Inspector Charles v Wollondilly Mobile Engineering Pty Ltd

Corporations Act 2001 (Cth) LEGISLATION CITED: Criminal Procedure Act 1986 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001

CASES CITED: Inspector Charles v Penrose Pine Products Pty Ltd [2010] NSWIRComm 186

Mr R Reitano of counsel (Prosecutor) LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales

INSPECTOR STEVE CHARLES v WOLLONDILLY MOBILE ENGINEERING PTY LTD

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

INSPECTOR STEVE CHARLES v WOLLONDILLY MOBILE ENGINEERING PTY LTD

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 On 11 June 2010, this matter proceeded ex parte. Mr R Reitano of counsel appeared for Inspector Steve Charles. Counsel asked the Court to defer determining this matter until judgment had been delivered in respect of a related prosecution of Penrose Pine Products Pty Ltd ("Penrose Pine") in which that defendant had entered a plea of guilty. Sentencing occurred on 16 December 2010: Inspector Charles v Penrose Pine Products Pty Ltd [2010] NSWIRComm 186. 2 In these proceedings Wollondilly Mobile Engineering Pty Ltd (In Liq) ("the defendant") has been charged with offences pursuant to s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 ("the OHS Act"). These sections relevantly provide: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 3 The offence under s 8(1) was that the defendant: ... a corporation whose registered office was located at, 127 Remembrance Drive, Tahmoor in the State of New South Wales, being an employer [and since 15 February 2010 c/- Peter A Amos, liquidator, of Amos Insolvency Pty Ltd [ACN 134 425 997] whose address is 25/185 Airds Road, Leumeah in the State of New South Wales], on 22 March 2007, at 1 Forestry Road, Penrose in the State of New South Wales ("the site") FAILED TO ensure the health, safety and welfare at work of all its employees, in particular Benjamin Pendergast ("Pendergast") and Jarrad Thornton ("Thornton"), contrary to section 8(1) of the Occupational Health and Safety Act 2000. 4 The s 8(2) offence was that the defendant: ... a corporation whose registered office was located at, 127 Remembrance Drive, Tahmoor in the State of New South Wales, being an employer [and since 15 February 2010 c/- Peter A Amos, liquidator, of Amos Insolvency Pty Ltd [ACN 134 425 997] whose address is 25/185 Airds Road, Leumeah in the State of New South Wales], on 22 March 2007, at 1 Forestry Road, Penrose in the State of New South Wales ("the site") FAILED by its acts or omissions particularised below to ensure that people other than its employees, in particular Stanley Battersby ("Battersby"), were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. 5 The particulars of the s 8(1) charge were: (a) The risk to the health and safety of Pendergast and Thornton was the risk of injury or death from fire and/or explosion created by the conduct of "hot work" (work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment) on or about the wood shavings storage bin at the site, including the risk of injury or death sustained in the course of responding to such fire and attempting to escape any such fire and/or explosion.

(b) The defendant failed to have in place a safe work method statement that set out the procedure required for undertaking hot work on or near the shavings bin.

(c) The defendant failed to provide and maintain a permit system as prescribed by Australian Standard 1674.1 - 1997 Safety in welding and allied processes in relation to the conduct of hot work.

(d) The defendant failed to undertake a risk assessment that identified the risk and the means of controlling the risk in relation to the conduct of hot work at the site, including hot work on or about the wood shavings storage bin.

(e) The defendant permitted Pendergast and Thornton to conduct work on the wood shavings storage bin in circumstances when its contents had not been emptied and the exhaust fan used for the extraction of shavings and saw dust from the moulding machine was operational.

(f) The defendant failed to instruct and train Pendergast and Thornton in relation to: i. hot work procedures, including the operation of a hot work permit system as prescribed by Australian Standard 1674.1 - 1997 Safety in welding and allied processes, at the site.

ii. emergency procedures in relation to the wood shavings storage bin.

(g) The defendant failed to provide and maintain emergency procedures for people working at the site, in particular emergency procedures in relation to an outbreak of fire in the wood shavings storage bin. (h) The defendant failed to ensure that there was a fire sprinkler system or other fire extinguishing means available on and near the wood shavings storage bin.

As a result of the abovementioned failures, Benjamin Pendergast and Jarrad Thornton were placed at risk of injury and Benjamin Pendergast was fatally injured. 6 The particulars in respect of the s 8(2) charge were in similar terms to the particulars set out above, except that they related to persons other than employees of the defendant and in particular, Mr Stanley Battersby, who was employed by Penrose Pine, a corporation conducting a business at 1 Forestry Road, Penrose, which involved the manufacture of radiata pine timber products. 7 The proceedings against the defendant were commenced on 17 March 2009, when the prosecutor filed applications for order with the Court. The orders were made by Haylen J on 18 March 2009 and issued on that day. The matters came before the Court on a number of occasions. On 22 October 2009, the defendant entered pleas of not guilty in respect of each of the charges. The matters were listed for trial for two weeks commencing 3 May 2010. Subsequently, the defendant was placed in voluntary liquidation. Amos Insolvency, Chartered Accountants and Insolvency Specialists advised that they were appointed liquidator on 25 February 2010 at a meeting of the defendant's members held on that day. The liquidator advised that pursuant to s 500(2) of the Corporations Act 2001 (Cth) ("Corporations Act"), following the passing of the resolution for voluntary winding up, no action or other civil proceedings was to be proceeded with or commenced against the company, except by leave of the Court. The liquidator advised that there is presently insufficient property available to be realised in the liquidation. Accordingly, pursuant to s 545 of the Corporations Act, the liquidator was unable to represent the company in respect of these proceedings. 8 The prosecutor sought to proceed ex parte. Section 250(a) of the Criminal Procedure Act 1986 provides: 250 Procedure where accused person does not obey order to appear If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person: (a) proceed to hear and determine the matter in the absence of the accused person, ... ...

9 I propose to deal with the offences before me on an ex parte basis. 10 At the commencement of the proceedings, Mr Reitano sought leave to file in Court amended applications for order, copies of which were served on the liquidator on 10 June 2010. In order for me to find the offences proved with respect to the defendant, I need to be satisfied in respect of the s 8(1) charge that: (i) the defendant was served;

(ii) the defendant was an employer at the time of the alleged breach; (iii) there was a risk to the health, safety or welfare of the defendant's employees; (iv) there was a causal nexus between the defendant's alleged breach and the risk to the employees' health, safety or welfare; and (v) the risk was to the employees. 11 In respect of the s 8(2) charge, the legal elements of the charge are as follows: (i) the defendant was an employer at the time of the alleged breach; (ii) there was a risk to the health, safety or welfare of persons other than the employees of the employer; (iii) there was a causal nexus between the defendant's alleged breach and the risk to the employees not employed by the defendant and the risks to the health, safety or welfare; and (iv) the risk was to persons other than the employees of the employer arising out of the conduct of the employer's undertaking while they were at the employer's place of work. 12 In establishing the offence charged against the defendant relevant to the matters which I have to determine, counsel for the prosecutor tendered the following: (i) the prosecutor's statement of facts in each of the matters; and (ii) the prosecutor's brief served on the defendant. 13 The evidentiary material disclosed that Penrose Pine operated a sawmill. Included on the site was a shavings storage bin which was used to store the shavings of timber products. The defendant is an engineering firm that conducted maintenance at Penrose Pine. It had a long term (in excess of 10 years) ongoing commercial relationship with Penrose Pine performing various construction and maintenance tasks at the site. 14 Mr Benjamin Pendergast, a qualified boilermaker, had been employed by the defendant since August 2002. He was the defendant's supervisor at the site and aged 22 years. Mr Jarrad Thornton had been employed since February 2007 by the defendant. He was a second year apprentice boilermaker and aged 17 years. 15 On 22 March 2007, the defendant had at least four jobs in progress at the site. One of the jobs involved extending a platform/walkway and handrails on the shavings bin. This job required preparatory work for a wider project of installing a second access door to a filtration unit on top of the shavings bin. Each of these jobs required the performance of tasks that included welding and the operation of angle grinders. 16 Mr Pendergast and Mr Thornton spent about one and a half hours cleaning sawdust from the top of the shavings bin before commencing to operate an electrical powered angle grinder to remove the existing handrail. After cleaning sawdust from the top of the shavings bin, they descended from the bin and had a discussion with Mr Greg Blackburn, a self employed occupational health and safety consultant engaged by the defendant to conduct safety audits of its employees at the site and other locations. 17 Mr Blackburn observed that the employees were wearing safety harnesses and noted the need to ensure that the work area was wet in order to prevent fires and to have a fire extinguisher with them. During his discussions with Mr Pendergast and Mr Thornton, Mr Blackburn became aware that no safe work method statement ("SWMS") existed for the work being undertaken by them on the shavings bin and that no documented risk assessment had been performed. 18 Mr Blackburn did not inform Mr Pendergast that the work on the shavings bin should not proceed until a SWMS was implemented. He indicated that he would go back to his office to prepare one. After leaving the site, Mr Blackburn did not return to his office but proceeded to conduct an inspection at another location. Mr Blackburn prepared a SWMS on 24 April 2007 in response to an improvement notice issued by the WorkCover Authority of New South Wales ("WorkCover") on the defendant. He was also aware that the defendant did not have a hot-work permit system as he had previously been asked to implement one but had not done so. Mr Blackburn did not identify any issues of major concern to him at the site on 22 March 2007. 19 Mr Pendergast and Mr Thornton continued work on the shavings bin. Mr Pendergast operated an electrically-powered angle grinder to remove the existing handrail. Metal was cut and welded at ground level and transported to the top of the shavings bin. Subsequently, Mr Pendergast operated an electric arc welder (with an output of 140 amps) on the top of the shavings bin for approximately one hour performing welding tasks associated with the work being undertaken. It was at about this time that Mr Pengergast and Mr Thornton smelt smoke. Mr Pendergast used a water fire extinguisher, spraying initially underneath gaps in the roof of the shavings bin and then along the roof as the smoke increased. Mr Pendergast asked Mr Thornton to descend for the purpose of seeking assistance from Mr Stanley Battersby, who was employed by Penrose Pine as a leading hand. He had supervisory responsibilities for the entire site and had worked for Penrose Pine for about 18 years. Mr Pendergast also asked Mr Thornton to have Mr Battersby open the door to the shavings bin so that they could investigate the fire. 20 Mr Battersby attended the shavings bin and climbed to the lower platform where he operated the hydraulic controls to open one of the shavings bin's doors. When the shavings bin door opened, a fireball engulfed the shavings bin. Mr Pendergast, who had begun to descend with welding equipment from the top of the shavings bin, was on the upper platform. He was surrounded by flames. He jumped from the upper platform to the ground, a distance of approximately nine metres, and received fatal head and chest injuries. Mr Battersby received burn injuries as a result of the fire and was unable to return to normal duties for a period of three months. 21 The factual background is taken from records of interview of Messrs Thornton, Blackburn and Battersby with WorkCover. 22 Immediately before the fire, the shavings bin contained a large quantity of radiata pine shavings. Inspector Charles stated that radiata pine shavings are a well-known fire hazard in a timber mill and hot-work involves electrical welding, cutting and grinding. These processes produce hot particles, sparks and hot surfaces and are a common cause of ignition for industrial fires and explosions. Inspector Charles obtained expert opinion during the course of his investigation which indicated that hot sparks or molten metal from the grinding and welding work were the likely cause of the initial fire within the shavings bin. The material ignited may have been within the shavings bin, or, alternatively, may have been on the roof of the shavings bin and have subsequently fallen and ignited other material within the shavings bin. 23 Further, expert evidence indicated that the conditions within the shavings bin were conducive to the rapid spread of fire across the surface layer of the shavings. This was due to the turbulence caused by the operating extraction fan and the low bolt density of the shavings resulting in an enhanced availability of oxygen to sustain combustion. 