Inspector Walker v Hollingshed Hoist and Haulage Pty Ltd [2011] NSWIRComm 70

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Walker v Hollingshed Hoist and Haulage Pty Ltd [2011] NSWIRComm 70 Hearing dates: 16 May 2011 Decision date: 25 May 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1. The defendant is found guilty of the offence with which it is charged and convicted accordingly. 2. I impose a monetary penalty of $65,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor assessed in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 - guilty plea - appropriate penalty - objective seriousness - inadequate training and risk assessment - relative culpability - commitment to occupational health and safety systems - general and specific deterrence - cooperation with prosecutor - no prior convictions - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 8(1) Category: Principal judgment Parties: Inspector Joanne Walker of the WorkCover Authority of New South Wales (Prosecutor) Hollingshed Hoist and Haulage Pty Ltd (Defendant) Representation: Mr T Howard of counsel (Prosecutor) Mr R Warren of counsel (Defendant) DLA Piper Australia (Prosecutor) Wilson & Co Lawyers (Defendant) File Number(s): IRC 722 of 2010

Judgment 1The Prosecutor, Inspector Joanne Walker of the WorkCover Authority of New South Wales has charged the defendant, Hollingshed Hoist and Haulage Pty Ltd with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The defendant has pleaded guilty and this judgment is concerned only with the question of penalty. 2The application for order by which the proceedings are constituted alleges that the company failed to ensure the health, safety and welfare at work of two employees, Messrs Donald Robins and Michael Sheeley on 7 August 2008 at a building site in Tinonee. These employees were concerned in an operation of a vehicle mounted loading crane owned by the defendant in proximity to overhead power lines. It was asserted that there was a risk of such employees receiving electric shock and burns as a result of the crane coming into contact with electricity. 3The particulars of the charge as set out in the application for order are as follows: 1 The risk referred to in the charge and these particulars is the risk to the health or safety of the defendant's employees, in particular Donald Robins and Michael Sheeley, as a result of operating a vehicle-mounted loading crane in proximity to overhead power lines when unloading goods or materials at or around the premises, being the risk of such employees receiving electric shock and/or burns as a result of coming into contact with electricity; 2 The defendant failed to devise and maintain an adequate system of work to ensure that its employees were prevented from coming within an unsafe proximity of overhead power lines when operating vehicle-mounted loading cranes to unload goods or materials at delivery sites; 3 The defendant failed to ensure that there were procedures in place to ensure compliance with the requirements and guidelines regarding approach distances when working near overhead power lines, and operating cranes and mobile plant near overhead power lines, prescribed in Chapter 3 and Chapter 4 of the Work Near Overhead Power Lines Code of Practice 2006 in that it: 3.1 failed to ensure that, or require its employees at the worksite to ensure that, prior to the start of work near overhead power lines, the height and voltage of overhead power lines at the worksite was assessed; 3.2 failed to determine, or require its employees at the worksite to determine, whether the approach distances described in the Work Near Overhead Power Lines Code of Practice 2006 (regulating the distance that the vehicle-mounted loading crane had to stay away from the power lines) were applicable to the unloading task that its employees were performing; 3.3 failed to assess, or require its employees at the worksite to assess, whether there was a risk of the vehicle-mounted loading crane coming within the 'no go zone' for overhead power lines described in the Work Near Overhead Power Lines Code of Practice 2006 and take steps in accordance with the Code of Practice to eliminate the risk or, if elimination was not possible, to control the risk; 3.4 failed to ensure the completion of a written risk assessment for the delivery to the premises by, or in consultation, with Donald Robins and Michael Sheeley prior to the commencement of the work near overhead power lines being performed; and 3.5 failed to assess, or require its employees at the worksite to assess, whether it would be appropriate to consult with the network operator regarding the proposed work and comply with any conditions imposed by