Prosecutor's evidence
13Mr MJ Moir of counsel, who appeared for the prosecutor, tendered an agreed statement of facts ("ASF") which included annexed supporting documentation, as detailed at paragraph 102 of the ASF. The statement read as follows:
...
THE PARTIES
Multiplus Group Pty Ltd and 17 Kirkham Road Pty Ltd with Director Gao Geng HE known as Gordon GAO
3.Multiplus Group Pty Ltd was registered on 8 January 2007 with Directors Gao Geng He ("Gordon Gao") and Jianbei Liu. Jianbei Liu resigned as a Director on 11 September 2007.
4.17 Kirkham Road Pty Ltd was registered on 7 July 2008 with Directors Gordon Gao and Jeffery Wade. Jeffery Wade resigned as a Director on 14 July 2008.
5.19-21 Kirkham Road Pty Ltd ("19-21 Kirkham Road") was registered on 7 July 2008 with Directors Geoff Gao and Jeffery Wade. Jeffery Wade resigned as a Director on 14 July 2008. Geoff Gao was the brother of Gordon Gao.
6.Multiplus Group Pty Ltd changed name to 17 Kirkham Road Pty Ltd ("17 Kirkham Road") on 18 July 2008. 17 Kirkham Road retained the ACN 123 349 593 originally assigned by ASIC to Multiplus Group Pty Ltd.
7.17 Kirkham Road Pty Ltd changed name to Multiplus Group Pty Ltd ("Multiplus") on 18 July 2008. Multiplus retained the ACN 132 085 824 originally assigned by ASIC to 17 Kirkham Road Pty Ltd.
8.At all material times, Multiplus developed and managed the residential construction of 22 two-storey townhouses ("the project") at 17-21 Kirkham Road Auburn in the State of New South Wales ("the site"), and was a controller of the site. The project had an estimated completion cost of $4.3M. Demolition work for this project commenced at the site in approximately December 2008.
9.At all material times, 17 Kirkham Road had financial control of the site and was the legal owner of the property situated at 17 Kirkham Road Auburn. This property formed part of the site being developed and managed by Multiplus.
10.At all material times, 19-21 Kirkham Road was the legal owner of the properties situated at 19 and 21 Kirkham Road Auburn. This property formed part of the site being developed and managed by Multiplus.
11.At all material times, the persons working on the site did not know about the different companies that were involved in the project. Some of the persons knew about "Multiplus" or "Multiplus Group".
12.Gordon Gao stated that his company Multiplus is the company that "made the decisions to buy materials or make alterations to the plans". Gordon Gao stated in a letter dated 3 December 2009 that Multiplus "is the company managing the construction site" and "17-21 Kirkham Road Pty Ltd has the financial control".
13.At all material times, Gordon Gao resided at 1 Lovell Road, Eastwood in the State of New South Wales, and he controlled all payments relating to the site through his companies, Multiplus and 17 Kirkham Road. These included payments made by the two companies for construction materials, machinery and equipment, and sub-contractors engaged at the site.
14.Gordon Gao regularly visited the site in his capacity as the Director of Multiplus and 17 Kirkham Road, and he discussed safety issues in relation to the site with the Project Manager and the Site Manager. He also gave instructions to the Project Manager (Jackson Cai) and the Site Manager (Martin Shang) about safety and other matters relating to the project.
15.In his capacity as the Director of Multiplus and 17 Kirkham Road, Gordon Gao used at least two different signatures in correspondence and contractual documentation issued in relation to the project.
16.In approximately December 2008, Gordon and Geoff Gao engaged a friend of their father's, Zhong Jie Xie ("Peter Xie"), Director of Austar Construction Pty Ltd ("Austar"), to provide the Builder's licence for the development project and to provide a management team to co-ordinate and oversee the construction at the site.
Austar Construction Pty Ltd with Director Zhong Jie XIE known as Peter XIE
17.At all material times, Austar was an entity who had limited control of the premises, for the construction of the 22 two-storey townhouses at the site. Austar was incorporated on 27 April 2005.
18.At all material times, Peter Xie of 11 Roberts Street, Strathfield in the State of New South Wales was the Director of Austar.
19.Austar was a small building company undertaking two other small constructions at the time, one in Peakhurst and one at Lakemba with little experience in a major development.
20.Austar signed an agreement with "Multiplus Group Pty Ltd" for the supply of management services on 15 December 2008. The agreement, in part, was for Austar to supply a project management team to provide management services for the project, including the management of work carried out by subcontractors.
21.The agreement stated that upon receipt of the occupation certificate from Auburn Council, Austar was to be paid the balance of $180,000 plus GST after the wages for Mr Cai, Mr Shang and the casual labourers had been deducted.
22.The agreement was signed by Peter Xie on behalf of Austar and Gordon Gao on behalf of "Multiplus Group Pty Ltd". Under the name of Multiplus, the agreement also included the Australian Business Number 37 123 349 593, which was the ABN of 17 Kirkham Road.
23.In approximately February 2009, Austar met with Jackson Cai and Yupeng Shang, known in these proceedings as Martin Shang, and Gordon Gao. Mr Cai and Mr Shang held out to Mr Xie that they had the qualifications and experience to provide the management services required at the site. In March and April 2009, Austar and Multiplus entered into agreements to engage the services of Jackson Cai as Project Manager, and Martin Shang as Site Manager. Mr Shang reported to Mr Cai.
24.Mr Xie spent little time on site. Mr Xie visited the site approximately twice a month. Mr Xie was not consulted or informed by the persons acting as the site management team on decisions that affected the site and the site safety, including by Mr Cai and Mr Shang. From time to time, Mr Xie spoke with Gordon Gao about safety issues relating to the site.
Jackson CAI
25.At all material times, Jackson Cai of 4 Harrington Avenue, Carrington in the State of New South Wales was the Project Manager in relation to the site, and was a self-employed person. Alternatively, Mr Cai was a controller of the premises at all material times.
26.Mr Cai signed an agreement with Austar for project management on 2 March 2009. The agreement, in part, was for Mr Cai to monitor and supervise the construction process and to coordinate sub-contractors engaged at the site. The agreement was also signed by Gordon Gao on behalf of Multiplus on 2 March 2009.
27.The agreement stated that upon receipt of the occupation certificate from Auburn Council Mr Cai would receive $65,000 plus GST.
28.Mr Cai commenced work on site on 23 April 2009. He attended the site normally once per week. Prior to the incident, he last attended the site on 19 August 2009.
29.At all material times, Mr Cai held a Building Engineering degree from Shanghai University, China and was partway through a Builder's Course at Hornsby TAFE. He had prior experience in managing construction projects of similar size, including projects at Kogarah Town Square, the Newcastle Harbour Pier and the Hunter Valley Golf and Country Club.
30.Mr Cai's role was not "working at the site", but his duties were "doing office work or doing some organisation for the project", "monitor the project, progress and help Multiplus to organise the contracts".
31.Mr Cai stated that he was employed by Austar at the time of the incident, however this is refuted by Peter Xie.
32.Mr Xie stated that Multiplus would pay Jackson Cai and Austar would receive the balance through its agreement with "Multiplus Group" upon receipt of the occupation certificate from Auburn Council. However, in fact no monies were paid to Austar.
33.Gordon Gao refers to Jackson Cai as a "kind of subcontractor" to Austar. An invoice dated 30 August 2010 from Mr Cai to Multiplus for $65,000 tends to support this proposition. Mr Xie regarded Mr Cai to be a subcontractor to Austar.
34.Mr Cai was remunerated for materials he purchased in relation to the project by Multiplus and 17 Kirkham Road. It does not appear that he received any payment for services rendered by him until after the date of the incident.
35.Mr Cai prepared and signed the contracts between Multiplus and the subcontractors engaged at the site, including Auburn Form Works Pty Ltd and Aleksic Carpentry Pty Ltd. Mr Cai also prepared the agreements between Multiplus, Austar and himself, and Multiplus, Austar and Mr Shang.
36.Mr Cai prepared the Project Safety plan for the site. This plan stated that the estimated completion date of the project was March 2010.
37.Mr Cai consulted with and reported to Gordon Gao, not Peter Xie. Gordon Gao provided instructions to Mr Cai, and attended on Mr Cai weekly to discuss progress and issues with him.
Yupeng SHANG known as Martin SHANG
38.At all material times, Yupeng Shang known as Martin Shang of 11/12 Pearson Street Gladesville in the State of New South Wales was the Site Manager in relation to the project, and was a self-employed person. Alternatively, Mr Shang was a controller of the premises at all material times.
39.Mr Shang signed an agreement with Austar and Multiplus on 5 April 2009 to be paid $600 plus GST per week, and that payment would be made from Multiplus directly. The agreement, in part, was for Mr Shang to assist Mr Cai in managing the project, including monitoring and supervision on site.
