Ins John Mulder v Primary Contracting Services Pty Ltd. Prosecution pursuant to 8(1) of the OH&S Act 2000

Inspector Mulder v Rorato Nominees Pty Ltd and Inspector Jones v Sergio Rorato [2008] NSWIRComm 13 CASES CITED: Inspector Page v Growth Equities Services Pty Ltd [1994] NSWIRComm 95 McMillan Britton & Kell v WorkCover Authority (1999) 89 IR 464

PROSECUTOR: Mr R Reitano of counsel SOLICITORS: WorkCover Authority Legal Group LEGAL REPRESENTATIVES:

DEFENDANTS: Mr D O'Neil of counsel SOLICITORS: DLA Phillips Fox

INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 6 February 2008

Matter No IRC 242 of 2007 Inspector John Mulder v Primary Contracting Services Pty Ltd. Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 (and in the alternative pursuant to s 10(1) of the Occupational Health and Safety Act 2000) Matter No 472 of 2007 Inspector Stephen Jones v Narelle Pamela Davies Prosecution under s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 (and in the alternative pursuant to s 10(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000

BACKGROUND 1 In December 2002, Mr Mahesh Prajapati arrived in Australia on a temporary working visa. In March 2003, he commenced work as a factory hand in a tomato processing plant owned and operated by Rorato Nominees Pty Ltd ("Rorato"). That plant was located in Jerilderie. 2 In June 2004, Mr Prajapati began work as a contractor being placed at the Rorato plant by Primary Contracting Services Pty Ltd ("PCS"), trading as Australian Contracting Solutions. In this work he was paid by PCS along with some 35 other workers who were similarly engaged. 3 On 24 April 2005, Mr Prajapati was assisting in the loading dock of the Rorato premises and in particular was assisting with a load on the back of a truck. Mr John Ventrella, a person engaged in the same manner as Mr Prajapati, was operating a forklift in the loading dock area of the premises and was unloading bins of tomatoes from a truck parked in the loading dock. The bins were being placed on the ground in a line approximately three metres from the truck. Mr Prajapati was standing in the loading dock with his back to the forklift and was hit by the forklift which was carrying two bins of tomatoes. It appears that Mr Prajapati had walked in between the bins being stacked on the ground and the place where Mr Ventrella was moving his current load of tomatoes. 4 In this accident, Mr Prajapati sustained severe injuries including bilateral broken ankles, a crushed fracture of his left arm, a crushed forefinger, fractures to the bones of his left hand, severe lacerations to his arms, lower legs and torso. He was treated at the Goulburn Valley Hospital and was not discharged until 8 June 2005. At the time of prosecution proceedings being commenced in February 2007, he was unfit for his pre-injury employment and that position remained unaltered at the time of the hearing. 5 This workplace accident was investigated by the WorkCover Authority and in 2007 proceedings were commenced against PCS and, later, against a director, Ms Narelle Pamela Davies. Proceedings were also commenced against Rorato and a director of that company. In September 2007, PCS and Ms Davies entered pleas of guilty, with PCS accepting that it had breached s 10(1) of the Act and Ms David accepting that, as a director and by operation of s 26(1) of the Act, she had also breached s 10(1) of the Act. In entering those pleas of guilty, both defendants indicated that the particulars of the charge would be contested. Both defendants had been charged with breaches of s 8(1) of the Act and in the alternative, had been charged with a breach of s 10(1) of the Act. In each case, the prosecutor accepted the plea in relation to the s 10(1) charge and indicated that it would not proceed with the alleged breach of s 8(1) of the Act. 6 This judgment deals with the evidence and submissions on sentence and should be read in conjunction with the judgment in Inspector Mulder v Rortato Nominees Pty Ltd and Inspector Jones v Sergio Rorato [2008] NSWIRComm 13. The particulars of the charge to which PCS entered its plea of guilty (although contesting aspects of the particulars) were as follows: That PCS having had control in the course of its trade, business or other undertaking of the Rorato premises at Jerilderie, being premises used by people not in the defendants' employment as a place of work failed to ensure that the premises were safe and without risk to health contrary to s 10 (1) of the Act in that: (a) the defendant at all material times had control or alternatively, only limited control over premises operated by Rorato Nominees Pty Ltd at Cape Road, Jerilderie in the State of New South Wales (the premises); (b) the defendant at all material times exerted its control over the premises by reason of its contract with Rorato Nominees Pty Ltd, its power to induct and train workers to work at the premises and its ability to recommend Rorato Nominees Pty Ltd and/or insist that Rorato Nominees Pty Ltd implement changes that should be made to the premises; (c) the defendant failed to adequately restrict access to the loading/unloading area at the premises so as to ensure that people who were not exposed to the risk of being struck by moving forklift trucks whilst they were at the premises; (d) the defendant failed to ensure that there were adequate control measures, including but not limited to adequate signage and training, in place at the premises so as to eliminate the risk at the premises of moving forklifts.

