Inspector Alwyn Piggott v CSR Emoleum Services Pty Ltd - [2003] NSWIRComm 282 - NSWIRComm 1992 case summary — Zoe

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Inspector Alwyn Piggott v CSR Emoleum Services Pty Ltd

[2003] NSWIRComm 282

Industrial Relations Commission (NSW)|1992-06-30|Before: Haylen J, Peterson J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Haylen J, Peterson J, Mr J

Source

Original judgment source is linked above.

Judgment (247 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Alwyn Piggott v CSR Emoleum Services Pty Ltd [2003] NSWIRComm 282 PROSECUTOR: Inspector Piggott PARTIES : DEFENDANT: CSR Emoleum Services Pty Ltd. FILE NUMBER: IRC 1711 of of 2001 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 1983 - s 16(1) - defendant wholly owned subsidiary of a partnership entity - secondment arrangement for defendant to provide employees for the purposes of the partnership venture - defendant employer of persons provided to partnership - nature of the defendant's undertaking - whether defendant's undertaking no more than provision of labour to partnership - consideration of entire partnership agreement shows defendant intertwined with business of partnership - undertaking of defendant included management of contract to refurbish partnership plant and responsibility for occupational health and safety at the plant during refurbishment probject - "place of work" - defendant's place of work held to be the partnership's plant - defendant's failure to maintain a safe system of work in operating a conveyor system - conveyor left unguarded while operational during process to clear blockages - failure to isolate electric motors running conveyor during clearance of blockage - failure to provide appropriate and effective supervision of clearing task - s 53 defence not made out - offence proved

[41]

35 Mr Johnson said that as project manager he was the CSR Emoleum Services Pty Ltd person responsible for ensuring contractor compliance with occupational health and safety requirements prior to and at the time of the accident on 5 March 1999. 36 During the interview, the Inspector drew Mr Johnson's attention to the CSR Emoleum Road Services documents entitled "The requirements for contractors and contracting labour working on the premises of CSR Emoleum Road Services" where the following was stated: CSRE has the responsibility for the safety of all who enter CSRE premises. CSRE also has the responsibility for the environmental peace of all site activities. Therefore contractors are required to allow authorised CSRE employees to inspect, intervene or provide instructions regarding contractor site activities where necessary, where occupational health and safety or environmental issues are involved. These employees may also conduct random inspections to ensure contractor compliance with all relevant occupational health and safety and environmental legislation, codes of practice and standards (both for CSRE and external standards). On all such occasions, the contractor will agree to comply with the authorised CSRE employee directives. Failure to do so could result in the direction to stop work or the termination of the contract. In relation to this requirement, Mr Johnson said the responsibility for safety of those entering CSR Emoleum premises extended to Mr Nolan. Mr Johnson also accepted that his occupational health and safety responsibilities extended to ensure that contractors complied with the document entitled "WI-037A Isolation of equipment (lock out/danger tag)". Further, during the contract he had exercised the rights to inspect, intervene or provide instructions regarding contractor activities in the course of the asphalt plant installation prior to the accident on 5 March 1999. He had done so in relation to incidents that were reported to him. Mr Johnson accepted that, at the time of the accident, he had the authority to intervene with regard to occupational health and safety issues.

[56]

51 Mr Johnson was then shown a number of documents from his personal file which he was able to identify and verify. A selection of those documents showed the following: (a) Mr Johnson's letter of resignation from CSR Limited/Emoleum Pty Ltd effective 31 July 1996; (b) a record of bonus payments payable to Mr Johnson on a document headed "CSR Emoleum Road Services"; (c) a termination and redundancy calculation sheet on a document headed "CSR Emoleum Road Services". This document showed rates for the final payout for Mr Johnson and was signed by Mr Mylvaganam as "Eastern region manager" in December 2000; (d) an acknowledgment of termination of services from CSR Emoleum Services Pty Ltd dated 8 December 2000; (e) a document headed "CSR Construction Materials" dated 22 August 1996 advising Mr Johnson he had been "transferred to CSR Services Pty Ltd", with a record of leave entitlements transferred to CSR Services Pty Ltd; (f) a document covering the period July 1996 to May 1997 evaluating the performance of Mr Johnson as "production manager" at Rosehill on a document with the heading "CSR Emoleum Services" in the left hand corner; (g) a performance discussion document covering the period 1 January 1998 to 31 December 1998 headed "CSR Emoleum Road Services" with a review being carried out by Mr Mylvaganam; (h) a document headed "CSR Emoleum Road Services" being a memorandum from Mr Pynor dated 8 July 1998 dealing with the 1998 salary review for Mr Johnson; (i) a document containing information of payroll deduction in 1997 concerning the car allowance for a company vehicle for Mr Johnson carrying the heading "CSR Emoleum Road Services". A personal safety handbook with foreword which carried the heading "CSR Emoleum Road Services" had been signed by Mr Ray Fisher as Chief Executive Officer. Mr Johnson stated that Mr Fisher was the CEO of CSR Emoleum Road Services and he held this position at the time the booklet was handed out at the site. Mr Johnson also stated that, at the time he made his first statement in March 1999, Mr Pynor, his supervisor, was the Sydney business manager of CSR Emoleum Road Services Pty Ltd.

[70]

66 In relation to the persons responsible for the day to day management of occupational health and safety issues, Mr Morrison, in his letter to the Inspector, stated that the JCS site supervisor, Mr Davy, was responsible for day to day management and supervised the reporting and implementation of work safety on the site. Mr Davy's role as site supervisor was consistent with representations made by JCS during the tendering negotiations that he would supervise, delegate and be responsible for the qualified personnel and the work safety inspectors in the JCS project team. In addition, Mr Davy received work safety induction training on 1 October 1998: he reported to Mr Johnson if there were incidents involving an assessed occupational health and safety risk. Mr Morrison stated that the supervisory role of Mr Davy in relation to occupational health and safety issues were both contractually and operationally responsibilities of JCS through the involvement of Mr Davy. JCS provided the sub-contactors and was directly responsible for their supervision, instruction and training in relation to work safety issues. Mr Morrison, in his letter to Inspector Piggott, continued: In addition, our companies' involvement in the day to day management of O H & S issues related to determining which systems/standards were relevant to the site, consulting with JCS and its safety managers in relation to implementation of safe working practices, and on going review of how the O H & S issues were being managed and monitored. Throughout this letter, Mr Morrison made frequent reference to "our company" but did not specifically identify that company in the correspondence. In cross-examination, Mr Morrison's attention was drawn to the letters he had written to Inspector Piggott in March 1999 and June 2000, enclosing a number of documents including the contract agreement and the site rules. These letters were on CSR Emoleum Road Services letterhead and signed by Mr Morrison as E H & S manager. Mr Morrison said that at 5 March 1999 he was the E H & S manager for Road Services and the duties he performed were carried out for Road Services. The "Eastern Region" was a reference to the eastern region of CSR Emoleum Road Services.

[159]

159 The evidence demonstrated that the following procedure was used in the process of clearing both conveyors H1 and T1 on the day in question: (a) the conveyor was isolated in the control room and an isolation switch located in the near vicinity of the conveyor was turned to the "off" position; (b) a cover which securely guarded the internal parts of the conveyor was removed so as to expose a portion of the conveyor and enable access to and clearance of the built-up asphalt; (c) Mr Clarke and Mr Jedra (and, in the case of conveyor H1, Mr Nolan) manually cleared the conveyor of the blockage by shovelling the asphalt product from the exposed portion of the conveyor; (d) once it was considered that sufficient product had been removed, the conveyor was operated in forward and reverse directions in order to finally clear the blockage; (e) in order for the conveyor to operate either forward or in reverse, the following process was adopted: (i) Mr Johnson was positioned above the conveyors and used a mobile telephone to communicate with Mr How that the conveyor was ready to be put into operation; (ii) Mr How was located approximately 30 metres away in the control room at ground level. Mr How conveyed the instructions from Mr Johnson to Mr DeBoick who was supervised by Mr Hillier in the adjacent switch room. Mr DeBoick caused the polarity of the conveyor drive motor to change depending on whether the instruction was to operate the conveyor in the forward or the reverse direction; (iii) the switch, located on or near the vicinity of the conveyor that previously isolated the conveyor, was switched to the "on" position; (iv) Mr Johnson called out "All clear" and notified Mr How that everybody was clear of the conveyor; (v) Mr How relayed the communication to Mr Day (a person who was employed by Klydine Pty Ltd which was supplying computer software to control the plant). Mr Day was positioned in the control room and operated a computer that ultimately caused the relevant conveyor to operate. To cause a conveyor to operate, Mr Day sat at a console keyboard with a monitor in front of him. With the computer system switched to manual mode, displays on the console screen depicted various pieces of plant including conveyors H1 and T1. Boxes beneath these displays contain letters of the keyboard. The computer control system was configured so that the letters displayed corresponded with the top row of the computer keyboard. The letter "R" represented conveyor T1 and the letter "T" represented conveyor H1. To cause the operation of a particular conveyor the letter on the keyboard corresponding to that letter displayed on the monitor was selected. A window appeared on the monitor incorporating a message relating to the starting of the particular conveyor and "yes/no" in boxes with default to the "Yes" box. Striking the "enter" key would start the particular conveyor. To stop the particular conveyor, the corresponding letter was again selected, the window again appeared with a message relating to stopping the conveyor with "Yes/No" boxes and default to "Yes". Striking the "enter" key would stop the conveyor. (vi) prior to Mr Day ultimately causing a conveyor to operate, he would sound the warning signal. The horn was located some 50 to 60 metres from where Mr Johnson, Mr Nolan, Mr Clarke and Mr Jedra were situated at the top of the asphalt plant cleaning the blockages.

[197]

198 In relation to the contract or agreement to upgrade the plant at Rosehill, that agreement or contract was between the partnership and JCS. The contract appointed the superintendent of the contract as the Sydney business manager CSR Emoleum Road Services. This person was identified as Mr Pynor. The evidence disclosed that Mr Johnson acted as his representative. It was pointed out that the defendant was not a party to this contract. It was not a party identified within that contract as having any obligation, duty or role in the managing of the contract, controlling the works as required by the parties to the contract, or accepting the overall conduct of any responsibility for occupational health and safety issues. It was submitted that the documentation indicated a contrary position because the obligations for these issues were governed by the contract itself. Further, the secondment agreement contained no provisions for the defendant to provide the partnership with services as alleged by the prosecutor. 199 The proper relationship between the defendant and the partnership was further demonstrated by the following matters: (a) the partnership carried on its undertaking under the terms of the partnership agreement by having the premises at Rosehill licensed to the partnership. The partnership had acquired the license of that premises; (b) the plant was owned by CSR Emoleum Road Services. Mr Peter Trimble had given a record of interview to Inspector Piggott, identifying himself as chief financial officer of the construction and materials division of CSR Ltd, general manager of the Melbourne CSR Readymix business and a director of CSR Emoleum Services Pty Ltd. Mr Trimble stated that, on 5 March 1999, the site at Gate 1 Unwin Street Rosehill was owned by CSR Ltd and the plant and equipment on the site at that date was owned by CSR Emoleum Road Services. To the best of his knowledge, CSR Emoleum Road Services was the occupier of the premises at Rosehill on that date. He confirmed that Mr Mylvaganam was an employee of CSR Emoleum Services Pty Ltd. In relation to Mr Mylvaganam signing the contract agreement between CSR Emoleum Road Services and JCS, Mr Trimble said that CSRE had limits of authority by which employees of CSR Emoleum Services Pty Ltd who were seconded could sign certain documents, and he could only assume the nature of the contract fell within the levels of Mr Mylvaganam's authority. Mr Trimble said that CSR Emoleum Services did not have a safety committee but that CSR Emoleum Road Services, to whom the employees were seconded, did have such a committee. CSR Emoleum Services, to his knowledge, did not have a safety policy but it was his understanding that CSR Emoleum Road Services, to whom the employees were seconded, did have such a policy. CSR Emoleum Services did not monitor the effectiveness of the safety policy but he understood that CSR Emoleum Road Services did so; (c) the personnel file of Mr Johnson indicated that, after his secondment, he was under the instruction and direction of the partnership committee. Performance, discussions, self-assessment, payroll deductions and notifications, salary reviews, termination and redundancy calculations were all conducted by, authorised by or carried out by the partnership. The partnership committee had power to terminate if it was dissatisfied with his performance. It was submitted that these matters could only be relevant to the assessment of Mr Johnson's performance on behalf of the partnership in their business undertaking - none of it could be relevant to the defendant; (f) Mr Morrison stated that he was performing his duties for and on behalf of a partnership whilst acknowledging his employment was with the defendant; (g) the financial records and directors' declarations that were in evidence indicated that the defendant seconded its employees to the partnership. This document also showed that the defendant's sole source of revenue was its receipts from the partnership. These funds were dispersed in their entirety to the satisfaction of its employees' wages and related costs. The defendant was paid no money for the provision of a service as alleged by the prosecutor. In addition, there were a number of documents identifying the partnership undertaking and its requirements. Some documents nominated seconded employees to partnership positions for the purposes of the partnership undertaking; (h) there were documents which indicated that the occupier/owner of the premises at Unwin Street Rosehill was the partnership.

[240]

244 In relation to the system of isolation employed on the day, there was some inconsistency and confusion in the evidence. Mr Hillier stated that the lock out procedure would not necessarily be performed in the control room and that the control room operator was informed not to start the conveyor unless told to do so by the crew working on the silos. The lock out procedure was performed at the conveyor. Mr Davidson, the electrician, said that he did not isolate conveyor H1 when the blockage was cleared, as he was some distance from the isolation switch. Mr Davidson was present, presumably as a result of the agreement between Mr How and Mr Johnson that an electrician should be present on the silos to perform the isolation task. Mr Clarke said that during the clearing task the isolator was turned off by either himself or Mr Nolan - he could not recall precisely who turned off conveyor H1. After conveyor H1 was cleared and work commenced on conveyor T1, he could not recall if the isolator switch on H1 was "on" or "off". Mr Clarke said that the electrician Jim (Davidson) isolated conveyor T1 while Mr Clarke, Mr Jedra and Mr Nolan had operated the isolation switch for conveyor H1 (a task Mr Jedra denied performing). Mr Clarke could not remember if they were taking turns in isolating conveyor H1. At the time of the accident, Mr Clarke thought he had turned off conveyor H1 to stop it, but he could not be sure that it had not been turned off from the control room although he gave the impression that he believed he was responsible for turning off the conveyor. Mr DeBoick, who was in the control room, stated that after the blockage was cleared he did not isolate the circuit breaker for conveyor H1 before work commenced on conveyor T1. Mr How, however, said that after H1 was cleared "We switched it off at the control panel". The "we" he referred to clearly did not include Mr DeBoick and suggests that someone else in the team had performed that task. It will be remembered that Mr Hillier said that isolation was not necessarily performed in the control room.

[244]

248 I also agree with the submission for the prosecutor that it is not necessary to establish precisely how conveyor H1 commenced after work on it had ceased and whether or not it started at the same time as conveyor T1 or at some time thereafter. The surrounding circumstances which allowed work to continue with the cover off conveyor H1 and Mr Nolan sitting near the opening into the conveyor which was then operational establish the offence as particularised in these respects by the prosecutor. 249 In relation to the lack of appropriate supervision, it is clear from his nominated role that Mr Johnson was the person on site in overall control of the operation. It will be remembered that he was responsible, with the assistance of Mr Morrison, for establishing the working rules for the site and he undertook the induction of contractors and sub-contractors before they commenced work on the site. When Mr Johnson involved himself in assisting the task of unblocking the conveyors he was, by his very position, supervising that operation and it was quite natural for those working at the silos to look to him for advice and direction. In that role, he was not merely a disinterested observer nor was he merely there to perform some minor task. On his own evidence, he became involved in the clearing work because of what he regarded as an inadequate system of communication between the silo and the control room in what was obviously a dangerous task. This was observed by Mr Jedra, Mr McFaddin and Mr How, who all formed the view that Mr Johnson was in charge of the clearing operation. Mr Johnson did not provide appropriate or effective supervision although that was his role. The defendant is not able to avoid this conclusion by pointing to other levels of supervision available at the site provided by other entities: nor is it a matter of having to provide additional levels of supervision. The prosecutor has therefore made out that part of the charge relating to a lack of proper supervision leading to the risk as particularised.