Inspector McGrath v Edmen Recruitment Pty Ltd [2012] NSWIRComm 108

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector McGrath v Edmen Recruitment Pty Ltd [2012] NSWIRComm 108 Hearing dates: 11, 12 September 2012 Decision date: 03 October 2012 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) in relation to SITA Australia Pty Ltd: (i) the defendant, SITA Australia Pty Ltd, is convicted of a breach of s 8(2) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 819 of 2011) to which the defendant entered a plea of guilty; (ii) the defendant is fined the sum of $130,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. (b) in relation to Edmen Recruitment Pty Ltd: (i) the defendant, Edmen Recruitment Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 818 of 2011) to which the defendant entered a plea of guilty; (ii) the defendant is fined the sum of $117,500 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court (c) in relation to Christopher Andrew Livingstone: (i) in relation to the charge against Christopher Andrew Livingstone under s 20(1) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 820 of 2011) to which he entered a plea of guilty, the Court, without proceeding to conviction, discharges the defendant on condition that Christopher Andrew Livingstone enter into a good behaviour bond for a term of 18 months; (ii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1), s 8(2), s 20 -labour hire employee suffers horrific crush injuries arising from fall into automatic baling machine - pleas of guilty entered by three defendants - both labour hire employer and host client had electric isolation and tag out procedures - third defendant as site manager for host client had responsibility for the site and compliance with company's safety policies - failure to comply with isolation and lockout procedures - baler activated while employee working near open hopper - different circumstances of each defendant considered - serious breach found in each case - general and specific deterrence considered - numerous subjective factors considered - employee defendant makes application pursuant to s 10 Crimes (Sentencing Procedure) Act - inter-action with s 28 and provision of Victim's Impact Statement - whether finding of "guilty" is a "conviction" excluding consideration of s 10 application - medical evidence accepted - no conviction recorded for employee defendant - 18 months' bond imposed - fines imposed on corporate defendants. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Maxwell v The Queen (1996) 184 CLR 501 R v De Simoni (1981) 147 CLR 383 at 389 R v Thomas [2007] NSW CCA 269 Rail Infrastructure Corp v Inspector Page (2008) 179 IR 398 Regina v Reinsch (1978) 1 NSWLR 483 Category: Principal judgment Parties: Inspector Cherie McGrath (Prosecutor) Edmen Recruitment Pty Ltd (Defendant in 11/818) SITA Australia Pty Ltd (Defendant in 11/819) Christopher Andrew Livingstone (Defendant in 11/820) Representation: Mr Reitano of counsel (Prosecutor) Mr Shume of counsel (Defendant in 11/818) Mr Hodgkinson SC (Defendant in 11/819) Ms Nomchong of counsel (Defendant in 11/820) Criminal Law Practice, Legal Group WorkCover Authority of NSW (Prosecutor) Sparke Helmore (Defendant in 11/818) Baker & McKenzie (Defendant in 11/819) Middletons (Defendant in 11/820) File Number(s): IRC 818 of 2011 IRC 819 of 2011 IRC 820 of 2011