Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hall v BU Hazardous Material Removal and Demolition Pty Ltd and Ung [2011] NSWIRComm 146 Hearing dates: 7 October 2011 Decision date: 02 November 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) A monetary penalty of $300,000 is imposed on BU Hazardous Material Removal and Demolition Pty Ltd and of $30,000 on Bo Ung, with a moiety in each case to the prosecutor. 2) The defendants are to pay the costs of the prosecutor in an amount assessed in default of agreement in such proportion that the respective penalties imposed upon each of them bears to the totality of the costs. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 by the corporate defendant - personal defendant deemed guilty by s 26(1) - objective seriousness - early guilty pleas - appropriate penalty - serious offence - general and specific deterrence - cooperation with the WorkCover Authority - inadequate safety procedures - remorse and contrition - Victim Impact Statement - no prior convictions - penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 - s 8, s 26(1) Category: Principal judgment Parties: Inspector Craig Hall of WorkCover Authority of New South Wales (Prosecutor) BU Hazardous Material Removal and Demolition Pty Ltd (First Defendant) Bo Ung (Second Defendant) Representation: Mr C Magee of counsel (Prosecutor) Legal Group, WorkCover Authority of New South Wales (Prosecutor) Mr B O'Donnell of KP O'Donnell & Associates (Second Defendant) File Number(s): IRC 1311 of 2011 IRC 1312 of 2011 Judgment 1The prosecutor, Inspector Craig Hall of the WorkCover Authority of New South Wales, has charged each of the defendants, BU Hazardous Material Removal and Demolition Pty Ltd (BU Hazardous) and Bo Ung, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). Section 8(1) is in the following terms: 8 Duties of employers (1) Employees An employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following, so far as is reasonably practicable,: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 2BU Hazardous is charged with the offence in its capacity as employer. Mr Ung is charged with the same offence by virtue of the operation of s 26(1) of the Act, he being a director of BU Hazardous and therefore being taken to have contravened the same provision. 3Each of the defendants has entered a plea of guilty and this judgment is concerned only with the imposition of a penalty. The defendant BU Hazardous is in liquidation. It was not represented at the sentencing hearing. The defendant Bo Ung was represented by Mr O'Donnell, solicitor. 4The charge brought against each of the defendants arises out of the same incident and the charge and particulars are relevantly identical. It is sufficient only to refer to the charge and particulars as brought against BU Hazardous, because they apply also to the charge brought against Mr Ung. 5The charge brought against BU Hazardous is that on 18 December 2008 at a site in Merrylands, New South Wales it failed to ensure the health, safety and welfare at work of its employees, and in particular Kim Phen Chhoeu, contrary to the provisions of s 8(1) of the Act. The particulars of the charge are as follows: The particulars of Risk are : (a) The 'risk' of employees of the defendant, and in particular Kim Pheng Chhoeu, falling between six to eight metres from the roof of the old Kmart building at the site, whilst undertaking the task of removing the metal clip-lock roof and/or the removal of the insulation from the roof the old Kmart building. The particulars of the acts of omissions in failing to eliminate the risk are that : (b) The defendant failed to maintain a safe system of work with respect to the tasks of the removal of the metal clip-lock roof and insulation in the roof, whilst working at heights of 6-8 metres at the site, in that it failed to undertake measures as follows: (i) ensure that the method of work implemented was in compliance with the system of work devised in the Safe Work Method Statement ('SWMS') dated 5/12/08 prepared by the defendant for the task; (ii) ensure that the method of work utilized for removing of the metal roof involved proceeding to remove bolts and screws using cordless drill and pinch bar to lift sheets; (iii) preventing employees from utilizing a system of work for the removal of the metal clip-lock roof that involved employees standing on a six to eight metre high roof, swinging mattocks at the roof rivets and bolts in order to bash the rivets and bolts off to dislodge the sheet metal roofing from the structural beams/purlins; (iv) ensuring that the SWMS addressed the risks/hazards involved in the task of the removal of the insulation in the roof and provided a safe system of work for the performance of that task; (v) ensure that employees did not perform the task of the removal of the insulation in the roof by walking along the exposed edge of the roof, rolling up the insulation and poking it through the holes in the roof through to the ground with a piece of timber; (vi) enforce the control measures it had identified in the SWMS to control the risk of its employees falling whilst working at heights, and in particular to provide and require all its employees working at heights greater than 2 metres to wear harnesses connected to inertia reels attached to safe anchor points. (vii) requiring that its employees wear fall arrest devices which