Inspector Gill v Qantas Airways Limited

Industrial Relations Commission (NSW)|2005-08-31|Before: Boland J, Ms J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector Gill v Qantas Airways Limited [2005] NSWIRComm 326

PROSECUTOR Inspector Stephen Gill PARTIES: DEFENDANT Qantas Airways Limited

LEGISLATION CITED: Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Markarian v R [2005] HCA 25 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 CASES CITED: R V Dib [2003] NSWCCA 117 Warman International Ltd v WorkCover Authority of NSW (1998) 80 IR 326 WorkCover Authority of NSW (Inspector Glass) v Qantas Airways Limited (2002) 119 IR 8 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Larkin) v Rice Growers Co-operative Limited (2002) 120 IR 123 WorkCover Authority of New South Wales (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80

PROSECUTOR Mr D O'Neil Solicitor: Mr M Selinger Carroll & O'Dea LEGAL REPRESENTATIVES:

DEFENDANT Solicitor: Ms J Patterson with Mr D Cummings Minter Ellison

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

1 Qantas Limited ("the defendant") operated a freight terminal at Mascot in the State. It had contracted with Blue Collar Personnel Pty Ltd for that labour hire company to provide labour. Liana Park Pty Limited was a wholly owned subsidiary of Blue Collar and employed Paul Evans. 2 On 21 December 2003, Mr Evans was working at the freight terminal as a Storeman and Forklift Driver. Mr Evans' role was to manually break down freight units in the import section of the warehouse as well as general forklift duties. At approximately 5.15 pm, Mr Evans walked into a semi-restricted area within the terminal to adjust a radio that was located on a platform separating two roller decks that were used to move units of freight from the "airside" of the terminal to the "breakdown area" within the terminal. 3 While adjusting the radio, Mr Evans either squatted adjacent to, or sat on the edge of, a roller deck for a period of time. The roller deck was activated by the operator of an Elevated Transfer Vehicle ("ETV") and as the rollers commenced to turn, the pair of shorts Mr Evans was wearing became entangled, apparently between the individual rollers on the roller deck. At the time of the incident, Mr Evans was wearing baggy style three quarter length shorts. As a result of his entanglement in the roller deck, Mr Evans suffered severe perineal injuries. Mr Evans has not been able to return to work to date. 4 The defendant was prosecuted by Inspector Stephen Gill of the WorkCover Authority under s 8(2) of the Occupational Health and Safety Act 2000. That section provides: (2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 5 The defendant was charged with failing to ensure that: [P]eople other than employees of the Defendant, in particular, Paul Evans were not exposed to risks to their health or safety arising from the conduct of the Defendant employer's undertaking while they were at the Defendant employer's place of work. In particular, the Defendant failed to ensure the provision and maintenance of a safe system of work in relation to loading and unloading of freight at the site such that non-employees were not exposed to the risk of entrapment with Roller Decks at the site during the unloading process, in particular by failing to ensure that: (i) a risk assessment of the Roller Decks was undertaken; (ii) non-employees would not be sitting or squatting on or adjacent to the Roller Decks when engaged by the ETV; (iii) non-employees wore appropriate personal protective equipment being industrial style shorts; (iv) proper supervision was given to the unloading process.

The defendant pleaded guilty to the charge. Prosecutor's evidence

6 The prosecutor tendered an agreed statement of facts. It was agreed that: 12 Prior to the incident, the Defendant had not undertaken a risk assessment of the Roller Decks or job safety analysis for the role performed by Mr Evans. However, the Defendant had commissioned the Minerva Consulting Group (' Minerva ') to undertake a hazard survey of the whole Terminal during October 2002. 13 At the time of the incident, the Defendant did not ensure that Mr Evans was wearing the long pants issued to him by the Defendant and not baggy style shorts while working at the site. 14 The radio located on the platform separating the roller decks had been placed in that location by workers of the Defendant in very close proximity to the Roller Decks. There was no reason for the radio to be located in that position other than for employees to listen to sporting events. Representatives of the Defendant were aware of the presence of the radio in the semi-restricted area of the Terminal and had not directed that it be removed. 15 Following the incident, an investigation was undertaken by the Defendant which concluded the following: The root causes of the incident have been assessed as being a combination of:

· the radio's position; · Mr Evans' action of either sitting on or crouching very close to the rollers on the deck; · Mr Evans' wearing of the non-Qantas issue baggy cargo style short pants; · Mr Loader activating the decks whilst a person was in close proximity to the rollers ... the incident occurred whilst an employee was attempting to adjust a radio (non-work related) which had been placed in a hazardous area. 16 As a result of the Prosecutor's investigation of the incident, the Prosecutor issued an Improvement Notice to Qantas requiring Qantas to undertake a risk assessment associated with the roller decks and to identify measures to eliminate or control any risks. In particular, the Prosecutor drew to the attention of the Defendant that the Australian Standard 4024.1-1996 required the safeguarding of machinery from possible entanglement with loose clothing. 17 Following the incident, the Defendant completed risk assessments for persons working at the site. 18 The following steps were subsequently implemented by the Defendant: (i) all radios were removed from the workplace; (ii) updating the induction process given by the Defendant, highlighting specifically the dangers of working near the Roller Decks; (iii) locking out of the power points located near the semi-automated equipment, including the Roller Decks, to ensure only authorised persons can access them; (iv) introducing procedures that only allow supervisors to enter the area where the incident occurred; (v) erecting signage warning that the roller decks may move without warning; (vi) retraining of all workers in the area in the new procedures; (vii) the issuing of a hazard alert by the Defendant to all its employees and personnel regarding sitting on the Roller Decks; and (viii) the Defendant issued industrial style (' King Gee ') shorts to employees of Liana and imposed a requirement that Defendant issued shorts or trousers be worn; (ix) the Defendant guarded parts of the drive chains on the Roller Decks. 7 Along with the agreed statement of facts the prosecutor tendered two diagrams, one of the layout of the freight terminal and the other a hand drawn sketch of the roller deck set up between the airside of the terminal and the breakdown area. 8 Also tendered for the prosecution were: (a) Photographs taken by Inspector Gill on 20 April 2004; (b) A factual inspection report by Inspector Gill dated 20 April 2004; (c) More photographs taken by Inspector Gill on 25 June 2004; (d) A schedule of the defendant's prior convictions of which there were four; (e) A schedule of agreed costs; (f) Australian Standard AS 4024.1 - 1996 "Safeguarding of machinery Part 1: General principles". Evidence for the defendant

9 For the defendant the affidavit of Steven Robert Woodland was read. Mr Woodland was required for cross-examination. 10 Mr Woodland was the defendant's Manager Freight Procedures & Training. His evidence included the following: (i) Qantas operates a national and international airline. Qantas currently employs approximately 30,001 employees across Australia, with approximately 19,501 in NSW and with approximately 260 employed at the Qantas Sydney International Freight Terminal. (ii) Mr Evans performed the duties of a freight store person at the Freight Terminal for approximately five months prior to the Incident. Mr Evans commenced at the Freight Terminal on 16 July 2003. Mr Evans was competent in performing his duties as a freight store person. Mr Evans received comprehensive training from Qantas in relation to his duties as a freight store person including training in occupational health and safety. (iii) Following the Incident, Qantas conducted an investigation into the circumstances surrounding the Incident. The Incident was reported to WorkCover by Qantas within the prescribed period of time. (iv) The Minerva Report listed various hazards identified throughout the Freight Terminal. The specific risks which were factors in the Incident were not identified in the Minerva Report. The hazards identified in the Minerva Report were thoroughly and systematically addressed by Qantas. (v) Qantas viewed the Minerva Report as identifying all the risks and hazards associated with the operations of those areas of the Freight Terminal considered by Minerva. Further risk assessments were conducted on an 'as needs' basis within the Freight Terminal where a further issue arose or a risk or hazard was identified. (vi) The area where the Incident occurred was semi-restricted in that workers were not to access the area unnecessarily. Because there are transfer vehicles moving up and down the tracks, people are expected not to be walking on those tracks unless, and only to the extent that it is necessary in the course of, performing their duties. (vii) During Occupational Health and Safety Awareness training, temporary store persons, such as Mr Evans, are told that the areas in which they are required to work are the breakdown stations adjacent to the 'Echo' ETV track. They are specifically instructed during this training not to cross the ETV tracks on foot for any reason including to access the area where the Incident occurred. Further, no worker is required to sit or squat near the Roller Decks in the course of their duties. No clear instructions were given to workers not to sit on, or squat near, the Roller Decks, because the workers would have had no reason to do so as part of their duties. (viii) The 'Charlie' ETV being operated by Mr Loader did not detect Mr Evans as Mr Evans was on the 'Echo' ETV tracks not the 'Charlie' tracks. I am advised that when Mr Loader engaged the Roller Decks, he did not see (and was not expecting to see) Mr Evans sitting on or squatting near the other end of the Roller Decks. (ix) At the time of the Incident Mr Evans was wearing baggy 'cargo style' shorts. These shorts were not Qantas issue. Standard Qantas uniform 'industrial style' shorts are issued to Qantas staff to be worn when working within the Freight Terminal, and are of a more fitted and shorter style. Mr Evans had been issued with standard Qantas uniform long trousers, but not shorts. At the time, the shorts and pants were treated as 'uniform' rather than personal protective equipment because it had not been identified that there were tasks being performed by persons such as Mr Evans which would expose him to a risk of entanglement via his shorts or pants. (x) In relation to the Roller Deck, although not guarded in the strict sense, the rollers on the Roller Deck was, at the time of the Incident, covered by a checker plate which is welded or screwed on top of the rollers as part of the Roller Deck's structure. It is not possible to provide better guarding of the nip point because the rollers would not then be able to function. (xi) The drive chain and sprocket located at the end of the Roller Deck were not guarded at the time of the Incident as they are recessed back within a cavity at the end of each Roller Deck. At no time prior to the Incident had guarding been installed on the Roller Decks in the Freight Terminal, as the potential for entrapment within the drive chain and sprocket had not been identified as a risk due to the machinery being recessed within the cavity as referred to above and there being no cause for any person to have either their person (for example, hands) or clothing near the cavity in the course of their duties. (xii) Following the Incident, Qantas conducted a risk assessment and implemented a number of changes in relation to the Freight Terminal, as follows: (a) all radios were removed from the Freight Terminal; (b) all power points located near the roller decks were locked out to ensure that unauthorised persons cannot access them; (c) procedures were introduced which allow only supervisors to enter the area where the Incident occurred; (d) all warehouse staff were briefed on the procedures which allow only supervisors to enter the area where the Incident occurred; (e) signage warning that the roller decks may move without warning was erected; (f) a hazard alert was issued to all employees and personnel regarding sitting on the roller decks; (g) the induction training was modified to include a specific direction not to sit on or near the roller decks; (h) industrial style shorts were issued to all Liana employees and other temporary staff and a requirement was imposed for all staff that Qantas issue industrial shorts or trousers be worn; (i) a method of guarding the drive chain and sprockets located at the end of each roller deck was developed; and (j) all workers in the area, including supervisory staff, were retrained in the various procedures outlined above. (xiii) Prior to, and at the time of the Incident, Qantas had a commitment to occupational health and safety. This commitment was reflected, in among other things, the ' Qantas Safety Policy '. The Safety Policy was originally introduced in 1964 and is subject to continual revision, the most recent of which was conducted in October 2002. At the time of the Incident and subsequently, each employee, both at the Freight Terminal and elsewhere at Qantas, is trained in relation to the Safety Policy, and is provided with a copy of it. (xiv) Qantas places great importance on the proper training of all its workers in OH&S. Qantas is continually reviewing its OH&S training courses, and updating them where necessary, to ensure that all workers are provided the most effective training to perform their jobs safely. Qantas provides extensive OH&S training to its employees. Such training was being provided at the time of the Incident and continues to be provided now. (xv) An occupational health and safety committee had been place at the Freight Terminal for more than 10 years prior to the Incident. The OH&S Committee is still in place. At the time of the Incident, the OH&S Committee met between 6 and 8 times each year and minutes of OH&S Committee meetings were taken. That is still the case. Qantas management endeavours to act promptly on recommendations made by the OH&S Committee. (xvi) In April 2001, Qantas implemented an occupational health and safety management system known as 'S.A.F.E.' or 'Safe Airline for Everyone'. S.A.F.E. is an overarching safety regime within which all Qantas divisions and departments are required to develop, among other things, local workplace safety plans and procedures. (xvii) Qantas has a rehabilitation policy. The Rehabilitation Policy was first introduced in 1998 and is subject to continual revision. The Rehabilitation Policy was most recently revised in February 2002. The Rehabilitation Policy is displayed in the lunchrooms and office areas at the Freight Terminal. The Rehabilitation Policy is displayed on noticeboards in each division of Qantas. At the time of the Incident, all employees in the Freight Terminal had received awareness training in relation to the Rehabilitation Policy during their induction training. During this training, I am advised that all employees were provided a copy of the Rehabilitation Policy. That is still the case. I am advised that Mr Evans undertook this Induction Training on 16 July 2003. (xviii) In addition to the OH&S systems outlined above, Qantas has a comprehensive first aid system in place for the treatment of injured staff. (xvix) Matters regarding safety are reported to the Board through a variety of mechanisms. (xx) In the 2001/2002 financial year, Qantas spent approximately $16 million on managing OH&S. In the 2002/2003 financial year, Qantas spent a further $30.5 million. In the 2003/2004 financial year, Qantas spent $30 million of which $10 million was capital expenditure. In the 2004/2005 financial year, Qantas spent $20 million plus capital expenditure. (xxi) I am authorised by Qantas to say, on its behalf, that Qantas regrets the Incident involving Paul Evans on 21 December 2003 occurring. Consideration

11 I should indicate at the outset that the approach I intend to take to sentencing in this matter is as I explained in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266.

12 The failure alleged in the charge was that the defendant: [F]ailed to ensure the provision and maintenance of a safe system of work in relation to loading and unloading of freight at the site such that non-employees were not exposed to the risk of entrapment with Roller Decks at the site during the unloading process, in particular by failing to ensure that: (i) a risk assessment of the Roller Decks was undertaken; (ii) non-employees would not be sitting or squatting on or adjacent to the Roller Decks when engaged by the ETV; (iii) non-employees wore appropriate personal protective equipment being industrial style shorts; (iv) proper supervision was given to the unloading process. 13 As to the risk assessment it was common ground that prior to the incident, the defendant had not undertaken a risk assessment of the Roller Decks or job safety analysis for the role performed by Mr Evans. However, the Defendant had commissioned the Minerva Consulting Group to undertake a hazard survey of the whole terminal during October 2002. Minerva failed to pick up the risk associated with the roller deck. Whilst that does not excuse the defendant it must be given some credit in determining the level of its culpability for having undertaken a risk assessment of the terminal. 14 Moreover, it is abundantly clear from Mr Woodland's affidavit and the documentary material exhibited to that affidavit that the defendant takes its responsibilities for occupational health and safety very seriously. This is a factor that mitigates the objective seriousness of the offence: see Warman International Ltd v WorkCover Authority of NSW (1998) 80 IR 326; WorkCover Authority of NSW (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427; Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8; WorkCover Authority of New South Wales (Inspector Larkin) v Rice Growers Co-operative Limited (2002) 120 IR 123 and WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383. 15 The defendant contended that a risk assessment of the work being carried out by persons in the freight terminal would not have revealed the risk of clothing becoming entangled in rollers because persons were not supposed to be in a position where that could occur. A risk assessment should not be confined to an assessment of the work of a person and whether a risk could arise from the performance of that work. The purpose of any such assessment is to search out any risk in the workplace. The employer must ask itself what aspect of the work or the workplace could conceivably present a risk to the health, safety and welfare of employees or non-employees and what possible conduct could an employee or non-employee engage in whether it be through inadvertence, inattention, haste and even foolish disregard of personal safety that might place that person at risk. 16 The Act imposes an obligation on employers to be pro-active with a view to preventing risks of injury, not merely reacting to them when they became manifest in a incident. As it was observed in WorkCover Authority of NSW (Insp. Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85.

Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive. 17 It was next said the defendant failed to ensure non-employees would not be sitting or squatting on or adjacent to the Roller Decks when engaged by the ETV. This was so. Mr Evans was not meant to be sitting or squatting on the roller decks. But there was a radio sitting on a platform close to ground level that persons were listening to and Mr Evans came over to adjust the radio. The defendant knew the radio was there but failed to take any action to remove it from what was a semi-restricted area. Leaving the radio in situ was tantamount to an invitation for workers to approach the radio and, given its position, to lean or squat down to adjust it, either for the purpose of tuning or to increase or decrease the volume. 18 Next it was said the defendant failed to ensure non-employees wore appropriate personal protective equipment. It was part of the agreement between Qantas and Blue Collar that Qantas would supply one pair of pants or shorts to employees of Blue Collar who worked as Storepersons. On the day he was injured Mr Evans was not wearing the long pants with which he had been provided, but rather was wearing baggy, cargo-style pants. There was a risk of this style of pants becoming entangled in machinery. I note from the photographs that the roller deck is driven by a sprocket and chain mechanism. The mechanism was visible under the platform upon which the radio was situated. Whilst Mr Evans maintained his pants were caught between the rollers, it is conceivable loose clothing could also become entangled in the sprocket and chain mechanism although this was not part of the charge against the defendant. That mechanism was subsequently guarded after the accident. 19 The particulars of the charge also alleged the defendant failed to ensure proper supervision was given to the unloading process. The area that Mr Evans entered was a semi-restricted area. He should not have been in the area for the purpose of adjusting the radio. The ETV operator did not see Mr Evans when he activated the roller deck. That Mr Evans could so easily enter the area during the unloading process and put himself at risk of injury without being challenged, indicates a lack of proper supervision. To be weighed up against this, of course, is that Mr Evans had been properly trained in safety matters. He should have known that his role did not encompass adjusting a radio in a semi-restricted area. 20 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [81]; Kembla Coal & Coke at 27. 21 I do not consider it was obvious that a person's clothing could become entangled in the rollers. But I do consider that an assessment of the risk posed by the rollers and associated mechanism would have: revealed the possibility of loose clothing becoming entangled; led to more effective measures being taken to prevent persons being near the roller decks; and, demanded a stricter regime as to the type of clothing worn in the terminal. 22 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident are relevant in assessing the seriousness of the offence. See: Kembla Coal & Coke at 27. As the prosecutor submitted, the steps described in paragraph 17 of the Agreed Statement of Facts that were taken after the accident were all capable of being taken prior to the incident. There was nothing especially complicated and nothing impracticable about those steps. 23 Although the damage or injury does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 24 In the present case Mr Evans suffered serious injury and has not yet been able to return to work.

25 In Capral Aluminium Ltd the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. The risk of entanglement of clothing in machinery has been known for many, many years and has been the cause of serious injury and even death. Modern practices, including the requirement to wear suitable clothing at work, has resulted in clothing entanglement becoming a much less frequent occurrence. It is important, however, that employers be reminded of the dangers of clothing entanglement and any penalty should compel attention to the risk. 26 As for specific deterrence, I noted earlier that Qantas has a very strong commitment to health and safety in the workplace and its policies and practices reflect this fact. Appropriate steps were taken by the defendant after the accident to prevent a re-occurrence of the risk and whilst Qantas is a very large employer and will continue to operate freight terminals, the element in the penalty for specific deterrence should not be great.

27 There are a number of relevant subjective considerations. Firstly, the plea of guilty was only entered after the initial charge was amended. This, however, is no reason to reduce the discount that is available for the utilitarian value of the plea. In R V Dib [2003] NSWCCA 117 Hodgson JA observed: 3 In my opinion, the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge; and if in such a case the plea is offered as soon as the Crown indicates willingness to accept a plea to the lesser charge, it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with the presumption of innocence of the greater charge, which in those circumstances must stand unaffected. 4 However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382. 5 If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. 6 This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability. 7 I think the sentencing judge may also have been in error in referring to the strength of the Crown case. That can be relevant to the question of whether a plea of guilty is indicative of remorse or otherwise mitigating of culpability, but it is not relevant to the discount to be given by reason of the advantages actually flowing to the administration of justice. 8 However, in my opinion, the discount given in this case, namely 16.7%, was entirely appropriate, and for that reason the first ground of appeal fails.

The penalty shall be discounted by 25 per cent. 28 As earlier mentioned the defendant has a number of prior convictions. There are four of these extending back to 1992. Three of the convictions arose from proceedings in the Chief Industrial Magistrate's Court and one in the Commission in Court Session. The conviction of the defendant by the Court Session arose from an incident where an employee of the defendant suffered severe crush injuries to his chest and left arm and died later in hospital: WorkCover Authority (NSW) (Inspector Glass) v Qantas Airways Limited (2002) 119 IR 8. The injuries were caused by the employee being crushed between a machine (referred to as a "Nobby") which moved on tracks and which was used to transfer cargo in the form of pallets and stock and the wall of a workshop. I note in that case it was alleged in the charge that the system of work was deficient in that employees were not prohibited from accessing the area of operation of the Nobby whilst the Nobby was in operation. I also note the accident occurred in the freight terminal. 29 Notwithstanding the prior convictions, I consider in the circumstances those convictions do not indicate a propensity to re-offend. I have already remarked on the defendant's commitment to occupational health and safety and the steps taken after the accident to prevent a re-occurrence of the risk. The defendant is a very large employer in what might be described as a dangerous industry involving machinery and vehicles constantly on the move. All in all it could be said the defendant has a good record of industrial safety. 30 The defendant cooperated with the investigating authority in relation to the accident and it has shown contrition and remorse. 31 The maximum penalty is $825,000: s 51A of the Act. Noting what the High Court has recently said in Markarian v R [2005] HCA 25 about the importance of the maximum penalty and having regard to all of the relevant circumstances, I consider the proper penalty in this case is $75,000. Orders

32 The Court makes the following orders: (1) The offence is proven and a verdict of guilty is entered. (2) The defendant is convicted of the offence as charged. (3) The defendant is fined an amount of $75,000 with a moiety thereof to the prosecutor. (4) The defendant shall pay the prosecutor's costs of the proceedings in an amount of $12,837.74.

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