Insp Robins v CSR Limited t/as CSR Timber Products - [2001] NSWIRComm 296 - NSWIRComm 1992 case summary — Zoe

NSWNSWIRComm

Insp Robins v CSR Limited t/as CSR Timber Products

[2001] NSWIRComm 296

Industrial Relations Commission (NSW)|1992-06-30|Before: Kavanagh J, Fisher CJ, Cullen JJ, Maidment J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Kavanagh J, Fisher CJ, Cullen JJ, Maidment J

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Insp Robins v CSR Limited t/as CSR Timber Products [2001] NSWIRComm 296 PROSECUTION: PARTIES : Insp Robins DEFENDANT: CSR Limited t/as CSR Timber Products FILE NUMBER: IRC2975 of 2000 CORAM: Kavanagh J CATCHWORDS : Prosecution under s 16(1) of the Occupational Health and Safety Act - Plea of guilty - Machine designed with safety features but a hazard not recognised and built into the work method in place - Trainee not properly supervised - team work blurs supervisory responsibility for trainee - consideration of element of deterrence relevant in circumstance LEGISLATION CITED : Occupational Health and Safety Act 1983 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Insp Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT1214 of 1990, 30 June 1992) WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 CASES CITED : WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor (1999-2000) 95 IR 383 Tyler v Sydney Electricity (1993) 47 IR 1 Haynes v James Glass Aluminium Pty Limited (unreported, Fisher CJ, CT772 of 1991, 20 May 1994 WorkCover Authority of New South Wales (Inspector Callaghan) v Saunders Construction Pty Limited (Maidment J, CT93/1062, 26 November 1993) R v Carter [2001] NSWCCA245

[9]

4 Accordingly an agreed statement outlining the facts related to the breach was tendered. It relevantly reads as follows: 3. . . . the Defendant conducted business at premises at Masonite Road, Raymond Terrace in the State of New South Wales (hereinafter referred to as "the premises") and had as its undertaking at the premises, the production of hardboard product. 4. At all material times the premises were the Defendant's place of work. 5. At all material times, the Defendant had obtained the services of workers employed by Labour Co-operative Limited ("LCL"). 6. On or about 19 June, 1998, Ms Julie Anne Lister ("Lister") an employee of LCL was requested by LCL to attend for work at the premises to be trained and to perform duties as a labourer/non trades. 7. Lister commenced work at the premises on or about 23 June 1998 and worked again on 30 June 1998 and 1 July 1998 at the premises. 8. Pursuant to an arrangement between the Defendant and LCL, LCL conducted the Defendant's Induction Program for LCL's employees who were to be working at the premises. 9. On 15 June 1998 Lister attended LCL's premises for the Defendant's Induction Program which was conducted by Mr Greg Couper, marketing representative of LCL. On 19 June 1998 Lister attended the Workcover accredited Occupational Health and Safety induction at LCL's premises, which was conducted by Greg Couper and John Dodd, marketing representatives of LCL. Neither training session highlighted the specific hazards associated with presses and/ or automated mobile plant. 10. The Defendant's document entitled "The CSR Timber Products Raymond Terrace Factory, Induction Booklet, Ne w Employee Kit, August 1996" documented the safety induction training provided to Lister on 15 June 1998. At paragraph 23 the document states "Occurrence prevention therefore relies on training people to recognise conditions which have the potential to cause injury to personnel, ie. to recognise HAZARDS and CONTROL the risks" however, the document itself, nor the training provided to Lister identified such hazards. 11. On 23 June 1998 and 30 June 1998, Lister had worked downstairs at the premises, having been trained in another area. On 1 July 1998, Lister commenced working upstairs, being trained by Mr Dennis Sands, the Defendant's Press Operator, to be a Back End Operator in the Defendant's Boardmaking Area. 12. There was no employee on behalf of the Defendant or LCL supervising Lister at the premises on the said date. In fact, the Defendant had dispensed with the position of "Supervisor" in favour of a self-managed team approach. 13. Lister had no experience in operating heavy machinery and had no qualifications related to the operation of plant. 14. At the conclusion of a 12 hour shift on 1 July 1998, Lister would have been classed by the Defendant as being fully competent to perform the duties of a Back End Operator in the Boardmaking Area. 15. The system of work relating to the "spotting up" the wet lap in the Boardmaking area was unsafe. 16. On the said date, Lister was about to "spot up" (or align) the wet lap (board) on the Number 4 Press in the Boardmaking Area when Mr Sands initiated the movement of the automated unloading rack. As Lister went to the right side of Press 4, she became trapped by the unloading rack, as it moved past Press 4. 17. In the subject incident, Lister suffered severe injuries including serious crush injury to the head, chest and trunk. The specific injuries suffered included; a severely swollen head for 1 - 2 weeks, severe bruising on her chest, three broken ribs, a crushed vocal cord, soft tissue damage to her lower arms, left hand, lower back. left hip and thigh, deep lacerations to her back, arms, left hip, leg, buttocks and a large hole on the middle of her back. 18. On 19 May 1999 an Inspector of the WorkCover Authority interviewed Mr Vaughan Wynn Kirkby, Employee Relations Manager for the Defendant. Mr Kirkby was legally authorised to speak on behalf of the Defendant. Mr Kirkby confirmed:- (i) That the Defendant occupied the premises on 1 July 1998 and owned the plant at the premises on that date. (ii) That on 1 July 1998 Lister was performing work in conjunction with the Defendant's business. (iii) That LCL supplied Lister to the Defendant as contract labour casual; (iv). That the site had adopted a self managed team approach which removed the need for a "traditional supervisor". 19. Since the date of the accident, Lister has not returned to work on a full time basis and works 3 days per week for 5 hours each day at the Blackbutt Reserve at Newcastle. 5 Mr P.M. Skinner of counsel appeared as prosecutor for the WorkCover Authority and Mr J.N. Gleeson QC with Mr M. Shume of counsel appeared for the defendant company.

