Inspector Olive v Transfield Pty Limited

PROSECUTOR: Ms A.F. Backman of counsel Solicitors: Mr A. McColm WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr B.D. Hodgkinson SC Solicitors: Ms T. Neilson Carroll & O'Dea

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Fri 23 November 2001

IRC575 of 2001 INSPECTOR PAUL OLIVE v TRANSFIELD PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983

JUDGMENT [2001] NSWIRComm295 1 This is a prosecution brought by Inspector Paul Olive of the WorkCover Authority of New South Wales against Transfield Pty Limited under the provisions of s15(1) of the Occupational Health and Safety Act, 1983 ("the Act"). It is alleged the defendant corporation: . . . on 10 June 1999, at 25 Powers Road, Seven Hills in the State of New South Wales, the defendant being an employer, failed to ensure the health, safety and welfare at work of all its employees, and in particular Kum Mok Hong, Giuseppe Damarco and Atilio Rivera contrary to s15(1) of the Occupational Health and Safety Act , 1983 in that it failed to provide or maintain a system of work, to wit, a system of work for lifting and carrying a load comprising a roof truss section by means of two articulated luffing mobile cranes, that was safe and without risks to health.

2 The defendant entered a plea of guilty to the charge.

3 Accordingly, an agreed statement of facts was filed, which facts conceded the four particulars as to the breach relied on by the prosecutor, namely: 1. The defendant failed to provide or maintain a safe system of work to ensure the white coloured eight tonne Chamberlain articulated luffing mobile crane identified by the registered number NZE-413 remained stable and upright at all times whilst engaged in luffing and carrying the roof truss section. 2. The defendant failed to provide or maintain a safe system of work to ensure the access of the white coloured eight tonne Chamberlain luffing mobile crane identified by the registered number NZE-413 and blue coloured ten tonne Chamberlain articulated luffing mobile crane identified by the plant number 1526 were kept aligned in the same direction whilst engaged in lifting and carrying the said roof truss section. 3. The defendant failed to provide or maintain a safe system of work to ensure the path of the white coloured eight tonne Chamberlain articulated luffing mobile crane identified by the registered number NZE-413 from the said "blasting and painting building" to the outside yard was not restricted in any manner. 4. The defendant failed to ensure persons carrying out the work of dogging especially the lifting and carrying operation held recognised qualifications in relation to work of that kind in accordance with cl 8(2) of the Occupational Health and Safety (Certificates and Competency) Regulation 1996.

4 The defendant as to the facts relevantly agreed : 3. At all material times the defendant occupied premises located at 25 Powers Road, Seven Hills in the State of New South Wales. 4. At all material times the defendant carried on the business of manufacturing steel products at the Seven Hills premises. 5. At all material times the defendant employed the following persons at the Seven Hills premises: a) Kum Mok Hong as a crane driver; b) Steven Topalovic as a supervisor of employees at the 'Blasting and Painting; Building'; c) Atilo Rivera as a dogman; and d) Giuseppe Damarco as a general hand, labourer and crane driver. 6. At all material times the defendant operated a white coloured 8-ton Chamberlain articulated luffing mobile crane identified by the registered number NZE 413 (the said "8-ton crane") and a blue coloured 10-ton Chamberlain articulated luffing mobile crane identified by the plant number 1526 (the said "10-ton crane") at the Seven Hills premises. 7. At approximately 9.25am on 10 June 1999 Kum Mok Hong sustained soft tissue injury to his neck and back when the 8-ton mobile crane he was operating became unbalanced and toppled over. Hong was taken to hospital where he underwent a CT scan and was discharged after one hour. Hong consulted his general practitioner on one occasion and returned to work on full duties after one week off work. At the time of the accident Hong was operating one of two mobile cranes effecting a 'dual lift' of a fabricated roof truss section located within the 'Blasting and Painting Building'. During the process of carrying the roof truss section from the building to the outside yard, the respective cranes reached a position almost perpendicular to one another. Accordingly, the axis of both cranes were not aligned in the same direction, the 8-ton crane lost stability and toppled over. 8. On 10 June 1999 Inspectors Paul Olive and John Sibilant attended the Seven Hills site and inspected the scene of the accident. A factual inspection report was compiled, a sketch plan made and a series of coloured photographs caused to be taken (the factual inspection report, sketch plan of Inspector Olive and series of coloured photographs are attached hereto - attachment No. "1"). The inspection revealed the following: a) a steel framed building referred to as the 'Blasting and Painting Building' was located within the confines of the Seven Hills site. The building included an opening of approximately 30 metres at the western end (refer to photographs 1 & 21); b) a fabricated metal roof truss section rested on the ground outside of the western end of the building. The roof truss section was painted green in colour, triangular in shape, approximately 17 metres in length and 5.6 metres in width (refer to photographs 2, 3, 5, & 8); c) a white coloured 8 ton Chamberlain articulated luffing mobile crane identified by the registered number NZE 413 was overturned and rested on its side adjacent to the wide end of the roof truss section. The crane was within the building and its boom was pointed in a north-west direction (refer to photographs 2 to 14 inclusive); d) a blue coloured 10 ton Chamberlain articulated luffing mobile crane identified by the plant number 1526 was upright and held the narrow end of the roof truss section approximately 400 millimetres off the ground with two 6,000 kilogram synthetic slings. The crane was outside the building and its boom was pointed in a northerly direction (refer to photographs 18 to 22 inclusive); and e) egress from the building was restricted by a fabricated steel walkway section that measured approximately 1.4 metres in width and 20 metres in length. The walkway section was approximately 3 metres from the northern side of the overturned crane (refer to photographs 1, 5, 11, 12 & 14). Egress from the building was further restricted by a fabricated steel work stand that measured approximately 0.9 metres in width and 3.6 metres in length. The work stand was approximately 2 metres from the southern side of the overturned crane (refer to photographs 5, 7, 8, 9, 10, & 13). 9. On the date of the accident a previously fabricated roof truss section weighing 12.74 ton rested upon a fabricated steel work stand located within the 'Blasting and Painting Building'. The roof truss section was required to be moved from the building to a position outside yard as it had recently been fabricated. The defendant charged Topalovic with supervising the task of moving the roof truss section from the confines of the building to the yard outside. 10. Topalovic, Rivera and Damarco attached a total of four 6,000-kilogram synthetic slings to the roof truss section. Two slings were attached to the narrow end of the truss and one sling was attached to each of the two corners of the wider end of the truss. The slings attached to the narrow end of the roof truss section were also attached to the 10-ton crane. The slings attached to the wider end of the roof truss section were also attached to the 8-ton crane. 11. The 8-ton crane, 10-ton crane and roof truss section were all located wholly within the 'Blasting and Painting Building'. The roof truss section rested on a work stand near the wall of the 'Blasting and Painting Building'. The wider end of the roof truss section and the 8-ton crane were located further from the opening at the western end of the building than the narrow end of the roof truss section and the 10-ton crane. 12. Topalovic instructed Hong to operate the 8-ton crane and Rivera and Damarco to perform dogging duties for Hong, that is, direct Hong in the movement of the load when the load was out of his view. Topalovic operated the 10-ton crane. 13. The cranes were positioned such that the 8-ton crane operated by Hong faced toward the outside of the building and the 10-ton crane operated by Topalovic faced toward the inside of the building. The roof truss section was lifted from the work stand by both cranes. From the outset of the lifting and carrying operation the booms of the two cranes were slightly out of alignment due to the efforts of Hong and Topalovic to avoid striking the work stand when the roof truss section was carried. The 8-ton crane was moved in a forward direction whilst the 10-crane was moved contemporaneously in a backward direction. It was not possible for the cranes to move from the building in a straight path. During the process the 10-ton crane turned to afford the 8-ton room to manoeuvre and, upon exiting the building, the 10-ton crane turned further in the direction of a pre-determined position upon where it was intended the roof truss section was to rest outside the building. The 8-ton crane remained within the building and could not similarly turn. As a consequence, immediately prior to the accident, the respective cranes had reached a position almost perpendicular to one another. Accordingly, the axis of both cranes were not aligned in the same direction and the 8-ton crane lost stability, the right hand side of the crane lifted from the ground and toppled over causing the stated injuries to Hong. 14. Throughout the process of lifting and moving the roof truss section Damarco and Rivera were directing Hong in the movement of the load. Damarco was in a position approximately 2 metres from the left hand side of the crane operated by Hong. Rivera was in a position approximately 1 metre from the right hand side of the crane operated by Hong. Whilst neither Damarco nor Rivera sustained actual injury both were placed at risk of injury when the axis of both cranes became misaligned and the 8-ton crane lost stability and toppled over. 15. Relevantly, Australian Standard 2550.1 - 1993 : Cranes - Safe Use Part 1: General Requirements (AS 2550.1 - 1993) provides the following in relation to multiple crane lifting: 2.2 MATTERS TO BE CONSIDERED . At appropriate stages during planning, the following matters shall be considered, where applicable: (s) The documentation of work procedures where the lifting operation is not of a routine type, e.g. multiple crane lifting. 7.19 MULTIPLE CRANE OPERATION 7.19.1 General Hoisting a load with two or more cranes requires greater attention to planning and supervision than hoisting with one crane, because the effects of the relative motion between the cranes may induce additional loadings on the cranes, the load and the lifting gear. Because of this and the difficulty in monitoring these additional loads, multiple crane hoisting shall be used only when the physical dimensions, characteristics, mass or required movement of the load prevent the operation from being carried out by a single crane. Multiple cranes hoisting shall be planned with extreme care and shall include an accurate assessment of the proportion of the load to be carried by each crane. 7.19.3.5 Pick and Carry In pick and carry operations the axis of both or all cranes shall be kept aligned in the same direction. The possibility is that once out of alignment, the movement of one crane may push or pull either the other crane or cranes and cause loss of stability. 7.19.4 Supervision One competent person who shall not be one of the crane operators, shall be in attendance and in overall control of the multiple crane operation. Only this person shall give instructions to the crane operators except in an emergency, when a stop signal may be given by any person observing a situation leading to danger. If all necessary locations cannot be observed from one position, additional competent personnel should be located at suitable positions to observe and report to the person in charge of the operation. ["competent person" is defined in clause 1.4.1 as a person who by reasons of qualifications and experience has the knowledge and skill necessary to perform the duties with respect to which the expression is used.] 16. An investigation by the informant revealed the following: a) prior to the occurrence of the accident a similar roof truss section was moved from the building to the yard outside by operation of the same 8-ton and 10-ton cranes without incident. On that occasion Hong operated the 10-ton crane in a reverse direction and Topalovic the 8-ton crane in a forward direction. The roof truss section was positioned such that the narrow end was located further from the opening at the western end of the building than the wider end. As a consequence, there was greater room for the 8-ton crane to manoeuvre within the building. Furthermore, Topalovic had greater experience in operating cranes involved in duel lifts within confined areas than Hong; b) at the time of the accident, egress from the building was restricted due to the proximity of the roof truss section to the wall of the building, the presence of the fabricated walkway and the presence of the fabricated work stand within the building. This effected manoeuvrability of the 8-ton crane; c) contrary to clause 7.19.3.5 of AS 2550.1 - 1993, because of the relative movements of the two cranes during the lifting operation, the axis of both cranes involved in the lifting operation were not kept aligned in the same direction; d) Hong was experienced in the operation of a single crane to hoist a load. He had not operated a crane in concert with another crane to hoist a load until 12 months preceding the date of the accident when he first performed work at the Seven Hills premises. On his commencement and at all times leading up to the date of the accident he had not received instruction or training from the defendant particularly directed toward lifting operations involving multiple cranes. e) Hong described the process of hoisting loads with two cranes as 'not routine or usual' and occurring on 'rare occasions'. He described his previous involvement in hoisting loads with two cranes as extending to 'some light, smaller objects' that were lifted and carried 'without any problem'. Topalovic considered he himself had been personally involved in hoisting loads with two cranes 'hundreds of times'. He considered the frequency of such an operation varied from 'some times six per week and then none for months' depending on the rate at which items were fabricated at the site; f) contrary to clause 2.2(s) of AS 2550.1 - 1993, on the date of the accident, the defendant did not have in place a documented work procedure for multiple crane lifting. The defendant did have in place a documented work procedure entitled "Managing Loads" - identified as SP-97-06 (a copy of SP-97-06 is attached hereto - attachment No. "2"). The document envisaged the procedure contained within would be used in conjunction with Codes, Regulations and Standards of local authorities and prescribed the responsibilities of management and supervisors in relation to the movement of loads. However, the written document did not specifically address lifting operations involving multiple cranes, refer particularly to AS 2550.1 - 1993 or make reference to the greater attention, planning and supervision required for lifting operations involving multiple cranes g) contrary to clause 8(2) of the Occupational Health and Safety (Certificates of Competency) Regulation 1996, Rivera and Damarco were engaged in carrying out scheduled work (dogging) without holding a recognised qualification in relation to work of that kind. Furthermore, contrary to clause 9 of the Regulations, Rivero and Damarco were not engaged, and had never been so engaged, in a recognised course of training relating to the kind of schedule work (dogging), nor where they keeping and maintaining a written record of training in accordance with the requirements of clause 29.

5 Ms S.F. Backman of counsel appeared for the applicant and Mr B.D. Hodgkinson SC for the respondent. The prosecutor tendered a WorkCover Factual Investigation of the breach which incorporated some of the statements of a number of the employees on site at the time of the breach. Photographs taken on site, after the breach, were also tendered. The defendant relied upon two affidavits - one of Mr Michael Kiprioti, Safety Manager for NSW of Transfield sworn 23 October 2001 and the other of Mr Tony Caristo, Fabrication and Corrosion Protection Group General Manager of Transfield sworn 23 October 2001. Both statements address the pre-accident and post-accident safety procedures in place for the operation of the defendant company.

6 The maximum penalty at the time of a breach of s15(1) of the Act was $550,000. However because the defendant has prior convictions, the provisions of s51A of the Act come into play and the maximum penalty for this breach is $825,000 (see Capral Aluminium Limited v WorkCover of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (2000) 99 IR 29 [at 39-52]). 7 An assessment of the objective seriousness of this offence requires the determination of a number of factors viewed objectively and in consideration of penalty, the words of the Full Bench in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474) are relevant: . . . in our view it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence.' 8 The facts reveal, Mr Kum Mok Hong and Mr Stephen Topalovic, qualified crane drivers, were required, using two mobile cranes, to effect a dual lift of a heavy pre-fabricated roof truss. The cranes were moving the roof truss from inside a building to an outside yard. The weight of the truss was 12.74 tonnes. The lift required the use of two cranes, one weighing eight tonne and the other weighing 10 tonne. The lift involved the attachment of four 6000 kilogram synthetic slings to the truss. It was in the manoeuvre of the truss from inside to the outside that the cranes lost alignment as they reached a position almost perpendicular from one another to exit the load from the building. One crane, in that position, toppled over unable to hold the load at that angle. Mr Hong was driving the crane which toppled over. He suffered injury. Two other employees who were dogmen and the other crane driver were placed at risk of injury.

9 Mr Hong had been trained as a crane operator. He had regularly operated a single crane to hoist loads. He had never received any instruction or training directed towards a defined lifting operation for work involving the use of dual cranes lifts. Mr Hong revealed, at the Seven Hills site, he had been required to hoist dual loads but such loads were lighter and required only smaller lifts. The other crane driver, Mr Topalovic, revealed he had been required to hoist dual loads "hundreds of times". The frequency of such operations at the defendant's premises varied, he said, from "sometimes six per week and then none for months."

10 The company's own investigation into the incident revealed the cause of the breach was the non-alignment of the two cranes. However, it also revealed the two dogmen, Mr Giuseppe Damarco and Mr Atilo Rivera, who were assisting in the task, had not been qualified in relation to work the nature of which had before been required of them and they had not maintained the appropriate written records of training in accordance with the Occupational Health and Safety (Certificates of Competency) Regulations 1996 (cl 29).

11 There was no work method devised for this task nor any independent risk assessment of what was a very specific and dangerous operation.

12 In assessing the gravity of the offence, a factor for the court's consideration is the question of the foreseeability of the breach. The existence of a reasonable foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence (see Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Mt Kembla Coal and Coke Pty Limited; see also Camilleri's Stockfeed Pty Ltd v EP Authority (1993) 32 NSWLR 683 at 700; James Moore v Vibro-Pile (Aust) Pty Limited (unreported, Hungerford J CT96/1163, 28 May 1997 at 17 and WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported Hill J CT97/1280 2 April 1997 at 16).

13 The causative facts which resulted in the risk to safety at this worksite included a failure to have in place a documented work procedure for multiple crane operations. The 1993 Australian Standard provided comprehensive and accessible instructions and information which was available to the defendant to guide it in the establishment of safe working procedures for the performance of this operation. This deficiency coupled with the lack of recognised qualifications on the part of both Mr Damarco and Mr Rivera, who were both acting as dogmen during the operation, made the risks to injury both obvious and foreseeable to a reasonable person (see WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (2000) 95 IR 383 at 450). Here the risk to safety flowing from the failures resulted in actual injury to Mr Hong. The potential risk of serious injuries to Mr Topalovic, Mr Damarco and Mr Rivera who were in the near vicinity of the crane when it collapsed is obvious. Given the causative factual circumstances, the risk to the safety of these employees exposes the gravity of the offence (see Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5)).

14 In the circumstances, I find this offence serious.

15 The court gives consideration to the subjective features of the breach placed before it in consideration of penalty. In Lawrenson Diecasting the Full Bench said [at 474]: It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpates the accused must be secondary to considerations of the nature and quality of the offence.

16 The defendant, from the evidence, had in place an elaborate and extensive plan for Occupational Health and Safety at their worksites. The particular lift which involved a dangerous manoeuvre by cranes of a very heavy load, without any assessment of the risk indicates a flaw in the safety systems adopted by the defendant. As was said by Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Lyons) v Warman International Limited (2001) 105 IR 236 [at 74]: . . . The systems of work adopted by the defendant must include searching for and identifying all possible risks and the institution of safety measures to guard against those risks. ( WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported Hill J, Matter No. CT1280 of 1995, 2 April 1997 at 21). Employers are required to maintain constant vigilance and to take all practical precautions to ensure safety in the workplace; Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; 99 IR 29 [at 77]. 17 The review of the incident was completed by 25 June 1999. The agreed statement of facts reveals, arising from the review, the following remedial steps were undertaken: a) a safety training meeting was held on 11 June 1999 where a report on the accident involving Hong was given, the requirement to keep and maintain log books in regard to crane operations was discussed and reinstruction on safety awareness on all tasks addressed. Hong, Topalovic, Damarco and Rivera were in attendance at the meeting; b) a written memorandum was issued on 02 July 1999 prohibiting the carrying out of dual lifts until further notice; c) the defendant caused an investigation into the accident to be undertaken. An "Incident Reporting and Investigation Form" recorded the facts, factors and causes that contributed to the accident and remedial action to be taken in light of those factors and causes (attached hereto is a copy of the defendants "Incident Reporting and Investigation Form" - attachment No. "3"); d) a written procedure entitled "Dual Crane Lifts" and identified by number CPU-000-SP-0101 was issued in September 1999. The document prescribed a procedure particularly directed toward dual crane lifts (attached hereto is a copy of the defendants document CPU-000-SP-0101 - attachment No. "4"). The written procedure envisages its implementation in conjunction with written procedure entitled "Managing Loads" - CPU-0000-SP-0100; e) a written procedure entitled "Managing Loads" and identified by number CPU-0000-SP-0100 was issued in September 1999 (attached hereto is a copy of the defendants document CPU-0000-SP-0100 - attachment No. "5"). The procedure replaced the former written procedure entitled "Managing Loads" identified by number SP-97-06 and makes particular reference to the procedure contained in CPU-000-SP-0101 in the event a load requires a dual crane lift; f) a "Job Safety Analysis Worksheet" for the process of "Dual Lifts Using Mobile Cranes" and identified by JSA No: TCSHO3 was issued on 23 June 1999. The document identifies potential hazards involved in lifting operations involving 2 cranes and control measures to address the hazards (attached hereto is a copy of the defendants document JSA No: TCSHO3 - attachment No. "6"); and g) Damarco and Rivera were issued with logbooks for the purpose of keeping and maintaining of a written record of their training under the supervision of Topalovic in compliance with clause 29 of the Occupational Health and Safety (Certificates of Competency) Regulation 1996. 18 All dual lifts were suspended until the new procedure had been redesigned and employees re-trained. The amended procedures, I find, reinforced Transfield's existing commitment to safety and further reiterate to its workforce the defendant company's commitment to safe working.

