Inspector Dennis Howard v Multiplex Constructions

Prosecutor: Mr R. Reitano Solicitors: Ms R. Parmegiani WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr B.D. Hodgkinson SC Solicitors: Ms J. Seemann Minter Ellison Lawyers

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Friday 6 September 2002

IRC4273 of 2001 INSPECTOR DENNIS HOWARD v MULTIPLEX CONSTRUCTIONS (NSW) PTY LTD Prosecution under s16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm229

1 This prosecution was brought by the WorkCover Authority of New South Wales through Inspector Dennis Howard under the provisions of s16(1) of the Occupational Health and Safety Act 1983. The charge as pleaded was amended to read the defendant failed to ensure that persons: . . . not in its employment, and in particular, Aron MacLean, Rohan Carson, Gregory Keighery were not exposed to risks to their health or safety arising from the conduct of its undertaking, while they were at its place of work, installing fire hydrant pipe-work, contrary to s16(1) of the Occupational Health and Safety Act 1983.

2 The relevant particulars of the charge are as follows: (a) At all material times the defendant employed a number of persons to undertake construction work at The Finger Wharf at Cowper Wharf Road, Woolloomooloo in the State of New South Wales. (b) At all material times the defendant sub-contracted Boone & Willard Plumbing Pty Ltd to undertake the installation of hydraulic services at the said site. (c) The defendant failed to ensure that its sub contractor Boone & Willard Plumbing Pty Ltd followed systems of work that were safe and without risks to health to persons installing fire hydrant pipework. (d) The defendant failed to ensure that edges to all open voids were provided with means, by fencing or otherwise, to prevent persons working near open voids from falling. (e) The defendant failed to ensure that a safe means of fall protection or fall arrest was utilised by persons carrying out the installation of fire hydrant pipe work on the level 3 link bridge near open voids. (f) The defendant failed to provide adequate information to its sub-contractor Boone & Willard Plumbing Pty Ltd regarding access to the level 3 link bridge at the said site. (g) As a result of the said failures Aron Mac Lean, Rohan Carson, Gregory Keighery were placed at risk of injury.

4 A comprehensive agreed statement of facts was tendered. 3. At all material times the defendant, Multiplex Constructions (NSW) Pty Ltd was in the business of construction work. 4. At all material times the defendant, Multiplex Constructions (NSW) Pty Ltd was the head builder of a construction project site known as The Finger Wharf at Woolloomooloo Bay, Sydney, in the State of New South Wales 5. At all material times the defendant Multiplex Constructions (NSW) Pty Ltd employed a number of personnel at this site including: (a) Anthony Taylor, 35 years of age, as a foreman, (b) James Quinn, 58 years of age, as a site manager, (c) Reginald Fadel, 31 years of age, as a senior site manager. 6. At all material times the defendant, Multiplex Constructions (NSW) Pty Ltd contracted Boone & Willard Plumbing to install hydraulic services at the said site.

7. At all material times Boone & Willard Plumbing Pty Ltd were plumbing and drainage contractors.

8. At all material times, Boone & Willard Plumbing Pty Ltd employed a number of persons, including: (a) Aron MacLean, 26 years of age, as a plumber, (b) Gregory Keighery, 24 years of age, as a plumber, (c) Rohan Carson, 24 years of age, as a plumber, (d) Michael Phillips, 25 years of age, as a leading hand, (e) Greg Tavener, 37 years of age, as a project supervisor,

9. On 29 October, 1999 Aron Colin MacLean, a plumber employed by Boone & Willard Plumbing Pty Ltd, received severe injuries when he fell a distance of approximately 7 metres at the said site. 10. On 30 October, 1999 Inspector Howard attended the said site. From his observations he prepared a factual report and took photographs at the site of the accident. 11. Aron MacLean has told the Inspector that, immediately prior to his fall, he had been installing a 100mm diameter galvanised fire hydrant pipe on the eastern side of level 3 of the cross over link bridge. The Defendant does not dispute the truth of what Mr MacLean said to the Inspector. 12. The bridge is located at grid reference 30 on the site. 13. The area where the link bridge was situated was also known as the transept. There were two walking platforms on the one bridge. One platform joined level 3 corridors. The other platform joined level 4 corridors. Aron MacLean told the Inspector that he was standing on a ladder that was placed across the access stairs to level 3 of the link bridge, and that the ladder had been propped on one side with pieces of timber to level it across the stair tread. Gregory Keighery, another plumber employed by Boone & Willard Plumbing, has told the Inspector that he was standing on the floor of the bridge and holding the other end of the pipe. The Defendant does not dispute the thrust of what Mr MacLean and Mr Keighery said to the Inspector. 14. Whilst Aron MacLean was standing on the ladder, the ladder slipped and Aron MacLean fell through the open void directly below him. He fell a distance which was later measured to be 6.98 metres from the walkway floor surface at level 3 of the bridge to the concrete floor below, where he landed. 15. Aron MacLean was taken away by ambulance and remained in intensive care at St Vincents Hospital for 6 weeks. 16. Investigations by Inspector Howard revealed that the timber access stairs had been installed, on the eastern side on level 3 of the bridge, the area known as the transcept, approximately one month prior to the accident. Permanent handrails had been installed on level 3 of the bridge, but these handrails shopped short of where the access stairs were located. There was an open void on each side of the timber access stairs to level 3 of the bridge. No handrails were in place to prevent persons falling into the open voids on each side of the timber access stairs. The voids were beyond the barriers referred to below at paragraph 18. 17. Scaffolding had previously been in place, under level 3 of the bridge, to enable workers to paint the underside of the bridge and install the permanent handrails mentioned above. The scaffolding had been removed on 16 October 1999 as the painting on the underside of the bridge had finished. 18. The area was then closed off to employees through the use of a wooden barricade system. The defendant engaged a contractor to block off the entrance to the bridge area. The contractor blocked off the entrance on 16 October 1999. Three pieces of timber were nailed to the entry way of either side of the barrier to prevent access. One length of timber was placed, horizontally, approximately 100mm from the floor. Another length of timber was placed, horizontally, approximately 5 feet above the floor. A third piece of timber was placed mid way between the two other pieces. 19. Gregory Tavener, project manager and a foreman of Boone & Willard Plumbing Pty Limited, who has been in the construction industry for 20 years, told the Inspector that neither he nor anyone from Boone & Willard was 'informed by Multiplex' that level 3 of the bridge had 'become a closed off work area' . However, in the days prior to the accident, Gregory Tavener and Anthony Taylor, a foreman of the defendant, had discussed the bridge area: (a) Gregory Tavener has told the Inspector that in the days prior to the accident, he spoke to Anthony Taylor: 'I spoke to Mr Taller [sic], Multiplex Foreman requesting the area L3 bridge have handrails or make it safe. A day later it had not been repaired, so I asked the question again, he said no you will have to use a harness… I instructed Mick not to send anyone near the stairs unless the bottom work is done by the scissor lift…Any work to be done above, to be done with a harness or to get Multiplex to fix it.'' 'I told Tony, the Multiplex Foreman in charge of that area and essential services to rectify that corner, he said he would. Approximately a day later I asked him again and he said to me he basically said to me that he wasn't going to do it, if anyone goes up there just throw a harness on.' The Defendant does not dispute the truth of what Mr Tavener said to the Inspector. (b) Anthony Taylor has told the Inspector that he told Gregory Tavener that: 'I couldn't guarantee that I was going to put handrails there straight away and that any work there couldn't be carried out until I did'. 'The actual wording was with the bridge that he wasn't to carry out the work without a harness system.' The Defendant does not dispute the truth of what Mr Taylor said to the Inspector.

20. Gregory Tavener has told the Inspector that on the day of the accident: '. . . I told my men to continue to finish half the bridge or side of the bridge when the hand rails were and I informed my leading hand, Nick Phillips, when we get anything towards the void I told him to get, either to get Multiplex to fixed or wear a harness, put a harness on the corner and they should get Multiplex to fix the handrails in that corner if it's not done get out of the area.' '. . . I had instructed Nick [Phillips, my leading hand] don't go to the corner until we get handrails, we were told to throw a harness on . . . I said to Nick, the preference would be to get Multiplex to fix it. . . . The morning of the accident it still wasn't fixed and we pulled our men out of the area.' 'Friday morning over just general conversation I said has that been fixed up yet and they said nup well I said let's get out and lets go up to 4. . . . I took Aaron and Greg up to level 4 link bridge and set them up for a days work off that, away from that corner.' 'All my comment was to work, stop short of the void when you go any further move out of the area or install a harness. The harness isn't safety line ready to put on and you can not go out of the area until its right.' The Defendant does not dispute the truth of what Mr Tavener said to the Inspector. 21. Once the men completed the work on level 4 of the bridge, they decided to carry out work on level 3 of the bridge. Multiplex was not informed that the men intended to work on level 3. 22. The middle rail of the barrier to entry on the eastern side of the bridge had been removed by persons unknown and, as at the time of the accident, was not in place. Multiplex was not informed that the middle rail had been removed at any time prior to the incident. 23. Aron MacLean has told the inspector that he ' stepped through those timbers' (the barrier timbers) to get onto the bridge. The Defendant does not dispute the truth of what Mr MacLean said to the Inspector. 24. Gregory Keighery has told the Inspector that they gained access by ducking under one of the lengths of timber that had been placed across the doorway, and that he did not see any signs to indicate that the area was a prohibited area. The Defendant does not dispute the truth of what Mr Keighery said to the Inspector. 25. Aron MacLean and Gregory Keighery have told the Inspector that neither of them had to remove any of the timbers to gain access to level 3 of the bridge. The Defendant has no evidence to contradict this. 26. Rohan Carson has told the Inspector that he gained access to the bridge by walking up the stairs onto the bridge. Rohan Carson has told the Inspector that at entry he saw two lengths of timber, one approximately 100mm off the floor and the other approximately 5ft off the floor. Rohan Carson has told the Inspector that he saw no signs to indicate that access to that area was prohibited. The Defendant does not dispute the truth of what Mr Carson said to the Inspector. 27. Rohan Carson has told the Inspector that he did not remove any of the timbers to gain access. The Defendant has no evidence to contradict this. 28. Rohan Carson has told the Inspector that once on the bridge, he set about soldering some shower recess assembly together using an oxy-acetalene set he knew had been left there on a previous occasion. Gregory Keighery and Aron MacLean have told the Inspector that they were installing fire hydrant pipe work. The Defendant does not dispute the truth of what Mr Carson, Mr Keighery and Mr MacLean said to the Inspector. 29. Aron MacLean, Gregory Keighery, and Rohan Carson have told the Inspector that they were on the bridge at that time. Rohan Carson has told the Inspector that there was also a painter on the bridge. The Defendant does not dispute the truth of what Mr MacLean, Mr Keighery and Mr Carson said to the Inspector. 30. Aron MacLean and Rohan Carson have told the Inspector that at the time of the accident they were installing a 4" galvanised steel pipe. Rohan Carson has told the Inspector that he was at one end, and that Aron MacLean was holding the other end on the ladder and that Gregory Keighery was in the middle putting a clip on. Gregory Keighery told the Inspector that he put the clip on and Rohan Carson walked away. Rohan Carson has told the Inspector that he heard Greg Keighery yell and turned around to see Aron MacLean falling into the void. The Defendant does not dispute the truth of what Mr MacLean, Mr Carson and Mr Keighery said to the Inspector. 31. Bruce Anthony Johnson, a fitter employed by Otis Elevators, has told the Inspector that he was working on level 1 installing a doorframe for a lift shaft. Bruce Johnson told the Inspector that he observed a number of workers on level 3 of the link bridge and that he saw Aron MacLean fall. Bruce Johnson has told the Inspector that at the time of Aron MacLean's fall, he went to the area where Aron MacLean had been working and says that he observed that there was no scaffolding or platforms to prevent persons falling and there were no signs at the entrance to level 3 of the bridge to prevent access. The Defendant does not dispute the truth of what Mr Johnson said to the Inspector.

