Inspector John Patton v Vibro-Pile

Prosecutor: Mr P.J. Punch Solicitor Carroll & O'Dea LEGAL REPRESENTATIVES: Defendant: Mr A.A. Henskens of counsel Solicitors: Colin Biggers & Paisley

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Thur 6 November 2003 IRC3078 of 2003 INSPECTOR JOHN PATTON v VIBRO-PILE (AUST) PTY LTD (now known as SKH Piling Pty Ltd) Prosecution under s16(1) of the Occupational Health and Safety Act 1983

IRC3079 of 2002 INSPECTOR JOHN PATTON v VIBRO-PILE (W.A.) PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 These prosecutions are brought by Inspector Patton of the WorkCover Authority of NSW against Vibro-Pile (Aust) Pty Limited (now known as SKH Piling Pty Ltd) and Vibro-Pile (WA) Pty Limited. The prosecutions issued under the Occupational Health and Safety Act 1983 (the Act) and the charges are brought under s15(1) and s16(1) of the Act.

2 The companies have a corporate relationship. The Western Australian company employed the workers on site and it had obligations under s15 of the Act to ensure the safety of its employees. The Australian corporation was conducting its undertaking at its place of work and failed to ensure the safety of persons other than employees on its worksite (s16).

3 The following charge under s15(1) of the Act is brought against the Western Australian company by whom the injured employee was employed: VIBRO-PILE (W.A.) PTY. LTD. (ACN 009 106 585) . . . ("the Defendant"), being an employer at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site") DID FAIL, on 14 August 2000, contrary to Section 15(1) of the Occupational Health and Safety Act 1983 (NSW) to ensure the health, safety and welfare at work of all of the Defendant's employees and, in particular, Mr Russell William Collyer in that:- (a) It failed to provide such information, instruction, training and supervision to Mr Collyer in regards to the process of driving sheet piles by the use of an unsupported dummy sheet pile called a dolly ("the dolly") at the site. (b) It failed to ensure that the work carried out by Mr Collyer in relation to the driving of sheet piles involved a system of work which was safe and without risk to health to ensure that the dolly was sufficiently attached to the hammer of the crane to prevent it from falling and causing injury to Mr Collyer. 4 Relevant to the charge under s15(1) the following facts are agreed: 2. The Defendant Vibro-pile (WA) Pty Ltd (ACN 009 106 585) is a company duly incorporated in Western Australia with a registered office located at 1 Steele Court, Mentone in the State of Victoria, was at all material times an employer in the state of New South Wales being an employer at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site"). 3. At all material times Baulderstone Hornibrook Engineering Pty Limited and Bilfinger + Berger had formed a joint venture known as the BHBB M5 East Joint Venture ("BHBB") in relation to the construction of the M5 East Motorway. 4. At all material times Vibro-pile (Aust.) Pty. Ltd. (ACN 006 103 126) sub-contracted to BHBB to carry out the steel piling works at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site") which involved the installation of 204 pre-fabricated Arbed type AZ 18 sheet piles ("the undertaking"). 5. At all material times the Defendant was a labour hire company and provided labour to Vibro-pile (Aust.) Pty. Ltd. at various sites including the said site. 6. At all material times the Defendant was an employer in the State of New South Wales. 