Inspector Phillip Estreich v TLC Plumbing & Bathrooms Pty Ltd [2011] NSWIRComm 121

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Phillip Estreich v TLC Plumbing & Bathrooms Pty Ltd [2011] NSWIRComm 121 Hearing dates: 5 August 2011 Decision date: 08 August 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1 In Matter No IRC 122 of 2011, I find the corporate defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $80,000 with a moiety to WorkCover Authority of New South Wales. 3. In Matter No IRC 123 of 2011, I find the individual defendant guilty of the offence as charged. 4. The defendant is fined in the sum of $18,000 with a moiety to WorkCover Authority of New South Wales. 5. There shall be one order as to costs. The defendants are to pay costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breaches of s 8(1) of the Occupational Health and Safety Act 2000 - corporation sub-contracted to perform plumbing services - explosion and fire cause injury and property damage - individual defendant had managerial responsibility on site over apprentices - system of work in place - failure to properly explain system - foreseeable element to offence - obligation to provide extra care and instruction to apprentices - general and specific deterrence an element of penalty - remorse and contrition demonstrated - maximum penalty differs - penalties Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Occupational Health and Safety Act 2000 (NSW) Cases Cited: Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Tyler v Sydney Electricity (1993) 47 IR 1 Category: Principal judgment Parties: Inspector Phillip Estreich (Prosecutor) TLC Plumbing & Bathrooms Pty Ltd (First Defendant) Michael William Causer (Second Defendant) Representation: R Reitano of counsel (Prosecutor) G A Farmer of counsel (Defendants) WorkCover Authority of NSW (Prosecution) Tiernan Lawyers (Defendants) File Number(s): IRC 122 of 2011 IRC 123 of 2011