Inspector Christensen v Harnischfeger of Australia Pty Ltd t/as H & P Minepro Services

PROSECUTOR: Mr M Cahill of counsel SOLICITORS: Mr P J Thompson Moray & Agnew

DEFENDANTS: Harnischfeger of Australia Pty Ltd t/as P & H Minepro Services (Australasia) LEGAL REPRESENTATIVES: (Matter No IRC 4832 of 2003) Mr W Murphy, Solicitor Bartier Perry

Zelbarry International Pty Ltd. (Matter No IRC 4833 of 2003) Mr R Bromwich of counsel SOLICITORS: Ms Nada Vujat Emery Partners

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Haylen J 26 May 2004

Matter No. IRC 4832 of 2003 Inspector Madeleine Christensen v Harnischfeger of Australia Pty Ltd t/as P & H Minepro Services (Australasia). Prosecution under s 8(2) of Occupational Health and Safety Act 2000

Matter No IRC 4833 of 2003 Inspector Madeleine Christensen v Zelbarry International Pty Ltd. Prosecution under s 8(1) of Occupational Health and Safety Act 2000 JUDGMENT [2004] NSWIRComm 131 1 On 1 May 2002, Mr Phillip Batterham was working at the Mt Thorley premises of Harnischfeger of Australia Pty Ltd ("Harnischfeger"). Harnischfeger was involved in the maintenance and repair of surface mining equipment used in open cut mining. In conducting this business it had contracted with Zelbarry International Pty Ltd ("Zelbarry") which was a labour hire company. Zelbarry employed workers skilled in the metal fabrication, mechanical, civil engineering, electrical and painting trades and professions for placement in industry. Zelbarry had employed Mr Batterham as a welder and in turn Mr Batterham's services had been supplied to Harnischfeger to perform various types of welding work. On 1 May 2002, Mr Batterham was welding what were described in the proceedings as "wear plates" or "wear bands" to a large mining bucket when a jig failed in the course of this work and struck Mr Batterham in the head, resulting in a depressed fracture of his skull. Inspector Christensen commenced proceedings against Harnischfeger under s 8(2) of the Occupational Health and Safety Act 2000 and also commenced proceedings against Zelbarry under s 8(1) of the Act. 2 Both Harnischfeger and Zelbarry entered pleas of guilty. Because of the common facts and circumstances, the pleas were, by consent, heard together. A significant difference between the defendants, however, was the fact that Zelbarry had no prior convictions under the Act but Harnischfeger had one prior conviction. 3 In each matter an Agreed Statement of Facts was tendered. In the case of Harnischfeger, the Agreed Facts, omitting formal matters, was in the following terms: … 3. At all material times the defendant conducted its business under the trading name P&H MINEPRO SERVICES (AUSTRALASIA). 4. The defendant was at all material times on 1 May 2002 an employer. 5. The defendant conducted its business of the manufacture, repair and maintenance of mining equipment from its premises at 11 Mt. Thorley Road, Mt. Thorley, in the state of New South Wales (the premises). 6. At all material times the defendant was an employer. 7. At all material times Phillip Batterham was employed by a labour hire company, Zelbarry International Pty Ltd (ACN 095 753 987), as a Welder. 8. At all material times Zelbarry International Pty Ltd was an employer. 9. The injured worker commenced employment with Zelbarry International Pty Ltd in approximately March 2001. The injured worker had completed a pre-apprenticeship course in boilermaking and had 15 years experience working in the industry. 10. In approximately October 2001 Zelbarry International Pty Ltd entered into an arrangement with the defendant for the hire of the services of trade labour personnel to the defendant. 11. On 29 March 2002 pursuant to the agreement between the defendant and Zelbarry International Pty Ltd the worker commenced work off site. On 11 April 2002 the worker commenced at the defendant's premises. The worker was hired to perform welding work at the defendant's premises. Prior to commencing work at the defendant's premises the worker passed a weld test in accordance with AS 2980-1997, Qualification Of Arc-Welders For Welding of Steel. This test established that the worker was competent to carry out the welding allocated to him by the defendant. 12. The worker had been hired to increase production capacity. As a result the worker was performing a variety of different tasks. 13. Situated at the defendant's premises was an area known as the No. 1 Fabrication Shop (the workshop). 14. Located in the workshop was a dipper bucket ("the bucket") off the Warkworth 4100A P&H Shovel. 15. The shovel bucket was 3.7m in height, 3.7m in width and 3.7m in length. 16. Located on one side of the bucket was a scaffold which provided a working platform for workers to access the top of the bucket. There were safety rails around the top of the bucket. 17. Located on the edge of the bucket were two long lengths of hardened steel plate. These plates were known as the heel wear bands ("the bands") and were bent to the profile of the bucket. At the time of the inspection by the Informant on 2 May 2002, one band had been welded into place and the other was partially welded into place. 18. On Monday, 29 April 2002 the worker was directed to fit the bands to the bucket. The worker had at least three years prior experience welding wear plates to buckets. At all material times on 29 April 2002 the worker was working with an experienced boilermaker employed by the defendant, John Elder, in performing the task of fitting the bands to the buckets. Mr Elder provided the method for fitting the bands to the bucket. The method of work in which the worker had experience was different to the method adopted by Mr Elder. Mr Elder did not provide the worker with a written work method statement. When asked about the number of staff usually assigned to do the task, Mr Elder observed that the defendant "normally" provided two staff to undertake the task that the worker was performing on his own at the time of the subject incident. The worker sought the provision of another worker to assist him so the worker proceeded with the task on his own. 19. The purpose of applying the heel bands was to provide protection against wear for the whole of the heel area of the bucket. Part of the heel of the bucket is called the "Dutchman". The Dutchman is the centre of the bucket and is the mechanism into which the bucket door locks. 20. The Dutchman is made from manganese steel. The bucket is made from a combination of hardened and structural steel. 21. The bands are made from hardened steel. Stainless steel welding consumables are required to weld manganese steel. 22. Stainless steel welding consumables are unsuitable for welding mild steel to mild steel. 23. When welding hardened steel it is preferable not to use stainless steel welding consumables. 24. The method to carry out the work which had been adopted by Mr Elder involved using a crane to set the heel band on the bucket and then using wedges and a dog to hold the band in place on the bucket. Where the band touched the plate it was tack welded down so that it didn't move. The heel band had to be rammed into position so it fitted the profile of the bucket. Mr Elder used a "U" plate which was picked up by crane and transported to where the worker and Mr Elder were working. A Porta Power ram was also picked up by crane and placed on the top of the bucket. While the U plate was attached to the crane, one side of the U plate was inserted inside the bucket with the other side of the U plate over the top of the bucket and the heel band. Mr Elder then welded the side of the U plate which was inside the bucket to hold it in place. Mr Elder then put the Porta Power ram under the side of the U plate which was over the top of the heel band. He then used the Porta Power to ram the heel band into position and tack the welded band where it touched the bucket. The porta power was again used to ram the wear plate and the weld holding the U plate into position snapped. Mr Elder informed the injured worker that the welds were prone to breaking and that he had to keep his body away from the porta power. Following the incident the defendant reviewed the task and introduced a new method for the conduct of the task which involved the use of a jig specifically designed and engineered for the task, thereby avoiding having to weld brackets to the dipper body. 25. During this operation on 29 April 2002 one of the welds failed. The jack and the "U" shaped jig were held in place by the jib crane which prevented the jack and the jig from flying free and no one was injured. 26. On Tuesday 30 April 2002 Mr Elder was required to work on site at Bulga. The worker was then directed to continue the task of fitting the bands to the bucket on his own. 27. On Wednesday 1 May 2002 the task had not been completed and the worker was again directed to continue fitting the bands. 28. On 1 May 2002 the worker used the jib crane to lift the bands onto the bucket. He then set up a scissor lift on the side of the bucket to allow him access to the side of the bucket in order to push the band along the side of the bucket as may be necessary to perform the task. 29. The worker discovered on manoeuvring the band into position that it did not fit the profile of the bucket and determined that it was necessary to further bend the band to match the profile of the bucket. He decided to use a jig and the jack in order to bend the band. 30. The worker then made up a jig which consisted of four pieces of flat steel bar welded together to form a U shape. He welded one arm of the jig to the bucket and the other arm of the jig to the heel band which was already attached to the bucket using stainless steel welding consumables. He then placed the jack into position and operated the jack to bend the band into position. 31. The worker then asked his supervisor, Gavin Vernon to inspect the band and to confirm that they were in the correct position. Mr Vernon confirmed the heel band was in the correct position. Whilst Mr Vernon was inspecting the band the worker asked him to supply another person to assist him with his task. 32. Mr Vernon inspected the job and went back to his duties without assigning another worker to assist the worker. 33. The worker continued the work alone. He heated the band and pressed it down using the jack. As he was in the process of tack welding the band down the welds connecting the jig to the bucket failed. The jig was under pressure from the jack at the time. The jig broke free from the bucket and struck the injured worker on the head. 34. As a result of the accident the injured worker received a fracture to the skull which required a metal plate to be inserted into his skull. 35. At all material times the worker was not wearing a safety helmet. 36. At all material times the worker, Mr Elder and Mr Vernon were aware of the defendant's requirement that a risk assessment be carried out in relation to the job the worker was doing. But neither Mr Elder nor Mr Vernon required the worker to perform a risk assessment before he commenced the task. 37. The injured worker returned to work in approximately August 2002. 38. As a result of the defendant's failure, Phillip Batterham was placed at risk and suffered a fracture to his skull. 39. At all material times the defendant's system of work for the conduct of its undertaking was unsafe because: (i) the worker used unsuitable and/or incompatible welding consumables/rods when welding the jig to the bucket. (ii) the jig was not adequately supported whilst he was performing the welding works. (iii) the jack was not adequately supported whilst he was performing the welding works. (iv) it was necessary for the worker to lean over the jig whilst it was under pressure from the jack in order to ensure that the material to be welded remained in the correct position for welding. (v) there was no assistance provided to the worker during the performing of the task in circumstances where having an assistant would have obviated the need for the worker to lean the jig which was under pressure from a jack. (vi) there was no risk assessment for this particular task. (vii) there was no documented safety procedure in place for this task. (viii) the defendant knew or ought to have known that there was a risk of the weld connecting the jig to the bucket failing. (ix) the defendant did not provide adequate training to the worker in respect of the task he was required to perform. (x) the defendant did not provide adequate supervision to the worker in respect of the task he was required to perform. (xi) the defendant did not provide adequate instruction to the worker in respect of the task he was required to perform. (xii) the defendant did not provide adequate information to the worker in respect of the task he was required to perform. (xiii) the worker was not wearing a safety helmet or any other form of head protection at the time of the accident. 4 The Agreed Statement of Facts, omitting formal matters, in relation to Zelbarry was in the following terms: ... 3. The defendant conducted its business of the hire of the services of trade labour personnel from its premises at Suite 1, 133-135 Beaumont Street, Hamilton, in the state of New South Wales. ("the premises"). 4. The defendant was at all material times on 1 May 2002 an employer. 5. At all material times the defendant was an employer. 6. At all material times Phillip Batterham was employed by the defendant as a Welder. At all material times Phillip Batterham was employed by the defendant as a Welder. 7. The injured worker commenced employment with the defendant in approximately March 2001. The injured worker had completed a pre-apprenticeship course in boilermaking and had 15 years experience working in the industry. 8. In approximately October 2001 the defendant entered into an arrangement with Harnischfeger of Australia Pty Ltd trading as P&H Minepro ("Harnischfeger") for the hire of the services of trade labour personnel to Harnischfeger. 9. On 29 March 2002 pursuant to the agreement between the defendant and Harnischfeger the worker commenced work at Harnischfeger's premises. The worker was hired to perform welding work at the Harnischfeger's premises. Prior to commencing work at Harnischfeger's premises the worker passed a weld test in accordance with AS 2980-1997, Qualification Of Arc-Welders For Welding of Steel. 10. The worker had been hired to fill in for workers who were absent. As a result the worker was performing a variety of different tasks. 11. Situated at Harnischfeger's premises was an area known as the No. 1 Fabrication Shop ("the workshop"). 12. Located in the workshop was a dipper bucket ("the bucket") off the Warkworth 4100A P&H Shovel. 13. The shovel bucket was 3.7m in height, 3.7m in width and 3.7m in length. 14. Located on one side of the bucket was a scaffold which provided a working platform for workers to access the top of the bucket. There were safety rails around the top of the bucket. 15. Located on the edge of the bucket were two long lengths of hardened steel plate. These plates were known as the heel wear bands ("the bands") and were bent to the profile of the bucket. At the time of the inspection by the Informant on 2 May 2002, one band had been welded into place and the other was partially welded into place. 16. On Monday, 29 April 2002 the worker was directed to fit the bands to the bucket. The worker had at least three years prior experience welding wear plates to buckets. At all material times on 29 April 2002 the worker was working with an experienced boilermaker employed by Harnischfeger, John Elder, in performing the task of fitting the bands to the buckets. Mr Elder provided the method for fitting the bands to the bucket. The method of work in which the worker had experience was different to the method adopted by Mr Elder. Mr Elder did not provide the worker with a written work method statement. When asked about the number of staff usually assigned to do the task, Mr Elder observed that the Harnischfeger "normally" provided two staff to undertake to the task that the worker was performing on his own at the time of the subject incident. The worker sought the provision of another worker to assist him so the worker proceeded with the task on his own. 17. Neither the defendant nor Harnischfeger undertook a risk or hazard assessment for this specific task. 18. No work method statement was created by Harnischfeger for this particular task. 19. The defendant did not check with Harnischfeger as to whether a work method statement had been undertaken for this particular task. 20. The only instructions provided to the injured worker were provided by Mr Elder. 21. The purpose of applying the heel bands was to provide protection against wear for the whole of the heel area of the bucket. Part of the heel of the bucket is called the "Dutchman". The Dutchman is the centre of the bucket and is the mechanism into which the bucket door locks. 22. The Dutchman is made from manganese steel. The bucket is made from a combination of hardened and structural steel. 23. The bands are made from hardened steel. 24. Stainless steel welding consumables are required to weld manganese steel. 25. Stainless steel welding consumables are unsuitable for welding mild steel to mild steel. 26. When welding hardened steel it is preferable not to use stainless steel welding consumables. 27. The method to carry out the work which had been adopted by Mr Elder involved using a crane to set the heel band on the bucket and then using wedges and a dog to hold the band in place on the bucket. Where the band touched the plate it was tack welded down so that it didn't move. The heel band had to be rammed into position so it fitted the profile of the bucket. Mr Elder used a "U" plate which was picked up by crane and transported to where the worker and Mr Elder were working. A Porta Power ram was also picked up by crane and placed on the top of the bucket. While the U plate was attached to the crane, one side of the U plate was inserted inside the bucket with the other side of the U plate over the top of the bucket and the heel band. Mr Elder then welded the side of the U plate which was inside the bucket to hold it in place. Mr Elder then put the Porta Power ram under the side of the U plate which was over the top of the heel band. He then used the Porta Power to ram the heel band into position and tack the welded band where it touched the bucket. The porta power was again used to ram the wear plate and the weld holding the U plate into position snapped. Mr Elder informed the injured worker that the welds were prone to breaking and that he had to keep his body away from the porta power. Following the incident Harnischfeger reviewed the task and introduced a new method for the conduct of the task which involved the use of a jig specifically designed and engineered for the task 28. During this operation on 29 April 2002 one of the welds failed. The jack and the "U" shaped jig were held in place by the jib crane which prevented the jack and the jig from flying free and no one was injured. 29. On Tuesday 30 April 2002 Mr Elder was required to work on site at Bulga. The worker was then directed to continue the task of fitting the bands to the bucket on his own. 30. On Wednesday 1 May 2002 the task had not been completed and as again directed to continue fitting the bands. 31. On 1 May 2002 the worker used the jib crane to lift the bands onto the bucket. He then set up a scissor lift on the side of the bucket to allow him access to the side of the bucket in order to push the band along the side of the bucket as may be necessary to perform the task. 32. The worker discovered on manoeuvring the band into position that it did not fit the profile of the bucket and determined that it was necessary to further bend the band to match the profile of the bucket. He decided to use a jig and the jack in order to bend the band. 33. The worker then made up a jig which consisted of four pieces of flat steel bar welded together to form a "U" shape. He welded one arm of the jig to the bucket and the other arm of the jig to the heel band which was already attached to the bucket using stainless steel welding consumables. He then placed the jack into position and operated the jack to bend the band into position. 34. The worker then asked his supervisor, Gavin Vernon to inspect the band and to confirm that they were in the correct position. Mr Vernon confirmed the heel band was in the correct position. Whilst Mr Vernon was inspecting the band the worker asked him to supply another person to assist him with his task. 35. Mr Vernon inspected the job and went back to his duties without assigning another worker to assist the worker. 36. The worker continued the work alone. He heated the band and pressed it down using the jack. As he was in the process of tack welding the band down the welds connecting the jig to the bucket failed. The jig was under pressure from the jack at the time. The jig broke free from the bucket and struck the injured worker on the head. 37. As a result of the accident the injured worker received a fracture to the skull which required a metal plate to be inserted into his skull. 38. At all material times the worker was not wearing a safety helmet or any other form of head protection. 39. At all material times the worker, Mr Elder and Mr Vernon were aware of the defendant's requirement that a risk assessment be carried out in relation to the job the worker was doing. But neither Mr Elder nor Mr Vernon required the worker to perform a risk assessment before he commenced the task. 40. The injured worker returned to work in approximately August 2002. 41. As a result of the defendant's failure, Phillip Batterham was placed at risk and sustained comminuted depressed fractures to the left frontal bone and frontal sinuses. 42. At all material times Harnischfeger's system of work for the conduct of its undertaking was unsafe because: (i) the jig was not adequately supported whilst he was performing the welding works. (ii) the jack was not adequately supported whilst he was performing the welding works. (iii) it was necessary for the worker to lean over the jig whilst it was under pressure from the jack in order to ensure that the material to be welded remained in the correct position for welding. (iv) there was no assistance provided to the worker during the performing of the task in circumstances where having an assistant would have obviated the need for the worker to lean the jig which was under pressure from a jack. (v) there was no risk assessment for this particular task. (vi) there was no documented safety procedure in place for this task. (vii) the defendant knew or ought to have known that there was a risk of the weld connecting the jig to the bucket failing. (viii) the defendant did not provide adequate training to the worker in respect of the task he was required to perform. (ix) the defendant did not provide adequate supervision to the worker in respect of the task he was required to perform. (x) the defendant did not provide adequate instruction to the worker in respect of the task he was required to perform. (xi) the defendant did not provide adequate information to the worker in respect of the task he was required to perform. (xii) the worker was not wearing a safety helmet or any other form of head protection at the time of the accident. EVIDENCE FOR THE DEFENDANTS 5 For Harnischfeger, affidavit evidence was given by Mr Steven Lennard who was the defendant's general manager, South East region. In his role, he was responsible for the business carried on by the defendant in New South Wales, Victoria, Tasmania and New Zealand. He noted that, at the time of giving his evidence, the defendant's current business dealings within the region were limited to New South Wales. He described the defendant's business in Australia as being the sale, manufacture, maintenance and repair of surface mining equipment used in open cut mining. The defendant had been trading in Australia since 1988 but prior to that the Australian business had been run by the parent company from 1958. 6 The defendant's head office was in Queensland and it currently employed 47 persons in New South Wales. Until December 2003, the defendant's work was primarily carried out at the premises at Mt Thorley while the defendant also had staff on site, from time to time, at mines in the Hunter Valley to carry out repair and maintenance work. 7 Because of losses in the business, a number of employees had been made redundant whereas prior to December 2003 the defendant had employed approximately 115 persons in New South Wales. The defendant's activities in New South Wales were now limited to the maintenance and repair of mining equipment at mines in the Hunter Valley and the supply of spare parts to the mining industry. Spare parts were warehoused and distributed from the Mt Thorley premises but the defendant no longer carried out any maintenance or repair of surface mining equipment at the Mt Thorley premises. In addition to the New South Wales operation, the defendant conducted business in Queensland, Western Australia, South Australia and parts of South East Asia. It continued to manufacture mining equipment in Western Australia and Queensland and employed approximately 420 persons in Australia and another 20 persons approximately in South-East Asia. 8 Mr Lennard gave some detail of the previous offence under s 8(1) of the Act, while noting that the defendant's parent company had not been convicted of any occupational health and safety offences during its entire period of trading in Australia. In October 2003. the defendant had been fined $19,500 by the Chief Industrial Magistrate. This particular offence related to an incident in October 2001 and also involved the fitting of wear plates to a piece of machinery described as a model 4100 dipper. This work involved attaching new wear pads to the dipper and was carried out at ground level. A jig, which was being supported by a jib crane, was being used to jack the wear plates into position so that they could be welded to the dipper. The person involved was not qualified to rig or attach loads to cranes. However, he attached the jig to the jib crane using an unsafe hooking arrangement. When the jib crane was lifting the jig the lifting chain became detached from the jib crane and the jacking jig fell on an employee's foot causing serious injury. 9 Following this accident, the defendant took a number of steps including holding talks with employees to inform them of the incident and it stressed the requirement for lifts to be performed by qualified personnel. Safety induction documentation was then modified to ensure that rules relating to the performance of lifts using jib cranes were made perfectly clear and that all employees underwent safety induction with emphasis on the rules relating to the performance of lifts. Notices were attached to each overhead crane pendant and on the vertical column supporting each jib crane advising that only qualified personnel were permitted to perform lifts. An engineering jacking jig with fixed lifting points was then manufactured to perform the task. In addition, the workshop adopted the policy of requiring risk assessments to be carried out for all tasks. 10 Mr Batterham had commenced working at the Mt Thorley workshop in about mid April 2002. Prior to commencing work, he undertook Harnischfeger's workshop site safety and environmental induction for permanent/casual and labour hire personnel. At the time of induction, it was this defendant's policy that risk assessments would be completed for all workshop tasks. Prior to commencing work, Mr Batterham had also been subject to the defendant's welder qualification assessment which was carried out in accordance with the Australian Standard. The test determined the ability of a welder to produce sound welds in steel of the kind Mr Batterham would undertake at the defendant's workshop. 11 At the time of the injury to Mr Batterham the defendant had approximately 70 employees working over two shifts in the workshop. There was a foreman in charge of each shift and leading hands who were responsible for approximately 12 workers. There was also a workshop superintendent. Following the previous injury concerning welding wear bars in 2001, it had been decided to lay the bucket with its bottom facing upwards so that the wear bars could be placed on the dipper thus reducing the risk of a worker suffering a foot injury. This decision had been taken by the workshop superintendent who had held that position about three months before this particular incident involving Mr Batterham. The work began on 29 April 2002 and on that day Mr Batterham worked with an experienced boilermaker employed by the defendant, Mr Elder. Mr Elder had been inducted in the defendant's safety system. Mr Batterham's leading hand was Mr Vernon who had also been inducted in the defendant's safety procedures. At this time, the defendant's policy was that all work carried out in the workshop required a risk assessment. 12 Mr Batterham worked with Mr Elder on the first day but for the next two days Mr Batterham worked alone. Mr Lennard stated that there were a number of failures in the defendant's safety system in relation to the injuries suffered by Mr Batterham. Those failures included a risk assessment not having been carried out concerning the work to be undertaken, inadequate supervision and instruction of Mr Batterham in the course of carrying out his work, the failure to provide additional workers to assist Mr Batterham with the work and failure to ensure that Mr Batterham used welding consumables consistent with the material he was working on at the time. Mr Lennard expressed the defendant's sincere regret for the injury suffered by Mr Batterham and the defendant's systems failure. 13 Following the injuries suffered by Mr Batterham, an accident report was completed by the defendant which identified a number of failings in its safety system. This report was provided to WorkCover at its request. The report identified a number of steps which were taken to prevent a recurrence of this type of injury. Those steps included tool box talks to advise all workers of the incident and re-affirm the need to carry out an assessment of all risks prior to the commencement of any task. A review of risk assessment procedures was undertaken including auditing and disciplinary matters. The work process was adapted to utilise the engineering jacking jig that could be placed in position without the need to weld brackets to the dipper was undertaken and all of these matters were addressed by 30 June 2002. 14 After the incident, the defendant adopted a process of placing blank risk assessments in plastic sleeves in job packets in the workshop, making use of risk assessments more automatic when jobs were carried out. This also made it easier to audit the fact that risk assessments were being carried out. Signage was also erected at the Mt Thorley premises reminding workers of the need to carry out risk assessments. There were photographs in evidence demonstrating the nature of this signage. Steps were taken to ensure that new workers in the workshop would work with an experienced tradesperson for two weeks to evaluate their abilities and introduce them to the workshop practices. A practice was also initiated to ensure workers were not placed on high risk jobs alone. Mr Lennard confirmed that after this incident only two further jobs were carried out by the defendant to attach wear bands to dippers and those jobs were carried out in March 2003 and September 2003. It appears that those jobs were carried out using the engineering jacking jig and it also appeared that on each occasion a risk assessment was carried out for the job. Mr Lennard confirmed that the defendant no longer carried out the fitting of wear bands to dipper buckets. 15 Mr Lennard gave details of the defendant's system of safe working prior to the accident. He noted that a full time safety officer was employed at Mt Thorley and that there was also in operation an environmental safety and health procedures system. The procedures covered a range of issues including safety training, safety audits, hazard and risk management, safety identification, site, personal and protective equipment and working in confined spaces. This procedures document remained operative as part of the defendant's safety system. Training in the operation of procedures was provided by the defendant's quality assurance occupational health and safety manager and was given to management and supervisory personnel at Mt Thorley. 16 The defendant's personnel safety regulations handbook was provided to all employees. There was a system of weekly tool box meetings and, for workers on site shut downs, tool box talks were conducted each shift. Attendance at these meetings was compulsory for all employees and labour hire workers on site. Tool box meetings addressed a multitude of safety issues including accidents, safety requirements, safety inspections, safety training and risk assessment. The Mt Thorley Occupational Health and Safety Committee was made up of representatives of employees and management and met on a monthly basis at Mt Thorley. A wide range of issues was able to be dealt with at these meetings: minutes of such meetings were provided in evidence. In addition, work safety inspections were carried out by members of the safety committee. 17 Following the accident, all of the steps including tool box meetings, workplace inspections and risk assessments as referred to above continued to take place. In August 2002, the defendant introduced a new workshop/site safety and environment induction for permanent/casual and labour hire personnel. In mid July 2003, a new safety system was launched throughout Australia by the defendant known as "Prosafe", which was based upon the DuPont Safety System. Training was initially undertaken with the launch of Prosafe by all executive management of the defendant. Subsequently, training was undertaken by senior management and all employees across the whole company. A brochure was to be distributed to all persons coming on to the site including labour hire workers, and a questionnaire was completed by all employees as part of their induction to Prosafe. Mr Lennard said that the Prosafe system operated on the following principles:

(a) developing a positive attitude to safety; (b) emphasising the defendant's goal of zero injuries and work-related sickness in the workforce and its core belief that all injuries could be prevented; (c) emphasis on safety rules - this involved the personnel safety handbook, E S and H procedures, site rules and procedures (SOPs), the human resource manual, pre-start talks and tool box meetings; (d) training in the Prosafe way; (e) the use of safety observations; (f) incident/accident investigation; (g) injury management and rehabilitation; (h) a system of introducing warnings and ultimately dismissal for safety breaches. 18 It was said that the Prosafe system resulted in a two tiered safety committee system - the National Health and Safety Committee and a regional Health and Safety Committee. The South-East regional Health and Safety Committee commenced monthly meetings in late July 2003 with the Committee drawing members from across all areas of employment. The National Health and Safety Committee addressed safety from a national perspective with its purpose to oversee Prosafe, set and review safety policy and report on or monitor safety performance. The National Committee was comprised of executive management and safety specialists across the company and met bi-monthly. 19 The South-East region had developed a number of site rules and procedures relating to safety. The operating procedures manual, operating procedures relating to pre-task risk assessment and safety observations were, in summary, placed into evidence. As part of the Prosafe system, safety audits were carried out by management at Mt Thorley and at customers' sites on a regular basis. The observations were recorded on a centralised data base including notification when audit requirements had been taken or remained outstanding. 20 The defendant acknowledged its safety failures had resulted in the injuries suffered by Mr Batterham and accepted responsibility for those failures. The defendant nevertheless pointed out that it had strived, in the context of a "comparatively high risk industry", to introduce effective safety systems and an effective safety culture throughout its organisation. The defendant continued to strive to ensure it delivered a safe workplace to employees and non employees. 21 For the defendant Zelbarry, affidavit evidence was given by Mr Mastrofilippo. He was a consultant director to Zelbarry and explained how Zelbarry had commenced business as a labour hire company in June 1982 and how it came to be the present defendant employing skilled people in metal fabrication, mechanical, civil, electrical and painting trades and professions. Zelbarry employed between 40 and 140 people. In its various corporate guises it had never been the subject of a WorkCover prosecution. As a consultant director to Zelbarry, Mr Mastrofilippo recruited employees on behalf of the defendant, allocated Zelbarry's employees to host employer clients' work sites and conducted all occupational health and safety general induction training for Zelbarry's employees as well as conducting assessments and audits of host employer sites. 22 At the time of Mr Batterham's accident, there were 20 Zelbarry employees placed at Harnischfeger. Approximately three weeks after the accident, Mr Mastrofilippo conducted a review of all employees placed at Harnischfeger: he decided to withdraw all Zelbarry employees because he was concerned about Harnischfeger's work place practices from an occupational health and safety perspective. He stated that Zelbarry no longer provided labour hire personnel to Harnischfeger. 23 Immediately after Mr Batterham's accident, Mr Mastrofilippo visited him in hospital and offered any assistance that he required. Mr Batterham had received workers compensation payments for the period he was off work and the defendant ensured that he did not suffer any financial detriment as a result of the accident. He was paid above his workers compensation benefits to ensure that his income would be equivalent to his pre-accident weekly earnings. Mr Mastrofilippo also kept in frequent contact with Mr Batterham and his wife during his period of convalescence and offered assistance if needed. It was approximately two months after the accident that Mr Batterham received a medical clearance to work and Zelbarry arranged for him to work at Tomago. He worked there for approximately two months and has since been placed with a mining maintenance company. 24 Since Mr Batterham's accident in 2002, Mr Mastrofilippo had undertaken further training in the area of occupational health and safety. In October and November 2002, he undertook a four day course in occupational health and safety consultation with the Australian Industry Group. The course made him more aware of the current occupational health and safety legislative regime and, in addition, the course enabled him to develop and implement a more effective system for the purpose of assessing and monitoring occupational health and safety issues at Zelbarry's client employer worksites. Zelbarry International was now a member of the Recruitment and Consulting Services Association which provided updates and information concerning occupational health and safety laws as well as regularly conducting courses in a range of areas concerning occupational health and safety. 25 Mr Mastrofilippo said that since the accident at Mt Thorley, Zelbarry had reviewed its occupational health and safety systems. Zelbarry had maintained the following systems:

(a) after employees are recruited to Zelbarry, they are required to attend its occupational health and safety induction programme. The programme is conducted prior to the employee's placement with the client employer and canvasses general occupational health and safety issues relating to the industrial and construction industry; (b) Zelbarry continues to provide a brief resume of the employee's experience and qualifications to the host employer to ensure that the employee has the pre-requisite competency and skills for the job; (c) Zelbarry's employees continue to undertake site specific occupational health and safety induction programmes at their host employer sites. Representatives from the consultancy also continue to attend the site specific induction programmes conducted by host employers to monitor the effectiveness of the induction process; (d) Zelbarry continues to undertake a workplace safety site assessment prior to its employees being placed at the client's work site. The policy is not to place an employee at a client worksite until safety hazards and problems have been rectified. 26 Since the accident, the following improvements to the occupational health and safety systems had been implemented:

(a) following appointment, employees are provided with a 24 hour telephone number for the purposes of contacting Zelbarry's consultants should they be concerned or dissatisfied with any safety issues at the host employer's place of work. Zelbarry's consultants are available seven days per week for this purpose; (b) Zelbarry obtained feedback from its employees as to whether the client employer safety induction programmes were relevant to their needs. Issues such as inadequate safety training were communicated to the manager on site by one of the consultants; (c) Zelbarry compiled written job descriptions for the work duties required by the host employer. These were developed after the initial discussions with the host employer client for the purpose of maintaining written documentation for the matching of employees to jobs; (d) Zelbarry's consultants conduct weekly visits to host employer work sites and site audits are conducted. The audit covers safety aspects such as whether job safety assessments and work method statements have been conducted by the host employer; (e) In late February 2004, Zelbarry implemented Job Safety Analysis Assessments for permanent staff placed at one of its host employer client's work sites. Zelbarry's employees perform these assessments for all tasks undertaken in the workplace. Employees do not commence work tasks until all work hazards have been removed or satisfactorily minimised; (f) pre-shutdown safety meetings are conducted with all Zelbarry's employees before all major projects are undertaken; (g) monthly tool box meetings with all employees of Zelbarry have been implemented in order to provide continuous monitoring of workplace safety issues. The meetings are conducted with employees at the host employer's site and are designed to provide a forum where employees can discuss occupational health and safety issues of concern to them; and (h) Zelbarry have amended the terms and conditions of its labour hire agreement with host employer clients. It is now a condition of the labour hire agreement that the manager of the host employer client notify Zelbarry's consultants if Zelbarry's employees are required to undertake different work from that which they had originally been contracted to undertake. SUBMISSIONS 27 The prosecutor submitted that, because of Harnischfeger's previous offence the maximum penalty for this offence was $825,000. It was accepted that the defendant had addressed itself to issues of occupational health and safety prior to the incident involving Mr Batterham. The affidavit evidence of Mr Lennard indicated that the defendant had turned its mind to occupational health and safety prior to the accident and had in place a detailed occupational health and safety system. However, Mr Lennard acknowledged a number of serious failures in the defendant's occupational health and safety system that gave rise to a real risk of injury. In particular, he acknowledged that there were a number of failures in the system which included a risk assessment not having been carried out in relation to the work being undertaken, inadequate supervision and instruction of Mr Batterham in the course of carrying out his work, failure to provide additional workers to assist Mr Batterham and failure to ensure that Mr Batterham used welding consumables consistent with the material he was working on at the time of the accident. 28 The incident and the injuries sustained by Mr Batterham were evidence of the gravity of the breach and the risk associated with it. The present case highlighted the extent of the defendant's obligations under the Occupational Health and Safety Act 2000 and the need for constant vigilance. The risks associated with the industry were manifest, and it was submitted that the obligation "to ensure" imposed on the defendant by s 8(2) of the Act required that the defendant provide and enforce safe systems of work. That obligation also required the defendant to take steps to obtain compliance with safe systems of work by providing appropriate levels of supervision, auditing and reinforcement. The provision of a safe system of work was of little or no value if the defendant did not take effective steps to obtain compliance. 29 It was noted that after Mr Batterham's accident Harnischfeger took steps to eliminate or otherwise control the risk of injury in relation to this type of work covered by the charge. If the defendant had these safeguards in place prior to the accident, the risk to the defendant's staff, including labour hire workers, would have been significantly decreased, if not eliminated. 30 Specific deterrence was an issue in this case in light of the previous breach which involved a failure to undertake a proper risk assessment prior to the commencement of work. In relation to Harnischfeger, the risks associated with the heavy industry in which it operated were manifest. Harnischfeger was required to provide for the health, safety and welfare at work of Mr Batterham: that included the provision of safe working systems, safe work method statements, adequate training and the like designed to meet all the foreseeable exigencies, particularly where employees were required to undertake work without direct supervision by the defendant. There were clear steps which, on the evidence, Harnischfeger accepted could have been taken to reduce or eliminate the risk of injury to which Mr Batterham was exposed. 31 In relation to subjective factors, it was accepted that Harnischfeger entered a plea of guilty at an early stage and was entitled to have the benefit of its early plea reflected in the penalty to be imposed. The penalty should also reflect the defendant's contrition as demonstrated by its plea of guilty as well as its co-operation with the WorkCover Authority and the frank admissions set out in Mr Lennard's affidavit. The defendant, however, had a relevant industrial history, and as a consequence, Harnischfeger was not entitled to the leniency that was normally extended to an employer who is not adversely recorded. The breach by Harnischfeger reflected a significant failure on its part to meet obligations imposed by the Occupational Health and Safety Act. Having regard to the nature and quality of the offence, the Court should impose a significant monetary penalty upon the defendant. 32 The prosecutor pointed out that in this case Zelbarry was subject to a maximum penalty of $550,000, while Harnischfeger was subject to a maximum penalty of $825,000. It was accepted that the principles and particular purposes of the Occupational Health and Safety Act 2000 were identical to those noted in the authorities regarding the previous Act, namely:

(a) the protection of workers from breaches of safety, health and welfare; (b) to compel attention to occupational health and safety issues so that persons are not exposed to risk to health and safety at the workplace.

