(e) financial and other contributions for natural disasters including the 2009 Victorian Bushfire Appeal.
25 Additionally, BCSC also makes financial and non-financial contributions to the community and charitable organisations, including:
(a) the provision of product and materials to the Channel Nine program "Domestic Blitz" which helps deserving families in the community; and
(b) BCSC is a key member of the Cement Industry Federation, the national body representing the Australian Cement Industry.
26 Mr Kirkby is employed by BCSC as an Operations Manager at the site. He has been employed by BCSC since approximately 1996 and listed the various roles he has performed at the company and his relevant qualifications.
27 Mr Kirkby acknowledged the Newstead family's loss and set out the various measures undertaken by BCSC to prevent any such incident from occurring again.
28 As Operations Manager, Mr Kirkby is responsible for overseeing the operations at the site including safety, production, environment, financial performance and human resources issues. The Department Heads at the site, known as the Senior Management Team, report to him.
29 Mr Kirkby detailed the site's works operation explaining it is a cement making and packaging factory where the production of clinker and raw materials is made into cement and despatched as bulk cement. The site produces a total amount of approximately 400,000 tonnes of cement produce per annum. At the time of the incident, approximately 107 employees worked at the site. At present there are approximately 101 employees. Most of the employees are organised into three operating departments, the Engineering and Maintenance Department (consisting of electrical and mechanical tradespersons who are responsible for maintenance across the site), the Cement Production Department (responsible for production of product on site), and the Packing and Despatch Department(responsible for packaging and bulk despatch). At the time of the incident, the electrical team at the site consisted of an electrical engineer, a team leader, an electrical planner and eight electricians. Generally, the site had approximately three electrical apprentices on site. Currently, the electrical team consists of nine employees.
30 At the time of the incident, Mr Kirkby was working at the Prospect offices of BCSC. His evidence was that he attended a verbal briefing to staff at the Prospect site within days of the incident occurring, at which time he was informed of the incident. After his commencement in the position of Operations Manager, Mr Kirkby stated that he had discussions with the electrical engineer to obtain an update on various electrical safety initiatives and held a briefing on site to update personnel on the status of the post incident measures.
31 Mr Kirkby described the actions taken when the incident occurred. First aid was administered by Mr Chris Lever, an apprentice, Mr David Pickford, the first aid officer, and Mr Lennard Young, the safety and training advisor, all of whom had current first aid certificates. It was initially thought that Mr Newstead had suffered a heart attack, as there were no signs of electrocution. Upon receiving notification of the incident the Ambulance Service of New South Wales, the police and the WorkCover Authority of New South Wales ("WorkCover") were immediately notified. In the afternoon, a briefing session was held with all personnel at the site to inform them of the incident and arrangements were made for a counsellor to attend the site to provide counselling.
32 On 20 December 2006, a specifically written isolation procedure for the MCC-H1 switchboard in Tower D was developed and implemented through a toolbox talk with the electrical team on 21 December 2006. On the same day, additional labels were attached to the outside of the cell containing the 240V control supply which identified the isolation point for the control supply. Mr Kirkby annexed to his affidavit a copy of a Safety Alert issued across all Boral sites to notify them of the incident.
33 Mr Kirkby described the continuing contact with the Newstead's family since the incident and the provision of financial assistance by Mr Trevor Kemp, the Acting Works Manager, and Mr Warren Angel, the Human Resources Manager. Mr Angel has remained in contact with Mrs Newstead and contacted her on the first and second anniversary of Mr Newstead's death to offer BCSC assistance.
34 Post incident measures outlined by Mr Kirkby included inspections of all Motor Control Centres at the site by Mr Ben Cassenego, a licensed electrical supervisor. As a result of these inspections, detailed drawings were produced for every switchboard identifying all supplies of electricity in an easy to read format. Copies were located in each switchroom. Mr Kirkby attached an example of such a drawing to his affidavit.
35 In late February 2007, Mr Mike Beardsell, the National General Manager for BCSC, commenced an electrical safety review of all of BCSC's operations, co-ordinated by Mr Ian Paterson, a Senior Electrical Engineer in the Group Engineering Services division of BCSC. This became known as the "Paterson Review". The review focused on eight priorities for each BCSC site to address immediately including reviewing electrical boards to identify multiple sources of electricity being fed into the switchboards, reviewing operator access to electrical switchboards, reviewing exposed live parts for compliance with IP2X (a reference to an International Protection Code which requires that a barrier must not allow a standard jointed finger to touch any live parts), reviewing labelling on switchboards, rescue kits, review of access of electrical drawings, switchboard replacement, and residual current devices.
36 From March 2007, the site introduced a Low Voltage Isolation Permit for all electrical work on site which requires an isolation to be performed. The Permit is to be completed by the BCSC employee who is in charge of the work. Any persons who are required to work in the area which has been isolated must sign onto the work permit as part of the work party. A copy of the permit form was annexed to the affidavit. Training and random audits were conducted two to four times per month to ensure the permits were properly completed. When contractors were involved, the lead BCSC electrician was required to complete the Permit and then witness the isolations being performed. The Permit now forms part of the Low Voltage Electrical Isolation Manual. Mr Kirkby stated that he would continue to personally check that the Permits were being followed correctly.
37 Since the incident, the electrical engineer at the site has developed a specific Electrical Safety Manual which deals with electrical hazards and how such hazards should be eliminated or controlled. A copy of the manual was annexed. The electrical engineer conducted training with all electrical personnel and new employees are taken through the manual personally by the electrical engineer. He also conducted general electrical safety awareness sessions in June 2007.
38 In early 2008, Mr Peter Zwal, an electrical consultant, was engaged by BCSC to create a uniform system for safety management of the electrical installations across all BCSC plants in Australia, known as the National Electrical Safety Management System. This system comprises a hierarchy of uniform documents which relate to electrical safety across all aspects of electrical installations. The National Electrical Safety Management System comprises a BCSC National Standard on the Management of Electrical Installations, a copy of which was annexed to Mr Kirkby's affidavit. This included the introduction of regular switchboard audit/inspections. It is planned that the National Electrical Safety Management System will be rolled out across all BCSC sites by the end of 2009.
39 A review of the site's high voltage operating systems also took place and resulted in formal high voltage safety rules being developed in mid 2007 to control access to, operation of and work which is performed on the High Voltage Transmission and Distribution Network at the site. Only authorised persons are able to conduct high voltage switching operations at the site and prior to authorisation, the electrician must have completed an external course in "Safe Working Practices Course for Access Permit Issuers" conducted by Energy Australia.
40 Since the incident, further electrical training has been undertaken by personnel including review and refresher training of the on the Job Safety Analysis System ("JSA"). All site electricians have been reminded that they are required to conduct a JSA before each job is carried out. This has been reinforced to the whole workforce by a Plant Notice dated 5 March 2007 which was issued by Mr Young, the Safety and Training Advisor.
41 According to Mr Kirkby's evidence, the management of contractors was also reviewed in 2007 and 2008. In June 2009, a new BCSC Standard for Contractor Management was implemented at the site, which focused on the processes which were to be followed in relation to the engagement and ongoing management of contractors.
42 At the beginning of 2007, BCSC commenced at a national level, the development of National OHS Standards across all BCSC sites. The aim is for a consistent and uniform set of Standards. The Standards are being progressively rolled out across the BCSC sites. Monthly meetings are held to discuss progress and any issues that may arise.
43 Furthermore, in April 2009, a BCSC National Health and Safety Standard in relation to risk management was introduced at the site. A Job Safety Environment Analysis ("JSEA") process has now replaced the JSA process. The JSEA now incorporates environmental considerations when performing tasks. A JSEA is required for all work activities and tasks which are complex and/or require the involvement of two or more persons. Mr Kirkby also detailed the requirements regarding work orders.
44 The first round of training for the new Risk Management Standard for the site was conducted in September and early October 2009. Further training is being scheduled. Mr Kirkby stated that all employees and contractors are required to be inducted prior to being allowed to work on the site. For contractors, the induction process takes approximately one hour and is conducted by an authorised person. Evidence of relevant licenses and qualifications are obtained from the contractor and affixed to the induction record. The employee induction process takes approximately two and a half hours. It is conducted by the Safety and Training Advisor and is refreshed every two years or after a long absence.
45 Mr Kirkby stated that audits are now conducted of the Occupational Health and Safety Management System at the site annually by Safety Advisors from other BCSC sites. The audits consist of a safety system documentation review, site inspections and discussions with employees in relation to compliance with the system. All action items identified are placed in the site's Action Plan and are prioritised for close out. Additionally, monthly workplace inspections conducted by Team Leaders were introduced in August 2007. Any issues identified are either rectified immediately or entered into "Site Safe", a record system for hazards and incidents at the site.
46 Since August 2008, the leadership team has been required to conduct "safety conversations" with personnel on site. The aim is to move the site culture from one of compliance to safety standards toward one of "belief" in the need for safety. In 2009, the site was required to perform one "safety conversation" per fortnight. It now forms part of the staff members' key performance indicators in their annual performance appraisal.
47 Toolbox talks are conducted on a daily or weekly basis depending on the department and focus on issues such as safety or environment issues from the previous day. These are conducted daily for the electrical and mechanical department. The site also has a dedicated OHS Committee and as at 16 September 2009, 43 personnel at the site have current first aid training.
48 Mr Kirkby stated that BCSC fully cooperated with the investigation conducted by WorkCover into the incident and is an active member in various industry groups. This includes being an active member in the Cement Industry Federation ("CIF"), the national body representing the cement industry. The CIF facilitates the sharing of information amongst participants and is a lobby group for the cement industry. In particular, safety incidents which occur at member sites are shared across members. Mr Kirkby gave an example of a recent incident at a member group site that resulted in a review of all BSCS sites (including the site) of loading bulk tankers at heights. At the site, as a result of this incident, a team was appointed to review the current loading facilities and to implement design solutions to improve safety. This initiative has included expenditure of over $1,000,000 across the various BCSC sites.
49 BCSC also participates in industry groups such as the "SIRF Round Table". This is a national organisation that facilitates group discussions with industry partners on a wide range of topics at specific forums including issues of safety.
50 Mr Kirkby outlined the BCSC's community involvement. This includes a community liaison committee ("CLC") which meets every six months to discuss issues such as safety performance, environmental performance, new projects and any other issues of relevance to the local community (for example, levels of employment). On 18 July 2007, the next CLC meeting after the incident, the CLC was informed of the incident.
51 Every two years, the site hosts an open day for the community where money is raised for a local organisation. The last open day was conducted in July 2008, when approximately $1,055 was raised for the local Queen Victoria Memorial Home (a nursing home) in Picton. This amount was matched by the site. In addition, the site supports a number of local charities and organisations including Picton Scouts, Picton High School - sponsorship of the school art prize and the 50 Golden Years Anniversary and Fete; Wollondilly Anglican College Country Fair sponsorship; Buxton Volunteer Rural Fire Brigade; Thirlmere Festival of Steam and Jarvisfield Netball Club Inc.
Relevant principles
52 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]:
[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.