Inspector Childs (WorkCover Authority of New South Wales) v State of New... [2009] NSWIRComm 202 | Case summary

1 The Lake Cargelligo-Tullibigeal Water Supply Augmentation Project ("Lake Cargelligo Project") involved the construction of a 4 megalitre water reservoir some 300 metres off Uabba Street, Lake Cargelligo. The Department of Public Works and Services ("DPWS") was responsible for the management of the construction of the water reservoir, undertaking the project management role on behalf of the Department of Land and Water Conservation and the Lachlan Shire Council. The construction of the reservoir was to improve the water supply to the townships of Lake Cargelligo and Tullibigeal. On 22 October 2002, formwork had been erected to allow the pouring of a concrete roof for the reservoir. During the course of the concrete pour of the roof slab, the falsework failed and the whole of the formwork structure collapsed. With the collapse of the formwork structure, the working deck and all persons working on it fell into the reservoir. At the time of the collapse the following were performing tasks as indicated: Mr Beytell (sole office holder of BGA Pty Ltd, the principal contractor for the design and construction of the reservoir) was standing on the formwork deck directing the pour; Mr Storr (an employee of Area Concreting Pumping, the supplier of the concrete pump truck) was located on the catwalk attached to the jump form and from that position Mr Storr was operating a concrete pump that was pumping concrete on to the formwork to form the roof of the premises; Mr Abel (a labourer employed by P & B Serena) was screeding concrete on the formwork deck in accordance with Mr Beytell's instructions; Mr Craig McLeod was on the formwork operating a vibrator; Mr Oagile Malothane was on the formwork deck shovelling the concrete; and, Mr Scott Wood was on the formwork deck, acting as a linesman on the concrete pump line and directing placement of the concrete. As a result of the collapse of the formwork deck, Mr Beytell and Mr McLeod received fatal injuries. Mr Wood, Mr Abel and Mr Malothane received serious injuries. 2 Following an investigation by the WorkCover Authority of this accident, a number of prosecutions were commenced under the provisions of the Occupational Health and Safety Act 2000. One such prosecution was brought against the State of New South Wales (Department of Commerce) as the statutory successor to the DPWS. That prosecution continues against the most recent successor to that Department being the Department of Services, Technology and Administration ("DSTA"). 3 Although the Department was charged with a breach of s 8(2) of the Occupational Health and Safety Act it was also charged, in the alternative, with a breach of s 10(1) of the Act. On the first return date of the order and summons, the Department entered a plea of guilty to the alternative charge brought under s (10)(1) of the Act. The s 10(1) breach, to which the Department entered its plea of guilty, was particularised as follows: IN THE ALTERNATIVE The defendant, being a person who had control of premises which were used by the people as a place of work, namely a construction site at which a 4 megalitre water reservoir was under construction as part of the Lake Cargelligo-Tullibigeal Water Supply Augmentation Project, which site was located approximately 300 metres of Uabba Street, Lake Cargelligo in the State of New South Wales which was used by people as a place of work, in particular Anton Beytell, Craig McLeod, Michael Abel, Scott Wood, Oagile Malothane and Ralph Storr on 22 October 2002. FAILED TO ensure the premises was safe and without risks to health in circumstances in which: 1. the subject premises were not used only by the employees of the defendant; 2. the subject premises were not occupied solely as a private dwelling; and 3. the subject premises were controlled by the defendant in the course of a business or undertaking of the defendant contrary to section 10(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are as set out above with respect to alleged breach of s (2) of the Act. (a) the defendant failed to ensure that the scaffolding access tower, erected on the outside of the water reservoir at the site was safe and without risk to health; (b) the defendant failure to ensure that the concrete formwork erected on the site was safe and without risk to health; (c) the defendant failed to undertake adequate safety inspections at the site; (d) the defendant failed to undertake any safety audits at the site; (e) the defendant failed to ensure that the formwork erected with respect to the forming of the concrete roof of the reservoir was properly certified prior to the commencement of the subject concrete pour; (f) the defendant failed to properly supervise its employee, Mr Ooi, in his role as the Superintendent's Representative under the contract for the construction of the subject water reservoir; (g) the defendant failed to properly supervise Mr Ooi in his role as the project manager with respect to management of the construction of the subject water tower; (h) the defendant failed to provide proper training and instruction with respect to the superintendence of occupational health and safety to Mr Ooi in his role as the Superintendent's Representative under the contract for the construction of the subject water reservoir; (i) the defendant failed to provide training and instruction with respect to the project management of occupational health and safety to Mr Ooi in his role as the defendant's project manager with the construction of the subject water tower. As a result of the abovementioned failures, Craig McLeod, Anton Beytell, Michael Abel, Scott Wood, Oagile Malothane and Ralph Storr were placed at risk of injury and both Craig McLeod and Anthony Beytell received fatal injuries. 4 On the hearing to receive evidence and submissions on sentence, the prosector tendered a lengthy Statement of Agreed Facts being a document running to some 141 paragraphs. In view of the extensive documentation put before the Court by both parties, the Agreed Statement of Facts appears as an annexure to this judgment and allows the nature of this case to be put into context. In addition to the Agreed Statement of Facts, the prosecutor also tendered a bundle of documents contained in two lever arch folders containing some 42 individually identified documents. Those documents included the following: specifications for the Water Supply Augmentation Project; an engineering report on the formwork collapse at the site on 22 October 2002; a number of photographs taken during construction of the water reservoir following the accident; a number of documents used by the Department, including its occupational health and safety and risk management system guidelines, its safety management manual and the construction safety management procedures, together with a number of memoranda; a review of the adequacy of project occupational health and safety risk management plans, a checklist for projects over $3m, a variety of inspection circulars and guidelines and reports, including minutes of site meetings, a 29 October 2002 memorandum requiring a review of safety procedures on all building sites; the BGA Pty Ltd integrated management system and safety management plan site safety rules; the WorkCover Code of Practice for pumping concrete (1994) and formwork (1998); and, a number of Australian/New Zealand Standards being AS/NZS 4576: 1995 - Guidelines for scaffolding; AS/NZS 1576.1: 1995 - Scaffolding Part 1: General Requirements; AS/NZS 1892.5: 2000 Portable ladders - Part 5: Selection, safe use and care; and AS/NZS 3905.2: 1997 - Quality system guidelines Part 2: Guide to AS/NZ Standards ISO 9001, 9002 and 0993 for construction. The prosecutor also tendered a certificate of prior convictions showing that the present defendant (under its various titles over the years) had three previous convictions. In November 1999, the predecessor Department was found guilty of a breach of s 15(1) of the Occupational Health and Safety Act 1983 and the Chief Industrial Magistrate imposed a penalty of $1500. In November 2002, a predecessor Department was found guilty of a breach of s 16(1) of the Occupational Health and Safety Act 1983 and a fine of $119,000 was imposed by the Commission in Court Session. In 2004, a predecessor Department was found guilty of a breach of s 15(1) of the 1983 Act and a fine of $94,250 was imposed by the Commission in Court Session. 5 The evidence for the defendant was constituted by two affidavits sworn by Mr Brian Baker, Deputy Director-General, Department of Services, Technology and Administration. The first of those affidavits ran to 290 paras, covering 67 pages with the second affidavit clarifying a number of issues and running to 7 pages. At the time of giving his evidence, Mr Baker was the Acting Director-General of the Department. He spoke of his personal history and having 30 years experience as a civil engineer in the development and delivery of major infrastructure projects, including public infrastructure. He led and provided strategic direction for the Office of Public Works and Services and occupational health and safety was one of his key accountabilities. Mr Baker explained how, through various means, he was able to review safety performance and set strategic direction for safety management. This was achieved by chairing the monthly safety forum and convening monthly meetings with direct reports to review and discuss the performance of the Office in a number of areas, including occupational health and safety. The senior project manager provided monthly management information and analysis regarding occupational health and safety incidents, including near misses that involved staff or construction contractors together with an analysis of the incidents in relation to causes and trends, information about the lost time injury frequency ratio for contractors, information about audit and reviews of the Offices' safety management system and also in relation to construction contractors. There were also recommendations for improvement. The senior project manager was required to convene an executive safety committee and a safety management review and improvement team that undertook detailed operational analysis of the Offices' occupational health and safety performance. 6 Mr Baker was also a member of and received reports on a regular basis from the construction consultation committee, being a forum of New South Wales Government agencies who carry out construction work. The committee developed, implemented and promoted improved practices and standards in a streamlined approach to Government construction procurements. The reports from this committee addressed a range of matters that were relevant to the construction sector including occupational health and safety. Members of the committee, including his Office, shared information relating to contract or performance reports. Those reports were used in the tender process, especially in relation to contractors who had not previously been used. Mr Baker was directly and immediately briefed on every safety incident where staff or a construction contractor required medical treatment or involved a serious near miss. He was personally briefed about the nature of these incidents, the health of any injured person, actions that the Office was taking in response to the incidents (both immediate and systemic) and where it involved a construction contractor, the actions the contractor had taken in response to the incident. He required follow-up reports including incident reports that were to be reviewed, discussed and evaluated. Mr Baker undertook at least four site visits each year, speaking to Departmental staff on site about safety management at the site. During such visits Mr Baker personally looked for safety risks on site, specifically in relation to how the risks were being managed and if not confident about the safety of the site, would personally speak to the contractor on site. 7 The Department of Public Works was created in the 1870s and in 1995 its name was changed to the Department of Public Works and Services. Mr Baker spoke about the abolition of that Department in 2003 and how a restructure brought about the functions being performed by the Department of Commerce. In July 2009 all the branches of the Department of Commerce, including the Office of Public Works and Services, were removed from the Department of Commerce and added to the newly established Department of Services, Technology and Administration. The Department of Commerce was abolished. The Office of Public Works and Services currently employed approximately 1200 people who were involved in the planning, design and project management of the construction and maintenance of public buildings and other public infrastructure across New South Wales. Eight hundred of those employees were specifically employed in project management of infrastructure projects and the management of construction and contract. Mr Baker provided examples of major projects that the OPWS were constructing or have been involved in, nominating multi-million dollar projects in various locations including the $2.8B New South Wales Department of Education and Training "building the education revolution programme" that was funded through the Federal Government's stimulus grant. Mr Baker said that, at any one time, the Office was involved in approximately 1,000 contracts dealing with construction work and in the last 12 months the estimated dollar value of such contracts was approximately $1B. 8 Between 1980 and 2000, the staff of the OPWS was reduced from over 4,000 to just over 2,500 and the OPWS now employed approximately 1200 staff. In recent years the OPWS had increasingly focused on managing projects for clients and engaging external private sector construction contractors to undertake construction work. 9 In relation to the incident that occurred on 22 October 2002, Mr Baker said that BGA Projects Pty Ltd ("BGA") had been engaged as the principal contractor and was the company designing and constructing the reservoir at Lake Cargelligo. BGA had been engaged by the previous DPWS on behalf of its client, the Lachlan Shire Council. As principal contractor, BGA was responsible for the provision or creation of the systems of work for the project and the carrying out of all work. The DPWS acted in the role of project manager on behalf of Lachlan Shire Council. 10 A Coronial Inquest into the deaths of Mr Beytell and Mr McLeod took place in 2005 and 2006, with the Deputy State Coroner handing down her findings in late September 2006. In relation to the Coronial Inquiry, Mr Baker stated: 37. The following possible reasons for the collapse were outlined by Senior Deputy State Coroner Jacqueline Milledge in her report dated 25 September 2006: · [Anton] Beytell did not have sufficient formwork/scaffolding on hand for the construction; · (Anton Beytell's] dangerous practice was to remove components [of scaffolding] from the lower parts of the formwork to use in the upper parts; · [Anton Beytell] had insufficient components to complete the formwork so would often weld pieces together. This made the components structurally weak and therefore unsound. · There was no diagonal bracing to offset the effects of buckling and to support horizontal loads; · Inappropriate couplers were used as formwork connectors. · The formwork was also erected in bays that were too large to safely accommodate the loads that were being poured. 38. The Department acknowledges that it did not adequately monitor BGA to ensure that BGA had: a. ensured that the scaffolding access tower erected by BGA on the outside of the water reservoir at this site was safe and without risks to health; b. ensure that the concrete formwork erected by BGA on the site was safe and without risks to health; and c. ensured that the formwork erected by BGA with respect to the forming of the concrete roof of the reservoir was independently certified prior to the commencement of the concrete pour. 39. The Department also acknowledges that it did not: d. undertake adequate safety inspections or safety audits at the site; e. adequately supervise Kock Ooi (the DPWS's Superintendent's Representative and Project Manager of the Lake Cargelligo Project) in his roles as both the Superintendent's Representative and the Project Manager; and f. provide Mr Ooi with adequate training and instruction in relation to OHS in his role as both the Superintendent and Project Manager. 11 At the time of this incident, the Department's safety systems were those applicable to projects valued at less than $3M. The Department's safety management system was accredited as complying with the New South Wales Government's Occupational Health and Safety and Rehabilitation Management System Guideline, 3rd ed. Mr Baker described the Department as having a comprehensive system of contractor management at the time of the incident. The main features of the system were: identification of hazards prior to tender; inclusion in the contract of identified hazards; a contractor pre-qualification panel so that requirements were met, including in relation to occupational health and safety management; referee checks on performance of contracts as part of the tender review; review of the adequacy of contractor documentation; site inspections and meetings; internal auditing of contractor systems and safety management plans and contractor safety documentation; monitoring and awarding on contractor safety performance; and, communication and consultation with contractors in relation to safety issues. Mr Baker's affidavit annexed a number of documents that formed part of the contractor management system by which these various issues were addressed. 12 Mr Baker acknowledged on behalf of the Department that, although it had a comprehensive contractor management system at the time of the incident, the system was not "comprehensively implemented" for the Lake Cargelligo Project. The Department acknowledged that it did not undertake a defined process of identifying the specific hazards associated with the project pre-construction. As a consequence it did not include a list of identified hazards in the project contract. 13 The third edition of the New South Wales Government Safety Guidelines required that tenders for projects valued at $3m or more or projects valued at less that $3m where the Department determined that the work had a high safety risk (or interfaced with other projects with a high safety risk) or was otherwise a safety sensitive project, would only be accepted from tenderers with an accredited corporate safety management system. The guidelines also required the preparation of an acceptable project safety management plan. The guidelines provided that, for all other projects, a condition of the contract would be the preparation and submission of an acceptable site specific safety management plan and safe work method statements or, if the project was classified as low risk, the preparation and submission of safe work method statements only. 14 As to this combination of matters laid down by the guidelines, Mr Baker stated: 49 The DPWS did not determine that the Lake Cargelligo Project involved a high safety risk, interfaced with other projects with a high safety risk or was otherwise sensitive in terms of OHS&R. Accordingly, the DPWS required and was provided with a Site-specific Safety Management Plan by BGA but in accordance with the DPWS practice at the time, the DPWS did not require that BGA had an accredited corporate OHS&R Management System or an acceptable project OHS&R Management Plan. 50 The Department acknowledges that it did not ensure that the risk associated with the Lake Cargelligo Project were adequately managed. 51 The Department also acknowledges that, although it requested the provision of Safe Work Method Statements for the Lake Cargelligo Project from BGA when these were not received, it did not pursue enforcement of this requirement 15 Mr Kock Ooi was the superintendent's representative for this project. After receiving BGA's site specific safety management plan as part of its integrated management system, Mr Ooi undertook a review of the site safety plan using the Department's checklist review of the adequacy of safety management. Mr Ooi noted that BGA's site safety plan did not include site safety rules and other relevant information. In late May 2002 he sent an email to BGA requiring further information as well as the site safety rules. BGA was also asked to amend relevant sections of their site safety plan/project management plan and provide a copy of the amended plan or relevant amended sections. Further facsimiles passed between Mr Ooi and BGA and in June 2002 BGA provided further information as requested, including the site safety rules. In late June 2002 Mr Ooi again requested a copy of the amended site safety plan/project management plan and in late July BGA provided an updated project management plan. The new material provided by BGA consisted of two new pages. Mr Baker stated that the Department acknowledged that it did not adequately review BGA's site safety plan in that it did not identify the failure of the site safety plan to identify and address control measures in relation to hazards associated with the project. 16 Mr Ooi had obtained his B.Eng (Civil) (Hons). from the University of Malaya in 1978. In relation to occupational health and safety training, he had attended a training course of 1.5 days for the construction industry (the green card course), a one-day course on safety on construction sites and a one-day course dealing with the Department's Occupational Health and Safety Induction Intermediate course. At the time of the incident Mr Ooi had been employed in that role for 7.5 years. Prior to joining the Department he had worked on similar construction projects as a civil engineer in Malaysia between 1978 and 1994. Immediately prior to the Lake Cargelligo project, between 2000 and 2002, Mr Ooi was part of the project team for the $30m Ben Chifley Dam project. 17 At the time of the incident the Department employed safety officers to assist in the management of safety on Departmental projects across New South Wales. No such officers were located in the Department's Riverina-Western Region at the time of the incident but safety officers in other offices undertook audits and provided advice in relation to projects in the Riverina - Western Region. At the time of the incident Departmental staff were regularly informed of safety related issues and through the issuing of circulars, were reminded of Departmental procedures and requirements in relation to safety and contractor management and notified of updates in the Department's policies and procedures. 18 In relation to supervision, Mr Baker said that the Department's Riverina - Western Region covered an extensive area and operated through a number of small offices to allow some proximity to the vast number of communities throughout that region. As a result, supervisors could be in separate offices to staff they were functionally supervising. Prior to the incident Mr Evans, the regional projects co-ordinator, supervised Mr Ooi and although they were based in different offices, they communicated regularly by telephone and met from time-to-time. Mr Ellison, the regional contract superintendent, also provided guidance on more complex contractual matters and the quarterly contractors' performance reports. Mr Ellison was based at a different office to Mr Ooi and Mr Evans. At the time of the incident, both Mr Ellison and Mr Evans had a degree in B.Eng.(Civil) and held the General Construction Occupational Health and Safety Induction Certificate. In 1999 Mr Ellison and Mr Evans had completed the Project Safety Management Work Activities Safety Induction Training Course. In June 2002 Mr Ooi was subject to a formal review in relation to his management of the Lake Cargelligo project and that review was conducted by Mr Evans. 19 Mr Baker's affidavit evidence then dealt extensively with the safety management system following the incident and the changes made to prevent a recurrence of this type of incident. In doing so, it was noted that the Department operated a management system that was certified to comply with the Australian Standard for quality management systems requirements. The attention to safety and the requirement to improve safety measures was spelt out by reference to: the Department of Commerce Corporate Plan 2006 - 2010; the OPWS Business Plan 2009 - 2012; the commitment of senior Departmental management to safety leadership and how that was to be achieved; the Department's role in implementing initiatives and the New South Wales Government's response to the 2005 safety summit; the use of the Deputy Director -General's safety forum indicating the manner in which it operated; the operation of the OPWS Executive Safety Committee; the operation of the OPWS Safety Management Review and Improvement Teams; group, regional and branch meetings; the use of Departmental safety committees and forums; the use of safety consultative committees; the manner in which safety consultation and communication was carried out; the monitoring of safety performance through the safety reporting tool with an explanation of how that tool was used; the use of safety improvement programmes, including the construction safety improvement programme; the 2005 Departmental review; managing contractors through the tendering process and the operation of the contractor pre-qualification panel; contractor management procedures; project reviews; occupational health and safety management monthly reporting and site meetings; contractor performance reporting; independent engineering certification of formwork; contractor forms; audits and inspections; the audits of contracts valued at over $1m and the review of contracts valued at under $m; and, the maintenance of safety awareness through site visits and audits of safety management systems. 20 In late November 2005, following a review of the effectiveness of measures introduced in response to this incident, the Department held a full day workshop with its senior managers to discuss safety management and identify areas for improvement. Mr Baker said that the Department also demonstrated safety leadership through participation and external safety forums and initiatives. The Department was a participant in the 2002 and 2005 New South Wales Workplace Safety Summits with Mr Baker personally attending the 2005 Summit. 21 In late October 2002, in an immediate response to the incident, the Department issued a circular introducing a new requirement to strengthen the safety management procedure. That circular drew attention to the high risk of the erection of concrete suspended slabs and that risk required a standard approach to be introduced for all project management group contacts. The regulation obliging a structural certificate from the employer usually meant that a certificate would come from the formwork contractor or on smaller contracts, the principal contractor. They were required to comply with this responsibility. In this high risk area, the project management group needed to satisfy itself that the obligation was being met and had to request evidence from the principal contractor that they were meeting their legal obligations and ensuring safe work practices by the their sub-contractors in the erection of formwork. This was to be addressed by group staff including a "Hold Point" in the inspection and test plan. A contractor was to provide the Department with a copy of a conforming structural certificate and that had to occur before the concrete pour commenced. There had to be evidence that the certifying engineer was a qualified engineer as defined under the regulations. These new requirements were to be introduced immediately in all new contracts and on existing contracts. The project management group were to request and receive confirming structural certificates for all works falling within the relevant definition in the regulations. These requirements were also strengthened by a circular issued in March 2003 relating to changes in the Department's standard contract clauses. These clauses now required the engineer providing certification of the formwork to be independent of the principal contractor and their formwork/concreting sub-contractor. 22 In October 2002, in response to the incident, a comprehensive programme was developed known as the Construction Safety Improvement Programme. This Programme included changes in procedures, contract clauses and training for all Departmental staff. Mr Baker spoke of six strategies being implemented in 2003. They included a review of management responsibilities, reporting responsibilities and standard contract safety provisions and procedures to ensure they were appropriate and if necessary, improved; Construction Safety Co-ordinators were appointed to all regions and branches where they had not already been appointed and specialists were to undertake audits, inspections and provide training and support to project managers; a Construction Safety Network was established to meet monthly to allow sharing of information and enable staff to learn from the experiences of others; use of the WorkCover Safety Design Tool and Construction Hazard Assessment Implication Review was promoted; the use of the Contractor's Safety Management Plan template by contractors and sub-contractors was promoted; and, an extensive training programme for the Occupational Health and Safety Act 2000 and Occupational Health and Safety Regulation 2001 and the Department's safety management procedures was conducted for all 800 project management staff. 23 Mr Baker explained the operation of the pre-qualification system for construction contractors and the Department recommended those pre-qualified contractors to its clients. Pre-qualification required contractors to demonstrate an effective management system and capability and a sound track record of performance. For the contracts valued over $1m they had to demonstrate the possession of a corporate safety management system accredited by a New South Wales Government Agency as complying with the requirements of the New South Wales Government safety guidelines. To continue pre-qualified status, contractors had to demonstrate continuing satisfactory safety management in relation to its contract and unsatisfactory safety management led to review and ultimately could lead in a reduction, suspension or complete exclusion from further tendering opportunities. The Department conducted best practice in construction forums on a regular basis and they were attended by contractors accredited under the pre-qualification and best practice accreditation scheme. The Department currently had over 500 contractors on the pre-qualification panel. Contractors also had to provide the project manager with a monthly safety management report demonstrating the implementation of their own safety management plan. Those reports were to be reviewed by the project manager at site meetings with the contractor and the project manager to complete a review checklist. Non-compliance with safety management led to the project manager issuing a site instruction requiring rectification of the breach. 24 In relation to collaboration with WorkCover, Mr Baker said that the Department attended bi-monthly inter-agency meetings with WorkCover at a senior management level to discuss issues, to identify emerging risks and to undertake joint initiatives as well as sharing information on a collaborative basis. These meetings began in 2001 and were held on a voluntary basis with the aim of continuing to improve safety throughout the Department's activities. 25 In 2004 and 2005, the Department and WorkCover conducted joint reviews of four major Departmental projects with focus on the implementation of the Department's safety management systems. These joint reviews proved to be productive and in late 2005, the Department undertook its own detailed review of its contract requirements and procedures and its safety management system using observations from WorkCover and other materials. As part of the review, all day workshops for all Department senior management were held in November 2005 to consider how the system could be improved. The Department substantially revised its approach and introduced significantly improved contractual and procedural requirements in 2006. 26 In furtherance of the Department's commitment to provide appropriate trading and guidance to its staff, Mr Baker referred to the variety of ways in which the staff were informed about safety procedures. In this connection he referred to the Department's intranet based project management programme entitled "The Roadmap". After the incident, the Roadmap was introduced in 2003 and was able to be utilised by staff every day to effectively manage projects. Staff were provided with training in the use of the Roadmap and it was part of their induction. The Roadmap was available at every site in New South Wales and enabled easy access by project managers to a wide range of safety information, including the project details. The Roadmap operated to required regular reviews during its four phases and, at particular stages, the project manager referred to documents and information that may be needed to manage the project. There were steps that required scheduled project reviews. When the project manager reached a step in the Roadmap where a supervisor must review and sign off on their work, the system set out a clear "stop sign" stating: "YOU MUST HAVE SENIOR MANAGEMENT APPROVAL TO PROCEED". During the course of the hearing officers of the Department demonstrated the Roadmap to the Court. 27 In addition to the Roadmap, Mr Baker gave details of the training courses available to staff, including refresher training. Between May and October 2008, the Department conducted 10, 2-day training courses in New South Wales regional centres for approximately 235 construction contractors, Local Government representatives and other participants with the purpose of promoting and encouraging "upskilling" of contractors in relation to safety. The courses were provided free of charge by the Department. In 2003/2004, all Departmental project staff were provided with full-day training in relation to working at heights and scaffolding awareness. The Department in 2007/2008 again provided safe working at heights training. From 2006 to 2009, the Department provided all 800 staff with training in relation to OPWS project safety management procedures. Each new employee received induction training when commencing work and Mr Baker provided details of that programme. 28 Mr Baker also dealt with the Department's standing and reputation with large companies within the industry. He said that the Department had a good relationship with these companies and was regarded as being a client who developed and implemented safety initiatives. He gave examples of developing safety initiatives in conjunction with Leighton Contractors in relation to a particular project. To improve and influence safety in the construction industry in a positive way, the Department liaised closely with employer associations such as the Master Builders' Association, the National and Electrical Contractors' Association and the Civil Contractors Federation as well as other Government agencies and unions such as the Construction, Forestry, Mining and Energy Union. 29 The incident at Lake Cargelligo demonstrated to the Department that, although it had a comprehensive safety management system, some elements of the system were not "sufficiently robust" and the Department had not adequately implemented its safety system. In recognition of this situation, a number of significant improvements had been made since the incident as part of continuing improvement and specifically in response to the incident. Mr Baker identified the most significant improvements as follows: · Substantial review and revision of the Department's OHS Management System: The Department asked WorkCover to participate in joint reviews in relation to how the system was being implemented. These reviews were conducted in 2004 and 2005 with the State Co-ordinator - Systems, Audit Management Unit leading the review in 2005. Using the observations of WorkCover, in the second half of 2005 the Department carried out its own review of its OHS Management System for the project management of its client's construction projects to determine if its OHS Management System was being implemented in a consistently effective manner. The findings were debated at a full day workshop on 28 November 2005 attended by the Group General Manager, Project Management, the Regional and Branch Managers and other senior managers. The review focussed on understanding and defining the Department's responsibilities for safety management in relation to its clients and the contractors who successfully tender for Departmental projects so that these responsibilities are clearly stated and understood. As a result of this review, the OHS Review Team developed improvements to the planning and tender review processes and introduced a greater focus on the requirement for contractors to demonstrate to the Department that they are implementing sound and effective safety management. These improvements were reviewed by the Procurement Team and endorsed by the Group General Manger and Regional and Branch Managers. In February 2006, the Department made changes to its contracts with clients and contractors and to its project management and contractor management procedures. The aim of the changes was to make further improvements to safety management on projects with which the Department is involved. The Department then provided its staff with training, conducted briefings with clients and contractors and reported to WorkCover through the WorkCover/Department of Commerce Interagency meetings in relation to these improvements. The Department has been implementing these changes through 2006 to date with monitoring and auditing undertaken through Project Reviews, audits and reviews and management review by the Regional and Branch Management Teams, the Safety Management Review and Improvement Team and the Executive Safety Committee. · Introduction of the Construction Safety Improvement Program: Using the findings and results from the November 2002 senior managers' workshop, a Construction Safety Improvement Program was developed and implemented in 2003 and 2004. · Strengthening of project risk assessment