowledged on behalf of the Department that, although it had a comprehensive contractor management system at the time of the incident, the system was not "comprehensively implemented" for the Lake Cargelligo Project. The Department acknowledged that it did not undertake a defined process of identifying the specific hazards associated with the project pre-construction. As a consequence it did not include a list of identified hazards in the project contract. 13 The third edition of the New South Wales Government Safety Guidelines required that tenders for projects valued at $3m or more or projects valued at less that $3m where the Department determined that the work had a high safety risk (or interfaced with other projects with a high safety risk) or was otherwise a safety sensitive project, would only be accepted from tenderers with an accredited corporate safety management system. The guidelines also required the preparation of an acceptable project safety management plan. The guidelines provided that, for all other projects, a condition of the contract would be the preparation and submission of an acceptable site specific safety management plan and safe work method statements or, if the project was classified as low risk, the preparation and submission of safe work method statements only. 14 As to this combination of matters laid down by the guidelines, Mr Baker stated: 49 The DPWS did not determine that the Lake Cargelligo Project involved a high safety risk, interfaced with other projects with a high safety risk or was otherwise sensitive in terms of OHS&R. Accordingly, the DPWS required and was provided with a Site-specific Safety Management Plan by BGA but in accordance with the DPWS practice at the time, the DPWS did not require that BGA had an accredited corporate OHS&R Management System or an acceptable project OHS&R Management Plan. 50 The Department acknowledges that it did not ensure that the risk associated with the Lake Cargelligo Project were adequately managed. 51 The Department also acknowledges that, although it requested the provision of Safe Work Method Statements for the Lake Cargelligo Project from BGA when these were not received, it did not pursue enforcement of this requirement 15 Mr Kock Ooi was the superintendent's representative for this project. After receiving BGA's site specific safety management plan as part of its integrated management system, Mr Ooi undertook a review of the site safety plan using the Department's checklist review of the adequacy of safety management. Mr Ooi noted that BGA's site safety plan did not include site safety rules and other relevant information. In late May 2002 he sent an email to BGA requiring further information as well as the site safety rules. BGA was also asked to amend relevant sections of their site safety plan/project management plan and provide a copy of the amended plan or relevant amended sections. Further facsimiles passed between Mr Ooi and BGA and in June 2002 BGA provided further information as requested, including the site safety rules. In late June 2002 Mr Ooi again requested a copy of the amended site safety plan/project management plan and in late July BGA provided an updated project management plan. The new material provided by BGA consisted of two new pages. Mr Baker stated that the Department acknowledged that it did not adequately review BGA's site safety plan in that it did not identify the failure of the site safety plan to identify and address control measures in relation to hazards associated with the project. 16 Mr Ooi had obtained his B.Eng (Civil) (Hons). from the University of Malaya in 1978. In relation to occupational health and safety training, he had attended a training course of 1.5 days for the construction industry (the green card course), a one-day course on safety on construction sites and a one-day course dealing with the Department's Occupational Health and Safety Induction Intermediate course. At the time of the incident Mr Ooi had been employed in that role for 7.5 years. Prior to joining the Department he had worked on similar construction projects as a civil engineer in Malaysia between 1978 and 1994. Immediately prior to the Lake Cargelligo project, between 2000 and 2002, Mr Ooi was part of the project team for the $30m Ben Chifley Dam project. 17 At the time of the incident the Department employed safety officers to assist in the management of safety on Departmental projects across New South Wales. No such officers were located in the Department's Riverina-Western Region at the time of the incident but safety officers in other offices undertook audits and provided advice in relation to projects in the Riverina - Western Region. At the time of the incident Departmental staff were regularly informed of safety related issues and through the issuing of circulars, were reminded of Departmental procedures and requirements in relation to safety and contractor management and notified of updates in the Department's policies and procedures. 18 In relation to supervision, Mr Baker said that the Department's Riverina - Western Region covered an extensive area and operated through a number of small offices to allow some proximity to the vast number of communities throughout that region. As a result, supervisors could be in separate offices to staff they were functionally supervising. Prior to the incident Mr Evans, the regional projects co-ordinator, supervised Mr Ooi and although they were based in different offices, they communicated regularly by telephone and met from time-to-time. Mr Ellison, the regional contract superintendent, also provided guidance on more complex contractual matters and the quarterly contractors' performance reports. Mr Ellison was based at a different office to Mr Ooi and Mr Evans. At the time of the incident, both Mr Ellison and Mr Evans had a degree in B.Eng.(Civil) and held the General Construction Occupational Health and Safety Induction Certificate. In 1999 Mr Ellison and Mr Evans had completed the Project Safety Management Work Activities Safety Induction Training Course. In June 2002 Mr Ooi was subject to a formal review in relation to his management of the Lake Cargelligo project and that review was conducted by Mr Evans. 19 Mr Baker's affidavit evidence then dealt extensively with the safety management system following the incident and the changes made to prevent a recurrence of this type of incident. In doing so, it was noted that the Department operated a management system that was certified to comply with the Australian Standard for quality management systems requirements. The attention to safety and the requirement to improve safety measures was spelt out by reference to: the Department of Commerce Corporate Plan 2006 - 2010; the OPWS Business Plan 2009 - 2012; the commitment of senior Departmental management to safety leadership and how that was to be achieved; the Department's role in implementing initiatives and the New South Wales Government's response to the 2005 safety summit; the use of the Deputy Director -General's safety forum indicating the manner in which it operated; the operation of the OPWS Executive Safety Committee; the operation of the OPWS Safety Management Review and Improvement Teams; group, regional and branch meetings; the use of Departmental safety committees and forums; the use of safety consultative committees; the manner in which safety consultation and communication was carried out; the monitoring of safety performance through the safety reporting tool with an explanation of how that tool was used; the use of safety improvement programmes, including the construction safety improvement programme; the 2005 Departmental review; managing contractors through the tendering process and the operation of the contractor pre-qualification panel; contractor management procedures; project reviews; occupational health and safety management monthly reporting and site meetings; contractor performance reporting; independent engineering certification of formwork; contractor forms; audits and inspections; the audits of contracts valued at over $1m and the review of contracts valued at under $m; and, the maintenance of safety awareness through site visits and audits of safety management systems. 20 In late November 2005, following a review of the effectiveness of measures introduced in response to this incident, the Department held a full day workshop with its senior managers to discuss safety management and identify areas for improvement. Mr Baker said that the Department also demonstrated safety leadership through participation and external safety forums and initiatives. The Department was a participant in the 2002 and 2005 New South Wales Workplace Safety Summits with Mr Baker personally attending the 2005 Summit. 21 In late October 2002, in an immediate response to the incident, the Department issued a circular introducing a new requirement to strengthen the safety management procedure. That circular drew attention to the high risk of the erection of concrete suspended slabs and that risk required a standard approach to be introduced for all project management group contacts. The regulation obliging a structural certificate from the employer usually meant that a certificate would come from the formwork contractor or on smaller contracts, the principal contractor. They were required to comply with this responsibility. In this high risk area, the project management group needed to satisfy itself that the obligation was being met and had to request evidence from the principal contractor that they were meeting their legal obligations and ensuring safe work practices by the their sub-contractors in the erection of formwork. This was to be addressed by group staff including a "Hold Point" in the inspection and test plan. A contractor was to provide the Department with a copy of a conforming structural certificate and that had to occur before the concrete pour commenced. There had to be evidence that the certifying engineer was a qualified engineer as defined under the regulations. These new requirements were to be introduced immediately in all new contracts and on existing contracts. The project management group were to request and receive confirming structural certificates for all works falling within the relevant definition in the regulations. These requirements were also strengthened by a circular issued in March 2003 relating to changes in the Department's standard contract clauses. These clauses now required the engineer providing certification of the formwork to be independent of the principal contractor and their formwork/concreting sub-contractor. 22 In October 2002, in response to the incident, a comprehensive programme was developed known as the Construction Safety Improvement Programme. This Programme included changes in procedures, contract clauses and training for all Departmental staff. Mr Baker spoke of six strategies being implemented in 2003. They included a review of management responsibilities, reporting responsibilities and standard contract safety provisions and procedures to ensure they were appropriate and if necessary, improved; Construction Safety Co-ordinators were appointed to all regions and branches where they had not already been appointed and specialists were to undertake audits, inspections and provide training and support to project managers; a Construction Safety Network was established to meet monthly to allow sharing of information and enable staff to learn from the experiences of others; use of the WorkCover Safety Design Tool and Construction Hazard Assessment Implication Review was promoted; the use of the Contractor's Safety Management Plan template by contractors and sub-contractors was promoted; and, an extensive training programme for the Occupational Health and Safety Act 2000 and Occupational Health and Safety Regulation 2001 and the Department's safety management procedures was conducted for all 800 project management staff. 23 Mr Baker explained the operation of the pre-qualification system for construction contractors and the Department recommended those pre-qualified contractors to its clients. Pre-qualification required contractors to demonstrate an effective management system and capability and a sound track record of performance. For the contracts valued over $1m they had to demonstrate the possession of a corporate safety management system accredited by a New South Wales Government Agency as complying with the requirements of the New South Wales Government safety guidelines. To continue pre-qualified status, contractors had to demonstrate continuing satisfactory safety management in relation to its contract and unsatisfactory safety management led to review and ultimately could lead in a reduction, suspension or complete exclusion from further tendering opportunities. The Department conducted best practice in construction forums on a regular basis and they were attended by contractors accredited under the pre-qualification and best practice accreditation scheme. The Department currently had over 500 contractors on the pre-qualification panel. Contractors also had to provide the project manager with a monthly safety management report demonstrating the implementation of their own safety management plan. Those reports were to be reviewed by the project manager at site meetings with the contractor and the project manager to complete a review checklist. Non-compliance with safety management led to the project manager issuing a site instruction requiring rectification of the breach. 24 In relation to collaboration with WorkCover, Mr Baker said that the Department attended bi-monthly inter-agency meetings with WorkCover at a senior management level to discuss issues, to identify emerging risks and to undertake joint initiatives as well as sharing information on a collaborative basis. These meetings began in 2001 and were held on a voluntary basis with the aim of continuing to improve safety throughout the Department's activities. 25 In 2004 and 2005, the Department and WorkCover conducted joint reviews of four major Departmental projects with focus on the implementation of the Department's safety management systems. These joint reviews proved to be productive and in late 2005, the Department undertook its own detailed review of its contract requirements and procedures and its safety management system using observations from WorkCover and other materials. As part of the review, all day workshops for all Department senior management were held in November 2005 to consider how the system could be improved. The Department substantially revised its approach and introduced significantly improved contractual and procedural requirements in 2006. 26 In furtherance of the Department's commitment to provide appropriate trading and guidance to its staff, Mr Baker referred to the variety of ways in which the staff were informed about safety procedures. In this connection he referred to the Department's intranet based project management programme entitled "The Roadmap". After the incident, the Roadmap was introduced in 2003 and was able to be utilised by staff every day to effectively manage projects. Staff were provided with training in the use of the Roadmap and it was part of their induction. The Roadmap was available at every site in New South Wales and enabled easy access by project managers to a wide range of safety information, including the project details. The Roadmap operated to required regular reviews during its four phases and, at particular stages, the project manager referred to documents and information that may be needed to manage the project. There were steps that required scheduled project reviews. When the project manager reached a step in the Roadmap where a supervisor must review and sign off on their work, the system set out a clear "stop sign" stating: "YOU MUST HAVE SENIOR MANAGEMENT APPROVAL TO PROCEED". During the course of the hearing officers of the Department demonstrated the Roadmap to the Court. 27 In addition to the Roadmap, Mr Baker gave details of the training courses available to staff, including refresher training. Between May and October 2008, the Department conducted 10, 2-day training courses in New South Wales regional centres for approximately 235 construction contractors, Local Government representatives and other participants with the purpose of promoting and encouraging "upskilling" of contractors in relation to safety. The courses were provided free of charge by the Department. In 2003/2004, all Departmental project staff were provided with full-day training in relation to working at heights and scaffolding awareness. The Department in 2007/2008 again provided safe working at heights training. From 2006 to 2009, the Department provided all 800 staff with training in relation to OPWS project safety management procedures. Each new employee received induction training when commencing work and Mr Baker provided details of that programme. 28 Mr Baker also dealt with the Department's standing and reputation with large companies within the industry. He said that the Department had a good relationship with these companies and was regarded as being a client who developed and implemented safety initiatives. He gave examples of developing safety initiatives in conjunction with Leighton Contractors in relation to a particular project. To improve and influence safety in the construction industry in a positive way, the Department liaised closely with employer associations such as the Master Builders' Association, the National and Electrical Contractors' Association and the Civil Contractors Federation as well as other Government agencies and unions such as the Construction, Forestry, Mining and Energy Union. 29 The incident at Lake Cargelligo demonstrated to the Department that, although it had a comprehensive safety management system, some elements of the system were not "sufficiently robust" and the Department had not adequately implemented its safety system. In recognition of this situation, a number of significant improvements had been made since the incident as part of continuing improvement and specifically in response to the incident. Mr Baker identified the most significant improvements as follows: · Substantial review and revision of the Department's OHS Management System: The Department asked WorkCover to participate in joint reviews in relation to how the system was being implemented. These reviews were conducted in 2004 and 2005 with the State Co-ordinator - Systems, Audit Management Unit leading the review in 2005. Using the observations of WorkCover, in the second half of 2005 the Department carried out its own review of its OHS Management System for the project management of its client's construction projects to determine if its OHS Management System was being implemented in a consistently effective manner. The findings were debated at a full day workshop on 28 November 2005 attended by the Group General Manager, Project Management, the Regional and Branch Managers and other senior managers. The review focussed on understanding and defining the Department's responsibilities for safety management in relation to its clients and the contractors who successfully tender for Departmental projects so that these responsibilities are clearly stated and understood. As a result of this review, the OHS Review Team developed improvements to the planning and tender review processes and introduced a greater focus on the requirement for contractors to demonstrate to the Department that they are implementing sound and effective safety management. These improvements were reviewed by the Procurement Team and endorsed by the Group General Manger and Regional and Branch Managers. In February 2006, the Department made changes to its contracts with clients and contractors and to its project management and contractor management procedures. The aim of the changes was to make further improvements to safety management on projects with which the Department is involved. The Department then provided its staff with training, conducted briefings with clients and contractors and reported to WorkCover through the WorkCover/Department of Commerce Interagency meetings in relation to these improvements. The Department has been implementing these changes through 2006 to date with monitoring and auditing undertaken through Project Reviews, audits and reviews and management review by the Regional and Branch Management Teams, the Safety Management Review and Improvement Team and the Executive Safety Committee. · Introduction of the Construction Safety Improvement Program: Using the findings and results from the November 2002 senior managers' workshop, a Construction Safety Improvement Program was developed and implemented in 2003 and 2004. · Strengthening of project risk assessment and tender review processes ( Preferred tenderers for projects valued at under $1 million are now required to provide additional information demonstrating satisfactory OHS performance on three recent projects. The implementation of the tendering process is monitored and evaluated by a team of senior specialist contract and procurement managers who make up the Procurement and Contract Management Improvement Team. · Introduction of additional supervisor review and sign off. ( Supervisors of Project/Contract Managers are now required to review and sign off on the 'Pre-Start Review of the Adequacy of Safety Management Plans' which is completed by the Project/Contract Manager as part of their review of the contractor's Site Specific Safety Management Plan. The tender recommendation that a preferred tenderer's OHS performance has been satisfactory is reviewed and signed by the supervisor of the Contract Manager/Project Manger undertaking the review. · Introduction of standard monthly project reviews: In November 2005 a standard Project Review form and process which represents a consistent minimum approach was introduced. Project Reviews are carried out in relation to every project on a monthly basis by Department staff and involve a review and discussion between a supervisor and project staff member about the main issues impacting on the achievement of the project's outcome. Included in this review and discussion is whether the project is being managed in an effective manner, whether the Departmental procedures, policies and practices are being followed and whether any staff developmental needs are being identified and assessed. · Introduction of the Roadmap, the OPWS' intranet-based project management program. · A strengthening of the Department's management review (including the introduction of the Deputy Director-General Safety Forum) and commitment to safety leadership. A substantial increase in the number of Project Safety Advisors employed by the Department. The employment of additional Project Safety Advisors was an outcome of the Construction Safety Improvement Program. The increase in the number of Project Safety Advisors means that at least one Project Safety Advisor is based in each office or branch. In addition, the Project Safety Advisors formed the Safety Management Review and Improvement Team. This Team meets on a monthly basis to enable the sharing of information and to enable all staff to learn from the experiences of each other and to develop a consistent approach to safety management within the Department. · The reiteration to all OPWS staff of the requirement that formwork be certified by an independent structural engineer. This was reiterated through PMG Circular No 2003/03 issued on 10 March 2003. This requirement was also introduced into all new Departmental contracts. · Provision of extensive training to all Departmental staff. Extensive training has been provided to all Departmental staff in a number of areas, including in relation to the OHS Act and OHS Regulation, reviewing safety management plans, reviewing Safe Work Method Statements, safely working at height and in relation to the changes to its contracts with clients and contractors and to its project management and contractor management procedures. Some of this training was provided as part of the Construction Safety Improvement Program. In particular, OHS risk management training for supervisors and managers was provided in 2003-2004, 2006 and 2008. Over 430 Departmental staff attending this training. · Introduction of audits of contracts valued at over $1 million and reviews of contracts valued at under $1 million. · Introduction of an independent assessment conducted by Project Safety Advisors of how safety is being managed on site. As part of this process, Project Safety Advisors reconcile actual activities occurring on site with the safety management system and identify areas where systemic changes are needed. · Annual auditing of OPWS' OHS procedures. The implementation of OPWS's OHS Procedures is reviewed though an annual audit program with advice and reports provided to the region and to the OPWS Executive Safety Committee. · The introduction of auditing of the implementation of the Department's OHS Management System. 30 In speaking of the Department's activities to raise the standard of safety management on all projects, reflecting on the Department's citizenship, Mr Baker mentioned that, in 2007, the Department had signed a memorandum of understanding concerning noise management on construction sites, an initiative of WorkCover. The Department also participated in a range of initiatives aimed at reducing hearing loss suffered by construction workers. Client surveys indicated that the Department ensured all safety requirements were met on their projects. Between 2005 and 2009, the lost time injury frequency ratio varied between 1.9 to 3.4 when the same ratio for the construction industry in New South Wales was over 16 from 2006 to 2008. 31 The Department employed apprentices and promoted apprenticeship employment in the construction industry. It currently employed 29 apprentices and a further intake was due in September 2009. The Department required contractors for contracts valued at more than $1m to implement training management plans having a minimum of 20 per cent of skilled work being carried out by apprentices, including indigenous apprentices. Employees were encouraged to pursue other studies through study leave and employees were provided with access to employee assistance programmes. The Department participated in the Global Corporate Challenge encouraging participations to record their daily walking activity levels with the aim of walking 10,000 steps per day. It had sponsored the 2009 National Association for Women in Construction, NSW/ACT Awards for Excellence and had supported that Association by organising field days. There had been participation in charity programmes such as Red Nose Day and Jeans for Genes Day. Mr Baker spoke in some detail about the employment and training opportunities for Aboriginal and Torres Strait Island Australians and how the Department worked closely with the Department of Aboriginal Affairs and other clients to promote Aboriginal employment. In relation to the Department generally, Mr Baker also spoke about a major initiative to improve safety management at the $100m South Coast Correctional Centre project in Nowra and the safety alliance that had been entered in relation to that project, the recognition of the Department's contribution in relation to award winning projects and being successful in project management awards and other awards. 32 The Department had co-operated with WorkCover during its investigation of the incident and the prosecution process and had provided documentation and made staff available for interviews as and when required. By appointing a senior project manager as a single point of contact, the Department facilitated WorkCover's information gathering and investigation process, avoiding the need for WorkCover to follow-up with a variety of people, including former employees for the provision of documents and information. 33 In relation to contrition Mr Baker said that, on behalf of the Department, he sincerely regretted that this accident occurred. The Department accepted responsibility for its role in the incident and the subsequent injuries and loss of life suffered. After receiving the Application for Order in September 2008, the Department entered a plea of guilty at the first Directions hearing in November 2008. The Department expressed its sincere sympathy to the relatives of Mr Beytell and Mr McCloud and after the incident the group general manager of the project management group, Mr Collins, wrote letters to the families of Mr Beytell and Mr McLeod to express the Department's deepest sympathy for their loss and to ask for their views regarding the construction of a memorial at the site. Together with the Lachlan Shire Council and in consultation with the families of the deceased, the Department then arranged for a memorial plaque to be placed at the reservoir. Staff of the Department also met with Mr Beytell's widow and Mr McLeod's parents during the Coronial Inquest. In consultation with the Construction, Forestry, Mining and Energy Union, the Department made payments of outstanding wages and accrued entitlements totalling more than $40,000 to Mr McLeod's family, to Mr Scott Wood and Stephen Oagile Malothane, a resident of South Africa. 34 In relation to the future, Mr Baker said the Department was fully committed to ensuring the effective implementation of the safety management system and was particularly concerned to ensure that it had a strong safety culture and not a mere paper system without enforcement and policing. The Department was intent upon demonstrating to its clients, the community, Government and regulators that it effectively and consistently implemented a well-developed safety management system and was intent on preventing any harm arising from its activities. The Department was also committed to using its position and influence to provide a leadership role and improving safety in the New South Wales construction industry, including through the continuing improvement and effective implementation of its own safety management system and by working co-operatively with contractors, their employer Associations, construction unions, clients and other industry participants and other Government agencies as well as WorkCover with the goal of continuing to improve safety in the construction industry in New South Wales. 35 In his supplementary affidavit, Mr Baker spoke of his personal efforts to ensure a higher level of awareness amongst managers and staff of the terms and implementation of the safety management systems. Since 2003, in relation to the increased awareness of safety risks of working at heights and the use of scaffolding and formwork, the Roadmap provided a structured standard process for risk identification, evaluation and treatment and staff were trained in safety risk management and working at heights. The construction safety guide provided guidance and links to the Codes of Practice Standards and other guidance material. There was now increased supervisor involvement in safety management and the project risk assessment process identified that there were safety risks requiring greater involvement of the project safety advisor and this was dealt with in some detail. Mr Baker also explained the auditing process conducted by project safety advisors, a process that was in addition to the project manager reviewing and implementing the safety management plan. 36 The prosecutor put before the Court the two judgments of the Commission in Court Session where the predecessor Department had been found guilty of breaches of s 16(1) and s 15(1) of the 1983 Act. The Department's first offence was dealt with in 1999 before the Chief Industrial Magistrate and incurred a penalty of $1,500 for breach of s 15(1) of the 1983 Act. From the later cases it appears that the maximum penalty at that time was $10,000 and that offence was regarded of little significance in relation to the two further offences of the Department. 37 The second offence occurred in May 1998 at a project involving the Nepean Hospital. There was a plea of guilty entered although there were some disputed particulars. In that case it was alleged that the Department failed to ensure that there was an adequate system of work to protect against persons being exposed to a risk of injury from falling while working on the level 2 concrete slab and the level 3 formwork deck of a building under construction at Nepean Hospital. The injured worker had fallen approximately 4.7 metres. The Department was responsible for project management of the building and construction work being carried out at the site. It was also responsible for the installation of scaffolding for the perimeter of the building. 38 In dealing with penalty Glynn J found the offence to be serious and the defendant's on-site approach to safety was inadequate and its personnel were not properly trained. One officer of the Department, being a part-time safety officer, did not have even superficial knowledge of the requirements of the relevant regulation and did not know that particular provisions of the regulation required the securing of hand guards. The maximum penalty available was $825,000 and after allowing a 20 per cent discount for the utility of the guilty plea and other subjective factors, the Court imposed a fine of $119,000. The prosecutor pointed out that, although that case arose from a 1998 incident, it was heard in mid-July 2002 and judgment was delivered in November 2002. It was submitted to be significant that, within this very timeframe, in late October 2000, the present offence occurred again involving a fall from height and the use of scaffolding in the erection of the reservoir. 39 The most recent offence occurred in February 2001 when an employee of Department was crossing timber planks across scaffolding when the plank subsided and he fell approximately one metre. The Department entered a guilty plea to two of the particulars but in contested proceedings was found guilty of the third particular. The third particular involved the failure to ensure a competent person carried out an adequate inspection and risk assessment. 40 This case was heard and dealt with in March 2004 by Boland J. His Honour accepted that the Department was concerned with safety, had made efforts to ensure safety and was clearly safety conscious with an objective to ensure safety in its workplaces. The case emphasised, however, the obligation of the employer to actively seek out all risks to safety and eliminate them. His Honour had regard to specific deterrence and the likelihood of the defendant re-offending and noted that it was a large organisation operating in the construction industry where risks to safety were ever present. Nevertheless, the Department had taken appropriate steps to avoid a reoccurrence of the accident, had reviewed its policies and procedures in what was described as an impressive system aimed at ensuring persons were not put at risk. There were two previous convictions and his Honour did not feel that those should overshadow what was otherwise a good record. His Honour concluded that it was not necessary to include in the penalty a significant element aimed at encouraging a greater level of diligence on behalf of the defendant in the future because he considered the defendant had demonstrated that it already shouldered that responsibility. The maximum penalty at that time was $825,000 and his Honour considered an appropriate penalty to be $145,000. On the approach taken by the Commission in Court Sessions at that time, that amount was discounted by 25 per cent because of the utilitarian value of the early plea and a further 10 per cent for other subjective factors resulting in a final penalty of $94,250. DELIBERATION 41 The first and primary task for the Court is to establish the objective seriousness of the offence. In submissions the defendant accepted that the charge concerned an objectively serious incident and that there was a foreseeable and serious risk of a detriment to safety, including injury and death. That acknowledgement was made in the context that the defendant's responsibilities for the Lake Cargelligo project were "confined" to a project management and monitoring role and that BGA were the principal contractors. The second issue of contest was that there were a number of objective factors that tended to mitigate the level of objective seriousness of the breach, especially having regard to the extensive safety systems implemented by the defendant such as: contractor management systems; the appointment of a contract supervisor; the appointment of a contract supervisor's representative; a review of BGA safety systems; audits and inspections; training and guidance; supervision; and, governance through safety committees and forums. 42 The prosecutor submitted that the offence was objectively "very serious". The risks were obvious and known to the Department or alternatively, were readily identifiable. Given the nature of the work, being work at height on a large reservoir and the defects in the safe working practices at the site, there was a real prospect of death or serious injury once work on the elevated formwork commenced. These risks were capable of being controlled, if not eliminated, through the adoption of simple and well-known steps. It was submitted that the project "became a disaster waiting to happen". The defendant had admitted to widespread failures and had awarded the contract on a price basis alone. While the prosecutor acknowledged that the defendant had a detailed occupational health and safety system on paper prior to and at the time of the incident, there had been a very significant failure to enforce that system. 43 The prosecutor also pointed to the fact that the 3rd ed of the New South Wales Government Guidelines governed the contract. Those guidelines differentiated between projects such that there were three classes that were dealt with in a different way: the first class involved projects having a value of $3m or more; the second class was projects having a valuation under $3m where the defendant determined that the work was a high safety risk or interfaced with other projects with high safety risk or was otherwise sensitive in terms of occupational health and safety; and, the third class were projects having a value under $3m where the defendant determined that the work did not have a high safety risk, did not interface with other projects with high safety risks or was not otherwise sensitive in terms of occupational health and safety. The first two classes required contractors and Departmental compliance with a significantly more comprehensive occupational health and safety management programme, including: tender pre-qualification requiring accreditation of the contract's corporate safety management system; a project occupational health and safety management plan; and, a project occupational health and safety audit programme compliant with the State Government's guidelines being an audit programme, including detailed site safety audits, applicable across the whole project to be conducted by an audit team consisting of qualified auditors with specialist safety training who were independent of the Department project management and the superintendent's teams. Despite these requirements, the defendant did not determine that the Lake Cargelligo project involved a high safety risk, interfaced with other projects with a high safety risk or was otherwise sensitive in terms of occupational health and safety. The prosecutor submitted that, in fact, no one from the defendant turned their mind to these matters prior to the letting of the tender or at any time during the course of the project from the time the tender was let until the incident occurred. It was submitted that, if the defendant had turned its mind to these issues, it was obvious that the erection of an elevated platform, the erection of elevated scaffolding for access, working at heights and other factors, including the remoteness of the site, must have led to the conclusion that the project involved high safety risks. The New South Wales Government Guidelines at the time nominated working at heights as a high or significant risk factor. 44 The prosecutor also submitted that it was a concern that, following the revision of the defendant's project management system, it no longer required safe work method statements for high risk activities to be submitted to the project manager for assessment and review prior to the high risk work being permitted to commence, or at all. The new system required a register of safe work method statements to be kept on site and a copy of that register to be submitted as part of the monthly project report but there was no requirement for safe work method statements to be submitted before high risk work commenced. Any review of the safe work method statements by the project manager were now to take place after the work had commenced as part of Departmental site inspections. Under the revised system, on-site reviews contemplated the contractor "self selecting" a high risk activity from a list of activities nominated by the Department and for them to be reviewed requiring the principal's representative to observe that activity for the purpose of establishing compliance. 45 A further matter of concern was that, on this project, a review was conducted in late August 2002 and it highlighted the need for the effectiveness of the contractor's integrated management plan to be measured at the workface. This process was short circuited by Mr Ooi who converted the "Hold Points" to "Witness Points" so that, rather than requiring his attendance for a site inspection before the work could proceed if he did not attend the site at the Witness Point, the work could proceed. It was pointed out that no explanation had been offered how Mr Ooi, in his capacity as the project manager, was able to re-programme an essential element of both the quality and safety controls imposed by the contract and thereby avoid site attendances which were both required under the contract and funded by the Department's client in the project budget. There was also no explanation offered in relation to the defendant's failure to require contractors to produce certification in regard to the elevated formwork as part of the contractual inspection and test programme despite being requirements of the relevant regulations, the relevant Code of Practice and their applicable Australian Standard. Under the revised programme it was acknowledged that it now required the provision of independent certification in accordance with the Code of Practice. The defendant did not undertake any site safety audit, site safety review or site safety assessment independent of the one project manager appointed to manage the site and administer the contract. It was submitted that, having regard to the Statement of Agreed Facts and the photographs of the site, once work commenced on the erection of the elevated jump form, the scaffold access tower and the internal scaffold, even a cursory examination of the site by an adequately trained officer concerned with safety should have been sufficient to halt work on the site long before this incident occurred. 46 As already indicated, while accepting the seriousness of the breach and the numerous failings of the Department, it was submitted for the Department that these matters had to be seen in the context of the Department's overall extensive safety system and the relative success of that safety system over a long period of time. Whilst it was submitted that the defendant's responsibility for this project was "confined" to project managing in a monitoring role, it was properly conceded that the defendant had significant control over the work and had a capacity to give directions in relation to the scaffolding and indeed, could have stopped the work. The contract provided that the project manager (Mr Ooi) was to be granted access to the site at all reasonable times and could direct BGA to have tests performed and to take other steps to ensure that the work was compliant for the various contractual obligations. It was pointed out that the site safety plan provided to Mr Ooi by BGA did not include the safety rules and other relevant information such as safe work method statements and Mr Ooi repeatedly requested copies of the missing documents but only limited additional information was provided. That additional information did not include the safe work method statements and it was conceded that the defendant did not adequately review BGA's site safety plan to ensure its adequacy in controlling the hazards at the site. 47 It was further submitted that, in fact, Mr Ooi made a number of visits to the site as the contract superintendent's representative and that occupational health and safety was a regular agenda item for the meetings held during those visits. Mr Ooi had ascended the scaffold access tower in his late August 2002 visit and directed that kick plates be installed at the landings but he did not identify other faults. Mr Ooi inspected the reinforcement and formwork and although he established Hold Points for the work, he later re-classified them as Witness Points. It was said that Mr Ooi exercised his discretion to take no further action in relation to those Hold or Witness Points. It was submitted that, as well as Mr Ooi, the defendant's supervisory personnel for the project were qualified and experienced in the construction industry and as summarised earlier in this judgment, reference was made to the detailed system that was normally applied by the Department. 48 The defendant also submitted that its criminal culpability for this offence was lower than that of the principal contractor, BGA. It was submitted that the Department was not responsible for the creation, provision or maintenance of the system of work including the labour, training and provision of equipment. All those matters were the responsibility of the principal contractor and the defendant was unaware of inappropriate modifications made to the scaffolding by BGA and had no involvement in that process. BGA was responsible for the day-to-day control and conduct of the work. Nevertheless, the Department accepted that it had a significant degree of control over the site and was in a position to order a cessation of work if they identified any risk to safety. It was also submitted that the Department's degree of foreseeability of this risk was lower than that of BGA. The difficulties with these submissions is that, because of the death of Mr Beytell and Mr McLeod, the Court has limited knowledge of the activities of BGA although the Court does have an abundance of material about the shortcomings at this site. To the extent that the Court is able to conclude that the Department's culpability is less than BGA, such a finding does not say a great deal. It is true that BGA was present every day at the site and should have been aware of these shortcomings but having regard to the numerous photographs in evidence and the description of the state of the scaffolding, it is difficult to understand why the Department's project manager did not take some steps to address the state of the scaffolding which seemed to breach the most elementary requirements for stability and safety. As to foreseeability, the project manager appears not to have demanded evidence of the certification of the structural soundness of the scaffolding as required under the guidelines. That failure, together with the obvious inadequacies of the scaffold on site, should have raised concerns at an early stage and the failure to respond to those concerns indicates the foreseeability of the risk of failure of the scaffolding and the serious injury that might follow from such an event. 49 The Court has already noted the numerous concessions made by Mr Baker, namely, that the Department did not adequately monitor BGA to ensure that BGA had: ensured all the scaffolding and access tower was safe and without risk to health; ensured that the concrete formwork erected by BGA was safe and without risk to health; ensured the formwork erected by BGA with respect to the forming of the concrete roof of the reservoir was certified prior to the commencement of the concrete pour. Further, it was acknowledged that the Department did not: undertake adequate inspection or safety audits at the site; adequately supervised the project manager in his role as both the superintendent's representative and as the project manager; and, failed to provide Mr Ooi with adequate training and instruction in relation to safety in both his roles as the superintendent's representative and the project manager. The Department acknowledged that, although it had a comprehensive contractor management system at the time of the incident, the system was not comprehensively implemented on this project. It acknowledged that it did not undertake a defined process of identifying the specific hazards associated with the project's pre-construction. As a consequence, the Department did not include a list of identified hazards in the project contract. The Department failed to determine that the project involved a high safety risk and therefore did not require BGA to have an accredited corporate safety management system or an acceptable project safety management system. The Department did not ensure that the risks associated with the project were adequately managed. The Department, through Mr Ooi, requested the provision of safe work method statements for the project and when these were not received from BGA the Department did not pursue enforcement of those requirements. The Department did not adequately review BGA's site safety plan and did not identify the failure of a site safety plan to identify and address control measures in relation to hazards associated with the project. These admissions by Mr Baker on behalf of the defendant reflect, and sometimes give further substance to, the nine itemised failures that constituted the particulars to which the defendant entered its plea of guilty. There is considerable force in the matters raised by the prosecutor going to the objective seriousness of the offence and those matters are not seriously put in issue by the defendant who has adopted an approach of seeking to place these failures in a wider context. The Court accepts that, had the Department's normal procedures been followed, then it was very likely that this accident would not have occurred, two workers would not have died and others would not have been seriously injured. It is difficult to understand how a Government Department, the size of the defendant and with its reputation, could have allowed a position to arise where so many aspects of its usually comprehensive safety system were not adhered to. Having regard to all of these matters, the Court readily concludes that this was a most serious breach of the Act. 50 The defendant, properly, conceded that both general and specific deterrence were appropriate considerations in setting a penalty for this offence. In relation to general deterrence the use of scaffolding is widespread in the industry and fall injuries continue to regularly feature in prosecutions brought under the Occupational Health and Safety Act. In relation to specific deterrence it was submitted for the defendant that this aspect should play a role, but a lesser role, in setting a penalty, especially in consideration of the extensive systems that the Department has always had in operation in relation to safety and the numerous steps it has taken after the incident to ensure that there was not a recurrence of this type of incident. It is accepted that these factors are important but the Court is not able to say that the risk of re-offending is low or non-existent in light of the nature of this offence and the defendant's recent history of breaches. It should be stated immediately that the record cannot be regarded as a bad record having regard to the nature of the work performed by the defendant and its long existence under many titles. A disturbing feature is that the last two offences occurred in relation to scaffolding and that the 1998 offence was heard in the Commission in Court Session and was reserved when this particular incident occurred. As a result of those offences the Department undertook reviews, addressing specific incidents and wider safety requirements. While it can be readily accepted that the defendant does not present as a serial offender that ignores its safety obligations or pays little regard to them, this present offence is a disturbing breach for a body of its kind and leads the Court to conclude that specific deterrence should play a significant role in the setting of an appropriate penalty. 51 In relation to subjective factors, the defendant entered its plea of guilty on the first return date of the Order and Summons and did not cavil with the particulars. Having regard to the nature of the incident and the Court time that may have been taken up in a full hearing of the matter, there is considerable utilitarian value in that early plea and it is appropriate that the defendant be given a 25 per cent discount on the overall penalty to be imposed. 52 On the evidence before the Court it is satisfied that the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 have been satisfied and in this case remorse and contrition may be taken into account as a mitigating factor. The Court accepts the defendant's submission that it has expressly accepted responsibility for its role in this breach of the Act and that is reflected in its guilty plea being entered at the first opportunity. Mr Baker clearly acknowledged the risks to safety and the injuries suffered by the employees and the Court notes the steps taken by way of ex gratia payments to meet the circumstances of the families involved. On the evidence before it, the Court is also satisfied as to the good corporate citizenship of the Department and its involvement with its employees and the wider community. As earlier observed and having regard to the length of time it has been directly involved in the construction industry, the Department's record is to be considered a good record notwithstanding the seriousness of this breach. It had significant safety systems in operation prior to this accident but almost inexplicably they were not enforced in relation to this project. The Department then undertook a thorough review of this type of work and generally its safety systems and made a large number of alterations to those systems, both in direct recognition of avoiding a recurrence of this type of accident as well as making better provision in the future for safety. There is, however, merit in the prosecutor's submissions that the revised contractual provisions may not necessarily be as effective as the Department believes and there is good reason, in light of these comments, for those matters to be revisited to ensure their effectiveness. Lastly, it should be acknowledged that the Department co-operated with the WorkCover investigation in a most commendable way and continues with a consultative process with WorkCover that can only operate to the advantage of all who work on the projects in which the Department is involved. All of these matters will be taken into account in mitigation of the penalty. ORDERS 53 Having regard to the matters referred to above, the Court makes the following orders: (a) the defendant, The State of New South Wales (Department of Services, Technology and Administration) is found guilty of a breach of s 10(1) of the Occupational Health and Safety Act 2000 to which it entered a plea of guilty in Matter No IRC 1446 of 2008; (b) the defendant is fined the sum of $275,000 with half that amount to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as further ordered by the Court. STATEMENT OF AGREED FACTS 1. The prosecutor is an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in this matter. THE ROLE OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF SERVICES, TECHNOLOGY AND ADMINISTRATION) Background 2. The State of New South Wales is and was at all material times a body corporate bound by the Occupational Health and Safety Act 2000. 3. The State of New South Wales (Department of Services, Technology and Administration) as the successor agency to the State of New South Wales (Department of Commerce) which was in turn the successor agency to the State of New South Wales (Department of Public Works and Services) ["DPWS"] is the responsible agency of the Crown, for the purposes of section 120 (1) (b) of the Occupational Health and Safety Act 2000. 4. At all material times the State of New South Wales was an employer for the purposes of the Occupational Health and Safety Act 2000 and in particular employed: a) Tony Collins as General Manager of the Project Management Group [PMG] of the DPWS; b) Michael Cush as the Operations Director of the PMG of the DPWS; c) Brian Mowbray as the Regional Manager, Riverina/Western Region within the PMG of the DPWS; d) Kevin Ellison as the Regional Contracts Superintendent, Regional Projects, Riverina/Western Region within the PMG of the DPWS; e) Christopher Evans as a Regional Projects Co-ordinator, Regional Projects, Riverina/Western Region within the PMG of the DPWS; and f) Kock Ooi as a grade 7/8 Project Officer, Regional Project, Riverina/Western Region within the PMG of the DPWS. 5. At all material times the DPWS was responsible for the management of a project that included the construction of a 4 megalitre water reservoir ("the reservoir") at a site approximately 300 metres off Uabba Street, Lake Cargelligo (approximately 600 kilometres west of Sydney). The DPWS undertook the project management role on behalf of the Department of Land and Water Conservation and Lachlan Shire Council. The reservoir was being constructed as part of a project for the improvement of the water supply for the townships of Lake Cargelligo and Tullibigeal. 6. At all material times Mr Ooi was the Project Manager assigned by the DPWS to manage the project, including the construction of the water reservoir in accordance with the Project Management Group's contract management system, including the PMG OHS&R system. The tender 7. In January 2002 the DPWS called tenders for the design and construction of the water reservoir. Tenders closed on 19 February 2002. 8. On 18 February 2002 BGA Projects Pty Ltd [ACN 092 884 912] ["BGA"] submitted a tender with respect to the construction of the water reservoir, including an offer to construct a reinforced concrete roof at additional cost. 9. On 3 April 2002, following completion of a tender review, Mr Ooi recommended acceptance of the BGA tender to the DPWS' Board of Advice and Reference. The BGA tender was the lowest priced conforming tender, including the reinforced concrete roof, and 13% lower than the Department's pre-tender estimates. The tender review included contacting referees who both advised that BGA's reinforcement and concrete quality and time management were good, and further that 'the designer engaged by BGA [was] well-qualified for the work'. Of the two referees contacted, one indicated that BGA's occupational health and safety was "good" while the other indicated that it was "acceptable". 10. On 29 August 2002, the DPWS carried out a PMG quality system review/ audit utilising the PMG Quality System Review Checklist – Contractors. That review/ audit found that the subject tenders were assessed on price only. 11. The contract was awarded to BGA for the design, documentation and construction of the reservoir ("the contract"). Principal contractor and controller of the site for the purposes of the OH&S Regulation (2001) 12. Under the contract, BGA was appointed as the principal contractor and controller of the site for the purposes of the Occupational Health and Safety Regulation 2001 and it was required to comply with the NSW Government OHS&R Management Systems Guidelines 3rd edition November 1998. 13. At all material times Mr Beytell was the sole office holder of BGA Pty Ltd. 14. At all material times Mr Beytell was qualified as a civil engineer. Contractual obligations with respect to OH&S 15. The contract also required that work performed under the contract and that the Works under the contract (i.e. the water reservoir) comply with: · all statutory requirements; · all approved Codes of Practice under the Occupational Health and Safety Act 1983; · the requirements of persons acting in the exercise of statutory powers enabling them to give directions affecting the work under the Contract or the Works; · the Building Code of Australia · all Australian Standards · suitability for purpose · WorkCover Codes of Practice 16. Further, the contract made specific provision for the establishment of a Site Specific Safety Management Plan, including its documentation, implementation and revision for the purpose of ensuring that the plan complied with the requirements of the OH&S Regulation 2001. 17. The terms of the contract further required that the Site Specific Safety Management Plan was to be submitted to the Principal seven days before construction work commenced and that Safe Work Method Statements were to be submitted no later than seven days before the construction work to which they applied was to commence. 18. On 23 April 2002, Mr Ooi requested a Site Specific Safety Management Plan from BGA. BGA provided a copy to Mr Ooi on 20 May 2002 and Mr Ooi then reviewed the Site Specific Safety Management Plan using the Department's 'Checklist for Review of Adequacy of Safety Management Plans' on 28 May 2002. 19. Mr Ooi wrote to the principal contractor on 28 May 2002 identifying non-compliances with contract requirements for a Safety Management Plan. On 21 June 2002 BGA advised of the additional information identified by Mr Ooi as being required for compliance with the contract requirements for a Safety Management Plan. The NSW Government OHS&R Management Systems Guidelines 3rd Edition ("the Guidelines") 20. As noted above, the contract requires the contractor to comply with the Guidelines. The Guidelines are a NSW policy document. They state: 'The objective of these guidelines is to lift and continuously improve OHS&R management performance in the NSW construction industry'. 21. The Guidelines provided that for all NSW Government projects having a value of $3 million or more and for all projects under $3 million where the relevant government agency had determined that the work had a high safety risk, interface[d] with other projects with a high safety risk or was otherwise sensitive in terms of OHS&R, tenders could only be accepted from tenderers with an accredited Corporate Management System. 22. Further, according to the Guidelines preparation of an acceptable Project OHS&R Management Plan was to be a condition of the award of a tender for all projects having a value of $3 million or more and for projects under $3 million where the relevant government agency determined that the work had a high safety risk, interfaced with other projects with a high safety risk or [was] otherwise sensitive in terms of OHS&R. Where a Project Safety Plan was a condition of the award of a tender, the Plan had to be developed to the satisfaction of the relevant government agency before site work could begin. 23. Regulation 209 of the Occupational Health and Safety Regulation 2001 defines "high risk construction work" as including "construction work at a height above 3 metres". 24. Projects identified by the defendant prior to the subject incident as "high risk" included "projects such as the construction and maintenance of buildings and structures". 25. Having regard to the nature of the works to be performed under the subject contract, namely construction work involving the erection of formwork and working at heights exceeding 3 metres, had the subject project been identified by the defendant as "high risk" or "sensitive in terms of OHS&R", the Department's Contract Management Procedures required: · the tender be subject to a requirement that it could only be awarded to a tenderer who had an accredited Corporate OHS&R Management System; · the preparation before site work began by the successful tenderer of a Project OHS&R Management Plan and · the project would have been subject to the conduct of at least one independent audit of BGA's quality management system, including occupational health and safety, and for a project audit on the contractor's Site Specific Project OHS&R Management Systems. 26. The Guidelines also highlighted the need for a fully documented, integrated occupational health, safety and rehabilitation management system, including a site specific safety management plan incorporating mandatory safe work method statements for "work with significant risk" (such as working at heights) and "special processes" (i.e. processes which are inherently dangerous such as the erection of scaffolding, working at heights etc). The [Contract] Superintendent 27. The contract provided for the appointment by the Principal of a superintendent to administer the contract in accordance with the terms of clause 23 of the General Conditions of Contract. As the PMG Regional Contracts Superintendent, Mr Ellison was appointed as the contract superintendent "for all matters other than Clauses 44.6 and 44.5" of the contract. The Superintendent's Representative 28. The contract made provision for the appointment of a Superintendent's Representative and, on 9 April 2002, Mr Ellison appointed Mr Ooi as the Superintendent's Representative. 29. As the Superintendent's Representative, Mr Ooi was empowered by his appointment to exercise any of the functions of the superintendent under the contract (subject to minor limitations not presently relevant). Mr Ooi's role as the Superintendent's Representative required him to observe and administer the contract with respect to BGA's compliance with the terms of the contract, including the terms of the contract relating to BGA's management systems and performance under those systems with respect to occupational health and safety at the subject site. 30. The powers of the Superintendent with respect to breaches of the contract, such as a failure to comply with the terms of the contract relating to occupational health and safety included: a) the capacity to direct BGA to adopt particular work methods with respect to works being conducted at the site; b) suspension of works at the site; c) withholding progress payments until rectification had been undertaken; d) if the Superintendent thought it necessary for the protection or safety of any person or property, the capacity to direct BGA to suspend the progress of the whole or part of the works under the contract for such time as the superintendent thought fit with the cost of such suspension to be borne by BGA; e) The power to take necessary action to protect the work under the contract, other property or people if BGA failed to take such action; and f) termination of the contract. 31. So as to enable the Superintendent and his representative to administer the contract and ensure compliance, the contract provided that: a) during the course of the contract BGA's performance would be monitored and assessed. b) the Principal and its employees and agents, at any time after reasonable notice to BGA, were to have access to any part of the site for any purpose; c) the Principal, the Superintendent and other persons authorised in writing by the Principal or by the Superintendent, at all reasonable times, were to be granted access to the work under the contract at any place where the work was being carried out or materials were being prepared or stored; d) the Superintendent could direct BGA to provide particulars of the mode and place of manufacture; the source of supply; the performance capacities; and other information with respect to any machinery or equipment to used in connection with the contract; and e) the Superintendent could have tests performed, including examination and measurement, for the purpose of ensuring that work performed under the contract was compliant. 32. The contract also made provision for "witness points" and "hold points". A "hold' point is a mandatory inspection point. It defines a point beyond which work must not proceed without an inspection or test verifying compliance with requirements or the authorisation of a designated service provider or authority. A "witness point" provides the option for another party to witness the verification of compliance where time permits but work may proceed if that other party does not attend. 33. The stage of work identified as "reinforcement and formwork prior to placing of concrete" was nominated as a "hold point". The forming and preparation of reinforcement for the ground slab, each of the 8 "lifts" of the "jump form" used to construct the wall of the reservoir, the formwork for the formwork deck for the roof pour and the formwork deck (including the reinforcement) for roof of the reservoir each constituted a "hold point" under clause 7.2 of the General Requirements" under the contract. 34. The budget for the project management role being performed by the defendant in respect of the Lake Cargelligo-Tullibigeal water supply augmentation project (including the construction of the reservoir) for the Department of Land and Water Conservation and Lachlan Shire Council allowed for the Superintendent's representative to make visits to the site for purposes that included inspections and/or testing associated with construction "hold points". Construction of the Reservoir 35. The first site meeting was held between Mr Ooi and Mr Beytell on 20 May 2002. A second site meeting was held between Mr Ooi and Mr Beytell on 22 July 2002. Mr Ooi attended at the site and observed that some formwork for the base of the reservoir was in place. There was no-one present at the site and the meeting took place in Mr Beytell's apartment "in town". At this meeting Mr Beytell reported that: a) All the excavation for the reservoir base had been completed and all pipework built; and b) 90% of the "reo" for the base pour had been completed. 36. The reservoir was designed to be cylindrical with an internal height of 16 metres and an internal diameter of 18.1 metres. The floor was designed to be 150mm thick, with local thickening around the perimeter. The roof slab and the wall were each designed to be 250mm thick resulting in a structure with overall dimensions of 16.4 metres in height and 18.6 metres in plan diameter. The design as accepted by DPWS incorporated an internal central column, including a 350mm thick upstand capital. The base of the column rested on the floor and included a local increase in the thickness of the roof to 600mm over an area 2.8 x 2.8 metres around the centre of the column. 37. The contract also required ancillary items, including inlet and outlet pipes, internal access and specialised finishes to the interior concrete surfaces. 38. The floor slab was designed to be poured on prepared ground and locally strengthened - by increasing its thickness from 150mm to 300mm - beneath the wall. It was cast with reinforcement starter bars for the wall. 39. The reservoir was designed to be constructed from reinforced concrete formed on site. The floor slab and the wall were designed to be monolithic and the roof was designed to be supported off the wall with additional support provided by a central column. 40. The wall was formed in increments using steel formwork pieces known as a "wall-form" or "jump form". The wall-form consisted of parallel internal and external components that formed a shell to provide the necessary profile. Each piece of wall-form was 2 metres high with the internal sections being 2.4 metres long and the external sections slightly longer to allow for the curve in the wall. The two sides of the formwork shell were bolted together by through-bolts fixed in formed recesses. A full circumference of the wall was poured at a time, with 24 wall-form pieces making up the circumference. 41. There were sufficient pieces on site to enable 2 full increments to be under construction at any one time. 42. The wall was constructed using the 2 sets of wall-forms operating in tandem. Starting at the base, the first wall increment was poured; once it had achieved a predetermined strength, the second set of wall-forms was placed in position above it and the next increment constructed. When the concrete being restrained by the first set of wall-forms reached its designated design strength, the wall-forms were "jumped" by crane - a process that involved them being disengaged from the wall, lifting them above the second set and placing them in position to form the next increment. This continued up the height of the wall; with one set of wall-forms being jumped above the other in turn. 43. The wall-forms allowed two external walkways to be connected to the external face of the formwork that enabled persons to access the working area. Access to the internal face was gained either by using the internal formwork as an access scaffold, or by a scissor-lift elevating work platform that operated inside the structure. 44. Access was obtained to the walkways on the wall-form by a scaffold tower that was constructed as the wall of the reservoir progressed. 45. In the lead up to the accident, the wall had been completed and the roof slab was being prepared. 46. At the time of the incident, the slab roof was being formed on a formwork deck comprised of plywood decking supported by proprietary falsework, or scaffolding. The falsework, or scaffolding, was arranged in a polygonal grid inside the reservoir. Due to difficulties in fitting the grid into the circular profile, a series of steel corbels had been fixed to the wall to provide support to the edge sections of the formwork. The corbels were connected into the wall in the bolt-holes left when the inner skins of the wall- forms were removed—the outer skins were still in place as they supported the external access platform—and were located at regular intervals. The internal column had advanced with the wall and the topmost section was prepared for pouring at the same time as the slab. THE ROLE OF AREA CONCRETE PUMPING PTY LTD AND P & B SERENA PTY LTD (DE-REGISTERED) 47. At all material times Area Concrete Pumping Pty Ltd [ACN093 209 824] ("Area Concrete Pumping") was duly incorporated. 48. At all material times Paul Serena was a director of Area Concrete Pumping. 49. At all material times Christopher Anthony Woods was a director of Area Concrete Pumping. 50. At all material times Area Concrete Pumping offered to supply for reward the services of a concrete pump truck, New South Wales registration number LSE 257 ('the concrete pump truck'), together with a driver/concrete pump operator. 51. At all material times, Area Concrete Pumping was an employer. 52. At all material times, Area Concrete Pumping employed Ralph Storr to drive and operate the concrete pump truck. 53. At material times Ralph Storr held a WorkCover Certificate of Competency to operate the concrete placing boom on the concrete pump truck. 54. At all material times P & B Serena Pty Ltd (de-registered) [ACN078 790 940] ("P & B Serena") was duly incorporated. However, P & B Serena was dissolved on 25 December 2005. 55. At all material times Paul Serena was a director of P & B Serena. 56. At all material times Walter Anzolin was a director of P & B Serena. 57. At all material times P & B Serena was an employer. 58. At all material times P & B Serena employed Michael Abel as a labourer. 59. At all material times, Michael Abel was a qualified bricklayer. He also had approximately 15 months experience as a concreting labourer working full-time for P & B Serena. 60. On Monday 21 October 2002 Ralph Storr, in his capacity as the driver/operator of the concrete pumping truck, took a telephone booking from BGA for the concrete pumping truck to pump concrete at the site on Tuesday 22 October 2002. 61. When the booking for the concrete pump truck was made by BGA, Anton Beytell also asked Mr Storr to supply a linesman to assist in the placement of the concrete. Mr Storr spoke with Paul Serena about supplying BGA with a linesman to assist in placing the concrete on 22 October 2005 and, in due course, Mr Serena told Mr Storr that he would arrange for Michael Abel to go with Mr Storr to the site on 22 October to work as a linesman. 62. Later in the evening on 21 October 2002, Mr Serena instructed Michael Abel to go with Mr Storr to work as a linesman in the pumping and placement of the concrete for the roof at the site on the following day. Mr Abel was told to take his work boots, vest and hard hat; otherwise Mr Abel was not provided with any other instructions regarding the work that he was to perform on 22 October 2002 at the site. 63. Although Ralph Storr had worked at the site previously, pumping concrete for two (2) of the wall lifts – lifts 7 and 8; the first visit occurred on 20 September 2002 when Mr Storr pumped concrete for the 7th lift and the second visit occurred on 25 September 2002 when Mr Storr pumped concrete for the 8th lift of the reservoir wall. 64. No site safety inspection was undertaken by or on behalf of Area Concrete Pumping prior to sending Ralph Storr to pump concrete at the site on either of the occasions on which Mr Storr pumped concrete on 20 September 2002 and 25 September 2002, respectively. 65. No site safety inspection was undertaken by or on behalf of Area Concrete Pumping prior to sending Ralph Storr to pump concrete at the site prior to or on 22 October 2002. 66. No site safety inspection was undertaken by or on behalf of P & B Serena prior to sending Michael Abel to work at the site on 22 October 2002. 67. Further, prior to the subject incident, Ralph Storr was not instructed to satisfy himself that elevated formwork had been certified, in accordance with clause 233 of the Occupational Health and Safety Regulation 2001and the Code of Practice – Formwork, by a formwork engineer for compliance with AS 3610 – 1995 Formwork for Concrete prior to pumping any concrete into place. THE EVENTS OF 22 OCTOBER 2002 68. Ralph Storr and Michael Abel travelled together in the concrete pump truck, from Griffith to Lake Cargelligo, arriving at the site. 69. Upon their arrival at the site, Mr Storr and Mr Abel climbed the access scaffold and inspected the formwork deck on which the concrete roof was to be formed. 70. Subsequently, Anton Beytell arrived at the site and joined Mr Storr and Mr Abel on the formwork deck at the top of the reservoir. 71. After Mr Beytell and Mr Storr had discussed how Mr Beytell proposed to undertake the concrete pour, Mr Storr and Mr Abel descended the access scaffold and prepared the concrete pump. 72. Mr Beytell was in charge of the site and gave directions regarding the manner in which the concrete was to be laid, assigned tasks prior to and during the course of the concrete pour. 73. After preparatory work had been completed and the concrete trucks started arriving at the site, Mr Storr commenced pumping concrete to the top of the reservoir where it was placed on the formwork deck on which the concrete roof was to be formed. Mr Storr was located on the top catwalk of the jump form, controlling the pumping of the concrete with a remote control for the pump truck. 74. Initially, Anton Beytell was on the hose whilst the concrete for the central column was pumped. Then, Michael Abel was the linesman directing the placement of the concrete for the laying of the concrete on the formwork deck. 75. After about an hour and a half, Anton Beytell asked Michael Abel if he knew how to screed concrete and then Mr Beytell instructed Mr Abel to takeover screeding the concrete. THE INCIDENT 76. During the concrete pour of the roof slab, the falsework failed and the whole formwork structure collapsed. Upon the collapse of the formwork structure, the working deck and all persons working on it fell into the reservoir. 77. At the time of the collapse, approximately half of the surface area had been poured on the western section of the form face. Mr Leavy estimated that the concrete which was expected to be placed amounted to about 154 tonnes at a thickness of 250 mms so that the weight of the concrete that had been placed at the time of the incident was about 77 tonnes. 78. At the time of the collapse: a) Mr Beytell was standing on the formwork deck directing the pour; b) Mr Storr was located on the catwalk attached to the jump form and from that position Mr Storr was operating the concrete pump that was pumping concrete onto formwork to form the roof of the premises; c) Mr Abel was screeding concrete on the formwork deck in accordance with Mr Beytell's instructions; d) Craig McLeod was on the formwork deck operating the vibrator; e) Oagile Malothane was on the formwork deck shovelling the concrete; and f) Scott Wood was on the formwork deck, acting as the linesman on the concrete pump line, directing placement of the concrete. 79. As a consequence of the collapse of the formwork deck, Mr Beytell and Mr McLeod received fatal injuries. Mr Wood, Mr Abel and Mr Malothane received serious injuries. THE CAUSE(S) OF THE INCIDENT 80. Engineering investigations conducted into the cause of the collapse of the formwork indicate that it was not strong enough to support the loads produced by the concrete pour. This lack of strength was the result of one or more of the following factors: a) The falsework was erected in large bays which produced excessive loads on each standard; b) There was no diagonal bracing used to reduce the slenderness of the falsework bays and offset the effects of buckling and to transmit horizontal, or eccentric loads, through the system; c) The falsework included key structural members that were connected using inappropriate couplers; d) Components were removed from the lower part of the falsework to complete top sections of the falsework, thereby weakening the structure - including an increase its effective slenderness - and further reducing its ability to withstand the loads produced during the concrete pour; and e) The concrete mounded in places and that mounding increased the load on certain standards. 81. The formwork used on the site utilised 2 systems, the main one being a product known as "Kwikstage" produced by a South African company called Form-Scaff (Pty) Ltd ("Form-Scaff") that used prefabricated scaffolding components. This system was supplemented by elements of the second system, a tube and coupler scaffolding system, also produced by Form-Scaff. 82. The formwork was erected in bays that were too large to safely accommodate the loads generated by the slab being poured. The formwork was configured with typical bay sizes of 3.0 metres x 1.5 metres and variable bay sizes around the perimeter to fit in the circular plan of the reservoir. 83. The bay size recommended by Form-Scaff was 2.5 metres x 1.295 metres although it regarded a bay size of 3.0 metres x 1.5 metres as suitable for a 250mm thick slab. Calculations carried out in respect of a bay size of 3.0 metres x 1.5 metres supporting a 250mm slab constructed using the Kwikstage system result in a factor of safety against failure under load of 1.05. A factor of less than 1.0 means the system will fail; the calculations assume the use of pristine materials used in full accordance with the manufacturer's recommendations; and any variation in the quality of the materials, or the erection procedures significantly reduces the safety factor. 84. Erecting the proprietary formwork system to the limit of the manufacturer's recommendations greatly reduced the capacity of the system to withstand loads to which it was subjected. 85. Additionally, there was no diagonal bracing used on the formwork system at the site. Bracing is a secondary structural element that strengthens the system by providing lateral stability to the standards and ledgers to resist horizontal forces that may arise from lateral loads, such as wind, and to stiffen the structure to prevent it from flexing under vertical loads. 86. The strength of the formwork was further reduced by poor erection practices such as removing members from the bottom part of the falsework and then placing them at the top of the falsework to make up for a shortage of materials; omitting members from the upper part of the falsework because of a shortage of materials; and the use of deficient "home-made" components because of a shortage of materials. 87. There is no evidence that the fabricated components were tested to ensure their ability to withstand the forces to which the falsework would be subjected. Visual inspection of fabricated components recovered after the accident indicated that they were substantially inferior to the proprietary components. In particular, the material used to manufacture the home-made components was much thinner the material used in the proprietary components and the welding was substandard. THE SCAFFOLDING - NON-COMPLIANCE WITH AUSTRALIAN STANDARDS Australian Standard 1576.1: 1995 and Australian Standard 4576: 1995 88. Australian Standard 1576.1: 1995 Scaffolding Part 1 General requirements ("AS 1657.1") sets out design and operational requirements for scaffolding (with some exceptions not presently relevant). 89. Compliance with AS 1576.1 in the erection and dismantling of scaffolds is required of an employer by clause 58 of the Occupational Health and Safety Regulation 2000. 90. Further, Australian Standard 4576: 1995 Guidelines for Scaffolding ("AS 4576") gives practical guidance for the training and certification of scaffolders, the preparation of sites for scaffolding and the safe selection, supply, erection, alteration, dismantling, maintenance, inspection and use of scaffolding and scaffolding equipment. 91. AS 4576 is also incorporated into the Code of Practice for Technical Guidance as an industry code of practice pursuant to section 43 of the Occupational Health and Safety Act 2000. 92. AS 1576.1 and AS 4578 both prescribe requirements for edge protection to the open sides and ends of any work platform from which a person or object could fall 2 metres or more. The 2 working platforms around the circumference of the reservoir did not comply with these requirements of AS 1576.1 as the top-railing was incomplete (leaving significant gaps which were large enough for a man to fall through); there was a complete absence of mid-rails, mesh panels or "brickguards"; and bottom rails/ toe-boards were present only on the lower platform. 93. The footings of the access tower were not erected in compliance with the requirements in AS 4576. Two of the scaffolding standards at its base were placed directly on soil, without sole-plates. The other 2 standards were inadequately positioned on sole-plates and the sole plates were placed on unprepared ground; not properly bedded into the sloping soil; and of insufficient length to comply with the requirements of the standard. 94. Further, the access tower to the reservoir ("the access tower") was constructed mainly of Kwikstage scaffolding components with the bay size of the access tower of 3.0 metres x 1.25 metres exceeding the maximum permitted by the manufacturer. 95. The access tower scaffolding also lacked any diagonal bracing, fixed mesh panels or other means prescribed by AS 4576 to achieve rigidity. 96. Further, the working platforms at various levels of the access tower were not fully decked; contained gaps between such planks as were present; and were insufficient in size to function as safe working areas. The working platforms also lacked any handrails, mid-rails or in-fill panels and toe-boards. 97. No trapdoors over or guarding around openings in the working platforms, created for the access ladders, were present. 98. AS 1576.1 also requires that where ladders are used as the means of access to and egress from working platforms, landings shall be provided at the head and base of the ladder and that the top of the ladder shall extend above landings a distance of not less than 900mm. The ladders set up within the access tower to the reservoir extended only a few centimetres beyond the various landings. Australian Standard AS 1892.5: 2000 99. Australian Standard AS 1892.5: 2000 Portable ladders Part 5: Selection, safe use and care ("AS 1892.5") sets out the minimum recommended safe practices and requirements for the selection, use and maintenance of portable ladders. 100. AS 1892.5 provides that where a ladder is used to gain access to a working platform the top of the ladder should extend above the level of the working platform by a distance of not less than 1 metre. The ladders set up within the access tower to the reservoir extended only a few centimetres beyond the platforms they respectively accessed. 101. Further, a series of the ladders used in the access tower were "home-made". These ladders were constructed with pieces of metal tubing as the stiles and sections of reinforcing bar for the rungs. The pieces of reinforcing bar were welded to the styles and the rungs were unevenly spaced. The construction of these ladders did not comply with the requirements of the standard. Australian Standard 3610: 1995 102. Australian Standard 3610: 1995 Formwork for concrete ("AS 3610") sets out the requirements for the design, fabrication, erection and stripping of formwork. 103. For the purposes of this code, "formwork" includes "the surface, supports and framing used to define the shape of concrete until it is self-supporting". The definition in the code includes a "note" which states that: This term includes the forms on which the concrete is poured, the supports which withstand the loads imposed by the forms and the concrete, the bracing which may be added to ensure stability, and the footings. When complete the formwork can be known as the formwork assembly. Supports and bracing mentioned above are sometimes known as falsework. 104. Clause 233 of the Occupational Health and Safety Regulation 2000 requires that an employer must ensure that formwork complies with AS 3610. 105. There is no evidence that the Kwitstage formwork system in use at the site was assessed for compliance with AS 3610. 106. There is no evidence that the detailed project documentation with respect to formwork and/or the detailed formwork design and construction documentation required by AS3610 were developed, at any stage, of the project. Although, some rough free-hand drawings and handwritten calculations relating to formwork, on scraps of paper, were located in BGA's papers after the incident. 107. Further, the formwork was erected in a manner that failed to comply with the requirements specified by the manufacturer of the Kwikstage system, including the construction of over-sized bays, the use of non-proprietary components manufactured on site and the removal of standards from the bottom of the formwork to make for a shortage of formwork materials at the top of the formwork. 108. There is no evidence that the home-made components complied with the requirements of the standard with respect to the grade of the materials from which they were manufactured; compliance with the manufacturing and/or testing requirements; and the evidence of visual inspections indicated that the home-made components were inferior in quality to the proprietary components and that the welds were sub-standard. The Code of Practice – Formwork 1998 109. The Code of Practice – Formwork covers the design, planning, preparation and conduct of work for the erecting and dismantling of formwork and associated equipment. 