Inspector Walker v Great Lakes Community Resources Incorporated t-as Workplace Services

Industrial Relations Commission (NSW)|1994-02-25|Before: Kavanagh J, Schmidt J

CITATION: Inspector Walker v Great Lakes Community Resources Incorporated t-as Workplace Services [2010] NSWIRComm 182

PARTIES: Inpector Walker (Prosecutor) Great Lakes Community Resources Incorporated t/as Workplace Services (Defendant)

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 by defendant - guilty plea - injury to employee - failure to provide safe system of work for particular task - task not risk assessed - failure to provide general training and instruction - failure to provide adequate supervision of task - failure to recognise poor condition of machinery - foreseeability a factor - gravity of the potential risk - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - remorse shown and contrition expressed - evidence of ongoing corporate commitment to safe working - penalty

Crimes (Sentencing Procedure) Act 1999 s 21A,s 22,s 23,s 34 LEGISLATION CITED: Fines Act 1996 s 6 Occupational Health and Safety Act 2000 s 8(1)

Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 432 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (Industrial Court of NSW, Schmidt J, 25 February 1994, unreported)

HEARING DATES: 22 November 2010, 2 December 2010 EXTEMPORE JUDGMENT DATE: 2 December 2010

Mr C Magee of counsel WorkCover Authority of NSW LEGAL REPRESENTATIVES: Mr R A Hewson of counsel Leanne White, Solicitor & Conveyancer

INSPECTOR JOANNE WALKER v GREAT LAKES COMMUNITY RESOURCES INCORPORATED t/as WORKPLACE SERVICES

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

1 HER HONOUR: This is a prosecution under s 8(1) of the Occupational Health and Safety Act 2000 brought by Inspector Joanne Walker of the WorkCover Authority of New South Wales against Great Lakes Community Resources Incorporated, trading as Workplace Services. 2 It is alleged the defendant, on 30 April 2008, contravened s 8(1) of the Act in that it failed to: by its acts or omissions as particularised below, ensure that the defendant's employees, and in particular Robert Wayne Minett, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work contrary to section 8(1) of the Occupational Health and Safety Act 2000 .

In particular: (a) The risk of injury to employees of being struck or crushed by loads transported by moving forklifts whilst performing work at the premises, which were operated by Kemp Australia Pty Ltd, trading as 'Master Masonry' ('the host employer').

The particulars of the acts or omissions in failing to eliminate the risk are that:

(a) The defendant failed to undertake a comprehensive workplace assessment for the premises to ensure that safe systems of work were in place for the work to be performed by its employees at the premises and in particular the defendant failed to ensure that the 'host employer': (i) had a system to ensure its employees were properly inducted and trained in the tasks to be performed at the premises; (ii) had in place a Safe Work Procedure for the operation of forklifts which addressed the issue of forklift traffic management in the plant; (iii) had in place a pedestrian/forklift management plan for the plant; (iv) had in place a system requiring that forklifts were not to be driven when the driver/operator's vision was obscured or impaired; (v) had in place a system that required that an observer was present and available to direct the driver of the forklift when vision was impaired by the load; (vii) had in place a system that restricted pedestrian access to the loading/unloading area at the premises where racks of bricks and pavers were being transported by forklift; and (vii) had implemented additional signage and marked pedestrian exclusion zones; (viii) had a system in place that ensured that the Columbia Rack Conveyor loader and unloader could not be operated whilst maintenance and repairs were being undertaken.

