Inspector Ching v Bros Bins Systems Pty Ltd - [2003] NSWIRComm 386 - NSWIRComm 1994 case summary — Zoe

NSWNSWIRComm

Inspector Ching v Bros Bins Systems Pty Ltd

[2003] NSWIRComm 386

Industrial Relations Commission (NSW)|1994-09-09|Before: Wright J, Walton J, Boland J, Mr P, Mr J, Marks J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1994-09-09

Before

Wright J, Walton J, Boland J, Mr P, Mr J

Source

Original judgment source is linked above.

Judgment (58 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Ching v Bros Bins Systems Pty Ltd [2003] NSWIRComm 386 APPELLANT Inspector Barnabas Ching PARTIES : RESPONDENT Bros Bins Systems Pty Ltd FILE NUMBER: IRC 6649 of 2002 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS : Appeal - Leave to appeal - Occupational Health and Safety - Whether no case to answer - Whether truck was "plant" within the meaning of s 17(1)(b) of Occupational Health and Safety Act 1983 in circumstances where truck sent for repair - Held truck was plant - Defendant has case to answer Factories Act 1961 (UK) LEGISLATION CITED : Industrial Relations Act 1996 s 188(2) s 197A Occupational Health and Safety Act 1983 s 4(1) s 5(1) s 15 s 16 s 17 (1)(b) s 18 s 19 Occupational Health and Safety Act 2000 s 10(2) s 10(4)(b) Blake v Shaw (1860) John 732 Bultitude v Grice Constructions Pty Limited (2002) 115 IR 59 Haigh v Charles W Ireland Limited [1973] 3 All ER 1137 Inspector Ching v Bros Bins Systems Pty Ltd [2002] NSWIRComm 276 Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, CT 93/1044 and 1047, 9 September 1994) Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380 CASES CITED : Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 McMillan Britton and Kell v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 Sherritt Gordon Mines v FCT (1976) 10 ALR 441 Thomas v Jakacic (1983) 34 SASR 425 Waugh v Kippen (1986) 160 CLR 156 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 Yarmouth v France (1887) 19 QBD 647 HEARING DATES: 09/15/2003 DATE OF JUDGMENT: 12/12/2003

[16]

4 His Honour began his consideration by having regard to the relevant provisions of the Act, including the objects of the Act and the context in which s 17 operates (at pars [9] - [21]). After finding that that there was "clear … evidence that the defendant retained some control over the truck while it was within the premises of Tibby Rose Auto", his Honour considered the requirement that the truck be "plant" within the meaning of s 17(1)(b) in the following terms: 26 The next element is the requirement that the truck and its equipment or, perhaps, the truck or its equipment, be plant within s 17(1)(b). It was in this area that the greatest controversy arose between the parties. Put simply, the prosecution submitted that the truck was plant and that it had been provided by the defendant for both use and operation of employees of Tibby Rose Auto during the course of performing their work. Accordingly, it fell within s 17(1)(b). The defendant submitted that the truck was not plant and, in addition, even if it had been plant it had not been provided for the use or operation of persons at work in the sense that it was not used by them as part of their plant to be used or operated in connection with carrying out their work. 27 The defendant relied on a discussion of the meaning of the word "plant" in the context of s 18 of the Act in a judgment which I gave in WorkCover Authority of New South Wales (Insp Gilbert) v R & D Panelform Pty Ltd (1997) NSWIRComm 189 (unrep 19 December 1997). In the course of that judgment I said in part: "The word 'plant' is defined in s 4 of the Act in an inclusive manner as follows: 'plant' includes any machinery, equipment and appliance; The inclusive nature of the definition of plant in s.4 compels an examination of the ordinary meaning of the word "plant". A useful description of this word is given by Lord Diplock in the House of Lords in Haigh v Ireland (Charles W) Ltd (1973) 3 All ER 1137. His Lordship said (at 1147-8) 'In the context of an Act which deals with what goes on in factories, 'plant' is an ordinary English word in common usage whose meaning is well understood. To quote the Shorter Oxford English Dictionary it means 'The fixtures, implements, and apparatus used in carrying on any industrial process'. As such it is to be distinguished from the products of the process or the objects on which the process is carried out. Save in its restriction to 'industrial' processes, which is appropriate to an Act in which the definition of 'factory' is confined to premises in which processes which would ordinarily be called 'industrial' are carried on, this definition is substantially the same as that stated by Lindley LJ in Yarmouth v France (1887) 19 QBD 647 at 658: ' . . . in its ordinary sense [he said], it includes whatever apparatus is used by a business man for carrying on his business, - not his stock-in-trade which he buys or makes for sale; but all goods and chattels, fixed or moveable, live or dead, which he keeps for permanent employment in his business . . .' It was this ordinary meaning which he ascribed to the word 'plant' as used in the Employers' Liability Act 1880, in a context in which it was not confined to plant of employers whose business consisted of carrying on industrial processes. The marked preference which courts habitually show for citing judicial in preference to lexicographers' definitions of ordinary English words, even when they are not legal terms of art, has led to the acceptance of Lindley LJ's definition as being the meaning of the word 'plant' where it has been used without any express statutory definition in a variety of enactments, particularly those dealing with taxation of industrial enterprises. It is a definition of a physical object by reference to the use to which it is being put. Where, as in the Factories Act 1961, all references to 'plant' are to plant within a factory in which an industrial process is carried on, the only relevant use, in my opinion, is that to which the physical object is being put in that factory. If it is there as part of the apparatus for use in carrying on the industrial process undertaken on those premises, it is 'plant' within the meaning of the Act even though it may be temporarily out of use or in the course of installation, repair or removal. If it is there for the purpose of being subjected to that industrial process it is an 'article' as that term is used in the definition in s.175 to describe the physical objects on which are carried out those industrial processes which qualify the premises where they are undertaken as a 'factory' within the meaning of the Act; it is not 'plant', whatever may be the use to which it has been previously put or may be subsequently put elsewhere.' The above extract emphasises that it is necessary to have regard to the context in which the word occurs in order to establish its correct meaning. It is for this reason that I shall refrain from considering the many taxation cases dealing with the meaning of that word because in most cases the courts there were considering the meaning of plant in the context of plant used for the purpose of gaining assessable income. This has led in many cases to a discussion as to whether a building might be plant. Another example is provided by the well known case of Yarmouth v France (1887) 19 QBD 647 in which it was held that a horse which had injured an employee was plant used in the business of the defendant." 28 The 2nd Ed of the Macquarie Dictionary defines plant, relevantly, as: "the equipment, including the fixtures, machinery, tools, etc, and often the buildings, necessary to carry on any industrial business: a manufacturing plant.... the complete equipment or apparatus for a particular mechanical process or operation: the power plant of a factory". 29 The sense in which "plant" was discussed in the authorities referred to above and in the Macquarie Dictionary definition indicates that the word is descriptive of items that are intended to be used or operated in the course of carrying on activities, inferentially being activities of a business nature or something analogous to a business nature. The word in this sense conveys a meaning more indicative of something which is used or operated to enable work to be carried out.

[20]

8 Marks J referred to the prosecutor's reliance on a judgment of Peterson J in Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, CT 1044 and 1047 of 1993, 9 September 1994). In relation to that judgment his Honour said at pars [43] to [49]: 43 It is necessary that I consider his Honour's judgment in some detail. A four-year-old child had died when a timber column in a retailing trading area within the Carlingford Court Centre, Carlingford fell. The shopping centre was managed by Growth Equities Service Pty Ltd (" Growth Equities "). That company was charged with a breach of s 17(1)(b) of the Act. Ten timber triangular columns had been used to mark out trading areas occupied by two retailers. They had been stored in a storeroom at the centre and had been owned and used by a retailer who had since left the shopping complex. There was no issue that Growth Equities had control of the timber columns in that it had controlled the shop area in which they had been located. 44 His Honour considered whether it was necessary that there must have been an intention that the plant be used or operated by persons at work in connection with its provision. His Honour rejected such a construction holding that all that was necessary was that the plant be available for use "regardless of actual intent at any given time. Here the columns were lying flat in store but they remained columns available for use as such. In every sense, then, Growth Equities provided the columns for use by relevant persons." Although Mr Reitano relied upon this approach to construction to assist the prosecutor's case I do not regard his Honour's conclusion as one which is determinative of the issue in these proceedings. The issue here goes more to how one defines the word "plant" and as to whether it includes any item or article which employees are required to use or operate whilst performing their work duties or whether it has a more limited meaning as discussed above. 45 Peterson J next considered the meaning of the word "plant". His Honour had been asked to conclude that the columns created the general setting in which the business activities had been conducted being in the nature of land or buildings. It had been submitted that the columns in question "delineated the boundary of the place of work in effect in much the same way as a wall of a building or any fence might do." His Honour had no difficulty in rejecting this submission saying, in part: "An analysis of s 17 of the Act demonstrates an intention to impose a duty to ensure safety and an absence of risks to health of any person who has control (to any extent) of what I might paraphrase as workplaces, plant or substances for use at work. The division of the section into premises, plant and substances seems to me to have a width which is intended to be all-embracing in the industrial context. "Plant" is not to be given a narrow meaning but one wide enough to embrace the multiplicity of machinery and equipment which may be employed at a workplace. The expression is not to be confined to machinery of a productive nature or indeed mechanised or electrical or electronic equipment only. The meaning is wide enough to embrace a chair which is employed by a person at work. Why then should it not extend to manufactured columns or columns which are available for use in a retail store? The form of these columns would permit a variety of uses including of course that which was employed in this case. The fact that they were used here for the purpose of defining the line between two workplaces does not in my opinion characterise them as the "setting" of the work in the sense employed in the tax cases. Given the context of s 17, a conclusion that the columns were part of the "setting" of the work would place them (as do the authorities in the tax areas) in the category of 'premises', a result I would consider absurd and contrary to both the intention and meaning of the section. I am satisfied that they constitute "plant" within the meaning of s 17(1)(b) of the Act. I find untenable the submission that s 17 is directed to plant and not its use. The purpose of the section seems to me to be patently obvious: it is to ensure that so far as s 17(1)(b) is concerned, the use or indeed the presence of plant or substances, will not present a danger to relevant persons at that place of work. An offence under this provision can arise when the plant is inactive or when it is in use. If one contemplates the provision of an acid for use in some process step in a given operation, then the concern would be that the storage and means of making available the acid to the process would be safe and that proper precautions were taken in relation thereto in the conduct of the process itself. The acid for the purposes of this discussion may be assumed to have an inherent characteristic which is dangerous to humans on bodily contact. It is not the neutralisation of that inherent characteristic to which the section is directed but the proper management of the substance. In like manner, the use or management of the columns is a matter with which s 17 is concerned."

