Inspector McGrath v DMP Container Labour Pty Ltd [2012] NSWIRComm 40

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector McGrath v DMP Container Labour Pty Ltd [2012] NSWIRComm 40 Hearing dates: 26 and 29 March 2012 Decision date: 14 May 2012 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: (1) The defendant is found guilty of the offence with which it is charged and convicted accordingly. (2) A monetary penalty 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(2) of the Occupational Health and Safety Act 2000 - guilty plea but not at earliest opportunity - appropriate penalty - failure to undertake risk assessment - failure to formulate Safe Work Method Statement - failure to ensure the proper supervision of contractors - failure to ensure that people who were not skilled, trained or qualified did not use forklifts -objective seriousness - serious offence - seriousness ameliorated by culpability of other persons - defendant did have in place some protocols and procedures - enhanced commitment to occupational health and safety following incident - general and specific deterrence - cooperation with the WorkCover Authority - no prior convictions - good character - penalties imposed Legislation Cited: Occupational Health and Safety Act 2000 - s 8(2) Category: Principal judgment Parties: Inspector Cherie McGrath of WorkCover Authority of New South Wales (Prosecutor) DMP Container Labour Pty Ltd (Defendant) Representation: Mr J Agius SC with Mr R Reitano of counsel (Prosecutor on 26 March 2012) Mr R Reitano of counsel (Prosecutor on 29 March 2012) Mr A Kostopoulos of counsel with Mr B Green of counsel Legal Group, WorkCover Authority of New South Wales (Prosecutor) CA Legal (Defendant) File Number(s): IRC 535 of 2009