5 Mr R. Reitano of counsel appeared for the prosecution and Mr B.D. Hodgkinson SC appeared for the defendant. The prosecution relied upon an agreed statement of facts, a factual inspection report prepared by Inspector Howard of the WorkCover Authority, associated photographs of the site of the incident and the industrial record of the company. The defendant relied upon an affidavit of Mr David Peter Higgon, the Manager of Employee Relations for Multiplex who reports to the directors of Multiplex. At the time of the incident he was the Manager of Employee Relations of the defendant company but had been the Manager of Occupational Health and Safety.

6 In consideration of penalty the Commission, sitting in Court Session, must first assess the nature and quality of the offence, that is the objective seriousness of the offence (see Lawrenson Diecasting Pty Limited v. WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 at 474).

7 The defendant, a major construction firm operating in New South Wales was head contractor at The Finger Wharf Development in Woolloomooloo Bay, Sydney. It contracted with Boon & Willard Plumbing to install hydraulic services on the development. Mr Aron MacLean was employed by Boon & Willard as a plumber. He had been installing a 100 millimetre diameter galvanised fire hydrant pipe on the eastern side of level 3 of the cross-over link bridge. There were two walking platforms onto the one bridge. One platform joined the level 3 corridors. The other platform joined the level 4 corridors. Mr MacLean, in performance of his task, was standing on a ladder placed across the access stairs to level 3 of the link bridge. The ladder had been propped on one side with pieces of timber to level it across the stair tread. Mr Keighery, another plumber with Boon & Willard was standing on the floor of the bridge holding the other end of the pipe. The ladder slipped. Mr MacLean fell through the open void below him, a distance of 6.98 metres down to the concrete floor of level 3. He was in St Vincent's Hospital for six weeks and suffered severe injury. After a rehabilitation programme, he has returned to full duties.

8 Multiplex was aware level 3 opened onto a deep void for some 20 feet to the ground. Evidence revealed scaffolding had been in place in the area but had been removed two weeks beforehand. A contractor for Multiplex had blocked off the entrance after scaffolding had been removed by nailing three lengths of timber across the entrance. One board was placed across the top of the entrance, one at the bottom of the entrance and one across the centre. The employees stepped through the barrier timbers to get access to the bridge. The centre cross bar nailed to the entrance had been removed. The workers had easy access to the site. There were no warning signs.

9 There are four elements to an offence under s16 of the Act. As the Full Bench commented in Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 [at12]: In Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994 ) , Peterson J, correctly in our view, identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s 16(1). These we paraphrase as follows: 1. The defendant was an employer; 2. there were persons not employees exposed to risks to their health or safety; 3. the risk arose from the conduct of the defendant's undertaking; and 4. the exposure to risk was at the defendant's place of work.

10 The four elements are admitted. The obligation therefore under s16(1) of the Occupational Health and Safety Act 1983 on the defendant corporation was to provide a place of work free from risk to the health, safety and welfare of employees who are required to work on its undertakings.

11 In this circumstance the two conversations between the sub-contractor, supervisor and Mr Tavener, the supervisor for Multiplex and Mr Taylor, becomes relevant. The defendant company knew work had to be done directly in an area it had already barricaded and, when directly informed of the risk to safety in the area where employees were required to perform tasks reacted by saying, in effect, don't work there but if you do, wear a harness. Such an attitude cannot be held to meet the defendant's obligation. The plea of guilty is the defendant's acknowledgment of this fact.

