Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector McGrath v Gould Bros & Co Pty Ltd [2011] NSWIRComm 127 Hearing dates: 8 September 2011 Decision date: 23 September 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) In each of matters IRC 1051, 1053 and 1054 of 2010, the defendant, Gould Bros & Co Pty Ltd, is found guilty of each of the charges and convicted accordingly. 2) A monetary penalty for each charge of $100,000 is imposed, with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1), s 8(2) of the Occupational Health and Safety Act 2000 by the defendant - early guilty pleas - objective seriousness - serious offence - foreseeable risk - general and specific deterrence - commitment to occupational health and safety - defendant unlikely to re- offend - remorse and contrition - good corporate citizen - prior convictions - totality principle - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 8(1), s 8(2) Cases Cited: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Category: Principal judgment Parties: Inspector Cherie McGrath of the WorkCover Authority of New South Wales (Prosecutor) Gould Bros & Co Pty Ltd (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Mr J Darams of counsel (Defendant) Legal Group, WorkCover Authority of New South Wales (Prosecutor) Wotton + Kearney Lawyers File Number(s): IRC 1051 of 2010 IRC 1053 of 2010 IRC 1054 of 2010 Judgment 1The prosecutor, Inspector Cherie McGrath of the WorkCover Authority of New South Wales, has charged the defendant, Gould Bros & Co Pty Ltd, with three breaches of the Occupational Health and Safety Act 2000 ("the Act"). The defendant pleaded guilty to each of the charges and this judgment is concerned only with the question of penalty. 2Each of the charges arose out of the same factual situation. It is convenient, before describing the charges, to set out the agreed statement of facts, which was tendered into evidence and which is as follows. 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 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in this matter. 2. At all material times GOULD BROS & CO PTY LTD [ACN 000 018 682] was a corporation whose registered office is situated at Farrow Wyatt, 20 Church Street Maitland, in the State of New South Wales. 3. At all material times Gould Bros & Co Pty Ltd ("Gould Bros") was a body corporate and entitled to be prosecuted in that name and style. 4. At all material times, Gould Bros carried on business in the State of New South Wales supplying timber and building products to the construction industry. 5. At all material times Gould Bros employed Ian Whitehead, General Manager, Bazil Wilcher Upper Hunter Area Manager and, Bradley Moran, Store Manager of Gould Bros existing retail facilities in Scone. 5. [sic] At all material times John Cooper trading as John Cooper Building was a sole trader ("John Cooper Building"). 6. John Cooper Building was engaged by Gould Bros to perform construction works, specifically the interior fit out at the corner of St Aubins and Guernsey Streets, Scone ("the premises"). 7. At all material times John Cooper Building was a host employer for two Housing Industry Australia Limited apprentices Benjamin Clark and Nicholas Whitehead. 8. At all material times John Cooper Building sub contracted Shaun Seckold to perform carpentry work. 9. At all material times Donald Adams was an Electrical Contractor. Donald Adams was contracted by Gould Bros to undertake electrical work at the premises. Circumstances Prior to the Incident 10. Gould Bros were undertaking a construction project at the premises. The project involved the construction of a new trade retail facility. The new trade retail facility was constructed of a steel framed structure with an interior fit out. The new trade retail facility was being constructed adjacent to Gould Bros existing retail facilities in Scone. The cost of the works associated with the project was approximately $1 million. 11. Gould Bros did not appoint a principal contractor for the works at the premises. Gould Bros engaged a range of contractors to complete the works at the premises. Gould Bros engaged Jolea Holdings Pty Limited trading as Tri Steel ("Tri Steel") in early 2008 to construct and erect the steel framed structure. Gould Bros engaged John Cooper Building to construct the interior fit out of the building which included the construction and fit out of offices, inside the steel structure which had been constructed by Tri Steel. 12. In the absence of a principal contractor, Gould Bros appointed its Upper Hunter Area Manager, Bazil Wilcher as the site co-ordinator for the construction project. Bazil Wilcher had been employed by Gould Bros for approximately 29 years. Bazil Wilcher did not have any prior experience as a site co-ordinator of commercial construction works. He had not completed the general construction induction course. Bazil Wilcher received no information or training in relation to the construction industry or his responsibilities to subcontractors that were under his supervision. 