the network operator for the work; 4 The defendant failed to provide adequate instruction, training and information to its employees, including Donald Robins and Michael Sheeley, in relation to working near overhead power lines and, in particular, failed to ensure that its employees received the training and satisfied the competency requirements prescribed by the Work Near Overhead Power Lines Code of Practice 2006; 5 The defendant failed to provide adequate instruction, training and information to Donald Robins and Michael Sheeley so that they did not operate a vehicle-mounted crane in close proximity to overhead power lines unless the risk had been identified, assessed and eliminated or, if elimination was not possible, controlled, in accordance with the Work Near Overhead Power Lines Code of Practice 2006; 6 The defendant failed to provide adequate supervision to its employees including Donald Robins and Michael Sheeley so that they did not operate the vehicle-mounted loading crane unless a safe system of work was in place to prevent employees from coming within an unsafe distance of overhead power lines when operating vehicle mounted loading cranes to unload goods or materials at delivery sites; 7 The defendant failed to undertake any, or any adequate, risk assessment that identified and assessed the risk of working near overhead power lines at the premises and the means by which the risk could be eliminated or controlled, such as: 7.1 Identifying and maintaining safe approach distances from overhead power lines, including by implementing separation measures identified in Section 4.4.2 of the Work Near Overhead Power Lines Code of Practice 2006; 7.2 Consulting with the network operator prior to the unloading work commencing and complying with any special conditions imposed by the network operator; 7.3 Ensuring that, prior to the work commencing, a written risk assessment is completed which considers the matters set out in Section 4.3 of the Work Near Overhead Power Lines Code of Practice 2006; and 7.4 Ensuring adherence to the safety observer requirements identified in Sections 3.9 and 4.7 of the Work Near Overhead Power Lines Code of Practice 2006; 8 The defendant failed to fit its vehicle-mounted loading cranes with a warning notice or label listing the safe approach distances for ordinary persons as prescribed by section 4.9 of the Work Near Overhead Power Lines Code of Practice 2006; 9 The defendant failed to ensure that its employees prepared safe work method statements prior to using vehicle-mounted loading cranes to unload goods in close proximity to overhead power lines; 10 The defendant's director and safety officer were not aware of the requirements of the Work Near Overhead Power Lines Code of Practice 2006; and 11 To the extent that the defendant had identified standard control measures for delivery work by employees, such as not unloading within 3 metres of uncovered power lines, and requiring Energy Australia to be contacted prior to delivery and to 'tiger tail' uncovered power lines, the defendant failed to adequately instruct or train Donald Robins and Michael Sheeley in implementing these procedures, and failed to ensure that an effective process was in place to monitor compliance with its proposed risk control measures; 4The charge alleged that as a result of the failures set out above both named employees "were placed at risk and were injured." An agreed statement of facts was tendered into evidence together with a number of documents including photographs, correspondence between the defendant and third parties, the Australian Standard concerning the safe use of cranes, hoists and winches and the WorkCover New South Wales 2006 Code of Practice dealing with work near overhead power lines. For the defendant, there was tendered into evidence an affidavit of Kellie Hollingshed, a director, which had annexed to it extensive documentation to which I shall refer in these reasons for judgment. 5The agreed statement of facts was in the following terms: 1 At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (Act) and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. 2 The proceedings relate to the investigation of an incident causing injuries to Michael John Sheeley and Donald Hilton Robins on 7 August 2008 when they received electric shocks whilst undertaking work as employees of Hollingshed Hoist and Haulage Pty Ltd at or around a residential construction site at [address deleted] Tinonee in the State of New South Wales. Background 3 At all material times, Hollingshed Hoist and Haulage Pty Limited [ACN 111 129 198] (HHH): 3.1 was a duly incorporated company; 3.2 undertook the business of supplying heavy haulage transport services to a range of clients in all sectors of industry as required; 3.3 was engaged by SBS Newcastle Pty Ltd [ACN 101 370 496] (trading as 'Supaloc') (hereinafter Supaloc) to deliver Supaloc steel pre-fabricated roof trusses to the premises; and 3.4 employed Donald Robins as a truck driver/crane operator and Michael Sheeley as a truck driver/crane operator to perform work at or around [address deleted] Tinonee in the State of New South Wales in the course of HHH's business. 