and tender review processes ( Preferred tenderers for projects valued at under $1 million are now required to provide additional information demonstrating satisfactory OHS performance on three recent projects. The implementation of the tendering process is monitored and evaluated by a team of senior specialist contract and procurement managers who make up the Procurement and Contract Management Improvement Team. · Introduction of additional supervisor review and sign off. ( Supervisors of Project/Contract Managers are now required to review and sign off on the 'Pre-Start Review of the Adequacy of Safety Management Plans' which is completed by the Project/Contract Manager as part of their review of the contractor's Site Specific Safety Management Plan. The tender recommendation that a preferred tenderer's OHS performance has been satisfactory is reviewed and signed by the supervisor of the Contract Manager/Project Manger undertaking the review. · Introduction of standard monthly project reviews: In November 2005 a standard Project Review form and process which represents a consistent minimum approach was introduced. Project Reviews are carried out in relation to every project on a monthly basis by Department staff and involve a review and discussion between a supervisor and project staff member about the main issues impacting on the achievement of the project's outcome. Included in this review and discussion is whether the project is being managed in an effective manner, whether the Departmental procedures, policies and practices are being followed and whether any staff developmental needs are being identified and assessed. · Introduction of the Roadmap, the OPWS' intranet-based project management program. · A strengthening of the Department's management review (including the introduction of the Deputy Director-General Safety Forum) and commitment to safety leadership. A substantial increase in the number of Project Safety Advisors employed by the Department. The employment of additional Project Safety Advisors was an outcome of the Construction Safety Improvement Program. The increase in the number of Project Safety Advisors means that at least one Project Safety Advisor is based in each office or branch. In addition, the Project Safety Advisors formed the Safety Management Review and Improvement Team. This Team meets on a monthly basis to enable the sharing of information and to enable all staff to learn from the experiences of each other and to develop a consistent approach to safety management within the Department. · The reiteration to all OPWS staff of the requirement that formwork be certified by an independent structural engineer. This was reiterated through PMG Circular No 2003/03 issued on 10 March 2003. This requirement was also introduced into all new Departmental contracts. · Provision of extensive training to all Departmental staff. Extensive training has been provided to all Departmental staff in a number of areas, including in relation to the OHS Act and OHS Regulation, reviewing safety management plans, reviewing Safe Work Method Statements, safely working at height and in relation to the changes to its contracts with clients and contractors and to its project management and contractor management procedures. Some of this training was provided as part of the Construction Safety Improvement Program. In particular, OHS risk management training for supervisors and managers was provided in 2003-2004, 2006 and 2008. Over 430 Departmental staff attending this training. · Introduction of audits of contracts valued at over $1 million and reviews of contracts valued at under $1 million. · Introduction of an independent assessment conducted by Project Safety Advisors of how safety is being managed on site. As part of this process, Project Safety Advisors reconcile actual activities occurring on site with the safety management system and identify areas where systemic changes are needed. · Annual auditing of OPWS' OHS procedures. The implementation of OPWS's OHS Procedures is reviewed though an annual audit program with advice and reports provided to the region and to the OPWS Executive Safety Committee. · The introduction of auditing of the implementation of the Department's OHS Management System. 30 In speaking of the Department's activities to raise the standard of safety management on all projects, reflecting on the Department's citizenship, Mr Baker mentioned that, in 2007, the Department had signed a memorandum of understanding concerning noise management on construction sites, an initiative of WorkCover. The Department also participated in a range of initiatives aimed at reducing hearing loss suffered by construction workers. Client surveys indicated that the Department ensured all safety requirements were met on their projects. Between 2005 and 2009, the lost time injury frequency ratio varied between 1.9 to 3.4 when the same ratio for the construction industry in New South Wales was over 16 from 2006 to 2008. 31 The Department employed apprentices and promoted apprenticeship employment in the construction industry. It currently employed 29 apprentices and a further intake was due in September 2009. The Department required contractors for contracts valued at more than $1m to implement training management plans having a minimum of 20 per cent of skilled work being carried out by apprentices, including indigenous apprentices. Employees were encouraged to pursue other studies through study leave and employees were provided with access to employee assistance programmes. The Department participated in the Global Corporate Challenge encouraging participations to record their daily walking activity levels with the aim of walking 10,000 steps per day. It had sponsored the 2009 National Association for Women in Construction, NSW/ACT Awards for Excellence and had supported that Association by organising field days. There had been participation in charity programmes such as Red Nose Day and Jeans for Genes Day. Mr Baker spoke in some detail about the employment and training opportunities for Aboriginal and Torres Strait Island Australians and how the Department worked closely with the Department of Aboriginal Affairs and other clients to promote Aboriginal employment. In relation to the Department generally, Mr Baker also spoke about a major initiative to improve safety management at the $100m South Coast Correctional Centre project in Nowra and the safety alliance that had been entered in relation to that project, the recognition of the Department's contribution in relation to award winning projects and being successful in project management awards and other awards. 32 The Department had co-operated with WorkCover during its investigation of the incident and the prosecution process and had provided documentation and made staff available for interviews as and when required. By appointing a senior project manager as a single point of contact, the Department facilitated WorkCover's information gathering and investigation process, avoiding the need for WorkCover to follow-up with a variety of people, including former employees for the provision of documents and information. 33 In relation to contrition Mr Baker said that, on behalf of the Department, he sincerely regretted that this accident occurred. The Department accepted responsibility for its role in the incident and the subsequent injuries and loss of life suffered. After receiving the Application for Order in September 2008, the Department entered a plea of guilty at the first Directions hearing in November 2008. The Department expressed its sincere sympathy to the relatives of Mr Beytell and Mr McCloud and after the incident the group general manager of the project management group, Mr Collins, wrote letters to the families of Mr Beytell and Mr McLeod to express the Department's deepest sympathy for their loss and to ask for their views regarding the construction of a memorial at the site. Together with the Lachlan Shire Council and in consultation with the families of the deceased, the Department then arranged for a memorial plaque to be placed at the reservoir. Staff of the Department also met with Mr Beytell's widow and Mr McLeod's parents during the Coronial Inquest. In consultation with the Construction, Forestry, Mining and Energy Union, the Department made payments of outstanding wages and accrued entitlements totalling more than $40,000 to Mr McLeod's family, to Mr Scott Wood and Stephen Oagile Malothane, a resident of South Africa. 34 In relation to the future, Mr Baker said the Department was fully committed to ensuring the effective implementation of the safety management system and was particularly concerned to ensure that it had a strong safety culture and not a mere paper system without enforcement and policing. The Department was intent upon demonstrating to its clients, the community, Government and regulators that it effectively and consistently implemented a well-developed safety management system and was intent on preventing any harm arising from its activities. The Department was also committed to using its position and influence to provide a leadership role and improving safety in the New South Wales construction industry, including through the continuing improvement and effective implementation of its own safety management system and by working co-operatively with contractors, their employer Associations, construction unions, clients and other industry participants and other Government agencies as well as WorkCover with the goal of continuing to improve safety in the construction industry in New South Wales. 35 In his supplementary affidavit, Mr Baker spoke of his personal efforts to ensure a higher level of awareness amongst managers and staff of the terms and implementation of the safety management systems. Since 2003, in relation to the increased awareness of safety risks of working at heights and the use of scaffolding and formwork, the Roadmap provided a structured standard process for risk identification, evaluation and treatment and staff were trained in safety risk management and working at heights. The construction safety guide provided guidance and links to the Codes of Practice Standards and other guidance material. There was now increased supervisor involvement in safety management and the project risk assessment process identified that there were safety risks requiring greater involvement of the project safety advisor and this was dealt with in some detail. Mr Baker also explained the auditing process conducted by project safety advisors, a process that was in addition to the project manager reviewing and implementing the safety management plan. 36 The prosecutor put before the Court the two judgments of the Commission in Court Session where the predecessor Department had been found guilty of breaches of s 16(1) and s 15(1) of the 1983 Act. The Department's first offence was dealt with in 1999 before the Chief Industrial Magistrate and incurred a penalty of $1,500 for breach of s 15(1) of the 1983 Act. From the later cases it appears that the maximum penalty at that time was $10,000 and that offence was regarded of little significance in relation to the two further offences of the Department. 37 The second offence occurred in May 1998 at a project involving the Nepean Hospital. There was a plea of guilty entered although there were some disputed particulars. In that case it was alleged that the Department failed to ensure that there was an adequate system of work to protect against persons being exposed to a risk of injury from falling while working on the level 2 concrete slab and the level 3 formwork deck of a building under construction at Nepean Hospital. The injured worker had fallen approximately 4.7 metres. The Department was responsible for project management of the building and construction work being carried out at the site. It was also responsible for the installation of scaffolding for the perimeter of the building. 38 In dealing with penalty Glynn J found the offence to be serious and the defendant's on-site approach to safety was inadequate and its personnel were not properly trained. One officer of the Department, being a part-time safety officer, did not have even superficial knowledge of the requirements of the relevant regulation and did not know that particular provisions of the regulation required the securing of hand guards. The maximum penalty available was $825,000 and after allowing a 20 per cent discount for the utility of the guilty plea and other subjective factors, the Court imposed a fine of $119,000. The prosecutor pointed out that, although that case arose from a 1998 incident, it was heard in mid-July 2002 and judgment was delivered in November 2002. It was submitted to be significant that, within this very timeframe, in late October 2000, the present offence occurred again involving a fall from height and the use of scaffolding in the erection of the reservoir. 39 The most recent offence occurred in February 2001 when an employee of Department was crossing timber planks across scaffolding when the plank subsided and he fell approximately one metre. The Department entered a guilty plea to two of the particulars but in contested proceedings was found guilty of the third particular. The third particular involved the failure to ensure a competent person carried out an adequate inspection and risk assessment. 40 This case was heard and dealt with in March 2004 by Boland J. His Honour accepted that the Department was concerned with safety, had made efforts to ensure safety and was clearly safety conscious with an objective to ensure safety in its workplaces. The case emphasised, however, the obligation of the employer to actively seek out all risks to safety and eliminate them. His Honour had regard to specific deterrence and the likelihood of the defendant re-offending and noted that it was a large organisation operating in the construction industry where risks to safety were ever present. Nevertheless, the Department had taken appropriate steps to avoid a reoccurrence of the accident, had reviewed its policies and procedures in what was described as an impressive system aimed at ensuring persons were not put at risk. There were two previous convictions and his Honour did not feel that those should overshadow what was otherwise a good record. His Honour concluded that it was not necessary to include in the penalty a significant element aimed at encouraging a greater level of diligence on behalf of the defendant in the future because he considered the defendant had demonstrated that it already shouldered that responsibility. The maximum penalty at that time was $825,000 and his Honour considered an appropriate penalty to be $145,000. On the approach taken by the Commission in Court Sessions at that time, that amount was discounted by 25 per cent because of the utilitarian value of the early plea and a further 10 per cent for other subjective factors resulting in a final penalty of $94,250. DELIBERATION 41 The first and primary task for the Court is to establish the objective seriousness of the offence. In submissions the defendant accepted that the charge concerned an objectively serious incident and that there was a foreseeable and serious risk of a detriment to safety, including injury and death. That acknowledgement was made in the context that the defendant's responsibilities for the Lake Cargelligo project were "confined" to a project management and monitoring role and that BGA were the principal contractors. The second issue of contest was that there were a number of objective factors that tended to mitigate the level of objective seriousness of the breach, especially having regard to the extensive safety systems implemented by the defendant such as: contractor management systems; the appointment of a contract supervisor; the appointment of a contract supervisor's representative; a review of BGA safety systems; audits and inspections; training and guidance; supervision; and, governance through safety committees and forums. 42 The prosecutor submitted that the offence was objectively "very serious". The risks were obvious and known to the Department or alternatively, were readily identifiable. Given the nature of the work, being work at height on a large reservoir and the defects in the safe working practices at the site, there was a real prospect of death or serious injury once work on the elevated formwork commenced. These risks were capable of being controlled, if not eliminated, through the adoption of simple and well-known steps. It was submitted that the project "became a disaster waiting to happen". The defendant had admitted to widespread failures and had awarded the contract on a price basis alone. While the prosecutor acknowledged that the defendant had a detailed occupational health and safety system on paper prior to and at the time of the incident, there had been a very significant failure to enforce that system. 43 The prosecutor also pointed to the fact that the 3rd ed of the New South Wales Government Guidelines governed the contract. Those guidelines differentiated between projects such that there were three classes that were dealt with in a different way: the first class involved projects having a value of $3m or more; the second class was projects having a valuation under $3m where the defendant determined that the work was a high safety risk or interfaced with other projects with high safety risk or was otherwise sensitive in terms of occupational health and safety; and, the third class were projects having a value under $3m where the defendant determined that the work did not have a high safety risk, did not interface with other projects with high safety risks or was not otherwise sensitive in terms of occupational health and safety. The first two classes required contractors and Departmental compliance with a significantly more comprehensive occupational health and safety management programme, including: tender pre-qualification requiring accreditation of the contract's corporate safety management system; a project occupational health and safety management plan; and, a project occupational health and safety audit programme compliant with the State Government's guidelines being an audit programme, including detailed site safety audits, applicable across the whole project to be conducted by an audit team consisting of qualified auditors with specialist safety training who were independent of the Department project management and the superintendent's teams. Despite these requirements, the defendant did not determine that the Lake Cargelligo project involved a high safety risk, interfaced with other projects with a high safety risk or was otherwise sensitive in terms of occupational health and safety. The prosecutor submitted that, in fact, no one from the defendant turned their mind to these matters prior to the letting of the tender or at any time during the course of the project from the time the tender was let until the incident occurred. It was submitted that, if the defendant had turned its mind to these issues, it was obvious that the erection of an elevated platform, the erection of elevated scaffolding for access, working at heights and other factors, including the remoteness of the site, must have led to the conclusion that the project involved high safety risks. The New South Wales Government Guidelines at the time nominated working at heights as a high or significant risk factor. 44 The prosecutor also submitted that it was a concern that, following the revision of the defendant's project management system, it no longer required safe work method statements for high risk activities to be submitted to the project manager for assessment and review prior to the high risk work being permitted to commence, or at all. The new system required a register of safe work method statements to be kept on site and a copy of that register to be submitted as part of the monthly project report but there was no requirement for safe work method statements to be submitted before high risk work commenced. Any review of the safe work method statements by the project manager were now to take place after the work had commenced as part of Departmental site inspections. Under the revised system, on-site reviews contemplated the contractor "self selecting" a high risk activity from a list of activities nominated by the Department and for them to be reviewed requiring the principal's representative to observe that activity for the purpose of establishing compliance. 45 A further matter of concern was that, on this project, a review was conducted in late August 2002 and it highlighted the need for the effectiveness of the contractor's integrated management plan to be measured at the workface. This process was short circuited by Mr Ooi who converted the "Hold Points" to "Witness Points" so that, rather than requiring his attendance for a site inspection before the work could proceed if he did not attend the site at the Witness Point, the work could proceed. It was pointed out that no explanation had been offered how Mr Ooi, in his capacity as the project manager, was able to re-programme an essential element of both the quality and safety controls imposed by the contract and thereby avoid site attendances which were both required under the contract and funded by the Department's client in the project budget. There was also no explanation offered in relation to the defendant's failure to require contractors to produce certification in regard to the elevated formwork as part of the contractual inspection and test programme despite being requirements of the relevant regulations, the relevant Code of Practice and their applicable Australian Standard. Under the revised programme it was acknowledged that it now required the provision of independent certification in accordance with the Code of Practice. The defendant did not undertake any site safety audit, site safety review or site safety assessment independent of the one project manager appointed to manage the site and administer the contract. It was submitted that, having regard to the Statement of Agreed Facts and the photographs of the site, once work commenced on the erection of the elevated jump form, the scaffold access tower and the internal scaffold, even a cursory examination of the site by an adequately trained officer concerned with safety should have been sufficient to halt work on the site long before this incident occurred. 46 As already indicated, while accepting the seriousness of the breach and the numerous failings of the Department, it was submitted for the Department that these matters had to be seen in the context of the Department's overall extensive safety system and the relative success of that safety system over a long period of time. Whilst it was submitted that the defendant's responsibility for this project was "confined" to project managing in a monitoring role, it was properly conceded that the defendant had significant control over the work and had a capacity to give directions in relation to the scaffolding and indeed, could have stopped the work. The contract provided that the project manager (Mr Ooi) was to be granted access to the site at all reasonable times and could direct BGA to have tests performed and to take other steps to ensure that the work was compliant for the various contractual obligations. It was pointed out that the site safety plan provided to Mr Ooi by BGA did not include the safety rules and other relevant information such as safe work method statements and Mr Ooi repeatedly requested copies of the missing documents but only limited additional information was provided. That additional information did not include the safe work method statements and it was conceded that the defendant did not adequately review BGA's site safety plan to ensure its adequacy in controlling the hazards at the site. 47 It was further submitted that, in fact, Mr Ooi made a number of visits to the site as the contract superintendent's representative and that occupational health and safety was a regular agenda item for the meetings held during those visits. Mr Ooi had ascended the scaffold access tower in his late August 2002 visit and directed that kick plates be installed at the landings but he did not identify other faults. Mr Ooi inspected the reinforcement and formwork and although he established Hold Points for the work, he later re-classified them as Witness Points. It was said that Mr Ooi exercised his discretion to take no further action in relation to those Hold or Witness Points. It was submitted that, as well as Mr Ooi, the defendant's supervisory personnel for the project were qualified and experienced in the construction industry and as summarised earlier in this judgment, reference was made to the detailed system that was normally applied by the Department. 48 The defendant also submitted that its criminal culpability for this offence was lower than that of the principal contractor, BGA. It was submitted that the Department was not responsible for the creation, provision or maintenance of the system of work including the labour, training and provision of equipment. All those matters were the responsibility of the principal contractor and the defendant was unaware of inappropriate modifications made to the scaffolding by BGA and had no involvement in that process. BGA was responsible for the day-to-day control and conduct of the work. Nevertheless, the Department accepted that it had a significant degree of control over the site and was in a position to order a cessation of work if they identified any risk to safety. It was also submitted that the Department's degree of foreseeability of this risk was lower than that of BGA. The difficulties with these submissions is that, because of the death of Mr Beytell and Mr McLeod, the Court has limited knowledge of the activities of BGA although the Court does have an abundance of material about the shortcomings at this site. To the extent that the Court is able to conclude that the Department's culpability is less than BGA, such a finding does not say a great deal. It is true that BGA was present every day at the site and should have been aware of these shortcomings but having regard to the numerous photographs in evidence and the description of the state of the scaffolding, it is difficult to understand why the Department's project manager did not take some steps to address the state of the scaffolding which seemed to breach the most elementary requirements for stability and safety. As to foreseeability, the project manager appears not to have demanded evidence of the certification of the structural soundness of the scaffolding as required under the guidelines. That failure, together with the obvious inadequacies of the scaffold on site, should have raised concerns at an early stage and the failure to respond to those concerns indicates the foreseeability of the risk of failure of the scaffolding and the serious injury that might follow from such an event. 49 The Court has already noted the numerous concessions made by Mr Baker, namely, that the Department did not adequately monitor BGA to ensure that BGA had: ensured all the scaffolding and access tower was safe and without risk to health; ensured that the concrete formwork erected by BGA was safe and without risk to health; ensured the formwork erected by BGA with respect to the forming of the concrete roof of the reservoir was certified prior to the commencement of the concrete pour. Further, it was acknowledged that the Department did not: undertake adequate inspection or safety audits at the site; adequately supervised the project manager in his role as both the superintendent's representative and as the project manager; and, failed to provide Mr Ooi with adequate training and instruction in relation to safety in both his roles as the superintendent's representative and the project manager. The Department acknowledged that, although it had a comprehensive contractor management system at the time of the incident, the system was not comprehensively implemented on this project. It acknowledged that it did not undertake a defined process of identifying the specific hazards associated with the project's pre-construction. As a consequence, the Department did not include a list of identified hazards in the project contract. The Department failed to determine that the project involved a high safety risk and therefore did not require BGA to have an accredited corporate safety management system or an acceptable project safety management system. The Department did not ensure that the risks associated with the project were adequately managed. The Department, through Mr Ooi, requested the provision of safe work method statements for the project and when these were not received from BGA the Department did not pursue enforcement of those requirements. The Department did not adequately review BGA's site safety plan and did