Inspector Christensen v Abigroup Contractors Pty Limited and Anor [2013] NSWIRComm 111

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Christensen v Abigroup Contractors Pty Limited and Anor [2013] NSWIRComm 111 Hearing dates: 15 to 18, 22, 23, 29 and 30 April 2013 Decision date: 20 December 2013 Before: Walton J, Vice-President Decision: (1) In Matter No IRC 278 of 2011, the Court finds the defendant, Abigroup Contractors Pty Ltd, not guilty of the offence as charged. The charge is dismissed; (2) In Matter No IRC 279 of 2011, the charge against the defendant, Abigroup Contractors Pty Ltd, has been proven with respect to particular (b). A defendant will be found guilty if only one of the particulars of a charge is made out: Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 316; (1997) 98 A Crim R 481 at 485 per Gleeson CJ (Ireland and Bruce JJ agreeing) applied in O'Sullivan at [93]. Accordingly, the Court finds Abigroup Contractors Pty Ltd guilty of an offence under s 8(2) of the Act; (3) In Matter No IRC 285 of 2011, the Court finds the defendant, GTE Workplace Management Pty Ltd, not guilty of the offence as charged. The charge is dismissed; (4) Matter No IRC 279 of 2011 will be listed for sentencing at 10am on 4 March 2014; (5) The question of costs is reserved until judgment is delivered on sentence in Matter No IRC 279 of 2011; (6) There is liberty to apply upon the giving of reasonable notice with respect to orders (4) and (5). Catchwords: OCCUPATIONAL HEALTH AND SAFETY - trial - two defendants - Abigroup Contractors Pty Ltd prosecuted under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - charges in relation to failures to conduct risk assessment in respect of a particular (changed) work process and maintain safe system of work - GTE Workplace Management Pty Ltd prosecuted under s 8(1) of the Occupational Health and Safety Act 2000 - charge in relation to failures to assess risks, review risk assessments and instruct employees - both defendants entered pleas of not guilty - prosecutions arose from fatal incident in course of work involving the installation of rail panels - various subcontractors engaged at site - rail panels lifted into place via crane - switch panel misaligned - rectification work undertaken by workers on panel whilst panel still under weight of crane - head dogman/rigger and crane operator aware panel under weight - no person at the site other than crane operator and head rigger/dogman aware - tension from panel being under weight caused rails to come loose when clips attaching rails to panel removed by labourers - one worker killed - four workers injured