Inspector John Patton v Brambles Australia Limited t/as Gardner Perrott

Industrial Relations Commission (NSW)|1994-05-20|Before: Kavanagh J, Fisher CJ, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector John Patton v Brambles Australia Limited t/as Gardner Perrott [2002] NSWIRComm 178 PROSECUTION: PARTIES : Inspector John Patton DEFENDANT: Brambles Australia Limited t/as Gardner Perrott FILE NUMBER: IRC553,554,555,556 of 2001 CORAM: Kavanagh J CATCHWORDS : Section 15 and section 27A prosecutions - Nature and quality of each offence assessed. Charges relate to the activity of one Division of Brambles Australia Ltd - the industrial record of each Division of Brambles Australia Ltd kept separately by WorkCover Authority - complete record of all Brambles Australia Ltd's divisions considered as the proper industrial record of the defendant. Application of principle of totality found applicable where offences have no common element - "overall criminality" considered applicable in consideration of penalty after each individual sentence imposed - penalties should be aggregated. Finding individual penalties reflect appropriate relativity between totality of criminality and totality of penalties. Orders as to costs. LEGISLATION CITED : Occupational Health and Safety Act 1983 Crimes (Sentencing Procedure) Act 1999 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Haynes v James Glass and Aluminium Pty Limited (unreported, Fisher CJ, CT91/772-775, 20 May 1994) Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 Cameron v The Queen [2002] HCA 6 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v Holder, R v Johnston [1983] 3 NSWLR 245 Postiglione v The Queen (1997) 189 CLR 295 Crown in Right of the State of NSW (Dept of Education and Training) v Keenan [2001] NSWIRComm 106

HEARING DATES: 05/30/2002 DATE OF JUDGMENT: 08/05/2002

PROSECUTOR: Mr R. Reitano of counsel Solicitor: Ms R. Parmegiani WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr J.V. Agius of counsel Solicitor: Ms L Aitken/Mr J Oakes Minter Ellison

JUDGMENT: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Mon 5 August 2002 IRC553 of 2001 INSPECTOR JOHN PATTON v BRAMBLES AUSTRALIA LIMITED t/as GARDNER PERROTT Prosecution under s27A of the Occupational Health and Safety Act 1983 IRC554 of 2001 INSPECTOR JOHN PATTON v BRAMBLES AUSTRALIA LIMITED t/as GARDNER PERROTT Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC555 of 2001 INSPECTOR JOHN PATTON v BRAMBLES AUSTRALIA LIMITED t/as GARDNER PERROTT Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC556 of 2001 INSPECTOR JOHN PATTON v BRAMBLES AUSTRALIA LIMITED t/as GARDNER PERROTT Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 These four prosecutions are brought by Inspector Patton of the WorkCover Authority of NSW against Brambles Australia Limited t/as Gardner Perrott. The prosecutions issued under the Occupational Health and Safety Act 1983 (the Act) arise out of the same incident. A Notice of Discontinuance was filed in matter Nos. 554 and 556 of 2001 and those prosecutions were dismissed with no order as to costs. The charges brought under s15(1) and s27A of the Occupational Health and Safety Act were pursued. In Matter No. IRC555 of 2001 2 It is alleged the defendant breached s15(1) of the Occupational Health and Safety Act 1983 in that: . . . on the 31 August 1999, at 28-32 Bourke Road, Alexandria, in the State of New South Wales [it] did fail to ensure the health, safety and welfare at work of all its employees, in particular, Claude Clement, in undertaking the removal of asbestos roof sheeting contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: (a) The defendant, at all material times, employed a number of persons, including Claude Clement, to undertake the removal of asbestos roof sheeting at 28-32 Bourke Road, Alexandria. (b) The defendant, at all material times, carried out industrial demolition and asbestos removal at a factory situated at 28-32 Bourke Road, Alexandria. (c) The defendant failed to provide or maintain safe systems of work for employees undertaking removal of asbestos roof sheeting at its place of work. (d) The defendant failed to carry out a risk assessment with respect to the removal of asbestos roof sheets at premises situated at 28-32 Bourke Road, Alexandria. (e) The defendant failed to provide a work method statement with respect to the removal of asbestos roof sheets at 28-32 Bourke Road, Alexandria. (f) The defendant failed to ensure the use of a fall arrest system by employees carrying out the removal of asbestos roof sheets at 28-32 Bourke Road, Alexandria. (g) The defendant failed to provide such instructions and training as may be necessary to ensure the health and safety of employees at the said site. (h) The defendant failed to provide such adequate supervision as may be necessary to employees undertaking removal of asbestos roof sheets at the said site. (i) As a result of the said failures Claude Clement received injuries.

In Matter No. IRC553 of 2001 3 It is further alleged the defendant as the employer breached s27A of the Occupational Health and Safety Act: . . . between the 10th of August, 1999, and the 31st of August 1999, at 28-32 Bourke Road, Alexandria, in the State of New South Wales, [in that at] a place of work, [it] did c arry out work of a kind prescribed by the regulations, to wit bonded asbestos removal work, without giving notice, prior to commencement of the proposed bonded asbestos removal work, in accordance with Section 27A of the Occupational Health and Safety Act, 1983.

The particulars of the charge are: (a) On the 10th August 1999 the defendant commenced the removal of bonded asbestos sheeting at premises at 28-32 Bourke Road, Alexandria in the State of New South Wales.

(b) After the 31 August 1999 the defendant sent a notification of intention to remove bonded asbestos roof sheeting to the Workcover Authority. This notification was received by the Workcover Authority on the 2 September 1999.

(c) The defendant failed to notify the Workcover Authority of its intention to remove bonded asbestos at least seven days prior to commencement of the work . . . 4 The defendant pleaded guilty to both charges.

5 An agreed statement of facts was tendered relevant to both charges which reads as follows: 3. At all material times the defendant was in the business of industrial demolition and asbestos removal 4. At all material times the defendant carried out demolition and asbestos removal work at a factory situated at 28-32 Bourke Road, Alexandria (the said factory). 5. At all material times the defendant employed the following: a) Claude Clement, 42 years of age, as a demolition labourer. b) Vincent John Taurima, 25 years of age as, a leading hand c) Rufus Whanui Hape, 33 years of age, as a leading hand. d) Michael Anthony Dwyer, 48 years of age, as a senior supervisor. 6. At all material times the said factory was occupied by Jack Lee & Company Pty Limited. 7. Jack Lee & Company Pty Limited contracted Soplea Pty Limited to replace the roof of the factory, which had been damaged by hail. 8. Soplea Pty Limited was in the business of replacing hail damaged roofs and guttering. 9. Soplea Pty Limited was owned by Brian John Healey who operated the business together with his son David. 10 Soplea Pty Limited sub contracted Brambles Australia Limited t/as Gardner Perrott to remove and dispose of asbestos roof sheeting at the said factory. 11. On the 31st August, 1999, Claude Clement received extensive injuries, including fractured right elbow, fractured left knee cap, broken nose, broken tooth, and a cut above his chin when he fell approximately six metres, through an asbestos cement roof sheet on the roof of the said factory, to the concrete floor of the factory. 12. Prior to the accident, Claude Clement was in the process of removing hail damaged roof sheeting. Claude Clement was working on a saw tooth shaped roof. With him on the roof was Rufus Hape. Vincent Taurima, the Leading Hand was below the roof in an elevated work platform. The three workers removed two roof sections of AC roof sheets in the morning, had a meal break and then returned to work on the roof. 13. At approximately 10:30am, on the said date, Claude Clement, whilst on the roof of the said factory, reached for an electric screw gun. In so doing, he stepped onto an AC roof sheet that broke. Claude Clement fell to the concrete floor of the factory below. An ambulance was called and two ambulance officers treated him at the site before taking him to hospital for treatment. 14. On the 19th October, 1999 Inspector Patton attended the said factory. On the 23rd of November, 1999, he prepared a factual inspection report. 15. Investigations by Inspector Patton revealed that Claude Clement commenced employment with the defendant approximately four months prior to the accident. He had undertaken a four hour asbestos course at Miller College TAFE and obtained his Bonded Asbestos Removal ticket on the 12th May, 1999. In relation to this TAFE course, Claude Clement informed Inspector Patton that the course was mainly to do with the dangers of asbestos. 16. Claude Clement's supervisor, on the day of the accident, was Michael Dwyer. Vincent Taurima was the leading hand. 17. Investigations by Inspector Patton, further, revealed the following: a) The roof sheet that Claude Clement had stepped on had previously broken in half and had been slipped back and siliconed in position. This repair on the roof had been carried out prior to employees from the defendant company attending the job. b) There was no safety mesh on the underside of the roof. c) The defendant had not carried out a risk assessment in relation to the job. When asked, by Inspector Patton, whether a risk assessment had been carried out, Michael Dwyer answered " A verbal risk assessment was done between all of us". However, all three employees at the site, when interviewed by Inspector Patton, advised the Inspector that no risk assessment had been carried out prior to commencing work at the site. d) The defendant had not prepared a work method statement in relation to the job. e) The defendant had not provided, to