Inspector Hinton v Mono Constructions Pty Ltd

Judgment 1The prosecutor, Inspector Jamie Hinton of the WorkCover Authority of New South Wales, has charged the defendant, Mono Constructions Pty Ltd, with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). The defendant has pleaded guilty to the charge and this judgment is concerned only with the question of penalty. Section 8(2) is in the following terms: 8 Duties of employers ... (2) Others at workplace An employer must, so far as is reasonably practicable, 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. 2The charge brought against the defendant arises out of an incident that occurred at a construction site at Kingsgrove, New South Wales, on 1 December 2008. The defendant was charged that being an employer it FAILED TO by its acts or omissions as particularised below, ensure that persons other than Mono Constructions' employees, in particular, Sabahattin Secim and Nevzat Tekman, were not exposed to risks to their health or safety arising from the conduct of Mono Constructions' undertaking while they were at Mono Constructions' place of work, contrary to section 8(2) of the Act. 3The particulars of the charge are as follows: (a) The 'work' referred to in these particulars refers to the work of laying bricks and blocks at the site, in particular, bricking up the opening/access way in the wall between units 8 and 9 at the site including but not limited to incidental tasks such as cleaning the wall or knocking out any temporary wooden lintel(s). (b) The 'risk' referred to in these particulars and in the charge is the risk of Sabahattin Secim and Nevzat Tekman falling from height to the ground. (c) Mono Constructions did not ensure that: (i) a fall arrest device, such as a harness or similar device, that was capable of preventing the risk was provided and used by Sabahattin Secim and Nevzat Tekman whilst they were undertaking the work; (ii) a scaffold or elevated work platform, or similar equipment, with hand rails or other forms of physical barriers that were capable of preventing the risk was provided, positioned and used in units 8 and 9 at the site so that Sabahattin Secim and Nevzat Tekman could work from them whilst they were undertaking the work; (iii) handrails or other forms of physical barriers that were capable of preventing the risk were provided, positioned and used on the walkway/accessway between units 8 and 9 of the site; and/or (iv) there was guarding or physical barriers for a penetration on the upper level between units 8 and 9, so as to ensure Sabahattin Secim and Nevzat Tekman were not exposed to risks to their health or safety while they were at Mono Constructions' place of work. (d) Mono Constructions did not provide any adequate supervision to Sabahattin Secim and Nevzat Tekman such as by having a supervisor monitor the work to ensure they: (i) were using a harness or similar fall arrest device that was capable of preventing the risk; (ii) worked from a scaffold, elevated work platform, or similar equipment, with hand rails or other forms of physical barriers that were capable of preventing the risk, positioned in units 8 and 9 at the site, whilst they were undertaking the work; (iii) did not use a walkway/accessway between units 8 and 9 of the site that did not have handrails or other forms of physical barriers that were capable of preventing the risk; and/or (iv) did not work next to an unguarded penetration on the upper level between units 8 and 9, so as to ensure Sabahattin Secim and Nevzat Tekman were not exposed to risks to their health or safety while they were at Mono Constructions' place of work. (e) Mono Constructions did not ensure that Sabahattin Secim and Nevzat Tekman were provided with any adequate induction at the site at which Mono Constructions or someone on its behalf explained to Sabahattin Secim and Nevzat Tekman that they were not permitted to be working at height unless: (i) they used a harness or similar fall arrest device that was capable of preventing the risk; (ii) they worked from a scaffold, elevated work platform, or similar equipment, with hand rails or other forms of physical barriers that were capable of preventing the risk, positioned in units 8 and 9 at the site, whilst they were undertaking the work; (iii) handrails or other forms of physical barriers that were capable of preventing the risk were provided, positioned and used on the walkway/accessway between units 8 and 9 of the site; and/or (iv) there was guarding or physical barriers for a penetration on the upper level between units 8 and 9, so as to ensure Sabahattin Secim and Nevzat Tekman were not exposed to risks to their health or safety while they were at Mono Constructions' place of work. (f) Mono Constructions did not ensure that a Safe Work Method Statement was provided by all its subcontractors, in particular, Tekman Group [ACN 132 759 794] and Tekman Industries Pty Ltd [ACN 114 020 905], before they commenced work at the site so as to ensure Sabahattin Secim and Nevzat Tekman were not exposed to risks to their health or safety while they were at Mono Constructions' place of work. (g) Mono Constructions did not ensure that a risk assessment or an adequate risk assessment was conducted for the work that identified the risk at the site and the means by which it could be controlled, such as: (i) using a fall arrest device, such as a harness or similar device, whilst working at height; (ii) working from a scaffold, elevated work platform or similar equipment, with hand rails or other forms of physical barriers that were capable of preventing the risk, positioned in units 8 and 9 at the site; (iii) ensuring that handrails or other forms of physical barriers that were capable of preventing the risk were provided, positioned and used on the walkway/accessway between units 8 and 9 of the site; and/or (iv) by providing guarding or physical barriers for a penetration on the upper level between units 8 and 9, so as to ensure Sabahattin Secim and Nevzat Tekman were not exposed to risks to their health or safety while they were at Mono Constructions' place of work. As a result of Mono Constructions' acts and omissions, Sabahattin Secim and Nevzat Tekman were exposed to the risk at the site. Sabahattin Secim's injury was a manifestation of that risk. 4Documentary evidence was tendered in the proceedings by the prosecutor consisting of an agreed statement of facts and some photographs. 5For the defendant there was tendered into evidence an affidavit of Joseph Moujalli, its sole director and secretary and some documentation which evidenced the occupational health and safety procedures and protocols used by the defendant prior to the incident. Mr Moujalli gave oral evidence. 6The agreed statement of facts is in the following terms: