Inspector Piggott v CSR Emoleum Services Pty Ltd.

Inspector Piggott v CSR Emoleum Services Pty Ltd. - [2004] NSWIRComm 129 - NSWIRComm 2003 case summary — Zoe

[18]

12 Mr Johnson's attention was drawn to the document entitled "The requirements for contractors and contracting labour working on the premises CSR Emoleum Road Services", which was in the following terms: CSRE has the responsibility for the safety of all who enter CSRE premises. CSRE also has the responsibility for the environmental peace of all site activity. Therefore contractors are required to allow authorised CSRE employees to inspect, intervene or provide instructions regarding contractor site activities where necessary, where occupational health and safety or environmental issues are involved. These employees may also conduct random inspections to ensure contractor compliance with all relevant occupational health and safety and environment legislation, codes of practice and standards (both for CSRE and external standards). On all such occasions, the contractor will agree to comply with the authorised CSRE employee directive. Failure to do so could result in the direction to stop work or the termination of the contract. In relation to this requirement, Mr Johnson said the responsibility for the safety of those entering CSR Emoleum premises extended to Mr Nolan. He also accepted that his occupational health and safety responsibilities extended to ensure that contractors complied with the document entitled "WI-037A isolation of equipment (lock out/danger tag)". Mr Johnson said that during the contract he had exercised the rights to inspect, intervene or provide instructions regarding contractor activities in the course of the asphalt plant installation. Prior to the accident in early March 1999, he had done so in relation to incidents that were reported to him and he accepted that at the time of the accident he had the authority to intervene with regard to occupational health and safety issues. Under the Site Rules, Mr Johnson was the CSRE nominated representative and he said that in this role he managed the contract and he had responsibility to ensure that contractors met their obligations. He confirmed that the Site Rules for contractors and contract labour working on the site had been developed by himself and Mr Morrison. That document was also used by Mr Johnson as part of the induction of employees at the site. Mr Johnson conducted the majority of induction training, although Mr Morrison did some of that training. During induction, Mr Johnson took employees through the safety booklet and referred to the policy document dealing with the lock out system and danger/out of service tag system. The isolation of equipment document (WI-037A) was contained in an instruction sheet. The document entitled "Requirements for contractors and contract labour working on the premises at CSR Emoleum Road Services" was developed by Mr Johnson and Mr Morrison with the assistance of others. It had been produced for sub-contractors working at the Rosehill site and the document was given to people working on the project including civil contractors.

[19]

13 Mr Morrison confirmed that there were systems in place at the time of the accident to ensure contractors conformed to occupational health and safety requirements. There were a number of systems or controlling factors in operation: there was the contract for the works; CSR Emoleum contractor documents, being a requirement for contractors and contract labour working on the premises of CSR Emoleum Road Services; safety and quality plans; and, the acknowledgement by contractors to follow these requirements. In this case, that acknowledgement was contained in a facsimile signed by Mr Hillier and sent to CSR Emoleum Services before the accident. Mr Morrison said that the defendant monitored how contractors complied with these documents by the use of the management system which incorporated a CSRE nominated representative who liaised with the contractor. Mr Morrison also accepted that the defendant had exercised the right to inspect, intervene and provide instructions regarding contractor activities in the course of the installation of the plant prior to the accident in early March 1999. Mr Morrison had been involved in a number of inspections of the plant accompanying Mr Johnson and on these occasions he would act as an adviser on issues and was requested sometimes to give advice on specific issues. During such inspections, he identified occupational health and safety issues which required corrective action, and he gave examples of dealing with the isolation, guarding and fencing of the recycled asphalt conveyor, signage and consultation over environmental issues. Employees were instructed and counselled on the requirements for wearing the right personal protective equipment and people were instructed to clean up and maintain work areas in a manner which reduced trip hazards. 14 Mr Morrison also stated that Mr Johnson reported to the company on outstanding works, which included reports on continuing occupational health and safety compliance by the contractors and issues involving the safe operation of the plant. Mr Johnson had received reports from Mr Davy and Mr How of JCS on issues of occupational health and safety continuing compliance. In written responses to questions raised by the WorkCover inspector, Mr Morrison said that part of the defendant's ongoing assessment of the capacity of contractors led to the defendant providing, after induction, instruction in relation to safe working practices, particularly dealing with tagging and lock out procedures.

[21]

16 As a result of the previous hearing the following findings were made: (a) on 5 March 1999, at the Rosehill plant, the defendant's undertaking included the provision of the service of managing the contract between CSR Emoleum Road Services and JCS, the control of the works performed by JCS and overall conduct and responsibility for occupational health and safety at the site. (b) the Site Rules and rules for contractors working at the Rosehill plant, as well as induction training for contractors, were produced by Mr Johnson and Mr Morrison: they also conducted induction training for contractors and their employees; (c) the contract with JCS required it to comply with "CSR Emoleum Rosehill occupational health and safety rules", being substantially the rules and practices drawn up by Mr Johnson and Mr Morrison; (d) Mr Davy and Mr How of JCS reported to Mr Johnson, as the nominated representative of the partnership on the site, on issues of occupational health and safety and continuing safety compliance; (e) Mr Johnson managed the contract on behalf of CSRE at the Rosehill upgrade and in that position co-ordinated the contract programme of all people on the project: he monitored contractor compliance with the occupational health and safety rules and reviewed and amended those rules as appropriate. Further, he exercised the right under the Site Rules to inspect, intervene and provide instructions regarding contractor activity. (f) The system of isolation of the conveyor being worked on, the direction for people to stand back and the giving of an all clear before returning power to the conveyor was part of the system, but the method of work on the day in question also involved leaving the cover off conveyor H1 into which Mr Nolan was drawn. It was not to the point that the top of the conveyor had to be opened to clear the blockage, what was relevant to this system of work was that when conveyor H1 was cleared and put back into operation, it was not safe and obviously not safe to continue work with the cover left off that conveyor. Once conveyor H1 was cleared, it was operational. (g) Mr Nolan was sitting on top of conveyor H1 near the opening while work was undertaken on conveyor T1 and had apparently been in that position for a significant period of time. Mr Johnson appeared to have been unaware of Mr Nolan's presence although Mr Nolan had been directly involved in the clearance of conveyor H1. A system of clearance where, in a confined work area, a person intimately involved in the clearance process, such as Mr Johnson, was not aware of the presence of other persons in the work area nor their proximity to open and operational conveyors, was clearly an inadequate and unsafe system; (h) the system was even more unsafe if Mr Johnson had observed Mr Nolan sitting on top of conveyor H1 just in front of the opening of that conveyor. The failure of any other person present to recognise and draw attention to Mr Nolan's position as being potentially dangerous was indicative of the fundamental flaw in the system of work in operation; (i) there was no written method for clearing the conveyor, although this was not an infrequent difficulty and there were otherwise written instructions to the workforce directing their attention to appropriate and safe methods of work. Mr Johnson gave no consideration to replacing the cover on conveyor H1 and took no steps to ensure that the cover was replaced before work commenced on conveyor T1; (j) the system also failed to include an effective head count of those involved in the clearance work and rendered useless the step of shouting "all clear" before a conveyor was returned to operation; (k) the failure of the system was emphasised by the evidence of Mr Jedra, who had "no idea" where Mr Nolan was placed and had no idea who was isolating the conveyors; (l) the procedure used on the day was not in accordance with the isolation and tagging requirements which applied to all employees and contractors on the site. It was part of Mr Johnson's responsibility to ensure compliance with these instructions; (m) Mr Johnson was able to observe, even in the absence of tagging, whether the conveyor was in the "on" or "off" isolation position while working on the conveyors. The system did not appear to require him, especially in the absence of tagging, to check that the isolators were in the "off" position when people were working in and around the conveyor; (n) Mr How and Mr Johnson agreed that there should be an electrician present to isolate the conveyor. The system did not include checking with the electrician or nominating a person who would ensure the conveyors were isolated. If the task was shared, as the evidence suggested, then tagging was a means of ensuring that the isolation was performed and that the people involved could see the tags and so be satisfied the isolation task had been performed; (o) there was confusion as to whether the electrician, Mr Nolan or Mr Clarke was operating the isolator and, in fact, Mr Clarke thought that Mr Jedra had been involved in this task but Mr Jedra denied being so involved; (p) Mr Jedra said that the last thing done was to turn on conveyor H1 to see if it had been cleared and it was likely that when the conveyor was cleared it was not isolated again at the conveyor motor; (q) the evidence demonstrated that the so called system of isolation "was in a shambles". The written system laid down for isolation and tagging was replaced by ad hoc arrangements; (r) when Mr Johnson involved himself in assisting in the task of unblocking the conveyors he was, by his very position, supervising an operation and it was quite natural for those working at the conveyors to look to him for advice and directions. Mr Johnson, on his own evidence, had become involved in the clearing work because of what he regarded as an inadequate system of communication between the conveyor and the control room in what was obviously a dangerous task; (s) a number of those working on this blockage task, including Mr Jedra and Mr How, formed the view that Mr Johnson was in charge of the clearing operation. Mr Johnson did not provide appropriate or effective supervision although that was his role.

[43]

38 In assessing the nature and quality of the risk which was exposed by this accident, it was submitted that the Court was required to look at the actual offence committed by the defendant. This offence fell into the lower end of the medium range category of seriousness of offences for the following reasons: (a) the basic cause of the tragedy was the failure to replace the cover on H1 conveyor prior to attempting to clear the next conveyor; (b) had this been done, it was obvious that other failures alleged, such as isolation, supervision and lack of tagging would have had no effect; (c) Mr Hillier of JCS had organised the crew to go onto the silo and clear the conveyors and put the plant back into production; (d) Mr Hillier accepted that he was in charge of the crew and that Mr Johnson's role was site wide; (e) the defendant, through Mr Johnson, was involved at the relevant time in the communication of instructions, not in the actual clearing of the blockage. Whilst he had the power to stop the works his training and experience in the absence of the instruction manual for the plant limited his ability to make any decision as to the proper method for clearing the blockage. He became involved because of what he regarded as an inadequate system of communication being used at the time; (f) Mr Johnson did not identify the actual risk; (g) there was no intention to start conveyor H1; (h) Mr Johnson did not know of the presence or position of Mr Nolan; (i) there were written instructions to the workforce directing their attention to appropriate and safe methods of work, but none for clearing conveyors no doubt because the blockages were matters for JCS who was to commission the plant and needed to make it blockage free; (j) it was obvious that, if Mr Johnson had identified the risk, he would have done something to obviate it. JCS was in the best position to identify and obviate that risk; (k) the system being used involving the "all clear" call was safe if used on a single conveyor - it was the failure to cover conveyor H1 after it was cleared that made it unsafe; (l) the evidence disclosed the defendant was pro-active insofar as workplace safety was concerned.

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Judgment (57 paragraphs)

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Cases Cited (4)