Consideration
11 In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474)).
12 GRD Minproc was principal contractor at the construction site of the UR-3R Waste Facility at Eastern Creek. It bore the onus for safe working. However, under the Occupational Health and Safety Act 2000, the defendant company Axis Metal Roofing Pty Ltd (Axis) had an absolute obligation to ensure a safe workplace for its employees. Under the contract with the principal contractor GRD Minproc, Axis, the employer of the two employees exposed to the risk to their safety, was also answerable to the principal contractor for all Occupational Health and Safety matters relating to its employees.
13 On 12 July 2004, an Axis employee fell 4.4 metres to a plenum chamber below Fan Room No. 1. He was an indentured apprentice and had worked with the company only six months. As part of its system of work imposed through their Health Safety and Environment Plan (HSE Plan), the principal contractor required them to submit their safety plans for review. While it is asserted the appropriate Axis' Site Specific Safety Plan and OHS&R Management System were in place at the time of the incident, only those documents post-dating the incident have been produced.
14 The activities of the defendant company indicate it was following the system for safe working imposed on contractors on site by the principal contractor and in accordance with the obligations placed on it under the Act.
15 For the purpose of site safety, the activities conducted by the defendant were as follows: on the afternoon of 9 July 2004, before the roofing work was commenced, an inspection of the penetrations in Fan Room No. 1 was conducted by Mr H. Tabone, a director of the defendant family company and active at the worksite. There were a multitude of penetrations in the floor of Fan Room No. 1, each covered by a wire mesh braced with steel bars and the mesh tied onto the reo-bars with tie wire knotted doubly. During the inspection, Mr Tabone asked for some equipment on site to be removed. That was done. In the inspection, Mr Tabone revealed he looked at each mesh cover and was satisfied the site was safe for working.
16 Before work commenced on 12 July 2004, Mr Peter Smits, the leading hand for the defendant company, conducted a further inspection of the penetration covers in Fan Room No. 1. In his inspections, Mr Smits kicked each cover. He also looked at the ties on each penetration cover. His inspection was a safety measure completed in accordance with both the defendant company's and the principle contractor's HSE Plan. There was then a pre-work meeting conducted through Mr Smits on the morning of 12 July 2004 where Mr Riley and the apprentice, Mr Sadik, reviewed their task which was to bolt brackets to "V" shaped Colorbond Aramax roof sheets. Mr Smits, not at that meeting nor at any other time, gave no direct warning as to the risk to safety related to the penetration which risk was identified as a fall through the penetration, 4.4 metres, into a plenum chamber below.
17 Evidence revealed that in the process of manoeuvring one of the roof sheets across the floor, Mr Sadik placed his foot on/against a penetration cover. He had braced himself against the penetration to assist him in pushing one of the long narrow roof sheets across the floor. He therein applied force to the mesh covering on a penetration. Mr Riley was opposite him pulling the sheet to assist in the movement. The mesh cover slipped. Mr Sadik lost his balance and fell down the penetration hole a distance 4.4 metres to the floor below. He suffered a broken arm and has since felt fear.
18 In this circumstance, the risk to safety became reality.
19 The charge for which the defendant is brought before the Court and to which it pleads guilty is "the offence". Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 re-iterated [at 43]:
. . . the penalty is fixed for the offence found to have been proven. It is, therefore, to the offence itself to which attention is to be directed and not . . . the occurrence of the accident and the contribution of other persons for what occurred.