40.Mr Shang signed his contract to be the Site Manager on 5 April 2009. He attended the site on a daily basis. He supervised the activities of subcontractors engaged at the site. He consulted with and reported to Jackson Cai about the progress of the project, both over the telephone and when Mr Cai visited the site.
41.At all material times, Mr Shang held a Master of Engineering degree from the University of Sydney and a Contractor's Builder's licence. He had experience working on construction sites of a similar or larger size than the project.
42.Mr Shang received fortnightly cheques from Gordon Gao on behalf of Multiplus.
43.Mr Shang also received payment from 17 Kirkham Road on 9 September 2009.
44.Gordon Gao has stated that Mr Shang was a subcontractor, and has invoices dated between 27 June 2009 and 23 January 2010 submitted for services rendered by Mr Shang.
Aleksic Carpentry Pty Ltd with Director Milivoje ALEKSIC
45.At all material times, Aleksic Carpentry Pty Ltd ("Aleksic Carpentry") was an employer whose undertaking was to supply and install timber framing at the site. Alternatively, Aleksic Carpentry was a controller of the premises at all material times. Aleksic Carpentry was incorporated on 12 May 2009.
46.At all material times, Milivoje Aleksic of 29 Fullerton Circuit, St Helens Park in the State of New South Wales was the Director of Aleksic Carpentry.
47.Aleksic Carpentry signed a contract for the "Supply and Installation of Timber Framing" with Multiplus on 27 July 2009. Mr Cai signed the contract on behalf of Multiplus and Mr Aleksic signed on behalf of his company. Mr Cai was authorised to sign the contract by Gordon Gao. Under the name of Multiplus, the agreement also included the Australian Business Number 37 123 349 593, which was the ABN of 17 Kirkham Road.
48.The agreement stated that Aleksic Carpentry would receive $200,000 plus GST, via agreed instalments, for the completion of the work.
49.Aleksic Carpentry had one full-time employee, Stephen Koutouzis, a third-year apprentice, and used casual employees or subcontractors when required.
50.There is no documentary evidence that Aleksic Carpentry engaged any employees.
51.Mr Aleksic had been present at the site for approximately three weeks prior to the incident.
52.Mr Aleksic's company had five subcontractors, Slavisa Djukic, Branko Kotur, Zeljko Alavanja, Mi Shu Lim, Alen Pupovac and two vocational rehabilitation persons, Dennis Preston and Victor Markovski (the injured person) on site at the time of the incident, who were supplied through another company known as Australian Personnel Management.
53.Mr Markovski and Mr Preston participated in a site visit prior to commencing work on 25 August 2009. Following this, it was arranged that Mr Markovski would attend the site on Mondays and Fridays.
54.Mr Markovski had limited experience on construction sites. He had been on long term unemployment benefits and had not worked since 2007.
Serendipity (WA) Pty Ltd trading as Australian Personnel Management
55.At all material times, Serendipity (WA) Pty Ltd trading as Australian Personnel Management ("APM") was a provider of workplace rehabilitation, employment and psychological services, with offices in the State of New South Wales. APM was incorporated on 20 October 1993.
56.Mr Markovski was a client of APM. In August 2009, APM contacted Mr Aleksic to see if his company was interested in supplementing its labour force by using APM clients on vocational rehabilitation programs.
57.APM took approximately five clients, including Mr Markovski, to the site. Mr Markvoski was introduced to Mr Aleksic during this site visit. Mr Aleksic intended to pay Mr Markovski for his services at the site. However, Mr Markovski was not paid for the work he performed on the day of the incident.
Auburn Formworks NSW Pty Ltd
58.At all material times, Auburn Formworks NSW Pty Ltd ("Auburn Formworks") was a small company which specialised in the installation and removal of formwork on construction sites. Auburn Formworks was incorporated on 17 October 2008.
59.Auburn Formworks signed a contract with Multiplus for the "formwork, steel fixing & concreting" on 20 April 2009. Mr Cai signed this contract on behalf of Multiplus. He was authorised to do so by Gordon Gao. Under the name of Multiplus, the agreement also included the Australian Business Number 37 123 349 593, which was the ABN of 17 Kirkham Road.
60.This contract set out that Auburn Formworks was to "form (and bolt down) all penetrations" and "cover all penetration on completion of the formwork deck" at the site.
61.Auburn Formworks had no employees at the time of the incident involving Mr Markovski. Abdul Hamdan, was one of two shareholders of Auburn Formworks, and he attended the site in the week leading up to the incident.
Background
62.The site has a street frontage of approximately 65 metres and a depth of approximately 50 metres.
63.At the time of the incident, the project had progressed to the erection of some timber frames on a concrete slab located in the north-eastern area of the site, adjacent to Unit 22, approximately 65 metres from the site entrance gate on Kirkham Road. This concrete slab was the ground floor of the townhouses. There was a penetration in the concrete slab, which constituted the exhaust space for the basement car park beneath the concrete. The penetration measured approximately 700 mm x 700 mm. A similar penetration was located approximately 13 metres closer to the front of the construction site.
64.When the incident occurred, the flooring material for the second storey of the townhouses was in the process of being manually lifted by Mr Markovski, Mr Preston and Mr Djukic from the concrete slab ground floor area onto the second storey.
65.In the weeks prior to the incident, Auburn Formworks completed the falsework of the concrete slab, including the timber frame for both penetrations. These timber frames were positioned on the formply surrounding the penetrations and supporting the car park basement area below. The frame sat directly on the formply and no hole was cut in the formply. This resulted in the depth of the penetrations being only the thickness of the concrete slab, plus the height of the hob or collar surrounding the penetration, that is, from the top of the concrete to the formply supporting it from underneath, approximately 300 - 400 mm. The concrete was poured approximately three weeks prior to the incident.
66.Mr Aleksic recalled that on the day of the incident the formply was still beneath the concrete, but the hazard of a drop into the 350-400 mm hole was still present, so a compressed fibro floor sheet was placed over the hole.
67.Mr Djukic, one of the subcontractors engaged at the site, recalls that there had been no cover on the penetration since he had been on site about 1-2 weeks prior to the incident. Mr Djukic says that he assisted Mr Aleksic by placing a sheet of compressed fibro over the penetration a few days before the incident.
68.On 28 August 2009, there was no dedicated secure cover over the penetration. Floor sheeting, either timber and compressed fibro or a combination of both, had been placed over the penetration.
The Incident
69.On Friday 28 August 2009, Mr Markovski started at the site at approximately 6:45 am. He assisted other workers at the site, moving building materials and cleaning the site.
70.Mr Shang left the site due to illness at some point during the morning of 28 August 2009.
71.At approximately 2.30pm that day, Mr Markovski, Mr Dennis Preston and Mr Slavisa Djukic were instructed by Mr Aleksic to pass the floor sheets from the ground floor concrete slab located adjacent to Unit 22 to other persons working for Aleksic Carpentry positioned on the second storey. Mr Markovski and Mr Preston were at one end of the compressed fibro sheet with Mr Djukic at the other end. They lifted the sheet and moved toward the other employees located on the second storey.
72.Mr Markovski apparently stepped forward and either tripped on the surrounding hob of the penetration or stepped directly into the penetration. Mr Markovski fell 3.7 metres onto the concrete floor of the car park basement below and onto some formwork material that was lying on the concrete. He may also have hit the side of the penetration on his descent.
73.Mr Djukic immediately informed Mr Aleksic about Mr Markovski's fall.
74.Mr Aleksic and others then went down into the car park via some internal stairs and found Mr Markovski lying on the ground. He was conscious but not moving. He was bleeding from the mouth and head.
75.Mr Markovski was then placed onto a formply sheet and removed from the car park to an area close to the site gate.
76.Mr Preston rang the emergency number and requested an ambulance. Police, WorkCover and the CFMEU were also notified. Ambulance officers treated and stabilised Mr Markovski at the site before transporting him to Westmead Hospital.
77.Mr Cai and Mr Shang were not on site at the time of the incident.
78.Mr Cai and Mr Shang arrived at approximately 5:40 pm that day.
79.Inspector Hayden inspected the site and took photographs. Inspector Hayden formed the opinion that the site had several serious safety-related issues and served a Prohibition Notice on Mr Cai as Austar's representative on site, effectively stopping any productive work.
Injuries
80.Mr Markovski suffered severe head injuries, including a depressed fracture, a linear fracture and possible undisplaced fracture to his skull. He also suffered a lacerated tongue and severe bruising and tissue damage to the left side of his body from his feet to his head. He underwent surgery at Westmead Hospital to relieve pressure from within the skull caused by a brain haemorrhage.
81.Mr Markovski was discharged from hospital 13 days after the incident.
Steps taken following the Incident
82.Within a few days after the incident, Gordon Gao visited the site to discuss remedial work in response to the Prohibition Notice. He also conducted a meeting at the site with Mr Cai and Mr Shang to discuss safety issues, and he instructed Mr Cai to conduct an investigation into the incident. He also directed Mr Cai to work full-time at the site.