13. Whilst acting as site co-ordinator, Bazil Wilcher was responsible for the supervision and coordination of activities and tradespeople at the site, including the provision of information and advice to contractors on behalf of Gould Bros. 14. Bradley Moran was employed as the Branch/Store Manager of the Gould Bros building centre in Scone. He had been employed in that capacity for approximately 19 months. He was responsible for the everyday running of the building centre, including the management of staff and customer relations. During the course of the construction works Bradley Moran assisted Bazil Wilcher with some of the design work and the organisation of materials. 15. On 12 September 2008, Bazil Wilcher commenced annual leave. Bradley Moran was acting in a caretaker role as Site Co-Ordinator while Bazil Wilcher was away on leave. 16. On 16 September 2008, John Cooper and his work crew consisting of Shaun Seckold, Benjamin Clark and Nicholas Whitehead ("work crew") commenced work at the premises. 17. On 16 September 2008, John Cooper undertook a tool box talk with his work crew. John Cooper discussed with his work crew the work that the job entailed and discussed the content of a number of generic Housing Industry Association Safe Work Method Statements, including "Installation of Upper Floor Sheet Flooring for Joist Spacing up to 600mm', 'Installation of Upper Floor Wall Frames' and 'Working at heights'. John Cooper and his work crew each signed and dated the Safe Work Method Statements. 18. As part of the Toolbox Talk, one of John Cooper's work crew, Benjamin Clark, raised the issue of how the work crew would safely install the first platform (floor sheets of the mezzanine level). John Cooper's reply was that scaffold would be used until the first sheet was fixed in place. Once flooring was laid there would be no one allowed near the edge of the deck. The workers were told by John Cooper to "work with full awareness, there was a big step on the edges". 19. On 16 September 2008, John Cooper and his work crew commenced work on the construction and fit out of office buildings inside the existing steel structure which had been constructed by Tri Steel. 20. The first task that they undertook was the installation of lower wall frames. 21. On 17 September 2008, John Cooper and his work crew set out floor joists for the floor of the mezzanine level. 22. On 18 September 2008, John Cooper and his work crew commenced installing the sheet flooring for the mezzanine level. The floor of the mezzanine level was approximately 2.95 metres from the concrete floor below. 23. A mobile scaffold consisting of two aluminium A-frames with two planks laid across them was used to lay the first sheets of flooring on the mezzanine level. 24. Once the first sheets of flooring were laid John Cooper then directed his work crew to kneel down on the first row of floor sheeting, whilst they were nailing in the subsequent floor sheeting and to be careful not to fall. Whilst undertaking this task the John Cooper's work crew were working within one metre of the leading-edge of the floor sheeting. 25. John Cooper's safe work method statement for "Installation of Upper Floor Sheet Flooring for Joist Spacing up to 600mm', required that whilst constructing the floor of the mezzanine level John Cooper to install edge protection at the leading edge of the floor of the mezzanine level. 26. John Cooper did not install or erect at the leading edge of the mezzanine floor secure perimeter screens, fencing, handrails or other forms of physical barriers whilst his work crew were performing the work of laying the floor sheeting at heights of approximately 2.95 metres. 27. On 19 September 2008, John Cooper and his work crew commenced installing the upper floor wall frames for the offices on the sheet flooring of the mezzanine level and fixing ceiling joists. The upper floor wall frames consisted of timber studded wall frames. The floor of the mezzanine level was approximately 2.95 metres from the concrete floor below. 28. In order to install the upper floor wall frames on the sheet flooring of the mezzanine level, a forklift was used to raise the wall frames from the floor of the premises onto the mezzanine floor. John Cooper and his work crew then manually stood the wall frames up. The method used to stand up the wall frames involved John Cooper and his work crew standing up one corner of a wall frame and bracing it in a corner of the mezzanine level against a wall. The other wall frames were then fixed to the first wall frame. 29. In a number of areas the wall frames were installed against the leading edge of the mezzanine floor. 30. John Cooper's safe work method statement for 'Installation of Upper Floor Wall Frames' required that whilst erecting the wall frames for the offices on the mezzanine level John Cooper should install edge protection at the leading edge of the floor of the mezzanine level. 31. John Cooper did not install or erect at the leading edge of the mezzanine floor secure perimeter screens, fencing, handrails or other forms of physical barriers whilst his work crew were performing the work of erecting the wall frames for the offices on the mezzanine level at heights of approximately 2.95 metres. 32. On Monday, 22 September 2008, John Cooper and his work crew undertook the installation of two sets of steel staircases to provide access to the mezzanine level. 33. In order to install the sets of steel staircases the John Cooper's work crew were required to access the floor of the mezzanine level. 