(b) The defendant failed to provide adequate instruction, information, training and supervision to forklift drivers and others working at the premises so as to ensure that people were not at risk of being struck by moving forklifts at the premises, and in particular the defendant failed to: (i) ensure that its employees, in particular Robert Minett were inducted at the premises prior to work commencing; (ii) provide information regarding the safe movement of racks of bricks and pavers by forklift at the premises; (iii) provide training as to the safe operation of forklifts around the premises; (iv) provide instruction that forklifts were not to be operated without an observer when the driver/operator's vision was obscured or impaired (v) provide training in respect to the requirement to maintain a safe distance between workers and forklifts at all times; (vi) provide information regarding the safety signage and the exclusion zone in front of the rack conveyor loader/unloader; (vii) supervise its employees to ensure that they were operating the forklift in a safe manner, specifically loading and unloading the forklift; (viii) supervise its employees who were operating forklifts without a 'National Certificate of Competency' to ensure that they were being directly supervised or had obtained sufficient competency to require a lesser degree of supervision whilst operating a forklift;

(c) The defendant failed to undertake a risk assessment that identified and considered the means of controlling the risk associated with the operation of unloading and loading forklifts and in particular the corporation failed to:

(i) identify and consider the risk of operating the forklift whilst loaded to a height which impaired the vision of the driver; (ii) identify and consider the risk of pedestrian traffic in areas where forklifts were operating; (d) As a result of the defendant's failures there was a risk of injury to employees present at the premises of being struck by a moving forklifts.

(e) The injuries sustained by Robert Wayne Minett were a manifestation of that risk. 3 The defendant pleads guilty to the charge. 4 Mr Colin Magee of counsel appeared for the prosecution and Mr Robert Hewson of counsel appeared for the defendant. The prosecutor relied upon an agreed statement of facts, photographs, factual inspection report, a prior conviction statement and put before me for assistance the decision of the Chief Industrial Magistrate of 8 March 2007. 5 The defendant relied upon two affidavits, one of Mr John Wayne Weate sworn 17 November 2010 (including attachments), Executive Officer of the Great Lakes Community Resources Incorporated and the other of Ms Lynne Alchin, Manager of Workplace Services Labour Hire, the latter being the arm of the defendant corporation to which this prosecution is directed. 6 There was tendered an Agreed Statement of Facts outlining the circumstances on the site leading up to the alleged breach by the defendant corporation and the state of the site after the incident which relevantly reads: 3. At all material times, Workplace Services carried on business in the State of New South Wales as a community based employment agency. 4. At all material times Workplace Services employed Robert Minett, Mathew Gilfillan, Sharon Dudman and William Chapman. 5. At all material times the Kemp Australia Pty Ltd trading as Master Masonry ("Master Masonry") was a body corporate and entitled to be prosecuted by its corporate name and style. 6. Master Masonry carried on business in the State of New South Wales manufacturing concrete building products. 7. In early 2000, Master Masonry entered into an agreement with Workplace Services for the supply of labour. 8. Robert Minett registered for employment with Workplace Services in February 2000. 9. In or about July 2000, Robert Minett was provided with a placement by Workplace Service to Master Masonry at its Taree Plant, as a plant and forklift operator 10. At all material times Kenneth Kemp was a director of Kemp Australia Pty Ltd trading as Master Masonry and was appointed on 18 December 1991. 11. At all material times Master Masonry was an employer and employed Peter Settle, Alan Carter and Stephen Bradford. 12. Robert Minett continued to work at Master Masonry's Taree Plant, as a plant and forklift operator, whilst still an employee of Workplace Services until August 2006. 13. In August 2006, Master Masonry commenced to operate from a second plant located at 18 Camfield Drive, Heatherbrae ("the premises"). 14. In August 2006, Robert Minett, whilst still an employee of Workplace Services, was transferred to the Master Masonry Plant located at the premises. 15. Robert Minett commenced at Master Masonry's Heatherbrae Plant approximately three weeks prior to production starting at the premises. 16. Robert Minett had been promoted by Master Masonry to the position of Production Supervisor and Safety Officer of the Master Masonry Plant at the premises.

The Columbia Rack Conveyor 17. Master Masonry owned a Columbia Rack Conveyor loader and unloader Model number 334-89-1 serial number M9-69-32 ("Columbia Rack Conveyor") at the Premises. 18. The Columbia Rack was installed in a concrete block making system which permitted the full automation of loading green blocks for transfer to a curing kiln and the unloading of cured blocks for transfer to other system handling equipment. 19. The Columbia Rack Conveyor comprised a rack loader which transferred pallets carrying concrete blocks from the conveyor, a rack unloader that transferred cured pallet loads to a pallet return conveyor, and a rack conveyor that accepts and incrementally aligns curing racks with the loader and unloader stations. Racks were then transported to and from the kilns by forklift truck.

Incident 20. On 30 April 2008, Robert Minett commenced work at approximately 5 am and was responsible for the operation of the block machine, the supervision of workers on site and manufacturing activities. 21. That day Master Masonry were manufacturing concrete blocks and cubing bevel pavers that had been produced and placed in the kiln overnight. These pavers were on plates within the racks that were being loaded onto the Columbia Rack conveyor. 22. Robert Minett was working with Patrick Buman, Steven Maunder and William Chapman at the cuber side of the block plant which is located on the western side of the plant at the rear of the Columbia Rack conveyor. Robert Minett was operating the block machine and the others were in the process of unloading and flipping pavers by hand. 23. Around 7.30am on 30 April 2008, Robert Minett heard a noise coming from the guard on the left hand side at the end of the Columbia Rack conveyor. He attended the Columbia Rack conveyor to investigate the source of the noise. On inspection Robert Minett discovered that the guard had been bent out of shape and was consequently coming into contact with the conveyor chain as it was going through its cycle. 24. Robert Minett decided that he would attend to the repair of the guard to prevent it from coming into contact with the conveyor chain as it was going through its cycle. 25. Prior to commencing the repair works Robert Minett did not isolate the Columbia Rack conveyor or notify anyone, including Matthew Gilfillian, that he was going over to the Columbia Rack conveyor for the purpose of undertaking repairs on the guard. 26. The guard was positioned at the end of the Columbia Rack conveyor loading area, on the left hand side over the tail pulley. It was adjacent to the area of the rack conveyor where the racks of cured pavers where loaded by forklift on to the conveyor. 27. At around 7.30 am on 30 April 2008, Matthew Gilfillian was operating the forklift to transfer racks of cured pavers from the kilns to the rack conveyor and strapping cubed pallets and then transferring the pallets to the storage area outside the block plant. The kilns are located approximately eight metres away from the Columbia Rack conveyor. 28. Prior to the incident, Matthew Gilfillian transported a rack of pavers over to the Columbia Rack conveyor. However, as the conveyor was full Matthew Gilfillian placed the rack of pavers on the ground in front of the rack conveyor in preparation for loading it later when it was empty. 29. Matthew Gilfillian left the conveyor and went over to the strapping area to strap a pallet of cubed pavers. 30. Whilst undertaking the pallet strapping Matthew Gilfillian looked over toward the Columbia Rack conveyor and observed that the conveyor was moving, creating space for the rack of pavers that he have previously positioned in front of the conveyor. 31. Robert Minett commenced to repair the guard, in doing so he placed himself in between the rack of pavers that Matthew Gilfillian had previously positioned on the ground in front of the Columbia Rack conveyor and the guard of the conveyor. 32. Matthew Gilfillian left the strapping area to get the forklift. He drove the forklift back to the Columbia Rack conveyor area, picked up the rack of cured pavers that he had previously placed in front of the rack conveyor. He then moved the rack of pavers forward and commenced positioning the rack of pavers onto the Columbia Rack conveyor. 33. Due to the height and position of the rack of pavers, visibility from the forklift was limited. 34. Matthew Gilfillan was not aware that Robert Minett was undertaking the task of repairing the tail roller guard of the Columbia Rack conveyor, at the time he commenced to load the rack of pavers onto the rack conveyor. 35. As the forklift moved the rack of pavers forward to position them onto the Columbia Rack conveyor, Robert Minett was struck by the rack of pavers on the forklift and pinned and crushed between the rack conveyor and the rack of pavers. The approximate weight of the rack of pavers was 3.5 tonnes. 36. As Matthew Gilfillan was performing this task he heard another workmate yelling at him to reverse the forklift. He immediately did so, placing the rack of pavers on the ground. He then noticed Robert Minett lying on top of the Columbia Rack conveyor. 37. Ambulance officers were called to the scene and Robert Minett was conveyed to John hunter hospital where he was treated for crush injuries to his abdomen, including lacerated liver and fractured vertebrae.

Systems of work prior to the incident - Master Masonry 38. Prior to the incident the usual system of work was for forklift operators to place a rack of pavers on the ground in front of the rack conveyor before loading the racks onto the conveyor. This system of work was not documented nor was any formal risk assessment carried out. 39. Prior to the incident pedestrians could access the Columbia Rack conveyor while forklift activities were taking place. Master Masonry had not instructed workers at the site not to enter areas where forklifts were being operated. 40. There were some warning signs at Master Masonry's premises. There was also a worn, partially visible yellow line on the ground approximately one metre across from the rack conveyor loader/unloader area. The previous owners of the premises had installed the signage and line marking. Master Masonry had no system in place for re-marking areas to restrict pedestrian access. 41. There was no formal system in place for assessing OHS risks at the Master Masonry premises. Nor was there a system in place for maintenance of plant and equipment, and maintenance was primarily conducted as a result of observation or breakdown. 42. Prior to the incident Master Masonry had a safe working procedure for the operation of the forklift. The safe work procedure was formulated at the Taree site and Robert Minett had been trained in the procedure in 2000. Matthew Gilfillan had not been trained in the safe work procedure, according to his training records. The safe work procedure was limited and general, and did not contain information relating to a traffic management plan to address risks associated with operating a forklift at the premises. 43. Prior to the incident Master Masonry had a documented lockout system in place, including details of isolation required for undertaking adjustment, maintenance and servicing on plant not covered by other specific operating procedures. Terry Lorenz, former leading hand at the Taree site, had trained Robert Minett in this system in 2004, with a refresher in 2005. 44. Prior to the incident Master Masonry had a number of documented systems in place relating to conveyor isolation, lockout and tagging and procedures for the rack conveyor and rack loader/unloader. These specify that maintenance and repairs should only be performed when the machine is turned off and locked out, and not undertaken whilst the machine was operating. 45. At the date of the incident Robert Minett was the supervisor at the premises and was responsible for supervision of workers, inducting new workers, training workers in safe work procedure's, supervising forklift operators on logbooks, operating the block machine and supervising overall production activities at the premises. However, Master Masonry had not provided Robert Minett with information, instruction or training in relation to his role and there was no written job description. 46. The system for induction and training utilised by Master Masonry covered a number of safe work procedures for operation of various items of plant and equipment. Workers including Matthew Gilfillan and Robert Minett were taken to an item of plant/machinery showed how to operate it, given a copy of a safe work procedure to read, monitored for a period of time, and then asked to sign a company safety pledge. 47. Robert Minett commenced at Master Masonry Heatherbrae approximately three weeks prior to production starting. As such, when production commenced Robert Minett was not provided with induction in relation to the plants operation. 48. Robert Minett provided Matthew Gilfillan with site induction at the premises, including showing Matthew Gilfillan how to place and remove racks onto the rack conveyor. Robert Minett did not instruct Matthew Gilfillan of the risks associated with workers being trapped between the forklift and the rack conveyor, nor was any training or instruction provided in relation to the obstructed vision of forklift operators when a rack was on the forklift. 49. Training and induction records were kept at Master Masonry premises, and Workplace Services representatives were able to access the records if required.