19 The corporate character/reputation of the company is relevant to a consideration as to mitigation of penalty (see full discussion of the nature of character and reputation evidence in Melbourne v The Queen 198 CLR 1; WorkCover Authority of NSW (Insp Dubois) v Transfield Pty Limited (unreported, IRC6985 of 1999, 8 November 2000; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000] NSWIRComm15 (published 8 March 2001); WorkCover Authority of New South Wales (Inspector Farrell) v Forgacs Shipyard Pty Ltd [2000] NSWIRComm227 (published 12 October 2001); see also discussion referred to in WorkCover Authority of NSW (Insp Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92).

20 Transfield has had a major influence on infrastructure development especially in New South Wales where it completed the Sydney Harbour Tunnel, the New South Wales Airport Rail Link, and the Northside Storage Tunnel. It has also been involved in such projects as the Melbourne CityLink Roads System and the Brisbane AirTrain Project. It has provided employment to thousands of employees in NSW. The defendant expressed its sincere contrition for the breach and, while it had in place a work method for crane work, concedes this particular definitive task had not been risk assessed.

21 Although this is a large corporation, evidence reveals Mr Belgiorno-Nettis, the Company Chairman, was at the time, at the heart of its activities. I am persuaded the company's drive and control at the time was directly related to the endeavours of Mr Belgiorno-Nettis. Evidence of the good character of a director, being a director who is the controlling mind of the corporation, is admissible as relevant to the likelihood that the company, through the director, made proper admissions and in assessing the credibility of the commitment to safety offered by the director. It can also be relevant to an assessment of the corporate character of the defendant company (see WorkCover Authority of NSW v CT Plumbing Pty Ltd (unreported decision of Fisher P, CT522 of 1991, 16 December 1991)). However, excessive weight cannot be given to the character of such a witness "whose circumstances appear to have been adopted as co-extensive with the circumstances of the defendant company" (see Insp Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992).

22 The defendant company submits its Chairman has long ensured a commitment of the company to safety at its worksites from the Board level down. His endeavours had extended to not only provide work for many but are reflected in significant community activity. He is known as a strong supporter of the visual and performing arts since the early 1960s. He has funded the Biennale in Sydney in support of the development of modern art, has been chairman of the Board of Governors of the Sydney Maritime Museum, donated up to $500,000 for the restoration of the barque James Craig and has given considerable donations to the Art Gallery of New South Wales, the Sydney Symphony Orchestra, the Australian Opera, the Victorian Opera and others. In all these activities he has encouraged the corporation to provide practical support.

23 I find the court can give some positive consideration to the corporate reputation and personal reputation relied upon and find it has some probative force sufficient in my consideration to allow a measure of mitigation of penalty.

