The Agreed Statement of Facts (absent the annexures) appears as an annexure to this judgment.
6 For the defendants, the following material was relied upon:
(a) an affidavit sworn by Nevin John Sweeney, the Occupational Health and Safety and Environment manager of Girotto Precast;
(b) an affidavit sworn by Robert James Power, the general manager, NSW of Girotto Precast;
(c) an affidavit of Giuseppe Girotto, the current executive director of Girotto Precast who was the managing director of the defendant company at the time of the incident;
(d) an affidavit of Garry Donald Wyatt, director of Brown Consulting VIC Pty Ltd;
(e) three personal references in relation to the case against Giuseppe Girotto; and
(f) a psychologist's report prepared by Mr Laurence Fulton regarding Giuseppe Girotto;
7 In addition to the abovementioned material, the following matters were agreed during the course of proceedings:
(a) the previous offence involving Girotto Precast was dealt with by the Chief Industrial Magistrate in April 2005 and involved the imposition of a penalty of $13,000 for a breach of s 8(2) of the Act. The offence involved a fall from a ladder of between three and five metres;
(b) the following injuries were received by the other workers at the site on 8 February 2005: Mr Banks received an injury to the base of his right foot; Mr Reeves had a large lump on his foot, a large bruise on his back, pain in his spine and a sore neck; while Mr Immer broke his arm, three ribs and had a puncture wound to his right leg.
8 Mr Nevin Sweeney, at the time of the accident, was the Occupational Health and Safety and Environment manger of Girotto Precast and had been employed by that company since early May 2004. He had been involved in occupational health and safety work for nearly 20 years and had occupational health and safety related qualifications. He gave details of his work history and his involvement in occupational health and safety with other companies. He endorsed those parts of Mr Power's affidavit that dealt with his role and the safety systems at Girotto Precast. Mr Sweeney spoke of how he had been approached by Mr Power to take up a new national position of occupational health and safety manger with Girotto Precast and how he had satisfied himself that he was going to be working where management was committed to safety and was similarly committed to his own approach to safety. He was of the view that little could be achieved in safety unless there was commitment from management and he was not prepared to be employed in a position without that type of support. When interviewed for this position, he met Mr Girotto, the managing director of Girotto Precast, and other managers. He emphasised that, in taking up the position, it did not involve a salary increase but it was the nature of the position that attracted him. He spoke of being impressed with the commitment of Mr Girotto and Mr Power to safety and how that led him to want to be part of the team. They spoke of being committed to providing Girotto Precast and their sub-contractors with a state of the art occupational health and safety system.
9 On commencing with Girotto Precast, Mr Sweeney's initial impression, based on his previous occupational health and safety experience, was that the company was well run and had a number of safety systems in operation inter-mingled with their production system. Although there were a few environmental issues, they appeared to be under control and senior management demonstrated genuine interest in safety and expressed their keenness to improve and develop the company's current systems of work so as to include safety in a holistic manner. One of Mr Sweeney's first tasks was to conduct a comprehensive audit of all the company's production sites and this included an audit of the management systems, physical hazards and behavioural safety. The audit was concluded in May 2004 and his findings were presented to senior management. He recommended that the company should instruct him to implement an occupational health and safety improvement plan, including the introduction of occupational health and safety and environment policy and to set up two occupational health and safety systems built on risk management principles for the company's production facilities and the construction/sub-contractors' area of the company. After distribution and discussion by senior management, the recommendations were accepted. He was directed to draft documents for discussion and after discussion and adoption, he began to implement the plans.
10 Mr Sweeney then reviewed the occupational health and safety management system for Girotto Precast in New South Wales and those applicable to the erection and post-erection sub-contractors engaged by the company. This led to Mr Sweeney recommending an update of some of the occupational health and safety documentation, a consolidation of procedures in the occupational health and safety management system, the inclusion of additional procedures and processes in that system and a review to make all procedures consistent under the system. These recommendations were accepted by Mr Girotto and Mr Power and were implemented.
11 Mr Girotto then approved of Mr Sweeney and Mr Power refining the existing audit documentation that had been originally developed by Mr Power. Improvements to that audit system were applicable to sub-contractors engaged by Girotto Precast. In approximately July 2004, following Mr Sweeney's review, Girotto Precast implemented its occupational health and safety and environment policy nationally. Mr Girotto and Mr Power familiarised themselves with their policy and endorsed it. Mr Girotto signed the front of the policy stating his commitment to occupational health and safety and endorsed the objectives of the policy and the statement of responsibility. Mr Girotto also publicly declared his support for the policy by introducing it to all personnel in tool-box talks at each of the factory sites. Mr Sweeney regarded Mr Girotto and Mr Power as demonstrating a genuine commitment to occupational health and safety in a variety of ways. They were interested and supported recommendations that he had made on review of the company's systems, had promptly approved budgetary needs to implement the recommendations and had appeared at presentations seeking to promote safety. They had made it clear to Mr Sweeney that there was no financial limit to occupational health and safety improvements and that at all times senior management, including themselves, would be available to address and promote occupational health and safety interest.
12 In or about November 2004, Mr Sweeney recalled a conversation with Mr Nelson Monica of Baseline and its occupational health and safety manager. Mr Sweeney was carrying out an inspection at the Rhodes site and they were speaking about the safe work method statements that had been produced by Mr Brown in consultation with Mr Sweeney. Mr Monica had indicated that Mr Chris Henson of WorkCover had reviewed the safe work method statements and considered them to be "okay". In early January 2005, prior to the accident, Mr Sweeney was asked to attend a meeting at the Rhodes site in order to have discussions with Mr Chris Henson, the senior construction inspector with WorkCover. Mr Henson wanted to discuss the requirement for Hi-Rise personnel to wear harnesses when working at heights. Mr Sweeney recalled that the discussions were held in the office of Baseline's site manager, Mr Ray Humphrey. Mr Humphrey was present for part of the conversation and it was possible that Mr Monica was also present during part of the conversation. During this discussion, Mr Henson said that he saw no problems with the safe work method statements but the question was whether or not they were being enforced. Mr Sweeney was told to enforce the use of harnesses. After that discussion, Mr Henson and Mr Sweeney and possibly Mr Humphrey and Mr Monica inspected the work being performed at the site. Mr Sweeney had a further discussion with Mr Henson where Mr Henson said that he was happy with the way in which the work was being performed but they should conduct toolbox talks and reinforce the importance of using safety harnesses. In compliance with those suggestions made by Mr Henson, a toolbox talk was held on 19 January 2005 during which the men were addressed on the safe way of working at heights and the use of safety harnesses. In relation to both these occasions, Mr Sweeney spoke to Mr Power and informed him of what had been discussed.
13 Mr Sweeney then dealt with the differences between the construction and production sites of Girotto Precast. The manufacturing of panels on site, being the production side of the business, involved developing systems and procedures, audits and inspections, developing and conducting training programmes, providing advice to managers and also arranging external training programmes. Mr Sweeney was responsible for liaising through the organisation on occupational health and safety and environmental matters and the duties in relation to the production were carried out in Sydney, Newcastle and Dandenong. In relation to construction, namely the erection on site, he conducted audits on site, developed and conducted training with the companies own construction people and its sub-contractors and liaised with builders on safety matters. He assisted the company's sub-contractors by helping them develop safety related documentation.
14 It was Mr Sweeney's view that Mr Girotto had demonstrated a genuine and thorough commitment to safety in the workplace and had supported him in all facets of his position. He expressed the view that it would send a "wrong message" to persons in the industry to convict Mr Girotto.
15 Mr Robert Power was the general manager, New South Wales of Girotto Precast at the time of the incident and had been involved in the pre-cast concrete industry for over 20 years. Mr Power gave details of the company history, which had been in operation for approximately 20 years having been incorporated in Victoria in early 1989. Girotto Precast had commenced as a family business in 1987 in Melbourne with its first manufacturing plant being built in Dandenong, followed some 10 years later by a manufacturing facility built at Prestons, New South Wales. Mr Power spoke of Girotto Precast as being recognised as a market leader in Melbourne and that it had quickly established the same reputation in Sydney for excellence in product and service. In November 2003, the company further expanded its operations by establishing a Newcastle facility and in 2005, a facility was established in Brisbane. At the time of the accident, the directors of Girotto Precast were Steven Girotto, John Matheson Douglas, Keith Allan Mitchellville and Giuseppe Girotto. Giuseppe Girotto was the managing director, Steven Girotto was the technical director and Mr Douglas and Mitchellville were non-executive directors.
16 At the time of accident, the company's management structure revolved around the three offices in Melbourne, Sydney and Newcastle. This structure provided for two general managers, a finance manager and an operations development manager. As general manager New South Wales, Mr Power had responsibilities for the Sydney and Newcastle offices and the other general manager was located in the Melbourne office. As the general manager New South Wales, Mr Power was the person who had overall responsibility for all works being performed by Girotto Precast in New South Wales and was the person who had the operational day-to-day carriage of the business in New South Wales. Prior to the accident, the company had sold a major shareholding and as a result, Mr Douglas and Mr Mitchellville were appointed as new directors and Mr Giuseppe Girotto and Mr Steven Girotto moved out of the day-to-day running of the business. Mr Giuseppe Girotto was given the primary responsibility of expanding the business and Mr Steven Girotto was given responsibility for improving the technical operational manufacturing side of the business. In New South Wales, the company employed two construction co-ordinators to provide direct communication with the company's clients and sub-contractors involved in construction site activities. While the company employed approximately 175 people throughout Australia with 79 located in New South Wales, at the time of the incident approximately 125 people were employed throughout Australia with 67 being located in New South Wales.
