24 The Defendant endeavoured to notify WorkCover of the Incident but was advised by an employee of WorkCover that it was not necessary to so notify.
3 In addition, there was tendered into evidence a prosecutor's bundle of documents which included photographs, a copy of a prohibition notice referred to in the agreed statement of facts, a WorkCover pamphlet, also referred to in the agreed statement of facts, and a discharge referral from Royal Prince Alfred Hospital relating to the injured employee. On behalf of the defendant, there was tendered into evidence an affidavit of Alexander Peter Tyree, the manufacturing and supply chain manager of the defendant, which described the defendant's business and manufacturing operations, the defendant's conduct following the incident, the assistance rendered by it to the injured employee, steps taken by it to remedy the deficiency in the guarding attached to the particular machine and its commitment to its occupational health and safety obligations in a general sense. Furthermore, Mr Tyree's affidavit refers to certain activities undertaken by the defendant in support of its characterisation as being "a good corporate citizen".
4 The commencement point for the fixing of an appropriate penalty is an assessment of the objective seriousness of the offence. There can be no doubt from the agreed statement of facts that as at November 2006, the defendant was aware of the potential for injury from the risk assessment report, which is referred to in [9] of the agreed statement of facts. On the basis of such evidence as is before the Court, no steps were taken by the defendant to remedy this deficiency. This is, of course, a serious matter. On the other hand, I take into account that this was not the case of a machine that had no guarding at all. There were, as described in [7] of the agreed statement of facts, two guards which had been affixed. They were, however, inadequate as is demonstrated by the modifications that were carried out after the incident and that are described in [16] of the agreed statement of facts.
5 It is, in my opinion, a serious matter to require employees to operate machinery that is inadequately guarded. However, this is far from a worst case scenario having regard to the presence of some guarding on the machine, albeit inadequate, and in the context of the defendant's overall commitment to occupational health and safety matters as is referred to in the evidence of Mr Tyree.
6 In assessing penalty, I shall also take into account the specific deterrent effect that such a penalty will have on this defendant, which continues in business as a significant manufacturer and supplier of advanced hospital equipment and technology, and specifically hospital beds. To some extent, however, the specific deterrent effect on this defendant may be ameliorated by reason of its commitment to discharging its obligations under the Act as is demonstrated by the comprehensive steps taken by the defendant after the incident.
7 It is also necessary to have regard to the general deterrent effect that the imposition of a penalty will have within the industrial community generally, and I shall do so.
8 There are mitigating subjective matters that the Court is entitled to take into account in favour of the defendant. On the evidence before the Court, it entered a plea of guilty at the earliest appropriate opportunity, it co-operated fully with the prosecutor and the WorkCover Authority of New South Wales in connection with its investigation, it has expressed remorse and contrition for the incident and the injuries sustained by its employee and has assisted its employee in a tangible manner. Despite operating over many years, the defendant has no prior convictions for any offence against the Act or associated legislation. There is evidence that establishes that the defendant is a "good corporate citizen".
9 The defendant having no prior convictions, the maximum penalty is the sum of $550,000. Having regard to all of the matters to which I have referred, I intend imposing a penalty of $95,000.
10 The prosecutor sought an order for costs, which was not opposed and which I intend granting. The prosecutor also sought a moiety of the penalty, being payment of one half thereof
11 The defendant did not oppose the making of an order for the payment of a moiety of the penalty to the prosecutor. I raised with the parties the appropriateness of the Court making such an order having regard to the fact that the prosecutor was an individual, albeit the secretary of a registered organisation of employees. Subsequently, with leave, the Court received an affidavit sworn by the prosecutor on 25 February 2010. That affidavit referred to the activities of the Australian Manufacturing Workers' Union (AMWU), New South Wales State Office with particular reference to the activities of an occupational health and safety unit. That unit was said to conduct training as an accredited WorkCover trainer, to conduct safety inspections at workplaces where members of the union worked, to have involvement in representative activities with employers and government bodies concerning occupational health and safety matters and to communicate generally with union members. The prosecutor undertook to pay any moiety of the penalty to the AMWU and further undertook, on behalf of that organisation, that those funds "will be used by the AMWU solely for occupational health and safety related purposes."
12 The appropriateness of ordering the payment of a moiety of a penalty imposed for breach of the Act and its predecessor in circumstances where the prosecution is brought by a person holding office with an industrial organisation of employees has been the subject of many decisions of this Court and its predecessor. A number of them are conveniently referred to in the judgment of Boland J (as his Honour then was) in Derrick v ANZ Group Limited (No 2) [2005] NSWIRComm 145. Subsequently, the researches of counsel for the prosecutor have indicated that there are a further ten decisions of this Court in which moieties have been granted in circumstances similar to those which prevail in these proceedings.
13 I am satisfied on the authorities that there is a general practice in this Court to order the payment of a moiety of a penalty where the Court is satisfied that the monies so paid will be utilised by a registered organisation of employees for the purpose of promoting activities designed to enhance awareness of and compliance with occupational health and safety legislation. I am also satisfied, for the reasons canvassed by Boland J in Derrick based as they were on a consideration of other relevant decisions of this Court and its predecessor, that the relevant statutory framework exists to enable the making of such an order. Accordingly, I propose to do so in these proceedings having regard to the undertaking proffered to the Court by the prosecutor.
Orders