The particulars in relation to Ms Davies, apart from asserting that at all material times she was the sole director of the corporation, were, in all relevant respects, identical. These particulars were contained in an Amended Application for Order filed in Court by leave on the day of the sentencing hearing. 7 The evidence for the prosecutor was constituted by: an Agreed Statement of Facts; a number of photographs of the work area used by the forklift; a PCS investigation report of the accident; a factual report prepared by an Inspector; a copy of the hiring agreement between the defendant company and Rorato; and, a certificate of prior convictions. It was common ground that, despite PCS having been fined for a breach of the Occupational Health and Safety Regulations in the Local Court, the fine related to an event after Mr Prajapati's accident and therefore PCS was to be dealt with as a first offender facing a maximum penalty of $550,000. Ms Davies had no relevant prior record and in her case faced a maximum penalty of $55,000. The Agreed Statement of Facts appears as an annexure to this judgment. 8 In light of the disagreement about particulars and some areas of the facts, the prosecutor also called some oral evidence. Mr Prajapati gave evidence with the assistance of an interpreter. He was not currently employed but was undergoing continuing treatment for his injuries, including physiotherapy. In relation to working at the Rorato tomato factory, he said he was working for PCS and that involved work in the factory, driving a forklift, labouring and packaging. He said he received no training at the factory and no training in safety: there was no training in safety for factory work. He was shown a Rorato Training and Induction Programme document bearing his signature and dated 11 January 2005 where he acknowledged that he had received, read and understood the Contract Person Induction Handbook and had received the Rorato Occupational Health and Safety Issues handbook. The document acknowledged that he understood that he was required to become familiar with and follow the guidelines and instructions contained in the handbook and he acknowledged that if there was any aspect of the information covered in the handbook or induction training that he did not understand he would seek clarification from his supervisor. Mr Prajapati accepted that he signed the document but said he had signed many such documents. He said he had not received the Induction Booklet and that Mr Parsons (from PCS) had not given him any training nor had Mr Parsons provided him with a handbook. After the accident, Mr Parsons did visit him and had some papers for him to sign relating to an Immigration matter. There were three visits by Mr Parsons while Mr Prajapati was in hospital and at home after the accident. No one from PCS had contacted him after the accident to offer him work. 9 In cross-examination, when asked if he was able to work, Mr Prajapati questioned what he could do with his hand. There appeared to be a total loss of use of his left forearm and hand as a result of the accident. He said he was prepared to do any work that could be done with one hand. He was not working at present and was still under treatment. He was shown a document dated 22 February 2004 suggesting that the Rorato Safety and Hygiene Handbook and the Farm/Factory Induction and Training Manual had been read to him by Ms Rita Patel. Mr Prajapati stated that while he signed that document, it was incorrect. The document was signed on one day and many people signed it but he was working on the night shift and everyone had hurriedly signed it. When he signed it there was nothing in the third column that identified whether the safety handbooks had been read and which had identified that both the Safety and Hygiene Handbook and the Farm/Factory Induction and Training Manual had been read to him by Ms Patel. He denied that Ms Patel had read the handbooks to him as she worked on the day shift. Mr Prajapati spoke Hindi as did Ms Patel and Mr Prasad but they had not helped him with the induction booklet. He denied that when he started at the Rorato factory in 2005 he was taken through the training manual. 10 In 2003, Mr Prajapati accepted that he was employed by Rorato but said he had no idea for whom he was working after he finished with Rorato. He said he was driving forklifts for Rorato when they employed him but he had received no training in driving the forklift. During the 2002, 2003 and 2004 seasons, he had driven the forklift in the factory all the time and out of season had driven it everyday. He was only working the night shift in 2003 - 2004 but in 2005 was working only the day shift. He did not really know how the forklift operated but was asked to do it on the night shift and so he had to do that work. 11 Mr Patrick Parsons was employed by PCS as a Human Resources Consultant. In early 2005 he said that contractors working at the Rorato site were to report safety issues or hazards to him and he would send them to the PCS Safety Manager or the contractors would tell their Rorato supervisor who would then inform him and then he would tell the PCS safety officer. 12 Mr Parsons said that he had not given any training to Mr Prajapati and he had no expertise to do so. He said he was present when Mr Prajapati was being trained and that PCS placed between 10 and 35 people at Rorato. There were other employees working at that site ranging in number from 3 to 5. Mr Prajapati's training was in the factory when he was told how to do the job but Mr Parsons saw no other training. He did not see induction training being given to Mr Prajapati and was not present when induction training was given to him. 13 In cross-examination, Mr Parsons said it was his duty to recruit contractors for Rorato and sign them up and to give them the induction training manuals. He said that Mr Prajapati and other contractors were on-site and the work manuals were read to those who had problems with English including those like Mr Prajapati who spoke Hindi. The reading of the manuals was performed by Ms Patel and Mr Prasad. The contractors had to sign off and answer a true/false type questionnaire as part of the process. Each person had to be inducted and two persons were used to induct the contractors to make sure they knew the contents of the document. After the contractors were placed he would visit the site at least twice a week and sometimes three times a week to see if they had problems or issues and to check on their progress or whether the factory needed more assistance during the processing season. The accident involving Mr Prajapati had occurred at the end of the processing season. 