17 Mr Power had approached Mr Girotto after commencing employment with the company about the need to further develop the company's occupational health and safety systems, initially employing an occupational health and safety and environmental manager. In early 2004, the company employed Mr Sweeney in that role on a national basis.
18 In relation to the work being performed at the time of the accident, Recrete manufactured the Hollowcore floor planks and Girotto Precast did not manufacture them. The majority of Girotto Precast activities were related to manufacturing through its plants. The factory premises housed the plant and equipment required for the production of precast concrete wall panels, a process described as labour intensive. Mr Power spoke about the way in which the manufacturing of wall panels was undertaken and noted that the construction division of the business was a small component of the overall business. Erection work in New South Wales and Queensland was performed by sub-contractors specialising in pre-cast erection. In Victoria, Girotto Precast employed a crew to perform this work. In New South Wales, almost all of the company's employees worked at the various factory premises in the manufacturing process with approximately seven employees visiting construction sites. Persons generally involved in this type of work were the company's construction manager, project manager, construction co-coordinator, occupational health and safety and environment manager and an occupational health and safety officer. The company was currently seeking to recruit a person for the position of occupational health and safety co-ordinator.
19 In his affidavit evidence, Mr Power provided details of the company's management system and its safety system. That evidence was supported by reference to a large number of documents annexed to his affidavit. The management policies manual contained all policies and procedures for employees, including safety policy, alcohol policy, visitors on site policy and certificates of competency. All employees were given induction training on the commencement of their employment. In November 2003, the company engaged an ex-WorkCover Inspector to address sub-contractors used by Girotto Precast as to their occupational health and safety obligations. Mr Brown was one of those who attended the training that was addressed by not only the ex-WorkCover Inspector, but also by Mr Power. Shortly after Mr Sweeney was employed he commenced a review to improve the subby pack and in mid-2004, Girotto Precast developed a corporate policy on occupational health and safety and environmental issues. The then managing director presented these policies at each of the work sites operated by Girotto Precast and in mid-2005, the policy was reviewed and updated. In late 2004, the occupational health and safety committee at each of the company's factory sites was asked to participate in the development of a site specific policy and that process was assisted by the occupational health and safety and environment manager and Mr Power. The finalised site specific safety policies were formally launched in January 2005 and had since been reviewed and relaunched.
20 In October/November 2004, the occupational health and safety and environment manager held two compulsory training sessions for managers and supervisors dealing with their obligations and responsibilities under the Occupational Health and Safety Act and Regulation. Also in November 2004, the occupational health and safety manager reviewed the documents concerning the company's construction and on-site safety systems. The company had an internal procedure for reviewing its plant procedures and performance in relation to safety compliance including yearly audits since 2004, audits of sub-contractors at various construction sites from 2004 occurring on average every three to four weeks, a physical hazard audit by the safety manager of each factory site in 2005 or 2006, behavioural safety audits in relation to individuals commencing in May 2006 and occurring on average every five to six weeks, a survey of all employees relating to the safety culture of each factory in 2006 and 2007, an audit of the New South Wales and Victorian production and erection divisions against the Victorian and Precast Industry Standard in 2007 and electrical audits of the company's factory sites in 2008. The management of the company had reviewed these audits for a series of safety improvement plans, and the plans were reviewed through the safety committee and at management meetings on a regular basis.
21 Mr Power then gave details of the procedures governing safety within the company, the fostering of a culture of safety in the company, the operation of the occupational health and safety committee and how the comprehensive induction system operated. In 2005, an annual re-induction programme had been introduced for all employees and on each construction site a principal contractor was required to perform a site induction that was attended by the company's construction site employees, its sub-contractors and their employees. In 2007, the company introduced its own construction sub-contractor induction performed by the occupational health and safety and environment manager and the safety officer. In 2007, the company had introduced sub-contractor briefing meetings that occurred prior to the sub-contractor commencing work on a construction site.
22 A detailed description was provided of the communication within the company, including the quarterly system of board meetings where safety was the first issue discussed, national management meetings convened monthly, site operation meetings held weekly in both Sydney and Newcastle, job assessment meetings held before the commencement of a new job, tool-box talks for production held weekly by the production supervisory personnel and tool-box talks held on construction sites by the sub-contractor. A description was also given of the means of reporting within the company on safety matters at the board level, at national management meetings and at site operation meetings. Each year a training needs analysis was conducted in relation to employees and a training plan developed. Training programmes had been provided to sub-contractors and their employees to ensure that they remained aware of, and were able to deal with, hazards and risks in the workplace. The occupational health and safety and environment manager, the two safety co-ordinators and the safety officer were employed on a full-time basis while safety responsibilities were also exercised by the national general manager, general managers, technical manager, senior technology manager, national projects manager, production managers, production supervisors, production foremen, production leading hands, production managers, construction managers, construction co-ordinators, construction foremen (Melbourne only) and construction leading hands (Melbourne only). There was ongoing review of the need for additional dedicated occupational health and safety personnel. In 2005, in consultation with its employees and the safety committee, the company documented a list of safety rules applying to the manufacturing sites. Employees in the factory not abiding by the rules were subject to disciplinary action, including verbal warnings followed by three written warnings with the third warning raising the possibility of dismissal.
