Inspector Ochoa v Mulder

CASES CITED: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353

HEARING DATES: 20 May 2010, 21 & 25 June 2010 (written submissions)

Mr D O'Neil of counsel (Prosecutor) Solicitors Legal Group, LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales

Mr G Walkom, solicitor (Defendant) Solicitors Walkom Lawyers

Inspector Mara Ochoa v Peter Henricus Daniel Mulder

Prosecution pursuant to s 8(2) of the Occupational Health and Safety Act 2000

1 The defendant, Peter Henricus Daniel Mulder, is charged by the prosecutor, Inspector Mara Ochoa of the WorkCover Authority of New South Wales, with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). The charge and the particulars of charge are contained within a second amended application for order filed at the commencement of the hearing on 20 May 2010. 2 The charge is that the defendant: being an employer, on 12 November 2007, at ( deleted ), in the State of New South Wales ("the premises")

ensure that people (other than employees of the defendant) and in particular, Zhen Quan Lin, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while at the defendant's place of work contrary to section 8(2) of the Act. The particulars of the charge are that:

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 persons 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 workers 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 ensure that contractors supervised workers at the premises undertaking plasterboard and gyprock work at heights 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 ensure that he or contractors undertook a risk assessment in relation to plasterboard and gyprock work at height at the premises;

As a result of the defendant's failures and omissions Zhen Quan Lin was placed at risk of injury. 3 The defendant pleaded guilty to the charge and this judgment is concerned only with the question of penalty. 4 An agreed statement of facts and certain annexures were filed in the proceedings. The agreed statement of facts 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.

2. At all material times Peter Henricus Daniel Mulder ("Mr Mulder") of ( deleted ) in the State of New South Wales was a sole trader and was an employer.

3. At all material times Mr Mulder was the project manager and foreman of residential building works being undertaken at ( deleted ) in the State of New South Wales.

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").

5. Mr Woodmore obtained an Owner Builder Permit in October 2006. Mr Woodmore also held an Electrical Contractor Licence and a WorkCover OHS Construction Induction Certificate. Mr Woodmore had previously been an owner builder when he undertook renovations to his home approximately 10 years prior to the incident on 12 November 2007.

6. Mr and Mrs Woodmore used contractors and subcontractors for the construction of their home. Both Mr and Mrs Woodmore liaised with and gave instructions to tradespeople working at the premises, although Mrs Woodmore usually only attended the premises on weekends.

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.

8. Mr Mulder acted as Mr and Mrs Woodmore's representative at the premises and was responsible for engaging, liaising with, supervising and instructing contractors and subcontractors. There were no documented contractual arrangements between Mr Mulder and Mr and Mrs Woodmore.

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.

10. Southern Cross was engaged by Mr Mulder to undertake plasterboard and gyprock work at the premises. After Southern Cross were given the job Mr Williams became aware that Mr and Mrs Woodmore were the owner builders and Mr Mulder was the project manager engaged by Mr and Mrs Woodmore.

11. Mr Williams provided Mr Mulder with documents including terms and conditions, works contract, risk assessment and a safe work method statement prior to commencing work at the site. The documents were signed by Mr Williams and dated 1 November 2007. Mr Mulder received these documents by email, however he did not sign and return the documents but verbally accepted Mr Williams quote. Mr Mulder was unable to recall if he passed on the documents to Mr and Mrs Woodmore for approval or noting.

12. Mr Williams arranged for three subcontractors to assist him in the completion of the plasterboard work at the premises, namely East Sun Building Pty Ltd, Legap Pty Ltd and Greg Brown trading as Kurnell Plastering. Mrs Williams was not involved in the arrangements relating to subcontractors. East Sun was engaged to install supplied plasterboard, set fixed plasterboard and cornice and sand ready for painting. Mr Mulder stated he was not aware that Southern Cross had engaged subcontractors to assist in the completion of the plasterboard work at the premises."

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.

14. At all material times Zhong Yun Chen ("Ms Chen") of ( deleted ) 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.

15. 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.

16. 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).

17. 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 18. Mr Lin held a 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.

19. Prior to commencing work for East Sun, Mr Lin had met Mr Gao whilst undertaking casual work. He ran into Mr Gao who had advised he needed workers at the premises and as Mr Lin was available he agreed to do the work. He provided Mr Gao with his tax file number and induction number.

20. Mr Lin commenced work for East Sun at the premises on 10 November 2007. He did not work on 11 November 2007. Mr Lin does not understand or communicate in English. He relied upon Mr Gao to interpret and translate any information into Mandarin while at the premises.

The Incident 21. 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. There were three planks making up the scaffold platform when Mr Lin 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 29. The scaffolding in the stairwell at the premises did not comply with Australian Standard, AS 1576 - Scaffolds prior to or on the day of the incident. 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 in early November 2007.

The quotation Mr Williams provided to Mr Mulder for work at the premises contains a term indicating that the price did not include scaffolding for heights over 2,700mm unless specified in the quotation.

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 in the stairwell at the premises on the day of the incident. Mr Mulder denies having caused the three wooden planks to be placed onto the scaffold beams as used by Mr Lin on the day of the incident.

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 35. 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.

36. East Sun did not undertake an adequate risk assessment in relation to undertaking working on the wooden scaffold. Mr Gao states he asked Mr Mulder if the timber scaffold was safe, and was told it was safe to use. Mr Mulder denies this conversation took place. East Sun did not identify hazards and assess risks to prevent falls from heights at the premises.

37. Mr Williams Safe Work Method Statement ("SWMS") noted the risk of height and the response "to make sure all scaffold is safe and secure".

System of Work prior to the Incident 38. 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.

39. Mr Williams provided a SWMS to Mr Mulder prior to commencing work at the premises. Mr Mulder did not ensure that Mr Williams and his subcontractors complied with the SWMS.

40. East Sun did not provide a SWMS to Mr Williams or Mr Mulder prior to commencing work at the premises. East Sun did not have a SWMS in relation to work at heights.

41. East Sun did not provide its workers with work procedures or SWMS in relation to the plasterboard and gyprock work they were undertaking at the premises. Workers essentially determined how they carried out their work themselves.

42. Neither the Woodmores nor Mr Mulder developed or implemented a specific OHS management plan for the works at the premises. The value of the work was above $250,000.

Training and Supervision 43. 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 was 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 52. 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. 5 The annexures consisted of photographs, factual inspection reports, a work method statement and safety plan for plastering works and other documentation issued by Southern Cross Plastering, together with its quotation and an extract from the joint Australian/New Zealand Standard dealing with scaffolding (AS/NZS 1576.1:1995). 6 A number of affidavits were tendered in the defendant's case. Apart from affidavits of the defendant himself and his son, there were a number of affidavits that attested to the defendant's general good character, his awareness of matters concerning occupational health and safety and certain assistance that the defendant had rendered a number of people in need on a volunteer basis. 7 There was also evidence contained in the defendant's affidavit that dealt with his financial circumstances, and I shall return to this aspect later in these reasons for judgment. 8 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. The defendant'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. 9 [11] of the agreed statement of facts refers to certain documentation that was given to the defendant by Mr Williams. Included with Mr Williams' quotation was a document entitled "Term and conditions of acceptance". This specified that the quotation did not include, inter alia, "scaffolding for heights over 2700mm high." 10 Apart from the material in the agreed statement of facts, the only other evidence given in the proceedings concerning the circumstances surrounding this incident is that of the defendant in his affidavit. He said that he was retained by the owner, Mr Woodmore, as project manager to be paid on an hourly charge basis. He did not have any written contract. He said that after engaging Mr Williams, he had a meeting with him on site shortly prior to 6 November 2007. At that meeting, the defendant said that the work to be performed by Mr Williams would be the only work being carried out inside the house. He mentioned that he had installed timber ledges to create a platform in the dormer window on level 3 and offered to leave them in place if they were to be used for sheeting in the dormer window void area. He said that he told Mr Williams that he would need to provide his own scaffold planks and that Mr Williams said that he had "purpose made metal planks for that use. I will get them to site to use in that area. Leave the ledges where they are and we will use them for that purpose." 11 The defendant said that he saw Mr Williams unloading a number of metal planks at the site on 6 November 2007, which he assumed would be used to form the platform in the area of the dormer window void. He had a conversation with a person on site whom he knew as "Kevin" which, on the basis of the evidence given in the proceedings, is a reference to Mr Gao. The defendant denied having any conversation of any kind with Mr Gao about any scaffolding to be used in carrying out the gyprocking work at the site. 12 At the time that the incident occurred, the defendant said that he was working in another part of the house and on another level. He said that he understood Mr Williams "to be a competent tradesman experienced in undertaking gyprock work and assumed that he would make arrangements for the work to be carried out in a safe fashion." 13 Relying on his assessment of Mr Williams' competency and experience, he took no action to ensure that safe work methods were being used by Mr Williams and persons working for him. 14 The defendant said that he had no knowledge of the circumstances in which Mr Lin was carrying out the work until immediately after the accident and Mr Lin had been removed by ambulance. He said that at that stage he observed: that someone had placed on the timber ledges a single timber plank and sheet of plywood. I had not previously seen those pieces of material placed in that position prior to that day. The timber plank had split in the middle and one piece was hanging dangerously from one of the ledges. I pulled that piece of timber down to ensure that it was not a danger to anyone at site. I then instructed other workers on site not to enter the area until a WorkCover inspector had arrived. 15 In the course of his affidavit, the defendant acknowledged that in compliance with the requirements of the Act he was obliged to ensure that all persons who came to the site underwent a site induction, to arrange for a register to be created for recording site inductions, to ensure that all contractors provided safe work method statements and to arrange for the erection of a scaffold by a licensed scaffolder in the area of the dormer window where the incident occurred. 16 Section 8(2) of the Act is in the following terms: 8 Duties of employers …

