COAL OPERATIONS AUSTRALIA LTD v INDUSTRIAL RELATIONS COMMISSION OF NSW & Rodney Dale MORRISON

Proceedings in the Commission 25 The Claimant was charged with two counts of failing to ensure the health, safety and welfare at work of all its employees, particularly Messrs Carroll and Dickson, by failing to maintain systems of work that were safe and without risk to health, contrary to s15(1) of the OH&S Act. The two counts related to failures in relation to:

at the site of the accident. 26 Peterson J acquitted the Claimant of both charges on the basis that, in respect of each count, the Claimant had made out a defence provided by s33(2) of the OH&S Act. That section provided: "33(2) A person is not guilty of an offence … in respect of any act or omission which is expressly required or permitted to be done or omitted by or under the associated occupational health and safety legislation." 27 The relevant 'requirement or permission' identified by his Honour was the minimum support rules operating at the Wallarah mine. It was not in dispute that these rules were made under 'associated legislation', as they had been registered with and approved by the District Inspector of Mines in compliance with the Coal Mines Regulation (Support - Underground Mines) Regulation 1984. The relevant support rule was r 3, which was in the following terms: "3 Workmen are not to proceed beyond the last test hole or temporary support unless the roof has been tested by sounding with a metal bar or suitable metal object and found secure." 28 His Honour found that at the time of the accident, the mining team had been acting within this guideline and had, in fact, improved its method of support beyond that required by the minimum support rule to accommodate the adverse conditions. 29 In any event, his Honour found that the charges had not been made out beyond reasonable doubt. In respect of the roof assessment charge, after considering the expert evidence, and the standards of assessment acceptable in the industry (i.e. "sounding"), his Honour concluded: "[94] … There is no evidence from which it can be gleaned that any person then present, not having available some expert opinion on the matter in the light of the accident, would have formed the view at the time that the undertaking was seriously dangerous. In other words, it cannot be concluded that an assessment of the roof at the time would have produced the view that Mr Carroll was at serious risk in undertaking the task he did. Where then is the employer's failure?" 30 In respect of the roof support charge, the Prosecution had alleged that the Claimant had failed to use a "rig-mounted" bolting machine that could have enabled the miners to drill support holes in the relevant area whilst under a supported roof. The Claimant's response was that equipment of that character was unsuitable for use in the area of the accident due to the shallow height of the heading. His Honour made the following finding: "[97] As to the prosecutor's submissions regarding the use of rig-mounted bolters, I am not satisfied beyond reasonable doubt that the conditions of the mine permitted their use in the area of the fall. Mr Levey's evidence in that regard, I consider, is sufficient to raise a reasonable doubt on that matter. His evidence also was that rig-mounted bolters are not always used in other parts of the mine although in most panels Falcon and rig-mounted bolters were used as a routine practice." 31 His Honour concluded: "[98] The concept of ensuring safety under the provisions of the 1983 OHS Act has been long recognised as requiring the demonstration that a defendant has failed by act or omission in a way which is causally connected with the resulting risk to safety. Given the circumstances to which I have referred and the necessity of the relevant parties to respond to their assessment of roof condition, I find that the prosecution has not established a relevant failure by the defendant in relation to s15(1) of the 1983 OHS Act." 32 After considering the facts and legislative regime, the Full Bench identified a "fundamental misconception" in both the Claimant's submissions and Peterson J's reasons. The misconception so identified was that the offences charged involved the risk occurring when Messrs Carroll and Dickson worked beneath the unsupported roof. The Full Bench characterised the scope of the charges differently. Their Honours said: "[39] In our view, on a consideration of the offences charged and the alleged failures as particularised, the respondent's contentions as to the underlying premise of the appellant's proposition are not correct. Reference to the alleged failings identified by the appellant in the charges contains one reference only to the absence of any roof