were secured to an appropriate anchor point, while working in middle of section of the roof; (viii) implement other fall control measures instead of, or in conjunction with the use of harnesses and inertia reels, including the use of netting underneath the roof structure, temporary work platforms, mobile scaffolding, elevated work platform or similar equipment, and roof rails on the edge of the roof structure, whilst employees were accessing the roof and/or undertaking the work of demolishing the roof; (c) The defendant failed to supply safe plant and equipment for the tasks of the removal of the metal clip-lock roof and insulation in the roof, whilst working at heights of 6-8 metres, in that it failed to undertake measures as follows: (i) provide a sufficient number of harnesses and inertia reels so that one was available for every employee who was working at heights greater than 2 metres undertaking the task of demolishing the roof; (ii) provide netting underneath the roof structure, temporary work platforms, mobile scaffolding, scaffolding stairs, elevated work platforms or similar equipment, and roof rails on the edge of the roof structure, for employees required to access the roof and/or to undertake the work of demolishing the roof; (d) The defendant failed to provide adequate information, instruction and training to its employees, and in particular Mr Chhoeu, in relation to the tasks of the removal of the metal clip-lock roof and insulation in the roof, whilst working at heights of 6-8 metres, in that it failed to undertake measures as follows: (i) ensure that Mr Chhoeu received an induction from the Principal Contractor of the demolition site, H. Hassarati & Co and the Principal Project Contactor, St Hilliers Contracting Pty Ltd (j) ensure that Mr Chhoeu received an a copy of the Safe Work Method Statement, and received training and instruction in its content; (k) ensure that Mr Chhoeu received formal or systematic training provided as to how to perform the task of the removal of the roof in accordance with method specified in the Safe Work Method Statement; (l) ensure employees had or were provided with formal training in relation to demolition, asbestos removal or working at heights, including the use of harnesses, prior to being permitted to work at heights greater than two metres; (m) providing Mr Chhoeu with information and instruction that he must wear a harness and inertia reel attached to an appropriate anchor point of the roof when working in the middle section of the roof; (e) The defendant failed to ensure that there was adequate supervision of its employees whilst working at heights, in that it failed to undertake measures as follows: (i) requiring that the Site supervisor, or team supervisor, directly supervise Mr Chheou to ensure that he was wearing a harness and inertia reel attached to a safe anchor point whilst working at heights greater than two metres on the roof; (ii) ensure that the Site Supervisor or Director, not direct employees, including Mr Chheou, that they were not required to wear a harness and inertia reel attached to a safe anchor point whilst working at heights on the middle section of the roof; (iii) ensure that its Site Supervisor had sufficient authority to direct employees to perform there work in accordance with the hazard control measures specified in the Safe Work Method Statement; As a result of the defendant's acts and omissions, Kim Pheng Chhoeu was placed at risk of injury. As a result of the abovementioned failures, Kim Pheng Chhoeu was seriously injured. The injuries sustained by Kim Pheng Chhoeu were a manifestation of that risk. 6There was tendered into evidence an agreed statement of facts, together with certain annexures that are referred to therein. The agreed statement of facts (save for the annexures) is 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 of the Act to institute proceedings in the within matter. 2. At all material times BU HAZARDOUS MATERIAL REMOVAL AND DEMOLITION PTY LTD [ACN 096 415 280], a corporation with its registered office located at [address deleted] in the State of New South Wales ("the first defendant"), was an employer, employing persons including Kim Pheng Chhoeu ("the injured person"). 3. At all material times BO UNG [date of birth: 19 June 1969] of [address deleted] in the State of New South Wales ("Bo Ung") was a director of the first defendant. 4. At all material times the first defendant undertook the business of asbestos demolition and occasional general demolition work. The first defendant is the holder of a license for the criteria of Friable Asbestos Removal Work, license number 202817ASI. 5. At all material times the first defendant employed Kim Pheng Chhoeu ("the injured person"). 6. At all material times Bo Ung was the sole director of the first defendant and was involved in the daily running of the company. Bo Ung attended the site almost daily and had complete financial control over the first defendant and influence over the systems of work implemented at work sites. Background 7. In or about October 2007, Stockland Development Pty Ltd engaged St Hilliers Contracting Pty Ltd [ACN 008 259 563], a construction company, to redevelop the Stockland Shopping Centre situated at McFarlane Street, Merrylands. 