employees, occupational health and safety induction training in relation to the site and the work as required by the Code of Practice-Occupational Health and Safety Induction Training for Construction Work, 1999, that came into effect on the 1st April, 1999. f) There was no static line and harness set up on the roof for use of employees carrying out the removal of roof sheeting, although this equipment was provided to employees at the said factory. In an interview with Inspector Patton, Vincent Taurima informed Inspector Patton that a static line and harness system was not in place at the time of the accident but was subsequently erected by him, of his own volition, after the accident had occurred. g) The defendant had a Safe Operating Procedure for Working at Heights on Roofs. At section 4.3 of that safety procedure it states "all work on roofs to be carried out in accordance with the WorkCover code of practice". The code of practice "Safe Work on Roofs - Part 1, Commercial and Industrial Buildings" outlines a number of measures to be taken, listed in section 3.11 (brittle and fragile roofs). These include: i) inspect the underside of the roof to determine; the extent of the fragile roof material, existence of any safety mesh and structural soundness of the roof and safety mesh ii) provide temporary walkways where no permanent walkways are provided iii) provide individual fall arrest systems and anchorages for any person working on brittle roofs where permanent safety mesh has not been provided to the roof. This procedure was not followed by the defendant, prior to or at the time of carrying out the work, at the site of the incident the subject of these proceedings. 18. Inspector Patton also interviewed Brian John Healy, director and owner of Soplea Pty Limited. He advised that he had provided no information to Claude Clement, by way of work method statement or otherwise, in relation to the work to be carried out on the roof. He had no knowledge as to what training Claude Clement had been given by the defendant. 19. Once Soplea Pty Limited had engaged the services of the defendant Brian Healy had no control over the system of work at the work site. On the day of the accident, Brian Healy was at home recovering from a hernia operation. 20. Section 27A of the Occupational Health and Safety Act, 1983, states that a person must not commence to carry out work of a kind prescribed by the regulations at a place of work unless the person has given notice of the proposed work to the WorkCover Authority at least seven days before the commencement of the proposed work. The regulations prescribe bonded asbestos removal work as the type of work where notification to the WorkCover Authority is required. 21. No such notification was made to WorkCover in relation to the work carried out at the said site, prior to the accident. After the accident, Vincent Taurima was asked by the defendant to fill out and sign the application for the removal of bonded asbestos roof sheeting. 22. On the 2nd of September, 1999, The WorkCover Authority received notification, by the defendant, of its intention to carry out bonded asbestos removal. This notification was received by way of a form titled " APPLICATION FOR A WORKSITE PERMIT FOR FRIABLE ASBESTOS REMOVAL OR NOTIFICATION OF INTENTION TO REMOVE BONDED ASBESTOS ". 23. This notification form was signed by Vincent Taurima but was undated. 24.. This notification form contains a section titled " 5. Details of the job ". 25. Within this section is a sub section titled "Proposed Starting & Finishing Dates of Work ". This sub section had not been filled out. 26. The defendant carried out an investigation and prepared a report, dated the 1st September, 1999, in relation to the accident. The report identified the contributing factors to the accident as being the following: a) failure to follow working at heights and on roofs procedure b) failure to identify a hazardous situation c) cracked AC sheet. 6 Mr Clement, a demolition labourer, was working upon a roof for the purpose of demolition and asbestos removal with two other workers, Mr Taurima and Mr Hape. They were being supervised by Mr Dwyer. Mr Taurima was nominated as the leading hand. All three labourers, Mr Clement, Mr Taurima and Mr Hape had been qualified and registered to perform asbestos removal work. They had attended a TAFE college to get this specific training. Both Mr Taurima and Mr Hape were also registered supervisors. 7 The work was performed on a roof approximately six metres above the ground. The employees were replacing a factory roof and this required the removal of asbestos cement roof sheets. The employees were wearing no safety harness. Such safety equipment, however, was on site. Mr Clement slipped on a cracked roof sheet and fell the six metres to the floor below. He suffered significant injuries to his arms and shoulders and is at present performing alternative duties with the company.

8 Mr R. Reitano of counsel appeared for the prosecutor. Mr J.V. Agius SC appeared for the defendant. An Agreed Statement of Facts was relied upon. The prosecutor tendered a number of photographs of the site and a WorkCover Report.

9 Mr Agius relied upon the affidavit of Mr Peter Nicholas, the National Occupational Health, Safety and Environmental Manager of Gardner Perrott for the Eastern Region of Australia. Mr Nicholas also gave oral evidence. He placed before the court on behalf of the defendant the following documents: the Gardner Perrott Safety Management Plan for NSW, a Plan which existed at the time of this incident; a revised Safety Management Plan prepared following the incident; a summary of the TAFE course attended by all of the workers on the site entitled "The Bonded Asbestos Sheet Removal Course"; a summary of the course content including all of the approved work procedures to be followed in the performance of this dangerous work; sample copies of the "ticket" achieved by the workers at both qualification and supervisory levels; the academic records of the relevant workers; the revised Injury Management Policy and Injury Management Procedures. The rehabilitation programme put in place by the company for the care of Mr Clement was also before the Court.

10 In consideration of penalty the Commission in Court Session must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' . . .

The Full Bench further stated (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

Prosecution in Matter No IRC555 of 2001 11 This prosecution under s15(1) directs its attention to the failure of the defendant to provide and maintain a safe system of work; its failure to carry out a risk assessment of the task; its failure to provide a work method statement for the purpose of the task; its failure to ensure the use of a fall arrest system for employees working at heights; its failure to provide appropriate instruction and training to Mr Clement and its failure to provide adequate supervision of the three employees working at the task. 12 In an assessment of the gravity of this offence, a number of particular features must be addressed. Mr Nicholas revealed the company had a training programme acknowledging the particular hazards faced by its workers in performing tasks related to the removal of asbestos. It required, in accordance with statutory obligation placed upon it under the Occupational Health and Safety Act, that workers be properly aware of the health risks and hazards relating to asbestos removal. Accordingly, all its workers attended the appropriate Bonded Asbestos Removal Course and received the appropriate training and qualification. The course was aimed to develop in employees a high level of safety consciousness. However, the course did not address the element of the removal of asbestos at height. The appropriate concession was made by Mr Nicholas: . . . the TAFE Bonded Asbestos Removal Course does not provide specific training regarding working from heights . . .

13 In place at the time, within the company, was an Induction Training Programme. Through the in-house training programme, workers were to be trained as to safe working at heights. However, there is no record that Mr Clement enjoyed the benefits of this internal induction training programme prior to the accident. Further, there was no evidence sufficient to persuade the Commission in Court Session that Mr Clement had any internal training as to the appropriate procedures to be followed for safe working at heights. The incident relates to a breach where an employee was working above the statutory height which requires employers to provide and to ensure safe working. While the defendant company had in place a safe working at heights policy and had provided the appropriate harnessing of lines at the worksite, there was a complete failure to follow the company's safety procedures. Mr Clements was working under the supervision of Mr Dwyer and under the guidance of a leading hand, Mr Taurima. While Mr Clements had not been properly trained to work at heights, Mr Dwyer and Mr Taurima, both supervisors, also failed to ensure rigorous adherence to the company's safety policies. The proper equipment was on site but not used.

14 Further, the evidence revealed the defendant failed to carry out a risk assessment of the particular job at Alexandria; failed to provide a work method for the task; failed to ensure the fall arrest system which was part of company safety procedure was put in place; failed to adequately train its supervisors to assert authority to ensure employees perform this work safely and in accordance with company safety standards as to the use of a safety equipment were complied with; failed to provide the training required to ensure Mr Clement's awareness of the risk in performing work at height and the need to follow company safety procedures. 15 In all of the circumstances I find this a serious offence.

16 In consideration of penalty, a number of subjective features to the offence have been placed before the Commission in Court Session. In Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464 the Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited (at 474) with approval, the passage in the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce.

17 I accept the defendant now has a genuine commitment to occupational health and safety and that this commitment is reflected in its occupational health and safety policy and procedures. The policy which existed prior to the incident has since been revised. I accept these policies have the status of Management Plans and are implemented through the training of all employees.

18 Mr Nicholas' evidence does persuade the Commission in Court Session the internal training programme of its employees is now rigorously adhered to. Training includes: a certification by each individual employee of the company's occupational health and safety policy; manual handling training; a confined space awareness course; the required skills for vacuum loading and high pressure water blasting; hazard and risk awareness for working at heights. Internal safety audits are now conducted with the co-operation of the local occupational health and safety committees, on-site managers and the task supervisor.

19 Evidence revealed the company did not walk away from their own report of the incident which caused them to review some perceived attitudinal problems within the company. The company standards applied to employees working at heights and on roofs and the training conducted both with the individual and through toolbox meetings indicates work is now conducted with a job safety and environmental analysis.

20 I am further satisfied the expressed contrition of the company is further reflected in the concern shown for Mr Clement's wellbeing and the rehabilitation programme undertaken to assist in his recovery. Mr Clement, after a rigorous rehabilitation programme, has now returned to full time employment. He is working as an occupational health and safety officer within the company. This employment, while full time, reflects the fact he still has an ongoing incapacity arising from the incident.

21 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the Act where Hungerford J held: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. These principles were recently cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]) where it was said: the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 22 The defendant, as to specific deterrence, had a training programme in place and the appropriate equipment at the site but not only was Mr Clement not properly trained to work at heights, the other two highly qualified workers on site did not implement their training and supervisory skills to ensure company procedures for safe working at heights were followed.

23 I am, however, satisfied there is now in place a checking system to ensure each employee receives appropriate training and the supervision at the defendant's worksites. The company has established occupational health and safety committees to ensure their policy and procedures are communicated throughout the workforce. These committees are set up at each main depot and involve members who work at each depot. Each member of the committee is accredited with a training course run by the National Safety Council as well as particular skills courses which are needed in performance of their work. Each training programme is organised through Brambles. The function of such a committee is to identify and notify potential or actual hazards; to monitor and review the company's safety systems including its manuals and policies; to consider company issues raised at toolbox meetings; to review accident and incident reports and to vary safety circumstances to reflect the review of any accident; to encourage discussion and to disseminate information. Meetings are held monthly and are recorded. The toolbox meetings are conducted at site and appear from the records to be very specific.

24 An example of how the system should operate was given. After this incident, a manager in a written assessment of the incident, suggested Mr Clement should bear some responsibility notwithstanding there was both a supervisor and leading hand on the site. This "attitude" of the manager was acknowledged by the company to be unacceptable and the manager himself benefited from a retraining programme. I found Mr Nicholas to be an honest witness. He also made proper concessions as to the absence of any evidence related to Mr Clement's in-house training which is relevant as that training would have addressed the company's required safety procedures for working at heights. Prosecution in Matter No IRC553 of 2001 25 It is alleged the defendant employer in this matter breached s27A of the Occupational Health and Safety Act in that it carried out the removal of bonded asbestos without giving prior notice to the WorkCover Authority in accordance with s27A of the Occupational Health Safety Act: 27A Notification of certain proposed work (1) A person must not commence to carry out work of a kind prescribed by the regulations at a place of work unless the person has given notice of the proposed work in accordance with this section. Maximum penalty: 100 penalty units. (2) The regulations may prescribe the following kinds of work for the purposes of subsection (1): (a) construction work, (b) demolition work, (c) the setting up or erection of cranes, hoists, scaffolding, conveyors, escalators, lifts or moving walks, (d) any other work (whether or not of the same kind). (3) Any notice under this section: (a) is to be in the form approved by the WorkCover Authority, and (b) is to be given at least 7 days before the commencement of the proposed work, and (c) is to be given to the WorkCover Authority by leaving it at, or by sending it by post or by facsimile transmission to, an office of the WorkCover Authority. (4) The regulations may: (a) require a notice to be given in a different manner, or within a different time, from that prescribed by subsection (3), and (b) require a notice to be given by a person other than the person proposing to carry out the work. (5) (Repealed)

26 The particulars of the charge are: the defendant commenced the removal without notification on 10 August 1999; the defendant sent notification on 31 August 1999 following the incident involving Mr Clement and the defendant failed to notify the WorkCover Authority at least seven days prior to commencing the asbestos removal work.

27 I do not find the evidence, as to the circumstances related to the lack of notification in accordance with the defendant's statutory obligation, satisfactory. As best the evidence stands, Mr Nicholas overheard conversations during the company's investigation of the breach which suggested officers of the company did not believe they had to comply with s27A of the Act and notify. The internal view as was held by Mr Banks, the company's Demolition Manager, the work (based on the contract with Soplea Pty Ltd) involved the removal of small amounts of asbestos roofing on an ad hoc basis so as to keep the roof watertight and the industry operation on-going. Each area of roofing removed on this ad hoc basis was between 60-80 square metres and therefore the company determined the obligation to notify did not apply. However, Mr Nicholas agreed the area of the site which required asbestos removal exceeded the 200 square metres minimum which required notification under the Act.

28 I am not satisfied as to the explanation offered by the defendant as to the reason there was no notification of this work. While the Commission in Court Session notes the notification in these circumstances had little effect on the risk to safety, its purpose becomes relevant. In the Second Reading Speech of 17 October 1990 of Mr John Fahey (Southern Highlands), Minister for Industrial Relations and Minister for Further Education, Training and Employment stated as to the purpose of s27A: . . . The new section in the Occupational Health and Safety Act restricts notification to cases where there is a relationship between the work to be undertaken and an occupational health and safety risk . . . These changes . . . ensure the real objective of notification is met - targeting of particular risks to the safety of workers and others. From a reading of s27A its purpose would appear to be threefold - to record any work which employees are required to perform that is "prescribed", namely, the removal of asbestos sheeting; to keep a record, in the public interest, given the possible ramifications of the serious nature of the work for the removal of asbestos; to notify, for inspectorial purposes, the WorkCover Authority, as to expected time for the performance of such work.

29 The failure to notify in this case was a failure by a company which is seriously affected by the provisions of s27A. This company does much of the asbestos removal work in New South Wales. It employs full time and casual workers occupied in this task. The work inherently provides a risk to safety. The provision of s27A of the Act is directly related to the public interest. Its function is to record, for the future, any possible exposures to an identified dangerous substance. What is of concern is, if the accident had not occurred, this task would never have been recorded.

30 The evidence revealed there were particular circumstances involved in this asbestos removal job. Sydney had been struck by a wildcat hailstorm, in the particular area where the work was performed. Roofs of industrial complexes had to be immediately repaired. However such circumstances do not provide any excuse for not properly notifying in accordance with obligations placed on an employer under the Act. Even accepting the proposition repairs were conducted on an ad hoc basis in the circumstances so as to ensure productivity was not disturbed, I do not accept the company's proposition that, as it was only removing small sections at a time, it did not have to notify. The obligation to notify is a strict obligation. On a review of its activities, it is noted the company has pleaded guilty to the charge and now acknowledges its obligations.

31 In a consideration as to the element of deterrence in an assessment of penalty, I am further not satisfied that the line of responsibility for notification is yet as clearly defined in company procedures as it could be. Cross examination of Mr Nicholas by the Prosecution made it clear he was not sure. If there is better definition as to the responsibility for notification it was not placed before me. The company however acknowledges its obligation to notify must be complied with rigorously. I expect the direct line of responsibility for notification will be given attention and clarified in a review of this area of responsibility.

32 I find this breach under s27A of the Act in the middle range.

33 Three further issues must be given consideration related to each offence in mitigation of penalty before sentence is determined.

34 The first issue relates to the industrial record of the company. Brambles Australia Limited has a number of Divisions. The Commission in Court Session is assisted by the affidavit of Ms Kelly Wilson, the Executive Director, Human Resources, of Brambles Australia Ltd. The company is incorporated with its registered offices in New South Wales. At the time of this incident, on 31 August 1999, Brambles was made up of 12 separate businesses referred to internally as "IR, Cleanaway, Recor, Brambles Equipment Division, Brambles Marine and others". Gardner Perrott, the defendant named, was but another Division of Brambles Australia Ltd. Given the varying nature of the work conducted by each of the Divisions, all of the Divisions had their own executive directors, general managers and operational managers. The responsibility for safety also falls along divisional lines. Mr Peter Nicholas was the National Occupational Health, Safety and Environmental Manager for Gardner Perrott for the eastern region of Australia. However, all Divisions operate within the corporate identity, Brambles Australia Limited. They all share the same ACN number (see WorkCover Authority of NSW (Insp Sheppard) v SRA of NSW [2000] NSWIRComm 179, published 6 October 2000).

35 Between 1980 and 1997 Brambles Australia Limited has recorded against it eight prior breaches of the Act. The level of penalty of each offence indicates they were not serious breaches of the Act. Brambles Transport Division had one conviction in 1998. Brambles Cleanaway Division had two convictions, one of which in 1991 could be perceived as a serious breach; Wreckair, another division of Brambles has had one conviction recorded against it and United Transport Services, another division of Brambles, has one conviction also. The Division, Gardner Perrott, the defendant to these two breaches of the Act, has recorded an industrial record of three convictions of the Act, one of which, in May 2002, may be perceived as a middle level conviction. The defendant submits the WorkCover Authority, since 1980, has proceeded to separate convictions related to each Division of Brambles and this Commission in Court Session should continue to follow this practice.

36 Brambles Australia Limited has chosen not to incorporate its Divisions as separate legal identities. In doing so, Brambles Australia has set in train a number of legal consequences. Large companies with significant numbers of employees are brought before the Commission sitting in Court Session on charges related to alleged breaches of the Occupational Health and Safety Act 1983. Although these companies often operate through separate Divisions, it is to the company's full industrial record that the court's attention is drawn. Mr Agius submits the Divisions of Brambles are autonomous, if not in legal entity. The prior convictions of other Divisions he submits should not be deemed as prior convictions of Gardner Perrott, the defendant Division. The prior convictions of the other divisions he submits represent different sets of facts. Each Division operates under different safety systems depending upon the nature of the work conducted by the Division. Mr Agius submits the prior convictions of other Divisions of Brambles Australia have no bearing on Gardner Perrott's safety record.

37 In total, Brambles and its Divisions has recorded against it 16 convictions between the period 1980 and 2002 for breaches of the Occupational Health and Safety Act. Two of those convictions indicate a serious nature to the breach. I do not accept the submission of Mr Agius that the Commission in Court Session should examine only the industrial record of this Division of Brambles Australia Limited, namely, Gardner Perrott. If, however, one did only direct the Commission in Court Session's attention to that industrial record, there are three recorded convictions between 1992 and 2002. The last applied by the Chief Industrial Magistrate was in the higher range within his jurisdiction. I find the Commission in Court Session must take into its consideration the industrial record of Brambles Australia Limited so as to include in its consideration the industrial record as put before the court of all Divisions of Brambles Australia Limited.

38 This Division, however, operates in a high risk area of industry and has not had recorded against it any serious breach of the Act. The Gardner Perrott Division of Brambles employs 195 persons in New South Wales on both a casual and full time basis for this high risk work.

39 The second subjective consideration relevant to both matters relates to the defendant's submission it entered an early plea of guilty to each charge. The charge in matter No 555 of 2001 under s15(1) was laid by way of an Amended Application for Order which was filed on 5 June 2001 and the defendant at the time of filing entered a plea of guilty. In matter No 553 of 2001 the charge was laid on 7 February 2001 and the plea was entered on 5 June 2001 at a mention after the s15 prosecution was amended and the plea entered to the s15(1) charge. The judgment of the High Court in Cameron v The Queen [2002] HCA 6 affects the guideline judgment of R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and 2000 115 A Crim R 104. In Thomson, the Court of Criminal Appeal held the full benefit and discount for the utilitarian value of an early plea of guilty should be restricted to pleas entered at the earliest opportunity and should rarely be given after a matter has been set down for trial. In Cameron, the High Court held when a defendant accepts responsibility for a crime and shows a willingness to facilitate the course of justice, the Court in the assessment of the value of such a circumstance must consider: ". . . whether the plea was entered at the first reasonable opportunity". The effect of Cameron on the guideline judgment in Thomson was considered by the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142. The court held that the reasoning in Cameron was not applicable in New South Wales because the common law principles enunciated there have been modified by statute, namely s22 of the Crimes (Sentencing Procedure) Act 1999, which renders it mandatory that a sentencing judge take into account both "the fact" of the plea of guilty and "when" it was made.

40 The Prosecution supports the defendant's submission that in the circumstances these were pleas entered with a utilitarian value. I have before me evidence two other prosecutions have been withdrawn. I am satisfied the circumstances reflect an early plea of guilty was entered to both charges and as such should attract a discount for the utilitarian value of each plea in accordance with the guideline judgment in Thomson. I allow a discount of 25 per cent for the plea of guilty entered on each charge.

41 The third issue raised in mitigation of penalty by the defendant in both matters is the submission the principle of totality is applicable to the court's consideration and should be applied to these offences. Counsel for the prosecution submitted as the two offences are so different "in character" the principle of totality has no part to play in the Commission in Court Session's consideration. The prosecutor submits a separate fine should be imposed for each breach of the Act.

42 The High Court in Pearce v The Queen (1998) 194 CLR 610 guided the Commission in Court Session as to sentencing in circumstances where the defendant is charged with more than one offence. The majority McHugh, Hayne and Callinan JJ said: [45] To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. ( Mill v The Queen (1988) 166 CLR 59) [46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. (cf House v The King (1936) 55 CLR 499) It is, then, all the more important that proper principle be applied throughout the process. [47] Questions of cumulation and concurrence may well be affected by particular statutory rules (See Crimes Act , s444(2)and(3); Sentencing Act 1989 (NSW), s9; see also Sentencing Act 1991 (Vict), s16). If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. (emphasis added)

43 As to the question of totality in R v Holder; R v Johnston [1983] 3 NSWLR 245 (at 260), Street CJ described the principle in the following way: . . . The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. . . . and McHugh J in Postiglione v The Queen (1997) 189 CLR 295 described the operation of the principle thus: The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged ( R v Holder [1983] 3 NSWLR 245 at 260). Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences ( Holder [1983] 3 NSWLR 245 at 260).

44 In Postiglione, Kirby J also enunciates the principle in the following way (at 340): The totality principle has a dual aspect as explained recently in the Supreme Court of Canada R v M (CA) (1996) 105 CCC (3d) 327 at 349. First, in the words of D A Thomas, Principles of Sentencing 2nd ed (1979) at 56 also cited with approval in Mill v The Queen (1988) 166 CLR 59 at 63 : The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'.

45 The principle is expressed in terms which address the cumulative effect of sentences/penalty. There is no reference to a similar thread or link between offences but to the overall criminality of the defendant. The "common element" analysis relied upon by the Prosecutor to submit the offences are "different in character" follows the words of McHugh, Hayne and Callinan JJ in Pearce: [40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. (emphasis added)

46 The Full Bench of the Commission sitting in Court Session in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan [2001] NSWIRComm 106 at [37] followed this reasoning to say: We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate.

47 The prosecution submits as these offences have no element in common the principal of totality does not apply. The prosecutor submits a breach under s15 for failure to provide a safe system of work has no common element to a breach of the Act of a failure to notify under s27A.

48 In the application of the principle of totality, the Commission in Court Session is to have regard to the overall criminality in determining the overall sentence/penalty. When the Industrial Relations Commission of New South Wales is sitting in Court Session considering prosecutions under the Occupational Health and Safety Act 1983 there are, at times, common elements to charges especially those brought under s15 and s16 of the Occupational Health and Safety Act. In such cases the view of the Full Bench must be taken into account and regard must be had, when considering more than one offence, to the principle a defendant is not to be punished more than once for elements which are common to the offences being considered. However, I do not believe Keenan is authority for the proposition that it is a necessary precondition for the application of the principle of totality that there be similarity in the offences or common elements in the offences. The statement of the Full Bench of the Court in Keenan [at 37] that the Commission in Court Session must have regard to "the principle that a defendant is not to be punished more than once for elements which are common to the offences" does not in any way limit the application of the principle of totality to sentence/penalty in matters which do not contain similar elements in the offences.

49 I am of the view, these charges do not contain common elements in the nature of the breaches as pleaded and which are before me for consideration as to penalty. I believe it is, however, proper to view the "overall criminality" of the defendant in setting final penalty.

50 The maximum penalty prescribed by the Legislature for an offence under s15 of the Act for a corporation at the time of the incident is $550,000. However, the maximum penalty for this breach is $825,000 as the company has prior convictions which bring into effect the provision of s51A of the Act. The offence under s27A of the Act carries a maximum penalty of $11,000.

51 I take into account the gravity of each offence and the above relevant subjective features of each offence and the discount allowed for the utilitarian value of each plea. I accept the company co-operated with the WorkCover Authority in its investigation of the breach as charged under s15(1) of the Occupational Health and Safety Act 1983 and in its investigations of the circumstances surrounding the s27A charge under the Act.

52 I find the defendant guilty in Matter No IRC553 of 2001 for a breach of s15 of the Occupational Health and Safety Act 1983. The defendant in Matter No IRC553 of 2001 is fined in the sum of $85,000.

53 I find the defendant guilty in Matter No IRC555 of 2001 for a breach of s27A of the Occupational Health and Safety Act 1983. The defendant in Matter No IRC555 of 2001 is fined in the sum of $6,000.

54 In the application of the principle of totality and on assessment of the "overall criminality" of this defendant's breaches of the Occupational Health and Safety Act 1983 I do not believe circumstances require the Commission in Court Session to reduce the penalties imposed to give a cumulative sentence. I believe the penalties reflect an appropriate relativity between the totality of the criminality and the totality of the penalties.

55 There will be a moiety to the WorkCover Authority applied to each penalty.

56 There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached.

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Sentencing Act 1989(NSW)

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