not identify the failure of a site safety plan to identify and address control measures in relation to hazards associated with the project. These admissions by Mr Baker on behalf of the defendant reflect, and sometimes give further substance to, the nine itemised failures that constituted the particulars to which the defendant entered its plea of guilty. There is considerable force in the matters raised by the prosecutor going to the objective seriousness of the offence and those matters are not seriously put in issue by the defendant who has adopted an approach of seeking to place these failures in a wider context. The Court accepts that, had the Department's normal procedures been followed, then it was very likely that this accident would not have occurred, two workers would not have died and others would not have been seriously injured. It is difficult to understand how a Government Department, the size of the defendant and with its reputation, could have allowed a position to arise where so many aspects of its usually comprehensive safety system were not adhered to. Having regard to all of these matters, the Court readily concludes that this was a most serious breach of the Act. 50 The defendant, properly, conceded that both general and specific deterrence were appropriate considerations in setting a penalty for this offence. In relation to general deterrence the use of scaffolding is widespread in the industry and fall injuries continue to regularly feature in prosecutions brought under the Occupational Health and Safety Act. In relation to specific deterrence it was submitted for the defendant that this aspect should play a role, but a lesser role, in setting a penalty, especially in consideration of the extensive systems that the Department has always had in operation in relation to safety and the numerous steps it has taken after the incident to ensure that there was not a recurrence of this type of incident. It is accepted that these factors are important but the Court is not able to say that the risk of re-offending is low or non-existent in light of the nature of this offence and the defendant's recent history of breaches. It should be stated immediately that the record cannot be regarded as a bad record having regard to the nature of the work performed by the defendant and its long existence under many titles. A disturbing feature is that the last two offences occurred in relation to scaffolding and that the 1998 offence was heard in the Commission in Court Session and was reserved when this particular incident occurred. As a result of those offences the Department undertook reviews, addressing specific incidents and wider safety requirements. While it can be readily accepted that the defendant does not present as a serial offender that ignores its safety obligations or pays little regard to them, this present offence is a disturbing breach for a body of its kind and leads the Court to conclude that specific deterrence should play a significant role in the setting of an appropriate penalty. 51 In relation to subjective factors, the defendant entered its plea of guilty on the first return date of the Order and Summons and did not cavil with the particulars. Having regard to the nature of the incident and the Court time that may have been taken up in a full hearing of the matter, there is considerable utilitarian value in that early plea and it is appropriate that the defendant be given a 25 per cent discount on the overall penalty to be imposed. 52 On the evidence before the Court it is satisfied that the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 have been satisfied and in this case remorse and contrition may be taken into account as a mitigating factor. The Court accepts the defendant's submission that it has expressly accepted responsibility for its role in this breach of the Act and that is reflected in its guilty plea being entered at the first opportunity. Mr Baker clearly acknowledged the risks to safety and the injuries suffered by the employees and the Court notes the steps taken by way of ex gratia payments to meet the circumstances of the families involved. On the evidence before it, the Court is also satisfied as to the good corporate citizenship of the Department and its involvement with its employees and the wider community. As earlier observed and having regard to the length of time it has been directly involved in the construction industry, the Department's record is to be considered a good record notwithstanding the seriousness of this breach. It had significant safety systems in operation prior to this accident but almost inexplicably they were not enforced in relation to this project. The Department then undertook a thorough review of this type of work and generally its safety systems and made a large number of alterations to those systems, both in direct recognition of avoiding a recurrence of this type of accident as well as making better provision in the future for safety. There is, however, merit in the prosecutor's submissions that the revised contractual provisions may not necessarily be as effective as the Department believes and there is good reason, in light of these comments, for those matters to be revisited to ensure their effectiveness. Lastly, it should be acknowledged that the Department co-operated with the WorkCover investigation in a most commendable way and continues with a consultative process with WorkCover that can only operate to the advantage of all who work on the projects in which the Department is involved. All of these matters will be taken into account in mitigation of the penalty. ORDERS 53 Having regard to the matters referred to above, the Court makes the following orders: (a) the defendant, The State of New South Wales (Department of Services, Technology and Administration) is found guilty of a breach of s 10(1) of the Occupational Health and Safety Act 2000 to which it entered a plea of guilty in Matter No IRC 1446 of 2008; (b) the defendant is fined the sum of $275,000 with half that amount to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as further ordered by the Court. STATEMENT OF AGREED FACTS

The prosecutor is an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in this matter. THE ROLE OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF SERVICES, TECHNOLOGY AND ADMINISTRATION) Background
The State of New South Wales is and was at all material times a body corporate bound by the Occupational Health and Safety Act 2000.
The State of New South Wales (Department of Services, Technology and Administration) as the successor agency to the State of New South Wales (Department of Commerce) which was in turn the successor agency to the State of New South Wales (Department of Public Works and Services) ["DPWS"] is the responsible agency of the Crown, for the purposes of section 120 (1) (b) of the Occupational Health and Safety Act 2000.
At all material times the State of New South Wales was an employer for the purposes of the Occupational Health and Safety Act 2000 and in particular employed: a) Tony Collins as General Manager of the Project Management Group [PMG] of the DPWS; b) Michael Cush as the Operations Director of the PMG of the DPWS; c) Brian Mowbray as the Regional Manager, Riverina/Western Region within the PMG of the DPWS; d) Kevin Ellison as the Regional Contracts Superintendent, Regional Projects, Riverina/Western Region within the PMG of the DPWS; e) Christopher Evans as a Regional Projects Co-ordinator, Regional Projects, Riverina/Western Region within the PMG of the DPWS; and f) Kock Ooi as a grade 7/8 Project Officer, Regional Project, Riverina/Western Region within the PMG of the DPWS.
At all material times the DPWS was responsible for the management of a project that included the construction of a 4 megalitre water reservoir ("the reservoir") at a site approximately 300 metres off Uabba Street, Lake Cargelligo (approximately 600 kilometres west of Sydney). The DPWS undertook the project management role on behalf of the Department of Land and Water Conservation and Lachlan Shire Council. The reservoir was being constructed as part of a project for the improvement of the water supply for the townships of Lake Cargelligo and Tullibigeal.
At all material times Mr Ooi was the Project Manager assigned by the DPWS to manage the project, including the construction of the water reservoir in accordance with the Project Management Group's contract management system, including the PMG OHS&R system. The tender
In January 2002 the DPWS called tenders for the design and construction of the water reservoir. Tenders closed on 19 February 2002.
On 18 February 2002 BGA Projects Pty Ltd [ACN 092 884 912] ["BGA"] submitted a tender with respect to the construction of the water reservoir, including an offer to construct a reinforced concrete roof at additional cost.
On 3 April 2002, following completion of a tender review, Mr Ooi recommended acceptance of the BGA tender to the DPWS' Board of Advice and Reference. The BGA tender was the lowest priced conforming tender, including the reinforced concrete roof, and 13% lower than the Department's pre-tender estimates. The tender review included contacting referees who both advised that BGA's reinforcement and concrete quality and time management were good, and further that 'the designer engaged by BGA [was] well-qualified for the work'. Of the two referees contacted, one indicated that BGA's occupational health and safety was "good" while the other indicated that it was "acceptable".

Inspector Childs (WorkCover Authority of New South Wales) v State of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Cited By (2)