Inspector Nikolovski v Michael John McCrudden [2011] NSWIRComm 45

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nikolovski v Michael John McCrudden [2011] NSWIRComm 45 Hearing dates: 14 February 2011; 15 February 2011; 16 February 2011 Decision date: 12 April 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: The defendants are guilty of a breach of s 10(1) of the Occupational Health and Safety Act as particularised by the Amended Application for Order. The parties are to contact my Associate with details of their availability for the purposes of listing the sentencing hearing. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 10(1), s 26 - industrial building project - roofing work sub-contracted - requirement to safety mesh roof before laying roofing sheets not followed - effective control of work by defendant - failure to implement and maintain safe system of work - failure to provide fall protection - failure to conduct adequate risk assessment - failure to adequately supervise - failure to induct roofing workers - roofing sub-contractor falls from roof and suffers fatal injury - defendant alleges builder responsible for erection of scaffolding and handrails to protect roofing sub-contactor - defendant alleges builder paid cash to roofing sub-contractor to ignore safety rules and to work as directed by builder - allegation of effective control passing to builder because of cash payments - lack of evidence to support defendant's allegations - defendants' non-delegable responsibility under Act to ensure safety of sub-contractors - responsibility not removed because of sub-contracting arrangements - offence proved Legislation Cited: Occupational Health and Safety Act 2000 s 10(1) s 26(1) Cases Cited: Inspector Chadwick v Denbur Constructions Pty Ltd [2004] NSWIRComm 195 at [18] McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464 Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 43 WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (No 2) (2003) 121 IR 283 at [42] Category: Principal judgment Parties: Inspector Nikolovski (Prosecutor) Michael John McCrudden (Defendant in 09/1169) CJM Roof Services Pty Ltd (Defendant in 09/1171) Representation: Mr R Reitano of counsel (Prosecutor) Mr J Pearce of counsel (Defendants) Criminal Law Practice, Legal Group, WorkCover Authority of NSW (Prosecutor) Adams and Partners Lawyers (Defendants) File Number(s): IRC 1169 and IRC 1171 of 2009