support within each of the charges. [40] In our view, what the prosecution is alleging within the offences charged are failures relating to the respondent's system of work going to assessing the stability of the roof and the erection of the roof support in the circumstances prevailing at the respondent's place of work on 6 July 1998 at Face area sequence 131, Production Panel 3 in Production District 3. In alleging the system of work offences, the prosecution subsequently, but prior to the hearing at first instance, particularised the failures it relied upon going directly to the overall system of work relevant to the offences pleaded. It is those failures that the prosecution is required to establish and for the judge at first instance to consider. There is some general reference to aspects of those specific failures contained within his Honour's judgment (for example, reference to the rig mounted bolting machines in paras [91] and [97] of his judgment). But there is no part of his Honour's judgment that we can point to that would demonstrate with certainty his Honour considered the failures relied upon relevant to the overall system of work in place at the time of the accident." 33 Having characterised the charges in this manner, the Full Bench proceeded to consider the scope of the s33(2) defence that had proved decisive at first instance. Their Honours noted that this defence must be read "within the context of … a statute that imposes an absolute obligation on employers to ensure the health, safety and welfare of workers at work" (at [44]). This context lead their Honours to the following interpretation: "[48] We consider the Legislature's intention in providing for the exception in s 33(2) was that in allowing for support rules to be made that may expose persons to risks to safety, it envisaged everything practicable to be done to avoid that risk had been done. With all practicable measures in place an act or omission expressly required or permitted may then be done or omitted. Nothing outside of the precise requirement or permission is allowed to be done or omitted. [48] In other words, although the obligation under s 15(1) is to ensure that persons are not exposed to risks to health and safety, s 33(2) provides a limited exception. Thus, provided all possible precautions are taken, certain acts and omissions expressly required or permitted , but which may not be consistent with the duty to ensure safety, will not render a defendant guilty of an offence." 34 Applying this interpretation, the Full Bench found that the minimum support rules did purport to put in place, as required, all practicable means to avoid risks to safety. Further, their Honours found that support rule 3 did operate to permit work to proceed beyond the last test hold or temporary support. Accordingly, their Honours found that: "[51] Given our view that minimum support rule 3 permitted workmen to be located under unsupported roof it follows that there was no failure on the part of the respondent in so far as Messrs Carroll and Dickson were under unsupported roof using the Falcon Roof Bolter to bolt the roof. …" 35 However, the matter did not end there. Their Honours found that: "[52] [I]t is inconceivable in our view, with all of the indicia of real, let alone potential, risks to safety existing with the unstable roof conditions, that s33(2) could afford a defence to an overall system of work that was, on any objective consideration, inherently unsafe given the conditions prevailing." 36 It was here that the Full Bench found that the "fundamental misconception" attributed to Peterson J lead to error. Their Honours explained: "[59] … The respondent was charged with two offences that went to the respondent's system of work pertinent to the erection of roof support and assessing the roof support. Within each of those 'system of work' charges there were multiple failures alleged by the prosecution. In order to determine whether an offence was committed it is necessary to consider each of those alleged failures. Any alleged failure that is inconsistent with minimum support rule 3, which permits work under unsupported roof, cannot constitute an offence by virtue of s 33(2) of the Act. Any other alleged failure may constitute an offence if it can be made out on the evidence and if a causal connection can be found between the act or omission giving rise to the failure and the risk to safety. It is, therefore, necessary to consider each of the charges and the alleged failures as particularised in order to determine whether the charges have been made out." 37 It therefore became necessary to consider each failure particularised by the prosecution. In respect of the roof stability charge, those failures were alleged to be:

(a) The system of work in relation to the erection of roof support required the use of hand held drilling and bolting equipment which placed employees underneath or immediately adjacent to the part of the roof being drilled or bolted.

(b) The system of work in relation to the erection of roof support did not require the provision of temporary support immediately adjacent to the part of the roof being drilled or bolted.

(c) The system of work in relation to the erection of roof support was not sufficiently prescriptive in relation to unstable roof conditions.

(d) The system of work in relation to the erection of roof support was uncertain in its operation. 38 In relation to the assessment of roof stability charge, the failures were:

(e) The system of work in relation to assessing the stability of the roof structure was not sufficiently prescriptive in relation to the indicia of unstable roof conditions.

(f) The system of work in relation to assessing the stability of the roof structure was uncertain in its operation.

(g) The system of work in relation to assessing the stability of the roof structure did not require that work cease below unsupported roof in the event of the indicia of unstable roof conditions being present. 39 Their Honours proceeded to consider each failure and decide whether first, the failure had been made out beyond reasonable doubt and secondly, whether a defence was available under s33(2). 40 The Full Bench found that particular (a) fell within the scope of the s33(2) defence, and determined that no criminal finding could be based thereon (at [78]). In respect of particulars (d) and (f), relating to uncertainty, their Honours found those particulars to be themselves too uncertain. Accordingly, neither was found to be made out (at [100] and [115] respectively). 41 All other particulars were made out. In respect of particular (b), their Honours found that: "[83] … [T]he system of work in place failed in that it did not require the provision of temporary support immediately adjacent to the roof being drilled or bolted. We are also satisfied, given the indicia of unstable roof existing at the time, the failure to provide for temporary support is directly related to the risk identified, that being the risk of a roof fall. The failure to provide temporary support immediately adjacent to the roof being drilled or bolted is not overcome by the fact that Messrs Carroll and Dickson were permitted to be under unsupported roof; one is not inconsistent with the other." 42 In respect of particular (c), their Honours noted that "beyond the minimum support rules … much was left to the ultimate discretion of the relevant mining official as to what should be done in the event of unstable roof conditions" (at [91]). In respect of the argument that industry practice had been followed, their Honours response was that: "[95] … Relying on a somewhat loosely articulated practice within the industry as constituting a system of work above and beyond the minimum support rules is, on any view, inadequate when considered against the obligation to ensure a system of work that was absent a risk to the health and safety of the employees concerned subject, in this case, to s33(2)." 43 Ultimately, their Honours found: "[98] Given the known indicia of an unstable roof and the importance of ensuring a safe and secure roof in underground mining activity, it is imperative that employers should identify with as much precision as possible, the known indicia of an unstable roof and the steps that are to be taken when such indicia exist. One of those steps would be to cease mining immediately until the situation had been properly risk assessed. That was, in fact, Mr Wallace's initial decision when he first arrived at the worksite at about 2:00am. For reasons not fully known but predominantly, it would seem, because the roof continued to sound competent, mining activity continued in order to square up the end of the heading before finishing. It was, on any view, an unwise and unsafe decision given the roof conditions then existing. Not only did mining activity continue but it persisted beyond a second and more extensive roof fall some time shortly after. Again, the continuing activity was justified by relying on sounding the roof as the determinant that it was safe to do so notwithstanding all indicia to the contrary. It is difficult to visualise a more unsafe system of work. Further, this unsafe system can be traced directly to the absence of any oral or written prescription designed to protect employees by identifying matters that, taken together, constituted a risk to safety at work and how they were to be addressed to safely and proactively deal with that risk." 44 The establishment of particulars (b) and (c) sufficed to make out the roof stability charge. Their Honours concluded: "[101] We are satisfied beyond reasonable doubt that the respondent failed to provide or maintain a system of work that was safe and without risk to health, contrary to s15(1) of the Act. Specifically, the respondent's failure in relation to the erection of roof support in the vicinity of the area described as Face area sequence 131, Production Panel 3 in Production District 3 in circumstances where roof bolting was to take place has been established as particularised in failures (a), (b) and (c) as pleaded."

[The reference to particular (a) appears to be an error, given that this particular was not made out.] 45 In respect of the assessment of roof stability charge, their Honours found failures (e) and (g), set out above, to be made out. Failure (e), similarly to failure (c), related to a lack of prescription. The s33(2) defence was not available: "[107] It is untenable, we consider, to interpret s 33(2) to mean in this case that notwithstanding the respondent failed to provide sufficient guidance to employees as to what constituted unstable roof conditions indicating a risk of a roof fall that this failure is overcome by a minimum support rule that permits workmen to work under an area of unsupported roof once they found the roof was secure by testing it with a metal bar." 46 Their Honours drew attention to the "significant limitations" of the "sounding" procedure, and pointed to the many other indicia of instability manifest at the time of the accident. Their Honours found against the Claimant, and explained the level of prescription required by the Act: "[110] Given the known and deteriorating condition of the stability of the roof from the time Mr Wallace arrived at approximately 2:00am, it is obvious that work should have ceased while a thorough risk assessment of the situation was undertaken. The situation prevailing seemed to be that the only prescriptive guidance available to properly assess the roof stability was the minimum support rules. They were evidently inadequate in being of any assistance in responding to what was clearly a workplace situation fairly quickly moving to one of real risks to safety. [111] What was required was something in the nature of a checklist that was known to and understood by all employees as to those indicia that pointed to an unstable roof. That information was vitally important so that all of the workmen were aware of signs to look out for and act upon where the stability of the roof was an issue. It is an issue of vital importance in all underground mining activity and it certainly was in the circumstances surrounding the offence before us." 47 Similarly, in respect of failure (g), their Honours noted that apart from the minimum support rules, "there does not appear to be any evidence of a system of work that directed mining activity to cease below unsupported roof in circumstances of unstable roof" (at [117]). The causal nexus between this failure and the accident was "self evident" (at [119]). It followed that the second charge had also been made out, the Full Bench concluding: "[120] … [W]e are satisfied beyond reasonable doubt that the respondent failed to provide or maintain a system of work that was safe and without risk to health, contrary to s15(1) of the Act. Specifically, the respondent's failure to adequately assess the stability of the roof structure at the workplace described as face area sequence 131, Production Panel 3 in Production District 3 has been established with respect to particularised failures (a) and (c) as pleaded." [which I have designated particulars (e) and (g)] 48 Finally, their Honours considered the applicability of further defences available to the Claimant under s53 of the OH&S Act. That section, which was not considered by Peterson J, provides: "53 It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision." 49 After noting that the Claimant bore a civil onus to establish the defence, the Full Bench considered each limb separately, finding in each case that there was no evidence before the Court that could establish either limb (at [130], [136]).

Submissions of the Claimant 50 The grounds upon which the Claimant sought to challenge by way of judicial review the decision-making process in the Full Bench were the same as those raised in the case of Powercoal which was heard together with this case and in which the same counsel represented the Claimants. For the reasons set out in the judgment in Powercoal I am of the opinion that s179 of the Industrial Relations Commission Act would not apply to protect a decision of the Commission which failed to apply the criminal standard of proof. I will proceed, without deciding, on the basis that it would apply with respect to the other procedural defects alleged to have occurred. 51 In view of the constitutional issues sought to be raised it is appropriate for this Court to consider whether or not any defects of the character alleged were committed by the Commission. In my view the Full Bench of the Commission committed no error of any kind.

Criminal Standard Issue 52 Unlike the judgment in Powercoal, the Full Bench in this case made express reference to the beyond reasonable doubt standard and expressed the conclusion of the Court in those precise terms with respect to both the roof stability charge in par [101] and the assessment of roof stability charge in par [120] (as quoted above). 53 The Full Bench in this case stated expressly in par [120] that their Honours were "satisfied beyond doubt" of the contravention of s15(1) of the OH&S Act. The Claimant was not able to put before the Court any argument to suggest that this was some kind of mechanical recitation of the appropriate test. A detailed and careful analysis by their Honours of the facts was such as to constitute a proper basis for their Honours' conclusion. Indeed, the strength of the language used in the course of making critical findings of fact in the course of their Honours' reasoning point inexorably to the conclusion that the Full Bench applied the standard of proof applicable to a criminal conviction. 54 With respect to particular (b), I have set out par [83] above which constituted their Honours' conclusion with respect to the failure to provide temporary support by way of timber props. The particular was interpreted by the Commission as an allegation that in the circumstances the provision of such support was a mandatory requirement. Prior to drawing the conclusion which is set out above, their Honours said: "[82] … Given the circumstances prevailing at the workplace at the time of the accident pointing to roof instability, including two prior roof falls at the workplace, the conclusion that such a requirement should have been in place seems inescapable." 55 The reference to a conclusion appearing "inescapable" suggests the application of a beyond reasonable doubt standard. 56 Similarly strong language is employed in the Full Bench judgment in the course of rejecting as inadequate the evidence that the company had complied with industry practice, when their Honours said: "[95] There is no doubt that the minimum support rules were not sufficiently prescriptive as to what constituted unstable roof conditions and equally so, as to what was to be done, in any precise way, when such conditions did exist." [Emphasis added] 57 Similar language was used after their Honours set out the evidence of instability, when their Honours said: "[97] It is apparent , in our view, that there were clear geological and other indicia well known in the underground mining industry, that were indicative of an unstable roof." [Emphasis added] 58 Indeed their Honours went on to say in more emphatic terms in par [98] as quoted above that it was "difficult to visualise a more unsafe system of work". 59 With respect to the assessing roof stability charge their Honours language was equally emphatic: "[110] Given the known and deteriorating condition of the stability of the roof from the time Mr Wallace arrived at approximately 2.00am, it is obvious that work should have ceased while a thorough risk assessment of the situation was undertaken …" [Emphasis added] 60 Furthermore, in the course of dealing with particular (g) of this charge their Honours said: "[117] … What we find difficult to comprehend is the decision presumably taken to press on with mining activity following the second, and seemingly more significant, roof fall that followed after Mr Wallace left. By that stage, circumstances demanded that work cease immediately in the face of an increasingly risk-laden situation at the workplace. [118] In our view, the system of work was simply inadequate in that it failed to require that work cease under the unsupported roof in the circumstances where all of the indicia pointed to the presence of unstable roof conditions." 61 Moreover, with respect to particular (f), which their Honours rejected, their Honours said: "[115] … [W]e are not satisfied that the Appellant has established this failure with certainty and the necessary particularity and accordingly, it is not made out." 62 The reference to certainty also is consistent with the application of a beyond reasonable doubt standard. 63 All of these observations are not only consistent with a beyond reasonable doubt standard, but indicate that it was applied.

