Genner Constructions Pty Limited v Workcover Authority of New South Wales - [2001] NSWIRComm 267 - NSWIRComm 2001 case summary — Zoe

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Genner Constructions Pty Limited v Workcover Authority of New South Wales

[2001] NSWIRComm 267

Industrial Relations Commission (NSW)|2001-07-01|Before: Wright J, Walton J, Hungerford J, Fisher CJ, Cahill J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2001-07-01

Before

Wright J, Walton J, Hungerford J, Fisher CJ, Cahill J

Catchwords

10/25/2000 DATE OF JUDGMENT: 10/30/2001

Source

Original judgment source is linked above.

Catchwords

10/25/2000 DATE OF JUDGMENT: 10/30/2001

Judgment (89 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Genner Constructions Pty Limited v Workcover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267 APPELLANT: Genner Constructions Pty Limited PARTIES : RESPONDENT: WorkCover Authority of New South Wales (Inspector Corrie Guillarte) FILE NUMBER: IRC 3129 of 2000 CORAM: Wright J President; Walton J Vice-President; Hungerford J Occupational health and safety - Appeal against conviction and sentence - Worker killed when run down by truck on a roadworks site - Five charges instituted against appellant under s 15(1) of the Occupational Health and Safety Act 1983 - Appellant convicted of two charges of failing to adequately train and instruct workers - Penalty imposed - Appellant acquitted of charge of failing to provide safe system of work - Whether adequate training provided to worker - Whether "on the job" training sufficient - No formal or documented training - Instructions given to worker on the day before the accident - Worker departed from usual procedure - Whether instructions adequate - Nature of training and instruction required under Occupational Health and Safety Act considered - Held, training and instruction inadequate in the circumstances of the case - Reasonably practicable for appellant to take measures to ensure safety - Appeal dismissed - Penalty imposed. CATCHWORDS : Appeal - Nature of proceedings on appeal - Rehearing on evidence at first instance - Appellate court not bound by factual findings at first instance - Major issue for determination whether the appellant was guilty of charges for which it was convicted. Crimes Act 1900 s556A (repealed) Crimes (Sentencing Procedure) Act 1999 s10 LEGISLATION CITED : Criminal Appeal Act 1912 s5AA Industrial Relations Act 1996 s196 Occupational Health and Safety Act 1983 s15 s47 s53 Abalos v Australian Postal Commission (1990) 171 CLR 167 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority (2000) 99 IR 29 Collins v State Rail Authority (1986) 5 NSWLR 209 at 215 Crown in Right of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Drake Personnel Ltd v WorkCover Authority (1999) 90 IR 432 Fletcher Construction Australia Ltd v WorkCover Authority (1999) 91 IR 66 Inspector Davies v Prospect Electricity (unreported, Fisher CJ, Matter No. CT91/747, 9 November 1992) Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT 90/1214, 30 June 1992) Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority (2000) 102 IR 57 Lawrenson Diecasting Pty Ltd v WorkCover Authority (1990) 90 IR 464 Nesmat Pty Ltd v WorkCover Authority of NSW (1998) 87 IR 312 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Ridge Consolidated Pty Ltd v WorkCover Authority (2000) 100 IR 156 CASES CITED : State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 160 ALR 588 State Rail Authority v Dawson (1990) 37 IR 110 Swift Placements Pty Limited v WorkCover Authority (2000) 96 IR 69 at 70-71 Warman International Ltd v WorkCover Authority (1998) 80 IR 326 Warren v Coombes (1978) 142 CLR 531 Weissensteiner v The Queen (1993) 178 CLR 217 WorkCover Authority of NSW (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 WorkCover Authority v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 WorkCover Authority of NSW (Inspector Hannan) v Bitupave Ltd t/as Boral Asphalt (No 2) (2000) 101 IR 458 WorkCover Authority of NSW (Inspector Mauger) v Pioneer Road Services Pty Ltd (unreported, Cahill J (VP), IRC 97/1112, 3 September 1998) WorkCover Authority v Arbor Products International (Australia) Pty Ltd (2000) 105 IR 81 WorkCover Authority of NSW (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 WorkCover Authority of NSW (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 WorkCover Authority v Company B Ltd [2000] NSWIRComm 119 WorkCover Authority v Profab Industries Pty Ltd (No 2) (2000) 101 IR 92 HEARING DATES: 10/24/2000; 10/25/2000 DATE OF JUDGMENT: 10/30/2001

