Inspector Ken Kumar v JR Haulage Pty Ltd t/as State Warehousing and Distribution Services

CATCHWORDS: Breach of s8(1) of Occupational Health and Safety Act 2000 - Use of machine by employee who was not qualified and not fully trained - Supervision unsatisfactory - Guilty plea - penalty

Occupational Health and Safety Act 2000 8(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss21A 22 23 34

Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 Depart of Mineral Resources of NSW (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Markarian v R (2005) 215 ALR 213 CASES CITED: R v Sharma (2002) 54 NSWLR 300 R v Thomson, R v Houlton (2000) 49 NSWLR 383, (2000) 115 A Crim R 104 Tyler v Sydney Electricity (1993) 47 IR 1

Prosecutor: Ms P.E. McDonald Solicitors: Ms R. Panagoda LEGAL REPRESENTATIVES: WorkCover Authority

Defendant: Mr A.B. Gotting Solicitors: Holding Redlich

• 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR KEN KUMAR v JR HAULAGE PTY LTD t/as STATE WAREHOUSING AND DISTRIBUTION SERVICES Prosecution under s8(1) of the Occupational Health and Safety Act 2000

1 This prosecution is brought by Inspector Ken Kumar of the WorkCover Authority of NSW against JR Haulage Pty Ltd t/as State Warehousing and Distribution Services (the defendant) under s8(1) of the Occupational Health and Safety Act 2000 (the Act).

2 It is alleged the defendant breached s8(1) of the Act in that it failed: To ensure the health, safety and welfare at work of all its employees and in particular, Loude Pineda, contrary to Section 8(1) of the Occupational Health & Safety Act 2000. The particulars of the charge are: 1. The defendant failed to ensure that the Crown stock picker SP3040-30TT276 Serial Number 1A186087R (stock picker) provided for the use of employees was safe and without risks to health; 2. The defendant failed to provide adequate instructions and adequate information to employees on the safe use of the stock picker; 3. The defendant failed to supervise adequately the use of the stock picker by employees; 4. The defendant failed to provide adequate training to its employees in the use of the stock picker; and 5. The defendant failed to identify, assess and control adequately risks and hazards in relation to the use of the stock picker.

As a result of the defendant's failures, Loude Pineda, was placed at risk and was fatally injured. 3 The defendant pleaded guilty to the charge.