It was also accepted that the primary factor to be considered in determining the sentence to be imposed was the objective seriousness of the offence charged: the proper approach to sentencing involved an initial consideration of the gravity of the subject offence viewed objectively. 33 In relation to Zelbarry, the prosecutor drew attention to the detailed consideration of the duty of labour hire firms by the Full Court in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (Inspector Ch'ng) (2000) 90 IR 432. It was submitted that in the present case the defendant did not address itself in an effective manner to issues of occupational health and safety touching upon its placement of Mr Batterham at the Mt Thorley site prior to the accident. The defendant asserted that it carried out a safety inspection and an assessment of the premises in about November 2001 but the prosecutor submitted that on the evidence the defendant had relied upon Harnischfeger to provide Mr Batterham with induction training, safe systems of work, safe work procedures, adequate training in its occupational health and safety systems and supervision without any effective auditing of those systems by Zelbarry. Importantly, Zelbarry placed reliance on Harnischfeger's system without performing any adequate risk analysis assessment of the occupational health and safety systems in place at Mt Thorley or any assessment of Harnischfeger's management system at the site. 34 It was accepted by the prosecutor that Zelbarry had entered a plea at an early stage, had co-operated with the WorkCover Authority and had the benefit of an unblemished record. 35 It was noted by the prosecutor that, because the defendants were charged with different offences albeit arising out of the same facts and circumstances, technically the principles of parity did not apply. The Full Court in Warman International Ltd v WorkCover Authority (1998) 80 IR 326 had recognised the need for consistency in the sentencing of offenders for what might be described as "related" offences. 36 It was submitted that both the principle of parity and the principle of consistency in sentencing referred to in Warman only operated to the extent of comparing like with like. Attention was drawn to the judgment of Doyle CJ in R v Cox (1996) 66 SASR 152 at 159 as follows: I do not understand the principles stated by the High Court in Lowe v The Queen to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, and no appearance of unfairness to the community. 37 It was submitted that it followed that the differences in sentencing outcomes that reflect differences in the circumstances between co-offenders where the principle of parity applies and between offenders charged with different but "parallel" or "related" offences under the Occupational Health and Safety Act will not offend against those principles. 38 Factors such as differences in the maximum penalty for the offence had to be taken into account and properly reflected in the respective penalties imposed (Signanto v The Queen (1998) 194 CLR 656 at 670). It followed that, in determining the extent to which the penalty to be imposed in the circumstances of the present case should be governed by notions of parity, the Court must have regard to the differences in the maximum penalty applicable, namely $550,000 in the case of Zelbarry and $825,000 in the case of Harnischfeger. 39 It was also submitted relevant to have regard to the differing roles played by Zelbarry and Harnischfeger. The differences in these roles did not, by themselves, provide a basis for any significant differentiation in determining the penalty to be imposed. Nevertheless, in these cases, one of the main distinguishing factors was the different industrial history of Zelbarry and Harnischfeger. There were also differences in the subjective circumstances between the two defendants, such as evidence of the safe system that Harnischfeger had in place prior to the accident involving Mr Batterham. 40 The prosecutor submitted that the offences reflected a significant failure on the part of the defendants to meet their obligations under the Act. Having regard to the nature and quality of the offence, the Court should impose a significant monetary penalty. In the task of distinguishing between the two defendants, it was significant that Harnischfeger not only had a previous conviction but that it related to a failure to undertake a risk assessment in similar circumstances to the nature of the task being undertaken by Mr Batterham. Nevertheless, the prosecutor did not submit that this second offence was not to be treated as just a repeat offence, but as some special class of repeat offender: the Court was concerned with the criminality of the defendant's current conduct, not the criminality of the defendant's conduct on a previous occasion. 41 In the submissions of the prosecutor, there were three factors to be considered by the Court. Firstly, the legislature had drawn a distinction between those with a previous record and defendants who had not previously offended against the Act - the Court was required to address the higher penalty imposed on the subsequent offender. Secondly, where the second offence raises in the Court's view the need for corrective action to be taken against the defendant, that history might be taken into account in relation to the current behaviour of the defendant but not in relation to its previous behaviour. Thirdly, there would be a differentiation because of subjective differences between the parties. While Harnischfeger could not be punished again for its past record, it was not entitled to the leniency which may be available to Zelbarry. 42 For Harnischfeger, it was submitted that the change of business which involved the defendant no longer performing the task that Mr Batterham was involved in at the time of the incident was a radical change to the business operations. It was accepted that the system of work was ineffective. Nevertheless, there were substantial processes in place and substantial education within the organisation: this was not a defendant which was "inactive in safety". The detailed evidence of Mr Lennard was relied upon to demonstrate the significant additional steps taken to improve workplace safety. 43 For Zelbarry, it was submitted that Harnischfeger was the operator of the work site and had day to day responsibility of that operation, but it was accepted that Zelbarry still had to do what it could to ensure that there was no exposure to risk of its employees. Harnischfeger had a detailed work safety system and Zelbarry were entitled to rely on that system and what appeared to be on paper a good system. It was accepted that, if Zelbarry was to rely on Harnischfeger's system, it had to take steps to ensure, as best it could, that the system worked and that it was implemented. Therefore, while it was legitimate for the labour hire company to rely on a well established and seasoned industry operator to lay down a safe system, by its plea of guilty Zelbarry accepted that it failed to take the additional step of ensuring the effectiveness of that system in relation to its own employees. While Zelbarry had failed to undertake a risk assessment for this particular task and failed to ensure that a work method system was created, there was nothing to indicate that if either of those two steps had been carried out it would have necessarily made any difference as to whether this accident would have occurred. The central problem was that it was a two person job and Mr Batterham knew that and had asked for another worker to assist him. Here, there was not a lack of a system or a lack of knowledge or a lack of awareness - the problem was one of human judgement. There should have been two workers on the job and senior and experienced staff on the Harnischfeger site nevertheless decided to depart from what was an established practice. 44 It was strongly submitted that Zelbarry was the least culpable of the two defendants and that there was a real difference between them. If Harnischfeger was dealt with in moderation as to penalty then Zelbarry was a beneficiary. The track record for Harnischfeger was "very good", but the track record of Zelbarry was considerably better having been in the industry for 22 years without an offence. The other significant difference was that Harnischfeger, by reason of the previous incident, was on notice of a problem, albeit a different problem. Zelbarry was not on notice as was Harnischfeger. It took a second accident for a dramatic redressing of the issue by Harnischfeger. 45 It was submitted that, as Harnischfeger was the operator of the site, there were very real limits on what Zelbarry could do especially where those on the job decided to disregard the safety rules. Here, the standard practice was to have two persons involved in the operation. Mr Batterham had asked for the assistance of another person and that had not been supplied by Harnischfeger. There was little that Zelbarry could do about that situation apart from having a supervisor there every minute of the day. Mr Batterham knew he should not have gone ahead on his own although he waited for assistance, but nevertheless decided to do so. Zelbarry could have had a piece of paper in its training that told him not to go ahead. That lesson had been learnt and now there were better systems in place. 46 In relation to issues of principle, it was submitted by counsel for Zelbarry that the decision of the High Court in Veen v The Queen [No 2] (1987-19880) 164 CLR 465 was that somebody who had a prior conviction may as a result miss out on the mitigation which is afforded to a first offender but that was only one aspect of the influence that a prior conviction could have. Consideration would be given as to whether or not the particular conduct was in some sense out of character: the Court could not penalise for the presence of a prior conviction. However, a prior conviction should deprive the person of a discount for leniency. DELIBERATION 47 As the submissions indicate, the starting point for consideration of an appropriate penalty for each of these defendants is the objective seriousness of each offence. The offences arise out of the same incident and the different charges result primarily from the different role of each defendant: Zelbarry being the employer and Harnischfeger failing to take measures in relation to the safety at work of a person not its employee. This simple statement of the initial task in this case masks an issue of some difficulty arising from the fact that the defendant Harnischfeger, having had a previous conviction under the Act, faces a maximum penalty of $825,000 while the defendant Zelbarry, having no relevant record of breaches under the Act, faces a maximum penalty of $550,000. 48 Judgments of the Court show that it is not unusual, in cases where there are two or more defendants involved in the same workplace incident, that an assessment is made that in a general sense, although charged under different sections, the culpability of each defendant is considered broadly equal. Where, however, as in this case, one of the defendants has a prior offence and is liable to a fine of up to $825,000 and the other defendant having no record is liable to a fine of up to a maximum of $550,000, it is said that the offence with which the defendant with a record is charged is a more serious offence because of the higher maximum penalty (relying upon the approach in Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683): the Court is bound to consider the maximum penalty and set an appropriate penalty somewhere between zero and the maximum. The submission suggests, either directly or indirectly that, although the culpability of the defendants may be very similar, the penalty imposed on the defendant with a prior record should reflect the fact that the defendant is guilty of a more serious charge by virtue of the legislature prescribing a higher maximum penalty: that is, by the imposition of a higher penalty bearing some relationship to the 50 per cent higher maximum penalty regime for subsequent offences. The difficulty with that approach is, firstly, it strongly bears the appearance of a mathematical approach and is thus contrary to longstanding principle. Secondly, the approach seems to involve, without any consideration of the circumstances, the imposition of a higher penalty because of the defendant's prior record and irrespective of what was involved in that record. Thirdly, it leads to the seemingly anomalous position that defendants with a very similar level of culpability are liable for quite disproportionately different penalties arising out of very similar conduct. One answer suggested in support of this result, in spite of its difficulties, is that such a result was contemplated by the legislature when it enacted provisions imposing a significantly higher penalty for second and subsequent offences. That explanation holds little appeal when it results in the overturning of long standing sentencing principles. Had the legislature intended this result, it would be expected that very clear language would be used rather than the mere specification of a higher maximum penalty for second and subsequent offences. Section 12 of the 2000 Act (and s 51A of the 1983 Act) does not purport to directly intervene in the sentencing process by directing a specified result: for instance, s 12 does not require a minimum penalty for a second or subsequent offence nor does it require a penalty at least equal to or greater than the previous penalty imposed. Having regard to the width of conduct caught by s 8 (for example) it is not surprising that such an approach has not been adopted by the legislature: a very serious first offence may be followed by, objectively, a very minor and different subsequent offence especially in industries involving inherently dangerous conditions and/or involving large numbers of workers. The availability of a higher range of penalties for the second and subsequent offences provides the sentencing judge with a wider range of penalty options depending on the circumstances of the case, and underlines the legislature's disapproval of subsequent offences under the Act. The higher penalty regime will be available, for example, where the previous history shows a propensity to subject employees to unsafe systems of work. 49 It is useful in this exercise to again consider what was said by Kirby P in Camilleri's Stockfeeds in relation to general principles of sentencing (at 698-699): 1. While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by Parliament of the seriousness of the offence: R v H (1980) 3 A Crim R 63 AT 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community: see the comments of the Hon T J Moore in New South Wales Parliamentary Debates (Legislative Assembly), 20 November 1990, 10037 at 10038. The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 2. A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, 'that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposed the maximum penalty offends this principle only if the case is recognisably outside the worst category': Veen v The Queen [No 2] (1988) 164 CLR 465 at 478. 3. The court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender. In this process, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the court should resolve the conflict of fact in favour of the offender: see R v O'Neil (at 588). 4. While the offender can only be sentenced for the offence for which it has been convicted, the court is 'bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict': R v DeSimoni (1981) 147 CLR 383 at 396. Such an approach is consistent with the court's proper evaluation of an offender's antecedent history where it does not lead to the imposition of a penalty disproportionate the gravity of the particular offence(s) charged: see Veen v The Queen [No 2] (at 477). 50 It can be seen here that Kirby P was addressing general sentencing principles and was not directly dealing with the type of issue now under consideration. Those principles require a sentencing judge to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. I do not regard this sentencing principle as requiring substantially different penalties for the same type of conduct where the only difference is that one defendant has a higher penalty range because of a previous conviction. This approach seems to generally conform with the last principle referred to by Kirby P, namely, that an offender's antecedent history should not lead to the imposition of a penalty disproportionate to the gravity of the particular offence charged. The cases have also referred to the need to ensure that a penalty is not oppressively high. As the majority stated in Veen [No 2], a sentence should not be increased beyond what is proportionate to the crime although the previous criminal history of an offender may be taken into account in determining a sentence: nevertheless, that factor could not be given such weight as to lead to a penalty which was disproportionate to the gravity of the offence. The majority stated that it was legitimate to take into account the previous history of an offender when it illuminated an offender's moral culpability in the instant case, or showed the offender's dangerous propensity or the need to impose condign punishment to deter the offender and other offenders from committing similar offences. The majority also stated that the principle of proportionality was now firmly established in Australia. In Veen, the court was considering a provision which allowed the crime of murder to be reduced to manslaughter, especially by providing a modified defence to mentally affected offenders. The majority noted that the provision had never been regarded as requiring in all instances, the imposition of a penalty less than life imprisonment. In the course of that discussion, the majority said: However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions ( at 476). 51 The majority in Veen then referred to what were described as subsidiary principles: There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: The Director of Public Prosecutions v Ottewell (1970) AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. (at 477). … The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness . A sentence which imposed the maximum penalty offends this principle only if the case is recognisably outside the worse category. (at 478) 52 In Postiglione v The Queen (1997) 189 CLR 295 the joint judgment of Dawson and Gaudron JJ (at 301-302) dealt with the principle of parity: The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated ... However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offences. Rather it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. 53 In WorkCover Authority, (Inspector Ankucic) v McDonalds Australia Ltd (1999) 95 IR 383, the court accepted that, while the principle of parity normally operated in relation to co-offenders or across the range of those convicted of the offence in question and in relation to the same crime, this Court had held in Warman's case that, where defendants not being co-offenders were prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe, where there exist common factual circumstances giving rise to the charges. In Warman, the Court also noted that parity was considered in the context of a labour hire company and the defendant who utilised that labour. 54 A number of other authorities bear upon this discussion. In Pearce v The Queen (1998) 194 CLR 610 the court stated (at 645-646): Sentencing is not a process which leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v The King (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process. It is accepted that a change or a difference in the statutory maximum penalty is a matter that the Court must take into account: such a change may represent a movement in the community feeling or expectation as to the sentence appropriate for such an offence although a change of this nature will not necessarily have a determinative or conclusive effect ( R v Crump, unreported NSWCCA, 30 May 1994). Where two defendants are guilty of a similar offence committed in similar circumstances a defendant with a record, while not being sentenced twice for the same offence, is usually not entitled to the same leniency as a defendant who has no prior record ( R v Loosenoore (1980) 2 Cr App R (S) 92; R v The Queen (1981) 3 Cr App R (S) 245). 55 The judgments in Veen confirm that in Australian law sentences of preventative detention are impermissible: an approach which virtually automatically treats a second offence as more serious and requiring a penalty approximately 50 per cent higher, regardless of the objective features of the offence appears to be an approach similar to the rejected concept of preventive detention and the basis upon which it is propounded.

There are examples where the Court is required to take notice of different regimes. An offender sentenced in the Children's Court while a co-defendant is dealt with in the general court system requires the court to recognise that the sentencing takes place in different regimes ( R v Colgan [1999] NSWCCA 292). In Bashford [2000] NSWCCA 426, a 16 year old was sentenced to a control order where the effective total custody was greater than his 18 year old co-offender who received a sentence of imprisonment. The Court of Criminal Appeal held that the principle of parity did not apply because the appellant's objective criminality was higher and his prior record was more serious than that of the co-offender. The Court of Criminal Appeal held that it was open to the trial judge, however, to consider the different nature of the custody imposed upon each offender. The age of offenders, disparity in age and maturity, have been aspects requiring courts to give more weight to the question of rehabilitation in the case of younger offenders than older offenders ( R v Rushby [1999] NSWCCA 104). 56 The approach of the Occupational Health and Safety Act in providing a higher maximum penalty for second and subsequent offences does not fall into the category of a significantly different regime such as applies between juvenile and adult co-offenders. In Lowe v The Queen (1984) 154 CLR 606, Gibbs CJ (at 609) stated: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.

In the same case Dawson J stated (at 623): There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done. 57 Reference to these cases clearly demonstrates the various considerations which will move the sentencing judge in different directions during the sentencing process. Under the Occupational Health and Safety Act there is no doubt that a second or subsequent offence carries a higher penalty as an indication of public concern: this fact is to be taken into account but cannot automatically lead to a higher penalty for the same or a similar offence as between a offender with no prior convictions and an offender with prior convictions. There may be a variety of differences, especially in the subjective considerations, which lead to different penalties being imposed but usually that process should not result in disproportionate penalties. 58 The prosecutor has drawn attention to the judgment of Gaudron J (in dissent) in Signanto. That case involved an amending Act affecting sentencing where the sentence was imposed after the commencement of the amending Act for an offence which was committed before that Act was operative. The majority of the court held that effect would be given to the Act because that was the legislative intention, notwithstanding the fact that the result was that a person who offended before the commencement of the Act and was sentenced thereafter would be treated differently from those who had offended and had been sentenced before its commencement. In this context Gaudron J stated (at 670): 52. A change in sentencing law necessarily has the consequence that there will be some disparity or inconsistency in punishment between those sentenced before the change comes into effect and those who are sentenced afterwards. But the principle of equal justice is of such fundamental importance that it is incumbent upon a sentencing judge to ensure that the sentence to be imposed will produce no greater disparity than is necessary to give effect to the legislative change. In the context of this appeal, that means that, unless an intention to the contrary is to be discerned from the Act, the sentencing judge should have crafted the appellant's sentence to take account of the longer maximum and minimum periods of incarceration resulting from the abolition of remissions and the altered regime for setting of non-parole periods.

S ignanto, therefore, deals with a different problem and ultimately turned upon a question of statutory construction. There is no warrant for construing s 12 of the Occupational Health and Safety Act as requiring a higher penalty for a defendant with a record simply because of the fact of such a record. Similarly, the judgment of the Court of Criminal Appeal in Slattery (1996) 90 A Crim R 519 should be distinguished. In that case the Crown appeal was upheld because of the action of the legislature in almost tripling the maximum sentence for a particular type of offence had to be taken by the courts as reflecting community standards in relation to the seriousness of those offences and the courts were required to give effect to the obvious intention of the legislature that existing sentencing patterns were to move in a sharply upward manner. In that case, the original sentence appeared to be structured by reference to the previous lower penalty regime. That is not the same point as raised by the current discussion . 59 Having regard to these general sentencing principles, I now turn to consider the culpability of each defendant in relation to the charge to which they have pleaded guilty.

In relation to Harnischfeger, the Agreed Statement of Facts demonstrates the comprehensive failure of that defendant. Neither the jib nor the jack were adequately supported while Mr Batterham was performing welding; it was necessary for Mr Batterham to lean over the jib while it was under pressure from the jack in order to ensure that the material to be welded remained in the correct position; there was no assistance provided to Mr Batterham in circumstances where, had assistance been provided in accordance with the usual work practice, Mr Batterham would not need to have leaned over the jig; there was no risk assessment for this particular job; there was no documented safety procedure in place for the task; the defendant knew or ought to have known that there was a risk of the weld connecting the jig to the bucket failing; the defendant did not provide adequate training to the worker in respect of the task he was required to perform; and the defendant did not provide adequate supervision to the worker in respect of the task he was required to perform. At all material times the worker was not wearing a safety helmet or any other form of head protection at the time of the accident. Mr Lennard's evidence, given in a frank manner, accepted that there were numerous deficiencies in Harnischfeger's system of work. He also accepted that there was a failure to ensure that Mr Batterham used welding consumables which were consistent with the material he was working on at the time. These matters and the severity of the injury to Mr Batterham demonstrate that this is a serious breach of the Act. 60 The additional disturbing feature in the case of Harnischfeger is not simply its prior conviction but the fact that, within a relatively short period of time, it had offended again in relation to the same type of work and where there had been a failure to perform a risk assessment. I accept that, in detail, there are other aspects of that offence which distinguish it from the current breach in that there was a failure to use qualified personnel in a heavy lifting task. An element of that offence, nevertheless, was the failure to undertake a risk assessment and it was that incident which led to Harnischfeger adopting as policy a requirement that risk assessments were to be carried out for all tasks. In the incident involving Mr Batterham, although he had performed the task before, he was instructed by Mr Elder to adopt a method of work which was different to that which Mr Batterham had previously used. Even though Harnischfeger had only recently adopted the policy of requiring a risk assessment for each task as a result of the earlier accident, no such risk assessment was undertaken. This is a significant common element appearing both in the first breach and the current breach. 61 While drawing attention to these matters, counsel for the prosecutor nevertheless submitted that this was not the type of repeat offence which called for some higher range of penalty to be imposed upon Harnischfeger: it did not fall into the category of a worst case repeat offence as dealt with in Veen [No 2]. While I accept that submission, the failure of Harnischfeger to implement two key policies (the policy of always conducting a risk assessment and the policy of requiring two men for this job) are matters which need to be taken into account in assessing Harnischfeger's culpability. 62 It is accepted that general deterrence is a proper and necessary consideration in the sentencing exercise. In relation to specific deterrence, Harnischfeger continues to be a significant employer in the State of New South Wales although on a reduced scale. The evidence establishes that the workshops are no longer utilised by the defendant and that this type of work in the maintenance and repair of heavy mining equipment is no longer performed. The defendant still operates in this heavy industry in circumstances where its attention needs to be drawn to the need to police and enforce its systems of safety including having adequate staffing levels to undertake the task and performing a risk assessment for each task. 63 In relation to subjective factors, I accept that an early plea was entered by the defendant and in this regard I would allow a discount of 15 per cent.