14 If safety issues arose, Mr Parsons said that the contractors would speak to the supervisor on site or speak to him. Rorato appointed the supervisors. In relation to the induction carried out by Ms Patel and Mr Prasad, Mr Parsons said he was present at all such inductions and was in fact present when Mr Prajapati was inducted. The Rorato document acknowledging the information in the Occupational Health and Safety Issues Handbook and the Contract Person Induction Handbook were read and signed on the day that the contractors signed their contract - this all happened on the same day. He would explain to contractors that the manuals would be read to them in their language and that would be undertaken by Ms Patel and Mr Prasad in relation to both booklets. 15 In cross-examination by counsel for the prosecutor (allowed by leave), Mr Parsons said that in giving his evidence and in particular his evidence in-chief, he meant that he was never present while physical training was being given to the contractors but only when the documents were being read. He did not regard what was being read in the induction as training and stated that he was telling the truth and was not altering his evidence. 16 Mr Prajapati was re-called and had put before him an up-dated version of the Farm/Factory Induction and Training Manual for Permanent and Casual contractors. After looking at that document, Mr Prajapati said that he had only seen one page of that document before but had not seen the whole of the document or a document like it and it had not been read to him. Ms Patel and Mr Prasad had not sat down with him and talked for a long time about what he had to do at the Rorato site. On the day that he signed the form acknowledging the induction, Ms Patel and Mr Prasad did not read anything to him but only pointed out the space where he was to sign. He denied that on the day he signed the document but before he signed it, Ms Patel had read to him from a booklet. 17 The evidence for the defendants comprised of the following: a Rorato Training and Induction Programme Acknowledgement document signed by Mr Prajapati and dated 11 January 2005; a Practical Training document indicating forklift training being provided by "Sam" on 11 January 2005; a Rorato document containing Mr Prajapati's name and signature dated 22 February 2004 and indicating in a column "Read safety handbook" that the Safety and Hygiene Handbook and the Farm/Factory Induction and Training Manual had been read by Ms Patel; and a handwritten letter signed by Mr Prajapati and dated 19 May 2006. An affidavit of Ms Tracey Morris, the General Manager of PCS, attaching a number of documents was formally read and Ms Morris was cross-examined. 18 Ms Morris, who had previously been the group finance manager of PCS, said that the company had commenced trading in 2002. The business of the company was described as sourcing and supplying independent contractors with various skills who were sent to a number of worksites within rural New South Wales. It was said that PCS implemented the "Odco system" of supplying independent contractors to worksites. In particular, PCS had supplied independent contractors to the worksite owned and operated by Rorato. At the time of the accident, PCS had approximately 40 "clients" to which it supplied contract personnel. The company had approximately 800 contract personnel on its books at that time and at the time of the hearing had approximately 400 contract personnel on its books. In relation to Rorato, at the time of the accident there were other persons working at the site who were not supplied by PCS and PCS did not exclusively engage all the workers at that work site. 19 From information available to Ms Morris, Mr Prajapati had initially been employed by Rorato on a casual basis and in the following season he worked for Rorato through a contract agency. In the season after that he began working for Rorato having been placed there by PCS. 20 PCS had agreed to provide an induction programme to contract personnel under the hiring agreement with Rorato. The PCS induction was provided prior to the contractors' placement and Rorato supplemented the induction by conducting on the job training. After the accident and since December 2005, PCS had provided written Hindi translations of the contractual documentation provided to contractors wishing to be placed at the Rorato site. At all times, PCS had two Hindi speaking workers (Mr Sam Prasad and Ms Rita Patel) present during the induction programme to provide a translation service for those working on placement at Rorato. 21 The season at Rorato was approximately four month long, running between January and April each year. The occupational health and safety manger for PCS, Ms Naomi Symonds, conducted a risk assessment of the Rorato site in early January 2005 and she was accompanied by Ms Robinson from Rorato management during that risk assessment. Ms Symonds identified the risk of a worker being struck by a forklift in the loading/unloading area as a hazard during this assessment and "determined" that the existing control measures were sufficient to address the risk and so PCS did not make any recommendations to Rorato for further control measures. The control measures then in operation were: the presence of signs, "Forklifts in use" and "Caution Loading and Unloading"; the set out of the area was such that workers were not compelled to walk through it - there were no amenities in or around the area and no work processes took place in the area apart from loading and unloading of vehicles; the forklifts travelled at low speed because of the short distance required to travel to unload; direct access to the area via the back door to the shed was prevented by the door being closed at all times; and, it was a requirement that high visibility vests be worn in areas of forklift operation. 22 Following the issuing of an Improvement Notice after the accident, a further risk assessment was conducted in late September 2005. That assessment identified the hazard in the forklift operating area as a possibility of a worker being struck by a forklift and that the probability was "likely " with a consequence being "critical" and the risk "high". Apart from the existing controls, the controls identified included using plastic chain to ensure pedestrians in the shed did not obtain access to the area, the use of free standing signs with a person in a circle crossed through the middle so that those who were illiterate or from non-speaking English background could readily understand the danger, and, there was also a reference to implementing a policy of instant dismissal for breaches of safety. 23 Further control measures were recommended by PCS in relation to this risk. Ms Symonds had confirmed that 5 kms speed signs had been placed in the area by Rorato but that company did not accept a proposal for introducing a pedestrian crossing as a control measure but instead proposed a clearly marked pedestrian walkway to be created around the shed at the back of the loading/unloading area as Rorato did not want any unauthorised person walking through that loading/unloading area. 24 A Human Resources consultant, Mr Patrick Parsons, had been engaged by PCS in relation to the supply of contractors to Rorato. Mr Parsons regularly visited the site and liaised with Rorato in managing contrctor work performance. When contractors, on occasions, mentioned safety issues to Mr Parsons, this led to the PCS occupational health and safety manager making recommendations to Rorato for consideration and action. 25 After the accident, Ms Symonds conducted an investigation of the matter and made recommendations to Rorato to take certain actions and followed those matters up to confirm that Rorato had adopted the recommendations from her investigation as well as implementing measures under the Improvement Notice. One action taken was to assist Rorato to review its training manual in certain respects. In relation to forklift safe work procedures, the manual was amended to contain a direction that people and workers were to keep clear while the forklift was operating and that workers were not to go into restricted areas but were to walk in the walkways provided. Further, the forklift was to operate within its designated area, separate from pedestrians. A plan of each work area was attached to the manual and in relation to the forklift area, pedestrian zones were set out in a colour coded diagram. 26 Ms Morris offered the view that PCS could and did make recommendations to Rorato from time to time regarding safety issues but that it could not compel Rorato to take any specific steps. The only matter over which PCS had control was the induction training at the site. In evidence was the hiring agreement between PCS and Rorato which listed as a condition of hire that, "A safe workplace must be provided". A separate document under the heading "Australian Contracting Solutions" was headed, "Proving a safe working environment". That document stated that all contractors working through PCS were covered by WorkCover in the event of an injury occurring on site. It was the responsibility of PCS "not" to send contractors working through the agency into unsafe work places and under the Occupational Health and Safety Act it could be found liable for the safety of contractors while in any workplace. It noted that PCS did not have control of the workplace and that the owner or occupier had the responsibility to ensure that the workplace was safe for all workers regardless of whether they were employees or contractors. Ensuring safe working environments for all workers required identification, assessment and the management of risks relating to the physical and non-physical aspects of the work. After dealing with some compensation matters, the document stated that the degree of negligence and therefore liability for injury was predominantly determined by the facts available, particularly where the end user could have known if the contractor may be exposed to injury and what remedial action was undertaken. It was noted that in many circumstances more than one person could be liable for breaches of occupational health and safety laws and PCS strongly emphasised the importance of maintaining a safe working environment. Managers and supervisors should be advised of their responsibilities and the possibilities for being held liable for any injury in their workplaces. PCS required its client to acknowledge that notification by completing and signing the bottom of the form and Rorato had done so in June 2004. Rorato's acknowledgement stated that, in accordance with requirements under the Occupational Health and Safety Act, it agreed to provide and maintain, so far as practicable, for all workers, a working environment that was safe and without risk to health. Rorato agreed that it would properly induct all contractors working in its workplace and agreed that it would advise should any major changes in job description be required of the contractors in order to ensure that they were properly briefed on the changes. 27 Ms Morris spoke of the management of PCS being saddened by Mr Prajapati's injury and with the company's approval and support, Mr Parsons visited Mr Prajapati three or four times while he was in hospital to check on his welfare and to ascertain whether there was anything that could be done by the company to assist him. After his discharge from hospital, Mr Parsons visited Mr Prajapati at his home on a number of occasions to check on his welfare. It was stated that the company would gladly place Mr Prajapati at a worksite in the future should he wish to be involved with the company and should an appropriate worksite be available for his skill set. 28 In cross-examination, Ms Morris said that the induction and training programme was a Rorato site requirement and at the time of the contractors signing up, Mr Parsons would go through that programme with the contractors and then Rorato would take the contractors on site and do the site training. From the day the contractors were signed up with PCS, the contractors