8. On or about 15 October 2007, St Hilliers subcontracted H Hassarati & Co Pty Ltd ("Hassarati & Co"), a demolition and excavation company, to carry out the demolition work. 9. In or around November 2007 Hassarati & Co subcontracted the first defendant to assist with the demolition work. 10. The first stage of the demolition work commenced in or around late November 2007 and was completed in or around January 2008 without incident. Hassarati & Co and the first defendant carried out this work together. 11. Stage 2 of the demolition work involved the demolition and removal of a building complex identified as the old Kmart building and associated areas, including some asbestos removal. 12. On 27 November 2008 the first defendant provided a quotation to Hassarati & Co for the Stage 2 work, in particular the removal of the metal Klip Lok roof of the old Kmart building. 13. The roof of the old Kmart building was between six to eight metres high. 14. Prior to the second stage demolition work commencing, St Hilliers placed physical and structural barriers, including a series of hoardings, ATF removable fencing and gates, to define the borders and separate the area around the old Kmart building controlled by Hassarati & Co ("the site"). 15. From 6 December 2008 Hassarati & Co had complete control over the site. Hassarati & Co locked the demolition area, erected its own signage and only permitted employees of St Hillers onto the site who had been inducted and had obtained authorisation. 16. The first defendant and Hassarati & Co commenced the Stage 2 work on the site on 6 December 2008. 17. At all material timed Paul John Hassarati was the Managing Director of Hassarati & Co and was responsible for the demolition side of the business and occupational health and safety issues. 18. At all material times Hassarati & Co employed Goran Novkovic as Site Supervisor. Mr Novkovic was responsible for supervising all work activities undertaken by Hassarati & Co and the first defendant. This included ensuring the first defendant complied with the agreed Safe Work Method Statement ("SWMS"). 19. At all material times the first defendant had two employees present at the site - Mr Novkovic and Billy Suapopo, Excavator Operator. 20. On the day of the incident, Mr Suapopo's role was to operate an excavator and demolish the Kmart building once the soft strip had been completed. 21. Kim Pheng Chheou ("the injured person"), commenced work with the first defendant on Monday 15 December 2008, three days prior to the incident. 22. The injured person had a licence for asbestos removal and had some experience in asbestos removal work. 23. The injured person has functional but limited command of the English language. The incident 24. At approximately 6.30am on 18 December 2008, the injured person arrived at the site. 25. The injured worker was directed to commence work removing the roof sheeting and insulation from the metal roof of the old Kmart building. 26. In order to get onto the roof to commence the work the injured person was required to climb a ladder to a hole in the roof and then onto the roof. 27. The task of removing the roof was done by three teams of the first defendant's employees with between four and five employees in each team. 28. The method of work adopted by the first defendant for the removal of the roof sheeting and insulation from the flat metal roof of the old Kmart building involved its employees standing on the roof and swinging mattocks at the roof rivets and bolts to break them in or to then dislodge the sheet metal roofing from the structural beams. 29. Once the sheet metal roofing was dislodged, the roofing sheets were then lifted and dragged by the first defendant's employees and stacked on the edge of the roof structure so the excavator operated by Hassarati & Co's employee Mr Suapopo could lower them to the ground. 30. Having removed and stacked the roofing, the employees would then remove the insulation by rolling it up and poking it through the holes in the roof structure to the ground below using a piece of timber. 31. The first defendant did not have enough safety harnesses and inertia reels harnesses for all its employees who were required to work on the roof. As a result of this, the first defendant did not provide the injured person or other employees who were working on the inner section of the roof with harnesses. Chunn Vann states that there were not enough harnesses available for each employee who was working at heights. Bo Ung stated that there were about 7-8 harnesses available for employees working at heights. Bo Ung agreed that there may have been about 12 employees working at height on the roof at any one time. Bo Ung stated that at the time of the Incident each employee was not in a position to put on a harness as they did not have enough harnesses at that particular time. 32. On the date of the incident Chunn Vann was the Site Supervisor employed by the first defendant. At approximately 3:00pm Chunn Vann instructed the injured person and the other employees to finish work. 33. Whilst the employees were packing up the equipment, Bo Ung attended the site. 34. Bo Ung climbed onto the roof without wearing a harness. 35. The injured worker and his fellow employees continued the work of removing the metal roof sheeting using the method of work described at paragraphs 26 to 30 above. The injured worker was not provided with a harness and inertia reel by the first defendant. 