[19]

16 The combination of an unskilled, untrained worker, with every good intent, stepping out of the usual place from where a task is performed, together with a design fault on one angle of a machine combined forces to cause this most serious risk to safety. Mr Gleeson QC, for the defendant, while acknowledging guilt, submits the breach could not be "foreseen". The court accepts this is not a breach, the type of which was examined by the Full Industrial Court in Insp Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT1214 of 1990, 30 June 1992) (at 9-10) where their Honours stated: There was a known and perceived danger, unchecked, and left in place. The seriousness of those errors was not open to denial and the case must be assessed on that basis. 17 However, while there was in place a significant number of safety features in the design of the work method, no risk assessment of the task had been undertaken. A defendant must ensure that persons on its site in the use of its machinery are not exposed to risks to their safe working. The fact that this employee was a trainee places a more onerous obligation on the defendant to provide such an employee with appropriate care and guidance. In WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 at 85 Hill J comments as to the obligations imposed by s15 of the Act stating: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 18 The level of culpability of this defendant must be given consideration. The court, in its assessment as to culpability, is guided by the view expressed in WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor (1999-2000) 95 IR 383 (at 437): The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services . . . and in the system of safety employed . . . Walton J, Vice-President referred to a possible unfairness (at 437): . . . that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of the contribution to an accident is not undertaken. 19 The defendant was not the employer. It had, however, an agreement with a labour hire firm, LCL, to provide it with employees and to conduct some training programmes to develop the employees' awareness of safe working. The evidence reveals the labour hire firm conducted classes directed to ensuring the employees they provided to the defendant had an awareness of general site safety standards. These training programmes were conducted by agreement with the defendant company as part of the arrangement for the provision of labour. However the training of employees in the safe performance of specific tasks was left to the defendant. The evidence revealed the person, the subject of the breach, was being trained on the job in the performance of a specific task but there was no definitive supervisory line of responsibility for that training. There was no written work method for the particular task. The job Miss Lister was performing at the time of the breach was performed within a team operation. Lines of responsibility for the training of new employees were blurred in this team arrangement.

[28]

28 A level of deterrence must be factored into consideration as to penalty. However, an appropriate penalty in the present case, must be considered in the context of the need for general deterrence. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context a consideration of breaches under the Occupational Health and Safety Act, 1983 where it was held by Hungerford J: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. These principles were recently cited by the Full Bench with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]) where it was said: the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare . . . 29 While it is submitted specific deterrence is not as relevant as the defendant has vacated the production of timber product, the principles of general deterrence are relevant. The company's industrial record must therefore be given consideration by the court. The company operates in heavy industry. It has been before the court since 1984 on 15 separate occasions and on each occasion the level of the breach determined the WorkCover Authority, through its inspectors, placed the charge before the Chief Industrial Magistrate. The level of penalty imposed for each of the prior breaches of the Act has not been severe. I find, in the circumstances, the element of deterrence can be tempered by an acknowledgment this is a safety conscious employer.

Insp Robins v CSR Limited t/as CSR Timber Products

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (11)

Cited By (2)