34. At the time of the installation of the two sets of staircases to the mezzanine area, John Cooper had not installed any fall prevention systems such as secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height, at the leading edge of the floor of mezzanine level. As a result Shaun Seckold, Benjamin Clark and Nicholas Whitehead were exposed to a risk of falling approximately 2.95 metres off the unguarded leading edge of the mezzanine floor to the concrete floor below. 35. On 22 September 2008, at approximately 3:30 pm the installation of the two sets of staircases to the mezzanine area was partially completed by John Cooper and his work crew. 36. John Cooper did not put in place any barrier to prevent the use of the stairs to gain access to the mezzanine level. Nor did John Cooper place any sign or warning advising persons that the stairs were not complete and advising that the use of the stairs to access the mezzanine level was prohibited. 37. Instead John Cooper requested that Bradley Moran put a barricade around the staircases to prevent unauthorised access. 38. John Cooper and Bradley Moran discussed the method for preventing access to the stairs and the mezzanine level. 39. John Cooper requested that tape not be used as it was too easy for someone to walk through it. John Cooper suggested that a couple of timber slings could be placed across the base of the staircases to prevent access to the stairs and the mezzanine level. 40. It was proposed that as Bradley Moran has a forklift licence, that he would utilise a forklift at the premises to move slings of timber at the premises to a position in front of the staircase. 41. On 22 September 2008, at approximately 4.10pm John Cooper and his workers ceased work on the fit out and left the premises. Prior to leaving the premises John Cooper did not check that Bradley Moran had in fact put the slings of timber across the stairs or had otherwise erected some other form of physical barriers to prevent the use of the staircases. 42. On 22 September 2008, in the late afternoon, Bradley Moran decided that as it was late and close to closing time, that he would devise an alternative method of preventing access to the staircases and the mezzanine floor. Bradley Moran determined that he would close both roller door and the sliding door providing access to the partially constructed new retail trade facility to limit access to the facility. However Bradley Moran did not place the timber slings across the staircase as requested by John Cooper. Bradley Moran formed the view that by closing access to the premises he had effectively limited access to the mezzanine level. 43. After the installation of the two sets of stairs to provide access to the mezzanine area, the leading edge of the floor of mezzanine level remained without any fall prevention systems such as secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height, in place. Incident 44. On 23 September 2008 at approximately 9.00 am, Ian Whitehead, General Manager and Robert Lambley, Marketing Manager attended the premises. Whilst at the premises they proceeded to conduct an inspection of the construction works being undertaken in relation to the internal fit out at the premises. During their inspection they held discussions with Bradley Moran. 45. On 23 September 2008, in the morning, Ian Whitehead, Robert Lambley and Bradley Moran accessed the mezzanine floor level. 46. Whilst on the mezzanine floor level Ian Whitehead observed that no safety rail had been installed at the leading edge of the mezzanine floor level. Ian Whitehead discussed with Bradley Moran and Robert Lambley the need to install a permanent railing on the mezzanine floor. 47. Whilst located on the mezzanine level, Ian Whitehead undertook a risk assessment. As part of that risk assessment Ian Whitehead identified that there was a risk of falling whilst work was being undertaken on the mezzanine floor. 48. Ian Whitehead states that he asked Bradley Moran to have John Cooper install a temporary fence or railing arrangement to secure the mezzanine area and to prevent entry into that area until that was completed. 49. However, Bradley Moran states that the discussion that took place was of a more general nature and that the discussion focused on the final erection of a handrail for the mezzanine level. Bradley Moran states that he was not requested to install a temporary handrail. Bradley Moran states that Ian Whitehead discussed with him that they would cordon of the area and restrict access to the mezzanine floor. 50. At the time that Ian Whitehead, Robert Lambley and Bradley Moran were undertaking their inspection of the mezzanine level, Donald Adams, electrical contractor, engaged by Gould Bros to undertake electrical work at the premises, was in the process of ascertaining the appropriate location for lights and power points. 51. Donald Adams approached Bradley Moran, in his caretaker role as Site Co-Ordinator while Bazil Wilcher was on leave, and requested that they have a chat about the power point plan for the mezzanine level when he had a spare ten minutes. 52. Bradley Moran believed that Ian Whitehead was aware of the possibility that further work was going to be carried out on the mezzanine floor that afternoon. 