would be taken through the Rorato Training and Induction manual and then handed over to Rorato. Ms Morris had not undertaken any induction programmes and her knowledge of that programme was obtained from others. Ms Symonds was the occupational health and safety manager and her duties involved performing site risk assessments before contractors were placed on site. This was undertaken and reviewed on an annual basis. Risk assessments would be conducted before the season commenced and that might be followed up if she thought there was a need to do so. If a serious risk was found at the site it was Ms Symonds' role to bring it to the client's attention. The defendant would not send any contractor to a worksite they knew to be unsafe and it was a contractual obligation of Rorato to provide a safe workplace. Ms Morris understood that it was the defendant's role to inspect the premises before the contracting season and also during the contract. It was open to contractors to raise safety concerns with Mr Parsons but PCS could only make recommendations to Rorato about safety and Rorato would have to make the decision as to what to do in relation to that recommendation. Although Rorato was under a contractual obligation to provide a safe workplace, PCS could not compel Rorato to take any particular safety steps. Ms Morris accepted that if there were unattended safety concerns at a site, PCS could withhold their contractors and in that sense PCS could compel Rorato to make changes as long as they required PCS to provide contractors to them. Nevertheless, Ms Morris remained of the view that PCS could not control Rorato. Ms Morris expected the terms of the contract to be honoured and if there were unsafe practices, the PCS occupational health and safety manager would bring them to the client's attention and PCS would hope that the client would act on the recommendations of PCS to address any risk to safety. DELIBERATION 29 In light of the guilty plea and the defendants' rejection of the particulars, it became necessary to clarify what particulars the defendants accepted. The Agreed Statement of Facts accepted the status of both defendants, the engagement of Mr Prajapati to work at the Rorato site and the contractual arrangements between PCS and Rorato. Ms Davies' position as the sole director of the defendant PCS was also accepted. Counsel for the defendants indicated that the following particulars were accepted: · the defendant corporation at all material times had only limited control over premises operated by Rorato Nominees Pty Ltd at Cape Road Jerilderie in the State of New South Wales · the defendant corporation at all material times exerted its control over the premises by reason of its contract with Rorato Nominees Pty Ltd, and its power to conduct induction training of workers to work at the premises; · the defendant corporation failed to ensure that there was adequate induction training in place at the premises so as to eliminate risk of moving forklifts at the premises; · as a result of the defendant corporation's failures Mahesh Prajapati was placed at risk of injury. 30 The particulars conceded by the defendants indicated that the degree of control able to be exercised by PCS was at the heart of the debate over particulars. Simply put, the defendants submitted that, while they had a contract that required Rorato to provide a safe workplace, their control over that workplace was limited to the induction training they provided before handing contractors over to Rorato for on-the-job training. In those circumstances, while they had access to the premises and conducted risk assessments they were in no position to do more than make recommendations and suggestions to Rorato but could not compel Rorato to adopt their recommendations. The prosecutor's case was that the degree of control exercised by PCS was substantial, especially because of its contractual relationship requiring Rorata to provide a safe workplace and also because of the ability of representatives of PCS to visit the site, speak to the contractors, receive safety concerns, conduct risk assessments at the site and to provide induction training. The submissions revolving around the notion of control understandably referred to the Full Bench decision in McMillan Britton & Kell v WorkCover Authority (1999) 89 IR 464 and the decision in Inspector Page v Growth Equities Services Pty Ltd [1994] NSWIRComm 95. Those cases dealt with the provisions of s 17 of the 1983 Act but had relevance for s 10(1) of the 2000 Act although worded differently: under the present Act, s 10(1) refers to the duty where the premises are controlled in the course of trade, business or other undertaking while s 10(4) makes it clear that a person who has control of premises includes a person who has only limited control of premises and in that case any duty under the section applied to the matters over which the person had control. This approach to s 10 was substantially reflected in the submissions for the prosecutor and the prosecutor's approach to s 10 generally is accepted. However, the issue remains as to the degree of control actually exercised by PCS. 31 The prosecutor's submission that PCS could sue for breach of the contract if Rorato failed to provide a safe workplace and refused to accept its suggestions to address perceived risks may be regarded as providing a somewhat strained notion of control. The Court, however, is required to look at the substance of the matter in a practical way. Action for breach of contract might lead to an award of damages and a withholding of the contractor workforce by PCS may simply cause Rorato to look elsewhere for contractors (PCS having no right to exclusively provide that class of worker), nevertheless, the close relationship between PCS and Rorato indicates that PCS had considerable influence with Rorato because of the contractual obligation for Rorato to provide a safe workplace for PCS contractors. In this context, issues of safety raised by PCS were not mere recommendations and Ms Morris accepted that PCS would expect their representations to be acted upon, even if that meant that Rorato might propose a different method of addressing the issue of safety that was raised. Indeed, following this incident the proposals