Annexed to the statement of facts were eight photographs taken by Inspector Jones at the site on 4 November 2003 and "General Conditions of Subcontract" dated August 2000.
12 In addition to the agreed statement of facts, the prosecutor tendered a bundle of documents that consisted of:
(1) WorkCover Code of Practice for Safe Work on Roofs.
(2) WorkCover Code of Practice for Safety Line Systems.
(3) Subcontractor Safety Pack dated 24 July 2003.
(4) Subcontractor Safety Pack dated 9 November 2003.
(5) Prior convictions record for James Nicholas Denson.
13 For the first defendant his affidavit sworn on 22 May 2006 was tendered and read together with two testimonials, the first by John Stokie, Director, MSB Electrical Pty Ltd and the second by Evan Stafford Jackson.
14 In relation to the second defendant the first defendant deposed that it was not currently trading, having ceased trading in 2005; it has no assets; it has a tax liability. Mr Denson said his company would shortly be placed in liquidation.
15 Mr Denson described his financial circumstances. It is apparent that his only assets are personal effects, a few items of furniture including a television and a fridge, a laptop computer that he has recently purchased under finance, books and DVD's. He does not own any real estate, or a car, motorcycle or boat. At the time of the sentencing proceedings he was earning a net weekly wage of $950.00 from his employment with Surfside Metal Roofing Pty Ltd but he had given his notice of resignation effective from 13 June 2006.
16 The first defendant has a personal loan under which about $7,500.00 is owed and which he is repaying at the rate of $200 per fortnight. In his affidavit the second defendant stated:
I wish to leave the construction industry and find alternative employment as soon as possible. This may require me to undertake education or training for work outside the construction industry. I have in the last 6 months or so attended numerous interviews for positions outside the construction industry without success. I am looking for any unskilled fulltime employment in any industrial or commercial enterprise. I have listed myself with a variety of agencies such as Manpower, ET Australia and Adecco.
I anticipate that I will earn much less than $950 net per week once I cease to work in the construction industry, particularly if I have to undertake eduction to gain qualifications for other work. If I have not secured a position outside the construction industry in the next two months I intend to undertake a Human Resources course commencing in July 2006 at Gosford TAFE. Enrolments commence on 22 June 2006.
17 Mr Denson described his approach to work prior to 4 November 2003. He stated that as at 4 November 2003, the second defendant had in place a Safe Work Method Statement ("SWMS") at the site. He stated he was on site at the Erskine Park site for about a week prior to the inspection by Inspector Jones on 4 November 2003. In that week, the supervisor, Peter Kroehnert, or himself conducted toolbox talks each day with all employees at the site, and more often than once a day if required when they started a new part of the job. In each toolbox talk the first defendant stated he reviewed the SWMS with employees, and carried out a risk assessment for the particular part of the job currently being carried out or about to be commenced.
18 Mr Denson stated that in the period prior to 4 November 2003 he regularly checked that employees were working in accordance with the SWMS. He did these checks daily between three and five times per day. Generally, he stated, when checking for compliance with the SWMS he found that employees were working in accordance with the SWMS. Further, Mr Denson deposed:
It was JBMR's [JB Metal Roofing] policy at this time that any employee found not to be working in accordance with the SWMS would be given an oral warning, the employee would be directed to cease work, and a review of the SWMS would occur with the employee and the safety analysis for the work being carried out would be reassessed. If an employee had to be cautioned for not working in accordance with the SWMS on more than 3 occasions it is likely JBMR would have dismissed that employee, although this never occurred.
On several occasions I did have to remind one employee, Mr Cornish, how to correctly fit his harness.
In the week or so before 4 November 2003 I also met with the site foreman for the Walker Group, Daniel Basic, to discuss and consider each individual process of work which JBMR employees would undertake, and the risks involved and how those risks would be addressed.
One of the safety issues I discussed with Mr Basic was the anchor points to be used on the buildings on which JBMR employees were to work. We agreed that for the main office building (on which Mr Fleming and Mr Cornish worked) the safety harnesses worn by JBMR employees would be attached to existing structural steel work which Mr Basic and I inspected and agreed was a more than adequate anchor point.
I showed Mr Fleming and Mr Cornish where the anchor points to the existing structural steel were located before they commenced work on the roof.
In respect of the Transport Office roof, JBMR supplied anchor plates which were to be fixed to the metal purlins by 6 or 7 12-gauge screws… each screw can take up to 5.8 kN of force. I was aware of this load capacity at the time and in my view an anchor plate fixed by 6 or 7 of these screws would be able to take 30 - 35 kN of force. The required load capacity for an anchor point under the relevant Australian Standard is 22 kN. I discussed using these anchor plates fixed with these screws with Mr Basic and we agreed they would be appropriate and safe for use on the Transport office building.