53. Ian Whitehead states that he completed a written risk assessment form on 23 September 2008. This written risk assessment form identified the details of the risk as "No further work to continue to upper level scone new shop due to no railing- Limit access until done". This written risk assessment form identified the action required as "Design & instal (sic) appropriate temporary railing/fence or fall restraint system for new upper level before further construction". 54. On 23 September 2008, after completion of their site inspection, Ian Whitehead attended to other business in the Manager's office. Robert Lambley and Ian Whitehead then left Scone. Ian Whitehead returned to Gould Bros' Singleton Branch. Robert Lambley returned to Maitland. 55. Prior to Ian Whitehead and Robert Lambley leaving the premises, no steps had been taken by Bradley Moran or any one else from Gould Bros to secure the mezzanine area or to make the area safe, or to prevent entry into that area until fall prevention systems such as a temporary handrail had been installed. 56. Subsequent to Ian Whitehead and Robert Lambley leaving the premises, no steps had been taken by Bradley Moran or any one else from Gould Bros to secure the mezzanine area or to make the area safe, or to prevent entry into that area until fall prevention systems such as a temporary handrail had been installed. 57. At approximately 2:15pm on 23 September 2008, Bradley Moran and Donald Adams commenced a walk through of the ground level of the premises to discuss the location for lights and power points. After the ground floor was completed they ascended up the staircase to the mezzanine floor to discuss the location for power points and lights. 58. At the time they went up to the mezzanine level no steps had been taken by Gould Bros or any one else to secure the mezzanine area or to install fall prevention systems at the leading edge of the mezzanine floor such as a temporary handrail, secure perimeter screens, fencing, or other forms of physical barriers capable of preventing falls from height. 59. At approximately 2:30 pm on 23 September 2008, whilst looking at the proposed location for the lights on the mezzanine level, Bradley Moran looked up towards the ceiling and turned to move. Upon turning he lost balance and fell off the unguarded leading edge of the mezzanine floor to the concrete floor below. He fell approximately 2.95 metres. 60. As a result of his fall Bradley Moran suffered a fractured elbow. Systems in Place prior to the incident Gould Bros 61. Gould Bros did not develop a site specific occupational health and safety management plan for the construction project at the premises. 62. Gould Bros did not have in place any place a site safety plan in relation to the works being undertaken at the premises and in particular with respect to working at heights. 63. Ian Whitehead asserted that prior to the incident, Gould Bros had an OHS Policy which had application to the work being performed at the site. 64. Gould Bros did not appoint a principal contractor to oversee the construction of the new retail trade facility. Instead they utilised existing staff employed in their business of supplying timber and building products to the construction industry. 65. During the period Bazil Wilcher was appointed as site co-ordinator for the construction works undertaken at the premises, he was required to, amongst other things, supervise works undertaken by subcontractors. While Bradley Moran was performing the caretaker role for Bazil Wilcher, he provided assistance and information regarding materials and any possible changes to the construction of the framework. 66. However, neither Bazil Wilcher nor Bradley Moran had previous experience with commercial construction works. Bazil Wilcher and Bradley Moran had not completed the 'General Construction Induction' course required for performing work in or associated with the construction industry. 67. Gould Bros did not have a system for providing site specific inductions for all of its sub-contractors required to perform work in relation to the construction of the new trade retail facility at the premises, which addressed: i. the risk of falls from heights; and ii. the prohibition on working at heights where fall prevention systems such as secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height were in place, complete, and were adequate to prevent persons from falling from heights; 68. Gould Bros did not provide site-specific induction to Bradley Moran, Donald Adams, John Cooper, Shaun Seckold, Benjamin Clark and Nicholas Whitehead in relation to the construction work being undertaken at the premises. 69. Bradley Moran, Shaun Seckold, Benjamin Clark and Nicholas Whitehead had not been provided by Gould Bros with any formal information or training about the risk of falling whilst performing work at the premises. 70. Gould Bros did not have a documented position description for the role of site co-ordinator which explained the roles and responsibilities of that position. 71. Gould Bros did not have a safe work method statement for working at heights which identified and implemented control measures in respect to the risk of falling whilst: i. accessing or egressing the mezzanine level; and ii. working on or from the mezzanine level. 