1 OSS World Wide Movers Pty Ltd (the defendant) has pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000. The defendant undertook the business of domestic and international furniture removal. It commenced operations in 1970. At the time of the offence, the defendant employed about 40 workers of whom approximately two thirds were engaged in furniture removal activities.
2 The defendant had a process for accepting bookings for removal services which involved a sales consultant or estimator attending the pick-up or delivery address to approve the goods scheduled for removal and to assess the sites. This procedure facilitated the provision of an accurate costing to clients. It also enabled the defendant to identify any special plant or equipment (for example, a lift platform) which might be required for the task. The information from the estimator's job sheet was noted on a worksheet (which also noted any special requirements). The worksheet was then provided to the work crew assigned to the task.
3 On or about 24 April 2007, an employee of the defendant carried out a survey for the removal of furniture and effects from a dwelling located at 14 Ivy Lane, Darlington. No survey, however, was conducted with regard to the delivery address at 182 Abercrombie Street, Darlington.
4 On 9 May 2007, two employees of the defendant, John Vincent Spiteri and Jason Wetere, were assigned the task of moving furniture from and to the two previously mentioned addresses in Darlington. Mr Spiteri, at that time, had been employed by the defendant as a removalist with some 2.5 years experience. His principal duties involved driving trucks, delivering shipments and warehouse duties. Mr Wetere had been employed by the defendant as a casual removalist and had been working for the defendant since 3 February 2006.
5 Mr Spiteri was assigned the role of acting team leader. He and Mr Wetere were to remove the furniture and effects from the Ivy Lane premises and deliver and unload the items at the Abercrombie Street premises. They were given a job sheet for the task which only provided the pick up and delivery addresses. It did not note any special requirements. While the two workers were loading the furniture and effects at the Ivy Lane premises, they were joined by Michael John Seaton and Sam Tuala, two other employees of the defendant who had been instructed to assist Mr Spiteri and Mr Wetere to complete the task. Mr Seaton had approximately 15 years experience as a removalist prior to working for the defendant. As at 9 May 2007, he had been working for the defendant for a little over three years as a removalist and driver. Mr Tuala, who had about 2 years removal experience prior to joining the defendant, had worked as a permanent removalist for the defendant for three to four years.
6 Some of the furniture from the Ivy Lane premises was loaded into Mr Seaton's truck. When the loading up of the furniture and effects was completed both trucks drove the few blocks to the Abercrombie Street premises.
7 Those premises consisted of a terrace dwelling about 3.4 metres wide with access to the second level via a narrow and twisting internal staircase. The premises was undergoing renovation at the time with tools and leads blocking free access. The four employees implemented a "train of movement" system whereby boxes and material were passed from one employee to the other, with each employee strategically placed so as to reach the material and pass it to the next person.
8 It was ascertained that some items of furniture were not able to fit through the narrow stairway. The decision was made that these items would be lifted via the first floor balcony which came off the main bedroom of the premises. Mr Seaton stood on this balcony. Mr Tuala positioned himself on the ground and handed up parts of a bed frame to Mr Seaton. At some stage, Mr Tuala attempted to hand to Mr Seaton an armchair, but Mr Seaton could not reach it. Mr Spiteri joined Mr Seaton on the first floor balcony in order to render assistance. Mr Tuala raised the armchair towards the balcony but as Mr Spiteri and Mr Seaton reached forward the balcony gave way and both men fell approximately 3.2 metres to the ground below. Mr Spiteri landed on his feet and rolled. His head impacted the side of a parked car. He suffered injuries to his cervical and lumbar spine and psychological injury. He returned to work on light duties on 4 October 2007 and on 5 May 2008 his employment was terminated by the defendant (for reasons unrelated to the incident). Mr Seaton landed on or near the gutter with the major impact being on his right heel. He suffered nine fractures to his heel, some of which punctured the skin leading to significant bleeding. He returned to work on restricted duties on 20 September 2007, but underwent further surgery on 13 February 2008 and was subsequently declared unfit for work. According to the agreed facts, it is likely that Mr Seaton will be unable to return to his normal duties as a removalist.
Systems of work in place prior to the offence
9 In 2001, the defendant used a joint Australian Furniture Removal Association (AFRA) WorkCover video in its induction of new employees. The video addressed safe working procedures in the removal industry. In 2002, the defendant began using a joint AFRA/WorkCover DVD which addressed balcony moves, including the need to check the stability of the balcony before undertaking any such move and the need to avoid leaning on the balcony. The DVD was used to induct new employees and to train existing employees. In the same year, the defendant began distributing to employees a booklet associated with the DVD entitled, "Work Smarter, Not Harder". It also developed, with the assistance of a specialist consulting firm with experience in occupational health and safety risks in the removal industry, an OHS Policy and an Employment and Safety Handbook, which was distributed to its employees.
10 In an affidavit sworn by Robert John Wray, a joint managing director of the corporate group of which the defendant is a member, Mr Wray said that Mr Spiteri completed a four-day OHS training course in April 2004. This training included risk assessment and hazard identification training, as well as effective OHS consultation in the workplace. The training was undertaken when Mr Spiteri worked for a labour hire company who hired his services to the defendant. Subsequently, Mr Spiteri was employed by the defendant.
11 The defendant, since May 2006, also conducted monthly toolbox talks with operational staff and provided updates concerning occupational health and safety issues relevant to the work conducted by the defendant. On 2 June 2006, one of the topics of the toolbox meeting held on that day was balcony moves. This meeting was attended by Mr Spiteri, Mr Seaton and Mr Tuala. Specific procedures were addressed for conducting a balcony move which included the need to refrain from undertaking a balcony move unless contact was first made with the defendant's management. The express purpose for addressing these procedures was so that possible risks could be identified and appropriate equipment could be ascertained.
