Inspector Blume v TMP Worldwide eResourcing - [2003] NSWIRComm 37 - NSWIRComm 1997 case summary — Zoe

NSWNSWIRComm

Inspector Blume v TMP Worldwide eResourcing

[2003] NSWIRComm 37

Industrial Relations Commission (NSW)|1997-11-25|Before: Boland J, Hungerford J, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

1997-11-25

Before

Boland J, Hungerford J, Mr P

Source

Original judgment source is linked above.

Judgment (60 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Blume v TMP Worldwide eResourcing [2003] NSWIRComm 37 PROSECUTOR Inspector Ian Blume PARTIES : DEFENDANT TMP Worldwide eResourcing (Industrial Services) Pty Ltd formerly known as Labour Linq Pty Ltd FILE NUMBER: IRC 8555 of 2001 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Section 15(1) of the Occupational Health and Safety Act - Plea of guilty - Employee fatally injured when washing machines being transported by a forklift fell on him - Labour hire - Maximum penalty - Foreseeability - Steps available to avoid risk - Deterrence - Serious offence - Subjective factors including early guilty plea - Penalty imposed - Costs LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) 49 NSWLR 610, (2000) 99 IR 29 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 432 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Petar Ankucic v Drake Personnel Ltd t/as Drake Industrial (unreported, Hungerford J, IRC96/6475, 6476, 6477 and 6479, 25 November 1997) CASES CITED : Rodney Paul Dubois v Industry Staffing Services Pty Ltd t/as Action Workforce (unreported, Hungerford J, IRC97/6900, 8 February 1999) Tyler v Sydney Electricity (1993) 47 IR 1 Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Thora Sawmilling Pty Ltd (1995) 59 IR 89 WorkCover Authority of New South Wales (Inspector Ian Blume) v L G Electronics Pty Ltd [2003] NSWIRComm 34 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163 HEARING DATES: 11/26/2002 DATE OF JUDGMENT: 02/19/2003

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6 An agreed statement of facts was submitted. The statement described the incident as follows: Mr Sivasubramaniam was working at the premises on 8 February 2000. On 8 February 2000 a shipping container, which was on the back of a semi-trailer, backed up to loading dock 5 inside the premises. The shipping container had doors at the rear, which opened out. Inside the shipping container were cardboard cartons, each of which contained a washing machine. These cartons were stacked in an upright position, two (2) cartons high. No carton was attached to another carton. Each carton measured 1080 mm high by 740 mm wide by 685 mm deep. Each washing machine in the carton weighed 54 kilograms. The system employed by L G Electronics to unload the cartons from inside the container included the following: a. two (2) men moved the cartons inside the container to the rear edge of the container; b. a forklift truck ("the forklift"), which had carton clamps fitted to it ("the clamps"), was then driven onto the loading ramp. The forklift then reached into the container with the clamps and clamped eight (8) cartons in a configuration of two (2) cartons wide, two (2) cartons deep and two (2) cartons high; c. the clamps were constructed of steel and included two steel plates ("the plates") each of which measured 1188 mm high by 1202 mm wide. The plates were covered with a high friction rubber compound sheet of 8mm thickness by 1.43 square metres to assist in gripping the cartons. The plates moved together to grab the cartons. The clamps were controlled by hydraulic rams operated off the forklift's hydraulic system; d. the forklift lifted the cartons from the container using the two plates by pressure and friction; e. In lifting the eight cartons the plates were placed on either side of the cartons and clamped to a preset pressure. Friction between the load and the plates on the clamps allowed the load to be lifted as the plates were raised. In carrying out this procedure of lifting the eight (8) cartons there was a large area of contact between the plates and the surface of the four (4) cartons on the bottom level. There was a smaller area of contact between the plates and the four (4) cartons on the top level. The plates reached a height of approximately 100mm from the base of the top cartons. Each of the cartons was approximately 1080 mm high. Approximately 980 mm of the surface area of the four (4) cartons on the top level was not clamped. After clamping the eight (8) cartons as described in paragraphs 11 and 12 above the forklift then moved in reverse taking the cartons out of the container and into the premises over a ramp on the loading dock at the premises. The forklift then placed the load on the ground so that the top four (4) cartons could be partly wrapped in plastic to consolidate or secure the load. The top level cartons were wrapped approximately three quarters of the way up the cartons. The cartons were again picked up and transported by forklift and placed in their storage locations. The cartons were wrapped for employee safety and product protection. Apart from the plastic wrapping the four (4) top cartons were not tied or affixed to the bottom four (4) cartons. Whilst this procedure involving the forklift occurred, two (2) men in the container positioned another load of eight (8) cartons from the container to be taken out by the forklift into the premises. Initially and until more room was created inside the container by the removal of cartons, it was considered too dangerous to wrap the cartons in the container. However once the first 2 or 3 stacks of 8 cartons had been removed wrapping took place inside the container. At about 9.00am on 8 February 2000, the forklift, driven by Mr James Zammit, an employee of Advance Recruitment, another agency, took a group of eight (8) cartons from the container, clamped in the manner described above. The group of 8 cartons on the forklift had been set up in the container by Mr Wayne Robson and Mr John Marr, employees of L G Electronics. This was the third load of cartons removed from the container. Mr Sivasubramaniam was ready to perform his task of wrapping plastic around the top four (4) cartons. Mr Zammit said: "I picked the stack of eight up, at this stage the ramp was not raised. I reversed back over the ramp, turned the rear of the fork to my right. My intention was to place the stack alongside the previous stack so that Siva could secure the load. I commenced forward across the ramp when I saw Siva dash behind the load of washing machines". No one saw exactly what then occurred. Mr Zammit, who was driving the Forklift at the time, said: "My back wheels were still on the ramp, I had travelled approximately four feet in the forward direction. My foot was on the brake. I leaned over the right hand side of the fork to try and locate where Siva was. Unable to see him I leaned to the left of the fork. That is when I heard the noise of creaking cardboard. I looked up at the load and saw a gap appearing between the top washing machines. I sat up to the centre of the fork and that is when they fell, I heard them fall. I jumped off the fork and proceeded forward. I saw one washing machine on the side, I saw Siva on the floor and the other washing machine to the left hand side of him". After receiving treatment at the Premises in relation to head injuries, Mr Sivasubramaniam was taken to hospital. Mr Sivasubramaniam died at hospital. The work procedure that was used at the time of the accident was standard procedure for the Premises. Mr Kinchela, the defendant's then Warehouse Supervisor, confirmed that Mr Sivasubramaniam had carried out the task " many times " and " daily ". Mr Rochford, the defendant's then Warehouse Manager, said that Mr Sivasubramaniam had carried out the work on previous occasions "without incident." At the time of the accident Mr Sivasubramaniam was carrying out his duties in assisting with the unloading of the cartons of washing machines from the shipping container. His duties included assisting in getting the cartons ready to be taken out of the container by the forklift and, when the eight (8) cartons were taken out by the forklift and placed on the floor of the premises, wrapping plastic around the top four (4) cartons. The forklift was not misused at the time of the accident.

[14]

7 In relation to investigations into the incident the agreed statement said: An inspection of the forklift conducted immediately after the accident by Crown Equipment Pty Ltd indicated that there were no faults with the operation and functioning of the forklift on the day of the accident. Also an inspection of the clamps conducted immediately after the accident by Cascade Australia Pty Ltd indicated that there were no faults with the operation and functioning of the clamps on the day of the accident. On 21 November 1999, Ms Elke Small, Consultant for the defendant, had conducted a Client Safety Inspection at the premises. This site assessment was conducted using a questionnaire developed by the defendant. A copy of this document is attached and marked "A". The inspection by the defendant did not involve the observation of the specific duties or the processes to be carried out by Mr Sivasubramaniam when he was performing his employment duties at the premises for L G Electronics. In a document of the defendant headed "Labour Linq Client Profile and Safety Inspection Checklist", which was used in checking the L G Electronics' safety policy, to the question "Do you have standard operating procedures?" L G Electronics answered "No". This issue was discussed with Mr Hull, Logistics Manager for L G Electronics, by Ms Small. Ms Small states that she was advised that L G Electronics was in the process of establishing standard procedures and that the defendant would be provided with a copy of them when they were available. This did not occur prior to the accident on 8 February 2000. The defendant did not have written safety procedures dealing with the unloading of washing machines. However, Gary Hull, the defendant's then Logistics Manager, gave the following answer in response to the following question: "Was there a written procedure for the task of removing the washing machines that was being carried out at the time of the accident on 8 February 2000? There was not written procedures but there were procedures on how to safely load and unload and these were instructed to personnel who were given that task." The defendant conducted Occupational Health and Safety ("OHS") induction training with Mr Sivasubramaniam and conducted assessments of his understanding of OHS as well as his English comprehension. Mr Sivasubramaniam was required to watch a safety video and complete a questionnaire on the video, which was then marked and assessed. Mr Sivasubramaniam scored 100% in his video assessment, 17/20 in English comprehension and 17/17 for his numeracy. Employees were also advised of what should take place in the event of an accident and what were acceptable work practices on site. Once Mr Sivasubramaniam began work, Ms Small carried out a quality check by phoning both L G Electronics and Mr Sivasubramaniam to ensure both were happy with the working arrangement. Mr Hull stated that Mr Sivasubramaniam had been warned on occasions that if the product did fall not to try to save it as he would injure himself. Mr Zammit said that the safety procedure in place in unloading containers was for personnel to stand clear and that Mr Zammit and Mr Sivasubramaniam had been instructed to stand clear when the forklifts were about. There was no written instruction on the procedure. L G Electronics had a buddy system operating in regard to safety. There was no OHS committee that covered the premises at the time of the accident. No formal safety assessment had been performed on the procedure for unloading cartons of washing machines at the premises by the defendant or by L G Electronics. No formal risk assessment had been carried out to determine the possible risks associated with the use of the forklift and the clamps. The risk of the cartons of washing machines falling whilst being moved on the forklift was not formally assessed. The forklift had been purchased by L G Electronics as a new piece of machinery and the clamps were designed specifically for the purpose for which they were being used at the time of the accident.

