//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWIRComm 45
Industrial Relations Commission (NSW)
2011-02-14
Haylen J, Mr J
Original judgment source is linked above.
Judgment 1In late December 2007 and early January 2008, industrial units were being constructed at a site in Somers Street, Lawson in the State of New South Wales. The construction of these units was being undertaken by Construction Management Services Pty Ltd ("CMS") whose sole director was Mr John Tanner. During much of this period, CMS employed a foreman at the site but a good deal of the work was sub-contracted. One such sub-contact was entered into with CJM Roof Services Pty Ltd ("CJM") whose working director was Mr Michael McCrudden. CJM was wholly owned by Mr McCrudden. CJM was invited to quote and its quote was ultimately accepted to install metal roofing to the structure together with various metal facias, gutters, downpipes, cappings as well as safety wire. 2CJM carried out its work at the Lawson site through sub-contractors. During this period, the only employee of CJM was Mr McCrudden's son, with all other work being performed through sub-contractors. The work of the company was roof plumbing. Mr Gerry Murphy was a sub-contractor who had worked in that capacity for CJM over a number of years on a number of sites. Ultimately, CJM sub-contracted the roofing work at the Lawson site to Mr Murphy. It was in this capacity that Mr Murphy was present on the site on Saturday, 5 January 2008. Mr Murphy was working alone either on 5 or 6 January 2008 when he apparently fell from the roof structure and was fatally injured. 3As a result of investigations carried out by the WorkCover Authority, Inspector Nikolovski commenced proceedings in this Court for alleged breaches of the Occupational Health and Safety Act 2000. This judgment deals with charges against CJM, alleging a breach of s 10(1) of the Act and further proceedings against Mr McCrudden alleging a breach of s 10(1) of the Act by virtue of the operation of s 26(1). 4Section 10 of the Act provides: 10 Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and (b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and (c) extend to the means of access to or exit from a place of work, and (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. (4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and (b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease). 5In each case, the particulars provided were identical except to the extent necessary to deal with the difference between the entities involved. It is therefore sufficient to set out the Amended Application for Order relating to CJM as follows: FAILED TO Ensure that the premises were safe and without risks to health to people who were not CJM's employees, in particular, Gerard Murphy, while they were at the premises, contrary to Section 10(1) of the Act. The particulars of the charge are that: (a) The "work" referred to in these particulars refers to the work of installing safety mesh and roofing sheets at the premises; (b) The "risk" referred to in these particulars and in the charge is the risk of Mr Murphy falling from height to the ground; (c) CJM did not ensure that a falls arrest device, mobile scaffolding, elevated work platforms or similar equipment was provided to Mr Murphy to ensure the premises were safe and without risk to health to Mr Murphy; (d) CJM did not ensure that safety mesh was installed beneath the roof area at the premises to ensure the premises were safe and without risk to health to Mr Murphy; (e) CJM did not ensure that guard rails were installed around the edge of the roof area at the premises to ensure the premises were safe and without risk to Mr Murphy; (f) CJM did not ensure that a falls arrest device such as a harness or similar device was used by Mr Murphy while he was at height at the premises so as to ensure the premises were safe and without risk to Mr Murphy; (g) CJM did not ensure that Mr Murphy was provided with an induction to the site at which CJM or someone on its behalf explained to Mr Murphy that he was not permitted to be at height unless safety mesh was in place or he used a harness or similar falls arrest device or worked from an elevated work platform or scaffold so as to ensure the premises were safe and without risk to Mr Murphy; (h) CJM did not ensure that a risk assessment was conducted that identified the risk at the premises and the means by which it could be controlled, such as using a harness or falls arrest device or working from an elevated work platform or scaffold or having safety mesh in place so as to ensure the premises were safe and without risk to Mr Murphy. As a result of the acts and omissions of CJM, Mr Murphy was exposed to the risk at the premises. Mr Murphy's death was a manifestation of that risk. 6As the case developed it became clear that there was little disagreement about the unsafe manner in which the roof work was performed on site. The major issues became: who had responsibility for installing handrails and scaffolding around the site for the purposes of the roofing work? and, whether the safety system laid down by CJM in its Safe Work Method Statement ("SWMS") had been effectively set aside by an arrangement between Mr Tanner and Mr Murphy whereby the payment of a cash amount of either $1,000 or $2,000 was offered by Mr Tanner and accepted by Mr Murphy on the basis that Mr Tanner would exercise control over the way in which the roofing work was performed by Mr Murphy and that Mr Tanner's directions in that regard were to circumvent and override the safe working system of CJM at the site. In essence, the defendants alleged that their SWMS, if properly applied at the site, would not have resulted in any risk to Mr Murphy: CJM had effectively lost control of Mr Murphy's work actions because of a bribe offered by Mr Tanner in order to have Mr Murphy perform the work quickly and unsafely and not in accordance with any requirements laid down for the work by CJM.
THE EVIDENCE 7There was no great conflict in the evidence as to the actual system of work for the roofers at the site. Mr Murphy was assisted from time-to-time by his two sons (Justin and Tony Murphy) and Mr Jim Azzopardi. It appears that Mr Gerard Murphy had a continuous association and presence at the site with the other three men acting as labourers and attending from time-to-time. None of the three labourers were present at the site on 5 or 6 January 2008 when the fatal accident took place. Mr Murphy had attended the site sometime before starting work in order to measure the work for the purposes of his quote. 8Employees on the site gave evidence that, during the time that Mr Murphy was working on the roof assisted by the labourers, there was no induction provided although Mr Tanner stated that he would conduct a site induction for Mr Murphy and his labourers once they provided their green cards. This did not occur. The work was being performed on the roof trusses with Mr Murphy and his labourers using roof sheeting on which to walk and moving that sheeting as the work progressed. Mr Murphy and the labourers worked while standing on unsecured sheeting and also jumped between trusses. The distance from the roof trusses to the concrete floor of the building was between approximately five and seven metres. The roof was not fitted in its entirety with safety mesh before the insulation and roofing sheets were secured but was applied at a width at a time as the job progressed, apparently because there was no scaffolding or cherry picker available to permit the entire roof to be safety meshed before the other roofing work commenced. No harnesses were used by Mr Murphy or the labourers while working on the roof. There was nothing stopping or preventing an employee from falling off the edge of the building. Mr Tony Murphy had not participated in any risk assessment with his father while working on the site. There were no handrails or scaffolding around the edge of the building. There was nothing to prevent Mr Murphy and his labourers from falling from the roof while performing their work. 9The system of work that should have been adopted at this Lawson site was addressed by Mr McCrudden both in a statement tendered in evidence and in the course of oral evidence. Mr McCrudden had not been personally able to visit the site in order to assess the appropriate safety standards because the job, although arranged for some period, was called on very short notice by Mr Tanner for work to commence on the roof on 21 December 2007. Mr McCrudden was personally looking after this site but took his annual holidays approximately at that time and was unavailable until after 5 January 2008. 10CJM had used Mr Murphy as a sub-contractor for some years and Mr McCrudden was aware that Mr Murphy had been a contractor for many years prior to that and was regarded as a very experienced roofer who had been working in the industry for over 25 years. 11The defendant company's safety approach was to provide sub-contractors with a generic Site Documentation Pack. The Pack contained the safety management plan and SWMS. The document was designed so that it could be modified for use at particular sites. In September and October 2007, the documentation contained within the Pack had been modified and updated and the Pack Documentation was finalised by approximately mid-October 2007. This Pack contained: a safety management plan; two SWMS covering fascia, gutter and downpipes and metal roof plumbing; a register of equipment; appropriate safety footwear and a WorkCover position paper on working off step ladders; a letter of commitment; a copy of the most recent toolbox safety meeting reports; details of license numbers and certificates of currency; and, risk assessment forms. Each sub-contractor working for the defendant company carried the Documentation Pack in a folder provided by the defendant. 12According to Mr McCrudden, the following matters were a pre-condition to commencing work on a site:
DELIBERATION 53It is appropriate to commence by considering the evidence as to the way in which the work was actually performed at the Lawson site as distinct from what was required under the defendants' SWMS. As to the issue of control, for the purposes of s 10 of the Act, the Court accepts the submissions for the prosecutor that, under the contractual arrangements between CMS and CJM, CJM clearly reserved to itself the ability to insist upon compliance with the provision that scaffolding and hand railing requirements over two metres were to be supplied by the builder to WorkCover standards. The CJM Health Safety Environment Site Documentation Pack gave CJM real control of the site. That document defined induction extensively and the topics to be covered by induction. CJM had expressed their intention to sub-contract this work at the Lawson site and the Site Documentation Pack made it clear that CJM would ensure that the sub-contractors provided a SWMS for their specialised work and that CJM would review the SWMS. The Safety Policy spoke about CJM ensuring that the work at the site was undertaken safely and that a risk assessment was to be performed to identify and control potential hazards in the workplace. Under this document, CJM or its sub-contractors were not to commence work unless the principal contractor had made available a copy of the Safety Management Plan that was relevant to the sub-contractors and CJM had undertaken a risk assessment associated with the work to be carried out. 54There were a range of other matters whereby CJM reserved control of the work in the interests of safety but an extensive analysis of these provisions is unnecessary in light of the frank concession made by counsel for the defendants that CJM had "a lot of control" under the contractual arrangements with CSM: as earlier indicated, a significant part of the defendants' case was that they had lost that control because of the bribe Mr Tanner was said to have paid to Mr Murphy. On the totality of the evidence, the Court is satisfied that CJM and Mr McCrudden had significant control over the work that was to be performed by the roofing sub-contractors engaged to perform the roofing work at the Lawson site. This finding is consistent with the approach adopted to the element of "control" by the Full Bench in McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464, especially at p 478 et seq. 55The Court also accepts the prosecutor's submission that the nub of this matter was the failure of the defendants to ensure that the safety mesh was installed to cover the entire roof before work commenced on installing the insulation and fixing the roof sheets. Acceptance of this proposition does not detract from the other serious omissions such as the failure to ensure that fall arrest devices and other equipment, mobile scaffolding and elevated work platforms were provided to avoid a fall risk as well as the failure to install guard rails around the edge of the roof area as well as an appropriate induction and the conduct of a risk assessment at the site. 56Both the prosecutor and the defendants accepted that a large element of the risk of falling when performing this roofing work would have been met by the initial installation of the safety mesh as required both under the defendants' SWMS and industry practice as referred to in Mr McCrudden's evidence as well as the WorkCover Code of Practice dealing with safe work on roofs. In particular, the Code of Practice had been in operation for a number of years prior to this accident and referred to the first essential step in ensuring that the work was performed safely was to plan and prepare for its safe execution and that such planning and preparation should involve consultation with "all engaged in the work". A role in this process was set out for planning by the designer, the builder and the roof contractor, in this case, CJM. The Code spoke of the roofing contractor considering safe work issues for this work in addition to collaborating with the builder or principal contractor in overall job planning. In preventing falls, the Code spoke of the recommended method being the use of safety mesh and guard rails. The Code referred to other available methods including individual fall arrest systems, scaffolding, safety nets or a combination of methods. 57The recommended system for prevention of falls during roof sheet laying was permanent safety mesh securely fixed to the structure over the area to be roofed in conjunction with appropriate edge and perimeter protection. The Code laid down the correct placement of the mesh, how the mesh was to be cut to length from the roll and run out over the roof using a continuous rope system. It was noted that task could be safety undertaken from scaffolding positioned at each end of the roof. Specifically, the Code stated the meshing of the roof frame was to take place before loading the roof with bundles of decking. Workers were to avoid walking or standing on the mesh and the use of scaffolding, scissor hoists, safety net or individual fall arrests systems would protect workers installing the mesh. Directions were given as to how the joins were to be tied off and how guard rails were to be used. 58In this regard the evidence demonstrated that the defendants were not present on site nor did they use any other method of inspection or audit to ensure that the safety mesh was fitted to the entire roof and fitted before any roofing sheets were laid. The evidence shows that Mr Murphy, in the absence of any on-site direction by the defendants, went about the task of laying the mesh that did not accord with the WorkCover Code or the defendants' SWMS - it was inherently risky because it was essentially a "lay as you go" approach to the work. This approach resulted in the roofers walking on unsecured roof sheeting and jumping between the trusses without fall protection. If scaffolding or scissor hoists had been available, there was at least an opportunity for the work to be performed in accordance with the Code but that did not occur. 59As earlier noted the evidence showed that, at the Lawson site, there was no induction of the roof contractors, there was no scaffolding at height around the perimeter of the building, there were no guard rails installed around the perimeter and the workers did not wear any fall arrest equipment. No risk assessment was undertaken. All of these matters were addressed in CJM's Site Documentation Pack but no steps were taken to ensure that the paper system of safety was implemented and enforced on this site. Mr McCrudden's evidence about the operation of the company was that CJM had very few employees with the work being performed by contractors directed to work in accordance with the Site Documentation Pack. In many respects, this operation at the Lawson site meant that the roofing team under Mr Murphy was left to their own devices. 60One particular example of this approach was the obligation on the sub-contractor to conduct a risk assessment. Mr McCrudden's evidence was that the risk assessment "usually" accompanied the first invoices forwarded by the sub-contractor - leaving an indeterminate period during which no one from CMJ could give consideration to the adequacy of the risk assessment for that site or conduct a review of it. Mr McCrudden said that this system operated such that he relied upon the sub-contractors to conduct a risk assessment and Mr Tanner calling him if there were any problems. That approach resulted in CJM having little or no involvement in the risk assessment. 61During addresses it was submitted for CJM that Mr Murphy was the defendant company's supervisor on site and by implication it was Mr Murphy's duty to ensure that the safety system, laid down by CJM, was adhered to in carrying out the work. The evidence, however, does not support a conclusion that Mr Murphy was engaged as the supervisor on site for CJM and the totality of the arrangement, including requirements made by CJM, showed that Mr Murphy was a sub-contractor to CJM for the performance of the roofing work and nothing more. There was no letter of appointment or other document or conversation alleged whereby this supervisory role was conferred upon Mr Murphy. Indeed, Mr McCrudden's evidence was that his son was the CJM supervisor with all other work being undertaken by sub-contractors because the market for the work was not conducive to employment arrangements. 62Under this system of operation, CJM worked on many sites at the one time with very limited resources to oversee the operations at each site and ensure compliance with occupational health and safety laws and the company's own safety rules. Mr McCrudden's evidence was that Mr Murphy was a very experienced sub-contractor in this roofing speciality and in effect, he relied upon his expertise to perform the work to a proper workmanlike standard and to do so safety. The way in which the arrangement operated at the Lawson site from the time Mr Murphy and his crew commenced work at the site was, in effect, to allow CJM to delegate its responsibilities to Mr Murphy and his team. 63It has long been accepted under various provisions of the Occupational Health and Safety Act that responsibilities under the Act cannot be delegated to another party: provisions of the Act imposing obligations do not contemplate that those obligations are capable of being delegated to some other entity as the whole scheme of the Act operates on the basis of a web of responsibility and recognises that, even in situations of sub-contracting, there are a variety of obligations owed ( WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (No 2) (2003) 121 IR 283 at [42]. In Inspector Chadwick v Denbur Constructions Pty Ltd [2004] NSWIRComm 195 at [18] Boland J noted that, where sub-contractors failed to ensure the safety of their employees, that occurrence will often reflect a failure on the part of the principal contractor. As already noted, at this site CJM made no arrangements for on-site supervision or surveillance to ensure that their safety system was being adhered to. In short, the CJM safety system was not enforced in any way during the period identified in the statement of charge. 64The suggestion that Mr Murphy was delinquent in his duties and responsibilities to CJM is of little assistance to the defendants. As is so often stated by the Court in dealing with safety prosecutions, the Occupational Health and Safety Act requires employers, in specified circumstances, to ensure the safety of employees and non-employees. the Full Bench in Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 43 stated: Those obligations are not diminished because of the error or negligence of an employee, although such matters may refelct on the degree of culpability of the employee for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 65The defendants' case was that if Mr Murphy had adhered to its system of work then there would have been no risk to safety. That approach cannot be accepted in the circumstances of this case because the defendants did not take any steps to ensure that those safety measures were adopted, maintained and enforced on the site. The major thrust of the defendants' submissions went to the issue of who was responsible for installing handrails and scaffolding and whether or not the defendants' control over Mr Murphy had been removed by Mr Tanner giving money to Mr Murphy to ignore the defendants' safety rules and work unsafely and quickly to finish the job. 66The evidence of Mr McCrudden and Mr Tanner about who had the obligation to provide scaffolding and handrails around the perimeter of the building was in direct conflict. It does seem common ground that, at one point, metal fascia and gutters were to be installed although ultimately this was not possible. Mr Tanner's evidence was that he was responsible for the hand railing of a particular gutter at the east end of the building. Mr McCrudden's evidence was that he was to supply the handrails for the fascia and guttering work but that was another specialist task and in any event, it was not be performed by Mr Murphy. That work was not required and there was no charge. 67Apart from this evidence the most significant evidence is the content of the estimate/quote provided by CJM. In relation to the description of the work, that estimate/quote contained a description in the following terms: "Supply and install metal fascia and quad gutter." That was in a quantity of 66 linear metres. It is significant therefore that later in the estimate/quote, the "e/o roof protection handrail" also specified 66 linear metres. That is consistent with Mr McCrudden's evidence as to the use to be made of that protection hand rail as set out in the quote by CJM. In addition, Mr Tanner conceded that 66 metres of handrail would not be sufficient to extend around the perimeter of the building which was between 6 metres and 67 metres long on one side only. In fact, 66 metres was totally inadequate for that task, suggesting that the entry was addressing another matter altogether. 68When Mr Tanner's attention was drawn to the terms of the purchase order prepared by CMS that reflected the estimate/quote of CJM and used the same terms, including the provision that scaffold/hand rail requirements over two metres were to be supplied by builder, he attempted to avoid the conclusion that it was therefore the obligation of CMS to provide the perimeter scaffolding and handrails for the roofing work to be performed by Mr Murphy and did so by suggesting that it was a mistake made in his office by his wife when the purchase order was being typed. The difficulty for that proposition is that the CMS Purchase Order directly reflects the estimate/quote of CJM, a quote that Mr Tanner agreed was accepted by CMS. Mr Tanner was not preparing new items of supply but was operating on the CJM quote. 69Mr Tanner's categorisation of this entry as a mistake also carries with it the strong suggestion that the terms used by CJM in their quote regarding the builders' liability for scaffold and handrails over two metres was indeed a reference to scaffolding and hand railing for the perimeter of the building for the purposes of the work of the roofing sub-contractor. The Court is unable to accept Mr Tanner's evidence is this regard and accepts the evidence of Mr McCrudden that the arrangement with Mr Tanner and CMS was that the scaffolding and handrails around the perimeter of the building was to be supplied by CMS. Mr Tanner did not deny Mr McCrudden's evidence as to the usual practice of the builder providing scaffolding. That contractual obligation, however, did not absolve CJM from its duty to ensure that that scaffolding was in fact supplied and erected and properly maintained during the time that the roofing sub-contractors were on-site. As already indicated, the evidence demonstrates that CJM took no steps in relation to this part of its obligations on the site. 70In relation to the alleged bribe made by Mr Tanner to secure control over the work of Mr Murphy and in particular to have him work without fall protection and otherwise to work unsafely contrary to the system adopted by CJM, the evidence is unsatisfactory. There is evidence that two payments of $1,000 were made to Mr Murphy by Mr Tanner on approximately 21 December 2007 and 4 January 2008. Mr Tanner agreed that he made one payment on 21 December 2007 but denied making the other payment. He also denied that the payment was made for the purposes of subverting the safe system of work required by CJM. Mr Tanner's evidence is that this matter was raised by Mr Flanagan in the site office and that Mr Bonfield was present, apparently on the first day that Mr Murphy was on the site. Mr Tanner's recollection was that Mr Flanagan raised the issue that Mr Murphy did not have any money, could not buy morning tea or lunch, had difficulty getting to work when his sons did not drive him and that he was in financial difficulties. Mr Flanagan's evidence did not support such a conversation. Mr Flanagan said that he could not recall a conversation nor having a discussion with Mr Tanner about Mr Murphy's financial position and inability to pay for his lunches. Also, he did not have any idea about a $1,000 payment to Mr Murphy by Mr Tanner. 71Mr Bonfield was aware that Mr Tanner had paid Mr Murphy cash to help him out through Christmas and Mr Murphy had told him that this payment had been paid to him. In later evidence, however, Mr Bonfield said that Mr Murphy had not mentioned the money. Mr Bonfield understood the money was paid either for work performed by Mr Murphy or to help out and also to ensure that Mr Murphy kept attending the site to finish the job: the basis of this understanding was not established. He had heard Mr Murphy and Mr Tanner talking about the job being finished and the fact that Mr Tanner needed the first few sheds to be roofed in order to allow work to be performed under cover when it rained. Mr Tanner's evidence was that the money was paid to Mr Murphy because he was in financial difficulties and that he knew Mr McCrudden was on holidays and therefore Mr Murphy could not be paid by Mr McCrudden over the Christmas period. The money was to be deducted from Mr McCrudden's account. 72The allegation made by CJM is most serious. The entire proposition put on behalf of CJM was that Mr Tanner was in financial difficulties with cash flows and Taxation Office problems and that the work was running behind schedule. In order to overcome these matter and problems he had paid in total $2,000 to Mr Murphy to ensure that two of the units were roofed, out of normal sequence, so that there would be a covered space for men to work when it rained on the site. There was no satisfactory evidence drawn to attention to establish a "normal sequence" of roofing and none suggested by Mr McCrudden. The money was also said to be paid to secure control over Mr Murphy's work and to ensure that he would not require scaffolding or handrails and would be working in an unsafe manner and therefore more cheaply in Mr Tanner's interests rather than under the system of safety required by CJM. 73While there is evidence of some of Mr Tanner's difficulties and there was also evidence that Mr Murphy, although paid a significant amount by Mr McCrudden and was also in financial difficulties, there is a lack of crucial evidence linking the payments made to the sinister outcome alleged by CJM. Mr Tanner's memory was shown to be unreliable and Mr Bonfield contradicted himself. Mr Flanagan had no particular reason to remember this incident from late 2007 regarding a person who had just started on the site. Having regard to the seriousness of the allegation and that it also reflects on Mr Murphy who is no longer able to defend himself in this regard and that Mr Tanner's evidence in relation to these allegations occurred while he was a witness for the prosecution and without the protection of a legal representative acting in his interests, the Court regards those combination of circumstances as leaving it in a position where, in fairness, no such detailed finding as alleged by the defendant, CJM can be made. It is equally open on the evidence to conclude that, if Mr Murphy was in a difficult financial position, he may simply have thought that it was not in his interests to complain about the lack of scaffolding and handrails at the site because that would only delay the work: if he could not work, he could not be paid and in those circumstances he simply decided to continue with the work notwithstanding the risks associated with working at heights at this site. On the evidence, that is at least as strong an inference as suggested by the payments and the circumstances of Mr Tanner as the inference pressed by the defendant, CJM. 74It should be noted, however, that even if Mr Tanner had made this arrangement with Mr Murphy, CJM failed to attend the site and ensure the safety of the sub-contractors. Attendance at the site by a CJM representative and enforcement of the company's safety rules would have rectified the numerous safety deficiencies found on the site. 75Having regard to all of these matters, the Court finds that the defendants are guilty of a breach of s 10(1) of the Occupational Health and Safety Act as particularised by the Amended Application for Order. The parties are to contact my Associate with details of their availability for the purposes of listing the sentencing hearing. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2011
Inspector Nikolovski
Michael John McCrudden