Legge v Coffey Engineering Pty Ltd - [2001] NSWIRComm 319 - NSWIRComm 2001 case summary — Zoe

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Legge v Coffey Engineering Pty Ltd

[2001] NSWIRComm 319

Industrial Relations Commission (NSW)|2001-07-01|Before: Walton J, Glynn J, Hungerford J, Ms P, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2001-07-01

Before

Walton J, Glynn J, Hungerford J, Ms P, Mr J

Source

Original judgment source is linked above.

Judgment (124 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Legge v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319 APPELLANT Inspector Patrick Legge PARTIES : RESPONDENT Coffey Engineering Pty Limited FILE NUMBER: IRC 5379 of 2000 CORAM: Walton J Vice-President; Glynn J; Hungerford J Occupational Health and Safety - Appeal against dismissal of charge - Prosecution for failure to ensure health, safety and welfare at work of employee - Labour hire company employed injured worker to perform work at premises of client - Whether findings of fact at first instance were reasonably open - Nature of obligation to ensure safety - Special obligation of a labour hire company - Causal nexus of employer with alleged detriments to safety - Statutory defence - Offence found proven - Appeal upheld. CATCHWORDS : Appeal - Against acquittal for offence under occupational health and safety legislation - Whether leave to appeal required - Nature of appeal - Alleged errors of law and fact - Whether findings of fact at first instance reasonably open - Duty of appellate court - Leave to appeal granted - Offence found proven - Acquittal set aside - Appeal upheld. LEGISLATION CITED : Industrial Relations Act 1996 s 187 s 188 s 197 s 197A Pt 7 of Ch 4 Occupational Health and Safety Act 1983 s 15(1) s 18 s 53 Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 Coffey Engineering Pty Ltd v Legge (2001) 105 IR 234 Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Legge v Coffey Engineering Pty Ltd (No 1) (2000) 103 IR 282 London Bank of Australia Ltd, The v Kendall (1920) 28 CLR 401 Shannon v Comalco Aluminium Ltd [1986] 19 IR 358 Solicitors (State) Award (No 3), Re (1996) 72 IR 225 CASES CITED : Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Rail Authority of New South Wales v Dawson [1990] 37 IR 110 WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374 WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 2) (1997) 89 IR 383 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 WorkCover Authority of New South Wales (Inspector Dubois) v Industry Staffing Services Pty Ltd, t/as Action Workforce (1999) 89 IR 430 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector May) v Swift Placements Pty Ltd (No 2) (1999) 96 IR 24 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd (No 1) [2001] NSWIRComm 223 HEARING DATES: 04/05/2001 DATE OF JUDGMENT: 12/07/2001

[39]

16 The commencing point of her Worship's decision was the proposition that s 15(1) in creating the subject offence, notwithstanding the "heavy duty" it cast on an employer, "does not amount to strict liability ... there must be some nexus between a safety incident and the employer's failure to meet its obligations". Grounds (ii) and (iii) referred to this aspect and they may conveniently be dealt with together. This requires attention to the law as it has developed in the authorities as to the nature and scope of the offence created by the section. In the seminal decision in Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at p 470, Watson J spoke of the statutory duty on an employer created by s 15(1) as being "to ensure", that is, "of guaranteeing, securing or making certain" the health, safety and welfare at work of all of the employer's employees. As a Full Bench of the former Industrial Commission in Court Session said in Shannon v Comalco Aluminium Ltd [1986] 19 IR 358 at p 359, the section "is a general provision establishing a far reaching obligation upon the employer and imposing a duty in absolute terms". An extensive review of the nature of the liability created by s 15(1) was recently conducted by the Full Bench in Drake Industrial (90 IR at pp 449-453) by reference to the authorities as they had developed. In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at pp 288-289, Hungerford J had occasion to again review this general question and, after citing the main authorities concerned, drew the following propositions : (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence.

[55]

28 The remaining ground of appeal in (iv), that the decision the offence charged was not proven beyond reasonable doubt was contrary to the evidence and to the weight of evidence, if made out, provides the means by which the earlier found errors of law may appropriately be corrected. In doing so, and consistent with the approach stated by the majority of the Full Bench in Arbor Products (105 IR at pp 92-93 in pars [19]-[21]), we adopt as appropriate the principles set out by the Full Court in C I & D Manufacturing (60 IR at pp 153-154). For completeness, and as followed in C I & D Manufacturing, this approach follows the consistent line of authority in relation to appeals in the strict sense as referred to by the former Industrial Commission in Court Session in State Rail Authority of New South Wales v Dawson [1990] 37 IR 110 at pp 117-118 by reference to the ordinary approach at law, as follows : The nature of an appeal in terms of the catalogue of "appeals" available under various statutory provisions was considered by Kirby P in Clarke & Walker Pty Limited v Secretary of the Department of Industrial Relations (1985) 3 NSWLR 685 at 690-692; 14 IR 269 at 273-274, in which his Honour referred to authority for the proposition that an "appeal" was a term loosely employed to denote a number of different types of judicial processes. In referring to one of such types, an appeal from a judge in the strict sense was dealt with, and, in reliance on the decision of the High Court in The Victorian Stevedoring and General Contracting Co Pty Limited and Meakes v Dignan (1931) 46 CLR 73 at 107, Kirby P said that in such an appeal "if the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing." In our view, an appeal under s 120(1) of the Industrial Arbitration Act is of that nature. In Radford v Sagaris [1929] AR (NSW) 72 at 75-76, Street J, as he then was, in dealing with an appeal such as the present, applied the duty of the appellate tribunal as that laid down by the High Court in The London Bank of Australia Limited v Kendall (1920) 28 CLR 401 at 407, as follows:

[63]

33 Central to a consideration of the relevant evidence relating to ground (iv) is whether such evidence reasonably led to the finding made that it was unrealistic to expect the respondent to provide supervision of Mr Jones while he operated the circular saw. We have to say, following our review of the whole of the evidence, that that finding by her Worship was perverse and cannot be permitted to stand. In any event, for reasons which we will later develop, the finding so made was not a sufficient answer to the charge laid, as it was particularised, and as would support the dismissal of the charge. Not unimportantly, however, her Worship's finding seems clearly to have been based, as she said, on the evidence of Mr Coffey to the effect that "he received a phone call from Crane Enfield Metals asking for labour staff to do grouting - an ostensibly straightforward, easy job, for which no particular induction, training, or formal instruction was considered necessary ... it was a simple, mundane job that a trades assistant could be expected to do". Notwithstanding that evidence so relied upon, the oral evidence of Mr Coffey disclosed that in fact he did not take the telephone call but rather it was, as he admitted, "Tony Rakich, one of our employees, about the duties and obviously from a lot of hearsay over two years that my answer there has changed". In that state of Mr Coffey's evidence, we think it is simply not open for her Worship to have accepted Mr Coffey's earlier version to enable the key finding which led to the dismissal of the charge. Indeed, the view we have formed of this important evidence is only confirmed by further oral evidence given by Mr Coffey when he admitted he had told the appellant during an interview shortly after the incident occurred that the respondent was not aware of the duties Mr Jones was to perform at Crane Enfield Metals; Mr Coffey's earlier evidence, no doubt on which her Worship relied, was that the respondent was made aware of the duties to be performed by Mr Jones at Crane Enfield Metals, namely, "to do grouting" - that evidence was patently not credible and certainly Mr Coffey was not the person who received the request from Crane Enfield Metals for the services of Mr Jones. We reject his earlier evidence on which her Worship relied.

[115]

35 The nature and extent of the obligations of labour hire companies, as is the respondent here, to ensure the health, safety and welfare of their employees sent to work at a client's premises is now well settled: see WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374 at p 382; WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 2) (1997) 89 IR 383; WorkCover Authority of New South Wales (Inspector Dubois) v Industry Staffing Services Pty Ltd, t/as Action Workforce (1999) 89 IR 430 at 433; Drake Industrial (90 IR at pp 455-456); WorkCover Authority of New South Wales (Inspector May) v Swift Placements Pty Ltd (No 2) (1999) 96 IR 24 at pp 30-31; and Labour Co-operative Ltd (No 1) (at pp 58-59 in pars [47]-[48]). The arguments presented in this case and the approach adopted by her Worship in the decision make it timely, we think, to restate the views expressed by Wright J, President and Walton J, Vice-President, with whom Peterson J agreed, in Drake Industrial (90 IR at pp 455-456), as follows : In any event, we are not persuaded that the appellant would be relieved from liability under the OH&S Act, even if the existence of an implied term in the form alleged had been established. This question raises the particular circumstances of an employer who conducts a labour hire business by engaging employees for the purpose of supplying those employees to do work for other employers. The relationship created between a labour hire company and its employees is distinguishable on a number of grounds from that existing between traditional employers and their employees. A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under s15(1) of the OH&S Act to "ensure the health, safety and welfare at work of all the employer's employees." Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s15(1).

[116]

The obligations of a labour hire company under the OH&S Act have been considered on a number of previous occasions by this Commission and its predecessors. The judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374 concerned a prior prosecution of the appellant. That prosecution arose from an incident in which an employee of the appellant, Mr Douglas, sustained an injury whilst operating a woodworking machine at the premises of another company, Warman International Ltd. The appellant pleaded guilty in that case and was fined a total of $25,000. Considering the question of penalty, his Honour commented (at 382): "The failure here to ensure the safety of Mr Douglas arose in a situation where he was directed by his employer, the defendant, to perform work for a third party, Warman, at that third party's premises. In such a situation, my view is that an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned. The evidence established that the defendant did not satisfactorily attend to this aspect and it was not until Mr Davey was engaged that specially designed safety policies and procedures were implemented. But that was in July 1997, at least two years after the present offences were committed; Mr Douglas thereby suffered injury resulting in absence from employment for a period of at least two months and with a permanent deficit in the use of his right hand. It is no answer, in my view, in reduction of penalty otherwise considered appropriate for the defendant to plead reliance on Warman as the client to take appropriate steps to ensure safety in the workplace for all persons engaged at its premises. True it may be that Warman itself may have offended against the Occupational Health and Safety Act , but that does not, it seems to me, lessen the seriousness of the offences committed here by the defendant as the employer. It is that feature of this case which gives to the assessment of penalty such a degree of importance as will encourage employers in a business similar to that of the defendant to implement appropriate steps to ensure the safety of their employees whose labour is hired to third parties and at the same time to deter employers for failing to take such steps. "

[121]

37 It only remains to deal with the submission by Mr Agius relying on the statutory defence contained in s 53 of the Occupational Health and Safety Act. That defence, as the propositions above-stated in pars (11) and (12) from Keelty v Police Service (No 2) made clear, is available in two situations: first, it was not reasonably practicable in the circumstances to have complied with the duty; or, second, the commission of the offence was due to causes over which the employer had no control and against the happening of which it was impracticable to make provision. We are of the view that the respondent failed to make out the defence on either ground and our reasons for so concluding may be shortly stated. The essential contention put by Mr Agius was that the concluded view of her Worship that "there could have been little or no expectation on the part of the Defendant company that Mr Jones would have been required to use a circular saw in doing a grouting job" was sufficient to found the statutory defence; as senior counsel said, her Worship was correct in concluding "that it would be unrealistic to expect Coffey Engineering to provide or ensure supervision of Mr Jones in his operation of the circular saw" so that it could not be said in any way the respondent should have envisaged the danger which arose when Mr Jones used the circular saw. We disagree. We have earlier found against such a submission on the evidence and it is clear also that the respondent took no steps to further enquire of Crane Enfield Metals what work Mr Jones would be doing and neither did it have any system in place other than to make Mr Jones' services available to Crane Enfield Metals and to permit that company itself to allocate and supervise the work concerned. The nature of the obligation of a labour hire company as stated in Drake Industrial is clear. Although such a company, like the respondent, may abdicate supervision of its employee in the performance of the work it cannot abdicate its responsibility under s 15(1) of the Occupational Health and Safety Act to ensure that employee's health, safety and welfare at the premises of the client. We are satisfied that the alleged risks in the operation of the circular saw were reasonably foreseeable and of such a nature as to make it practicable for the respondent to take precautions against; that it did not do so means, in our view, that the respondent has not made out a s 53 defence.