[19]

12 Her Honour further found that the system of work had been properly maintained by the appellant and found: 78 I am satisfied the defendant did continue to maintain the system of work for carrying out road work construction in the control of all vehicular movements from the worksite. From Mr Genner's visitation to the site the day before the accident and the delivery of signage to the worksite both the evening before and in the early morning on the day of the accident, there is before the court a clear indication that not only was there in place a safe system of work for the entrance and exit of vehicles but this system continued to be maintained to a rigorous standard. 13 As to the charge brought against the appellant in relation to the adequacy of supervision afforded to its employees at the time of the incident, her Honour also dismissed that charge. The court found: 80 I am persuaded that the defendant did provide the appropriate supervision for carrying out the road works construction. I am persuaded that had the work been properly conducted it would have been safe and without risk to health. The fact is Mr Genner went out with Mr Ingram the afternoon before the task to discuss the work procedures to be followed. Mr Genner not only attended at the work site with Mr Ingram but marked the site with Mr Ingram. Mr Genner also provided the proper equipment including road signage and witches hats. Such evidence persuades the Court that the appropriate supervision was conducted by Mr Genner. 14 The trial judge found the appellant guilty of two charges, namely, the charges relating to the training and instruction of Mr Ingram with regard to the control of vehicular movements on the worksite. It was found there was no formalised system of training in relation to Mr Ingram's capability to handle changes in the standard policy. Her Honour stated: 84 The entire environment of this work site reflects the court's concern that Mr Ingram was not properly trained in the procedures to be followed when there was an alteration of work procedures as to the access and exit of vehicles to the site. There is a foreseeable and obvious risk that windy conditions could affect road site works which involve the use of loose materials. There was no evidence before the Court that here was in place any proper training given to Mr Ingram once the established procedure was varied. 15 Her Honour also found that Mr Ingram, as an employee of the appellant, was not properly trained in how to deal with the problem of the usurping of control by Mr Holzigal, a sub-contractor. Despite Mr Holzigal's status as a sub-contractor, her Honour concluded that Mr Holzigal assumed control of the site. As a company which engaged sub-contractors, the appellant had a responsibility to ensure those sub-contractors were properly instructed in procedures to ensure employees' safety.

[21]

93 The evidence makes clear any training or instruction given to Mr Ingram was always verbal. Although I accept on the balance of the evidence that there was a safe system in place related to the vehicle entrance and exit from this worksite, I do not accept that the appropriate training and instruction on site safety related to vehicle access and exit has ever been provided by the defendant company to Mr Ingram or the appropriate instruction was ever given to other workers on the site. Such neglect of a basic responsibility of an employer to properly train and instruct on safe working was a significant contributing factor to this tragic accident which cost Mr Ingram, from all the evidence a fine, hard working man, his life. 18 The trial judge further found that the appellant had failed to prove under s53 of the Act that the accident occurred because it was impractical for the appellant to make provision for the appropriate training of its employees and the appropriate instruction of all workers on the site. Penalty 19 After referring to the relevant principles set out by the Full Bench in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Insp Ch'ng) (1990) 90 IR 464, her Honour determined that the nature and quality of the offences was not the most serious in character. In support of this conclusion she cited the system of work in place at the worksite, the supervision provided by the appellant and "on-the-job" training of workers. It was also observed: 5 … However, there is an absolute duty borne by this employer to ensure its worker on site was sufficiently trained and instructed to ensure he did not, with abandon, change and established system of work that, had it been followed, would have provided safe working. The circumstances reveal this as an offence where, with the appropriate training and instruction, the risk to injury could have been avoided. The circumstances reveal a sub-contractor imposed his will over an employee to bring about the risk to safety on this site. The line of authority on this worksite was not well determined and so should have been better determined so the defendant company's worker was properly trained and instructed as to procedures if circumstances required a change to the safe system in place. There was no defined policy if circumstances required an alteration to work procedures (in the case because of wind) and no defined line of authority on the worksite. Mr Ingram, the deceased, was therefore not instructed or properly trained as to the entrance and exit of vehicles on to this worksite.