36. A short time later, the injured worker fell from the roof to the concrete ground below, striking an air-conditioning duct on the way down. 37. After falling, Chunn Vann, together with some of the first defendant's employees, moved him a short distance from where he landed to the loading dock. Bo Ung states that he not aware of this as he was at another part of the site when the accident occurred. 38. An ambulance arrived to treat the injured person and he was subsequently transported to Westmead Hospital. 39. The injured person stated that he was asked to and did sign a 'Record of tool box talk' for 18 December 2008 in hospital after the incident. 40. As a result of the incident, the injured person sustained a fractured pelvis, fractured right femur, fractured left humerus, facial fractures, broken jaw and smashed teeth (he only has eight teeth remaining). 41. The injured person cannot walk unassisted and requires ongoing treatment. 42. The injured person is currently undergoing physiotherapy twice a week and is due to have major surgery on his face and teeth. Work systems before the incident The first defendant 43. The first defendant had prepared a Safe Work Method Statement ("SWMS") for the task of removing of the metal roof. Annexed to this document and marked "Annexure A" is a true copy of the first defendant's SWMS. 44. The SWMS provided, inter alia, that: a) All personnel who will be working above heights of two metres or more will be inducted on the use of a fall arrest system. b) The task of removing the bolts and screws from the roofing sheets would be done by using cordless drills and then a pinch bar would be used to lift the metal roofing sheets from the structural beams. c) Safety harnesses were to be used at all times when on the roof. 45. The first defendant's SWMS did not address how its employees were to remove and dispose of the insulation material. 46. The first defendant submitted the SWMS for demolition work on the site to Hassarati & Co for approval. 47. On 15 December 2008 the first defendant gave the injured person a basic induction which dealt with topics including the location of amenities, meals and first aid. 48. The injured person did not receive an induction in use of a fall arrest system from the first defendant. Nor did the induction include information on what to do in an emergency. 49. The first defendant did not ensure that its employees were trained and ticketed to work at heights. 50. The injured person stated that he was not shown the SWMS nor had this document explained to him by the first defendant and that the first defendant did not provide him with a copy of the SWMS prior to commencing work at the site. 51. The first defendant has a copy of the SWMS dated 5 December 2008 which contain the signatures of its employees confirming that they had read and understood the SWMS. This document contains a signature that purports to be that of the injured person. 52. The first defendant conducted a toolbox talk on Monday 15 December 2008. 53. The injured person said there was no toolbox talk conducted on 16, 17 or 18 December 2008 (the date of the incident). Chunn Vann states that a tool box talk did occur each day including the day of the Incident. 54. The system of work for removal of the roof did not comply with that specified in the first defendant's SWMS. Rather than use cordless drills and pinch bars to remove the bolts and screws, the system of work adopted involved teams of four to five employees standing at the edge of the six to eight metres high roof, swinging mattocks at the roof rivets and bolts in order to bash the rivets and bolts off to dislodge the sheet metal roofing from the structural beams. 55. Prior to commencing work at the site Chunn Vann took some employees up to the roof and showed them the system of work for removing the roof with the mattock. Chunn Vann told new employees of the first defendant, including the injured person, to do the work the way Bo Ung had shown him and to follow the other workers. 56. The system of work for the removal of the insulation material was unsafe in that it involved the first defendant's employees walking along exposed roof edges, rolling up the insulation and poking it through the holes in the roof through to the ground with a piece of timber. 57. Safety harnesses and inertia reels were not used by all workers on the roof. 58. Only employees working on the perimeter of the roof were directed by the first defendant to wear harnesses. Employees working on the interior of the roof were told by Bo Ung that they were not required to wear harnesses, notwithstanding that the risk of falling from height was the same to each employee on the roof. 59. Bo Ung was on site at the time of the incident. Both Chunn Vann and Bo Ung observed employees of the first defendant not wearing harnesses immediately prior to the incident. Chunn Vann was observed working at heights without wearing harness. 60. At the time of the incident, Chunn Vann was the overall supervisor for the first defendant. Vira Khem was the supervisor for the injured worker's team. However, Vira Khem was not present to supervise the injured person's team as he was supervising in another area of the site. Hassarati & Co 61. Prior to commencing work at the site Hassarati & Co developed a Pre-Demolition Assessment, which was dated 8 December 2007. Annexed to this document and marked "Annexure B" is a true copy of the Pre-Demolition Assessment. 62. The Pre-Demolition Assessment provided that: a) all employees working on roofs will be required to wear safety harnesses and be connected to safety lines or retractor reels at all times when working on the roof. b) all employees will be inducted on the procedure of the Work Method Statement and the general work procedures outlined in the site induction prior to commencing on the site. 63. Hassarati & Co also prepared a Broad Risk Assessment for Stage 2 and 2A of the Project (undated), which is annexed and marked "Annexure C." This document identified the risk of falling and stated that a control measure was ensuring that workers are fitted with approved safety harnesses when working from heights, and further that that workers were inducted not to lean over railings/stand above deck. 64. Hassarati & Co also prepared a site specific SWMS for Stage 2 and 2A of the Project (undated), which is annexed and marked "Annexure D." The SWMS identified the risk of falling from heights whilst handling material and provided the control measure as being that fall protection must be worn by all personnel. 65. Prior to commencing work at the site the injured person did not receive any induction or any information from the Hassarati & Co. 66. The injured person received no induction in use of a fall arrest system from the Hassarati & Co. 67. Hassarati & Co reviewed and approved the first defendant's SWMS. 68. Hassarati & Co had no input in the system of work being used by the first defendant to remove the roof, other than to ensure the system was documented in the SWMS and that employees of the first defendant followed the SWMS. 69. Hassarati & Co required the employees of the first defendant to sign a document confirming that they had understood their employer's SWMS. 70. Hassarati & Co did not have a system in place to ensure that the first defendant's employees working at heights had been inducted in the use of fall arrest systems. 71. Hassarati & Co did not have a system in place for ensuring that all employees of the first defendant held tickets for working at heights. 72. Hassarati & Co was responsible for ensuring that the employees of the first defendant were undertaking work in accordance with the SWMS. 73. Hassarati & Co did not have a system in place to ensure the first defendant had sufficient harnesses and inertia reels so that all employees working on the roof were provided with one. 74. Hassarati & Co did not have a system of work for checking that the employees of the first defendant working on the roof were wearing harnesses. 75. On the days preceding the incident and on the day of the incident Mr Novkovic saw that the first defendant employees were not working in accordance with their SWMS in that they were not removing the roofing using cordless drills and pinch bars. Further, Mr Novkovic saw that some employees of the first defendant were not wearing harnesses whilst working on the roof. 76. Hassarati & Co failed to ensure that all the first defendant's employees who were working at heights wore harnesses. Instead it relied on the first defendant to ensure appropriate safety measures were in place. 77. Hassarati & Co failed to properly supervise the work being undertaken at the site; in particular it failed to ensure that all employees of the first defendant who were working on the roof were provided with and were wearing harnesses. Investigation 78. Following the incident on 18 December 2007 Inspector Bronwen Halcroft visited the site. Inspector Halcroft undertook an inspection and made observations contained in the Factual Inspection Report dated 16 January 2008, which is annexed to this document and marked "Annexure E." 79. Inspector Halcroft took a number of photographs. Annexed to this document and marked "Annexure F" are true copies of seven of coloured photographs taken by Inspector Halcroft dated 18 December 2007. 80. On 19 December 2007 Inspector Halcroft issued the following notices to the first defendant: (i) Improvement Notice No. 7-172849 - first defendant to ensure suitable individual storage of PPE by providing and maintaining suitable clean, close lidded, impervious containers for storage of PPE. (ii) Improvement Notice No. 7-172858 - first defendant to conduct a site-specific risk assessment and develop, implement and maintain a safe system for working at heights. Work systems after the incident 81. At the time of the incident, most of the demolition work had been completed. 82. The system of work following the incident for the first defendant remained the same. The induction process, the toolbox talks and the site audits remained. 83. The first defendant redrafted their SWMS and also provided a SWMS in Cambodian language. 84. Chunn Vann was given greater respect and had authority to remove employees from the site if they failed to follow the safety requirements. Prior convictions 85. Neither the first defendant nor Bo Ung have prior convictions under NSW OHS law. Annexed to this document and marked "Annexure G" is a true copy of the prior conviction records for the first defendant and Bo Ung. Prior notices 86. On 14 April 2005 the first defendant was issued Improvement Notice 7-82123 by Inspector Jim Moore. Annexed and marked "Annexure H" is a true copy of the Improvement Notice dated 14 April 2005. The reason for issue was that employees may be exposed to risk from fall whilst working at heights while removing asbestos guttering - working on roof without restrain when removing asbestos. The measures to be taken were that the first defendant must provide a safe system of work for working at heights. Attention was drawn to the Code of Practice Safe Work on Roofs Part 1 and 2 (Safety Line Systems/use of Fall arrest Systems) as well as clause 56 of the Occupational Health & Safety Regulation 2001. 