83.Mr Cai produced an incident report on 2 September 2009. This report described the incident in some detail, but did not investigate why there was no secure cover over the penetration. The report bears the signatures of Mr Cai and Mr Aleksic.
84.On 3 September 2009, Inspector Hayden received a facsimile from Austar signed by Peter Xie noting that the incident arose "due to the breakdown of our onsite safety control". Mr Cai stated that he prepared this letter and arranged for Mr Xie to sign it.
Systems of Work Prior to the Incident
85.Austar used a Construction Project Safety Plan, as the Occupational Health and Safety Management Plan for the site. The plan identified Mr Cai as the Project Manager and Mr Shang as Site Manager. The last revision date was 4 September 2009. The previous revision date was 10 May 2009.
86.The plan whilst relatively comprehensive refers to various positions and systems that were not applicable to the site, for example references to "Occupation Health and Safety co-ordinator", "2 way radios" and "site shed", none of which existed.
87.The plan also referred to the adequate provision of PPE at the site, however Mr Markovski was not wearing a helmet, gloves or proper boots on the day of the incident.
88.Aleksic Carpentry used a Safe Work Method Statement ("SWMS") which identified "Erect temporary handrail at edge of penetration" as a control measure to be implemented. The SWMS was signed by Mr Aleksic on 10 August 2009 and by Mr Shang on 17 August 2009. Mr Cai also signed the SWMS on behalf of Austar.
Site Induction and Recording
89.The site induction consisted of completion of a form. Not all persons on site completed these forms. Mr Markovski did not complete a site induction.
90.The site induction forms were in English. Mr Hamdan could not read English.
91.No system was in place to record planned or actual events. Mr Shang did not utilise a daily attendance sheet, so no record of who was on site on any particular day can be ascertained.
92.No emergency procedures were established for the site.
93.No hazard reporting procedure was established
Risk Assessment
94.The Project Safety Plan refers to an "Ongoing Risk Analysis". The date that this analysis was conducted by Mr Cai and Mr Shang is shown as "22 February 2004".
95.If the analysis provided was implemented and followed, it would have addressed and controlled the numerous hazards identified after the incident. These hazards include falling from heights, lack of handrails, access and egress to the concrete area, slips, trips and falls, hazardous substances, and falling of personnel and materials through penetrations.
96.The plan identifies Mr Cai as being responsible for the implementation of "an effective Health & Safety System", "Monthly Safety Report" and "Site Registers". There is no record of any such reports or registers being kept in relation to the site prior to the incident.
Subcontractors Requirements
97.Subcontractors provided Safe Work Method Statements, but they were not followed nor were they used by site management, including Mr Cai and Mr Shang, to monitor the subcontractor's work.
98.Site management, including Mr Cai and Mr Shang, did not ensure that all subcontractors complied with their workers' compensation obligations, by not ensuring that the Subcontractors Statement for workers' compensation were provided.
99.There is no record of consultation or involvement of any subcontractors in safety walks or discussions.
Instruction
100.No consultation was established and there appears to be no evidence of regular or comprehensive consultation, even via Toolbox Talks. Toolbox Talk sheets were provided, but those prior to the incident have no subject matter and only one or two names as persons in attendance.
101.There was no Toolbox Talk on the day of the incident.
The following supporting documentation is annexed:
a)Colour photographs taken by Inspector Darren Hayden on 28 August 2009;
b)Colour photographs taken by Inspector Jim Alison on 11 September 2009;
c)Factual Inspection Report of Inspector Darren Hayden dated 10 September 2009;
d)Austar Constructions Project Safety Plan dated 4 September 2009;
e)Contract between Austar Constructions Pty Ltd and Multiplus Group Pty Ltd dated 15 December 2008 and signed 18 December 2008;
f)Subcontractor agreement between Austar Constructions Pty Ltd, Jackson Cai and Multiplus Pty Ltd dated 2 March 2009;
g)Subcontractor agreement between Austar Constructions Pty Ltd, Martin Shang and Multiplus Pty Ltd dated 5 April 2009;
h)Site induction training records for various workers signed by Martin Shang and dated between March-October 2012;
i)Improvement Notice 7-187752 addressed to Austar Constructions Pty Ltd dated 31 August 2009, served to Jackson Cai and copied to Martin Shang;
j)Facsimile correspondence from Austar Constructions to Inspector Hayden dated 3 September 2009;
k)Prior convictions certificate for Austar Constructions Pty Ltd.