Inspector Duncan v Enright and Mainbrace Constructions (NSW) Pty Ltd [2011] NSWIRComm 8

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Duncan v Enright and Mainbrace Constructions (NSW) Pty Ltd [2011] NSWIRComm 8 Hearing dates: 16 December 2009; 18 March 2010; 18 October 2010; Notice of Motion 4 February 2011 Decision date: 23 February 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: In relation to Oliver Joseph Enright : (i) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by virtue of the operation of s 26(1) of that Act as particularised in Matter No IRC 376 of 2009 to which the defendant entered a plea of guilty; (ii) the defendant is fined the sum of $9,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. In relation to Mainbrace Constructions (NSW) Pty Ltd: (i) the defendant's Notice of Motion is dismissed; (ii) the defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 378 of 2009 to which the defendant entered a plea of guilty; (iii) the defendant is fined the sum of $165,000 with half that sum to be paid to the prosecutor by way of moiety; (iv) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1), s 8 (2), s(26)(1) - director of bankrupt company and corporation acting as head contractor enter pleas of guilty to separate charges - work involving construction of brick and/or concrete block free standing and integrated walls - free standing wall collapses on bricklayer - fatal injury - absence of safe system of work - failure to adequately brace or support walls - failure to ensure lateral loads not placed against walls, not braced or supported - failure to ensure employees and non-employees do not work within vicinity of unbraced or unsupported wall - failure to undertake adequate risk assessment - failure to provide adequate information, instruction, training and supervision - serious breach - culpability of defendants broadly equal - general and specific deterrence - early pleas entered - numerous subjective factors - offences proved - penalties imposed