Inspector Nguyen v Finray Pty Ltd [2011] NSWIRComm 170

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nguyen v Finray Pty Ltd [2011] NSWIRComm 170 Hearing dates: 31 August, 1, 6 September, 19 October & 22 November 2011 Decision date: 16 December 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) The defendant, Finray Pty Ltd, is found guilty of the offence with which it is charged and convicted accordingly. 2) A monetary penalty of $225,000 is imposed with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. Catchwords: OCCUPATIONAL HEALTH & SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 - not guilty plea - subsequent ex parte proceedings - long standing and fundamental defect in equipment - objective seriousness - serious breach - general and specific deterrence - orders made Legislation Cited: Legal Profession Act 2004 Occupational Health and Safety Act 2000 - s 8(1) Category: Principal judgment Parties: Inspector Duy Nguyen of WorkCover Authority of New South Wales (Prosecutor) Finray Pty Ltd (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Legal Group, WorkCover Authority of New South Wales File Number(s): IRC 745 of 2010

EX Parte Judgment 1The defendant, Finray Pty Ltd, is charged by the prosecutor, Inspector Duy Nguyen of the WorkCover Authority of New South Wales, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). When proceedings commenced, the defendant was initially represented by counsel and a solicitor. A formal plea of not guilty was entered and thereafter the proceedings were conducted on the basis that they would be defended. Subsequently, the defendant's solicitor and counsel ceased to represent the defendant and thereafter the defendant has not participated in the proceedings in any way. The prosecutor has determined in the circumstances to proceed ex parte and the hearing of these proceedings has been conducted accordingly. 2The charge brought against the defendant is that being an employer, on 5 August 2008, at 1034 Seery Road, Rappville in the State of New South Wales ("the Site") [the defendant] failed to ensure, by its acts or omissions as particularised below, the health safety and welfare at work of all its employees, and in particular Francis Raymond Morton, contrary to section 8(1) of [the Act]. 3The particulars of the charge as contained in the application for order are as follows: The particulars of the risk are: (a) The risk to persons of being struck or crushed by an articulated loader, and in particular a Ford Loader Model No. HZ4 11V "A-66" fitted with a log lifting attachment (the Loader), while performing duties operating the Loader or performing tasks in conjunction with the investigation, repair or maintenance of the Loader, while engaged in the task of lifting and loading of logs at a log storage dump at the Site. The particulars of the acts or omissions in failing to eliminate the risk are that: (b) The defendant failed to ensure that plant, in particular the Loader, provided for use by its employees at work was safe and without risks to health when properly used, in that it failed to undertake measures as follows: i. ensure that the parking/emergency brake of the Loader was serviced, repaired and in good working order to ensure that the Loader could be securely parked whilst the operator performed tasks in conjunction with the investigation, repair or maintenance of the Loader; ii. ensure that the loader was maintained in safe operating condition; iii. ensure that ignition system was able to be key started and that damage to the electrical wiring of the ignition system was repaired and in working order; iv. ensure that the hydraulic rams for the front boom and forks of the lifting attachment were serviced, repaired and in good working order; (c) The defendant failed to provide adequate information, instruction and training to its employees and in particular Francis Morton on the safe system of work in relation to operating the Loader or performing tasks in conjunction with the investigation, repair or maintenance of the Loader at the Site, in that it failed to undertake measures as follows: i. ensure that Francis Morton had been undertaken formal training and assessment of his ability to competently and safely undertake the tasks of: (1) maintain equipment on site-basic; (2) conduct loader (wheeled or tracked) forestry operations; (3) conduct excavator (with grabs) operations; (4) shift forestry logs using truck; (5) maintain equipment-advanced; in accordance with the Forest Harvesting Competency Standards ii. ensure that Francis Morton, had been provided with instruction and training as to how to safely park the Loader in order to perform tasks in conjunction with the investigation, repair or maintenance of the Loader at the Site, and in particular information relating to: a. ensuring the Loader was positioned on a level surface with the log lifting attachment flat on the ground; b. that the Loader should not be parked with its rear wheels up on a slope whilst undertaking maintenance tasks on the Loader; c. that in the absence of an operable parking/emergency brake that chocks or other devices were placed in front of and behind the tyres of the Loader to ensure the Loader could not roll forwards/backwards; d. that the operator should not place himself between the wheels of the Loader and the load guard of the log lifting attachment while the engine was running and the Loader left in neutral; iii ensure that Francis Morton had been provided with instruction and training to undertake a visual inspection of the Loader prior to operation and to report any missing components or repair or maintenance issues relating to the Loader. (d) The defendant failed to ensure adequate supervision of employees working at the site, in particular, Francis Morton while he was undertaken log loading duties at the Site, in that it failed to undertake measures as follows: i. ensure that Francis Morton was provided with direct supervision in respect to the use of the Loader until he had demonstrated he was able to competently and safely operate the Loader and perform tasks in conjunction with the investigation, repair or maintenance of the Loader at the Site; ii. ensure that Francis Morton was supervised to ensure that he undertook a visual inspection of the Loader prior to operation and to report any missing components or repair or maintenance issues relating to the Loader. As a result of the defendant's failures, Francis Morton was placed at risk of injury. As a result of the defendant's failures, Francis Morton was fatally injured. The injury suffered by Francis Morton was a manifestation of the risk and resulted from the defendant's failures as particularised above. 4The prosecutor led no evidence with respect to paragraph (b)iii above and did not rely on that particular for the purpose of these proceedings.