23 A great deal of background information was supplied by Mr Power as to how the company became involved in the project at Rhodes. In mid-May 2004, the company received a document entitled "Precast concrete panel specification prepared for Rhodes Development for Statewide Developments Ltd", a document prepared by Meinhardt. It was said that this document was based on Australian Standard 3610 formwork for concrete, together with other Australian Standards and included the qualifications required for the pre-caster and erector. Later in May 2004, Baseline had entered into a contract with Statewide Developments Pty Ltd ("Statewide") for the construction of a large scale residential project known as "The Rhodes Bay Residential Development". In mid-September 2004, Meinhardt entered a consultancy agreement with Statewide. Also in mid-September 2004, Baseline entered a deed of novation with Statewide and as a consequence, Meinhardt's contractual obligation previously owed to Statewide were novated to Baseline. During 2004, Girotto Precast was approached by Baseline and asked to submit a tender for work on the site. Baseline and Girotto Precast had previously worked on another project and ultimately Girotto Precast did tender for the manufacture and supply of precast concrete wall panels. It was not part of those discussions or the later contract that Girotto Precast would manufacture or supply the Hollowcore floor planks. Girotto Precast did not manufacture Hollowcore floor planks and the supply and manufacture of those floor planks were sub-contracted by Baseline to Rescrete.
24 Following failed negotiations with a precast erector, Baseline approached Girotto Precast to take responsibility for the installation and erection of all precast elements including the Hollowcore floor planks. Because Girotto Precast did not have employees to perform erection work, it responded by indicating that it would only enter into the contract if it could sub-contract the installation and erection work. At that time, Girotto Precast was aware that Brendan Brown, who was then employed as a technical advisor and who had previously worked as the company's New South Wales construction manager, wished to establish his own precast erection company. Girotto Precast were of the view that, throughout Australia, there were a limited number of people with the requisite knowledge and experience to undertake a project of this magnitude. Having regard to Mr Brown's role it was considered that he was an exceptional employee who had demonstrated deep knowledge, skill and expertise as well as workmanship in the erection of precast elements. He had at all times displayed a strong commitment to detail in the performance of his work and a commitment to safety in the workplace. Mr Brown had been involved in the negotiations concerning the scope of work, particularly in relation to the erection component of the contract between Girotto Precast and Baseline. It was then agreed between Girotto Precast and Mr Brown that his company, Hi-Rise Erections, would perform all erection work under his supervision and this was accepted by Baseline.
25 In November 2004, Baseline entered into a sub-contractor agreement with Girotto Precast whereby Girotto Precast was to supply precast wall panels, co-ordinate the delivery of the precast wall panels and take delivery of Hollowcore floor planks and erect the wall panels and Hollowcore floor planks. As part of the contract, Girotto Precast were required to supply temporary shelf angles, brackets, bolts and props. However, Baseline had available a number of temporary shelf angles and Z brackets and props which they supplied to Girotto Precast for use on the project. In late November 2004, Girotto Precast sub-contracted the installation of the concrete wall panels, Hollowcore floor planks, transfloor balconies and lift shafts together with the supply and installation of temporary shelf angles, brackets, supports and props to Hi-Rise. The work performed at the Rhodes site in relation to the installation and erection of precast and Hollowcore elements was performed by Hi-Rise and Marr. Marr was sub-contracted by Baseline to provide all tower cranage services for the whole site.
26 The contract between Girotto Precast and Hi-Rise referred to a safety management system known as the "subby pack". This system had been implemented by Girotto Precast in or about 2003 in consultation with an ex-WorkCover Inspector. The subby pack provided pro-forma documentation that was tailored to the specific safety requirements of a site and provided a complete and structured approach to safety, including hazard identification and risk assessment methodology. Mr Power stated that when Mr Sweeny was appointed as occupational health and safety and environment manager, one of his first tasks was to revise and update documentation for the subby pack. The subby pack documentation was regularly reviewed and amended to ensure that it remained relevant to the actual work being performed and complied with safety legislation. At each site every sub-contractor was required to prepare its own subby pack documentation, including safe work method statements for the work they were performing at that particular site. The company's safety officer then carried out a review of each completed subby pack against a checklist to conform that the documentation had been properly completed. In preparing their site specific safe work method statements, the sub-contractors were required to identify each job step, to identify potential hazards within each job step, risk classifications of each identified hazard, the controls adopted to deal with identified hazard and the person responsible for each control. Before work commenced at each new site, a representative from each contractor was required to attend a briefing reading where each safe work method statement was discussed to allow the co-ordination of safety between the sub-contractors and to ensure that there were no site specific issues not addressed. Once that process had been completed, all of the individual contractor's documentation was combined with the Girotto Precast subby pack to form one documented system that was supplied to the project manager. That combined subby pack document was kept on site to be referred to by Girotto Precast, its sub-contractors and relevant builders and builders' personnel.