[47]

13 In Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 432 the Full Bench dealt with the obligations of a labour hire company under the Occupational Health and Safety Act. The Full Bench stated at 455: The obligations of a labour hire company under the OH&S Act have been considered on a number of previous occasions by this Commission and its predecessors. The judgment of Hungerford J in Petar Ankucic v Drake Personnel Ltd t/as Drake Industrial (unreported, Hungerford J, IRC96/6475, 6476, 6477 and 6479, 25 November 1997) concerned a prior prosecution of the appellant. That prosecution arose from an incident in which an employee of the appellant, Mr Douglas, sustained an injury whilst operating a woodworking machine at the premises of another company, Warman International Ltd. The appellant pleaded guilty in that case and was fined a total of $25,000. Considering the question of penalty, his Honour commented (at p13-14): The failure here to ensure the safety of Mr Douglas arose in a situation where he was directed by his employer, the defendant, to perform work for a third party, Warman, at that third party's premises. In such a situation, my view is that an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned. The evidence established that the defendant did not satisfactorily attend to this aspect and it was not until Mr Davey was engaged that specially designed safety policies and procedures were implemented. But that was in July 1997, at least two years after the present offences were committed; Mr Douglas thereby suffered injury resulting in absence from employment for a period of at least two months and with a permanent deficit in the use of his right hand. It is no answer, in my view, in reduction of penalty otherwise considered appropriate for the defendant to plead reliance on Warman as the client to take appropriate steps to ensure safety in the workplace for all persons engaged at its premises. True it may be that Warman itself may have offended against the Occupational Health and Safety Act , but that does not, it seems to me, lessen the seriousness of the offences committed here by the defendant as the employer. It is that feature of this case which gives to the assessment of penalty such a degree of importance as will encourage employers in a business similar to that of the defendant to implement appropriate steps to ensure the safety of their employees whose labour is hired to third parties and at the same time to deter employers for failing to take such steps. See also Rodney Paul Dubois v Industry Staffing Services Pty Ltd t/as Action Workforce (unreported, Hungerford J, IRC97/6900, 8 February 1999). The observations of Hungerford J set out above were made in the context of determining the appropriate penalty to be imposed following a plea of guilty. However, we consider that they are equally applicable when considering the liability of a labour hire company under the OH&S Act. A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

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15 An inference in Mr Newall's submission was that because the defendant was not in control of the unloading operation and was not in a position to supervise Mr Sivasubramaniam, its level of culpability was necessarily lower than that of L G Electronics. However, I note the observation by Hungerford J quoted above that: an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned. And further, what the Full Bench said in Drake Personnel at 456 that: A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. 16 It does not seem to me that the defendant discharged its "special responsibility" in relation to Mr Sivasubramaniam. I do not accept the demarcation that the defendant sought to draw between the work of wrapping the cartons with plastic and the unloading of the cartons by forklift. In seeking to make a distinction between the tasks, the defendant contended that whilst there may have been a failure to inspect and a failure to train employees to identify the hazards associated with their work, the defendant could not have failed to inspect the work of unloading cartons by forklift and could not have failed to train employees to identify hazards associated with that work because that was not the work Mr Sivasubramaniam was asked to do. According to the agreed statement of facts, however, Mr Sivasubramaniam's work included "assisting in getting cartons ready to be taken out of the container by the forklift and, when the eight (8) cartons were taken out by the forklift and placed on the floor of the premises, wrapping plastic around the top four (4) cartons." Further, the "Client Profile and Safety Inspection Checklist" completed by the defendant's consultant in respect of L G Electronics indicated that the duties of the labour hire personnel involved "unloading containers, picking orders."

[56]

23 This question of consistency was addressed comprehensively by a Full Bench of the Commission in Court Session in Capral Aluminium Ltd v WorkCover Authority of New South Wales 49 NSWLR 610; (2000) 99 IR 29 at 56-58: 62 It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103): "Whilst the principle of parity normally operates in relation to co-offenders or a cross the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen " where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 …" 63 When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: 'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.'" 64 In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed: "In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances." 65 As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10. 66 The principle of consistency is relevant to this appeal, as it is a reflection of the notion of equal justice, a fundamental element in any rational and fair system of criminal justice. See for example R v Henry (1999) 46 NSWLR 346 at 353 where Spigelman CJ said: "12. As I indicated in Jurisic , the purpose of a guideline judgment is to foster consistency in sentencing. The importance of consistency was well expressed by Mason J in R v Lowe (1994) 154 CLR 606 at 610 - 611: 'Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.'" and see also R v Howland at 43 - 44 per Spigelman CJ.