4 An agreed statement of facts was tendered which relevantly reads as follows: 3. At all material times the defendant was an employer. Its business involved the business of third party logistics and it has a number of warehouses throughout Australia. The defendant on 24 July 2003 operated a warehouse and distributing centre at 496-498 Victoria Street, Wetherill Park, in the State of New South Wales (' the premises' ). The premises contained two warehouses known as 'warehouse one' and 'warehouse two'. 4. The defendant owned a "Crown" stock picker model SP3040 - 30TT276 serial number 1A186087R (' stock picker '), which it provided for use by its employees in the course of their duties at work at the premises. 5. At all material times, Loude Pineda (' Mr Pineda ') was employed by the defendant as a store person at defendant's warehousing and distribution operations centre at the premises. Mr Pineda commenced work with the defendant as a casual employee on 1 July 2002 and became a full time employee in April 2003. On 16 June 2003 Mr Pineda signed an indentured traineeship with the defendant for a Transport & Distribution Warehousing & Storage) Certificate III. As at 24 July 2003 the traineeship programme had not been commenced. 6. At all material times, the defendant employed: · Lyall Maxwell McLachlan (' Mr McLachlan' ), as the Managing Director; · John Joseph Daley (' Mr Daley' ), as the warehouse one supervisor; · Peter Jay Manio Evangelista (' Mr Evangelista' ), as a team leader and forklift operator; · Chris James Hunt (' Mr Hunt '), as a team leader; · Daniel Elkhouri (' Mr Elkhouri '), as a clerical assistant; · Bhupinder Singh (' Mr Singh '), as a supervisor; and · Christina Bodiroza (' Ms Bodiroza '), as a quality and training manager. 7. At all material times Brendan Tuite ( Mr Tuite) was a storeman/forklift driver employed by Select Australasia Pty Limited. Select Australasia Pty Limited hired Mr. Tuite's services to the defendant. 8. Mr Bailey was a road service and workshop mechanic for forklifts for Task Australia Pty Limited and Troy Geoffrey Jones was a field service mechanic for Task Australia Pty Limited. 9. Mark Agnew was the New South Wales manager of DECA Training Pty Limited (' DECA '), an organisation that provided training to forklift operators employed by the defendant at the premises. As at 24 July 2004, DECA had not conducted stockpicker operations training at the defendant's premises. 10. Don Alley (" Mr Alley ") was an assessor who conducted certification assessments for DECA. Mr. Alley's services were hired to the defendant by DECA. 11. At the material time Mr Pineda usually worked in warehouse one at the premises. The warehouse consisted of docks 12 to 17. Mr. Pineda's normal working hours were 7.00am to 5.00pm, Monday to Friday. His main duties were in the receiving area of the warehouse in dock 12, unpacking various shipments from suppliers, verifying quantities, checking paperwork from suppliers and storing the products. As part of his duties he was required to operate counter balanced forklifts, reach trucks and stock pickers. 12. Mr Pineda did not hold a certificate of competency for the operation of a forklift truck. He did not hold a certificate of competency for the operation and use of a load-shifting device such as the stock picker. 13. From 6 January 2003 to 24 July 2003, Mr Pineda was a trainee for operation and use of a forklift and, as such, was required to keep a training logbook, which was to be signed by his supervisor. From 6 January 2003 to 3 June 2003, Mr Pineda kept a training logbook signed by his supervisor. 14. The log book kept by Mr Pineda did not record the type of equipment operated or used by the Mr Pineda. 15. On 5 June 2003, Mr Alley assessed Mr Pineda's competency in the operation of forklift. Mr Alley assessed Mr Pineda as having achieved " practical " competency but as not attaining " knowledge " competency. As a result of the assessment Mr. Pineda was deemed " not yet competent " on the basis that he " need[ed] more theory study ". After the assessment, Mr Alley kept (incorrectly) the training logbook for Mr Pineda. 16. After 5 June 2003, Mr Pineda continued to operate forklifts and stock pickers but he did not keep or maintain any training logbook. Mr Pineda's supervisor did not inquire or ensure that Mr Pineda kept a training logbook for forklifts or stock pickers in that time. The defendant assumed (incorrectly) that Mr Pineda was not required to keep a training logbook as he achieved "practical competency". 17. On 27 June 2003, Mr Pineda attended a learn to drive forklift course conducted by DECA for the defendant.