27 Prior to work commencing at the Rhodes site, the subby pack documentation was developed by Hi-Rise for that site and Mr Power instructed the occupational health and safety and environment manager to assist Mr Brown to set up a site specific occupational health and safety system. This process involved the development and review of safe working method statements for use at the site. When that process had been completed, Mr Brown brought his crew to the Girotto Precast factory in Prestons and took them through the documentation, including the associated safe working methods. This exercise occupied approximately half a day. All new employees of Hi-Rise who came on to the site after work commenced were taken through the documentation in the same way.
28 Under the contract between Girotto Precast and the sub-contractor, the sub-contractor was required to comply with a safety management system created by the subby pack, including the requirement to conduct weekly risk assessments at the site. Tool-box meetings were held on site and attended by Hi-Rise employees and others including Mr Monica, Mr Humphreys, Mr Chircop, Mr Bodman, Mr Hutchinson, Mr Reddington, Mr Hereriuha, Mr Johnson, Mr Mathews, Mr Rochair, Mr Leethy and Mr Sweeney.
29 Prior to the accident, Hi-Rise had reviewed their safe work method statements on three occasions. The original statements addressed job steps including the delivery of material and preparations for lifting, erection procedure and final positioning of floor panels on the beam. As a result of modifications made by Baseline's occupational health and safety manager, Mr Monica, the statements were modified. Mr Power's was informed by Mr Sweeney that Mr Chris Henson, senior construction Inspector with WorkCover had reviewed these method statements and had considered them to be "okay". The third version of the statements arose after a visit by a WorkCover Inspector who raised issues of working at height. The changes were made in consultation between Mr Brown and Mr Monica and the Girotto Precast occupational health and safety and environment manager. Again, Mr Power was told by Mr Sweeney that Mr Chris Henson of WorkCover had reviewed the method statements and considered them appropriate.
30 The company also had a system of audits to ensure that the safety management system embodied in the subby pack was in fact being followed. The occupational health and safety and environment manager conducted random audits of all contractors and used an audit form which the manager completed and had counter-signed by the contractor. The auditor looked at a number of matters including risk assessments, safe work method statements, induction and tool-box talks. Where it was found that the subby pack was not being followed, the auditor was to suggest corrective action together with other comments. The contractor was then to indicate who would be responsible for taking corrective action and identify when corrective action would be completed. The completed audit form was provided to the sub-contractor and a copy given to the builder in charge of the site. A further copy was returned to the local office of Girotto Precast and given to the general manager in New South Wales, Mr Power, for review and signing. Where corrective action was required, Mr Power would normally discuss the appropriate action with Mr Sweeney. Between late November 2004 and late January 2005, 23 sub-contractor audit forms had been completed in relation to this project and 10 such audits related to the activities of Hi-Rise at the site. In relation to Hi-Rise, the audit forms were signed by the occupational health and safety and environment manager for Girotto Precast and counter-signed by Mr Brown and subsequently signed by Mr Power.
31 On the morning of the accident, Mr Power attended a meeting of sub-contractors with Baseline at the site. Prior to that meeting he had spoken to Mr Brown and had discussed with him any issues that had arisen in relation to the sub-contract and although an issue was raised concerning the delivery of the floor planks by Rescrete and the fact that they were not being delivered in proper sequence, no other issue was raised. Mr Power then attended the sub-contractors' meeting where there were representatives of Baseline, Rescrete together with Mr Brown. At this meeting, Mr Power again asked if there were any safety issues that needed to be addressed and was told there were no safety issues.
32 From November 2004 until the date of the accident, Hi-Rise had erected at the site a number of precast wall panels, balconies, lift shafts and Hollowcore floor planks. Mr Brown and persons employed by Hi-Rise had also erected precast elements on other construction projects. The use of temporary support in the form of Z brackets and timbers had been adopted by Hi-Rise at this site and that was the same method that had been used at another project known as the Metro Village. In August 2004, Meinhardt had confirmed that was the type of temporary support to be used. Mr Power commented that, prior to this incident, Girotto Precast had not experienced a failure of the type that occurred in this accident.
33 Mr Power then described the response and reaction of the company following the accident and this included a number of employees attending the site and Mr Power contacting members of management to ensure that Mr Brown's family and friends were notified of the accident in the most appropriate manner possible. Girotto Precast complied with all prohibition and improvement notices issued upon it immediately after the accident. A number of amendments were made to the safe working method statements and a number of amendments were made in consultation with Baseline. The revised safe working method statement specified size and grade of timber that was to be used and identified the following matters:
(a) the timber must span over a minimum of the full width of two Z brackets;
(b) a minimum of two brackets were to be positioned underneath each floor plank;
(c) the timbers were to be butted together midway between the bracket supports with a tolerance of +/- 25 mm; and
(d) the centre line of the first or last Z bracket was to be no more than 300 mm from the free end of the timber.