flowing from the PCS risk assessment were adopted by Rorato with one exception where another suitable method of protection was adopted rather than that suggested by PCS. In addition, Rorato looked to PCS to assist in re-writing its safety manual which strongly suggests that PCS occupied more than a position of merely being able to influence the action of Rorato but was well placed on safety issues affecting its own contractor clients in having systems of work and safety adopted by Rorato. Ultimately, PCS accepted that it had control of the induction training. Control of that matter, however, could not properly be regarded as some significantly limited form of control: there is no reason why, in its induction training, PCS could not have given directions to its contractor clients that they were not to work or walk in the loading/unloading area unless engaged as a forklift driver or that if required to work near this area they would also be required to wear high vision vests and stay out of the way of the forklift. Persons not working in the loading area could be directed to stay clear of that area or alternatively, to work in that area if other safety measures were adopted. A PCS contractor provided to Rorato on that basis could be removed from the immediate danger area. 32 The defendants emphasised the word "premises" in s 10 and submitted that the control required by the section had to be exercised over the "premises", not the workforce. Thus, it was submitted, the defendants could not require Rorato to place warning signs in the loading area, or to paint access restrictions on the floor of the loading area, to install fences or railings to separate the forklifts from people who may visit the area. The defendants did accept: · that PCS gave directions and instructions to control personnel at the premises concerning where they were permitted to go and not go, the prohibition on the use of mobile telephones and how to do their work correctly; · that under the agreement between PCS and Rorato, PCS was to provide induction to personnel placed at the factory and, further, that the induction it provided was deficient in relation to providing safe working systems in the loading area; · that PCS were able to withhold personnel so as to ensure that risks to them were obviated while working in the loading area.

In accepting these matters, the defendants appear to accept that they have been in breach of s 10(1) but that their control was limited to those nominated matters and went no further. That approach demonstrates a very restricted view of the operation of s 10. In the context of the Act the obligation under s 10 on a person who had control of a premises is to eliminate the risk or control the risk. There were a number of avenues available to PCS to ensure the premises were safe and, as discussed above, these avenues extended beyond the terms of the induction provided to its client contractors provided to Rorato. 33 Having considered the competing submissions, the Court concludes that PCS had a significant degree of control over the premises in relation to the circumstances of its contractors although that degree of control might not be regarded as absolute in its nature, nor the same degree of control exercised or capable of being exercised by Rorato. It has been well understood in the operation of the Act that, not only varying degrees of control can be exercised over premises, control may be exercised by a number of entities. The reality of the contractual position is perhaps better recognised by not what would happen if the contract was breached, but whether it placed PCS in the position of being able to demand that Rorato provide a safe workplace by the provision of certain safety measures. That, indeed, appears to be the contractual position. The focus on possible breach of contract in the submissions is something of a distraction. 34 While it is accepted that the particulars conceded by the defendants have been established on the evidence, those particulars do not give full recognition to the nature of control able to be exercised by PCS.

The prosecution case has been established to the extent that PCS had considerable, but not total control of the premises: that control was able to be exercised by the content of the induction training programme and the ability to direct contractors not to walk into the loading/unloading area, to stay clear of that area and to wear high vision safety jackets if their duties led them to work near the loading/unloading area. Under the contractual arrangements, PCS was in a position to demand steps be taken to provide a safe workplace for contractors working at the premises. In addition, PCS had access to the site, could conduct risk assessments and had the presence of a Human Resources consultant through whom it could monitor the safety of the site operations. The prosecutor's submission that this level of control was significant and not "incidental, passing or fleeting" is accepted. With these modifications, the particulars pursued by the prosecutor are established. 35 As a result of this incident, Mr Prajapati was seriously injured and continues to be significantly incapacitated. While it has long been accepted in this jurisdiction that injuries suffered or lack of injuries does not necessarily dictate the seriousness of the breach, here the risk was that a person could be hit by an operating forklift carrying heavy bins. That risk carried with it the possibility of very serious or even fatal injury. It was a risk identified by PCS months before the accident but not adequately addressed. The risk was obvious and required only simple measures to address and to ensure the safety of workers at this part of the premises. This breach by the defendants is therefore properly considered to be a serious breach of the Act and one to be considered by reference to its degree of control of the premises and against a number of factors that are required to be considered in the sentencing task. 36 It was accepted by the defendants that general deterrence should form a significant element of the penalty and the penalty will reflect that position. In relation to specific deterrence it was suggest that, having regard to the nature of the arrangements with Rorato, specific deterrence should play a significantly reduced role in the setting of an appropriate penalty considering the induction and safety systems already in operation and the steps taken to address the risk exposed by this accident. PCS continues in the business of placing contractors in rural enterprises and although it has no previous record and had turned its attention to safety in the workplace for its contractors at this site, it is appropriate that specific deterrence play a role of some significance in the setting of the penalty. 37 In relation to subjective factors, the Court record indicates that the defendants entered a plea to the alternate charge at an early stage of the proceedings and they are both entitled to a discount of 25 per cent. Both defendants come before the Court with a clean record and the attention that has been paid to safety in the workplace in the business operations of PCS suggests that PCS has been a good corporate citizen, having been involved in the engagement of significant numbers of people in rural industries since 2002. PCS also co-operated with the WorkCover investigation and showed its contrition not only by the entry of early pleas of guilty but also by showing its concern for the victim, Mr Prajapati. These matters will be taken into account in mitigation of the penalty. No other evidence was led in relation to the personal circumstances of Ms Davies, but a number of the matters relevant to PCS were also relevant to her case. 38 Mr Prajapati prepared a Victim's Impact Statement that was provided to the Court by the prosecutor. That statement spelt out the serious injuries he suffered and how his everyday life has been affected. There was already before the Court sufficient information to make it aware of the extensive nature of those injuries and the Court was also able to observe Mr Prajapati while he gave evidence. The Court extends its sympathy to Mr Prajapati and his family for the suffering and pain he has endured as a result this simple and avoidable workplace accident. ORDERS 39 A In Matter No IRC 242 of 2007: Primary Contracting Pty Ltd:

(1) The defendant is found guilty of a breach of s 10(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 242 of 2007, to which it entered a plea of guilty. (2) The defendant is fined the sum of $70,000 with half that amount to be paid to the prosecutor by way of moiety. (3) The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court.

B In Matter No IRC 472 of 2007: Narelle Pamela Davies: (1) The defendant is found guilty of a breach of s 10(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 472 of 2007, to which she entered a plea of guilty. (2) The defendant is fined the sum of $7,000 with half that amount to be paid to the prosecutor by way of moiety. (3) The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of ag`reement, as ordered by the Court.

ANNEXURE AGREED STATEMENT OF FACTS

1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the said Act to institute proceedings in the within matter.
2. At all material times Primary Contracting Services Pty Ltd (ACN 102 194 089) ("PCS) was a corporation whose registered office is situated at 17 Kurrajong Avenue, Leeton, in the State of New South Wales.
3. At all material times Narelle Pamela Davies of "Marden" Litchfield Road, Whitton in the State of New South Wales was the sole director of PCS. 4 At all material times PCS was a corporation which undertook the business of supplying contract labour.
4. Rorato Nominees Pty Ltd ("Rorato") owned and operated a tomato processing factory located at the corner of Oaklands and Cape Roads, Jerilderie ("the premises").
5. At all material times there was a written contract between PCS and Rorato dated 18 June 2004 ("the contract"). Under the terms of that contract PCS was required to provide to Rorato, if requested to do so, workers who were to perform work at the premises. Under the contract Rorato was required to provide a safe work place for those workers. Under the contract Rorato agreed to provide and maintain so far as practicable for all of the workers provided by PCS a working environment that was safe and without risks to health.
6. Mr Mahesh Prajapati, undertook work at the premises. Mr Prajapati commenced employment with Rorato in March 2003 as a factory hand. Mr Prajapati also worked as a farm hand, machinery operator and conducted maintenance of factory equipment. After June 2004 Mr Prajapati ceased employment with Rorato and signed a contract with PCS trading as Australian Contracting Solutions ("ACS"). He continued to undertake work at Rorato's premises. Mr Prajapati arrived in Australia from Northern India in December 2002 on a temporary working visa.
7. From June 2004 until the date of his accident, Mr Prajapati was paid in respect of the work he performed by PCS. He worked with approximately thirty-five other workers at the premises who were supplied by PCS and paid by PCS.
8. PCS gave directions and instructions to contract personnel at the premises concerning where they were permitted to go and not go, the prohibition of mobile phones on the premises and how to do their work correctly. Worker's were counselled by PCS when they disregarded instructions. PCS provided a human resources consultant at the site two or three days per week.
9. On 24 April 2005 Mr Prajapati went to the loading dock area of Rorato's premises to assist securing a load on the back of a truck. Mr John Ventrella, another person engaged in the same way as Mr Prajapati, was operating a forklift in the loading dock area. Mr Ventrella was undertaking the task of unloading bins full of tomatoes from a truck parked in the loading dock. With the use of the forklift he was putting the bins on the ground in a line about three metres away from the truck. Mr Prajapati was standing in the loading dock with his back to the forklift. He heard the truck driver yell "stop". Mr Prajapati turned around and the forklift was driving straight at him. Mr Ventrella was unable to stop the forklift in time and the forklift, which was carrying two wooden tomato bins on its tynes, struck Mr Prajapati. Mr Prajapati had walked in between the bins that were stacked on the ground and the spot where Mr Ventrella was taking the load he was carrying.