The Incident: 18. At the time of the accident on 24 July 2003, Mr Alley held Mr Pineda's training logbook. On 5 June 2003, Mr Alley assessed Mr Pineda's competency in the operation of forklift. As a result of the assessment Mr. Pineda was deemed " not yet competent ." After 5 June 2003, Mr Pineda continued to operate forklifts and stock pickers but he did not keep or maintain any training logbook. Mr Pineda's supervisors did not inquire or ensure that Mr Pineda kept a training logbook for forklifts or stock pickers in that time. 19. At the material time, on 24 July 2003, Mr Pineda was not a trainee stock picker under a training logbook system, although the defendant assumed (incorrectly) that Mr Pineda remained a trainee stock picker. 20. Since about November 2002 some employees of the warehouse played cricket during their lunch break on the driveway outside dock 15, batting from the southern Victoria Street end of the premises towards the northern end of the warehouse. The employees used tennis balls wrapped with insulation tape, a bat and a rubbish bin for stumps. The balls were often hit up onto the roof of the warehouse between docks 12 to 13 and docks 13 to 14. Mr Tuite or Mr Pineda would retrieve the balls from the roof about twice a week. 21. On 24 July 2003, Mr Pineda had driven the stock picker out through dock 12 along the outside eastern wall of the warehouse approximately 7 metres towards dock 13. Mr Pineda was operating the stock picker from within the cage, which consisted of an operator platform, and he used the controls to raise the platform. The concrete driveway sloped away from the wall at this point, and was not level. Mr Pindea was in the process of retrieving balls that were collected in the guttering of the warehouse roof. 22. At the time of the accident a strong gust of wind was blowing from the northerly direction over the 15m wide driveway between the warehouse and the next-door building on the left. Mr. Pineda had positioned the stock picker about 1.5m from the warehouse and about 4m from dock 13. The stock picker control end was facing south, towards Victoria Street, Wetherill Park. Mr Pineda then raised the platform of the stock picker up to reach the gutter of the warehouse. Mr Evangelista, who was operating a forklift at dock 15, observed this activity by Mr. Pineda. 23. As the platform reached a certain height, it appeared to become unstable and started swaying towards the driveway. Mr Evangelista saw the stock picker fall and crash down across the driveway with Mr. Pineda at the controls inside the stock picker. Mr Pineda suffered severe head injuries and died later that day as a result of his injuries in Westmead Hospital. 24. Mr Tuite stated he was aware that Mr Pineda, about twice weekly, retrieved tennis balls from the gutter of the warehouse using a stock picker. Mr Tuite stated that he had also retrieved balls from the roof on previous occasions using a stock picker, but only as far as dock 15 of the warehouse. He stated he had never taken the stock picker past dock 15 (i.e. to docks up to 14, including docks 12 and 13) because the ground was not level past dock 15. Mr Tuite stated that he had told Mr Pineda not to go past dock 15 with the stock picker, as the ground was not level past that point. 25. Mr Tuite stated that he did not know how many times Mr Pineda had previously retrieved tennis balls from the roof of the warehouse, but that Mr Pineda or Mr Tuite would collect the balls from the roof when they needed balls to play cricket. Mr Tuite stated when he (Tuite) went up to get the balls he would make sure that the ground was level by placing the stock picker about a metre out from the wall of the warehouse. He would also ensure that the front of the stock picker faced the Victoria Street side of the premises, and the gutter on the warehouse roof was on the right side of the cage. He would take the platform up to the maximum lift level (10.87 meters), so that the gutter was about level with head, neck and shoulder. If the balls were within reach he would grab them. If not, he would mark the location of the ball in the gutter, take the stock picker back down, move into position and then take the stock picker up again to retrieve the balls. 26. Mr Hunt stated that the supervisor, Mr Daley, and the Warehouse Manager, Jose Manio were aware of the cricket game being played during the lunch break and had warned employees to be careful of the company and client's properties, and not to hurt anybody or themselves. 27. On 24 July 2003 at about 2:15pm, Inspector Ken Kumar attended at the premises and observed as follows: (a) The incident scene was located on the concrete driveway, leading from the Victoria Street, down towards the end of warehouse one. To the west of the driveway was warehouse one with 6 roller doors indicating dock numbers 12 to 17. The driveway was approximately 15 metres wide. (b) The height of warehouse one (to the guttering) was approximately 8.67 metres. (c) At the time of the inspection a strong wind was blowing over the driveway from the northerly direction. (d) The area between dock 12 and 13 was cordoned off by Police tape, due to the wind. Some of the rubble was being blown outside the tape. Inside this area was the stock picker extended on its side, stretched across the driveway with the battery end of the equipment towards the warehouse, near dock 13. (e) The second last doorway was closed. The last northern roller door was open. To the left of this roller door were two signs. i. The top sign stated: - "Dock 12" ii. The bottom sign stated: - "Inwards Goods" (f) The cage of the stock picker was towards the boundary fence. Blood was observed from inside the cage down the driveway away from the building. A pile of rags with bloodstains was located inside the cage. (g) The cage attached to the stock picker was 3.670m from the gutter of the driveway. (h) The cage was 2.1m high, 2.06m deep. (i) The operator's platform was 680mm wide. (j) The cage was 1.30m deep over the pallet. (k) Inside the cage yellow strapping was attached to the right hand side safety rail. (l) The ring for the safety harness was attached to the overhead cage frame. To this ring was attached blue coloured harness, with a yellow lifeline. (m) The outside safety guard for the cage was taped in open position with cellotape. (n) The bottom steel frame of the operator's platform was broken. (o) The control wheel was to the left of the platform, close to the concrete driveway. (p) The stock picker was identified as "Crown" - electric order picker bar coded as SWADS SW02076 and with the following information on the load plate: Actual Model SP3040-30TT276 Model SP3040-30 Serial Number 1A186087R Max Lift Height 7010mm Caps kg 800 "A" mm 7010 "B" mm 600 Alt Cap 1260 "A" mm 6096 "B" mm 600 Wt with battery max 3830kg Truck weight with no battery 2968kg Battery wt max 862kg Max grade with 300mm max fork height 5% CAUTION - Unit rated for use on hard level surfaces This truck was released from the factory conforms to the mandatory requirements of AS 2359-1, 1995. Crown Equipment Pty Ltd. (q) The base of the stock picker (overall dimensions 1.8m long and 1.2m wide) was 2950mm from the wall of the warehouse and approximately 7 metres from dock 12. (r) The concrete surface at this point was sloping away from the building towards the driveway. (s) Two scratch marks were observed on the concrete floor adjacent to the base of the stock picker. One mark was towards the trail wheel of the stock picker was 2.210m from the warehouse wall and was 740mm long. The other scratch mark was 2.150m from the wall, towards the drive wheel of the stock picker, and was 760mm long. (t) The drive wheel appeared to be in a straight position however there were circular scuffmarks on the wheel. (u) The stock picker was extended up to the maximum height. The approximate length from the base of the stock picker to the top of the cage was 9.0m. (v) On the cage, where the extension arms were attached, there were two micro switches identified. The safety switch for the first extension had a white wheel in a metallic casting. Timber was wedged between the wheel and the casting. Attached to the casting was some torn dirty but clear tape. This tape was level with the wheel however it did not cover the wheel mechanism. 28. The manufacturer's specifications provided that the maximum difference in ground gradient for the stock picker was 5% and that gradient was specified on the data plate attached to the machine (see par 27(p) above). The concrete driveway where the incident occurred sloped away from the wall. 29. According to TestSafe Australia Report No. 24765 dated 1 December 2003, the maximum grade allowed for the type of stockpicker involved in the accident, with load at 300mm fork height was 5%. This equates to 2.86 degrees of slope. The slope of the area where the accident occurred was found to be between 4 and 5.5 degrees. The TestSafe report noted that the data plate attached to the machine indicated " maximum grade with 300mm maximum fork height was 5% ." Consequently, at the time of the accident, the stock picker was being operated outside of its operational gradient limits. 30. The TestSafe Australia Report also noted that the maximum grade allowed for the machine was specified to apply with a fork height of 300mm, and that based on information provided to them by Inspector Kumar, the fork height at the time of the accident was in excess of 300mm. 31. A report prepared by Steve Barnes from Crown Equipment Pty Ltd dated 29 July 2003, but which was prepared to comply with a WorkCover Prohibition Notice served on the defendant on 25 July 2003, identified that the platform 600mm height limit switch of the stock picker was jammed closed with a piece of timber. This would have the effect of allowing the stock picker to have lateral travel once the platform was higher than 600mm. Mr Barnes also noted that there was a build up of tape on the switch body which indicated this was a previous practice. The Prosecutor noted that a piece of timber was jamming the limit switch at the time of his inspection on 24 July 2003 (see paragraph 27(v) above). 32. Mr Hunt said that no instruction had been given to the operators not to use the picker outside the warehouse and the operators had not been instructed about the dangers of operating a stock picker on an uneven surface. 33. At the time of the accident there did not appear to be a formal, documented operator-training program for stock pickers in place other than the training logbooks. Training logbooks did not indicate the relevant plant or equipment to which the training logbook related. However, verbal training was provided by certificated operators and included provision of information relating to machine capacity, use of harness, sounding horn when exiting aisles, maintenance of load and machine. 34. Mr Daley stated that while operator's manuals were available on the stock picker, employees were not specifically advised of their existence. 35. Prohibition Notice No 7-33491 and Improvement Notice No. 7-33538 were issued on the defendant in relation to the stock picker involved in the incident, and required the provision of information, instruction, training and supervision for the operation of industrial load shifting equipment. 36. Mr McLachlan stated that Mr Pineda was required to operate the defendant's plant and equipment of stock picker, reach truck and forklift in the course of his employment. 37. DECA conducted two training programs for the defendant's forklift operators including Mr Pineda. One program was conducted in February 2002 and the other in June 2003. DECA did not provide training for stock picker. 38. Mr McLachlan stated the defendant had been operating stock pickers in its business since 1992 - that is approximately twelve years. There were approximately 15 stock pickers operated by the defendant and, of these, four were at the premises. 39. Stock pickers operated by the defendant in its business operations were serviced and initially maintained by Crown Equipment Pty Limited and later, Task Australia Pty Limited. 40. Service Job Cards provided by Crown Equipment Pty Limited for the period 1999 to 2001 indicate 6 instances where the Service Technician noted tampering with a "24 inch switch" on a stock picker. The "24 inch switch" is a height limit switch on the stock picker. This was brought to the attention of Mr Daley, (Warehouse 1 Supervisor). When it was brought to his attention, Mr Daley investigated the circumstances and was advised by the operator that the intention was to operate the stock picker faster. Mr Daley stated he informed the operator the potential gravity of this illegal practice and informed that the action was subject to disciplinary action. All this was done verbally. The company had not put in place any system to ensure that the limit switches were not tampered with other than verbal warning by Mr Daley. The issue was not brought to the attention of higher management. 41. Mr McLachlan stated that the defendant was not aware that limit switches on some stock pickers were tampered with until after the incident of 24 July 2003.