[21]

46 Mr Reitano focused on the use of the word "employed" and his Honour's statement that plant was wide enough "to embrace the multiplicity of machinery and equipment which may be employed at a workplace." Mr Reitano submitted that this indicated that Peterson J concluded that any machinery and equipment which was used by employees could be plant, albeit it might be the subject of repair. 47 I am unable to accept the judgment of Peterson J as expressing any conclusion or view concerning the controversy which is at the root of these proceedings. His Honour was dealing with a quite different situation, far removed from the factual circumstances present in these proceedings. I apprehend his Honour to have determined that "plant" ought to be construed so that it extends to all machinery and items of equipment which are utilised by employees in and about carrying out their work. It is in this context that his Honour referred to a chair. It is in this context that his Honour referred to the provision of acid which, although a substance, is nevertheless caught up by s 17(1)(b). His Honour could not be taken to be including any equipment or items on which work was being performed as falling within what is plant for the purpose of that provision. 48 I conclude that notwithstanding the submissions of Mr Reitano, that the approach to construction of s 17(1)(b) adopted by Peterson J in Growth Equities is consistent with the approach which I prefer. Accordingly, I conclude that neither the truck nor its equipment was plant for the purpose of s 17(1)(b) of the Act and that this essential element of the charge has not been made out. 49 Although this finding is conclusive of the matter I should state for completeness that if I had held that the truck had been plant for the purposes of s 17(1)(b) I would have held that it had been provided for the use or operation of persons at work who were not employees of the defendant. I would also have held, as was not put in issue, that the truck was in non-domestic premises.

[29]

18 Section 10 of the 2000 Act which is the comparable provision of s 17 is in the following terms: 10. Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and (b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and (c) extend to the means of access to or exit from a place of work, and (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. (4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and (b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances. 19 The appeal raises squarely for consideration the interpretation that is to be applied to s 17(1)(b) of the Act. Whilst it is the case that the 1983 Act has been repealed and replaced by the Occupational Health and Safety Act 2000 we note that although there are important differences in the wording between s 17(1)(b) and its counterpart in the 2000 Act, namely s 10(2), there are also distinct and relevant similarities. Moreover, given that we have formed the view that Marks J erred in his interpretation of s 17(1)(b) of the 1983 Act, we consider it is in the public interest that the error be corrected to avoid the prospect that an erroneous approach be taken to the interpretation of s 10(2) of the 2000 Act by reference to his Honour's judgment.

[43]

33 In Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 the Full Bench considered the meaning of the phrase "place of work" in s 16(1) of the Act: 58 To adopt the interpretation put forward by the appellant, namely, that the words "place of work" in s 16(1) are not capable of bearing a construction to include "means of access to or egress from", would have the result of relieving an employer of any liability which would otherwise exist under s 16(1) if it could be shown that the subject persons, at the material time, were using a means of access to or egress from a location where they performed work. Moreover, if that place of work could not be said to be under the control of the employer then s 17 of the Occupational Health and Safety Act would also have no application. Section 15 would have no application because that section only deals with the obligations of employers to their own employees. No other section in the statute would have application. 59 The consequences of adopting the appellant's interpretation would be to create a significant loophole in the legislation which we do not consider can be justified. 60 It is clear that, in interpreting the obligations under s 16, the Court must take into account the purposes of the legislation. The basis of this approach was set out by Hungerford J in Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 at 49-50 and applied recently by Hungerford J in WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Limited trading as Boral Asphalt (2000) 98 IR 246 at pars 18-19. In Kirkby , Hungerford J considered the question of general purpose and concluded in relation to s 16(1) at 49-50: I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s 15(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court ( Mason , Wilson , Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Accident prevention is unquestionably one of the modern responsibilities of an employer." The approach was furthered by Mason , Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer."