Inspector Moore v Blacktown City Council - [2003] NSWIRComm 47 - NSWIRComm 1997 case summary — Zoe

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Inspector Moore v Blacktown City Council

[2003] NSWIRComm 47

Industrial Relations Commission (NSW)|1997-05-02|Before: Walton J, Boland J, Haylen J, Fisher P, Hungerford JJ

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Court

Industrial Relations Commission (NSW)

Decision date

1997-05-02

Before

Walton J, Boland J, Haylen J, Fisher P, Hungerford JJ

Source

Original judgment source is linked above.

Judgment (88 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 APPELLANT Inspector James Moore PARTIES : RESPONDENT Blacktown City Council FILE NUMBER: IRC 2089 of 2002 CORAM: Walton J Vice-President at 1; Boland J at 1; Haylen J at 51 Appeal - Occupational Health and Safety - Appeal from decision of Chief Industrial Magistrate - Held at first instance that offence under section 16(1) of the Occupational Health and Safety Act 1983 proven but defence under section 53 (a) made out - Notice of contention by defendant - Issue on appeal as to whether offence made out - Held on appeal offence made out - Held on appeal section 53 (a) defence not made out - Leave to appeal granted - Appeal upheld CATCHWORDS : Occupational Health and Safety - Appeal from decision of Chief Industrial Magistrate - Held at first instance that offence under section 16(1) of the Occupational Health and Safety Act 1983 proven but defence under section 53 (a) made out - Notice of contention by defendant - Issue on appeal as to whether offence made out - Held on appeal offence made out - Held on appeal section 53 (a) defence not made out - Leave to appeal granted - Appeal upheld Industrial Relations Act 1996 s188 s191 s197 s197A LEGISLATION CITED : Industrial Relations Commission Rules 1996 r 89(5) Occupational Health and Safety Act 1983 s16(1) s53(a) Supreme Court Rules 1970 Part 51 Rule 21(1) ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT96/1215, 2 May 1997) Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 Bultitude v Grice Constructions Pty Ltd [2002] 115 IR 59 Coffey Engineering Pty Ltd v Legge (2001) 105 IR 234 Commission for Children and Young People v "A" [2003] NSWIRComm 6 Construction, Forestry, Mining and Energy Union and ors v Australian Industrial Relations Commission and anor (1998) 89 FCR 200 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 De Simone Consulting Pty Ltd v Ison (No 2) [2000] NSWIRComm 269 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Electric Light and Power Supply Corp. Ltd v Electricity Commission of NSW (1956) 94 CLR 554 Green v Brown (2002) 116 IR 21 Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17 Hornsby Shire Council v Hunt (2002) 115 IR 461 Inspector Davies v Prospect Electricity (unreported, Fisher P, CT747, 9 Nov 1992) Integral Energy v Allen (2001) 107 IR 456 King v State Bank of New South Wales [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons (2001) 104 IR 204 CASES CITED : Mitchforce v Starkey and anor [2002] 117 IR 122 Moore v Newcastle City Council (1997) 77 IR 210 Ozwide Real Estate Pty Ltd v Department of Industrial Relations (Inspector Gibson) (2000) 103 IR 177 Perrott v Xcellenet Australia Limited (1998) 84 IR 255 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 State Rail Authority Firefighters Award 2001, Re [2002] NSWIRComm 159 Strathfield Group Ltd v Hall [2002] NSWIRComm 373 Weisser v Spur Group Pty Limited [2003] NSWIRComm 79 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248

[13]

4 The defendant had entered into a contract with Graham Edward Kirk, trading as Graham's Towing Service to have concrete modules at Aquilina Reserve removed in preparation for work relating to the construction of the baseball and softball centre for the Sydney Olympics. Mr Kirk employed Bernard Geerdink, a 20 year old tilt truck driver and operator who worked at Aquilina Reserve on the day in question. The events leading to the prosecution of the defendant were described by the CIM as follows: On 22 December 1998 Mr Geerdink was seriously injured when he was struck on the head by a steel chain which snapped as he was attempting to place a concrete module, being a water tank, approximately 3 metres in diameter by 3 metres in height weighing approximately 8 tonnes at the site onto the back of a tilt tow truck. Mr Geerdink had attached a chain to 2 metal lugs located on either side at the base of the water tank. He then attempted to load the tank onto the tilt tray tow truck. Unfortunately, where Mr Geerdink had backed the truck the base was below ground level. Mr Geerdink was injured when the lug, on the south eastern side of the tank, broke, causing the chain to whip and strike Mr Geerdink on the head. As a direct result of this accident Mr Geerdink received severe brain damage. He has no independent recollection of the incident or events leading up to the incident. Mr Geerdink commenced employment with Mr Kirk on 21 October 1998 as a truck and tilt tray driver/operator. In his application for employment he indicated that he had tilt tray experience. Upon commencement of employment with Mr Kirk, Mr Geerdink operated the tilt truck with Mr Kirk supervising for a week. At the conclusion of the week Mr Kirk deemed Mr Geerdink competent to operate the truck unsupervised. Mr Kim Johnson the defendant's Parks Improvement Officer, requested by telephone on 18 December 1998 Mr Kirk to remove the concrete modules at the site on 22 December 1998. Mr Kirk had previously done similar work for the council. Accordingly, according to Mr Kirk he gave Mr Geerdink the job details. Mr Geerdink had never previously attempted this task. Mr Kirk said he discussed the job with Mr Geerdink on a number of occasions and advised him to put a long chain completely around the tank at the base, run the chain through 4D shackles located on the base of the tanks and to keep the chains low at the base of the tank to prevent the chain riding up and attached the D shackles to lugs protruding from the base and to dig a trench across the front of the module so the tail gate of the truck was below the base of the module. Mr Kirk said it was basic that the thing to be moved had to clear the base of the truck's tilt tray. Mr Kirk said he advised the defendant that Mr Geerdink was new on the job and requested the council to give Mr Geerdink assistance. Mr Kirk said his understanding was that Mr Geerdink was to be supervised by employees of the council. He said he was assured by Kim Johnson that Mr Geerdink would be alright as other fellows were on the job. Mr Kirk said he assumed that Mr Geerdink would be supervised. When Mr Geerdink arrived at the site he was asked by Mr Johnson to remove the four modules, being 3 toilets and a water tank. Mr Johnson said he showed Mr Geerdink the modules to be moved and Mr Geerdink backup up to the first toilet module in order to load it. This module was rectangular and had a lug on each of the four sides located centrally on each side. When removing the first module Mr Johnson advised Mr Geerdink that the tilt truck tray was a metre short from the base of the tank and had to moved (sic) it closer. Mr Geerdink moved the tray closer. Mr Johnson said that Mr Geerdink attached a chain to two of the lugs one on each side of this module. Mr Johnson stayed with Mr Geerdink whilst he loaded the first module, secured it in place, and drove it to the location where it was to be unloaded. Mr Johnson watched Mr Geerdink unload the first module. Mr Johnson said at the completion of the moving of the first module he showed Mr Geerdink the water tank and the location to which it was to be moved. Mr Johnson said he showed Mr Geerdink the angle to reverse the truck into to load the water module, an angle at which the tilt tray would be below the base of the water tank. Mr Johnson said he did not give Mr Geerdink direct instructions on how to move the modules or the water tank because Graham's Towing Service had moved these types of modules in the past. Mr Johnson was not aware that Mr Geerdink was a new employee of Graham's Towing Service or whether Mr Geerdink had done this type of work before. Prior to leaving the site Mr Johnson advised Mr Geerdink that if he required any assistance in backing of the truck to the tanks to seek assistance from other contractors on site. Mr Johnson said before commencement of the work he had insured that all tanks were clear of any rubbish and that there was clear access to each of the tanks. He had stripped the toilet blocks and drained the water tanks in question to make them lighter.

[33]

14 In Knowles the Full Bench said, at 381-382: We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter. Firstly, as a Full Bench of this Commission noted in Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265 , leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s188(2) . These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle. Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal. In Caltex Petroleum Pty Ltd v Harmer (unreported, Matter No. IRC 2576 of 1999, 16 November 1999), the Full Bench stated: As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same... We agree with the principle so stated. Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

[64]

47 As to instruction and supervision, it was submitted for the respondent that it was "impossible" or uneconomical" to have a supervisor supervising each contractor 24 hours a day, seven days a week. If, in circumstances to which s 16(1) may apply, a person is not to be directly supervised, the employer must ensure that person has adequate knowledge, skill and training to perform the task at hand and is properly briefed and trained on the risks to health and safety that may arise. In Inspector Davies v Prospect Electricity (unreported, Fisher P, CT747, 9 Nov 1992), where a linesman and lineworker were affected by an electrical explosion, one fatally, when they worked on high voltage wires without awaiting the issue of an access permit signifying that the job was isolated, Fisher CJ said in response the prosecution's allegation as to lack of supervision: It is a version of the infinite regression of supervision argument, which if accepted would mean that every well trained tradesman should be supervised or observed by a superior trained tradesman, and he seemingly in turn should be supervised himself by someone even higher. The 'lack of instruction' submission relied upon founders on the same practical argument. No fully trained and experienced tradesman needs to be told to cross the road safely, or to be accompanied by a supervisor to ensure that he does so. Similarly, a thoroughly trained and qualified tradesman, employed after extensive instruction, the adequacy of which again is not criticised, does not need to be advised not to grasp an unprotected wire energised by 11KCV, nor in the real world, should supervisors be on stand by in case he does. … … that the sole cause of the accident was that through some inexplicable inadvertence the two men did not attend to a safe system of work which they had undoubtedly been thoroughly taught and for many years had consistently followed, which failure led directly to a fatal accident which was in the full sense of the word, an accident. No other explanation would appear to be available.

[77]

58 In the course of argument, attention was drawn to the judgment of the Full Federal Court in Construction, Forestry, Mining and Energy Union and ors v Australian Industrial Relations Commission and anor (1998) 89 FCR 200. The ultimate orders in that case were overturned in the High Court, however, the approach to the appeals provision of the Workplace Relations Act 1996 (s 45) was unaffected by that decision. The Federal Court judgment traced the history of Commonwealth appeal provisions under the Conciliation and Arbitration Act, the Industrial Relations Act and finally the Workplace Relations Act. For many years s 35 of the Conciliation and Arbitration Act 1904 provided that an appeal did not lie unless, in the opinion of the Commission, the matter was of such importance that, in the public interest, an appeal should lie. The appeal provisions of the Industrial Relations Act 1988 in s 45 were continued in 1996 under the renamed Workplace Relations Act. Under both statutory regimes s 45, relevantly, provided: (1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against: (a variety of decisions and orders are then nominated). (2) A Full Bench shall grant leave to appeal under sub-section (1), if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. In relation to this provision the Full Court, in CFMEU at p 220, stated: It can be seen from Section 45(1) that an appeal lies to a Full Bench only with the leave of the Full Bench. Section 45(1) confers a power on the Full Bench to grant leave and Section 45(2) requires a Full Bench to grant leave if it forms the opinion that the matter is of such importance that in the public interest leave should be granted. The formation of that opinion dictates that leave be granted. Section 45(2) does not prescribe the test for the grant of leave. It requires the Full Bench to grant leave, if the Full Bench forms the requisite opinion. The conventional considerations for the granting of leave, including whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Bench, or whether substantial injustice would result if leave were refused, supposing the decision to be wrong, are not replaced by a different test: rather, Section 45(2) provides a further, and obligatory, basis for the grant of leave.

[83]

65 In dealing with the submission that leave could only be granted where importance and public interest were established, the Full Bench at (265 - 266) stated: We reject the approach urged by the respondents to the matter of leave to appeal. The authorities relied upon concerned the question of leave under other legislation. We are by no means persuaded that the approach adopted in the Act to the matter of leave is conceptually consistent with that other legislation, legislation which, in any event, was that of the Commonwealth Parliament. That distinctions exist between the Commonwealth and the New South Wales State system is clear: see Moore v Newcastle City Council; Re the Civic Theatre Newcastle (1997) 77 IR 210 at 219 at 225; it cannot therefore be said that the Act is relevantly in pari materia with the Commonwealth legislation as to leave to appeal. Were we to adopt the respondents' approach, it would rarely be open for an appeal to be pursued in a case brought under section 106 of the Act. The section is, after all, concerned, inter alia, with the rights of individuals under contracts which require the performance of work. Such applications typically involve limited parties. If the test to permit an appeal required the factual circumstances to involve more than the individuals concerned in a particular contractual arrangement then a right of appeal would rarely arise. In our view, that is not how the question of leave to appeal under the Act should be approached. That is not to say that leave will lightly or automatically be granted by the Full Bench; a proper case must be made out. We are of the view, for the reasons which follow, that this is a case in which leave to appeal should be granted. It is apparent that the Full Bench rejected the proposition that in order to obtain leave to appeal, the applicant had to demonstrate that the matter was of such importance that in the public interest, leave should be granted. Further, it is to be noted that the propositions relied on by the respondents in Perrott referred to decisions made under both the Conciliation and Arbitration Act and the Industrial Relations Act, without distinction: the different statutory provisions were not referred to. It is also significant that the Federal Court decided the CFMEU case just under a month after judgment was delivered in Perrott . The approach in both cases is consistent, although there is no suggestion that the Federal Court considered, or was aware of, the decision in Perrott.

Inspector Moore v Blacktown City Council

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Judgment (88 paragraphs)

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Cases Cited (34)

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