7Mr Bo Ung swore an affidavit for the purpose of the proceedings, which was admitted into evidence. In addition, he gave oral evidence by way of cross-examination and re-examination. 8In his affidavit, Mr Bo Ung said that he had obtained information from a number of employees working on the construction site concerning their qualifications and courses undertaken by them. There was evidence that the injured employee, Mr Chhoeu, had completed a course in occupational health and safety general induction for construction work on 17 February 2007. On 1 May 1992, Mr Chhoeu completed a TAFE asbestos removal course. Information provided about other employees, but not Mr Chhoeu, indicated the completion of a course entitled "Work Safety at Heights". Furthermore, a number of employees had undergone Harness Safety Training although Mr Chhoeu was not one of them. 9It was the evidence of Mr Bo Ung that when Mr Chhoeu was employed he had received a statement of service from a previous employer stating that he had been employed from 18 January to 2 December 2008 as a casual asbestos operative. It was Mr Ung's understanding that Mr Chhoeu had previously worked in construction for a long time and had previous experience using a harness for working at heights. Some degree of confirmation was provided by a further fact, which was agreed between the parties, namely that Mr Chhoeu told the prosecutor in the course of giving a statement that he had previous training using a harness for working and he had previously worked in the construction industry. 10There is evidence in Mr Ung's affidavit from which the Court can infer that he and BU Hazardous expressed tangible contrition and remorse for the serious injuries sustained by Mr Chhoeu. 11In cross-examination, Mr Ung said that he continued to perform work in the construction industry, engaged in the removal of asbestos, soft strip out and demolition work. He is using a company structure for this purpose. Because of a current downturn in work, he performs work personally and engages employees as and when required on a casual basis. He is also a qualified demolition supervisor and supervises others in the carrying out of demolition work. 12The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of each of the offences. The facts are not in dispute, and the defendants, by pleading guilty, are taken to have admitted all of the elements of the offences and the particulars of the offences with which they were charged. 13In essence, Mr Chhoeu commenced work with BU Hazardous three days prior to the incident. He was working at a height of between 6 and 8 metres removing metal roof sheeting from a building that was to be demolished. Mr Chhoeu was not provided with a harness or with any other fall restraint system, nor were any other measures taken to have precluded him from falling from the roof. 14BU Hazardous did have in place a Safe Work Method Statement. This provided that the work should not be carried out without a fall arrest device in place. That Safe Work Method Statement was breached by BU Hazardous in the clearest possible terms. At the time of the incident, the directing mind and sole director of BU Hazardous was present on the roof, personally carrying out some of the work. The only excuse proffered for the failure to give Mr Chhoeu a fall restraint device was the fact that there were not enough available for all persons carrying out the work. 15Furthermore, Mr Chhoeu did not received any induction into the use of a fall restraint system from BU Hazardous nor was he given information or instruction concerning the safety methods that he should have adopted in order to carry out the work safely. 16In submissions made on behalf of Mr Ung, Mr O'Donnell pointed to the supervisory role exercised by the principal demolition and excavation company, H Hassarati & Co Pty Ltd, which had subcontracted part of the work on the construction site to BU Hazardous. It was submitted that the person appointed by H Hassarati & Co Pty Ltd had failed to adequately and appropriately supervise the totality of the works being carried out at the construction site. Accordingly, it was submitted that there was a lesser culpability on the part of the defendants in these proceedings. 17Such a submission ignores the fact that BU Hazardous was retained to carry out specialist demolition work and that principal responsibility for ensuring a safe working environment for the employees of BU Hazardous rested with that company. In these circumstances there were concurrent obligations and duties owed by both H Hassarati & Co Pty Ltd and BU Hazardous to ensure the health and safety of persons working at the site. If, in some way, the total responsibility for the supervision of all of the persons carrying out the demolition of the roof had been assumed by one particular entity, then the submission made by Mr O'Donnell might have greater force. However, there is nothing in the evidence before the Court that would allow me to mitigate the culpability of these defendants by reference to some overall supervisory role being conducted by H Hassarati & Co Pty Ltd. 18There are a number of subjective features that the Court is entitled to take into account in favour of the defendants when assessing penalty. All of these were either the subject of agreement between the parties or evidence before the Court. The defendants pleaded guilty at the earliest opportunity, there was co-operation with the prosecutor and the WorkCover Authority of New South Wales in connection with the investigation of the incident and there have been genuine expressions of contrition and remorse. There is a brief reference in the agreed statement of facts to some steps that were taken by BU Hazardous after the incident. These included a redraft of the Safe Work Method Statement, providing a copy of it in the Cambodian language for the purposes of its employees and the reinforcement of the authority of the supervisor to remove employees from the site if they failed to follow safety requirements. 19This leaves for consideration the remaining matter of significant contention between the parties, which is the assessment of the objective seriousness of the offences. 20I regard the culpability of BU Hazardous as being most serious. It was known that safety harnesses were to be provided to employees. Furthermore, it was known that there were not enough harnesses for employees carrying out work on the site on the date of the incident. Accordingly, it was known, as is clear on the evidence, that some employees would be required to work at a great height without any fall restraint system in place. This was clearly known to the corporate defendant's supervisor and must have been known to Mr Ung. He attended the site, climbed onto the roof without wearing a harness and knew that there were not enough harnesses for the number of employees working there. All of these circumstances point to a blatant breach of a known safe method of carrying out the work. 21Mr O'Donnell sought to deflect some of the culpability away from Mr Ung because he was not directly involved in supervising the employees at the time that the incident occurred. I reject this submission because, on the evidence, Mr Ung was present at the construction site shortly before the incident and was aware that there were insufficient safety harnesses. Furthermore, s 26, in the form in which it appeared relevant to the date of this incident, provides that a director of a corporation is taken to be guilty of the same offence as that committed by the corporation. Accordingly, the culpability of Mr Ung must reflect that of the corporation, BU Hazardous, particularly in the context of the factual circumstances that apply to these proceedings. 22Viewed objectively, this is a most serious offence. The circumstances are such that it portrays a situation approaching a worst possible scenario. The defendants were aware of the need to provide safety harnesses. They knowingly and deliberately disregarded this requirement and knowingly exposed Mr Chhoeu to a most serious risk of injury in all of the circumstances in which the work was being carried out. 23In assessing penalty, I shall also take into account the need to provide for a deterrent effect both generally and specifically for these defendants. Work at heights in the construction industry is always fraught with danger and it is essential that persons responsible for the safety of construction workers exercise due diligence to ensure compliance with the Act so as to provide the safest possible work environment. Furthermore, it is necessary to provide some form of deterrence to ensure that these defendants do not breach the provisions of the Act again. 24Having regard to the objective seriousness of the offences to which I have referred, taking into account the need for both general and specific deterrence, but making allowance for all of the subjective matters to which I have referred to the greatest possible extent permitted by the relevant sentencing principles, I intend imposing a penalty of $300,000 on BU Hazardous and of $30,000 on Mr Bo Ung. This is in the context of a maximum penalty applicable to the company of $550,000 and applicable to Mr Ung of $55,000. 25The prosecutor sought orders for the payment of a moiety and costs, neither of which were opposed. 26At the conclusion of the hearing, I formally convicted each of the defendants of the offence with which it and he respectively was charged, having been satisfied on the basis of the evidence that the entry of the pleas of guilty was appropriate in each case. This then allowed the Court to receive a Victim's Impact Statement of Kim Pheng Chhoeu. The Court acknowledges under the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 receipt of that statement, the serious injuries suffered by Mr Chhoeu and the impact that it has had upon him. Orders 27I make the following orders 1) I impose a penalty of $300,000 on BU Hazardous Material Removal and Demolition Pty Ltd and of $30,000 on Bo Ung, with a moiety in each case to the prosecutor. 2) The defendants are to pay the costs of the prosecutor in an amount assessed in default of agreement in such proportion that the respective penalties imposed upon each of them bears to the totality of the costs. ********** 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: 02 November 2011