4 At all material times Daniel Hollingshed was the sole director of HHH and a person concerned in the management of HHH. 5 At all material times, Newcastle Quality Constructions Pty Ltd [ACN 003 687 232] (trading as 'McDonald Jones Homes') (NQC): 5.1 utilised, as a place of work, [address deleted], Tinonee, New South Wales and the adjoining street frontage including the area traversed by overhead power lines in so far as it was affected by work being done at [address deleted] Tinonee, New South Wales (premises); 5.2 utilised Russell Jennings as a Building Supervisor for the premises; and 5.3 in the course of its undertaking, ordered Supaloc to supply steel pre-fabricated roof trusses to the premises. HHH and Supaloc 6 On 7 August 2008, HHH employed approximately seven employees including Michael Sheeley and Donald Robins. 6.1 Mr Robins was at the time of the incident a 47 year old truck driver/crane operator employed by HHH. 6.2 Mr Robins had become a permanent employee of HHH in March 2007 and had been a casual employee since 1 November 2006. 6.3 Mr Sheeley was at the time of the incident a 41 year old casual truck driver/ crane operator. 6.4 Mr Sheeley had been a casual employee of HHH since 11 July 2008. 7 HHH was routinely engaged by Supaloc, by way of a verbal agreement, to transport steel frames and trusses manufactured by Supaloc to various construction sites including those of NQC. There was no written agreement between HHH and Supaloc other than a series of delivery schedules which detailed the items to be delivered and the addresses to which they were to be delivered. One such delivery was that undertaken by Mr Robins and Mr Sheeley to the premises on 7 August 2008. The incident 8 Pursuant to the agreement between Supaloc and HHH, a large quantity of frames and trusses was delivered to the premises on 7 August 2008 by Mr Robins and Mr Sheeley. Mr Robins and Mr Sheeley initially arrived at the Supaloc premises at Lot 13-15 Old Punt Road, Tomago at approximately 6am on that day. Mr Robins was driving an IVECO single axle rigid truck registration number AK 72 CM. Mr Sheeley was driving an S Line 3600 International prime mover registration number AF 22 XE with attached trailer registration number Q25330 (semi trailer). The IVECO had a Palfinger PK 10500 vehicle loading crane mounted behind the cabin and the semi-trailer had a Palfinger PK 13000 vehicle loading crane behind the cabin. The trucks, trailer and Palfinger cranes were all owned by HHH. 9 On arrival at the Supaloc premises Mr Robins and Mr Sheeley parked the trucks and signed into the site. They were assisted by Bruce Barrance who was an employee of HHH, and also by a yardman employed by Supaloc, to load the IVECO with two Supaloc steel frame wall packs. They then loaded the semi trailer with two Supaloc steel frame packs. Following this, the IVECO was loaded with a small roof truss pack and then the semi trailer was loaded with the main roof truss pack. 10 The Supaloc steel roof trusses and wall frames were strapped into packs at the Supaloc premises prior to transport to the premises at Tinonee where the construction work was being undertaken. During the loading operation at Tomago slings were placed around the roof truss and wall frame packs for the purpose of lifting and loading them onto the trucks. The slings remained in place during the transport so that re-slinging was not required when unloading at the delivery site. 11 Mr Robins and Mr Sheeley departed from the Supaloc site at Tomago at approximately 8:00am on 7 August 2008 and travelled north to Tinonee in accordance with the applicable delivery schedule. 12 They arrived at the premises between 10:00am and 10:30am. 13 On arrival Mr Sheeley observed a concrete truck parked in front of the premises pumping concrete. He also saw concreters working at the premises laying a slab. 14 Mr Sheeley parked the semi trailer down the road from the premises and then he and Mr Robins walked up to the premises and walked around the construction site for the purpose of carrying out a visual inspection of the site prior to commencing the unloading work to look for hazards such as trenches, powerlines and services. 15 Mr Robins and Mr Sheeley decided to unload the semi trailer first. 16 After the concrete truck left the premises Mr Sheeley positioned the semi trailer parallel to the concrete kerb on the northern side of the premises, facing oncoming traffic in preparation for the unload. 17 Mr Sheeley observed that the semi trailer was in close proximity to an insulated low voltage overhead power line which crossed the street. He reversed the semi trailer a few metres so that it was not directly under the low voltage overhead power line. 18 He then exited the semi trailer and operated the hydraulics of the semi trailer's crane to position the outriggers so that the unloading of the frames and trusses could proceed. He positioned the northern side stabiliser leg approximately 1-2 metres onto the grass-covered ground and Mr Robins together with Mr Sheeley packed softwood timber off-cuts from the site underneath the northern side stabiliser leg, as the hardwood timber supplied on the semi trailer was too large to fit under the stabiliser leg. The southern side stabiliser leg was positioned onto the asphalt roadway. 19 Mr Sheeley proceeded to remove the strapping securing the load on the semi trailer and discussed with Mr Robbins where they were going to place the main roof truss pack. 20 Mr Sheeley commenced operating the Palfinger crane from the controls on the northern side of the semi trailer. Mr Sheeley was aware that high voltage power lines were in the vicinity and was relying on Mr Robins to direct him in the crane operation. 21 Mr Robins was on the back of the semi trailer and hooked the main roof truss pack to the hook of the crane using the slings already in place from the loading process. 22 Mr Sheeley then commenced lifting the load, slewed it about 90 degrees, away from the semi trailer and observed the northern side stabiliser leg and packing timbers start to sink into the ground. He called out to notify Mr Robins of the problem. Mr Robins, who was on the other side of the load, was unable to hear Mr Sheeley so Mr Sheeley lowered the load to the ground. 23 Mr Robins then came over to Mr Sheeley and they had a discussion and decided to re-position the stabiliser leg. 24 Mr Sheeley retracted the northern stabiliser leg and repositioned it, by raising and moving the stabiliser leg back towards the semi trailer and setting it down on timber packing onto the lower part of the concrete kerb and guttering. 25 Mr Sheeley, under the direction of Mr Robins, then operated the Palfinger crane to re-lift the load of roof trusses that had been placed on the ground. The load was moved a short distance onto the construction site, to where Mr Sheeley and Mr Robins had previously intended it to be placed. 26 Once the load was in position one end of the slings were un-hooked by Mr Robins leaving the other end of the slings attached to the crane. 27 In the course of the unloading, Mr Robins directed Mr Sheeley to jib in and slew right. Mr Sheeley was unable to see the end of jib because of the position of the sun but continued to slew right according to the directions he was receiving from Mr Robins. 28 Mr Sheeley continued operating the crane controls retracting the jib and slewing back towards the truck. The jib of the crane extended approximately 10 metres. 29 The next moment Mr Sheeley experienced pain go through his hands and was suddenly thrown backwards a few metres away from the semi trailer's Palfinger crane controls to the ground as he had received an electric shock. He was unable to speak or call out for help. As this was occurring the jib of the crane had made contact with a high voltage (11,000 volt) overhead power line that was 9.6 metres above ground level. 30 Mr Robins then ran over and took hold of the Palfinger crane controls. He received an electric shock also and begun to convulse. He turned his head and attempted to mouth some words but was unable to speak. 31 Mr Sheeley ran over and attempted to grab hold of Mr Robins around the shoulder area but received another electric shock and was again thrown backwards onto the ground. He managed to get to his feet again and begun to shout for help. He saw a lifting sling laying on the ground. He picked it up and lassoed Mr Robins with the sling in an attempt to pull him from the crane controls. He was unable to release Mr Robins from the crane controls. He tried a second time and was successful in separating Mr Robins from the crane controls. Mr Robins had lost consciousness by the time he had been dragged clear of the crane. Mr Robins, with the assistance of a neighbouring resident, an off duty police officer named Constable David Mathews, assessed Mr Robin's vital signs and commenced CPR for approximately 20 minutes until NSW Ambulance Service personnel arrived at the premises. 