12 On 1 February 2007, Mr Wray arranged for the defendant to engage Chris Farley as a full-time Quality Manager, a newly created role which included having day-to-day responsibility for occupational health and safety matters.
13 On 27 April 2007, Mr Farley and Mr Wray arranged for the defendant to re-engage the specialist consulting firm to review the OHS Policy and the Employment and Safety Handbook. On the same day the defendant received from the specialist consulting firm a "best practice" workplace management system model for implementation in the workplace.
14 According to the agreed facts, the practice of lifting furniture over balconies was not common practice. The Court was not further enlightened as to the significance of that particular item of information to the present proceedings. It may not have been a common practice, but it was a procedure contemplated by the defendant prior to the offence, and it was incumbent upon the defendant to devise appropriate and safe procedures whenever the practice was to be utilised. It held a toolbox meeting on 2 June 2006 during which balcony moves was a subject of discussion. Nevertheless, as earlier mentioned, there was a procedure in place which had been formulated by the defendant and which was specifically tailored to tasks involving the removal and delivery of furniture and other items. This procedure was not followed with regard to the Abercrombie Street premises. Had the estimator conducted a proper assessment of those premises it might have come to his or her attention that access to the first floor of the premises would pose difficulties for the removalists in delivering some of the furniture and items to that level. Appropriate measures and procedures could no doubt have been devised and made available in order to facilitate the workers in completing the task safely and effectively. A procedure which involved lifting heavy and cumbersome items over the balcony, which was situated directly above a public street, could have been considered and adequate instructions issued to the effect that such a procedure should not be attempted unless and until all appropriate measures were in place to ensure that the activity could proceed safely. It would appear that apart from the defendant's failures to ensure the procedures followed on the day of the offence satisfied the stringent requirements for safety, it did have in place an impressive number of procedures designed to ensure the safety of its workers and any other personnel involved in, or in the vicinity of, its removalist operations. These procedures included those to be adopted with regard to balcony moves. In particular, during the toolbox meeting of 2 June 2006, the defendant sought to emphasise that balcony moves should not be undertaken without first contacting the defendant's management. These measures, put in place by the defendant prior to the offence, serve to mitigate the otherwise objective seriousness of the offence.
Risk to safety and reasonable foreseeability of the risk
15 In written submissions, the prosecutor submitted that the level of risk to Mr Seaton, Mr Spiteri and Mr Tuala was high. The risk to Mr Tuala was characterised by the prosecutor as a risk to his safety by reason of his location directly underneath the balcony on the footpath which, it was said, exposed him to a "real risk" of injury from the falling armchair, as well as from the falling workers. The risk to Mr Seaton and Mr Spiteri, the Court finds, by reference to the particulars in the charge, was the risk which arose from working at height from the balcony. No submissions were made by the prosecutor as to whether the fourth worker, Mr Wetere, was placed at risk.
16 According to the prosecutor, the risks to safety were "highly foreseeable" in circumstances which involved two furniture removalists on a small balcony leaning against it in order to reach (and lift) a heavy piece of furniture without any form of harness or strap attachment. The prosecutor did not address whether, and if so to what extent, some form of harness or strap attachment would have constituted a practical measure designed to alleviate or minimise the risks. It seems both obvious, and foreseeable, in my view, that a risk to the safety of Mr Spiteri and Mr Seaton would arise in circumstances where the estimator failed to assess the Abercrombie Street premises beforehand, where the workers were given inadequate instructions and information concerning the hazards of working at height (on the balcony) and where the method used involved the two workers leaning over the balcony railing without any form of restraint (either for themselves or for the armchair) at a height in excess of three metres. Given those circumstances, it is equally obvious and foreseeable, in my view, that Mr Tuala, standing directly below the balcony, was exposed to a risk to his safety by reason of the risk of the workers falling (from the balcony) and/or the armchair falling.
17 The prosecutor also submitted that the balcony was of a flimsy construction which added to the foreseeability of the risks. The only evidence relied upon by the prosecutor to support the submission was a photograph which purports to depict parts of the balcony railing, after it collapsed, on the footpath below the balcony. Reliance on a photograph, without more, is insufficient to sustain an inference that the railing was of a flimsy construction. It was not suggested by the prosecutor that the balcony railing was of substandard workmanship. The Court is therefore unable to conclude on any reasonable basis that the construction of the balcony railing or the material used in its construction was of such poor quality or workmanship that these facts could have contributed in some way to the risks to safety of the workers.
18 A finding that the risks to safety were foreseeable serves to illustrate the objective seriousness of the offence.
Consequences of the breach
19 The very serious injuries suffered by Mr Spiteri and Mr Seaton manifest the degree of seriousness of the risks to safety. As the authorities have repeatedly emphasised, although the fact of injury alone does not dictate the seriousness of the offence or the penalty, it nevertheless indicates in the circumstances here that the breach of the Act had every prospect of serious consequences: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] [18] [23]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32].
Availability of simple measures to minimise the risks
20 A further factor which heightened the objective seriousness of the offence was the availability of relatively simple measures which would have obviated or minimised the risks. The defendant, immediately after the accident, implemented a number of measures designed to ensure that its workers could remove and deliver furniture without being placed at risk. The agreed facts record that following the incident Mr Wray issued a directive to the defendant's operational management, and notified all staff (on 18 May 2007) with a view to reinforcing the policy that no balcony moves were to be undertaken unless prior arrangements had been made and an appropriate risk assessment undertaken.
21 The defendant also implemented a number of measures which are summarised below: