Mr Bilston noted that there were approximately 175 permanent operational employees employed at Port Botany and a shared pool of 233 permanent guarantee/supplementary employees who were available for allocation to work either at Port Botany or Darling Harbour terminals. He anticipated that, once the proposed 2004 certified agreement was in operation, there would be 216 permanent operational employees and 83 permanent guarantee/supplementary employees employed at Port Botany of which 297 would be qualified to operate a straddle carrier. Mr Bilston spoke of the safety, health and environment (SHE) policies of the defendant as he had reviewed them since October 1998. During this time there had been two occupational health and safety (OHS) policies dating from July 1997 and January 1999 and an environmental policy introduced in January 1999. Until early 2001, there was no comprehensive OHS framework in operation at a divisional level, with each business unit within the terminal essentially in charge of managing its own SHE issues. From approximately 1993 until 2002, annual audits of SHE management at the terminals were conducted by independent risk management and safety consultants. In mid-2000, there was also an informal review of SHE management systems across all business units of the divisions and, following that, it was decided that the terminal's division would establish an OHS management system. That move involved the adoption of a terminals OHS policy statement, a terminals OHS policy, a risk management process and an OHSMS document control procedure. The OHSMS was reviewed in mid-December 2001 when it was decided that a more tailored OHS programme needed to be developed to encourage behavioural change in relation of OHS issues. OHS issues, prior to 2002, were also raised and discussed with the occupational health and safety committee. If the defendant had safety issues, they were raised with the OHS committee - such as the trial of the seats in straddles at Port Botany. Between 1999 and early 2000, the OHS committee reviewed all existing safe operating procedures and the revised procedures were approved by the terminal manager. The revised procedures were first issued in March 2000.
22 In 2001-2002, a safety accountability programme (SAP) was introduced for the terminals and general stevedoring divisions of Patrick Corporation, including Port Botany. This programme was designed to involve all levels of the workforce in the assessment of risks and improvement of safety in the workplace, involving risk and hazard identification, risk assessment recommendations, recommendations for appropriate control measures, development of safe work instructions and continual assessment of activities and control measures. In 2004, three further objectives were added to the SAP at Port Botany - emergency and security arrangements, environmental management and safety related training. Once formal documentation of the process was authorised, the programmes were placed on a database and were accessible by all businesses within the terminals division. Employees involved in the SAP were trained in the process generally, but particularly in respect to their function within the process. This training was given to employees who were to be involved as part of risk assessment teams (RATs). The process for SAP/RATs involved managerial and non-managerial employees identifying and assessing hazards and risks and recommending controls. Management determined what controls were to be used. There was assessment by way of a quarterly audit and trained facilitators.
23 Between late 2000 and early 2003, three corporate policies relating to OHS were issued which applied to Port Botany's operations. In addition, there were 9 divisional OHS-related policies and procedures applying at the terminal in addition to the OHS policy and the return to work programme. In January 2003, a "dedicated return to work position" was created at Port Botany: the person employed to fill the position had a background in workers' compensation and rehabilitation administration. Responsibilities of the return to work co-ordinator included monitoring the first aid book, co-ordinating access to and treatment from a range of healthcare providers for employees, developing return to work plans for injured employees and identifying suitable roles or opportunities for injured employees to enable them to return to work on modified and suitable duties.
24 Since the introduction of the return to work co-ordinator, there had been a reduction in the number of lost time injuries at Port Botany both generally and in relation to straddle drivers. The return to work co-ordinator, with the assistance of others, monitored the first aid book to ensure employees' treatment and rehabilitation needs were identified and addressed appropriately, that all incident entries were covered by an incident report and, if necessary investigated, and that the alleged causes of injuries leading to entries were correctly identified. Where there were alleged strain injuries due to straddle driving, the co-ordinator will follow up entries in the first aid book to ensure that employees were performing their exercises, were aware of the physiotherapy, massage, nutrition and exercise services offered by the defendant.
25 Mr Bilston then spoke about the induction programme and the documents provided to new employees. The induction programme consisted of 16 modules, a number of which dealt directly with safety issues. One of the induction programmes provided information to help prevent back injuries and to relieve stress. More informal OHS instruction and training was delivered via toolbox talks which were informal 5-10 minute talks with employees raising OHS issues relevant to the work to be performed on that shift or by the team. Toolbox talks were usually conducted daily, but not as a rigid requirement. It was also emphasised by Mr Bilston that the current and proposed budgets for OHS-related matters was in excess of $1m for the terminal.
26 In May 2004, in addition to the OHS committee, a straddle driving consultative group was formed, consisting of management and employee representatives to address OHS issues associated with straddle carrier operations. The consultative group was formed in accordance with initial steps set out in the document "Safe Straddle Driving - 10-point Plan", and was considering the remaining points of that plan. The consultative group operated independently of the OHS committee, although there were established lines of communication between the two bodies and some dual membership. During May and June 2004, members of the consultative group conducted workforce briefings for straddle drivers at the terminal. Earlier, from late 2000 to early 2001, the national training manager (Mr Giesler) reviewed the contents and format of the driver training manual and developed a new training handbook. Since the charge period, the handbook had been updated to include a training unit specifically aimed at providing information in relation to seat and steering column adjustments to ensure personal comfort, as well as light stretching exercises relevant to straddle driving. A further review of the training material was undertaken in approximately 2003 and some adjustments made to that material. From July to September 2001, a series of straddle training and information centred sessions were delivered to straddle drivers at the terminal and the light exercise booklet reissued to drivers. Mr Bilston said that 204 straddle drivers attended at least one of those sessions. There was also straddle refresher training which had been provided since mid-2003 and generally delivered to groups of between 10 and 15 straddle drivers per session.
27 In relation to straddle seats, from early 2004 until April 2004, a further straddle seat audit and refurbishing programme was commenced by the defendant. Particulars of items to be reviewed during the audit were developed by the OHS committee. In the course of the audit, all straddle seats were inspected, as a result of which 7 seats had been replaced with new seats and others repaired as required. Samples of seats in both the fifth and sixth generation straddle carriers in operation at the terminal were installed in the training room between February and March 2004 to allow employees to be exposed to them and become familiar with their operation during training. In April 2004, all straddle drivers were required to attend straddle seat adjustment instruction. A trial of a new seat "pedestal" was currently being undertaken at Port Botany: the pedestal provided a new seat height adjustment mechanism and had a swivel feature and security straps to enhance security and allowed the seat to swivel 40 either way. That seat was installed in a straddle carrier in June 2004 and had generally been regarded by the drivers as an improvement. There were some comments that the height adjustment did not cater for all sizes of drivers. The trial had been initiated by the straddle consultative committee. Maintenance continued to be provided, although a new maintenance provider had been engaged since November 2003. The nature of maintenance services, however, remained essentially the same.
28 The 2001 certified agreement expired in September 2004, and a new agreement had been approved. Mr Bilston stated that under the new `agreement there were further opportunities for formal breaks from straddle driving so that in yard operations there were three breaks of 30 minutes each, with two of the breaks providing relief from all duties and the third being an "other duties break", where the drivers were expected to perform any other work than straddle driving. The shift start times were to be staggered to enable continuous operation and "work where required" employees were provided to supplement straddle carrying operations during the 30 minute break period. In relation to vessel operations, there was a single break of 45 minutes' duration for drivers and the operations would be non-continuous to allow the break to be taken by all drivers at the same time. Work where required employees would provide a 20 minute driving relief period for straddle drivers within the team and the maximum driving time without a break for the work where required employees was not to exceed two hours. During relief time, the straddle operators were to take up other duties as determined by the shift manager. Mr Bilston said that the effect of the proposed rostering arrangements for yard operations was such that the maximum continuous driving time for each straddle driver in a normal shift was less than two hours, with a total maximum driving time of 6-1/2 hours.
29 Apart from the incorporation of stretching exercises in the training of straddle drivers, the defendant used newsletters and notices to remind drivers of the need to carry out exercises. A personal trainer was engaged to attend the terminal five times a week to offer advice on nutrition and exercise to those employees who wished to avail themselves of that service. On average five drivers attended each session. The physiotherapy and massage service was provided for between four and nine days per month with between 28 and 49 consultations available. Employees also had access to five off-site services. The Stretch Now plan proposed to be introduced in 2003 did not go ahead because of Mr Caple's advice that mandatory stretching could result in creating or increasing stress levels in operators in creating a sense of frustration.
30 The defendant continued to look at automated and semi-automated straddle carrying after what was regarded as a successful trial at Fisherman Islands in Brisbane. In relation to pavement repair, the defendant had, in 2003, spent approximately $800,000 on pavement repair and replacement and for the first eight months of 2004 had spent a further sum of $1.687 million. The method of patching the pavement had become systematic and a "predictive pavement management repair system" was introduced about July 2004 encompassing routine and ongoing maintenance of the pavement surface. This was an initiative of the consultative group under the pavement management system process. Employees undertook weekly inspections of the pavement at the terminal and identified areas in need of repair. A major pavement refurbishment programme commenced in July 2004 and was to continue throughout the terminal over the following 24 months. The approximate cost of the first phase of this refurbishment programme was $6.5 million with a total cost to be approximately $41.7 million. In addition a new type of pavement was being introduced which was said to be more rigid than other forms and therefore less susceptible to rutting.
31 Mr Bilston commented on the statements of drivers submitted by the prosecutor. In relation to Mr Hargreaves' statement, two of the drivers who had been terminated had incurred injuries in and around the straddle other than repetitive strain injury. In relation to Mr Howlett, he had suffered an injury to an ankle when climbing down a straddle ladder and had taken some time off work: he had also taken time off because of an aggravation of a tennis elbow injury first reported in April 2003. At the end of August 2004, Mr Howlett was deemed fully fit and returned to work on 1 September 2004. Mr Watson had been involved in three return to work programmes from June 2004 to September 2004 and had since been assessed as fully fit to return to work.
32 Further detailed evidence dealing with the defendant's training regime was given by the National Training Manager, Mr Giesler. All the equipment training programmes, including those dealing with straddle driving, were being updated in accordance with national accreditation standards. All equipment training was competency based and was not dependent on a trainee completing a specified set number of hours of training: the generic format of each training programme was based on the operational time typically required for a trainee to achieve the competency skills associated with equipment operation. Training records were initially dealt with manually but an electronic data base had been developed between 2000 and mid-2002.
33 Mr Geisler had been involved in induction training of operational employees at Port Botany and Darling Harbour. In 1999 there were five modules of material, one specifically dealing with occupational health and related policies. Every person received a trainee manual, a copy of the current industrial instrument, which was the then 1998 enterprise agreement, a motor booklet and a safety code booklet produced by the Federal Advisory Committee on Waterfront Accident, Prevention and Occupational Health. The manual handling component of the induction course included material and information to help prevent back injuries and to relieve stress and also contained information on the effects of bad posture and "rules for stretching" for equipment operators. In 2001, in recognition of work changes brought about by the 2001 enterprise agreement, the induction training programme was reviewed and rewritten. Under the new agreement, supplementary or permanent guaranteed employees were required to work at different sites and perform a mixture of terminal or general stevedoring operations such as could lead to an employee being allocated work one day at Port Botany as a terminal operator but the next day being allocated to work at Darling Harbour, a general stevedoring operation.
34 The defendant now engaged all new employees as "supplementary employees" and a new three day training course was introduced with 16 specific modules. A number of those modules dealt with occupational health and safety, manual handling, accident prevention, safety and regulations, dangerous goods, site occupational health and safety policies and procedures and ship safety and cargo work. The manual handling component of the induction programme was also used as a stand alone training programme for refresher courses on manual handling issues when required. Part of the manual handling module involved a CD-DVD entitled "Lifting and Carrying" produced by Safety Care Australia Pty Ltd which contained a section providing information on back injuries and the role of the spine. After mid-2002 the induction programme also dealt with the safety and accountability programme (SAP). From mid-2004, a further review of the induction programme was commenced in anticipation of further operational changes flowing from the 2004 enterprise agreement. The final content and structure of that amended programme was yet to be finalised.
35 The training of straddle drivers did not require external or WorkCover authorised certificates and such training had been conducted internally by the defendant. Equipment training was generally delivered by operational employees who had nationally accredited qualifications as trainers. Since February 2003, equipment trainers in the terminals division were required to have the relevant experience as set out in the trainers, assessors and nominated qualified person duties/qualifications/experience procedure. In 1998, the straddle training programme consisted of three components: theory component, practical component and an assessment component. Theory component was designed to be delivered by a course leader and the practical component was to be delivered by workplace trainers. The training programme had initially been developed by a consultant. In late 2000 and early 2001, a condensed updated training handbook was being developed and that task was concluded in 2002. The handbook contained a copy of the light stretch exercise booklet developed for the defendant by Risk Management International. A copy of the booklet was also included in other equipment and handbooks such as the handbook for forklifts.
36 In 2003, all training programmes and systems were reviewed and modified. During the training programme, information was provided in relation to seat and steering column adjustments and stretch exercises including the purpose of those adjustments and stretches. The handbook referred to generic seat adjustments typically found in straddle trucks and suggested light exercises to be undertaken by an operator. Specific seat adjustment was dealt with in the training course using actual seats from various generations of straddle carriers. This occurred in February/March 2004. Mr Geisler said he was again in the process of reviewing all equipment training material including the straddle training material to ensure that the information was consistent with the way in which the equipment was used in practice. All the training material was now able to be accessed by computer.
37 Mr Eldred was the General Manager, Risk Management for Patrick Corporation and had responsibility across all of Patrick Corporation 's wholly owned businesses. Patrick Corporation employed over 4000 persons nationally through wholly owned companies and in recent years had grown "very significantly". The structure of Patrick's was explained and the defendant was described as a wholly owned subsidiary of Patrick Corporation and the employing entity of stevedoring employees working at the terminal and general stevedoring divisions. Mr Eldred was Patrick Corporation's most senior Safety Health and Environment (SHE) manager and there were designated risk/SHE managers in all Patrick Corporation divisions except for some smaller divisions. Most business units within divisions also employed SHE/Occupational Health and Safety Co-ordinators. Mr Synnott was the National SHE manager for the terminal divisions and Mr Moutevelis was the occupational health and safety co-coordinator at Port Botany Terminal while Ms Lewis was the Return to Work Co-ordinator at Port Botany. Mr Synnott reported directly to Mr Eldred and also had reporting responsibilities to the terminal's General Manger. The budgeted amount for SHE related expenditure, including salaries and wages of SHE employees training in SAP in the terminals division, for the year 2003-2004 was approximately $3.5 million. The amount budgeted for the 2004-2005 year was approximately $3.8 million.
38 Mr Eldred had responsibility for establishing a corporate SHE management system across the Patrick Corporation as the various businesses within Patrick had previously managed, to a large extent, autonomously, their own occupational health and safety system. The aim was to establish a system which defined the minimum requirements for SHE management systems, facilitating a consistent approach, providing an auditable criteria for SHE management and assisting each division and business unit to improve SHE performance. The general managers of each division and business unit managers were responsible for SHE compliance and performance. The introduction of the SHE framework required divisions and business units to review existing SHE management practices and where necessary upgrade, enhance or modify the management's system to align with the key elements of the SHE framework. New business acquired by Patrick's Corporation were required to have their existing occupational health and safety systems aligned with practices and requirements of the SHE framework. Each business was required to review their safety performance on a monthly and annual basis and a statistics reporting process had been used since late 2002 to assist in monitoring safety performance. Since March 2003, consideration of a division or business unit SHE's performance had been incorporated in the performance appraisals of the general managers and managers. Safety performance was measured by the lost time injury frequency rate being an internationally accepted measure of risk.
39 In April 2004, Patrick Corporation introduced an interactive computer based training package for senior, corporate and divisional managers dealing with corporate governance including occupational health and safety. Approximately 150 managers successfully completed this training by the end of July 2004 and a further 100 lower level divisional managers were scheduled to complete the training by the end of October 2004. The training package was undergoing further development and was to be available by the end of the first quarter of 2005. From October 2004 each business unit manager would be required to submit an SAP annual status report verifying the status of SHE compliance. Each business was also required to develop a SHE plan that identified safety performance targets with an emphasis on achieving continuous improvement in safety performance.
40 Mr Eldred also dealt with the development, through specialist risk management consultants, from May 2002, of the safety accountability programme (SAP) and the use of risk assessment teams (RATs). He stated that it was intended that every 12 months risk assessments conducted under SAP would be reviewed to determine whether identified controls and corrective action had been implemented while quarterly reviews were conducted to ensure that the process was being followed and each business unit was rated accordingly. Timeframes for correction action sometimes had to be adjusted because of the nature of the task.
41 In August 2003, members of the MUA had approached management about ongoing safety concerns associated with straddle carrier operation at the terminal. This ultimately led to the formation of a consultative committee consisting of representatives of Patrick Corporation and Port Botany management as well as terminal employees and the MUA. Ultimately, a straddle driving review group was established and a former senior deputy president of the Australian Industrial Relations Commission was requested to act as a mediator for the group. Mr Eldred dealt with numerous meetings which preceded the development of the "safe straddle driving-ten point plan". The purpose of the ten-point plan was to ensure that safety issues arising from straddle carrier operations were identified and addressed in a comprehensive transparent and integrated manner. Each of the ten items in the 10 point plan was described as being "essentially a sub-project".
THE SUBMISSIONS
42 Both parties filed detailed written submissions on the issue of an appropriate penalty. Each submission was supported by considerable evidence and thus continued the approach of the parties in these extraordinarily hard fought proceedings.
43 The prosecutor's submissions commenced with an "overview", setting out what was submitted to be the correct approach to this sentencing exercise and drawing attention to the provisions of the Crimes (Sentencing Procedure) Act 1999. It was pointed out how the defendant had in its possession information which indicated the existence of the risk of repetitive strain injury prior to the charge period which commenced in October/December 1998. Apparently successful injury management plans were implemented for individuals, without any consideration of the entire workforce. Some of the defendant's early responses by way of memoranda and instructions occurring in 1999 were, nevertheless, some 12 to 18 months after the need for instruction arose. The defendant's response to the growing evidence of repetitive strain injury was slow, lacked commitment and was at best piecemeal. The remedial steps ultimately taken by the defendant in fact demonstrated the simple steps that could have been taken much earlier to address the recognised and demonstrated risk.
44 In relation to the two information, instruction and training charges to which pleas of guilty had been entered, the prosecutor submitted that these charges had been brought by specific reference to s 15(2)(c), namely, that an employer contravened the section by failing to provide such information, instruction training as was may be necessary to ensure the health and safety at work of the employer's employees. Thus, the thrust of these charges was that desirable layers of safety together with secondary measures were required to protect employees in relation to the extent of the danger.
45 The prosecutor raised the prospect that s 51A of the Act could come into operation either because of the two earlier pleas which would lead to the remaining three matters being approached on the basis that the maximum fine in each case was $825,000. In the alternative if a separate fine was imposed in each separate matter then following the pronouncement of the first sentence each following matter would be a subsequent conviction and again s 51A would apply and the maximum penalty for the remaining four matters would be $825,000 in each case. If this approach was taken the principle of totality would apply.
46 It was next submitted on behalf of the prosecutor that these offences were of the worst type of case falling within s 15(1) of the Act and therefore deserving of the maximum penalty. It was said that there were particular features of very great "heinousness" with no real mitigating facts reducing the seriousness of the offence. In the alternative it was submitted that the offences should be assessed at the higher end of the range. In assessing the seriousness of the offence a number of matters were said to be relevant. As to the facts constituting the offences it was relevant they were committed over a period of time in which the danger was unchecked by the defendant whereas there was no similar difficulty under the previous system of work and that the offences were objectively foreseeable and actually foreseen by the defendant. Relevant facts concerning the consequences of the offence were the potential and actual injuries to victims over the two year period of the system of work charge and extended beyond the charge period, the fact that the offences were committed with "callous indifference" to the health and safety of employees and that there was a breach of trust by the defendant as an employer. The reasons for the commission of the offences was also relevant and included the defendant's pursuit of its goal of achieving world class productivity, the fact that the defendant proffered no excuse or explanation for its delays in acting; and the claim of ignorance by the defendant's management of the injuries amounted to a serious aggravation of the offences.
47 The prosecutor submitted that the evidence proved "premeditation and planning" by the defendant to depart from what it considered was the previous safe system of work before the 1998 enterprise agreement became operative increasing driving time and reducing opportunities for job rotation. There were three reports in the hands of the defendant prior to the charge period dating from September 1995 through to January and September 1998 identifying the risks of adopting extreme postures and repetitive movements while driving. The defendant was fully aware of the risks but was prepared to take those risks in order to achieve productivity gains. Further during the charge period five reports were received by the defendant and its own records showed injuries being suffered and medical treatment administered. Towards the end of the charge period and afterwards the defendant adopted a number of methods to address the risk: in August 2000 physiotherapy services were introduced for the drivers and in November 2000 a booklet was issued containing an exercise and stretch programme. Since July 2001 the defendant encouraged drivers to undertake stretch exercises and move around the cabin when there was a short break during the shift. The September 2001 enterprise agreement introduced a straddle relief driver for both yard and ship operations effectively giving straddle drivers in the yard a 20 minute break. The Court had found that there was nothing in the evidence however that demonstrated that the defendant structured, imposed or enforced a system of small breaks in order to ensure that the drivers did not succumb to repetitive strain injury nor did the defendant require the breaks be used for exercise, change in posture or in any other way designed to relieve muscle stress. In the circumstances these were serious offences because appropriate measures were not taken even though such measures were available and feasible: the availability of simple and straightforward steps to remedy the defects in the system indicated the seriousness of the offence.
48 It was said to be significant that the Court made findings that individually named employees had actually suffered injury during the charge period as a result of driving straddle cranes. Mr Hargreaves as at August 2001 had been assessed as suffering approximately a 15 per cent overall permanent impairment of the neck being four-fifths due to the nature and conditions of straddle work and 5 per cent overall impairment loss of efficient use of the right arm at or above the elbow as a result of the nature of his work in general. In July 2004 Mr Hargreaves had been assessed with permanent personal impairment of the neck at 7 per cent including a 2 per cent impairment for impaired activities of daily living. That disability was said to occur as a result of the nature and conditions of straddle work between early 1999 and December 2002. There was evidence that the nature of the injuries continued after the charge period. Besides the named drivers who gave evidence the records showed that some 18 straddle drivers had suffered a form of injury while performing this work and at least one driver was unable to return to pre-injury duties as a straddle driver and terminated his employment.
49 The callous indifference of the defendant to the health and safety of its employees was said to be demonstrated by the evidence that it did not release to the employees medical reports it had obtained as a result of a 1999 request for the medical examination of straddle drivers. In 2001, the defendant had failed to provide the medical reports to any of the four employees involved nor had the reports been supplied to the Occupational Health and Safety Committee at Port Botany. The defendant had informed the employees that the requirement that they be examined by a doctor nominated by the company was part the defendant's ongoing commitment to safe management at Port Botany and was part of its risk management programme for the operation of straddle carriers. Other examples cited were the failure to respond to employees' requests for alternative work or a rotation based on medical advice, particularly in relation to Mr Hargreaves. The defendant, through Mr Bilston, also gave evidence that there was a time when the policy of providing no light work was enforced and the drivers were told to stay off work until they were fully fit.
50 In this case there was a need for a significant element of the penalty to reflect general and specific deterrence. The defendant was a significant employer that was in possession of information alerting it to the risk of repetitive strain injury yet that material was ignored. The penalty imposed should deter this type of approach from other employers. In relation to specific deterrence the steps, somewhat reluctantly and definitely belatedly taken by the defendant to address the risks, did little to assist the defendant in the area of specific deterrence. In relation to the two pleas of guilty the lateness of those pleas coming at the end of the prosecution case could properly attract no discount.
51 The material filed on behalf of the defendant did not demonstrate in any real sense or at all acceptance by the defendant of its responsibilities in relation to occupational health and safety as highlighted by these charges. It was submitted that there was a serious question as to whether the defendant had shown remorse or contrition and was able to have that element taken into account as a mitigating factor.