72. Gould Bros did not, prior to permitting its employees and contractors including Bradley Moran, Donald Adams, Shaun Seckold, Benjamin Clark and Nicholas Whitehead, to commence work at the premises, undertake a Hazard Identification and Risk Assessment, which included an inspection of and consideration of the adequacy of fall prevention devices provided at the premises. 73. Bazil Wilcher and Bradley Moran had not received any formal training in the respect to the completion risk assessments and development of Safe Work Method Statements. 74. Gould Bros did not undertake an inspection by a Safety Manager or appropriately qualified person of the mezzanine floor at the premises to ensure that secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height were in place, complete, and were adequate to prevent persons from falling from the mezzanine floor. 75. Gould Bros did not prepare a safe work method statement (SWMS) in relation to work being conducted at the premises by its employees or contractors, including with respect to working at heights. 76. Gould Bros did not have a system that required that subcontractors working at the premises, provide a safe work method statement prior to them commencing work. John Cooper was not required to provide a safe work method statement to Gould Bros prior to his work crew commencing work. 77. At the time of the incident there was in place an informal system of work which was communicated verbally amongst the employees regarding the performance of tasks. 78. No formal site specific risk assessment was conducted by Gould Bros in relation to the construction works being undertaken at the premises prior to the works commencing. 79. Gould Bros did not have a system to adequately control access to the premises. Access to the premises was to be controlled through site fencing perimeter fencing. However there were no barriers in place to prevent access to the mezzanine level. 80. The investigation revealed that, at the time of the risk, there were no secured ladders, perimeter scaffolding, temporary handrail systems, or fall arrest harnesses erected or on the premises to prevent a fall whilst persons were working from heights. 81. Gould Bros and John Cooper were aware that, at the time of the risk being present, there was no secured ladders, perimeter scaffolding, temporary handrail systems, or fall arrest harnesses had been erected on the premises to prevent a fall whilst working from heights. 82. Gould Bros should have inspected the work being undertaken by John Cooper in respect to the construction of the mezzanine level, to ensure that temporary fall protection systems were in place on the mezzanine level at the premises. 83. On the day of the incident a risk assessment was undertaken by Ian Whitehead to determine the hazards and the level of risk posed when working at heights. However, Ian Whitehead did not take steps to ensure that measures were put in place to restrict access to the mezzanine floor. 84. Gould Bros should have inspected the access to the mezzanine level after it had undertaken an initial risk assessment of the mezzanine level, to ensure that the proposed risk minimisation plan was implemented and the access was adequately secured or was otherwise fenced off to prevent access by its employees prior to temporary fall protection systems being put in place at the premises. John Cooper 85. John Cooper undertook a visual assessment of the risk of falls whilst working on or from the floor of the mezzanine level. The measures taken by John Cooper to address the risk were limited. They involved him telling Shaun Seckold, Benjamin Clark and Nicholas Whitehead to take care whilst on the mezzanine level. 86. John Cooper also instructed Shaun Seckold, Benjamin Clark and Nicholas Whitehead to take care whilst working on the mezzanine level and to kneel whilst undertaking works on the construction of the floor of the mezzanine level so as to prevent a fall. 87. John Cooper did not provide Shaun Seckold, Benjamin Clark and Nicholas Whitehead with a fall arrest system. Systems in place after the incident 88. Following the incident work was suspended on the premises until a temporary safety railing was placed along the exposed edge of the mezzanine floor. 89. Temporary mesh fencing, approximately 1.9 metres high was erected along the east edge of the mezzanine level. Timber braces were placed against the interior of the metal walls of the premises to hold the temporary mesh fencing in place. Tape was put across the access to the staircases and Temporary mesh fencing was placed across the access to the staircases. 90. Gould Bros engaged Housing Industry Australia as safety consultants to assist them with the identification of safety issues and to implement new systems in the workplace. 91. Gould Bros also prepared and implemented a site-specific occupational health and safety plan. This included the following: a. The establishment of a site office. All employees and contractors who entered the site were required to sign-on each day at the site office. b. On the first occasion that each employee or contractor attended the site after the accident they were inducted which included the following: i. a briefing on relevant standards, policies and procedures for the project; ii. a physical induction (walk through) of the site; iii. pointing out the location of first aid kits, the project map and the emergency evacuation points; iv. informing them of the relevant contacts for the project (for example, the site co-ordinator); v. completing a site induction form; vi. viewing the contractors' qualifications and/or licenses (where necessary); and vii. undertaking a general risk assessment for the work to be completed. 92. The defendant has co-operated with the WorkCover investigation into this matter. 93. Gould Bros has three prior convictions. 3In matter number IRC 1051 of 2010, the defendant is charged with a breach of s 8(2) of the Act. In summary terms, the allegation is that on 22 September 2008 at the premises referred to in the agreed statement of facts, it failed to ensure that persons other than its employees, namely the employees of John Cooper, were not exposed to risks to their health or safety arising from the conduct of its undertaking. The risk was one of falling from a height of approximately 2.9 metres whilst constructing the floor and internal offices of the mezzanine floor of the new facility. The particulars of the defendant's failings, as set out in the amended application for order, are as follows. Particulars of Defendants failings in relation to systems of work B. The Defendant failed to ensure that systems of work for person who were not its employees when working at heights of approximately 2.9 metres at the premises were safe and without risks to health. Measures the Defendant should have taken but failed to take C. The defendant should have taken but failed to take the following measures in order to ensure a safe system of work when working at heights: i. appointed an appropriately skilled and qualified principal contractor for the construction works for the new trade retail facility at the premises; ii. developed and implemented a site-specific safety plan for the construction works for the new trade retail facility at the premises; iii. required that its sub-contract builder, John Elmore Cooper trading as John Cooper Building, provided safe work method statements for the work to be carried out at the premises, including for working at heights which identified and implemented control measures in respect to the risk of falling whilst: (a) constructing the floor and internal offices of the mezzanine level; (b) accessing or egressing the mezzanine level; (c) working on or from the mezzanine level; iv. undertaken a Hazard Identification and Risk Assessment, prior to permitting Shaun Seckold, Benjamin Clark and Nicholas Whitehead to the commence work on the construction of the floor and offices of the mezzanine level , which included an inspection and consideration of the adequacy of fall prevention devices provided at the premises; v. directed its sub-contract builder, John Elmore Cooper trading as John Cooper Building, to install secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height, during the construction of the floor and internal offices of the mezzanine level at the premises; Particulars of the Defendant's failings in relation to information, instruction and training D. The defendant failed to provide adequate information and instruction to persons who were not its employees necessary to ensure their health and safety whilst undertaking work at heights on the mezzanine floor at the premises. Measures the Defendant should have taken and failed to take E. The Defendant should have taken but failed to take the following measures in order to ensure adequate information and instruction was given to persons who were not its employees in relation to working at heights, including: i. undertaken formal site specific inductions for Shaun Seckold, Benjamin Clark and Nicholas Whitehead in relation to the construction of the new trade retail facility at the premises, which addressed: (a) the risk of falls from heights; and (b) the prohibition on working at heights where fall prevention systems such as secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height were in place, complete, and were adequate to prevent persons from falling from heights; ii. provided information to Shaun Seckold, Benjamin Clark and Nicholas Whitehead about the risk of falling whilst performing work on the partially completed mezzanine floor; iii. advised Shaun Seckold, Benjamin Clark and Nicholas Whitehead that they were not to access the mezzanine floor until temporary fall protection systems were put in place at the premises; Particulars of the Defendant's failings in relation to supervision F. The defendant failed to provide adequate supervision to persons who were not its employees necessary to ensure their health and safety whilst undertaking work at heights on the mezzanine floor at the premises. Measures the Defendant should have taken and failed to take G. The defendant should have taken but failed to take the following measures in order to ensure adequate supervision was given to persons who were not its employees in relation to working at heights, including: i. supervised its sub-contract builder, John Elmore Cooper trading as John Cooper Building, to ensure that he did not permit Shaun Seckold, Benjamin Clark and Nicholas Whitehead to perform work on the construction of the floor and internal offices of the mezzanine level, in circumstances where secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height, were not in place. ii. supervised its sub-contract builder, John Elmore Cooper trading as John Cooper Building, to monitor compliance with its a safe work method statements for work to be carried out at the premises including for working at heights , and in particular the implementation of control measures in respect to the risk of falling whilst: (a) constructing the floor of the mezzanine level; (b) constructing the internal offices of the mezzanine level; (c) accessing or egressing the mezzanine level; (d) working on or from the mezzanine level; As a result of the acts and omissions listed above Shaun Seckold, Benjamin Clark and Nicholas Whitehead's safety was placed at risk in that they accessed and performed work on the partially constructed mezzanine floor at the premises. 4In matter number IRC 1053 of 2010, the defendant is charged with a further breach of s 8(2), but referable to 23 September 2008 and referable to the circumstances of Donald Adams, who was the electrician who was at the premises with Mr Moran at the time that he fell. In essence, the particulars of the defendant's failings are identical to those that apply to matter number IRC 1051 of 2010. 5Matter number IRC 1054 of 2010 alleges a breach of s 8(1) of the Act by reference to a failure to ensure the health, safety and welfare at work of the defendant's own employee, Bradley Moran, on 23 September 2008. The defendant's failings are identical with those that are set out in the earlier proceedings, to which I have referred in [3] and [4] above. 6Essentially, therefore, the three sets of proceedings relate to a state of affairs at the construction site that existed on 22 and 23 September 2008. The failure of the defendant, which it admitted, to take measures to preclude persons from falling from the exposed and unprotected edge of the mezzanine floor whilst the construction was proceeding, being a distance of about 2.9 metres, is at the heart of all three proceedings. 7The prosecutor also tendered into evidence a factual inspection report, some photographs and details of the defendant's prior convictions. 8The defendant's evidence consisted of two affidavits sworn by Christopher John Louden, its Human Resources Manager with day-to-day responsibility for occupational health and safety matters. I shall deal with this evidence later in these reasons for judgment. 9The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offence. The defendant is the manifestation of a business that was established in 1874 by Charles Gould. It operates in the Hunter Valley region of New South Wales and is the largest independent building materials supplies group in that area. It has four timber and hardware outlets, two divisions manufacturing windows and joinery and three plasterboard sites. The majority of its business involves the supplying of products to the building and construction industry as well as services for "home improvers, retail and DIY ... customers. In the Hunter Valley region, Gould is also strongly represented in the mining industry." (Extracted from the evidence of Mr Louden.) 10Although the defendant has been intimately involved with the construction industry for many years and no doubt has a great deal of expertise in its particular areas of operation, as I understand the evidence, it did not directly engage in the construction of premises, including the premises from which it conducted its business. It was the evidence of Mr Louden that the defendant wanted to use local businesses rather than outsourcing the work to a larger company, which was not based in the local region. For this reason, it determined to manage the building works itself, using a variety of trades for this purpose. Its operation was, effectively, the same as undertaken in the domestic construction area by an owner builder without having any particular expertise in the management of the project. This was the case in these proceedings. 11Despite the length of the agreed statement of facts, what happened at this building site can be described in a few sentences. The contractor, John Cooper, commenced work leading to the placing of flooring on the mezzanine level on 16 September 2008. At no time, and until the incident on 23 September 2008 when Mr Moran fell, were any measures taken by anyone to secure the edge of the mezzanine floor which was being constructed to prevent anyone from falling a distance of about 2.95 metres. It was totally exposed during all of this period. The defendant had placed Mr Moran in overall charge of the building operations who, on the evidence, was unqualified to be given that responsibility. Although the work was being undertaken by Mr Cooper and his employees, this did not relieve the defendant from its obligations under the Act to ensure that its premises were safe. 12Not only should the deficiency in guarding the exposed edge of the mezzanine floor have been identified at the earliest opportunity, but, on the evidence, there were concerns raised by a number of persons prior to 23 September and the defendant failed to take such steps as were necessary to have precluded anyone from accessing the exposed edge, other than for the purpose of securing it, prior to the incident. 13The prosecutor submitted that the offence was a serious one, at least in midrange. The defendant did not submit otherwise and frankly conceded that the offence which it had committed was, in all the circumstances, serious. I agree. 14In fixing penalty, I am also required to take into account the deterrent effect that any penalty will provide, both generally and specifically. In the context of specific deterrence, I will, however, ameliorate the quantification of penalty by reference to this aspect because, firstly, I am satisfied on all the evidence that this defendant had, both prior to the incident and subsequent to it, a comprehensive commitment to its occupational health and safety obligations with respect to its usual business operations. Secondly, this incident arose out of an activity that was unusual for the defendant to undertake and there is no indication, on the evidence, that it is likely to engage in such an activity in the future. 15There are a number of subjective matters that, in fixing penalty, I am required to take into account in favour of the defendant. The prosecutor did not resist any suggestion that I was entitled to take all of these matters into account to the maximum appropriate extent in favour of the defendant when fixing penalty. 16The defendant pleaded guilty at the earliest appropriate opportunity. On the evidence of Mr Louden, the defendant has had in place for a long time a most comprehensive and dedicated commitment to its occupational health and safety obligations and continues to do so. The supporting documented evidence is extensive, but it is not necessary to refer to it in any detail. The defendant has expressed remorse and contrition for what occurred and has assisted Mr Moran in his rehabilitation. He remains employed by the defendant. On the evidence, the defendant is a good corporate citizen and actively supports a number of local charities and institutions. 17The defendant has three prior convictions for offences under the Act and associated legislation. Given the nature of the defendant's business operations, the length of time in which it has been in business and the dates upon which the convictions were recorded, it could not be said that the defendant has a bad safety record. There were convictions in 1984 and 1985 for $350 and $400 respectively. The next conviction was in 1999 when the defendant was fined $2,000. I do not take this record into account in any way adverse to the defendant. However, the fact that it does have prior convictions renders the maximum applicable penalty as being $825,000 for each offence. 18Both counsel for the prosecutor and the defendant submitted that the principle of totality should apply to the fixing of a penalty in each matter because, in essence, each charge arose out of the same course of conduct, albeit that they traversed two separate days. I accept these submissions and, furthermore, note that the incident on 23 September occurred early in the morning that day. The fact that the charges traverse two separate days does not, in my opinion, detract from the application of the principle of totality, and the prosecutor did not contend otherwise. 19As is well known, when sentencing a defendant for more than one offence where those offences contain common elements, the Court must have regard to the principle of totality in order to reflect the "total criminality involved" ( Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, McHugh J at 308). In imposing a non-custodial sentence, Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450, stated: that a sentencer or penalty fixer must, as an initial step, impose a penalty appropriate for each contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct 20I readily appreciate that in the approach to fixing penalty I am required to fix an appropriate penalty in the case of each of the charges and then apply the principle of totality to reflect the overall culpability of the defendant. Given the circumstances that apply to each charge, and taking into account that the incident on 23 September 2008 occurred early in the morning of the day preceding the date referable to the two earlier charges, I am of the opinion that the same penalty should apply to each of the charges. Each of them is, as I have said, objectively serious, at least midrange and would, individually, attract a penalty having regard to all of the matters to which I have referred in the sum of $250,000. However, because each of the charges arises out of the identical course of conduct, I propose to reduce the penalty in each case to $100,000, as reflecting in the aggregate what I consider to be appropriate to the defendant's culpability. 21The prosecutor sought orders for the payment of a moiety and costs, which were not opposed, and I propose to make orders accordingly. Orders 22I make the following orders: 1) In each of matters IRC 1051, 1053 and 1054 of 2010, the defendant, Gould Bros & Co Pty Ltd, is found guilty of each of the charges and convicted accordingly. 2) I impose a monetary penalty for each charge of $100,000 with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed in default of agreement. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2011