Inspector Estreich v Cement Australia (Kandos) Pty Limited (ACN 004 158 972) [2013] NSWIRComm 65

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Estreich v Cement Australia (Kandos) Pty Limited (ACN 004 158 972) [2013] NSWIRComm 65 Hearing dates: 06/03/2013 Decision date: 09 August 2013 Before: Backman J Decision: In IRC No 1491 of 2011, the Court makes the following orders: (1) Cement Australia (Kandos) Pty Limited is convicted of the offence and fined $100,000 with a moiety to the prosecutor; (2) the defendant is to pay the costs and disbursements of the prosecutor in the agreed amount of $100,000. In IRC No. 1494 of 2011, the Court makes the following orders: (1) Cement Australia Pty Limited is convicted of the offence and fined $90,000 with a moiety to the prosecutor; (2) the defendant is to pay the costs and disbursements of the prosecutor in the agreed amount of $100,000. IRC No. 1495 of 2011 is stood over for a directions hearing at 9.30am on Friday, 9 August 2013. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 ("the Act") - pleas of guilty to offences under s 10(2) and s 8(1) of the Act - worker fatally injured while undertaking an inspection of a component part of a cement processing plant at premises at Kandos - omissions on part of both defendants to install fixed guarding - other acts and omissions alleged - objective factors considered - subjective factors considered - respective roles of defendants in the circumstances of the offences considered - Victim Impact Statement - Orders Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Inspector Hughes v Advanced Metal Door Frames Pty Ltd [2013] NSWIRComm 2 Category: Principal judgment Parties: Inspector Pamela Estreich (Prosecutor) Cement Australia (Kandos) Pty Limited (ACN 004 158 972) (First defendant) Cement Australia Pty Limited (ACN 104 053 474) (Second defendant) Representation: Mr C Magee, of counsel (Prosecutor) WorkCover Authority of New South Wales (Prosecutor) Norton Rose Fulbright (First and Second Defendants) File Number(s): IRC 1491 of 2011 IRC 1494 of 2011