(2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 17 It will be observed that this creates an obligation on persons in the position of the defendant to ensure, in the sense of guarantee, that people who are not his employees are not exposed to risks to health or safety arising from the conduct of his undertaking whilst those persons are at the place of work which he has established. 18 Although the absolute nature of the duty imposed by s 8(2) must be qualified by the availability of the defence contained within s 28 of the Act, (see Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [18] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), nevertheless, the obligation is a comprehensive one. "The measures which must be taken are those which are reasonably practicable. The term is not defined in the OH&S Act, but it may often involve a common sense assessment …" (At [18]). 19 I have previously set out the particulars of the charge contained in the second amended application for order. As they apply to the defendant in his capacity as project manager and overall site foreman, he was required to assess what risks were involved in the carrying out of the plasterboard and gyprock work at the premises, to ensure that the work was carried out safely and in accordance with any relevant building codes and the like, to ensure that all persons entering the site were properly inducted and instructed about the potential problems involved in working from heights and that there was adequate supervision in place. 20 I would not regard it as being necessary, practical or appropriate for the defendant to have undertaken each and every one of these steps personally. He was, however, obliged to ensure that those ultimately responsible for the safety of workers on site had undertaken these steps. I shall approach the assessment of penalty and in particular the assessment of the objective seriousness of the offence in this way. 21 Work in the construction industry has many features which are inherently unsafe including, in the context of these proceedings, the need to work at a height exceeding three metres from the ground. Whilst a project manager and site foreman cannot be expected to personally supervise and control every aspect of the building work which is being conducted by the various trades who are retained from time to time, there needs to be in place some process which, viewed objectively, can be said to represent a genuine effort to ensure that safe working conditions apply to all of the work being carried out on the construction site. By his plea of guilty, the defendant acknowledged his failures to comply with his obligation and confirmed those failures in his affidavit evidence. 22 It should be observed at the outset that the breach by the defendant of his obligations under the Act is a serious matter. However, his culpability needs to be looked at in context. That context includes the circumstances which applied to this defendant, namely that he was project manager and overall foreman, but had subcontracted this particular work associated with a particular trade to a person whom he regarded as competent and responsible. Furthermore, he had limited personal involvement with the persons physically carrying out that work and certainly no involvement in their engagement. Nevertheless, the defendant did have, as I have pointed out, an overall responsibility to ensure that the construction site including the work being performed on it was safe as required by the Act. The objective seriousness of the offence needs to be considered having regard to these matters. 23 In determining penalty, I shall also take into account the deterrent effect that a penalty will provide in the construction industry generally and to this defendant. In this latter regard, I note that the defendant has expressed awareness of his obligations under the Act and a willingness to comply with them. 24 There are certain subjective matters which the Court is entitled to take into account in fixing an appropriate penalty. These include the fact that the defendant pleaded guilty at the earliest appropriate time, that he is a person of good character and with no prior convictions under the Act, that he has expressed remorse and contrition for what occurred and co-operated fully with the WorkCover Authority in and about its investigations of the incident. 25 I am satisfied on the evidence that the defendant is entitled to rely on all of these subjective matters, and the prosecutor did not contend otherwise. 26 The defendant also sought that the provisions of s 6 of the Fines Act should be applied to his 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 should observe that "fine" is defined in s 4(f) of that Act to include "any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer". 28 Accordingly, in considering the requirement to consider the defendant's "means" I am required to take into account not only the amount of the monetary penalty but also the prosecution's costs which the defendant has conceded he will be liable to pay. For the purpose of dealing with submissions on this matter, the prosecutor said that its costs would be of the order of $15,000. 29 The defendant's affidavit set out some information concerning his capacity to pay. Apart from some other assets, he and his wife jointly own a house which is subject to a mortgage, leaving a net equity of almost $400,000. The defendant is currently employed carrying out maintenance work earning approximately $1,365 net per week. His wife is unemployed. Two children reside with them who are making a modest contribution by way of "board". The joint household expenses would, on the evidence, appear to equate with or exceed the family household income. As the defendant noted, he has very little in the way of savings which is partly due to some unfortunate and significant financial losses caused by a member of his wife's family. Accordingly, the only means by which the defendant can hope to pay any fine and costs would involve extending the existing mortgage. 30 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.

2. The financial position and the means of a defendant should be taken into account when determining penalty. It is well established that, notwithstanding such considerations, the penalty must ultimately reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435. 31 The evidence in these proceedings does reveal a capacity on the part of the defendant to pay the amount of the fine and costs. This capacity is reflected in his equity in the family home. In making this comment I am, however, conscious of the fact that the only means of realising that equity would involve an extension of the existing mortgage, in circumstances where there must be some concern that the servicing of the additional loan will impact upon the financial circumstances of the family. Despite this, I am constrained to impose an appropriate penalty and do not propose to make any allowance by reason of the provisions of s 6 of the Fines Act. 32 However, in fixing the appropriate penalty I will take into account the undertaking by the defendant to participate in the costs of advertisements to be placed pursuant to an order under s 115 of the Act to which I shall shortly refer. 33 The maximum penalty which may be imposed upon the defendant is $55,000. Having regard to all of the matters to which I have referred, including those of both an objective and subjective nature, I am of the opinion that an appropriate penalty in all the circumstances is the sum of $8,000. The prosecutor sought orders for costs and a moiety, which were not opposed. Section 115

34 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 East Sun, Mr Gao and Mr Williams, which were all heard on the same day. The defendant, 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. 35 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. 36 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. 37 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. 38 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. 39 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. 40 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." 41 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. 42 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. 43 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. 44 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. 45 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

46 I make the following orders: 1. The defendant is found guilty of the offence with which he is charged and convicted accordingly. 2. I impose a monetary penalty of $8,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. 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.