34 By arrangement with Baseline, Girotto Precast prohibited its sub-contractors from re-commencing work until steel "safety net" scaffolding was installed in areas of similar configuration. This safety net scaffolding sat directly underneath and within approximately 20 mm of the soffit of the Hollowcore planks. The safety net scaffolding prevented the planks falling to the level below as occurred in the accident.
35 Following the commencement of the prosecution, Girotto Precast commissioned an expert to consider a number of issues relating to the cause of the failure. A report was prepared by a consultant engineer Mr Gary Wyatt, especially in relation to the design specification of the planks. Submissions were made on behalf of the defendants in relation to the particulars of the charge in light of Mr Wyatt's report and following that action, four new particulars were made to the charge. In light of the recently obtained information as a result of Mr Wyatt's draft report, the company took a number of steps to ensure that the failure did not occur again. Girotto Precast employed an engineer with 20 years' experience to fill the role of technical manager New South Wales, with responsibility for reviewing design plans to ensure that they were in accordance with acceptable Australian Standards and ensuring that the floor planks were adequate to carry construction loads. Until receipt of Mr Wyatt's report, Girotto Precast had relied on consultant engineers who had reviewed and approved the relevant plans and drawings. Girotto Precast now required the builder to supply a certificate of compliance, completed by an appropriate qualified person to ensure that the design plan had been followed and that the floor planks were built to applicable engineering requirements. Girotto Precast also required its management teams, supervisors and sub-contractors' managers and their supervisors to attend a two-day risk management course. All those who attended were paid by Girotto Precast.
36 Mr Power spoke of senior managers, including himself, assisting the WorkCover investigation and the assistance provided by the company to Mr Brown's family and friends. He spoke of the number of Mr Brown's friends within the company and his own personal knowledge of Mr Brown and how he had been affected by Mr Brown's death. The attributes of the company's product were described as well as its participation in industry forums where the company had dealt with issues of safety as relevant their section of the industry. Mr Power had been authorised by the directors of Girotto Precast to express the company's sincerest regret in relation to the breach of the Act and to state that the company accepted and recognised that it failed to provide and maintain a safe system of work for the installation and erection of the floor planks. The incident had been a reminder to everybody involved in Girotto Precast of its obligations both morally and legally to provide a safe workplace. The company, through its directors and employees, had made every endeavour to remedy the deficiencies that existed in this particular case.
37 Mr Giuseppe Girotto spoke of his 20 years' involvement in the precast concrete industry and how the company had been set up in Melbourne in 1987. In December 1990 he became a director of the company and in 1992 assumed the position of managing director. As managing director his duties included liaising with clients, reviewing tender documents, identifying and managing growth opportunities for the business. Mr Power, as general manager New South Wales, was one of the people who reported to him.
38 Mr Power had day-to-day operational control of the business in New South Wales and Mr Girotto's relationship with him, as with other senior managers, was directed primarily at supporting and guiding them. Operational issues were only discussed with him to confirm that the system introduced by Girotto Precast was being followed (such as compliance with the subby pack) or if there was a significant matter for the business that Mr Power considered required his involvement. Approximately six months before the accident, in mid-2004, Girotto Precast sold 50 per cent of its business to a new major shareholder and that resulted in a change of the membership of directors. Two new directors were appointed representing the interests of the new shareholder. With the change of ownership and the reformation of the board, Mr Girotto said he had limited involvement in the day-to-day running of the business and his role became focused on identifying growth opportunities and introducing a succession plan. Part of the sale agreement included an option deed for the new major shareholder's purchase of 30 per cent of the business in June 2006 and the final 20 per cent of the business in June 2008. The new major shareholder exercised the option for the 30 per cent interest in June 2006 and will exercise its option to purchase the final 20 per cent in June 2008. Mr Girotto ceased in the position of managing director at the end of 2005 and assumed the position of executive director. In this position he was now employed by the majority shareholder.
39 As executive director, Mr Girotto is engaged under an employment contract that will expire in June 2008. After that date he will not hold a directorship with Girotto Precast but will have an employment relationship with the company and has agreed to enter into a consultancy arrangement on a "as required" basis. As a result of that arrangement, Mr Girotto would not be required to participate in the business on a frequent or regular basis. At the time of the accident in February 2005, Mr Girotto was in Brisbane exploring growth opportunities for the company.
40 The circumstances surrounding the establishment of the company by his father was dealt with by Mr Girotto. He described the nature of the business and how the manufacturing of precast components were carried out in response to orders placed by clients. Before the process was commenced the client provided detailed engineering and architectural drawings that were relied upon to produce shop drawings: those shop drawings were then checked and confirmed by the client's architect and the engineers.
41 The contractual arrangements whereby Girotto Precast became involved at the Rhodes site were dealt with by Mr Girotto and confirmed by evidence given by Mr Power and Mr Sweeney. He noted that Mr Brendan Brown was the principal of Hi-Rise and how the erection and post-erection of all precast concrete elements had been sub-contracted by Girotto Precast to Hi-Rise. Hi-Rise employed approximately ten people at the site. Mr Girotto noted that prior to the accident, Hi-Rise had erected a number of floor planks at the Rhodes site and a number of those planks were supported using the system of temporary support that was used on other construction sites.
42 Mr Girotto had know Mr Brown and his family for nearly 11 years and spoke of the close personal and social relationship that developed between them over those years. Mr Brown had originally worked for Mr Girotto's father as a carpenter and was held in high esteem both as a tradesman and a person. Mr Brown continued to work for Mr Girotto's father on various projects while running his own business as a contractor and in 1997 when the Sydney factory was being built, Mr Girotto and Mr Brown were working closely together on that project and from time to time Mr Brown would stay at the house occupied by Mr Girotto's father. After Mr Girotto became responsible for the New South Wales business, he spent some time living with Mr Brown in a house rented by the company and came to know Mr Brown very well and formed a strong personal relationship with him. Mr Girotto went fishing with Mr Brown, socialised with him and came to know his wife and children. That relationship continued when Mr Girotto moved permanently to Sydney. He loaned Mr Brown money, on a "social basis", to allow him to purchase a fishing boat and later to purchase a larger boat. By agreement, the money had not been repaid.
43 Mr Girotto spoke of the devastating effect of Mr Brown's death both on a personal basis and because the company was involved. Mr Girotto had prided himself on being safety conscious and setting high safety standards with the company. He understood his role as a director and the fact that he shared responsibilities under the occupational health and safety act similar to the corporation. In accepting his responsibility under the Act, he expressed his sincere regret for the breach of the Act which resulted in the death of Mr Brown and the injuries sustained by the other workers. Mr Brown's death and the accident had caused him significant distress over a number of years and he had dwelt upon it constantly as he considered ways in which the accident could have been avoided. It was only in the last few months that he had been able to stop thinking on a daily basis about this accident. In 2007, he had commenced seeing a psychologist for professional counselling as a result of his continued depression relating to Mr Brown's death. He still continued counselling which primarily dealt with the grief Mr Girotto had suppressed over the years as a result of the death of his mother, Mr Brown and most recently in November 2007, the death of his twin brother. He was currently addressing a grief suppression which had been identified and as a consequence of the accident, he had changed his life focus to a more personal and spiritual existence. He no longer felt that it was important for him to remain active in business and he no longer sought the responsibility that comes with management or executive positions.
44 Mr Girotto described the steps he took on the day of the accident to come from interstate to make arrangements and support Mr Brown's wife and her family. He attended the Rhodes site later in the evening and on the following day, arranged counselling to be provided for all persons affected by the incident. Mr Girotto's brother had been killed in a work accident and he spoke of missing him terribly and suffering from his loss and how difficult it was addressing the present prosecution in the light of these losses.
45 The company's focus on occupational health and safety was an important issue for Mr Girotto and he described in some detail how, with other managers, he had developed and promoted a management system that concentrated on safety, hazard identification and risk assessment. As a director he had encouraged and supported safety initiatives by ensuring resources were made available at board level and gave as an example the introduction of the subby pack. Once resources were allocated safety initiatives were commenced. Mr Girotto required all developments to be reported to him to ensure that the initiatives were properly introduced in the company's operations. The company had a zero tolerance for non-compliance with safety policy and to satisfy himself that safety was being addressed at the site, he regularly questioned people working for the company and others, including client representatives. Whenever he visited sites, he would check to see that fundamental safety practices were being used.
46 As managing director of the company, Mr Girotto took steps to ensure that there were competent systems of communication, consensus and implementation on safety matters. He ensured that safety was constantly reviewed and areas for improvement were identified. To ensure the integrity of the safety systems he also ensured that appropriate qualified professionals were employed, in particular he mentioned the qualifications of Mr Robert Power when appointed as general manager New South Wales and Mr Sweeney when appointed occupational health and safety and environment manager. He also spoke of the employment in New South Wales of construction co-ordinators to ensure that there was direct communication with clients and sub-contractors. Mr Girotto's contact was not directly with the construction co-ordinators but he maintained a random site visit regime involving him attending one site per week. On site visits he discussed issues with the construction co-ordinator present and secondly he regularly discussed site issues including safety with the construction co-ordinators in the normal course of running the business. He had authorised co-ordinators to stop any work on safety grounds and had reinforced the importance of stopping work to ensure that employees and contractors were made aware of safety standards being maintained at all times.
47 In relation to the Rhodes site, Mr Girotto spoke of his discussions with Mr Power and initiatives taken by Mr Power in relation to safety at various operational sites, including Rhodes. Mr Power had told him that he was taking a very active role in the Rhodes project and had allocated Mr Sweeney's resources almost entirely as a priority to that job. Mr Sweeney would be spending quite a bit of time performing audits including surprise audits to ensure Hi-Rise's safety performance. Mr Power told him that Mr Monica, the occupational health and safety manager for Baseline, had arranged for Mr Chris Hanson from WorkCover to review and approve of the safe work method statements and as a result, Mr Girotto understood that the method statements had been checked prior to Girotto Precast commencing work on the site.