32 Ambulance personnel took over the resuscitation of Mr Robins and used a defibrillator to give an electric shock to his heart prior to transporting him to Manning Base Hospital in Taree. Mr Robins was subsequently transferred by helicopter to the burns unit at Royal North Shore Hospital. 33 Mr Sheeley was also treated on site by ambulance personnel and he declined to be taken to hospital or to receive any further treatment, although later that evening he voluntarily attended a hospital. Injuries 34 As a result of the incident Mr Robins sustained a high voltage electric shock and went into cardiac arrest and was resuscitated on site. He sustained electrical burn injuries to his left arm, left hand and right thigh and underwent traumatic amputation of his left forefoot. Mr Sheeley also received a high voltage electric shock and suffered painful hands and ongoing post-traumatic psychological injury as a result of the incident. Investigation 35 The Prosecutor undertook a formal investigation into the incident after there had been an initial response and factual inquiry by Inspector Hugh Corner from WorkCover following the incident. A prohibition notice was issued by Inspector Corner on HHH requiring that the semi trailer be moved to a safe place and not otherwise interfered with until noon on Friday 8 August 2008. That notice was complied with. Prior to the incident 36 HHH employed Kellie Hollingshed (Mr Daniel Hollingshed's wife), to run the office of HHH's business. 37 Kellie Hollingshed was at all material times the OHS officer for HHH. Prior to the incident HHH had, from time to time, engaged Howe Safe to provide advice on implementing safe work method statements. 38 Neither Daniel Hollingshed nor Kellie Hollingshed had been to the premises at Tinonee (approximately 2 hours away) prior to the incident. 39 On 4 July 2008, Kellie Hollingshed consulted with Chelsey Scarr, an employee of Supaloc, to outline a number of general concerns raised by HHH's employees (including Mr Robins) about deliveries to NQC sites. Daniel Hollingshed was aware of these concerns. 40 Ms Scarr asked Ms Hollingshed to document the concerns and send them to Supaloc so that they could be taken up by Supaloc with NQC. 41 Ms Hollingshed then began preparing a letter to Supaloc, which she sent to Supaloc on 17 July 2008. The letter read, in part: 'As per previous conversations regarding the delivery of your frames and trusses, our drivers are encountering a number of situations with McDonald Jones sites that are causing us concern. These issues are appearing more frequently as of late and we are hoping you may address these with McDonald Jones site supervisors. The main problems with the sites are as follows: ... Power lines - Job sites that have overhead power lines at the front of the site are hazardous for our operators whilst using the crane. By law we are unable to unload within 3 metre (sic) of uncovered power lines. For sites with power lines, Energy (sic) Australia need to be contacted prior to delivery and lines need to be 'Tiger tailed' or covered to allow safe unloading.' 42 Following receipt of the letter Supaloc attempted to arrange for HHH and Supaloc to meet at the offices of NQC. The Supaloc site supervisor, Colin Hicks, handed a copy of the letter to Mr Graeme Beecroft, the NQC Building Manager on 24 July 2008, some two weeks before the incident. 43 The letter was not passed on to Russell Jennings, the Building Supervisor for NQC who had responsibility for the premises. Nor was Mr Jennings made aware of the concerns expressed in the letter. 44 The Managing Director of NQC said, in a record of interview dated 29 July 2009, that he had seen the letter, but was not aware of any action taken in response to the concerns raised within the letter at that point in time. This letter had not been actioned by NQC at the time of the incident. ... HHH and Daniel Hollingshed 56 Daniel Hollingshed had a 'hands-on' role in the day to day activities associated with the business of HHH and was in a position to influence the conduct of the corporation in terms of occupational health and safety and other matters. His duties included management of the company, customer liaison, quoting and tendering and allocation of the trucks and drivers. Mr Hollingshed was the decision maker in terms of day to day operations of HHH. His duties also included truck driving and crane operation, delivering Supaloc frames and trusses, sometimes on a daily basis, on average approximately three days per week. 57 HHH had a safe work method statement (SWMS) formulated for the general task that Donald Robins and Michael Sheeley were undertaking at the premises on 7 August 2008. The SWMS had been formulated by Kellie Hollingshed and How Safe. 58 How Safe had provided training on the SWMS when it was first implemented, years before the incident. 