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[2010] NSWIRComm 91
Industrial Relations Commission (NSW)
2010-05-20
Marks J
Original judgment source is linked above.
CITATION: Inspector Ochoa v East Sun Building Pty Ltd & Gao [2010] NSWIRComm 91
Inspector Mara Ochoa (Prosecutor) PARTIES: East Sun Building Pty Ltd (First Defendant) Yi Gao (Second Defendant)
CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 by the corporate defendant - personal defendant deemed guilty by s 26(1) - early guilty pleas - appropriate penalty - no prior convictions - objective seriousness - no risk assessment - lack of safety procedures - serious breach - injured worker - general and specific deterrence - remorse and contrition - capacity to pay - publication order - penalties imposed
LEGISLATION CITED: Fines Act 1996 - s 4, s 6 Occupational Health and Safety Act 2000 - s 3, s 8(1), s 26(1), s 115
CASES CITED: McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353
HEARING DATES: 20 May 2010, 18 & 25 June 2010 (written submissions)
Mr D O'Neil of counsel (Prosecutor) Solicitor Legal Group, LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales
Mr S Ma, solicitor (First & Second Defendant) Westside Law Firm
Inspector Mara Ochoa v East Sun Building Pty Ltd & Yi Gao
Prosecution pursuant to s 8(1) and s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000
1 The prosecutor, Inspector Mara Ochoa, of the WorkCover Authority of New South Wales, has instituted proceedings against two defendants, East Sun Building Pty Ltd ("East Sun") and Yi Gao alleging breaches by each of them of s 8(1) of the Occupational Health and Safety Act 2000("the Act"). 2 s 8(1) is in the following terms: 8 Duties of employers
(1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer.
That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,
(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,
(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,
(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work,
(e) providing adequate facilities for the welfare of the employees at work. 3 Mr Gao is charged with a breach of s 8(1) by reason of s 26(1) of the Act. This is because he was a person concerned in the management of East Sun and is therefore deemed to have contravened the same provision of the Act as has been contravened by the corporation, East Sun. 4 The proceedings are constituted by amended applications for order filed in Court at the commencement of the hearing on 20 May 2010. I shall set out the charge and particulars as contained in the proceedings instituted against East Sun. That company is charged with being an employer, on 12 November 2007 at ( deleted ), it
ensure the health, safety and welfare at work of all its employees and in particular Zen Quang Lin, contrary to s 8(1) of the Act.
The particulars of the charge are: a) There was a risk of workers falling from height whilst undertaking plasterboard and gyprock work;
b) The defendant failed to ensure that risks associated with falls from a height for employees undertaking plasterboard and gyprock work at the premises were controlled by the use of a stable and securely fenced work platform or other adequate fall protection in accordance with clause 56 of Occupational Health and Safety Regulation 2001;
c) The defendant failed to ensure that employees were informed and instructed not to use the scaffolding in the stairwell at the premises which scaffolding did not comply with Australian Standard 1576.
d) The defendant failed to supervise employees undertaking plasterboard and gyprock work at heights at the premises to make sure they did not use the scaffolding in the stairwell at the premises which scaffolding did not comply with Australian Standard 1576;
e) The defendant failed to undertake a risk assessment in relation to the performance of plasterboard and gyprock work at heights at the premises;
As a result of the defendant's failures and omissions employees, and in particular Zhen Quan Lin, were placed at risk of injury. 5 The particulars of the charge alleged against Mr Gao are in identical terms to paragraphs (a) to (e) set out above in connection with the charge brought against East Sun, save that in addition there is an allegation that Mr Gao "was a person concerned in the management of the corporation." 6 Both defendants pleaded guilty to the charges and this judgment is concerned only with the question of penalty. 7 An agreed statement of facts became evidence in the proceedings. It is in the following terms: 1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter.
Mr & Mrs Woodmore 4. Richard Frank Woodmore ("Mr Woodmore") and Jan Woodmore ("Mrs Woodmore") were the owner builders of the residential building located at ( deleted ) in the State of New South Wales ("the premises").
Mr Mulder 7. Mr and Mrs Woodmore engaged Peter Henricus Daniel Mulder ("Mr Mulder") as the project manager and foreman at the premises. Mr Mulder is a sole trader and has one employee, his son who is an apprentice carpenter. Mr Mulder holds a builder's licence and a WorkCover Construction Induction Certificate. Mr Mulder had building industry experience, however he had not worked in the industry for approximately 15 years prior to being engaged by the Woodmores.
Southern Cross Plastering 9. Scott Coleman Williams ("Mr Williams") and Melissa Jane Williams ("Mrs Williams") were a partnership trading as Southern Cross Plastering ("Southern Cross"). Mr Williams was responsible for the day to day operation of the business. Mrs Williams occasionally undertook clerical and administrative duties. Southern Cross did not have any employees.
East Sun Building Pty Ltd 13. At all material times, East Sun Building Pty Ltd ("East Sun") was a corporation which undertook the business of gyprocking and dry plasterboard works. East Sun was registered with ASIC on 7 July 2006.
At all material times Zhong Yun Chen ("Ms Chen") of 15 Irrara Street, Croydon in the State of New South Wales was the sole Director of East Sun. Ms Chen was not involved with the day to day running of East Sun. Ms Chen's husband, Yi Gao (also known as Kevin) ("Mr Gao"), was the General Manager of East Sun and had control of the day to day operation of the company.
Mr Gao undertook work at the premises and instructed approximately five construction workers undertaking work at the site for East Sun. Mr Gao holds a Statement of OHS Induction Training but does not hold a Contractors Licence.
Mr Gao stated that Mr Williams had not decided if East Sun were subcontractors or employees of Southern Cross whilst at the premises. Mr Williams states that East Sun were contractors and not employees of Southern Cross.
East Sun arranged for persons to undertake work at the premises, including Zhen Quan Lin (Mr Lin), Xin Zhao (Mr Zhao), Lijun Lu (Mr Lu), Mr Yan ("Mr Yan") and Yong Qin (Mr Qin). East Sun stated that these persons were working as employees of Mr Williams. East Sun also stated these persons were subcontractors and not employees of East Sun.
All East Sun workers at the premises could not speak English and required Mr Gao to translate any instructions or information. WorkCover was unable to interview or obtain information from Mr Zhao, Mr Yan and Mr Qin.
The Injured Worker 19. Zhen Quan Lin ("Mr Lin") was an employee of East Sun employed to undertake plasterboard and gyprock work at the premises. Mr Lin holds a current Construction Induction Certificate and has approximately 20 years experience in plasterboard and gyprock work in China. As at 12 November 2007 Mr Lin was 43 years old.
The Incident 23. On 12 November 2007 Mr Gao drove Mr Lin to the premises. Work was commenced at approximately 7:00 am.
Mr Mulder and Mr Woodmore had in early November erected a timber scaffold consisting of wooden beams and six wooden planks in order to install a dormer window (an upright window in a sloping roof) in the dwelling being constructed at the premises. Mr Mulder had made the decision to install the scaffold. Mr Mulder and Mr Woodmore used Oregon F7 250mm by 50mm planks for the platform of the scaffold. The platform was three planks wide and two planks thick. Mr Mulder and Mr Woodmore advised that they removed the six timber planks after they completed the window installation.
The dormer window was located above a split level stairwell that led from level 3 to level 4. The void containing the dormer window was 2700mm x 2300mm, with the dormer window protruding 1800mm above the ceiling line of level 3. The void measured 5340mm in height from the floor of level 3, and 3540mm from the floor of level 3 to the ceiling line of level 3.
On 12 November 2007 between 10:00am and 10:30am Mr Lin was undertaking plastering work in the dormer window. Mr Lin accessed the scaffold via an aluminium trestle ladder, which was leaning on the timber scaffold to gain access to the scaffolding in the void. Mr Lin recalled that there were three planks making up the scaffold platform when he used it on 12 November 2007. The three planks were about 300 to 400mm apart. They were wood and were 3730mm long and 195mm wide. They were 50mm thick. The planks were not affixed to the beams but laying across. Mr Lin was not wearing a harness at the time of the incident nor was any other fall protection in place.
Mr Lin was squatting on the middle timber plank of the wooden scaffold and was using a spade and tray to do the plastering. Mr Lin was nearly finished the plastering work in the dormer window when the timber plank broke. Mr Lin fell approximately 3200mm, upright and feet first, onto the staircase below. Mr Lin's colleagues and other tradesmen found Mr Lin lying at the base of the staircase. At all times Mr Lin was at risk of falling off the front edge of the scaffolding. At all times Mr Lin was also at risk of falling through the unfixed planks.
Mr Mulder and Mr Woodmore dismantled the scaffold immediately following the incident.
There were no known witnesses to the incident. It is possible that some East Sun workers may have been present, however WorkCover was not able to contact any of these persons.
Mr Lin was treated at the premises and subsequently air lifted to hospital. Mr Lin remained in hospital from the date of the incident until February 2008. Mr Lin sustained back and leg injuries, including a burst fracture of the L2 vertebrae, a fractured L1 vertebrae and radiating pain in his left leg. As at June 2009 Mr Lin was unfit to work and is on workers compensation. He is undergoing rehabilitation and may require further surgery. It is unclear if Mr Lin will be able to return to pre injury duties.
Scaffolding 31. The scaffolding put in place for use in the stairwell prior to the incident by Mr Woodmore and Mr Mulder did not comply with Australian Standard, AS 1576 - Scaffolds. It did not have a mid railing and toe boards and did not have a stable or securely fenced platform. Mr Mulder did not know of the relevant Australian Standard when he installed the scaffold.
The quotation Mr Williams provided to Mr Mulder for work at the premises notes in its terms and conditions scaffold for heights over 2700mm will not be provided by Mr Williams if it is not included in the quote. Mr Williams stated he was not responsible for providing scaffolding at the premises, in accordance with the terms and conditions document he provided to Mr Mulder dated 1 November 2007. At the time of the incident the terms and conditions of Acceptance of the quote for the work to be undertaken at the premises by Mr Williams had not been signed by Mr Mulder or the Woodmores.
Mr Williams did provide his subcontractors with trestle ladders and metal planks to use for some of the gyprock work at height. This was used to access the scaffolding installed by Mr Woodmore and Mr Mulder on the day of the incident. Mr Williams stated he told all subcontractors not to use the wooden scaffold installed at the premises by Mr Woodmore and Mr Mulder.
Mr Williams was unaware of the condition of the scaffold on Monday, 12 November 2007. The only occasion he had taken notice of the scaffold was on the Monday the week before the incident. He stated that on this occasion he had told contactors, Legap and Kurnell not to use the scaffold until it could be confirmed to be safe. Mr Jerome Lane of Legap advised that he was told by Mr Williams before the job commenced not to go on the scaffold in the stairwell. Mr Williams stated that on 6 November he advised Mr Gao not to use the scaffold.
Mr Williams states that he had further instructed Mr Gao to not use the scaffold on 8 November 2007 following observing a person on the scaffold. Mr Gao denies he was told not to use the scaffold. Mr Williams advised he did not provide any instructions directly to East Sun's workers as none of them spoke English.
The Woodmores, Mr Mulder, Mr Williams and East Sun were aware that plastering work was required to be done at height at the premises. No one ensured that adequate scaffold or an adequate fall prevention system was put in place to enable this work to be undertaken in a safe manner. No one ensured the planks had sufficient weight bearing capacity. The Woodmores, Mr Mulder, Mr Williams and East Sun did not ensure that the inadequate scaffold which was in place was not used by workers at the premises to undertake work at heights.
Risk Assessment 37. Mr Mulder did not undertake any formal risk assessments in relation to work at heights at the premises. He advised he assessed things as he went but nothing was documented.
System of Work prior to the Incident 40. Mr Mulder did not develop any safe work method statements ("SWMS") for the work to be undertaken at the premises, nor was he provided with any SWMS or documented work procedures by Mr and Mrs Woodmore.
Training and Supervision 45. Mr Woodmore did not provide Mr Mulder with any information or instruction relating to his job description and responsibility for safety at the premises.
Mr Woodmore and Mr Mulder did not record or register the competency of contractors and subcontractors working on and accessing the premises. They did not ensure that all contractors and subcontractors held a Construction Induction Certificate.
East Sun did not ensure that its employees held the appropriate Construction Induction Certificates nor did East Sun keep records in relation to training.
Mr Williams instructed Mr Gao on 7 November 2007 that the work East Sun were to carry out at the premises was to install supplied plasterboard, set fixed plasterboard and cornice and sand ready for painting. Mr Williams had an initial meeting with East Sun when they commenced work at the premises and provided no supervision to contractors at the premises. Mr Williams attended the premises on approximately four occasions when East Sun were undertaking work for a maximum of twenty minutes on each occasion. The only equipment Mr Williams provided for his subcontractors use at the premises was general low height scaffold consisting of an aluminium "A" frame scaffold and aluminium planks for ceiling insulation in low height areas. This was the scaffold Mr Lin utilised to access the wooden scaffold from which he fell.
Mr Williams provided East Sun with safe work documents prior to the commencement of work. The documents were not signed and returned by East Sun prior to the commencement of work. Mr Williams did not ensure that his contractors implemented, agreed to or understood the documentation.
Mr Williams provided Mr Gao with no information in relation to carrying out work at heights at the premises.
Mr Lin commenced working for East Sun two days prior to the incident. East Sun were not able to provide information on how they determined Mr Lin's competency to undertake gyprocking and plastering work at the premises.
Mr Lin did not speak or understand any English and any instruction provided to him had to be via Mr Gao. Mr Lin was instructed by Mr Gao that the work he was to do at the premises was to finish the plastering to the end. Mr Lin was not provided with any instructions as to how he was to undertake the plastering, nor was he provided with any safe work method statements or work procedures or given any training in relation to the work he was to undertake. Mr Lin was verbally told by Mr Gao to be cautious and safe when using ladders, he was given no safety instructions in relation to the scaffold at the premises.
Mr Mulder provided Mr Lin with no instructions at the premises.
System of work following to the incident 54. East Sun did not undertake any further work at the premises subsequent to the incident on 12 November 2007.
Improvement Notices were issued to Mr Woodmore and Mr Williams in relation to scaffolding at the premises. Mr Woodmore and Mr Mulder arranged for scaffolding to be erected in place of the wooden scaffolding, by Caspean Holdings Pty Ltd trading as Brilliant Access.
Improvement Notice 7-147214 was issued to Brilliant Access and Improvement Notice 7-147212 was issued to Mr Woodmore on 6 December 2007 in relation to a scaffold at the rear of the building. Brilliant Access undertook the changes required and provided the relevant compliance certificate.
Improvement Notice 7-145213 was issued on Mr Woodmore in relation to a site specific OHS Management Plan. This notice was complied with.
Following the incident Mr Woodmore and Mr Mulder, as part of the OHS management plan implemented at the premises, developed a site specific induction for all contractors and subcontractors working at the premises.
Following the incident Mr Williams revised his policies and procedures including safe work method statements, risk assessments and site specific inductions and implemented daily tool box talks. 8 In addition to this document, certain other documents became evidence including a series of photographs, factual inspection reports, a work method statement and safety plan formulated by Southern Cross Plastering, an extract from Australian/New Zealand Standard A576.1:1995 dealing with scaffolding and information recording that the defendants have no prior convictions for any offence under the Act. 9 For the defendants, there was tendered into evidence an affidavit of Mr Gao and an affidavit of his wife, Zhong Yung Chen, who was the sole director of East Sun. 10 It will be seen from the agreed statement of facts that there were a number of key personnel involved in the work being carried out at the construction site. Mr and Mrs Woodmore were the owner builders and Mr Woodmore personally had some involvement in the construction industry. Mr Mulder's role was as project manager and foreman. On this basis, it may be assumed that he had overall responsibility for the management of the building works being carried out. Southern Cross Plastering, of which Mr Williams was the principal partner, was contracted to undertake plasterboard and gyprock work. It was Mr Williams who in turn subcontracted that work to a number of persons (some of whom were engaged through companies) including East Sun Building Pty Ltd, the manager of which was Mr Gao. Mr Gao in turn arranged for the injured worker, Mr Lin, to carry out work on the site. This arrangement is not uncommon in the building industry. Building work seems habitually to be carried out by persons who are predominantly engaged as contractors. They perform work in a range of specialised trades. 11 [16] and [17] of the agreed statement of facts deal with Mr Gao's understanding of the relationship between East Sun and Southern Cross. There is some indication that Mr Gao was uncertain about that relationship and the status of the persons whom he had engaged to carry out work at the premises including Mr Lin, those persons being named in [17]. 12 There is amplification of these matters in the affidavit of Mr Gao. He said he was telephoned in early November 2007 by Mr Williams, with whom he had previously worked, and agreed to carry out some work at the particular site. He said he thought that he was being employed to do the job. Mr Williams requested that he "bring more people" and as a result Mr Gao arranged for others to attend the site including Mr Lin. It was Mr Gao's evidence that he only provided labour at the construction site and that his understanding was that all materials and equipment to do the job were to be made available by others. 13 In his affidavit Mr Gao said that Mr Lin attended the site on 10 November 2007 and he checked his construction induction card "which was valid". He was told by Mr Lin that "I have worked as a plasterer in China and have plenty of experience". He then left Mr Lin to do the work which was needed to be done. He was not aware that Mr Lin was working on the first floor level where the incident occurred. 14 In his affidavit, Mr Gao said that he had received an assurance from someone at the site that the scaffolding was "good". 15 Mr Lin's circumstances are also set out in paragraphs [19] to [22] of the agreed statement of facts. 16 A version of a communication between Mr Gao and Mr Williams concerning the scaffolding is contained in paragraphs [33] to [36] of the agreed statement of facts. In that there is an inconsistency between what is contained in those paragraphs and the evidence of Mr Gao as contained in his affidavit, the prosecutor accepted that the Court should proceed on the basis that those matters adverse to the interests of the defendants had not been proven beyond reasonable doubt. 17 I should state, however, that the defendants conceded by their plea of guilty, as was confirmed by their solicitor during the course of the hearing, that East Sun was a contractor to Southern Cross and that Mr Lin was an employee of East Sun. 18 There are a number of observations that can be made about the conduct and omissions of East Sun at the construction site. As is conceded, East Sun did not undertake any risk assessment in relation to the carrying out of work on the wooden scaffold and did not identify hazards and assess risks to prevent falls from heights at the premises. It did not provide a safe work method statement to anyone. It did not provide its workers with work procedures or a safe work method statement in relation to the work that they were to perform and those performing that work "essentially determined how they carried out their work themselves." Furthermore, as is set out in [51], "East Sun were not able to provide information on how they determined Mr Lin's competency to undertake gyprocking and plastering work at the premises." 19 Mr Gao's involvement with Mr Lin is also set out in [52] of the agreed statement of facts, which I reproduce hereunder: [52] Mr Lin did not speak or understand any English and any instruction provided to him had to be via Mr Gao. Mr Lin was instructed by Mr Gao that the work he was to do at the premises was to finish the plastering to the end. Mr Lin was not provided with any instructions as to how he was to undertake the plastering, nor was he provided with any safe work method statements or work procedures or given any training in relation to the work he was to undertake. Mr Lin was verbally told by Mr Gao to be cautious and safe when using ladders, he was given no safety instructions in relation to the scaffold at the premises. 20 In assessing the objective seriousness of the offence, I am required to proceed on the basis of the contractual relationship between East Sun and Southern Cross Plastering and the relationship between East Sun and the persons whom it arranged to carry out work as now known and acknowledged by the defendants. That is, Southern Cross Plastering contracted out certain work to East Sun and East Sun employed a number of persons for this purpose including Mr Lin. This is to be contrasted with Mr Gao's understanding of the relationship of East Sun as he thought it to be prior to the incident. That is, accepting the evidence given in the proceedings at its face value, there was some uncertainty as to Mr Gao's own personal relationship with Southern Cross Plastering and some understanding that the persons whom he had organised to perform work were to be employees of Southern Cross Plastering. 21 Because of the absence of any paperwork at all, as referred to in the agreed statement of facts, I am unable to draw any conclusions about what any of the persons involved intended, save for the adoption of the evidence which is clearly set out in the agreed statement of facts and the affidavit of Mr Gao, to which I have previously referred. Nevertheless, as I have said, I must proceed on the basis conceded by the defendants that there was a contractor relationship between East Sun and Southern Cross Plastering and Mr Lin was an employee of East Sun. On this basis, it is clear that there was a manifest failure on the part of the corporation East Sun and on the part of its manager Mr Gao to attend to any of the four matters particularised in the amended application for order. This needs to be understood in the context of the engagement of Mr Lin who spoke no English and whose experience in working in the construction industry in Australia is unknown. 22 In all the circumstances, the breach by the defendant East Sun must be regarded as a most serious one, and this reflects on the culpability of the defendant Mr Gao. 23 In assessing an appropriate penalty, I shall have regard also to the deterrent effect that such a penalty will provide both generally within the construction industry and specifically for these defendants. 24 There are some subjective factors that the Court is entitled to take into account in mitigation of any penalties to be imposed. Neither defendant has any prior convictions, and both entered a plea of guilty at the earliest appropriate time, as conceded by the prosecutor. Furthermore, there is evidence that the defendants co-operated with the WorkCover Authority in and about its investigations of the accident and there have been expressions of contrition and remorse. 25 There is little or no evidence concerning the defendants' commitment to occupational health and safety matters prior to the incident. The Court was informed by the defendants' solicitor during the course of submissions that they now accept a greater degree of involvement in the safety environment in which work is carried out, notwithstanding that the company's business involved the supply of labour only. The defendants are now reluctant to engage other workers and Mr Gao predominantly is involved only in work that he performs himself. He now adopts policies formulated by the WorkCover Authority of New South Wales and his son interprets those documents for him. 26 Both defendants asked that the provisions of s 6 of the Fines Act be applied to their circumstances. That section is in the following terms: 6 Consideration of accused's means to pay
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount 27 I note for completeness that s 4(f) of that Act defines a fine to include, relevantly for the purposes of these proceedings, legal costs payable to the prosecutor. The Court was informed that those costs were of the order of $9000 for each defendant. 28 Ms Chen annexed to her affidavit the latest available financial statement for East Sun, namely for the year ended 30 June 2008. There was disclosed an income of $104,576 and expenses of $104,599. Included in the expenses was an amount for directors' fees of $28,880. There is a further amount shown for "contracting work" and there can be no certainty as to whether this represents monies paid to Mr Gao. There is a deficiency of assets, after taking into account liabilities, of about $400. Bank statements, which I assume are intended to reflect the only accounts operated by East Sun, were made available for the period 7 October 2009 to 31 December 2009. The opening balance was $1444 and the closing balance a debit of $4973. I would conclude from the available evidence that the company East Sun has no assets. 29 Mr Gao annexed his income tax return for the year ended 30 June 2008 to his affidavit. It appears to show income by way of director's fees of $9001. There is other income and expenses referable to an investment property. However, in his affidavit Mr Gao says that he had previously owned an investment property which was sold "in or about March 2008 at a loss." He appended to his affidavit a bank statement, which he said was referable to the only bank account that he conducted, showing a debit of $1.00 as at 1 February 2010. In his affidavit Mr Gao said "I have jobs here and there but are infrequent. I have no other bank accounts and no assets." 30 I conclude on the basis of the evidence given by Mr Gao that he has limited income and no assets. 31 There are a number of decisions of this Court which discuss the in principle approach to be taken when considering the application of s 6 of the Fines Act to the circumstances of defendants in prosecutions under the Act. In McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353, a Full Bench of the Court said:
[25] In addition, we note the following principles which have been settled for the consideration of the financial situation of the defendant: 1. In the context of determining penalties in prosecutions for a breach of occupational health and safety legislation by a corporation, it may be appropriate, in some limited circumstances, for the Court to have regard to whether the defendant's corporate structure is little more than a means of distributing earnings arising from personal exertion or where the burden imposed by a fine will fall on one person or family, compared with a corporation which is functioning as "a company with assets of a substantial kind": see Haynes v CI&D Manufacturing (1995) 60 IR 455 at 457. However, it is now also clear that the fact that a corporation may represent the alter ego of a person or family and that any penalty imposed on the corporation will consequently have a financial impact on that person or family does not, of itself, warrant a reduction in penalty: WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd trading as Old But New [2004] NSWIRComm 247; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317.
37 During the course of the proceedings, there was a discussion with all parties concerning the making of an order under s 115 of the Act in order to publicise the offence in these proceedings and in proceedings brought against Southern Cross Plastering and Mr Mulder, which were all heard on the same day. The defendants, and the defendants in the other proceedings, agreed to submit to an order made under s 115 and to contribute between them the cost of complying with the order. 38 Section 115 of the Act is in the following terms:
(1) The court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence, its consequences, the penalty imposed and any other related matter,
(b) order the offender to take specified action to notify specified persons or classes of persons of the offence, its consequences, the penalty imposed and any other related matter (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct).
(2) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.
(3) If the offender fails to comply with an order under this section, the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify: (a) the original contravention, its consequences, the penalty imposed and any other related matter, and
(4) The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender. 39 The application of s 115 should be considered in the context of the objects of the Act, which are contained in s 3.
(a) to secure and promote the health, safety and welfare of people at work,
(b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work,
(c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs,
(d) to provide for consultation and co-operation between employers and employees in achieving the objects of this Act,
(e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled,
(f) to develop and promote community awareness of occupational health and safety issues,
(g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices,
(h) to deal with the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work. 40 In particular, s 3(f) is designed to facilitate the dissemination of information that will enhance community awareness of occupational health and safety matters. Whilst information given in a general sense is always useful, in my experience information about particular incidents and particular circumstances provides a more graphic illustration of the type of issues that may arise in practice. 41 I raised this matter with the parties because all agreed that the circumstances surrounding the incident which gave rise to these proceedings are frequently encountered within the building industry. This was a small residential construction site. The work was carried out solely by contractors, save for Mr Lin who East Sun acknowledged for the purpose of the proceedings was its employee. There were different levels of control. These ranged from the project manager to the principal plastering contractor down to the plastering subcontractor and the persons who were engaged by it. There were differing but concurrent obligations at each of these levels to comply with the provisions of the Act. Unlike the situation on large construction sites involving significant and substantial contractors and subcontractors with some degree of organisation and structure, there appears in the circumstances of this incident a significant lack of organisation and structure. Whilst it might be thought that the deployment of labour even on small building sites was a simple matter and that everyone would know what to do, the facts as revealed by these proceedings indicate that often the fact that no-one is injured is as much a matter of good luck as of good management. The situation was compounded by the fact that Mr Lin could neither read nor understand English and the only person who could communicate with him was Mr Gao. 42 Because it is clear that these circumstances are representative of what is happening in parts of the building industry, I intend making orders under s 115 of the Act. Those orders will be made in the same terms in each of the proceedings. The intention is that, as each of the defendants agreed, they would contribute between them up to $3000 for the placement of an advertisement in a number of newspapers circulating throughout New South Wales. 43 The WorkCover Authority of New South Wales helpfully provided information concerning those language newspapers in which such an advertisement might be inserted. They specified Mandarin, Cantonese, Korean and Spanish being "the nationalities which predominantly undertake work in the finishing trades in the construction industry." 44 I should add that the WorkCover Authority of New South Wales provided information that sets out the manner in which it currently communicates to culturally and linguistically diverse people. It conducts advertising campaigns in a number of publications and using also radio stations, media statements and releases placed on its website, which are undertaken in a variety of languages. It also publicises information to migrant service organisations. Furthermore, its construction team consists of inspectors who provide a number of language skills to assist its work in promoting safe work environments in the construction industry. 45 Because s 115 provides that the action to publicise the matters referred to must be "specified" and so as to avoid any doubt concerning the validity of any order made, I have drafted a form of advertisement which I intend being the subject of an order for publication. The publication would probably need to be confined to one only occasion in a newspaper having as wide a circulation as possible throughout New South Wales in English, Mandarin, Cantonese, Korean and Spanish. The advertisement is in the following terms:
Inspector Ochoa v East Sun Building Pty Ltd IRC 1212 of 2009 Inspector Ochoa v Williams IRC 1214 of 2009 and Inspector Ochoa v Mulder IRC 1215 of 2009 The WorkCover Authority of New South Wales charged three defendants with breaches of the Occupational Health and Safety Act 2000. Each pleaded guilty and each has been convicted of an offence under the Act. The Industrial Court of New South Wales has ordered that the defendants place and pay for this advertisement to warn others of the risks involved in residential house building sites. In these proceedings an owner builder used a project manager to arrange for renovation work to be carried out. The project manager used a contractor to do plastering work. That contractor used subcontractors to do that work. One of the subcontractors, in turn, used a number of persons who could not speak or understand English. Only that subcontractor could talk to them. One of these non-English speaking workers was working on some planks about three metres off the ground. A plank broke; he fell and was seriously injured. Neither the project manager nor the subcontractor had prepared a safe work method statement for this job. No one had organised proper scaffolding for this part of the work to be carried out. No one told the injured worker he should not have done the work that way. No one supervised him to make sure he did the work safely. The project manager, the head plastering contractor and the plastering subcontractor were all prosecuted and convicted of breaches of the Act. Anyone carrying out or involved in building work must make sure that all safety measures are taken and should get help from the WorkCover Authority of New South Wales if they are not sure of their responsibilities under the Occupational Health and Safety Act 2000. 46 Before making a final order under s 115 of the Act, I propose to stand the proceedings over. I ask each of the solicitors representing each of the defendants to liaise with each other concerning the placement of the advertisements and the costs. The intention of the Court is that each defendant will be required to contribute up to $1000 to a total expenditure of $3000. Obviously there will need to be some co-ordination of this activity. Perhaps the WorkCover Authority of New South Wales might provide some assistance in this regard. I note that that Authority has furnished to the Court and to solicitors acting for each of the parties a list of language newspapers in which the advertisement could be placed. I intend that the advertisements be published within six weeks of the date of this judgment. 47 I should emphasise that the Court expects that the solicitors concerned will attend to compliance with this order in a co-operative and cost effective manner. The Court is conscious that each of the defendants in the proceedings has financial constraints and that it would be inappropriate to overly burden any of the defendants with any further significant costs beyond those already incurred in connection with representation in the course of the proceedings. 48 I shall refrain from making any final order under s 115 and will grant liberty to apply. If the parties are able to reach some sensible agreement that will enable the advertisements to be placed in compliance with the court order, then my associate should be informed accordingly. Another purpose for the grant of leave is to allow any of the parties including the prosecutor to raise any significant objection to the advertisement as drafted by the Court. If the parties are able to reach agreement, I will issue a further order in Chambers without the necessity for further attendance. Otherwise, the Court expects that the liberty to apply will be exercised by the prosecutor within one month of this date. Orders
49 I make the following orders. 1. Each of the defendants is found guilty of the offence charged and is convicted accordingly. 2. I impose a monetary penalty of $80,000 on East Sun Building Pty Ltd and of $4000 on Yi Gao with a moiety thereof to the prosecutor. 3. The defendants are to pay the costs of the prosecutor, assessed under the Legal Profession Act in default of agreement, as to one half thereof by each of them. 4. The proceedings are stood over with liberty to apply to allow finalisation of the material that is to be subject to an order under s 115 of the Act.
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.
Inspector Ochoa
East Sun Building Pty Ltd & Gao
(1995) 60 IR 455
(1999) 92 IR 188
(2002) 112 IR 284
(2001) 106 IR 435