48 As set out in other evidence, Mr Girotto descried how Girotto Precast became involved in the Rhodes site and how Baseline had approached the company to extend its original work regarding precast walls to also involve the erection of the floors. Mr Brown had made it known to Mr Girotto that he wished to go back into business on his own as a sub-contractor and Mr Girotto had told him that he would support him in that desire. The opportunity arose when Baseline made the approach about the Rhodes site and Mr Girotto regarded Mr Brown as being highly qualified for the work. Mr Girotto said he inspected the work performed at the Rhodes site on a regular basis, approximately once a fortnight, to ensure that the builders, contractors and managers were performing work appropriately. On those visits he spoke to a variety of people and received positive feedback indicating that the project was going well and that the employees and contractors were not under any particular pressure. At no stage was he informed of any issues arising with the Hollowcore floor planks or difficulties with installing them, except for delivery sequencing. In early discussions with Mr Monica, the Baseline safety manager, Mr Girotto had informed him that his company would not tolerate any shortcuts at the site in relation to safety and he invited Mr Monica to stop the site and contact him personally if he was not happy with safety aspects of the job. Mr Girotto also gave evidence about the company's internal processes for reviewing its safety systems and practices and how he was informed of the results of audits by the general manager and/or the safety manager. He had taken steps to arrange for an audit of the company's safety systems to be conducted by an external auditor, including those in operation at the Rhodes site and a meeting was taking place with the auditor, Mr Power and Mr Sweeney when the accident occurred.
49 Immediately after the accident, the WorkCover Authority had issued the company with prohibition and improvement notices and Mr Girotto instructed senior managers to ensure that the company fully complied with the requirements of the notices within the time frame specified. The company then amended the method statements for the site and some of those amendments resulted from discussions between the company and Baseline. Most of the amendments made to the method statements related to the installation and positioning of temporary support, procedure for the lowering of floor planks, procedure for the final positioning of floor planks on beams and the erection procedure. An engineering consultant, Mr Gary Wyatt, was engaged by the company and Mr Wyatt identified a design problem with the Rescrete floor planks not previously revealed. As a result of Mr Wyatt's investigations, the company now employed a full-time engineer to provide the business with constant engineering support, including ensuring that design plans were in accordance with the applicable standards and ensuring that floor planks were adequate to carry the construction load. After the accident, Mr Girotto authorised re-training to be provided to senior managers and managerial members of the sub-contractors engaged by Girotto Precast.
50 A great deal of support had been organised after the accident for Mr Brown's wife and family. A number of financial payments were made by the company totalling approximately $89,000, primarily in relation to the wakes held in Melbourne in honour of Mr Brown and all the costs associated with his funeral. That payment also covered redundancy payments to Hi-Rise employees and costs associated with the provision of accounting and legal advice to Mr Brown's wife in relation to the Hi-Rise company. Mr Girotto assisted Mr Brown's family to obtain financial support totalling some $45,000, contributing to the family expenses, assisting with the management of an investment property until it was sold for the benefit of the family and providing services to a cost of $10,000 without seeking reimbursement for those expenses. Mr Girotto kept in contact with Mrs Brown to offer her support. Mr Girotto also financially supported a number of charities. He regularly participated in the Walk in Support of Juvenile Diabetes and financially contributed to the charity as well as giving financial contributions to Canteen, Greenpeace and World Vision. In 1996, the Girotto family had also donated an Anzac monument to the City of Dandenong paying approximately $174,000 for the monument and costs associated with the design and architectural advice on the relocation of the site.
51 Three detailed personal references were tendered in support of Mr Girotto. Those references spoke of Mr Girotto's personal integrity and business honesty and his commitment to safety in the operations of the company. It was noted how deeply and personally Mr Girotto had taken the death of Mr Brown and how he had carried that burden for some time. He was described as an "extraordinary manager of people" and as a "rare leader". He was admired by all with whom he came in contact. It was said that he had not only paid close attention to devising innovative means of providing safety in the internal operation of his factories but had also taken steps to ensure that safe work practices were following by those who were sub-contracting to the company. His company factories were described as being showpieces of order, pride and workplace conviviality.
52 Mr Gary Wyatt was a director of Brown Consulting Pty Ltd and he had been engaged by solicitors acting on behalf of the defendants to provide an opinion of the probable cause of the accident that occurred in February 2005 at the Rhodes site. Mr Wyatt had provided a draft report and a final report and had also considered an engineering report prepared by Mr Chris Turner from WorkCover. In the executive's summary, Mr Wyatt stated:
I have undertaken a detailed structural engineering review of the incident, including computer modelling. These calculations provide results generally consistent with the material made available relating to the incident.