24 However, an appropriate penalty in the present case, must be considered in the context of the need for deterrence. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context a consideration of breaches under the Occupational Health and Safety Act, 1983 where it was held by Hungerford J: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. The Full Bench cited with approval Fisher v Samaras in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]) and determined the court, in relation to the question of deterrence, should consider aspects: . . . both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40-43) we would expect such cases to be very rare . . . 25 The attitude of a defendant to issues of workplace safety and the steps taken to improve safety following a breach are relevant to the court's consideration of the specific deterrence element of penalty. The need to encourage a sufficient level of diligence by an offender has been given judicial recognition: Capral Aluminium Limited [at 74-79]; Workcover Authority of NSW (Insp Lyons) v Warman International Ltd (2001) NSW IR Comm62 [at 75-80]. The defendant since the breach, has sold off its steel manufacturing business operating from at Seven Hills, Townsville and Brisbane. It is submitted the element of specific deterrence is not therefore relevant. The defendant, however, still has significant corporate involvement in activities of a heavy duty nature both in New South Wales, other states and overseas. The company employs approximately 900 people throughout Australia and some thousands of persons as its places of work as subcontractors. The company operates an engineering and construction services to the infrastructure, power, process, building and defence industries.

26 The court's consideration related to deterrence therefore brings to the fore for examination the industrial record of the company. Transfield in its operations has been charged with 23 breaches of the Occupational Health and Safety Act, since 1962. In WorkCover Authority of NSW (Insp McMartin) v Transfield Pty Ltd t/as Transfield Maintenance (No 2) [2001] NSWIRComm289 (published 14 November 2001) Hungerford J noted [at 36]: . . the prior convictions of the defendant, particularly the two most recent instances where (the defendant) was subject to fines of $70,000 and $130,000, must be viewed as somewhat negative factors. His Honour then convicted the defendant of two further breaches of the Act each attracting a penalty of $80,000 although it is noted they arose from the same incident and his Honour determined an overall penalty of $160,000 after applying the principles of parity and totality and allowing for a discount for the utilitarian value of pleas. Both parties have revealed three further breaches of the Act are before the court for consideration as to penalty.

27 Having regard to the size and nature of the organisation, its large range of industrial activities and the heavy industrial nature of those activities, Bauer J in Inspector Jones v Transfield Construction (unreported decision, CT1217 of 1996, 28 November 1997 at 10) was able to comment "the record of the company in the past has to be viewed as a reasonable one" (see WorkCover Authority of NSW (Insp McMartin) v Transfield Pty Ltd t/as Transfield Maintenance (No 2) [2001] NSWIRComm289 [at 36]). The court cannot anymore endorse this comment. The community demands rigorous adherence to occupational health and safety standards from its employers. The legislature has expressly reflected the community's demand with the obligations it has imposed on employers through the Occupational Health and Safety Act, 1983. The company proffers, and the court accepts, this corporation's commitment to safe working. That commitment is reflected in a fully documented worksafe procedure. However the industrial record of recent breaches of the Act, the nature of which indicates a gravity to each offence, reveals the need for a much more rigorous implementation of this company's adopted standards for safe working. The recent industrial record is of concern.

28 The observation of Deane J in Channon v The Queen (1978) 20 ALR 1 at 18 is, however, in the circumstances, noted: In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances.

29 In sentencing the court must also have regard to the utilitarian value of an early plea of guilty. This charge was laid on 16 March 2001. A plea of guilty was entered on 23 April 2001. The matter had only one other prior Court mention. In the circumstances, I am persuaded the defendant should have the benefit of the utilitarian value of a recorded early plea of guilty in accordance with the New South Wales Court of Criminal Appeal guideline judgment of R v Thompson, R v Houlton (1999-2000) 49 NSWLR 383; (2000) 115 ACrimR 104. I allow the maximum discount of 25% for the utilitarian value of this plea.

31 I take into account the objective seriousness of the offence and the above subjective features and include the discount allowed in my consideration as to penalty. The defendant is fined in the sum of $140,000 with a moiety to the WorkCover Authority.

33 Costs are to be agreed or assessed with leave to approach the court for consideration as to final orders (see WorkCover Authority of NSW v Develco Projects Pty Ltd [2001] NSWIRComm246 (published 12 October 2001) [at 50]; Insp Taylor v Fletcher International Exports Pty Ltd (No 2) [2001] NSWIRComm228 [at 25] (published 29 August 2001).

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