12 The Commission must examine the culpability of the defendant for the offence as pleaded (see Inspector May v McDonald's Australia Limited [2002] NSWIRComm 179; WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 [at 42-43]). In its consideration as to culpability for the breach the Commission takes into account in the circumstances the actions of other parties especially the workers of the plumbing subcontractor.

13 The offence as pleaded against Multiplex relates to its failure to ensure its sub-contractor followed a system of work which was in place and that failure created a risk to safety; its failure to properly fence an open void; its failure to ensure appropriate protective equipment was used by employees performing work from a height; its failure to properly inform its subcontractor regarding access to the level 3 bridge.

14 The defendant company submits it is relevant to consider the following evidence: it had ensured a barricade was erected to stop access to the area and it had no knowledge part of that barricade had been removed; it had advised the supervisor of the plumbing sub-contractor as to the appropriate use of a harness in order to work in the area over a void; it placed rigorous obligations on safety as evidenced by the contract it entered into with its sub-contractors; it demanded rigorous training of all workers at its places of work. The defendant further submits the foolish act of the employees of another contractor in erecting a ladder in so precarious a fashion must affect the degree of its culpability for the incident.

15 There were some actions of the sub-contractor's employees in accessing this site and in adopting a foolish system of work which actions I find diminish this defendant's culpability but they do so only marginally. The defendant knew the site posed a risk to safety generally and specifically knew the employees needed access to that work site for work at a height across a void. The simple comment "don't carry out work without a harness system" does not meet the obligation of an employer under s16(1) of the Occupational Health and Safety Act 1983.

16 A risk to safety actually foreseen must also affect the court's consideration of the level of culpability of the defendant (see AXIA Pty Limited v Environmental Protection Authority (1993) 113 LGER 357). I find the circumstances reveal there was an element of foreseeability to this breach. The company knew the sub-contractors needed access to the bridge. Further, it had been made aware the site was a risk to safety. While the subcontractor identified the risk to the defendant company in terms of a need for the provision of hand rails, the defendant corporation identified the risk to safety could be met with the use of a harness. The defendant had itself identified the risk by barricading the site some weeks earlier.

17 Much reliance was placed on the contract, which contract determined that much of the safety equipment and obligation on site was to be provided by the subcontractor. The contract itself was both a generic statement of the principles for site safety and specifically related to work methods. It established a comprehensive and rigorous system of work for site safety. Evidence revealed this defendant corporation, as the head contractor, had on site only persons involved in the planning and development of the construction work and supervisors. The supervisor oversaw site workers provided by subcontractors. The contractual documents pass down much of the obligation of the contractor for site safety onto the sub contractors. It is trite but necessary to reiterate, a defendant corporation cannot contract out of its responsibilities and obligations under the Occupational Health and Safety Act.

18 The absolute obligation under s 16(1) of the Act is to ensure any worker on a work site under the defendant's control is provided with safe working and is not exposed to any risk to his/her health and safety at that worksite in the performance of the defendant's undertakings. The labyrinth of subcontracts and the passing over of various responsibilities for site safety through the adoption of documentation in support of safe working, in reality ensured the defendant corporation did not feel the full burden of the absolute obligation imposed on it by the legislature at this place of work.

19 The most serious consequences of subcontracting out work and using subcontractor labour has been revealed through this prosecution. Corporate responsibility for site safety must not be so dispersed through subcontracts as to deflect from a head contractor's awareness of its obligation to protect workers at their place of work from a risk to their health or safety. While this defendant barricaded the void and insisted on site safety standards and training it failed to ensure, in the circumstances, its system of work was safely implemented; it failed to ensure appropriate protection was used; it failed to inform as to safe access. 20 I find this a serious breach of the Act.

