Inspector Estreich v Parker Hannifin (Australia) Pty Ltd [2011] NSWIRComm 11

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Estreich v Parker Hannifin (Australia) Pty Ltd [2011] NSWIRComm 11 Hearing dates: 21 February 2011 Decision date: 02 March 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (i) the defendant, Parker Hannifin (Australia) Pty Limited, is found guilty of a breach of s 10(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order to which it entered a plea of guilty; (ii) the defendant is fined the sum of $110,000 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 as agreed and in the absence of agreement, as assessed and ultimately ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 10(1) - tri-partite franchise arrangements - defendant franchises service centres - defendant and service centres franchise territory for Hose Doctor business - Hose Doctor business services customers with defendant's products - defendant has substantial control over Hose Doctor franchisees but regards them as independent contractors responsible for their own occupational health and safety systems - Hose Doctor provides and fits out own trucks to provide service to defendant's clients - defendant lays down no safety rules for operation of Hose Doctor - Hose Doctor transports dangerous gases but without provision of proper ventilation - explosion in Hose Doctor's truck - widespread damage and injury to driver - guilty plea entered - serious breach established - simple steps available to address risk - general and specific deterrence considered - numerous subjective factors - early plea - first offender - good safety record having regard to the nature and size of business and length of operation - co-operation with WorkCover investigation - defendant good corporate citizen - contrition and remorse established on evidence - penalty imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 21A(3)(i) Occupational Health and Safety Act 2000, s 10(1) Cases Cited: Inspector Townsend v Carrier Air Conditioning Pty Ltd [2008] NSWIRComm 74 Category: Principal judgment Parties: Inspector Pamela Estreich (Prosecutor) Parker Hannifin (Australia) Pty Ltd (Defendant) Representation: Reitano of counsel (Prosecutor) M Cleary of counsel (Defendant) WorkCover Legal Group Criminal Law Practice WorkCover Authority of New South Wales (Prosecutor) Corrs Chambers Westgarth (Defendant) File Number(s): IRC 470 of 2010