Systems of work prior to the incident - Workplace Services 50. Consultation between Master Masonry and Workplace Services was ad hoc. There were only two OHS meeting held at the Master Masonry Heatherbrae site prior to the incident and Workplace Services representatives were not aware of the meetings and did not attend. 51. Workplace Services conducted an informal worksite assessment of the Heatherbrae site that consisted of Timothy Kennedy, Manager of Workplace Services walking around the premises. The worksite assessment was not documented and it is unclear what, if any risks were identified and if any corrective action was taken. 52. Workplace Services did not have a system in place to monitor and ensure trainee forklift drivers placed at Master Masonry completed their logbooks. 53. Workplace Services provided generic induction training, however site specific training was not undertaken when Master Masonry moved from Taree to the Heatherbrae site. 54. Workplace Services undertook ad hoc site visits at the Heatherbrae site. Site visits were less frequent at Heatherbrae than they had been when Master Masonry was located at Taree due to the travel time and distance. 55. Workplace Services depended on phone conversations and a few site visits to ensure OHS requirements were being met. These conversations were informal and depended on Master Masonry advising Workplace Service of its systems. As a result, Workplace Services did not ascertain the existence of safe work procedures for work undertaken at the site and in particular in respect of the operation of forklifts and the Columbia Rack Conveyor loader. 56. Site visits were meant to monitor the workplace and to allow workers a chance to consult with Workplace Services. 57. Workplace Services completed a 'Labour Hire Site Checklist' during site visits, which covered signage, guarding, plant maintenance, supervision and PPE. 58. Prior to the incident Workplace Services had completed only four site checklists for the Heatherbrae site. 59. Matthew Gilfillan was an uncertificated trainee forklift operator and maintained a training logbook. Robert Minett was the person nominated to supervise trainee forklift operators and was the only certificated operator on site at the time of the incident.

Investigation of the incident 60. On 6 May 2008, Inspector Nathan Hamilton attended the site and made observations contained in a Factual Inspection Report dated 7 August 2008 which is annexed and marked ' A '. 61. On 6 May 2008, whilst at the site Inspector Hamilton took a number of photographs which are annexed and marked 'B '. 62. The defendant cooperated with WorkCover throughout it's investigation.

Systems after the incident 63. The day after the incident, 1st May 2008, Master Masonry Heatherbrae held a toolbox safety meeting with workers on site to discuss the incident and also initiated an internal investigation of the incident, which was completed on 5th May 2008. 64. Master Masonry carried out a risk assessment on the guard covering the tail roller on the rack conveyor loader/unloader and as a result a new guard was fabricated out of a more rigid 5mm plate. 65. A domed mirror was installed above the loading area of the rack conveyor to provide forklift operators with a clear view of the loading area on the rack conveyor. 66. A forklift /pedestrian traffic management plan was implemented following the incident to minimise the risk of a similar type of incident recurring. 67. New signage and clearly marked exclusion zones for pedestrians and forklift operators were implemented. 68. Following the incident Master Masonry in consultation with workers on site developed a procedure for forklift operators in relation to the rack conveyor loader/unloader. The procedure outlines that no pedestrian traffic is permitted inside marked areas between the kilns and the rack conveyor when the plant is in operation. 69. Master Masonry engaged the services of an external consultant to carry out an audit of the worksite with the aim of assessing the effectiveness of OHS management systems and processes in use. 70. Workplace Services issued all employees engaged in forklift operations at the Master Masonry Heatherbrae site with new training logbooks and additional instructions on the correct procedure for filling out the logbooks and also the absolute necessity of gaining the supervisor's signature for each entry in the logbook at the time of each new entry. 71. Trainee forklift operators were also advised that they are not to undertake forklift operations unless a competent person supervises them. Workplace Services also sought to accelerate their workers towards gaining their forklift licence as they realised as a result of the incident that they had not been actively monitoring the progression of people towards gaining their forklift certification.

The Defendant's Criminal History 72. On 8 March 2007, the defendant was convicted of an offence pursuant to section 8(1) the Occupational Health and Safety Act 1983 in the Chief Industrial Magistrate's Court of New South Wales. The defendant received a penalty of $15,000.00 for this offence. A copy of the judgment is annexed and marked 'C'.