[46]

32 Mr R J Grady, of counsel, who appeared for the appellant, submitted that her Honour erred in finding Mr Ingram was not properly trained. It was submitted the appellant had an established policy relating to vehicle movements that required vehicles enter and exit the worksite in the direction of traffic flow. Where an alternative was necessary, the procedure required speed reductions and traffic controllers to be utilised. The appellant submitted that the policy was demonstrated by the evidence of Mr Genner, which was unchallenged, and it was emphasised that the policy was "long-entrenched". 33 Mr Genner continually engaged in "on-the-job" training with Mr Ingram. The appellant submitted that Mr Ingram had been associated with the company for some 15 years and during that time Mr Genner had personally instructed him as to methods of directing traffic. The training imparted to Mr Ingram did not take the form of explicit daily instruction, but rather "simple but effective standard and alternative procedures for the entry and exit of heavy vehicles at its roadside worksites." The appellant contended that "on-the-job" training was the most effective form of training. Furthermore, the appellant submitted that Mr Ingram, being a man of limited education and "unskilled", received greater benefits from "on-the-job" training as opposed to "formalised lecture training, and the provision of books or documents." 34 The appellant submitted that Mr Ingram was a competent employee who was capable to carry out his duties. Specifically, it was put that throughout their working relationship Mr Genner had always had faith in Mr Ingram as a competent and capable employee. Mr Genner gave evidence he had observed Mr Ingram directing lorries onto and off worksites over many years and considered him to be a very good supervisor. This evidence was supported, it was submitted, by the evidence of other persons who had experience in the field of roadside construction and had worked with Mr Ingram.

[64]

55 When addressing these questions, the Full Bench is not bound by the factual findings made by the trial judge at first instance. It is for the Full Bench to consider the evidence afresh and come to its own view. It is, of course, appropriate for regard to be given to factual findings made by the trial judge, particularly where those findings are assisted by the direct observation of witnesses giving evidence or based on findings of credibility: see, for example, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, and cf State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 160 ALR 588 at 620. See also as to an appellate court's capacity to draw appropriate inferences from undisputed facts or those established by the findings of the trial judge, Warren v Coombes (1978) 142 CLR 531 at 551; Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59 and Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 43; and in a case where an appellate court is required to undertake a rehearing: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2000) 105 IR 81 at 93. 56 Following this approach, it is necessary to consider first whether, on the evidence, the appellant failed to provide such training at the worksite as was necessary to ensure the health and safety at work of its employees, more particularly the Mr Ingram. This charge was framed so as to refer to the failure of the appellant to provide training generally and during submissions the respondent appeared to refer to the failure of the appellant to provide training to both Mr Ingram and Mr Holzigal. However, we do not understand the charge to refer to an obligation upon the appellant to provide training to Mr Holzigal who was not an employee of the appellant. Whilst an employer may, in some circumstances, be obliged to ensure that all persons working at a particular site are adequately trained, in this case we are satisfied that the appellant's responsibility concerning Mr Holzigal is adequately dealt with by the charge relating to the alleged failure of the appellant to provide adequate instruction.

Genner Constructions Pty Limited v Workcover Authority of New South Wales

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Judgment (89 paragraphs)

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Legislation Cited (1)

Cases Cited (29)