The Substitution of Views Issue 64 The second basis upon which the Claimant sought to challenge the decision of the Full Bench was the application by s197A(6) of the Industrial Relations Act of the requirement under s191(3) of that Act that, in the case of an appeal from an acquittal: "… the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received." 65 I adopt, without repeating, the analysis of this section in my judgment in Powercoal. However, nothing turns on the interpretation of that section for present purposes. In my opinion the Full Bench in this case was punctilious in identifying the nature of the errors that their Honours found Peterson J to have committed. I can see nothing in the judgment which could answer the description of their Honours merely substituting their own opinion for that of the trial judge. In each relevant respect their Honours identified error on the part of Peterson J. 66 The judgment of Peterson J turned on the defence under s33(2) of the OH&S Act. Understandably his Honour's treatment of the charges was less detailed, no doubt because his Honour only turned to consider those matters on the basis that his approach to the defence was found to be in error. The Full Bench overturned his judgment on the defence but also dealt, in greater detail, with the charges themselves. 67 As indicated above, the Full Bench identified what it characterised as a "fundamental misconception" in both the Claimant's submissions and Peterson J's reasons. It was identified in the following terms: "[37] … We turn to address what we consider as a fundamental misconception on the part of the Respondent as to the proposition the Appellant is said to rely upon in relation to both charges. It is a misconception that, in our view, is carried over into his Honour's judgment and led his Honour into error in that he failed to give proper consideration both as to the nature of the offences alleged as well as the failures particularised within each of the offences before the Court." 68 This is the clearest possible finding of error on the part of his Honour. The Full Bench goes on to indicate why it came to a different view on the matter, as set out above. It cannot be contended that in this regard the Commission approached its jurisdiction in any manner other than in accordance with s191. 69 Proceedings in this Court are not by way of an appeal. If, and I do not suggest that it occurred, the Full Bench made any error in determining the issues that arose in this regard, it was an error within jurisdiction and not an error going to jurisdiction. I have set out above the steps in the Full Bench's reasons which indicate clearly that their Honours found Peterson J to have committed error. 70 With respect to the particular charges, the Full Bench analysis was more elaborate than that of his Honour for the reason I have mentioned. Nevertheless during the course of the judgment particular aspects of error are identified. Their Honours referred to Peterson J's use of the expert reports concerning what should have happened in terms of work practices prior to the accident. Peterson J had said: "[93] These aspects of the expert's report go directly to the foreseeability of the accident and the question of whether there was any relevant, and identifiable, failure by the defendants." 71 With respect to this matter the Full Bench said: "[75] … Reference by his Honour to 'the foreseeability of the accident' arising from the expert's report is, in our view, erroneous." 72 Their Honours went on to refer to another judgment of the Full Bench which had rejected foreseeability as a consideration with respect to the jurisdiction under the OH&S Act. 73 When their Honours were dealing with the roof support charge, their Honours set out at [79] his Honour's finding on the particular charge in full. The Full Bench went on to set out a different analysis leading to a different conclusion. There can be no doubt that in this respect their Honours found his Honour's analysis to be inadequate. 74 Similarly, within the context of considering particular (c) their Honours made reference to passages of his Honour's judgment dealing with the matter at pars [89]-[93] in a detail which it is not necessary to set out. Their Honours went on to analyse the evidence in a different manner and come to the opposite conclusion. 75 With respect to the roof stability charge there is no reference to his Honour's judgment. His Honour's pertinent findings were as follows: "[88] It is apparent that the techniques used by miners and their supervisors for assessing the stability of a roof involve principally the senses and are even perhaps antiquated. The sounding of a conglomerate roof with a steel; the observation of a roof which might show water, slurry or stone and coal falling from it; listening for sounds indicative of a weaker roof or problems in the roof, all involve an individual's assessment by what seems to be an instinctive or learned reaction closely concerned with self-preservation. The evidence shows that the testing process is undertaken by all miners in a team on a continual basis. The environment in which the work is undertaken is obviously one involving inherent dangers, the avoidance of which depends much upon the reaction of the persons involved to the changing conditions they face. There appears to be, on the evidence, no process or procedure available which would produce for miners information certain as to the condition of a roof under which they work. … [92] It is evident that the opinions of the three experts in relation to this accident are responsive to the circumstances which developed, rather than critical of the process which was being undertaken prior to the accident. The opinions necessarily look at probabilities and, as Dr Moelle observed 'bolting operations under erosional Teralba conglomerate are evidently best conducted with bolting machinery that allows the operator to be under supported roof at any time' (my emphasis). This observation shows the response to the circumstances of the accident rather than an anticipation of what would have, or should have, happened in terms of work practices prior to the accident. [93] These aspects of the experts report go directly to the foreseeability of the accident and the question of whether there was any relevant, and identifiable, failure by the defendant/s. [94] … There is no evidence from which it can be gleaned that any person then present, not having available some expert opinion on the matter in the light of the accident, would have formed the view at the time that the undertaking was seriously dangerous. In other words, it cannot be concluded that an assessment of the roof at the time would have produced the view that Mr Carroll was at serious risk in undertaking the task he did. Where then is the employer's failure?" 76 The Full Bench reasoning, particularly in pars [107], [110] and [111], set out in pars [45] and [46] above, constitute an implicit rejection of his Honour's findings. Furthermore, the "fundamental misconception" which their Honours identified in par [37], as quoted at [67] above, constitutes an express rejection of his Honour's approach to this charge. The Full Bench expressly addressed each of the failures particularised in a manner which Peterson J did not do.

The s53 Defences Issue 77 The Claimant contends that the Full Bench failed properly to consider the s53 defences particularly in the light of the factual findings made by the trial judge. Some reference, unexplained, was also made to other matters "considered relevant" to the operation of s53(a). There was also an assertion that the Full Bench failed to consider factual matters relevant to s53(b). 78 For reasons that were not elaborated in submissions it was submitted that the Full Bench "misdirected itself as to those matters properly to be considered" when determining the defences. Alternatively, it was said that a failure to consider relevant factual matters was a jurisdictional error. 79 Nothing in the Claimant's submissions rises above the level of a proposition that it should have won on the facts. It was not submitted, nor could it be, that there was no evidence to support the conclusions of the Full Bench. Nor was it suggested that a failure to refer to some evidence constituted a failure to take into account relevant considerations. Nor could it have been. 80 Nothing capable of constituting a jurisdictional error or an error of law on the face of the record was identified. No basis for intervention by this Court was suggested, let alone established.

Conclusion 81 The summons should be dismissed with costs. 82 MASON P: I agree with Spigelman CJ. 83 HANDLEY JA: I agree with the Chief Justice. **********

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