Inspector Spence v Aleksic Carpentry Pty Ltd & Anor [2012] NSWIRComm 45

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Spence v Aleksic Carpentry Pty Ltd & Anor [2012] NSWIRComm 45 Hearing dates: 16 May 2012 Decision date: 30 May 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Matter No IRC 1399 of 2011 (1) The defendant is found guilty of the offence charged under s 10(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $120,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Matter No IRC 1400 of 2011 (1) By virtue of s 26(1) of the Occupational Health and Safety Act 2000 the defendant is found guilty of the offence charged under s 10(1) of that Act. (2) The defendant is fined an amount of $15,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecutions of personal and corporate defendants under Occupational Health and Safety Act 2000 for breaches of s 10(1) - Pleas of guilty - Sentencing - Construction industry - Worker fell through penetration in building under construction - Serious injuries - Unrepresented litigants - Failure to ensure penetration securely covered - Failure to conduct an inspection of the penetration to ensure it was securely covered prior to non-employees commencing works in the vicinity of the penetration - Failure to warn persons working at the premises of the risk of the inadequately secured penetration - Failure to undertake a risk assessment - Failure to inform non-employees working at the premises of the penetration and/or inform them of the risks of working in the vicinity of the penetration - Failure to ensure that a safe work method statement was in place for working near an open, unsecured penetration - Failure to ensure the non-employees working at the premises were supervised to ensure that non-employees did not work in close proximity to the unsecured penetration with a fall height that was in excess of three metres - Consideration of relevant objective and subjective factors - Penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Danial v R [2008] NSWCCA 15 Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31 Inspector Dunlop v Robert Shone Constructions Pty Ltd [2002] NSWIRComm 222; (2002) 118 IR 267 Inspector Gelonese v Ghevondian & Hyecorp Construction Pty Ltd [2010] NSWIRComm 12 Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd [2010] NSWIRComm 37 Inspector Gjaltema v Sebastian Builders & Developers Pty Ltd [2010] NSWIRComm 144 Inspector Hinton v Mono Constructions Pty Ltd [2011] NSWIRComm 148 Inspector Richard Mulder v Axis Metal Roofing Pty Ltd [2008] NSWIRComm 28 Inspector Richard Mulder v Process Engineering Group Pty Ltd and Anor [2008] NSWIRComm 36 Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others [2010] NSWIRComm 106 Inspector Yeung v DJD Masonry Contractors [2003] NSWIRComm 236 Inspector Yeung v Thiess Pty Ltd [2003] NSWIRComm 325 Inspector Yeung v Wideform Constructions Pty Ltd [2003] NSWIRComm 380 Winchester v R (1992) 58 A Crim R 345 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Jones) v Protogeros; WorkCover Authority of New South Wales (Inspector Jones) v Carrier Electrical Services Pty Ltd [2005] NSWIRComm 237 Category: Principal judgment Parties: Inspector Ronald John Spence (Prosecutor in both matters) Aleksic Carpentry Pty Ltd (Defendant in IRC2011/1399) Milivoje Aleksic (Defendant in IRC2011/1400) Representation: M Moir of counsel (Prosecutor in both matters) WorkCover Authority of New South Wales (Prosecutor in both matters) Milivoje Aleksic (Defendant - in person) File Number(s): IRC 1399 of 2011 IRC 1400 of 2011