21 A number of subjective features to the offence are relevant in consideration as to penalty although they are to be viewed in the context of being secondary to the consideration of the objective seriousness of the offence (see Lawrenson Diecasting at 474).

22 The maximum penalty for this offence is $550,000. However, the corporation is brought forward under s51A of the Act to face a maximum penalty of $825,000 as the company's industrial record reveals three prosecutions since 1992 under the Occupational Health and Safety Act. They are, however, prosecutions which do not indicate a gravity to each offence.

23 Multiplex is a company established in 1962. It is a construction company. At the date of the accident it employed 460 individual workers and engaged the services of approximately 750 subcontractors at 15 building sites in New South Wales. It has contributed significantly to the construction industry in New South Wales being responsible for Stadium Australia (construction value approximately $450,000,000), to a smaller task like the Tranby Aboriginal College (construction value approximately $2,000,000), the development of the Finger Wharf Woolloomooloo involved turning a heritage listed derelict wharf into a current residential hotel and retail centre. The work with a construction value of approximately $200,000,000 took over three years. Over the three year period, 2000 employees worked on the Finger Wharf with up to 700 employees there at one time. The defendant company works in a high risk area and overviews the activities of many workers. In the circumstances I find it a corporate citizen which contributes significantly to employment and the industrial climate within New South Wales.

24 In considering elements of deterrence, the company tendered its occupational health and safety policy which is reviewed annually. Under that policy prior to the accident, it conducted safety walks on all its sites and through its contractual basis demanded the training of workers and the adoption of site safety work standards and methods for all of employees on its worksites. An examination of the industrial history of the injured worker reveals he had been to the mandatory induction programme and to the requisite "tool box" talk training sessions.

25 Since the incident, the defendant company has negotiated a risk management training programme in conjunction with the University of New South Wales; participated in a WorkCover benchmark audit; re-introduced a further training programme for its employees and introduced its co-operation in an industry rehabilitation programme. The corporation's revised work safe systems have programmes directed to "provide greater guidance and support to employees and subcontractors". It is as a head contractor on major building sites to which this breach draws the court's attention and it is the role of the site supervisor that is relevant to this defendant's industrial activities. While much emphasis, in submissions, was placed on the changes and requirements passed down as obligations on the subcontractors, there seems little re-designing of the company's policy related to the activities and responsibilities of its supervisors and their obligations. I accept all the defendant's supervisors have undergone re-training courses. It must, however, be emphasised this project reveals the supervisors of large corporations who act as head contractors on major building sites bear heavy responsibility for site safety and such responsibility cannot be passed down through contract. In this case less than considered suggestion that either no work be done on the site or harnesses be used does not meet the obligation of the employer. Once notified of a risk to safety the supervisor had an even greater obligation under the Act to put in place a redefined work method directed to the identified risk to safety. It failed to so. Industrial co-operation for site safety requires a head contractor and a sub-contractor to react with industrial common sense and, once a risk to safety is recognised, to co-ordinate activities and revise the work method. In that process a sub-contractor must be empowered and able to initiate.

26 In consideration of penalty the court must also take into account a general deterrent element which determines penalty must be proportionate to the level of culpability of the defendant (see Capral Aluminium Pty Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]).

27 The defendant entered an plea of guilty and I find such a plea should attract a discount for its utilitarian value (see R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and R v Sharma [2002] NSW CCA 142.) There were some negotiations with the WorkCover Authority and an Amended Summons has issued. I am persuaded in the circumstances the plea was entered at the earliest opportunity such as to attract a 25 per cent discount.

28 I take into account the gravity of the offence and the above relevant subjective features and the discount allowed of 25 per cent for the utilitarian value of the plea. 29 I find the defendant guilty.

30 The defendant is fined in the sum of $175,000 with a moiety to the WorkCover Authority.

31 There has been agreement between the parties as to quantification of costs in the sum of $13,500. I order the defendant to pay the prosecution's costs as agreed at $13,500.

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