59 Mr Robins had been specifically instructed by Kellie Hollingshed to complete the SWMS, and had been taken through the document and been given instruction on how to complete it. However, Mr Robins admitted to never completing the SWMS and HHH had not checked to ensure that Mr Robins completed SWMS's. 60 Mr Sheeley, a relatively new employee, had not received training or instruction to use the SWMS before the incident. 61 Kellie Hollingshed also formulated an on-site safety risk assessment document titled 'Truck and Vehicle Loading Crane' approximately 6-8 weeks prior to the incident, but had yet to fully implement the document or enforce its use. 62 Neither the SWMS nor the on-site safety risk assessment document specifically dealt with overhead powerlines. 63 Neither HHH nor its director Daniel Hollingshed nor its OHS officer Kellie Hollingshed had seen the WorkCover NSW publication titled 'Work Near Overhead Power Lines Code of Practice 2006 (Code of Practice) prior to the day of the incident nor incorporated the requirements of the Code of Practice into the SWMS. 64 Mr Robins and Mr Sheeley did not complete a documented risk assessment for the work activities they were undertaking prior to the incident. Mr Sheeley was aware of the power lines but they did not formally assess, in accordance with the Code of Practice, the height and voltage of the overhead power lines at the premises. Neither HHH, Mr Robins or Mr Sheeley formally assessed whether the approach distances described in the Code of Practice (regulating the distance that the vehicle-mounted crane had to stay away from the power lines) were applicable to the unloading task that they were performing on the day, or whether consultation with a network operator would be appropriate. 65 Neither HHH nor its director Daniel Hollingshed nor its OHS officer Kellie Hollingshed had seen the applicable standard, Australian Standard, AS 2550, 2004 (Standard) pertaining to the safe use of cranes, hoists and winches and in particular Part 11, vehicle loading cranes, prior to the day of the incident nor incorporated the requirements of the Standard into the SWMS. 66 As at 7 August 2008, in his capacity as the director of HHH, Daniel Hollingshed had not carried out any inspection in respect of the premises. He was aware that Russell Jennings, from NQC, was the site supervisor for the premises but as at 7 August 2008 Mr Hollingshed had not had any contact or communication with Mr Jennings. 67 HHH provided induction training to Mr Robins at the commencement of his employment. The induction was of a generic nature, involving provision of HHH's OHS manual and covering general OHS issues. When he commenced employment with HHH, Mr Robins was buddied up with Daniel Hollingshed for one day and then with a more experienced driver for a week prior to being allowed to load and unload trucks unassisted. 68 When Mr Sheeley commenced employment with HHH he initially begun working as an offsider to another driver and then begun driving a truck on his own but was almost always with other experienced employees at the various sites for loading and unloading. 69 Daniel Hollingshed assessed the competency of both Mr Sheeley and Mr Robins prior to either working unaccompanied. As at 7 August 2008 Mr Sheeley had only worked unaccompanied on about four occasions. 70 There were no formal records of training kept by HHH. HHH did not provide any information, instruction or training to Mr Robins, Mr Sheeley or its other employees in accordance with the Code of Practice. 71 Mr Robins and Mr Sheeley had undertaken training with previous employers in relation to work near overhead power lines however that training had lapsed prior to the date of the incident (Mr Robins estimated that his last training course was in 2002) and was not in accordance with the requirement for annual re-assessment or re-training in Section 3.8.2 of the Code of Practice. HHH had paid for Mr Robins to obtain his National Certificate of Competency licence approximately a year before the incident. 72 Prior to and as at the incident date, HHH consulted with their employees on health and safety matters by way of informal discussion and ad hoc tool box talks which were not recorded or minuted. 73 The vehicle-mounted crane that was involved in the incident did not contain a warning notice or label listing the safe approach distances for ordinary persons as prescribed by section 4.9 of the Code of Practice. Steps taken after the Incident 74 After the incident, HHH undertook an investigation carried out by Kellie Hollingshed which identified shortfalls in HHH's systems of work. A report was prepared detailing actions to be taken to prevent a re-occurrence of an incident of the kind which occurred on 7 August 2008. 75 On 11 August 2008 HHH held a safety meeting with all their employees and provided them with further instructions relating to the use of the SWMS and on site safety risk assessment for the set up and use of the vehicle loading cranes. Drivers were also instructed at this meeting that if they arrive at sites where overhead power lines are present at the front of sites and they were not tiger-tailed, then the drivers are required to return the loads to the NQC yard at Tomago. 76 Since the incident HHH has also purchased a number of thinner but stronger crane stabiliser pads for use under the stabiliser legs of the vehicle loading cranes. It also updated its SWMS and risk assessment to make it more specific to vehicle loading cranes. The risk assessment is now more specific and to the vehicle loading cranes and includes a section on overhead power lines. 77 In December 2008, HHH arranged for its employees to complete training on work near overhead power lines with a registered training organisation. 78 On 5 September 2009 a meeting was held between representatives of HHH, NQC and Supaloc for the purpose of discussing the issues that had been highlighted prior to the incident in the letter that Kellie Hollingshed had emailed to Chelsey Scarr at Supaloc on 17 July 2008. As a result of the meeting a number of changes in relation to safety were made by NQC regarding their residential construction sites. These changes include nominating in quotations that power lines are present. If they are deemed too close for HHH and haulage drivers to unload the frames and trusses safely, McDonald Jones organise a Franna crane to unload the HHH trucks. 79 On 9 September 2008, Supaloc developed and introduced a truss and frame delivery checklist that is completed in consultation with NQC site supervisors on the day prior to a scheduled delivery to a NQC site. The truss and frame delivery checklist is then faxed to HHH and a copy is provided to HHH drivers when they arrive at the Supaloc site to load the frames and trusses along with location maps for the delivery address and any other specific site instructions regarding a delivery site address. 80 NQC also implemented a SWMS, and a policy with regard to working near overhead power lines. The policy dated 27 March 2009, includes requirements for installing 'tiger tails' in certain circumstances, and requires the following steps to be carried out when cranes or plant equipment is to be used near overhead power: 80.1 McDonald Jones SWMS to be completed before site start; 80.2 Copy of SWMS is to be issued to the site supervisor; 80.3 SWMS is to be issued to all contractors working on site; 80.4 A copy of the contractors' SWMS must be obtained by NQC before the contractor starts work on site. 81 Since the incident McDonald Jones have employed a Procurement Manager to ensure more effective OH&S control on the suppliers of goods and services to sites. New systems of work have been implemented to eliminate/reduce the hazards and associated risks to a reasonably practicable level. NQC employed an OH&S Manager with previous construction experience and results in the implementation of practical OH&S systems. NQC also conducted a comprehensive review and implemented a new OH&S management system. They also received Australian Standards AS 4801 OHSMS accreditation in the design and project management of new homes in July 2009. 82 Following the incident, where possible, Daniel Hollingshed inspects sites before delivery if any hazardous issues have been identified in the delivery checklist. Code of Practice and Standard 83 HHH and NQC failed to comply or ensure compliance with the Code of Practice, which contains provisions including: 83.1 A preface that states that the Code of Practice will assist employers, self-employed persons, employees, contractors and other parties involved in managing electrical risks associated with work near overhead power lines. 83.2 Section 3.2.1 - 'Prior to the start of any work near overhead power lines it is essential that the height and voltage of the overhead power lines ... be assessed at the worksite.' 83.3 Section 3.2.2 - '.... Employers, self-employed persons and controllers of premises should determine the applicability of the approach distances described in the code for particular work circumstances and, if considered appropriate, specify greater approach distances for the work.' 83.4 Section 3.4 - sets out certain approach distances for cranes to power lines 'based on completion of a written risk assessment prior to the commencement of work, application of a safe system of work, which includes the use of a safety observer, and if determined by the written risk assessment, consultation with the network operator regarding the proposed work and compliance with any conditions imposed by the network operator for the work.' 83.5 Section 3.7 - sets out general risk management principals which should be considered when employers implement a safe system of work including: 83.5.1 The employer has in place an effective risk management process, as part of a systematic occupational health and safety management system. 83.5.2 Appropriate workplace hazard identification and written risk assessments are carried out as required by the OHS regulation in consultation with the workers performing the work; 83.5.3 Consultation with the network operator regarding the proposed work and compliance with any conditions imposed by the network operator for the work. 83.5.4 The approach distances used are appropriate for the levels of accreditation of the workers performing the work; 83.5.5 Operators and other workers are provided with information and instruction about the safety precautions needed and the requirements of the Code of Practice, as well as appropriate training, supervision and safe work practices and procedures. 83.5.6 Workers are competent to carry out the work concerned. 83.5.7 An effective process is in place to monitor compliance with the adopted risk control measures safe work practices and procedures for work carried out near overhead power lines. 83.6 Chapter 4 of the Code of Practice deals with specific issues such as hazard identification, risk assessment and control measures for operating cranes and mobile plant near overhead power lines. Section 4.4 states that 'the highest practical level of control should be used'. One such approach is 'by arranging for the network operator to isolate the electricity supply for the duration of the work' (section 4.4.1). Section 4.4.1 raises the prospect of eliminating the risk and states that the employer, self-employed person or operator of the crane or mobile plant should: 83.6.1 Discuss options for de-energising or re-routing the electricity supply with the network operator or in the case of work involving private overhead power lines, the person in control of the premises; 83.6.2 Consider working at another time when the electricity supply can be isolated; and 83.6.3 Investigate whether the section of the overhead power lines that needs to be de-energised can be isolated, while leaving the remainder connected. 83.7 Section 4.4.2 of the Code of Practice states that if the risk cannot be eliminated, then 'separate' the hazard by steps such as: 83.7.1 Using an alternative crane or mobile plant which cannot encroach on the approach distances; 83.7.2 Limiting the hoisting, slewing or other movements of the crane or mobile plant such as through mechanical stops, mechanical constraints or using cranes fitted with programmable zone limiting devices; 83.7.3 Setting up the crane or mobile plant in a position that keeps the design envelope outside the approach distance. 83.8 Section 4.4.3 of the Code of Practice states that elimination and separation controls should be supported by administrative controls such as managing and supervising the work. 84 The Standard contains requirements and guidelines for vehicle-loading cranes including: 84.1 Section 4.3.1(a) - 'Consideration shall be given to the presence of proximity hazards such as overhead power lines'. 84.2 Section 5.4.2 - 'The vehicle-loading crane shall only be operated within close proximity of live aerial conductors, if the separation distance appropriate to the "no-go zone" or 'spotter-required-zone', and the risk controls given in clause 5.4.3 are maintained. A site-specific risk assessment shall be completed before the commencement of work by a trained and competent person'. 84.3 Section 5.4.3 - 'Where the separation distances [ie those set out in the Standard for separation from power lines] cannot be achieved, the electricity distributor shall be notified in writing. The vehicle loading crane shall not be operated within the "no go zone" until the applicable requirements below are satisfied.' 6I have deleted from the agreed statement of facts the precise address of the property at Tinonee. I have also deleted a section of the agreed statement of facts ([45] - [55] inclusive), which refers to some aspects of the operation of Newcastle Quality Constructions Pty Ltd which are irrelevant for the purpose of these proceedings and which might arguably contain material critical of that company.