110. The Code provides that preparation should include certification of the formwork drawings by a formwork engineer and compliance with AS 3610, referred to above. There is clear evidence of non-compliance with the AS3610 and no evidence that "formwork drawings", in the sense that term is used in AS3610, were developed by BGA and there is no evidence that any such drawings were certified by a formwork engineer, particularly, given the only "documentation" with respect to the construction of the formwork located amongst BGA's papers are the handwritten drawing and calculations referred to above. 111. Further, the Code provides detailed requirements with respect to each aspect of the preparation, erection and stripping of formwork, including but not limited to: a) The provision of documented work method statements with respect to the conduct of the work; b) The provision of appropriate training and instruction; c) The provision of safe access and egress; d) Minimisation of fall risks and the use of fall protection; e) Compliance with manufacturer's specifications in the use of materials and equipment; and f) Engineering certification of the completed formwork by an appropriately qualified and independent engineer, prior to commencement of any concrete pour, for the purpose of ensuring that the completed formwork is adequate to support all the loads that will be placed upon it during the course of the work. DEPARTMENTAL SUPERVISION OF THE CONTRACT Site inspections, generally and with respect to "Hold points" under the contract relevant to formwork 112. Mr Ooi attended a pre-tender site meeting with the principal contractor, BGA, on 11 February 2002 and site meetings with BGA on 20 May 2002, 22 July 2002, 30 August 2002 and 16 October 2002. Mr Ooi also visited the site on 23 July 2002 with Mr Evans, on 26 July 2002 for the reservoir concrete base pour and on 24 September 2002. 113. Occupational health and safety was a regular agenda item for site meetings, including a site inspection and the issue of whether the WorkCover Authority had visited or taken other action in relation to the site. This is reflected in both the Departmental Construction Work Site Checklist that formed part of the Department's OH&S management system and the various Minutes of site meetings prepared by Mr Ooi. 114. Mr Ooi requested safe work method statements from BGA. 115. But, as noted above, no safe work method statements were ever supplied, even with respect to high risk tasks for which safe work method statements were mandatory under the Department's OHS&R management system. 116. Nonetheless, contrary to its documented system, the Department allowed work to continue on site without safe work method statements having been submitted by BGA, including the performance of high risk tasks such as the erection of formwork for the forming of the reservoir wall, the scaffolding for the access tower and the erection of the formwork for the roof pour. 117. Mr Ooi mounted the scaffolding access tower in the course of more than one site visit. But, despite the obvious faults in the jump form scaffolding and the access tower identified by Mr Wood and Mr Leavy, Mr Ooi did not notice the gaps identified by Mr Leavy and Mr Wood in the top guard rail on the catwalks in the course of any of his site attendances or the faults in the access tower's construction. 118. The only corrective action directed by Mr Ooi during the course of the project with respect to OHS&R on the site related to the "30 August 2002 site meeting" when Mr Ooi requested that BGA install kick plates at the landings in the access tower. BGA apparently complied with this request. 119. When shown photographs of the footings of the access tower set out in Mr Leavy's report, Mr Ooi stated that he was not qualified to comment on the footings and that he could not identify any safety issues on the basis of what was depicted in the photos. Mr Ooi did not identify the lack of bracing in the scaffold access tower as a safety issue. Further, Mr Ooi observed the use of home-made ladders on site but did not consider that the use of home-made ladders raised any safety or non-compliance issues. 120. Based on his own observations of the site, apart from identifying the fact that there were no kickplates on the landings of the access tower, Mr Ooi considered the site to be safe. 121. Mr Ooi inspected the reinforcement and formwork for the reservoir slab prior to the pouring of the concrete. 122. After the ground slab was poured, Mr Ooi, in the purported exercise of his powers as the Superintendent's Representative, re-classified the remaining 9 "hold" points relating to the preparation of formwork and the placement of reinforcement for concrete pours to "witness" points which did not require his attendance at the site and which did not permit testing or inspection at the request of the Superintendent or his representative before work continued. 123. At the time at which Mr Ooi states that he re-classified the remaining 9 hold points relating to the preparation of formwork: · Mr Ooi had not required BGA to produce any design documentation with a view to verifying the adequacy of the jumpform that BGA proposed to use in the construction of the reservoir wall; · Mr Ooi had not required BGA to produce any form of engineering verification of the design drawings for the jumpform that BGA proposed to use in the construction of the reservoir wall; · Mr Ooi did not have the qualifications, knowledge or training to enable him to carry out safety inspections of the jumpform or scaffolding. · Mr Ooi had not conducted a safety inspection of the jumpform either in parts or after its erection for the first wall pour; · Mr Ooi had not required BGA to produce any design documentation with respect to the scaffolding system it proposed to use on site and/or any engineering verification as to its adequacy; · Mr Ooi had not conducted a safety inspection of any scaffolding actually erected on site; · Mr Ooi had not obtained any documentation verifying the qualifications of any employees or subcontractors that BGA proposed to use in the erection of the subject jumpform and/or any other scaffolding or formwork to be erected on site; and · Mr Ooi had not obtained any safe work method statements from BGA with respect to any work to be performed on site – including the erection of the jumpform and any scaffolding to be erected on site. 124. No other inspections were conducted by or on behalf of the Department of the reinforcement and formwork prior to placing of concrete in respect of the other 9 "hold points", including the formwork scaffold for roof of the reservoir. 125. As Mr Ooi treated each of these "hold points" as "witness points" and made no provision for testing or verification of the formwork, the concrete pours for the wall and the roof slab proceeded without any testing, inspection or independent engineering certification that the formwork had been erected in a manner that ensured it was capable of supporting the loads to be placed on it during the course of each of the wall and roof pours. 126. However, the Department's QA instruction OPI 0906 "Site records kept by Field Supervisor" provides that "… at a Witness Point just prior to a concrete pour, [a field supervisor such as Mr Ooi] might expect to be shown a Structural Engineer's report on the inspection of the formwork and reinforcement…". This is reinforced by the DPWS' Inspection and Test Plan Checklist for: REINFORCED CONCRETE which makes reference to both pre-pour checking of formwork and formwork design verification. 127. Mr Ooi attended the site on 16 October 2002. On that day Mr Ooi confirmed that the concrete pour for the 8th and final lift had been completed. Mr Ooi also mounted the access scaffold on that day and attended on the formwork deck that had been constructed for the roof pour where he observed reinforcement that been placed in preparation for the roof pour. 128. Mr Ooi was notified by BGA on 21 October 2002 that it had completed all reinforcement and preparation for the pour of concrete for the reservoir roof such that it was ready for inspection and that it proposed to pour the concrete the following day. Mr Ooi had previously attended the site on 16 October. Mr Ooi again treated this "hold point" as a "witness point" and allowed work to proceed without conducting an inspection and without certification that the formwork had been erected in a manner that ensured it was capable of supporting the loads to be placed on it during the course of the roof pour in accordance with SAA Codes including AS 3610 – 1995 Formwork for Concrete. 129. An internal PMG Quality System Review conducted on 29 August 2002 did not identify any of the failings in Mr Ooi's administration of the contract and/ or his supervision/ monitoring of the subject works, either in his capacity as the contract administrator and/or his capacity as the project manager. In particular, the review failed to identify the fact that no safe work method statements had been submitted to the Department and, in fact, the written checklist completed during the review positively asserts that safe work method statements had been provided. 130. There were no other Departmental audits of Mr Ooi's performance in either his capacity as the Superintendent's representative or as the project manager. Nor were any independent site safety audits conducted by or on behalf of the DPWS during the course of the contract up to the date of the incident. 131. If the Department had identified the subject project as "high risk" or "otherwise sensitive in terms of OHS&R", the Project OHS&R Management System audit contemplated by the Department's Contract Management Procedures would have applied to this project. The Project OHS&R Management System audit is a "systems compliance" audit similar to the type that was performed on 29 August 2002 but, unlike the audit performed on 29 August 2002, the Department's Contract Management Procedures provided that "… the audit team must also inspect the site to determine the general standard of safety on the project." It follows that the audit team would have been required to attend at the site, rather than merely performing a "desk audit" on the contract papers. SUPERVISION, TRAINING AND INSTRUCTION OF KOCK OOI 132. As at 22 October 2002, Mr Ooi had completed an introductory training course for health and safety in the construction industry -colloquially known as a "green card" course. This course lasted a day-and-a-half. 133. The Department's training records indicate that prior to the subject incident Mr Ooi had attended two one-day courses relevant to occupational health and safety management on DPWS sites. Those courses were entitled, respectively, "Safety on Construction Sites" [24 March 1998] and "DPWS Project Safety Management Work Activities OH&S Induction Intermediate" [13 August 1999]. 134. Mr Ooi received no specific training from the Department in relation to the requirements governing the erection of scaffolding, and/or the erection of concrete formwork either in his role as the Superintendent's representative or as a project manager. Nor was he trained to undertake safety inspections of scaffolding, or formwork following its erection. 135. At no stage was Mr Ooi ever tested by the Department regarding his knowledge of the Department's occupational heath and safety policies. 136. As at 22 October 2002, the State employed safety officers within the Department whose job was to assist in the management of occupational health and safety in relation to construction projects under the Department's control. However, at the time of the subject project the Department did not have any safety officers employed in the Department's Riverina-Western Region. 137. Mr Ooi, in his capacity as superintendent's representative, met infrequently with the Contract Superintendent, Mr Ellison. At the time of the contract, Mr Ooi and Mr Ellison were based in separate offices and Mr Ellison seldom attended at Department's Office in Bathurst, where Mr Ooi was based. 138. Similarly, Mr Evans, in his capacity as regional projects co-ordinator, did not provide Mr Ooi with day-to-day supervision in his role as the project manager. Again, Mr Evans and Mr Ooi were based in separate offices. Mr Evans was based in Dubbo. 139. Mr Ooi was subject to a formal review every three months. These reviews were conducted by either Mr Ellison or Mr Evans. None of the reviews conducted by Mr Ellison and Mr Evans resulted in either Mr Ellison or Mr Evans identifying Mr Ooi's failure to comply with the Department's management system with respect to management of occupational health and safety on the site. 140. The site was never subjected to an occupational health and safety audit independent of Mr Ooi, either by, or at the direction of, Mr Ellison or at the direction of Mr Evans. CO-OPERATION WITH WORKCOVER 141. The Department cooperated with WorkCover in the investigation of the incident and throughout the prosecutorial process. 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.