7. At all material times the site was the Defendant's place of work. 8. At all material times the Defendant employed (1) Mr Russell William Collyer, aged 35 years, as a labourer to carry out work on behalf of Vibro-pile (Aust.) Pty. Ltd. under the direct instruction of Mr James Morris, a Contract Supervisor, at the said site. (2) Jason Dandy as a leading hand labourer at the said site (3) Brian Smith as a crane operator at the said site 9. As part of the sub-contract between Vibro-pile (Aust.) Pty. Ltd. and BHBB, Vibro-pile (Aust.) Pty. Ltd. was carrying out the installation of 204 pre-fabricated arbed type AZ 18 plus 1.0 sheet piles. The sheet piles were installed using a crawler crane utilising a PTC Vibrofonceur 40-a-2 vibrator and a Hydraquip hydraulic hammer. The procedure for vibrated and driven sheet pile put in place by Vibro-pile (Aust.) Pty. Ltd. required that " where piles finish at or below ground level, the service crane will be fitted with a short set of leaders and the hammer is placed in the leaders. A dolly (dummy sheet pile, approximately 3 metres long) is used to drive sheets down to final level". 10. The process required the dolly to be placed, by the use of a crane, on the top of the individual sheet pile. The dogman would check the position of the dolly and then unhook the dolly from the auxiliary line of the crane. Using the hammer attached to the crane, the sheet pile would be driven down to the required level. The hammer would then be lifted off the top of the dolly and then the auxiliary line would then be re-attached to the dolly so the dolly could be removed from the sheet pile that had just been driven. The process would then start again, with the dolly being placed onto the next sheet pile to be driven. 11. The system used did not require the dolly to be attached to the hammer. The dolly weighed approximately 1.38 tonne. 12. On 14 August 2000, Mr Collyer, Mr Dandy and Mr Smith were carrying out the installation of the pre-fabricated sheet piles at the site, under the supervision of Mr Morris. 13. Mr Smith was operating the crane at the site, with Mr Dandy acting in the position of dogman, checking the positioning of the top of each sheet pile. The workers had finished driving sheet pile number 194 at the site and took the dolly off sheet pile number 194 and tried to fit it onto the top of sheet pile number 193. The dolly would not fit so Mr Morris was called over by Mr Dandy to assist. Under the instruction of Mr Morris, Mr Dandy cut the top of sheet pile number 193. 14. Approximately two weeks earlier, due to difficulties attaching the dolly to sheet piles, Mr Morris had given instructions for the trimming of the teeth of the dolly to allow easier placement and removal. 15. Once sheet pile number 193 had been trimmed, Mr Dandy using a ladder, unhooked the dolly from the auxiliary line of the crane which had been used to lift the dolly. After Mr Dandy had come down from the ladder, Mr Collyer took the ladder to move it out of the way. Suddenly the dolly started moving. Mr Dandy called out to Mr Collyer to get out of the way but Mr Collyer was unable to move out of the way in time. The dolly fell down off the top of sheet pile No. 193 and struck Mr Collyer. 16. Mr Collyer had received general occupational health and safety induction training upon commencement at the site. He also received on the job training with respect to the system used for driving sheet piles and with respect to some safety precautions in that regard. 17. In the subject accident, Mr Collyer suffered a fractured right eye socket, a broken back, a dislocated left hip, multiple fractures to his lower right leg, a cracked sternum, three fractures to the right ribs, a broken right foot, lung contusions and facial lacerations. 18. The Job Safety Analysis for the specific task of driving sheet piles made no reference to the necessity of having the dolly permanently chained to the hammer to ensure that it would be safely in place. 19. Since the accident, Vibro-pile (Aust.) Pty. Ltd. has issued an amended procedure for vibrated and driven sheet piles which requires that the dolly be permanently chained to the hammer.

5 The Australian company faces an amended charge under s16(1) of the Act for its failure to ensure the safety of persons not employees at the defendant's place of work: Vibro-pile (Aust.) Pty. Ltd. (ACN 006 103 126) . . . (the Defendant) being an employer at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site") DID FAIL on 14 August 2000 contrary to Section 16(1) of the Occupational Health and Safety Act 1983 (NSW) to ensure that persons not in the Defendant's employment and in particular, Mr Russell William Collyer, were not exposed to risks to their health or safety arising from conduct of the Defendant's undertaking whilst they were at the Defendant's place of work, in that:- (a) It failed to ensure that the work carried out by Mr Collyer in relation to the driving of sheet piles involved a system of work which was safe and without risk to health to ensure that the dolly was sufficiently attached to the hammer of the crane to prevent it from falling and causing injury to Mr Collyer. (b) It failed to provide or maintain systems of work which were safe and without risks to health for the installation of sheet piles at the premises. 6 Relevant to this charge are the following Agreed Statement of Facts: 2. The Defendant, Vibro-pile (Aust) Pty Limited (ACN 006 103 126) is a company duly incorporated in Victoria with a registered office located at 1 Steele Court, Mentone in the State of Victoria was at all material times an employer in the state of New South Wales being an employer at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site"). 3. At all material times Baulderstone Hornibook Engineering Pty Limited and Bilfinger + Berger had formed a joint venture known as the BHBB M5 East Joint Venture ("BHBB") in relation to the construction of the M5 East Motorway. 4. At all material times the Defendant sub-contracted to BHBB to carry out the steel piling works at the BHBB site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site") which involved the installation of 204 pre-fabricated Arbed type AZ 18 sheet piles ("the undertaking"). 5. At all material times Vibro-pile (W.A.) Pty. Ltd. (ACN 009 106 585) was a labour hire company and provided labour to the Defendant at various sites including the said site. At all material times the Defendant was an employer in the State of New South Wales. 6. At all material times the site was the Defendant's place of work and the undertaking referred to in paragraph 4 was the Defendant's undertaking. 8. At all material times Vibro-pile (W.A.) Pty. Ltd. employed (1) Mr Russell William Collyer, aged 35 years, as a labourer to carry out work on behalf of the Defendant under the direct instruction of Mr James Morris a Contract Supervisor at the said site. (2) Jason Dandy as a leading hand labourer at the site (3) Brian Smith as a crane operator at the site 9. As part of the sub-contract between the Defendant and BHBB, the Defendant was carrying out the installation of 204 pre-fabricated arbed type AZ 18 plus 1.0 sheet piles. The sheet piles were installed using a crawler crane utilising a PTC Vibrofonceur 40-a-2 vibrator and a Hydraquip hydraulic hammer. The procedure for vibrated and driven sheet pile put in place by the Defendant required that "where piles finish at or below ground level, the service crane will be fitted with a short set of leaders and the hammer is placed in the leaders. A dolly (dummy sheet pile, approximately 3 metres long) is used to drive sheets down to final level". 10. The process required the dolly to be placed, by the use of a crane, on the top of the individual sheet pile. The dogman would check the position of the dolly and then unhook the dolly from the auxiliary line of the crane. Using the hammer attached to the crane, the sheet pile would be driven down to the required level. The hammer would then be lifted off the top of the dolly and then the auxiliary line would then be re-attached to the dolly so the dolly could be removed from the sheet pile that had just been driven. The process would then start again, with the dolly being placed onto the next sheet pile to be driven. 11. The system used did not require the dolly to be attached to the hammer. The dolly weighed approximately 1.38 tonne. 12. On 14 August 2000, Mr Collyer, Mr Dandy and Mr Smith were carrying out the installation of the pre-fabricated sheet piles at the site, under the supervision of Mr Morris. 13. Mr Smith was operating the crane at the site, with Mr Dandy acting in the position of dogman, checking the positioning of the top of each sheet pile. The workers had finished driving sheet pile number 194 at the site and took the dolly off sheet pile number 194 and tried to fit it onto the top of sheet pile number 193. The dolly would not fit so Mr Morris was called over by Mr Dandy to assist. Under the instruction of Mr Morris, Mr Dandy cut the top of sheet pile number 193. 14. Approximately two weeks earlier, due to difficulties attaching the dolly to sheet piles, Mr Morris had given instructions for the trimming of the teeth of the dolly to allow easier placement and removal. 15. Once sheet pile number 193 had been trimmed, Mr Dandy using a ladder, unhooked the dolly from the auxiliary line of the crane which had been used to lift the dolly. After Mr Dandy had come down from the ladder, Mr Collyer took the ladder to move it out of the way. Suddenly the dolly started moving. Mr Dandy called out to Mr Collyer to get out of the way but Mr Collyer was unable to move out of the way in time. The dolly fell down off the top of sheet pile No. 193 and struck Mr Collyer. 16. Mr Collyer had received general occupational health and safety induction training upon commencement at the site. He also received on the job training with respect to the system used for driving sheet piles and with respect to some safety precautions in that regard. 17. In the subject accident, Mr Collyer suffered a fractured right eye socket, a broken back, a dislocated left hip, multiple fractures to his lower right leg, a cracked sternum, three fractures to the right ribs, a broken right foot, lung contusions and facial lacerations. 18. The Job Safety Analysis for the specific task of driving sheet piles made no reference to the necessity of having the dolly permanently chained to the hammer to ensure that it would be safely in place. 19. The Job Safety Analysis did not take into account the use of the dolly to drive the piles below the ground level. 20. The Defendant's Project Safety Plan for the site made no mention of the use of a dolly. 21. Following the accident, the dolly was modified and trimmed so that it would more easily fit into the sheet piles. 22. Since the accident, Vibro-pile (Aust.) Pty. Ltd. has issued an amended procedure for vibrated and driven sheet piles which requires that the dolly be permanently chained to the hammer.

7 Mr P.J. Punch, solicitor, appeared for the prosecutor. Mr A.A. Henskens, of counsel, appeared for the defendant. The prosecutor tendered a number of photographs of the site with a Factual Inspection Report. The Industrial Record of the two companies was tendered. Mr Henskens relied upon the affidavit of Gerald Edwin Howell, Chairman and Director of the Australian company and Director of the Western Australian company, sworn 17 July 2003 in both matters.

8 Each defendant pleaded guilty to the charge brought against it.

9 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 each 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' . . . 10 The prosecution under s15(1) against the Western Australian company directs attention to the failure of the defendant to provide and maintain a safe system of work; its failure to provide the appropriate training and instruction; its failure to provide appropriate instruction and training of the employees working at the task.

11 The prosecution under s16(1) against the Australian company directs attention to the failure of the defendant to implement a safe system of work to protect persons not employees in the performance of their undertaking at the defendant's place of work.

12 The Australian company was responsible for the safety policy on site. It determined the occupational, health and safety procedures to be followed by the Western Australian company which company employed the employees on site. The Australian company was the nominated contractor and the site was its place of work in the conduct of its undertaking.

13 There was in place a general safety policy and a specific project safety plan. There was a system of work for the task. There were weekly tool box meetings. I accept the evidence revealed there was in place a systematic approach to occupational health and safety at this worksite.

14 The facts reveal the pre-fabricated sheet piles were being hammered into the ground using a dolly with a hammer end. When the dolly would not fit over a particular pile a supervisor ordered the top to be cut off the pile. Two weeks earlier the same supervisor had given instructions to trim the teeth of the dolly. Both actions had been taken as ad hoc decisions. The integrity of both the pile and the dolly was therefore challenged when both adjustments were made. The lack of integrity in the pile and a lack of grip on the dolly, once support was removed led to the dolly collapse causing injury.

15 The Australian company policy specifically stated in a memorandum dated 6 July 1998 to All Technical & Supervisory Personnel from W. Kingwell, General Manager: No item of plant (including accessories) which is of a structural or load bearing nature, is to be manufactured or repaired, prior to receipt of an appropriate shop drawing, checked and signed by an appropriately qualified professional engineer .

Implicit in this requirement is a further requirement that the design of the item to be manufactured of the design of the repair, has been carried out by the signing engineer. This requirement is to cover workshop, sub-contract and field operations.

The maintenance of drilling tools, provided this does not involve repair, alteration or replacement of structural components, is not subject to the above requirement

Should any doubt exist as to the interpretation of the above, a query should be raised with either the Technical Manager, F Albrecht or myself. A supervisor ignored this safety requirement when instructing employees to trim the teeth of the dolly and later to cut the top off a pile.

16 The foreseeability of a risk to health and safety is a factor to be taken into account when assessing the culpability of the defendants. In Department of Mineral Resources of NSW (Chief Inspector Terrey) v A. M. Hoipo & Sons Pty Ltd (2000) 99 IR 137, Walton J, Vice President noted at [56]: . . . the Court and its predecessors have noted on a number of occasions that the general duties under the Act are directed at obviating "risks" to health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159 and Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 at 452-453. Proof of the cause of a particular accident is not a necessary aspect of the offence. Thus, it is the foreseeability of the detriment to safety, rather than the foreseeability of the precise circumstances of the accident which is relevant to the culpability of the defendant.

17 The prosecution submits there was an element of foreseeability to both breaches. Reliance is placed on the fact that the companies had a specific requirement for engineering approval of adjustments which was ignored. Further the prosecution submits once it was within contemplation that adjustments had to occur and given the weight of the dolly was 1.38 tonne, a detriment to safety existed in any change to the system.

18 Such acts of the employee were the acts by an employee of the Western Australian company. I accept there is a foreseeability element to the breach by the employer company whose employee ignored the instruction to have all adjustments to plant approved by an engineer. I do not believe there was a foreseeable detriment to safety in the breach by the Australian company. While it pleads guilty to a failure to have in place a task specific system of work, the evidence revealed it had a written procedure in place for the task but failed to ensure, as it did after the breach, that the dolly be attached to the hammer. The foreseeability of the detriment or risk to safety in the circumstance of the Australian company who had instructed as to appropriate procedures for any adjustments to plant and materials and whose instructions had been ignored, I find, support the submissions the s16(1) breach, while serious, does not have an element of foreseeability.

19 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 . . .

20 It is a matter of stated public policy that employers must be proactive to ensure worksite safety and penalty is relevant to general deterrence. I accept as to specific deterrence the facts reveal the defendants are now not in a position to commit any offence as they have since June 2002 ceased to trade.

21 However, the breach occurred on 14 August 2000. The company traded until June 2002. Evidence revealed after the breaches occurred adjustments were made to its safety procedures. Mr Howell revealed in his affidavit evidence: 38. Immediately after the accident, Vibro-Pile revised its Procedure for Vibrated and Driven Sheet Piles to include a requirement that the dolly shall be permanently chained to the hammer. As far as I am aware, Vibro-Pile is the only organisation in the industry to utilise this practice. . . .

39. The Procedure for Vibrated and Driven Sheet Piles was shortly thereafter further amended to include a provision regarding modifications to the sheet pile and dolly. . . .

40. Immediately after the accident, Vibro-Pile revised its Job Safety Analysis Worksheet for the task of driving sheet piles, and added a provision with respect to use of the dolly attached to the hammer. . . .

22 The companies as to specific deterrence made immediate adjustments to their operation. I take this into account but given the circumstances before me I believe both aspects of deterrence general and specific are relevant to penalty for the breaches being considered but the specific deterrent element has no continuing relevance.

23 I take the view both the breaches are serious offences. The offence pleaded against the Australian company is that there was no specific system of work in place for the task although there were rigorous general safety standards applied by the company. The employees on site of the Western Australian company breached the general standards imposed. I am of the view the nature and quality of the breach by the Western Australian defendant was of a higher order.

24 I find both prosecutions are serious breaches of the Act.

25 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, 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.

26 The Australian company has a prior conviction in 1997 under the provision of s16(1) of the Act. This breach therefore, in accordance with s51A of the Act, attracts a penalty of $825,000.

27 The Western Australian company has recorded no prior breaches of the Act. Therefore, the maximum penalty for the breach under s15(1) is $550,000.

28 The companies ceased to trade in June 2002, yet nothing has been placed before me as to the financial circumstances of each company relevant to mitigation. The defendant however raises s6 of the Fines Act 1996 which states: 6. Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

29 The defendants submit as the companies and their work was the reflection of the endeavours of Mr Howell who is now retired, the court would take into account his retirement.

30 Evidence revealed, through Mr Howell, care for the seriously injured employee was provided. Both companies have expressed both their concern and their contrition. Contrition is further indicated by the pleas.

31 While there was an Amended Summons filed in the prosecution against the Australian company, I accept a plea of guilty was entered at the earliest opportunity. In both matters in accordance with the authority of R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; 2000 115 A Crim R 104 a discount for the utilitarian value of the pleas is allowable and I grant a 25 percent discount accordingly. 32 Mr Henskens raises a submission for the court's consideration as to Penalty in the following way: In this case the position is each defendant has performed the same breaches of the relevant sections, each defendant has been controlled by the same guiding minds, each defendant has had the same systems in place. The real question is whether one treats that from the sentencing point of view as one offence in total aggregate or whether your Honour treats it as two sentences and applies a maximum penalty accordingly.

The reality is that the common shareholdings and the common management of the two separate legal entities, had they as a matter of internal corporate management employed all of the employees, so as a matter of corporate organisation they entered into the contract with the same principal contractor through the same legal entity there could only have been one offence and one penalty imposed.

It is only the fact a different legal entity within the group entered into the contractual relationship with regard to the project that it made it that entity's place of work for the purposes of the Act and therefore that entity liable under the Act.

To the best of my knowledge this issue has never been the subject of judicial determination previously. It is an issue which would not arise in the ordinary run of the mill criminal cases because they overwhelmingly deal with individuals. You do not have corporate structures and the possibility of distinct legal entities governed by the same mind. . . . . . . the question for the sentencing Judge is to have regard to the respective culpability of the defendant in the commission of the offence. One view of the matter, the fact that the contracting defendant has done no more than enter into a contract, it would seem anomalous that that would be treated with the same degree of culpability as the employing corporate defendant who is directly responsible for the workers on site and directly responsible for the systems in place. Whether it is one approach as a matter of totality of sentencing or one approaches it as a matter of parity of sentencing is a matter which must be taken into account by the trial Judge in my submission. Whichever way the matter is approached, as a matter of total penalty as between the two defendants the justice of the case requires there should only be a total penalty which is equivalent to the commission of one offence.

33 Mr Punch for the prosecutor refers to this "novel" submission as follows: . . . from a legal point of view one is charged under the appropriate section as the employer on the site on the day, section 15, and the other company is charged appropriately under section 16 and whilst there is some cross-over of particulars, there are nevertheless standing duties on each which are separate.

34 The structures and status of these companies is raised as an issue. Mr Henskens' submission is while there are two named companies, they are governed by the same mind and therefore there should be only one penalty. Mr Gerald Howell, a Director of both companies reveals in his affidavit evidence: 9. (The) WA (company) was incorporated on 20 August 1984 to act as a labour hire company, for the provision of labour to AUST for interstate jobs undertaken by AUST. The purpose behind this arrangement was to keep wages separate for pay-roll tax purposes, and for the purposes of general business efficacy with respect to Workers Compensation, costing, wage compilation, Awards, EBA variation and to generally deal more effectively with the separate industrial regimes existing in different States.

Given that the sole purpose of WA was to provide labour to AUST, WA was not created with the intention that it operate as a profit making enterprise. Accordingly, WA consistently operated at break-even, or at a small profit.

At all times since the incorporation of WA, the people and systems managing and governing AUST have also managed and governed the administration of WA.

At all times since its incorporation, WA has been covered under the insurance policies of AUST.

. . . Accordingly, the management of both companies (being one management) considered that the policies, procedures and practices of AUST with respect to work-place safety applied equally to WA. No distinction of any kind was made between the employees of EA and the employees of AUST with respect to work-place safety training, procedures or practices.

The business of Vibro-Pile was founded in 1966. From 1966 to 1982 the business was conducted in the name of Vibro-Pile (Vic) Pty Ltd ("VIC"), from 1982 onwards, the business was conducted under the name of AUST. The shareholders of VIC were the current shareholders of AUST, plus V Hettena (my father in law, deceased 1982) and E J Johnson (deceased 1994). V Hettena and his family have been involved in the business of piling since approximately 1990. . . . 17. At the relevant time, the Vibro-Pile business had approximately 50 employees, and routinely performed work under contracts worth up to five hundred thousand dollars, and on occasion, over two million dollars. Vibro-Pile performed work in several states of Australia.

35 If the court were dealing with a single defendant charged with multiple offences questions of cumulation or concurrence as well as question of totality would arise. The majority's view in Pearce v The Queen (1998) 194 CLR 610 (at 624) is relied upon by the defendant as a guide to the court: 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 (sic). (emphasis added)

36 Such a principle however cannot be applicable when there are two defendants. Rather it appears the reasoning applied by the Commission in Court Session in Warman Ltd v WorkCover Authority (1998) 80 IR 326 (at 340-341) as to parity in sentencing is applicable in the circumstances: We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione -v- The Queen ((1997) 145 ALR 408) has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe -v- R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe -v- R, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.' That principle was referred to by Mason J in Lowe -v- The Queen ((1984) 154 CLR 606 at 610) as follows: `Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.'

While the offences with which we are dealing under the O H & S Act do not involve the notion of co-offenders, the fact is that the same circumstances have given rise to prosecutions for offences under ss15 and 16 of the O H & S Act of the direct employer, Drake Personnel Ltd t/as Drake Industrial which supplied the labour involved, and the defendant here who utilised that labour in relevant circumstances. While those defendants have been found guilty of different offences, nevertheless the factual circumstances giving rise to the charges justify an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe .

37 Mr Howell acknowledged the companies were successful medium sized companies whose financial arrangements were made in accordance with business practice. He registered both companies under the Corporations Act and enjoyed all the financial benefits given to registered companies. Mr Howell chose two corporate structures in which to operate this business. Mr Howell in his affidavit acknowledged the general business efficiency and financial benefits for making that decision. The shareholding between the two companies is different. While Mr Howell may be the controlling mind in both companies they are not, as fact, one legal entity.

38 Mr Henskens submits: If one peels away the legalism and confronts the situation, in my submission your Honour has to take that practical reality into account in the way in which your Honour appropriately does justice in this case by the imposition of a penalty. To double penalise someone for essentially the same actions and the same breach of legislation - and in the US they call it cruel and unusual punishment and they have a constitutional protection against it. I think ultimately at the end of the day that is the submission and that is clearly the underlying rationale which has been behind the commonality cases which have been very strongly applied by the Commission over a long period of time. . . .

39 Some reliance is placed by the defendants on the decision of Wright J, President in Page v Walco Hoist Rentals Pty Limited (No. 2) (2000) 99 IR 163 at [39] where he considered there was a significant qualitative difference between the culpability attaching to a first and second defendant, although he found the gravity of all of the offences was serious. His Honour then proceeded to penalty in one charge against each defendant and dismissed other charges. It is submitted here Wright J, President "mused" as to apportioning between charges.

40 In this case however there are two separate defendants and two defined charges. There are two companies before me facing liability for two separate offences, notwithstanding those offences relate to a common event. The circumstances before the court are distinguishable from those considered by the learned President in Page v Walco Hoist Rentals.

41 Submissions have addressed principles of equal justice, double penalty, commonality, totality and parity.

42 I find there are two companies, separate legal identities, before me each of which have breached the Act.

43 While each charge relates to the same event, the two different legal entities plead guilty to a breach of different obligations under the Act: one relates to an employer's obligation - the s15(1) charge, and the other to the obligation to conduct a safe undertaking at a company's worksite - the s16 charge. 44 I take into account the nature and quality of each offence, the subjective features placed before the court, the discount allowed for an early plea and I apply in my consideration as to penalty the notion of equal justice. I also have given consideration to the fact the companies have ceased to trade since 2002 and no longer generate income. I note too the variance in the maximum fines for each offence.

45 I have found the more serious offence is that of the Western Australian company which was the employer on site. That breach, however, attracts the maximum, lesser penalty as it is the first offence, of $550,000. The Australian company's offence, while less serious, attracts a maximum penalty of $825,000.

46 In matter No. 3079 of 2002, Inspector John Patton v Vibro-Pile (WA) Pty Ltd I find the defendant guilty.

47 In consideration of the notion of equal justice, I apply the principal of parity to my consideration of penalty for this breach which I have found is a serious breach but a lower order than that of the employer company.

48 The defendant is fined in the sum of $30,000.00 with a moiety to the WorkCover Authority.

49 In matter No. 3078 of 2002, Inspector John Patton v Vibro-Pile (Australia) Pty Ltd (trading as SKH Piling Pty Ltd) I find the defendant guilty.

50 The defendant is fined in the sum of $40,000.00 with a moiety to the WorkCover Authority.

51 The defendants are to pay the prosecution's costs. There is no agreement as to costs but I allow one order as to costs. The parties have leave to re-list.

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