Acts and Omissions of the Defendant 42. . . . . . . 47. . . .

Other Matters 48. The defendant notified the WorkCover Authority of the accident by an Incident Report Form dated 1 August 2003. 49. The defendant cooperated fully with the WorkCover Authority in the investigations conducted by the WorkCover Authority into the accident, including the provision voluntarily of written information to the WorkCover Authority. 50. The defendant complied fully with the Prohibition Notice No 7-33491 and Improvement Notice No. 7-33538, including the provision voluntarily of written information to the WorkCover Authority 51. The defendant entered a plea of guilty at the earliest opportunity. 5 Ms P.E. McDonald, of counsel, appeared for the prosecution. An Agreed Statement of Facts was relied upon. The prosecution also tendered 17 photographs of the site and a series of questions and answers taken during an interview conducted on 11 August 2003 by the WorkCover Inspector with Christopher James Hunt, Team Leader of the Pick and Pack, Heatcraft Section in Warehouse One, at the time of the incident and the Inspection Report prepared by Inspector Kumar of 2 September 2003. Also tendered was a Prior Conviction Record.

6 Mr A.B. Gotting, of counsel, appeared for the defendant. Mr Gotting relied upon an affidavit of Kay Rowan, Human Resources Manager for JR Haulage, sworn 30 November 2005 with annexures and the affidavit of Christina Bodiroza, Quality and Training Manager at the relevant time, sworn 30 November 2005, also with annexures. Mr Gotting also tendered, on behalf of the defendant, transcripts before the Chief Industrial Magistrate dated 6 December 2004 regarding the defendant's one prior conviction. Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999) and the court, using the "instinctive synthesis" approach, would include the assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in circumstances where it better serves the interests of transparency, which element would be narrowly confined (for example, the utilitarian value of the plea). 8 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9 The proper approach to sentencing as approved by the majority (Gleeson CJ and Gummow, Hayne and Callinan JJ) in Markarian was stated as follows: [27] Express legislative provisions apart, neither principle nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence ( Pearce v The Queen (1998) 194 CLR 610 at 624). And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies ( Johnson v The Queen (2004) 78 ALJR 616 at 618, 624).

and the sentencing process should reflect the general obligation on a judge to reveal his/her reasoning: [39] … Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public. ...

Their Honours reasoned further: [39] . . . . That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing Judges should be absolutely forbidden. An invitation to a sentencing Judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest that an arcane process into the mysteries of which only Judges can be initiated. The law strongly favours transparency.........There may be occasions when some indulgence in an arithmetical process will better serve these ends. 10 In Markarian, the High Court endorsed instinctive synthesis approach to determine penalty, McHugh J saying: [84] The synthesising task is conducted after a full and transparent articulation of the relevant considerations including an indication of the relative weight to be given to those considerations in the circumstances of the particular case. The instinctive synthesis approach does not prevent the use of adjectives or adverbs or indications that this or these factors makes or make the case more or less serious than other cases or are the critical features of the case. And judicial instinct does not operate in a vacuum of random selection. On the contrary, instinctive synthesis involves the exercise of a discretion controlled by judicial practice, appellate review, legislative indicators and public opinion. Statute, legal principle and community values all confine the scope in which instinct may operate. The judicial wisdom involved in the instinctive synthesis approach is therefore likely to lead to better outcomes than the pseudo-science of two-tier sentencing. At all events, I am not satisfied that two-tier sentencing is a better method or process than the instinctive synthesis method that has been the traditional approach of common law judges. and: [138] . . .Yet even this is not now absolute. Specification, in a staged or sequential approach, of the degree of reduction of what would otherwise have been the penalty for a plea of guilty is, it seems, sometimes permissible (Joint reasons at [38]). So presumably is re-adjustment for any assistance to authorities. So indeed, by statutes in many parts of Australia, must now be specific reductions and adjustments expressed in terms of identified quantification or percentages. Even occasionally (albeit in unexplained circumstances) arithmetical indulgence will now, it seems, be overlooked. However, preferably that will happen only where the factors adjusted are comparatively few and the case is "simple" (Joint reasons at [39]) . . . [139] ... Australian judges must now express their obeisance to an "instinctive synthesis" as the explanation of their sentencing outcomes. It might be prudent for them to avoid mention of "two stages" or of mathematics. ... 11 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 correctly, given the consideration in Markarian, endorsed the "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.

12 In R v Sharma (2002) 54 NSWLR 300, the Court of Criminal Appeal sitting five Judges (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) concluded specifying the "discount" allowed for the utilitarian value of a plea of guilty was both consistent with s22 of the Crimes (Sentencing Procedure) Act 1999 and the "instinctive synthesis" approach to sentencing. Consideration 13 On 24 July 2003, Mr Pineda was driving the stock picker on sloping ground, relevantly on a very windy day, to retrieve a ball which his fellow employees had lost during a lunch break game of cricket. The ball had landed on the roof of the warehouse. He was driving the stock picker on a concrete driveway. The stock picker had a long reach arm. On the stock picker were two micro switches which acted as safety switches for the extension of the stock picker's reach. Timber had been wedged between the wheel and the casting of the switch. There were admissions that such a wedge had been put into the stock picker switch on prior occasions and an independent machine maintenance person had warned the defendant of the practice of wedging the safety switches. The use of the timber wedge allowed the stock picker's arm to be extended beyond the permitted maximum safety height. If the arm was extended beyond the safe extension limit, the balance of the machine was affected. 14 In the attempt to place the machine on the sloping concrete ground to allow access to the roof of the warehouse to reach the ball with the arm of the stock picker extended, the stock picker tipped over and Mr Pineda suffered fatal injuries. 15 Evidence revealed Mr Pineda was being trained as a forklift driver. As a forklift is a similar piece of equipment to a stock picker, employees, in accordance with the system of the defendant in place at the time of the incident, are provided first with forklift training and specific training in the skill to operate a stock picker is not provided until after the forklift certificate is attained. 16 Mr Pineda had attended upon classroom lessons instructing as to equipment servicing, safe working rules, equipment capacity and the practical training (that is on-the-job training) from his supervisor in the use of a forklift. Following that in-house training, he had been independently assessed on 5 June 2003 as to his competency for forklift certification. The assessment revealed Mr Pineda had achieved "practical" competency but had not attained the necessary "knowledge" competency on a forklift. He therefore was not given certification. On 24 July 2003 the incident occurred. 17 Mr Pineda was not certified to drive a forklift on that day but continued on-the-job and in-house training to drive, in the warehouse, both the forklift and the stock picker. He had not been fully instructed as to the particular distinguishing features of a stock picker, given he was not, in accordance with the defendant's safety system, qualified with the forklift certification. 18 He had not therefore received adequate instruction and information for the safe use of a stock picker. He was not provided with adequate training. As to the supervision on site, on the evidence before me I find the supervision was not satisfactory. In accordance with the relevant requirements for certification, an employee is obliged to maintain a training logbook and have it certified by his supervisor. Mr Pineda's logbook, on examination, was most unsatisfactory. Some doubt could be cast upon whether it was kept on a day-to-day basis either by Mr Pineda or, as endorsed, by the supervisor. This logbook should record the type of equipment being operated by Mr Pineda. It does not. Further, when he returned to training, the logbook was kept by the independent assessor. His supervisor did not make the appropriate inquiry. The supervision of this trainee was unsatisfactory. The legitimacy of the existing logbook from my sighting of it must be challenged. It must be reiterated an employer in accordance with its legislative obligations when it undertakes to train an employee must commit to a rigorous regime of supervision the one with the other. 19 The circumstances revealed the defendant had knowledge and was given notice of the practice by employees to jam the height safety mechanism of the stock picker. Yet an employee in training was able to drive a stock picker onto a ramp, at an angle, in particularly gusty weather conditions and to use the stock picker without a height safety mechanism to collect balls. In such circumstances, I accept there was a foreseeable element to this offence (see Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8). 20 Mr Pineda's suffered injury and died. The well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) are apposite in the circumstances: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from (the) breach and its foreseeability are clearly relevant ..... The death of Mr Pineda was indicative of the potential risk taken by the defendant in allowing an untrained, unskilled employee to operate this stock picker on uneven ground, in gusty weather without a height control safety measure on the reach arm in place. There was in such a circumstance a serious risk brought to reality. 21 There must be an element of both specific and general deterrence taken into the consideration as to penalty. This principle was 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; (2000) 99 IR 29 (at 74): 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 . . .

The defendant is still a significant warehouse operator in an industry where heavy equipment is used on a daily basis. While I accept there has been rigorous review of its procedures, this circumstance must still attract an element of specific deterrence in penalty. An employer's commitment to ensure safe working requires each employee is properly instructed, trained and supervised and the facts also reveal the need for a specific deterrence element in penalty. There should also be an element of general deterrence as employers must ensure a written safe working policy is followed at the workplace. 22 Subjectively, it is agreed the defendant entered an early plea of guilty to the charge. The defendant, I accept, is a significant employer within New South Wales providing employment for some 674 employees in New South Wales, Victoria, and Queensland and approximately 553 of those employees are in New South Wales. The industrial record of the company reveals one prior conviction on 6 December 2004 brought under s8(2) of the Occupational Health and Safety Act. The matter was heard before the Chief Industrial Magistrate. From transcript and the penalty determined, it does not appear to have been perceived by the learned Chief Industrial Magistrate as a serious breach of the Act. 23 Relevantly, in the transport and distribution industry, the defendant operates a significant number of forklifts, stock pickers and rigid trucks. In the circumstances, its industrial record does not reveal blatant disregard for its obligations under the Occupational Health and Safety Act 2000. The defendant makes a significant contribution as a corporate citizen in New South Wales through its charitable activities. I am satisfied the defendant contributes significantly as a corporate citizen and employer within New South Wales. 24 The defendant has expressed its contrition and genuine regret for the breach of the Act. To endorse this expressed regret senior management, including the managing director, were in Court. The defendant provided some assistance to the family of Mr Pineda. 25 The defendant admitted to a financial turnover of some $60 million per annum. It asks for no consideration under s6 of the Fines Act. 26 Significantly, the defendant had in place a system of work and on paper a well thought out plan for safe working at its work sites. However, at this work site on this day that system for safe working was not rigorously implemented. The defendant failed to properly train and supervise its employees to perform work in accordance with its commitment to safe working. 27 The defendant, to prevent a recurrence of such an incident, has modified its work practices and has also erected large metal warning signs outside the warehouse. It has reviewed its procedures generally particularly related to the use of logbooks by trainees but also refined the practices of its supervisors. Toolbox meetings are now used to impress on its employees the need for fundamental safe working procedures and that those procedures be respected by the individual employees. I am satisfied, on the evidence before me, the updated system for safe working has ensured the responsibility between the defendant company through its supervisor and their trainees is now much more formalised and the new policy is rigorously applied by the defendant. 28 I allow a 20 per cent discount for the utilitarian value of the early plea (see R v Thomson; R v Houlton).

29 The maximum penalty for the offence brings into effect ss4 and 12(a) of the Act, given there was one prior conviction. The maximum penalty is $825,000. I find the defendant guilty. The defendant is fined in the sum of $130,000.

1. I find the offence proven. I find the defendant guilty.

2. The defendant is fined in the sum of $130,000. There shall be a moiety to the WorkCover Authority.

3. Costs to the Prosecution to be agreed or assessed with leave to apply as to final orders.

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