Relevant Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with s 21A, s 22, s 23 and s 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9 Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such element ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 10 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999.

Consideration 11 In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474): 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" ... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: [32] In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 12 Mr Minett was working with others at a plant making cement blocks. Located on the western side of the plant was a moveable conveyor rack. Mr Minett heard a noise coming from the guard on the left-hand side of the conveyor. He went towards the conveyor to investigate the source of the noise. He discovered the guard had been bent out of shape and was, therefore, coming into contact with the conveyor chain. He attempted to repair the guard. While he was doing the repair, Mr Matthew Gilfillian was operating a forklift to transfer concrete pavers in racks towards the conveyor. He drove the forklift towards the conveyor belt. Because of the height and position of the pavers in racks on his forklift, he had no sight line and he placed the pavers down in front of the conveyor belt thereby pinning and crushing Mr Minett between the conveyor and the rack of pavers. Mr Minett suffered shock and distress and some injuries. 13 The primary failure on the part of the defendant was a failure to undertake a comprehensive workplace assessment of the premises. The defendant was a labour hire firm. The host employer had some workplace safety systems in place but I have sighted photographs of the premises. The equipment was very old. The forklift was operating under an unsafe system of work because the driver did not have proper sight lines, given the height of the racks holding the pavers. The condition of the conveyor belt itself is brought into question. There is an obligation under s 8(1) of the Act for the labour hire firm, the employer, to ensure safe working. The responsibility is, therefore, both remedial and preventative in nature. Because of the failure to properly ensure safe working procedures Mr Minett was placed at risk. 14 That defendant is a labour hire organisation which pays its labourers directly and places them in low skilled jobs. It operates under the ambit of a comprehensive benevolent organisation called Great Lakes Community Resources. One of its resource arms, amongst many, is its Work Place Services. This defendant attends to placing persons in great need who come from difficult personal circumstances (for example, reformed alcoholics; ex-criminals) into low paying positions generally labouring positions. It does great work but as a labour hire company it cannot escape liability merely because the client to whom it hired out an employee is also under the duty to ensure a safe working environment. 15 The host employer in this case has gone into liquidation but there is a responsibility borne by the labour hire firm to take positive steps to ensure that its employees are sent out to work to work places which have safe working procedures in place. Further, the employer must ensure the employee is trained to follow those safe working systems (see Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng (1999) 90 IR 432). 16 A labour hire firm must ever be vigilant in ensuring, if it adopts a host employer's system of work, that it continually assesses those systems and is satisfied they provide safe working for its employees. In this case, the defendant depended on telephone conversations and a few site visits to ensure occupational health and safety requirements were met. There was an informality to these inquiries. There must be a formal procedure adopted in assessing not only a safe work site but safe working procedures for defined, particular tasks. 17 I find this was a serious offence. It is a more serious offence if there was a foreseeability element. I have made comment on photographs showing the state of the machinery at this work site. The incident itself revealed a combination of two defects, that is, a very unreliable conveyor belt and a system not allowing sight lines for a forklift operator. In that combined risk there was a foreseeability for this offence which makes it all the more serious. 18 The availability of simple and straight forward steps to remedy the defects in the system is also a consideration in the objective seriousness of the offence (WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (Industrial Court of NSW, Schmidt J, 25 February 1994, unreported). There were obvious steps that could have been taken which either singly or in combination would have eliminated or reduced the risk. Those steps, I am now persuaded (from the second affidavit placed before me), have either singly or in combination been addressed and would have eliminated or reduced the risk. 19 Some criticism has been made of the new systems put in place by the defendant as only the outline of the systems, not the detail, have been placed before me. Not all of the documents before me have identified procedures for specific tasks which are to be followed. However, I am satisfied the necessary steps have now been implemented to ensure safe working on the various sites to which the defendant sends its employees. 20 Such activity after the incident, however, is indicative of the fact that a system of work for this type of operation was readily available and practical and was not rigorously followed. 21 The gravity of the potential risk flowing from a breach is relevant as a measure of gravity of the offence and the culpability of the defendant (Lawrence Diecasting Limited and WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). The potential risk to safety was not, in this case, a remote possibility. There was a high risk to the safety of any employee being required both to attend upon a malfunctioning of the conveyor belt at the same time as large loads were being moved in his direction. 22 The principles of general and specific deterrence are also relevant to the sentencing consideration. The approach to be taken has been considered in some detail in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71]-[77] which approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: [74] ... 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 Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 23 The defendant company continues to operate and it continues to operate as Work Place Services. The evidence revealed that given the host corporation has now gone into liquidation, its ability to place the same number of persons has been affected. Nonetheless, it must continue to ensure that the employees it places, be it in large or small numbers, are placed into a safe working environment. Therefore, the element of specific deterrence is relevant. An element of general deterrence is relevant to ensure that once again labour firms by constant vigilance ensure host corporations take all practical precautions to ensure workplace safety. 24 In fixing the appropriate penalty in the present case, it is necessary to consider some subjective features. Regard must be had to general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]: [56] ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c)

Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 25 The defendant is entitled to have taken into account its plea of guilty, as mitigating penalty. It is appropriate to apply the guideline judgment in R v Thomson and Houlton. The defendant pleaded guilty at the first available opportunity after the Application for Order was amended. The utilitarian value of the defendant's plea is at the higher end of the scale of discount. I allow a 25 percent discount. 26 Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides that "remorse" may be taken into account as a mitigating fact if and only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 27 In Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201, Boland J, President said at [62]: [62] A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). 28 Both Mr Weate and Ms Alchin have expressed remorse in relation to this incident. The employee of the defendant was cared for in an appropriate way. He returned to work on suitable duties and was finally able to return to full time duties. The defendant has expressed contrition for the offence and it has made reparation for the injuries, loss and damage it caused. 29 There has been a prior offence by the same arm of this corporation: its workplace hire operation. The maximum penalty is therefore $825,000, as this is the defendant's second offence under the Act. 30 Whilst the defendant no longer supplies labour to the host employer and therefore its labour operation, as a result, has been reduced, it still operates in the labour hire business. The defendant is a non profit organisation. It has a turnover of funds of some $4.5 million but they are what in the trade is called "tied grants", so monies granted are for the sole expenditure under already identified projects. The defendant operates as a benevolent organisation. I accept it has very little access to free funds. It asks for consideration under s 6 of the Fines Act 1996. 31 This is a different consideration from that considered by Haylen J in WorkCover Authority of New South Wales (Inspector Searle) v Western Area Health Service [2001] NSWIRComm 301 where his Honour was considering a breach by the State Public Health Authority under the Act. The defendant corporation is a benevolent organisation and on the evidence before me only one arm, a waste disposal operation, can return to it a profit. The organisation has operated under a financial loss in the last two financial years. The Court will to take the defendant's financial circumstances into consideration for the purpose of s 6 of the Fines Act, 1996. 32 I accept there should be mitigation of penalty given its financial circumstances. However, the fact that it is a benevolent organisation cannot remove from it that the Occupational Health and Safety Act 2000 requires rigorous attention to safe working and weight must be given to the objective seriousness of the offence. 33 In all the circumstances, I find the defendant guilty. 34 For all the above reasons, I make the following orders: 1. In Matter No IRC 323 of 2010, I find the defendant guilty of the offence as charged.

The defendant is fined in the sum of $20,000 with a moiety to WorkCover Authority of New South Wales.

The defendant to pay the costs of the Prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

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.

[2001] NSWIRComm 301

At a glance

Court

Decision date

Before

Source

Judgment (32 paragraphs)

Parties

Cases Cited (19)