10. Mr Prajapati sustained severe injuries as a result of the incident. He suffered bilateral broken ankles, a crush fracture to the left arm, crushed forefinger, fractures to bones of the left hand, and severe lacerations to his arms, lower legs and torso. Mr Prajapati was treated for his injuries at Goulburn Valley Hospital and was not discharged until 8 June 2005. Mr Prajapati remains unfit for his pre-injury employment.
11. Mr Ventrella was a licensed forklift driver. The forklift Mr Ventrella was driving at the time of the incident was a hired forklift which had a rotation attachment. The clamps for the rotation attachment are attached to the front of the fork on the tynes. The tynes are then able to rotate so that the tomato bins which are carried can be turned and emptied into a hopper that is then conveyered into the plant for processing.
12. Mr Ventrella had no vision directly in front of him whilst going forward as the bins he was carrying obstructed his vision. He could not see Mr Prajapati who was directly in front of the forklift. Mr Ventrella considered that pedestrians are not meant to be in the loading/unloading area and only the forklift and truck drivers should be in the area. Mr Ventrella saw Mr Prajapati prior to the incident on 24 April 2005 in the loading/unloading area standing near the truck with the truck driver. Mr Ventrella advised he did not ask Mr Prajapati to leave the area "as he was a little bit further away from me and it is hard when people don't understand English very well. You can scream at them and tell them to go and they just look at you. I had trouble understanding him sometimes." Other people were in the loading/unloading area on other occasions when forklifts were in operation.
13. Mr Prajapati says he had gone to the loading/unloading area on 24 April 2005 as he had been directed by Mr Sergio Rorato, the managing director of Rorato, to help tie the ropes on the truck. Mr Rorato denies directing Mr Prajapati to undertake work in the loading/unloading area. Mr Peter Robinson, plant manager and Mr Prajapati's supervisor advised WorkCover that on the morning of the incident he had directed Mr Prajapati to clean up outside the yard in the front part of the factory. He stated that he did not know why Mr Prajapati was in the loading/unloading area as he was never told to go and work in that area.
14. Mr Prajapati was not wearing a high visibility vest whilst in the loading/unloading area. Mr Prajapati had previously walked through this area on other occasions to check on equipment and the hopper. Mr Prajapati had never received instructions not to walk through this area. Mr Prajapati saw other workers walk through this area to undertake cleaning or on their way to the toilet at the back of the building. Mr Prajapati had not received any training regarding accessing the loading/unloading area or the use of forklifts in the loading/unloading area. Mr Prajapati had driven forklifts at the premises, however does not hold a forklift certificate of competency.
15. At the time of the incident there were no physical barriers in place to prevent pedestrian access to the loading/unloading area. There were no documented procedures advising workers that they were not allowed in this area. There were two signs in English in the loading/unloading area. One sign adjacent to the shed entry door stated "forklifts in use" and another sign on the outer shed wall stated "Caution loading/unloading zone. Authorised personnel only." This sign was not easily seen by persons entering the area from the side entrance.
16. The loading dock area of the premises is a very noisy area. Mr Prajapati did not hear the approaching forklift.
17. The normal practice in place at the premises was for PCS workers at the premises to be inducted by a PCS representative and on the job training to be provided by Rorato. PCS's induction training was deficient in that it failed to ensure that workers understood the induction. The content of PCS induction training was inadequate in that it required further information regarding safety around forklifts and safe operation of forklifts and did not make reference to restricted areas at the premises and the dangers of entering these areas. Mr Prajapati signed a document dated 11 January 2005 confirming that he had been provided with a Occupational Health and Safety Induction Handbook and a Farm/Factory Induction and Training Manual. When shown an updated version of Rorato's training manual, Mr Prajapati advised WorkCover he would not be able to easily read the document.
18. A representative of PCS conducted a risk assessment of the premises and the loading/unloading area on 3 January 2005 and identified the risk of a worker being struck by a forklift. No adequate control measures were put in place by PCS or Rorato following the identification of the relevant risks. PCS were able to withhold the provision of workers to the premises so as to ensure the risk was obviated. PCS was also able to advise and recommend to Rorato what steps it should take in order to eliminate those risks.
19. Following the incident PCS conducted an investigation into the incident. They recommended that the following actions be taken to prevent further incidents: (a) Further information regarding safety around forklifts and the safe operation of forklifts be added to the induction manual. The induction manual to also include restricted areas and dangers of entering the areas. (b) Ensure that the loading area is clearly marked as a "Restricted Area", limit access of workers and inform them of dangers in the area. (c) Workers are to wear reflective highly visibility clothing at all times when working near machinery. (d) Disciplinary action taken against workers who ignore reasonable instruction that puts themselves or others at risk to safety.
20. Subsequent to the incident an Improvement Notice was issued upon Rorato. In response to this notice Rorato put barriers in place, conducted further training in forklift operation and safety and put signage in place in the loading dock area stating and illustrating "Restricted area - Keep out".

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