Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales - [2002] NSWIRComm 364 - NSWIRComm 2002 case summary — Zoe

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Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales

[2002] NSWIRComm 364

Industrial Relations Commission (NSW)|2002-07-11|Before: Walton J, Kavanagh J, Staunton J, Boland J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-11

Before

Walton J, Kavanagh J, Staunton J, Boland J

Source

Original judgment source is linked above.

Judgment (67 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Steven Jones) [2002] NSWIRComm 364 APPELLANT: Fernandes Constructions Pty Limited PARTIES : RESPONDENT: WorkCover Authority of New South Wales (Inspector Steven Jones) FILE NUMBER: IRC2535 of 2002 CORAM: Walton J Vice-President; Kavanagh J; Staunton J CATCHWORDS : Appeal - severity of sentence following plea of guilty - prior conviction under Construction Safety Act 1912 not a conviction for the purposes of the Occupational Health and Safety Act 1983 - general exercise of sentencing discretion - two co-offenders - principle of parity - the nature and quality of the breach of duty - fundamental and basic safety measure - culpability of operators for safety of work site generally - economic duress - prior good character of the appellant - penalty set aside - costs order. Construction Safety Act 1912 Courts Legislation (Amendment) Act 2000 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s 43 Criminal Appeal Act 1912 s 5AA Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 1983 s 16 s 51A Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 R v Thomson, R v Houlton (200) 49 NSWLR 383 Ridge Consolidated Pty Ltd v WorkCover Authority of NSW (Inspector Mauger) (2002) 115 IR 78 CASES CITED : WorkCover Authority of NSW (Inspector Byer) v Cleary Brothers (Bombo) Pty Limited (2001) 110 IR 182 WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 WorkCover Authority (Inspector Glass) v Kellogg (Australia) Pty Limited (No 2) (1999) 101 IR 261 WorkCover Authority (Inspector Jones) v the State of New South Wales (Department of Public Works and Services) [2002] NSWIRComm 284 HEARING DATES: 11/07/2002 DATE OF JUDGMENT: 12/19/2002

[23]

17 At this point, it is necessary to recount relevant findings made by his Honour Boland J in the proceedings before him as set out in para [50] of his judgment: (1) The defendant [the appellant before us] was contracted by the Department of Public Works and Services to erect a concrete structure for the new Women and Children's Block at Nepean Hospital, Derby Street, Kingswood. The Department was responsible for the project management of building and construction work at the Nepean Hospital construction site and it was responsible for erecting perimeter scaffolding on the building as a measure to prevent persons and materials falling from the building. (2) The defendant subcontracted steel reinforcing placement work on the building to C&H Reinforcing (NSW) Pty Ltd. (3) Steven Melvaine was a steel fixer employed by C&H. (4) On 12 May 1998 Mr Melvaine fell from level 2 of the building to the ground, sustaining head injuries and abrasions. (5) The Construction Safety Regulations require fall protection measures to be erected on buildings of the type under construction at the Hospital site. The usual form of fall protection is perimeter scaffolding designed to prevent persons and materials falling from heights. (6) No perimeter scaffolding was in place when Mr Melvaine fell on 12 May 1998. The only measure of fall protection on level 2 where Melvaine fell was a 100 mm x 75 mm timber handrail 1.3 metres from the floor of level 2. The timber handrail was an inadequate measure against persons and materials falling from level 2 of the building under construction. (7) No perimeter scaffolding was in place on level 3 on 12 May 1998. (8) The defendant knew that construction work should not have been proceeding on levels 2 and 3 without appropriate fall protection in place. In this respect, given that columns would inevitably be placed near the edge of the concrete slab of each level, it was readily foreseeable that persons working on levels 2 and 3 might be working close to the edge of the slab. (9) The rational inference to be drawn from the evidence is that there was no prohibition against workers being on level 2 on 12 May 1998 and that Mr Melvaine was present on level 2 on 12 May 1998 for the purpose of performing work. I find that the prosecution has established this beyond reasonable doubt. (10) The defendant had failed to ensure that workers did not gain entry to level 2 and failed to erect warning signs prohibiting entry onto level 2 on 12 May 1998 in accordance with its own Safety Manual. Further, a ladder was in place enabling access to level 2 from level 3 on 12 May 1998. (11) Whilst it had responsibility for doing so, the Department of Public Works and Services failed to erect the perimeter scaffolding up to the time of the incident on 12 May 1998, despite repeated requests by the defendant that it do so. (12) Whilst the weather may have been a consideration in the Department's failure to erect the scaffolding, there was no convincing evidence that it could not have been erected, despite the weather. (13) The Department's desire to complete the work according to deadlines had the effect of placing the defendant under pressure and was a factor in the defendant's decision to continue with the construction work in the absence of perimeter scaffolding. The contract to erect the building on the Hospital site constituted about 30 per cent of the defendant's revenue and the defendant did not wish to jeopardise this or jeopardise the prospect of future contracts with the Department. (14) The erection of the timber handrail as a substitute for perimeter scaffolding was the Department's proposal, designed in my opinion, to stem the repeated requests of the defendant to erect the scaffolding.

[53]

48 This finding of his Honour only confirms earlier decisions of this Court as to the responsibility for common risk on building sites where numerous contractors are engaged in various capacities. On this point, we reiterate what was stated in WorkCover Authority of NSW (Inspector Byer) v Cleary Brothers (Bombo) Pty Limited (2001) 110 IR 182 at [65] and cited with approval in WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 at para [54]: However, where an operator continues to operate in circumstances that present an obvious and known risk to persons working at the site and which constitutes an offence under the Act, the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally, or related responsibilities as to a particular operation at that workplace. And again in WorkCover v Schrader at para [61]: The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99.

[57]

51 As to the issue of economic duress as argued by the appellant in these proceedings, we see no merit in the submission. We concur entirely with the view expressed by his Honour at first instance in paras [66] and [68] of his judgment: [66] … it was submitted, I should take into account in mitigation … the fact that the defendant made repeated requests to the body responsible for erecting the scaffolding, namely, the Department of Public Works and Services, but to no avail. However, the defendant could obviously have stopped the construction work until the fall protection had been put in place. Mr Austin submitted that this was an artificial course of action because the defendant was under considerable pressure from the Department to make progress on the job and was concerned that if it did not do so it would put at risk a significant source of revenue and jeopardise future contracts with the Department. [67] … [68] I do not accept there should be any mitigation of the defendant's sentence for reasons relating to a failure by the Department to meet the defendant's repeated requests to erect the scaffolding and because the defendant was under pressure from the Department to progress the work. It was clearly an option for the defendant to refuse to continue with the construction work in the absence of fall protection. Indeed, in my opinion, that is the option the defendant should have pursued. To mitigate the sentence because the Department wanted to press ahead with the construction program without adequate safety measures in place, and because the defendant felt obliged to do so essentially for financial reasons, would be to undermine the clear public policy underpinning s 16 of the Occupational Health and Safety Act that is, ensuring the safety of persons at work. 52 The prior good character of the appellant as an industrial citizen is the final point we turn to in relation to the appellant's submission before us. On that issue the prior good safety record of the appellant was considered by his Honour at para [75] of his judgment where he stated - … the defendant has a good safety record given the inherently dangerous nature of the industry in which it operates.