Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 174

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 174 Hearing dates: 12 December 2011 Decision date: 14 December 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. I find the defendant guilty. 2. 2. The defendant is fined in the sum of $170,000 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant shall pay the prosecutor's costs. As to the quantification of costs, I will hear the parties on this issue in the event no agreement is reached. Leave to relist at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach under s 8(1) - amended application for order - guilty plea - unsafe ceiling area used for storage - ceiling collapsed and employee injured - warning sign and guard rail installed nonetheless area still used for storage - no safe system of work - failure to properly instruct employees - failure to properly restrict access to unsafe area - defendant aware of risk - failure to warn of risk - failure to ensure employees had no access to known danger - foreseeable element - serious risk - general and specific deterrence - mitigating factors - defendant contributes significantly to employment in NSW and nationally - commitment to workplace safety to be commended - effective first aid system - appropriate remorse and contrition expressed - discount for plea - previous convictions - co-operated with prosecutor - penalty to reflect seriousness of offence - penalty - costs Legislation Cited: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295 Inspector Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126 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 Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 Veen v The Queen (No 2) (1988) 164 CLR 465 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994) Category: Principal judgment Parties: Inspector Doug Rolland (Prosecutor) Coles Supermarkets Australia Pty Ltd (Defendant) Representation: M K Scott of counsel (Prosecutor) P E McDonald SC (Defendant) WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): IRC 1259 of 2009