24 The opening of the shavings bin doors by Mr Battersby allowed shavings to fall to the ground, in the process greatly increasing the degree of mixing between burning shavings, unburnt shavings and oxygen in the air. It was these conditions which resulted in an eruption of flame in the fireball that engulfed Mr Pendergast. Whilst the work was being carried out, a screw auger powered by an electric motor located on the upper platform was not in use and therefore can be eliminated as a cause of the fire. 25 The evidentiary material further discloses that Penrose Pine had never been shown any risk assessment or SWMS by the defendant in respect of work being conducted by it at the site on 22 March 2007. No documented risk assessment/job safety analysis was conducted for the work on the shavings bin. Neither Mr Pendergast or Mr Thornton undertook a risk assessment before commencing work on the shavings bin. Mr Battersby did not review with Mr Pendergast or any other personnel of the defendant, the safety aspects of the work to be performed at the site on 22 March 2007. The defendant did not have a hot-work safety procedure document. 26 Mr Battersby was aware that the defendant's personnel were working at the site and also what work Mr Pendergast would be performing. However, he was unaware that hot-work was being carried out on the shavings bin and had not been informed that such work was going to be conducted. Mr Pendergast and Mr Thornton were not provided with any documented risk assessment or SWMS. No "toolbox" meeting was held in relation to the work on the shavings bin. 27 Mr Thornton was unaware of any hot-work procedure for the conduct of work on the shavings bin. The defendant had not instructed Mr Pendergast to perform hot-work on the shavings bin unless it had been emptied. Mr Pendergast received no training in hot-work safety procedures from the defendant. Penrose Pine had not issued any written direction that work was not to take place on the shavings bin while the moulder and its extraction system were in operation. 28 Mr Reitano relied upon Australian Standard 1674.1 - 1997 Safety in welding and allied processes. This Standard specifies precautions to be taken during hot-work to prevent the possibility of fire or explosion which may result in harm to persons or property. The Standard identifies sawmills and woodworking plants as hazardous areas in which, among other things, combustible dust or other flammable or explosive substances may be present. 29 "Section 2 General Precautions" of the Standard states: Off Cuts and Electrode Stubs Before any hot work commences, arrangements shall be made to prevent any work off-cuts, hot metal, slag or electrode stubs from lodging in places where there is any possibility of starting a fire. Timber Where any hot work is to be carried out adjacent to or above timber, the timber shall be protected, by wetting or other suitable means, from the direct heat of any flame or arc and from sparks, slag and hot metal particles. 30 "Section 3 Fire Protection" of the Standard states: NOTE: Fires can be caused in locations remote from the actual working area by sparks or hot slag from hot-work operations or by transfer through metal walls or bulkheads. 31 Appendix A to AS 1674.1 - 1997 entitled "Guidelines for Hot Work" states: Hot-Work Area The area within radius of 15m from the point where the hot work is to be undertaken, including the space above and below that area, should be made safe by various techniques, preparation and testing, to ensure that any risk of fire or explosion resulting from the hot work is eliminated. 32 AS 1674.1 - 1997 prescribes the implementation of a permit system controlling the conduct of hot work. 33 Appendix B to AS 1674.1 - 1997 produces a precedent permit which requires various multiple sign-offs. One such sign-off is to be from the person in charge of the location where the hot work is to be performed. 34 Appendix B to AS 1674.1 - 1997 requires responses to the following questions: ... 6.2 Have combustible materials been removed from the work area or made safe ? ... 6.14 Has product movement been stopped in the area of hot work ? 35 The defendant did not have any such system in place. 36 Clause 62 of the Occupational Health and Safety Regulation 2001 ("the Regulation") provides: (1) An employer must ensure that risks associated with fire or explosion at a place of work are controlled by: ... (b) eliminating potential ignition sources, including naked flame, hot work and electrical equipment, and sources of static electricity, including friction, welding and slipping belts, from proximity to flammable substances, combustible dusts or waste materials, and ... (d) removing waste materials and accumulated dust on a regular basis, and ... (f) any other measures necessary to control the risks. ... 37 Clause 209 and cl 227 of the Regulation together operate to define the work performed by Mr Pendergast and Mr Thornton on the shavings bin as "high risk" so as to require that the defendant prepare a SWMS before the commencement of such work. 38 Included in the prosecutor's brief was a response by Mr Michael Turner, a director of the defendant, to a s 62 notice served on the defendant by WorkCover. This letter was dated 26 July 2007. It relevantly stated "We can provide you with more information about our safety policy and our regular safety meetings and other SWMS and tool box talks etc, of which Ben [Pendergast] and our other employees have been involved in. Please advise if you would like more information." Among the documents provided with this letter was a document dated 26 July 2007 which relevantly provided the following information: (i) a formal written risk assessment was not completed on the [sic] 22nd March 2007 at Penrose Pine Products; (ii) a formal written hot work risk assessment was not completed at Penrose Pine Products on the [sic] 22nd March 2007; (iii) a written hot work permit and/checklist was not completed on the [sic] 22nd March 2007 at Penrose Pine Products; (iv) a verbal risk assessment was conducted in discussions between Ben [Pendergast] and Greg Blackburn prior commencement of works on the shavings bin at Penrose Pine Products: Please refer to site report; (v) an assessment of hot works risks were discussed between Greg Blackburn and Ben [Pendergast] prior to the hot work conducted on the shavings bin on the [sic] 22nd March 2007: Please refer to site report. 39 In his record of interview, Mr Blackburn contends that there was a written risk assessment. What Mr Blackburn described as the site report was a letter forwarded to Mr Turner dated 22 March 2007. Relevantly, what I will describe as the site report stated: As requested by you I attended two work sites where your employees were working this morning. The purpose of these visits was to follow up previous Occupational Health and Safety training given at regular toolbox meetings. The visit format decided upon was to observe your employees performing their duties in order to establish correct safety precautions and procedures were being followed, then to speak with those employees to discuss the observations made. The first site I visited was located at Penrose NSW, on the site of a forest product processing facility. Wollondilly Mobile Engineering was tasked with making an opening in the end of a building, modifying some internal steelwork, and the erection of a handrail around the perimeter of a large sawdust hopper. I arrived on site at 8:00am and went to the office of the site owner and advised them of the purpose of my visit and asked direction to where the WME personnel were working. I also sought advice about any specific requirement of me whilst on site. I was issued with a safety vest and shown the 2 areas the WME staff were working. Whilst being shown where the WME staff were working I commented to the accompanying site owner's employee that I could see 2 of the WME employees working at near the top of the sawdust hopper, and that it was comforting to see they were both wearing appropriate harnesses, and that as they moved around they correctly relocated their harness anchor point. We further discussed the difficulties inherent in working in a harness. We observed the two men working in this way for several minutes. They appeared to be preparing their work area by cleaning excess sawdust from the area. These two workers on the hopper were Jarrod [sic] and Ben. I then moved to another area to observe Paul and Tom performing their duties in a nearby large shed. Paul was preparing and performing some welding on a beam located about two metres above the ground. Tom was handing Paul various tools as Paul required them. Paul was working from the bottom two rungs of an aluminium step ladder. Paul was wearing appropriate PPE to perform his tasks. ... The above conversation took place in view of Ben and Jarrod [sic] who could see us talking. They came down from the tower to speak to me. I explained to Ben what the purpose of my visit was, and enquired about what tasks he was doing on the hopper. Ben explained that he and Jarrad had been cleaning debris (shavings and sawdust) from the area in which they were going to continue working. Ben explained to me that he intended to source a water filled fire extinguisher from Penrose Pine Products so that he could wet down the area in which he would be working in order to exclude any fire hazard. We discussed the fact that this hazard existed and that previous clean up work had taken place to eliminate this hazard, and that the intended wet down of the area would be sufficient to ensure no fire risk existed. Ben and I further discussed the safe work method statement for the job. I told Ben that Penrose Pine Product office staff could not find their copy of this document, and asked if he had a copy with him. Ben replied that he had not sighted or signed the document. Ben was unsure if this document had been prepared as WME did a lot of maintenance for PPP. I told Ben that as I was visiting the WME office later that morning, and that I would ensure that a safe work method statement would be prepared for this work in accordance with the discussion I had with the 4 WME employees that morning. I departed the site at 8:53 am and headed towards Picton and the John Holland/Allied Mills site where I arrived at 10:00am. ... 40 I find on the basis of what is set out above that discussions between Mr Blackburn and Mr Pendergast and Mr Thornton constituted a verbal risk assessment identifying a risk or hazard, that being, the need to carry out cleanup work. However the discussions overlooked other serious risks or hazards, for example, the obvious risk of carrying out welding work with the shavings storage bin being half full of sawdust shavings. Furthermore, there was no examination of the work area, of the particular risks associated with carrying out the work and no discussion of any controls which should have been in place, apart from the wetting down of the immediate area where they were working. 41 Such matters as emptying the shavings bin prior to the commencement of the hot work, thereby removing its contents as a source of potential fuel for a fire, was an obvious step. The hot work on the shavings bin could have been scheduled to be performed when the moulder and its extraction system were not in operation, thus removing the oxygen - enhancing turbulence created by the extractor fan. Cutting work could have been performed using a hacksaw rather than an angle grinder and the new handrails could have been attached by bolts or other fastenings, rather than being welded in place, thus eliminating hot work as a potential source of ignition. Upon the identification in a risk assessment of the risk of a fire, an emergency evacuation plan that provided for evacuation rather than opening the shavings bin doors, should have been implemented. 42 Included in the material relied upon by the prosecutor, was an expert report from TestSafe Australia, prepared by Mr David Pearson, Manager Fire & Explosives and Personal Protective Equipment Branch, and Mr Daniel Massey, Fire & Explosion Scientist TestSafe Australia. The report speculated that the incident may have been avoided if: 1) Accepted industry practice for conducting Hot Work in the presence of flammable materials was followed. This may have involved conducting Hot Work and fabrication at ground level away from flammable materials. 2) The Hot Work was conducted at a time when the milling operations were not running and the Bin could have been emptied of shavings. 3) It may have been possible to fabricate and attach the new walkway using bolts or similar fastenings rather than by welding. Any cutting could have been made with a hacksaw rather than an angle grinder. 43 The expert's report eliminated the following as the likely cause of the ignition in the shavings bin: (i) vehicles and plant powered by internal combustion engines;

(vii) electrical equipment. 44 After considering the range of possible sources of ignition of the wood shavings, the report concluded that the hot work conducted upon the shavings bin was the likely source of the ignition. The grinding and welding operations could easily produce the amount of heat required to ignite wood shavings. The report observed that hot work was occurring at the time that the first smoke was observed. The report concluded that "it is speculated that this tragedy may have been avoided if: (i) accepted industry practice for conducting hot work in the presence of flammable materials was followed. This may have involved conducting hot work and fabrication at ground level away from flammable materials;

(ii) the hot work was conducted at a time when the milling operations were not running and the bin could have been emptied of shavings;

(iii) it may have been possible to fabricate and attach the new walkway using bolts or similar fastenings rather than by welding. Any cutting could have been made with a hacksaw rather than an angle grinder. 45 I am satisfied that the defendant was properly served, and furthermore, that the liquidator was aware of these proceedings. On the material before me, and to which I have already referred, I am satisfied to the requisite standard that the defendant was an employer at the time of the alleged breach and that there was a risk to the health, safety or welfare of the defendant's employees and non employees at the site. Taking into account the evidence that I have referred to earlier in this judgment, I am satisfied that there is sufficient evidence to prove beyond reasonable doubt that each of the particulars as pleaded in the amended application for order have been made out. Statutory defences 46 It is appropriate that I consider the statutory defences available to the defendant. Section 28 provides: 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 47 On 22 March 2007, the defendant was performing construction and maintenance tasks at the Penrose Pine sawmill site. The work involved extending a platform/walkway and handrails on the wood shavings storage bin. The work involved the use of an angle grinder and an electric arc welder above the shavings bin which was approximately half full of shavings. The work was being undertaken by Mr Pendergast, who was the defendant's supervisor at the site, together with Mr Thornton. This was confirmed by Mr Thornton in his statement to WorkCover dated 8 May 2007. When asked if a risk assessment was carried out prior to working on the shavings bin, Mr Thornton stated that he did not know that there could have been, but he did not see anything. He said that a toolbox meeting was not carried out prior to work commencing on the shavings bin. Furthermore, he said that he was not aware of the hot work procedure set out in the Australian Standard and that he was not shown any hot work procedure that should be carried out on the shavings bin. He also said that there was no work method statement carried out prior to conducting the work on the shavings bin. 48 On the material before me, I am satisfied that it was reasonably practicable for the defendant to comply with the provisions of s 8(1) and s 8(2) of the OHS Act and that the defendant had control over the incident and that it was practicable for the defendant to take steps to avoid the incident. As the statement of Mr Thornton explains, the defendant was the employer of Mr Pendergast and Mr Thornton. Mr Pendergast was the supervisor. The defendant had obligations to ensure that the work being carried out was free of risks to safety. However, the defendant failed to undertake any risk assessment, conduct a toolbox meeting, or have in place SWMSs in relation to the work to be conducted on the shavings bin. Such SWMSs should have included separate hot work procedure requirements and a checklist for carrying out work in confined spaces. A safety manager should have visited the work site to conduct a risk assessment before the workers attended to conduct the work. 49 Given all of the above, I conclude that there is no evidence of any actions or other procedures on which the defendant is able to rely, such as to establish a defence under s 28 of the OHS Act. 50 I am satisfied that on 22 March 2007, the defendant, Wollondilly Mobile Engineering Pty Ltd, contravened s 8(1) and s 8(2) of the OHS Act in the circumstances as particularised in the amended application for order. I find the offences proven. 51 These matters are listed for a directions hearing at 9.30 am on Wednesday 22 December 2010.

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