The defendant had developed systems of safety which unfortunately were not fully effective. A number of steps were taken following this accident to address the omissions demonstrated by its occurrence. There was an investigation of the accident and a report indicating the omissions in the system and how they were to be addressed. That report was provided to the WorkCover Authority and it is accepted that the defendant co-operated with the investigation conducted by the inspector. In consideration of these matters, I will allow a further discount of 5 per cent, bringing the total discount of penalty to 20 per cent. Bearing all these considerations in mind, I would impose a penalty of $200,000 upon the defendant Harnischfeger. 64 I now come to consider the circumstances of the defendant Zelbarry. As the Agreed Statement of Facts shows, Mr Batterham underwent a test conducted by Harnischfeger to assess his capacity as a welder. The Agreed Statement of Facts does not indicate whether Zelbarry was aware of the details of this test nor how Mr Batterham performed, nor does there appear to be any recognition by Zelbarry of the importance of the different "consumables" required in the various welding tasks that Mr Batterham would be required to undertake. Of significance is the fact that, on one of the days when the welding task was being performed, the weld in fact failed although nobody was injured. This incident does not appear to have come to the attention of Zelbarry: it appeared to have no system of being informed of such an event. That failure, just a day before the failure that led to the injury to Mr Batterham, should have alerted everyone, including Zelbarry, to the fact that a risk assessment, which was part of the system of work endorsed by Harnischfeger, needed to be completed on the first day of performing this task. The conduct of such a risk assessment would also have alerted Zelbarry to the fact that another policy of the defendant Harnischfeger, namely, that there should be two men working on this job, was not being observed on the second day of the work. Had Zelbarry been alert in its monitoring of the work performed by its employees for Harnischfeger, it would have been aware of these important developments and would have been in a position to ensure that steps were taken to address the risks that were now both obvious and exposed to both defendants. Of additional concern is the fact that Mr Batterham, working alone, was working under a different system to that which he had previously used in performing this task and he appeared to have also adopted another system while working alone in order to bend the bands to the shape of the bucket. Again, these new elements of the task do not appear to have been required to be reported to Zelbarry so that it could assess the safety of this system of work although Mr Batterham did have the brackets and set up checked by a supervisor of the defendant Harnischfeger. It was at this time that Mr Batterham asked for assistance and although it was part of Harnischfeger's system that there be two employees involved, the supervisor took no step to ensure that another person was allocated to this task. Again, there was nothing about Zelbarry's system which required it to be notified of such a deviation from Harnischfeger's work system nor does it appear that Mr Batterham was required to inform Zelbarry of this deviation. 65 The evidence demonstrates that in this case there was a wholesale delegation of Zelbarry's responsibilities to Harnischfeger. Counsel for Zelbarry, somewhat boldly, submitted that it was entitled to rely on Harnischfeger's system because of its long standing in the industry and the fact that the safety system appeared to be comprehensive so long as it checked that system. I am unable to accept that submission. Cases abound in this jurisdiction which underline the requirement of labour hire companies such as Zelbarry, when relying on the system of the host employer, to satisfy itself that the system adopted was more than a paper system, was actively enforced and policed at the workplace and was effective as a safe system of work: a labour hire company is required by the Occupational Health and Safety Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety (Drake Personnel Ltd v Inspector Ch'ng) (1999) 90 IR at 456). Any relevant discussion by Zelbarry with its employee Mr Batterham would have raised immediate concerns about the actual system of work rather than that which had been laid down as policy. It is these factors which underline the serious omissions of Zelbarry and the seriousness of this particular breach. 66 In the case of Zelbarry, as in the case of the defendant Harnischfeger, the Agreed Statement of Facts demonstrates the comprehensive nature of the failure: the jig was not adequately supported while Mr Batterham was performing the welding work; the jack was not adequately supported during this task; it was necessary for the worker to lean over the jig whilst it was under pressure from the jack in order to ensure that the material to be welded remained in the correct position for welding; there was no assistance provided to Mr Batterham during the work, where having assistance would have obviated the need for the worker to lean on the jig which was under pressure from a jack; there was no risk assessment for this particular task; there was no documented safety procedure in place for this task; the defendant knew or ought to have known that there was a risk of the weld connecting the jig to the bucket failing; the defendant did not provide adequate training to the worker in respect of the task he was required to perform; the defendant did not provide adequate supervision to the worker in respect of the task, did not provide adequate instruction to the worker in respect of the task and did not provide adequate information to the worker in respect of the task, and Mr Batterham was not wearing a safety helmet or any other form of head protection at the time of the accident. 67 The evidence called for Zelbarry through Mr Mastrofilippo, indicates the remoteness of this defendant from the work its employees were performing for Harnischfeger. In his affidavit, Mr Mastrofilippo stated that it was approximately three weeks after the accident that he conducted a review of all 20 employees Zelbarry had placed with Harnischfeger: he then decided to withdraw all those employees because of his concern at Harnischfeger's workplace practices from an occupational health and safety perspective. Indeed, his evidence was that Zelbarry no longer provided labour hire personnel to Harnischfeger. It would appear that, until this rather belated review of the actual work system at Mt Thorley, Zelbarry was simply impressed by a paper system albeit one produced by a well known player of long standing in the industry. It is of some significance that, since this accident, one of the improvements to its system implemented by Zelbarry is that its consultants now conduct weekly visits to host employers at their work sites and conduct site audits which cover safety aspects, such as whether job safety assessments and work method statements have been undertaken by the host employer. 68 It is curious in the light of this evidence called on behalf of Zelbarry that it was submitted that, even if there had been a risk assessment taken in relation to the task upon which Mr Batterham was engaged and there was a proper work method created, there was nothing to indicate that this would necessarily have made any difference as to whether or not the accident would have occurred. In submissions, the approach of Zelbarry was that this was essentially a two person job and the problem was one of human judgement. It seems to me that Zelbarry cannot have it both ways: it cannot urge upon the Court that it now has a much better system which should mitigate the penalty because of its weekly site inspections and audits and insistence on work statements, then wish to submit on the other hand that a risk assessment and work statement would not be effective. Nor am I convinced on the evidence that, if Mr Batterham had been properly instructed by Zelbarry not to perform work unless there was a risk assessment and work method, and further not perform the work unless there were two people on the job, Mr Batterham would have simply ignored that system. There are cases from time to time coming before the Court where proper systems are in place but employees, sometimes inexplicably, ignore the work rules and an accident occurs. Often in those cases the focus is upon their system of supervision or upon the system of policing and enforcing the work rules. There was nothing in the evidence that suggested that employees of Zelbarry, such as skilled operators like Mr Batterham, would routinely ignore such instructions given by their employer. Indeed, Mr Batterham asked for assistance which was not forthcoming from Harnischfeger but there was nothing in his instructions from Zelbarry as to what he should then do. 69 It is not surprising that Mr Batterham, being supplied by a labour hire firm, would wish to be productive and, rather than sit for hours waiting for assistance, in the absence of a contrary instruction, applied himself to the task as best he could bearing in mind that it was a two man job being performed by one man. His care in performing the task is demonstrated not only by his request for assistance accordingly to the practice and policy of the defendant Harnishfeger, but also the step he took of seeking the approval of a Harnischfeger supervisor that the jig he had set up was appropriate for the task. 70 Counsel for Zelbarry strongly submitted that his client's culpability was far less than that of Harnischfeger especially in light of the fact that Harnischfeger had a previous conviction where a relevant feature was the failure to conduct a risk assessment. There are different considerations in relation to assessing the culpability of these two defendants: while I accept that Zelbarry was not as culpable as Harnishfeger, I am not able to accept the submission that there is a large difference in the culpability of each defendant. The offence committed by Zelbarry is, as the prosecutor submitted, a very serious breach which warrants a significant penalty. General and specific deterrence are relevant factors, with Zelbarry continuing to supply labour to this heavy industry. 71 The early plea of Zelbarry is a significant factor to be considered in relation to mitigation of penalty. I am satisfied that this is an appropriate case in which a discount of 25 per cent should be granted on account of this consideration. Zelbarry has no prior convictions and has operated in this heavy and inherently dangerous industry for in excess of 20 years without previously coming to attention. This can be properly regarded as a good industrial record and some indication of its good industrial citizenship. The evidence also demonstrated the genuine concern expressed for Mr Batterham, the assistance given to him by Zelbarry and its obvious contrition in relation to this occurrence. The removal of employees from a work place considered to be unsatisfactory indicates the seriousness of Zelbarry's approach to occupational health and safety as does the evidence of the steps taken subsequent to the accident to improve work place safety. It is unfortunate, as often occurs in these cases, that all of those steps could easily have been taken prior to the occurrence of this incident. In relation to these matters, I would allow a further discount of 5 per cent on the primary penalty, bringing the total of discount in mitigation of penalty to 30 per cent. 72 In the matter of Zelbarry, I conclude that a penalty of $140,000 should be imposed upon the defendant.

ORDERS: 1. In Matter IRC 4832 of 2003: (a) the defendant is found guilty of the charge to which it pleaded guilty under s 8(2) of the Occupational Health and Safety Act 2000 in Matter IRC 4832 of 2003; (b) the defendant is fined the sum of $200,000 with moiety thereof to the prosecutor; (c) the defendant is to pay the costs of the prosecutor in the sum as agreed or assessed in accordance with the Rules of the Court. 2. In Matter IRC 4833 of 2003: (a) the defendant is found guilty of the charge to which it pleaded guilty under s 8(1) of the Occupational Health and Safety Act 2000 in Matter IRC 4833 of 2003; (b) the defendant is fined the sum of $140,000 with moiety thereof to the prosecutor; (c) the defendant shall pay the costs of the prosecutor in the sum as agreed or assessed in accordance with the Rules of the Court.

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