Morrison v Bulga Coal Management Pty Ltd

Industrial Relations Commission (NSW)|2009-09-04|Before: Marks J, Mr P

CITATION: Morrison v Bulga Coal Management Pty Ltd [2009] NSWIRComm 183

PARTIES: Rodney Dale Morrison of The Department of Primary Industries (Prosecutor) Bulga Coal Management Pty Ltd (Defendant)

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(2) of the Occupational Health and Safety Act 2000 - amended charge - guilty plea and appropriate penalty - objective seriousness - commitment to Occupational Health and Safety - general and specific deterrence - subjective factors - no prior convictions - orders made

LEGISLATION CITED: Occupational Health and Safety Act 2000 - s 8(2)

CASES CITED: Morrison v P&H Minepro Australasia Pty Ltd [2009] NSWIRComm 144

HEARING DATES: 10 August & 4 September 2009 and 28 & 29 October 2009 (written submissions)

Mr P. Skinner of counsel (Prosecutor) Solicitor: Crown Solicitor LEGAL REPRESENTATIVES: Mr B Hodgkinson SC (Defendant) with Mr D Jordan of counsel Solicitor: Sparke Helmore Solicitors

Rodney Dale Morrison v Bulga Coal Management Pty Ltd

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

1 In these proceedings, the prosecutor, Rodney Dale Morrison, of the New South Wales Department of Primary Industries, has charged the defendant, Bulga Coal Management Pty Ltd with a breach of the provisions of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). The proceedings were originally instituted by an application for order filed in this Court on 18 March 2008. On 10 August 2009, an amended application for order was filed which contained particulars of the charge that are significantly different from those the subject of the original application. The defendant immediately entered a plea of guilty to the amended charge. 2 S 8(2) of the Act is in the following terms: 8 Duties of employers

(2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 3 By the amended application for order, the defendant was charged, relevantly, that: on 21 March 2006 at its place of work at the Bulga Open Cut Mine, near singleton in the State of New south Wales, which was a coal workplace within the meaning of the Occupational Health and Safety Act 2000 being a place of work to which the Coal Mine Health and Safety Act 2002 applies, 1. was an employer;

failed to ensure that people other than its employees in particular Colin Fredrick Belle and Andrew William Baxter were not exposed to risks to their health or safety;

arising from the conduct of its undertaking; and

while they were at its place of work contrary to s 8(2) of the Occupational Health and Safety Act 2000.

Particulars (a) The defendant failed to ensure that systems of work used by Mr Belle and Mr Baxter were safe and without risks to health, in that Mr Belle was not properly trained or qualified in the operation of the Elevated work Platform (EWP); and

(b) The defendant failed to supervise its contractor P&H MinePro Australasia Pty Ltd to ensure that Mr Belle had the appropriate certification before operating an EWP. As a result of the defendant's failures Colin Fredrick Belle and Andrew William Baxter were placed at risk as to their health and safety, and received injuries. 4 The defendant having pleaded guilty, this judgment is concerned only with the question of penalty. 5 A statement of agreed facts became evidence in the proceedings. A great deal of documentation was annexed to the statement, which is described in general terms in the body of the document itself. 6 The statement of agreed facts is as follows: Background

The Offender is the operator of the Bulga Coal Open Cut ("the mine"), a large open cut mine that uses dragline, shovel, and trucks to mine coal. The mine is located approximately 18 kilometres south of Singleton, New South Wales. The mine is a colliery holding ML 1547 (previously ML 1430) and coal leases CL 224 and CL 372.

The offender operates the mine on behalf of the Bulga Joint Venture which consists of 87.5% Oakbridge Pty Ltd and 12.5% Nippon Steel Australia. Oakbridge Pty Ltd is also the ultimate holding company of Bulga Coal Management Pty Ltd.

At all material times the mine was an open cut coal mine under the Coal Mines Regulation Act 1982.

At all material times, Mr Nigel Wood, an employee of the offender was the Statutory Mine Manager. As Statutory Mine Manager, Mr Wood had full charge and control of all persons employed at the mine, and all operations at the mine.

By a written document dated 31 August 2002, P&H MinePro Australasia Pty/Ltd ("P&H MinePro") entered into the "P&H 4100 Shovel Maintenance Contract" with the offender. The contract related to the P&H 4100 Shovel ("Shovel") located at the mine. The contract has a term of 10 years. [see tab 3 of the Prosecution Tender Bundle].

P&H MinePro established a site office at the mine that serviced both the Shovel and the dragline.

During an inspection of the Shovel at the mine in early 2006 it was identified that the hoist ropes would require replacement. This and other work on the Shovel was scheduled for the week of 20 March 2006 with the rope changes planned during the regular weekly service of the Shovel on Tuesday 21 March 2006. Maintenance and rope changes were done by the service division of P&H MinePro. Other maintenance work was undertaken by Ellavale Engineering Pty Limited employees, engaged as labour hire to P&H MinePro.

Mr Michael George, a Project Supervisor employed by P&H MinePro, was in charge of the replacement task. Planning for the job was conducted by the offender and the personnel of P&H MinePro prior to the work taking place, with elevated work platform and crane requirements to undertake the tasks identified, and arrangements for supply of such plant made.

Mr George issued a memorandum to the offender dated 16 March 2006 indicating that a "level and well-graded Pad for people movements and work on the crane" was required. [see tab 4 of the Prosecution Tender Bundle] . An area, at Bulga main pit strip 24 north, (the "Shovel work area") was prepared by the offender for the Shovel service.

The offender had in place a Work Procedure for "Replace P&H Shovel Hoist Ropes". [see tab 5 of the Prosecution Tender Bundle]

Despite the Work Procedure specifying a "40 foot EWP" for the task, Mr George ordered from Boom Logistics Ltd an 80-foot telescopic JLG 80HX+6 Aerial Lift, or Elevated Work Platform ("EWP"), for the task and for delivery on 21 March 2006.

The EWP was provided to P&H MinePro by Boom Logistics Ltd. A pre-delivery safety check on the EWP was performed by a Boom Logistics Ltd contract fitter, Dallas Gibbon on 20 March 2006.

An Operator's Manual and Maintenance Logbook was provided with the EWP. [see tab 6 of the Prosecution Tender Bundle]

On 21 March 2006 Mr George commenced work at about 6:00am. Mr Colin Belle, a Leading Hand Fitter employed by P&H MinePro, arrived at the Shovel work area at about 6:30am. Mr Andrew Baxter, an Engineering Rigger, employed by Ellavale Engineering Pty Limited arrived at about the same time. Mr Baxter was supplied as shift-replacement labour hire to P&H MinePro.

At about 7:00am to 7:15am Mr George conducted a toolbox session with the whole crew which consisted of about 20 persons from P&H MinePro, Ellavale Engineering Pty Limited and other contractors.

The toolbox talk occurred before the EWP arrived. [see tab 7 of the Prosecution Tender Bundle]

The toolbox session discussed the tasks to be done and pre-prepared risk assessments (Job Hazard Analysis ("JHA")) were handed out to the various groups for the job they were to undertake. The relevant risk assessment or JHA for "Replace Hoist Ropes" was given to Mr Baxter, Mr Belle and Mr Greg Makin (Ellavale Engineering Pty Limited Crane Driver/Leading Hand Fitter), who constituted the hoist rope crew, and they were instructed by Mr George to "…modify JHA as required..."

The Shovel was positioned at or near the prepared Shovel work area and isolations were performed. Mr George then went back to the crews and reviewed the JHAs, with any modifications noted on the sheets, the hoist rope crews signing theirs.

As the Shovel service began, Mr George went back to the hoist rope crew of Mr Baxter, Mr Belle and Mr Makin and updated the work procedure with them. Mr Belle and Mr Baxter were allocated the bucket part of the Shovel maintenance job while other workers were allocated to the Shovel house drum tasks.

The "103 inspection" or "safety check" was undertaken by Mr Baxter, an Ellavale Engineering Pty Limited employee, rather than Mr Belle the operator and employee of P&H MinePro. The safety check was completed by Mr Baxter before Mr Belle arrived and took over the operation of the EWP.

Mr Baxter used the Checklist on the "EWP Safety Check & Routine Maintenance Logbook" supplied with the machine to complete the 103 Inspection. Mr Baxter signed the Logbook at 8:30am and no faults or problems were recorded. [see tab 6 of the Prosecution Tender Bundle]

Mr Baxter then drove the EWP down to near the bucket of the Shovel where Mr Belle took control of the operation of the EWP. Mr Belle then performed his own safety inspection prior to operation, including the operation of the platform control levers and locking mechanisms. Mr Belle did not sign the Logbook or record his inspection. Mr Belle and Mr Baxter discussed how they would do the job. Mr Belle then positioned the EWP about half a metre from the bucket.

Neither the pre delivery safety check on the EWP performed by Mr Gibbon, nor the checks undertaken by Mr Belle and Mr Baxter identified a defect in the EWP, namely, that the safety catch that prevents the drive joystick from moving from the neutral position was not working properly.

The rope change then commenced. The old ropes were removed with the EWP being used by Mr Belle and Mr Baxter to remove the rope retainers. The old ropes were dragged away from the Shovel using a "Franna" crane.

New ropes were then refitted to a point where they would need guiding into the bucket equalizer prior to refitting the rope retainers. At this point the EWP was some metres back from the Shovel bucket. Mr Belle and Mr Baxter got into the man-basket of the EWP. Mr Belle then drove the EWP towards the bucket and equalizer, stopping about 300-500mm from the bucket. Mr Baxter commenced sorting out the new ropes and the EWP was driven in and out to position the ropes correctly.

During the hoist rope change, and prior to the incident, the work area was inspected by the offender's step-up team leader Mr Kel Murray. Whilst inspecting the work Mr Murray completed the Task Safety Checklist which relevantly required him to confirm that a safe work procedure was in place and was being complied with, and that a JHA had been completed. The Task Safety Checklist also required that Mr Murray review the competencies of the work crew. However, Mr Murray failed to complete this section of the Task Safety Checklist. [see tab 8 of the Prosecution Tender Bundle]

The machine operated in two speeds - high and low. Mr Belle left it in high speed whilst he prepared to 'boom it up' or lift the boom to get him and Mr Baxter into position to deal with their task in respect of the ropes. This was in direct contravention to the clear instructions and cautions included in the Operators and Safety Manual ("the Manual") for the machine, when prescribing operations in close quarters.

Sometime before 12.15pm Mr Belle placed his foot on the "deadman" pedal of the EWP whilst turning around to reach the boom lift-lever which moves the man-basket up and down. The machine propelled into the bucket equalizer crushing the man-basket door such that it prevented Mr Belle from releasing the deadman pedal and trapping him.

Mr Baxter suffered a pinch/crush injury to his right hand index finger, severing the tip and breaking the bone. Mr Belle received bruising to his right foot when the man basket door trapped it. Mr Belle, after several attempts, stopped the EWP using the emergency stop button located on the platform control panel.

Although several people in the immediate area heard the EWP high idle and the resulting impact, no one saw the incident occur. Mr George followed the site emergency procedures and notified the offender's emergency response team which arrived at the scene of the incident within minutes. Mr George and Mr Ron Thomson attempted to firstly, lower the man-basket using the ground controls; and secondly, move the EWP away from the Shovel bucket. This was unsuccessful, as the EWP cannot be driven forwards or backwards from the ground controls. The decision was made to cut the handrail of the man-basket using oxy-acetylene equipment. Mr Baxter climbed out over the Shovel bucket with Mr Belle being removed once the handrail had been cut away and the EWP dragged back from the bucket with a dozer.

Both men were taken to the Bulga first-aid room, and then transported to Singleton Base Hospital for assessment. Mr Belle was released while Mr Baxter was taken to Maitland Hospital. Mr Baxter had surgery to repair his finger the next day.

The offender had in place a Mine Safety Management Plan as prescribed by s. 104 of the Coal Mine Regulation Act 1982 and cl. 7 of the Coal Mine General Regulation 1999 entitled Bulga Coal Surface Operations HSE Standard. Process Element 6.11.2 [see tab 9 of the Prosecution Tender Bundle] of that document dealt with procedures for work at height. Part 3.4.4 of that Process Element stated relevantly: 3.4.4 Temporary Access Systems Extreme care needs to be exercised when erecting or using temporary access systems. Stability, suitability and condition of equipment, proximity to overhead power lines etc. need to be carefully considered. Safe temporary access to work areas could include:

Power operated mobile work platforms Many different types of mobile work platforms are now available, some of which have a high reach capacity, including scissor lifts and articulated or telescopic armed cages. Mobile work platforms should comply with AS 1418.10 - Elevating Work Platforms.

Controls and safeguards when using Elevated Work Platforms:

· All persons must be trained and deemed competent :

· All persons must be secured at all times wit proper fall protection apparatus;

· A system in place to prevent tools and equipment from falling;

· Barriers to prevent persons from entering the area below. (Emphasis added to first bullet point) 33. Both Mr Baxter and Mr Belle were wearing safety harnesses while working from the basket of the EWP.

P&H MinePro had in place an OHS policy "P&H MinePro ProSafe ES & H Management System". [see tab 10 of the Prosecution Tender Bundle] . Clause 4.3 of the prescribed procedures for Elevated Work Platforms set out in that document stated: 4.3 Training and Qualifications Elevated Work Platforms shall only be operated by trained and qualified personnel. Re-training shall be conducted as required. Refer Procedure ESH-003. 35. P&H MinePro also had in place a safety management plan for the mine "P&H MinePro Bulga Site Safety Management Plan". [see tab 11 of the Prosecution Tender Bundle] . Section 15 in that document, relating to "Operational Procedures" stated: Qualifications All personnel operating Cranes, Forklifts & Manlifts or carrying out Dogging, Scaffolding or Rigging functions shall hold the relevant WorkCover Certificates of Competency for that function, or they shall be in training for that Certificate under Direct Supervision as per WorkCover training procedures. 36. The offenders' Work Procedure for replacing hoist ropes included a Job Hazard Analysis (JHA) in which unplanned movement of various machines was identified in several places as a hazard, and the appointment of "fully trained and mine approved EWP operators" was required as a control measure. [see tab 5 of the Prosecution Tender Bundle]

Mr Baxter was a fully trained and mine appointed EWP operator. However, Mr Belle, who operated the EWP during the hoist rope change, was not properly trained or qualified in the operation of the EWP.

Mr Belle had attended a one-day EWP course on 3 December 1998 whilst at that time an employee of the offender. A Certificate of Attendance was issued to Mr Belle for that [see tab 12 of the Prosecution Tender Bundle] but the trainer, Mr John Fox of Bower's Cranes (later renamed Boom Logistics) noted in the Training Attendance Register that Mr Belle had not achieved the required competency and required reassessment the following year [see tab 13 of the Prosecution Tender Bundle] . There is no evidence in either the offender's or P&H MinePro's records of any re-attendance by Mr Belle for further training.

Mr Belle left Bulga Open Cut Mine in 1999 and returned as a contractor, working for P&H MinePro, in 2002. On 13 August 2003 Mr Belle was appointed by the offender's mine manager Mr Nigel Wood as "a competent person to use a Man Lift Box in accordance with the offender's procedure for use of Man Ride Box" [see tab 14 of the Prosecution Tender Bundle] . In the Bulga contractor management records (Onsite Track Easy) in respect of Colin Belle, it was recorded that he had a current operator EWP certificate dated 3 December 1998 [see tab 15 of the Prosecution Tender Bundle] . It is agreed however that Mr Belle was not properly trained or qualified in the operation of the EWP.

Mr Belle's appointments were reviewed by the offender on 28 October 2004 and he was not appointed in the offender's documents to operate EWPs at the mine. [see tab 16 of the Prosecution Tender Bundle] .

The offender had in place a comprehensive written system for contactor management. In particular, as part of its "Bulga Coal Surface Operations HSE Standard", it published "Process Element 7:00, Safe Contractors" [see tab 17 of the Prosecution Tender Bundle]. That element required that contractors hold toolbox talks, regular project review and etc. In particular section 3.12.2 required specific competencies required to perform the contract work to be established in the Scope of Works, and for the contractor to submit to the offender, prior to commencing work on site, the names, competencies and induction status of the nominated workers. Consistent with the offender's Process Element 7:00, Safe Contractors, the offender also had in place a long term contractor management plan which was specifically developed and implemented in relation to health and safety issues relevant to the Shovel maintenance contract with P&H MinePro.

The offender facilitated the retrieval of the EWP and subsequent inspections performed on the EWP on behalf of the Prosecutor and was cooperative throughout the Prosecutor's investigation into the incident. 7 The defendant tendered into evidence an affidavit of Ben William Ireland, its health, safety and training manager, who gave evidence concerning the occupational health and safety practices, protocols and procedures of the defendant both prior to and following the incident which gave rise to these proceedings. 8 The starting point for any consideration of penalty is an assessment of the objective seriousness of the offence. For this purpose, it is necessary to analyse the offence with which this defendant has been charged by reference to the particulars contained in the amended application for order. The focus of attention may thus be seen to be the exposure to risks to health or safety of Messrs Belle and Baxter on 21 March 2006. That risk was alleged to have been caused by the fact that the elevated work platform ("EWP") was being operated by Mr Belle, an employee of a contractor to the defendant, P&H Minepro Australasia Pty Ltd. It was caused by the fact that Mr Belle was not properly trained in the operation of the EWP, and was not properly qualified to operate it, nor was he certified to operate it, coupled with the fact that the defendant failed to supervise the contractor so as to ensure that Mr Belle had the appropriate certification before operating the EWP. The prosecutor asserted, and the defendant conceded, that if Mr Belle had been properly trained and qualified in the operation of the EWP, he would not have put the machine into high speed whilst preparing to lift the platform. This statement, however, needs to be considered in the context that, under normal circumstances, when Mr Belle placed his foot on the dead man's pedal, this would not cause the platform to move. Accordingly, it may be concluded that Mr Belle could not have foreseen that the platform would have moved in the way in which it did. This is because he had not attempted to move or operate the control stick, which under normal operating circumstances it would have been necessary to move in order to cause the platform to move. Furthermore, that control stick could not have been moved under normal circumstances without a collar which is situated below the knob of the control stick being deliberately raised by using two fingers of the hand, normally the index finger and the middle finger. 9 Accordingly, framed in this limited way, the risk was that of the platform being moved at high speed rather than at creep speed if the high speed had not been engaged prior to Mr Belle undertaking the operation. 10 The prosecutor asserted, and the defendant did not contest, that the risk to which Messrs Belle and Baxter were exposed could be identified in a broader way, namely the risk of operating the platform with the higher speed engaged rather than the slower, creep speed. This would be so whether or not there was any latent defect in the operation of the equipment, as appears in all the circumstances of these proceedings to be the case. 11 On the facts as disclosed in the statement of agreed facts, the platform travelled at a high speed for a distance of between 300 and 500 millimetres rather than at a creep speed. Additional agreed facts provided orally during the course of the sentencing proceedings indicate that at high speed the platform travelled 1 metre per second as opposed to 0.2 of a metre per second at creep speed. This makes no allowance for any acceleration because the engine at the time of the incident was operating at full speed in any event. 12 It was conceded by the defendant that if the platform had operated at the slower speed of 0.2 metres per second it may have given Messrs Belle and Baxter a greater opportunity to take some form of evasive action to avoid the incident. 13 Assuming a speed of 1 metre per second in high speed, the platform would have travelled 300 millimetres in 3/10 second and 500 millimetres in a ½ second. Assuming the slow-creep speed of 0.2 per second, the platform would have travelled 300 millimetres in 1½ seconds and 500 metres in 2½ seconds. Even assuming, solely for the purpose of discussion, a worst case scenario of a distance of 500 millimetres, the difference in time which would have passed between the platform commencing to move and impact would have been an additional 2 seconds. Whether and to what extent this additional two seconds would have allowed Messrs Belle or Baxter to take evasive action must be a matter of speculation. Such speculation would need to factor in any reaction time between the commencement of the event and the processing of any action in response by either of these persons. 14 I proceed to consider the objective seriousness of the offence with which the defendant is charged having regard to the identification of the risk and having regard to a number of other factors which impact upon this matter. 15 It is necessary to bear in mind that the charge brought against the defendant is confined to a failure to ascertain that Mr Belle was not properly trained or qualified to operate the EWP which in turn involved the supervision and management of a contractor. In this regard, the factual material establishes that the defendant's step-up team leader failed to complete a required Task Safety Checklist and, seemingly, failed to assess the competency of Mr Belle. This is clear from [26] of the statement of agreed facts. 16 In terms of the failure to supervise and manage the work performed by the contractor, the evidence is that the contractor was contractually bound to provide experienced and skilled personnel, to ensure that all personnel provided were "appropriately qualified" and to ensure that all such persons complied with all statutory obligations of the contractor. In the context of the operation of a coal mine, it is notorious that there are detailed statutory provisions that regulate and control the safe operation of mines throughout New South Wales. 17 Furthermore, the matter must be assessed, in my opinion, by reference to the fact that the equipment which was supplied by the contractor was owned and habitually operated by it and its personnel. The prosecutor quite properly conceded that the culpability of this defendant is less than that of the contractor. 18 The affidavit of Mr Ireland contains material which allows me to conclude that the defendant at all times was aware of and attempted to comply with its occupational health and safety obligations. It had in place detailed and comprehensive processes covering all aspects of the safe conduct of its operations. It promoted and conducted a number of training courses and conducted regular and systematic meetings and seminars at which information and instruction about occupational health and safety matters was given to employees, to contractors and to the employees of contractors. 19 Since the incident, the defendant has strengthened its management and supervision of the work of contractors covering all aspects of its operations. It has introduced a system of "pre-job appraisal" which requires the nature of work to be carried out to be assessed and any equipment used in its operations to be tagged. Each person undertaking that work, whether a contractor or an employee of a contractor, is required to complete a questionnaire which covers 11 matters which are fundamental to the safe execution of a job. 20 The material which is annexed to Mr Ireland's affidavit occupies hundreds of pages. It is not necessary that I refer to it in any greater detail and it is sufficient, in my opinion, to state that I accept that it is supportive of the general observations which I have set out above. 21 In determining the appropriate penalty, it is also necessary to have regard to the general and specific deterrent effects of any penalty imposed. In general terms, the defendant operates in the coal industry and open-cut coal mining, as was the case of this mine, involves the use of a great deal of heavy equipment with attendant risks to health and safety. Furthermore, work on elevated work platforms is inherently dangerous. I shall take this into account when fixing penalty. 22 In the same vein, the defendant continues to operate in the coal mining industry and it is necessary to have regard to the specific deterrent effect that any penalty imposed will have on it. As against this, I note the defendant's overall commitment to its occupational health and safety obligations ameliorates the need to take this matter into account. 23 There are a number of subjective factors that must be taken into account in favour of the defendant when assessing penalty. The defendant had expressed remorse and contrition for what had occurred and cooperated fully with the prosecutor in and about the investigation of the incident and in and about remedial steps taken subsequently to improve its occupational health and safety systems. The prosecutor did not contend otherwise. 24 The defendant pleaded guilty and is entitled to a discount for the utilitarian value of its plea. It is clear that, in pleading guilty, the defendant has avoided a four-week hearing, which is the time that had been set aside to deal with the matter on a contested basis. 25 There was a difference of opinion between the prosecutor and the defendant about the extent of the discount that centred around the time at which the plea of guilty was entered and whether this was done at the earliest appropriate opportunity. 26 In my opinion, the resolution of this aspect can be undertaken by reference to the particulars as contained in the application for order originally filed on 18 March 2008 when compared with the particulars of the charge contained in the amended application filed on 10 August 2009. The charge in its original form alleged that the EWP actually used by the contractor was inappropriate, that it had a faulty drive control stick, that the defendant failed to ensure that a level and well-graded pad for operation of the EWP was provided, that the manual provided with the EWP was not current, that Mr Belle was not aware of it, that the EWP was operated contrary to the provisions of the manual and that no adequate risk assessment was undertaken by Messrs Belle and Baxter before attempting the work. 27 It will be seen that these particulars were much wider than those that were eventually alleged against this defendant. Furthermore, I was told from the bar table, and accept, that the amended application for order evolved as a result of lengthy discussions between the representatives of the parties. 28 In all the circumstances, I am of the opinion that the plea of guilty was entered at an early stage of the proceedings and that the defendant is entitled to a substantial part of the discount that would otherwise apply if the plea was entered at the earliest possible moment. 29 The defendant is the operator of the Bulga Mine. It operates two-hour shifts seven days a week and at the time of the hearing employed 237 persons. In addition, it then relied upon approximately 300 contractor companies who worked regularly at the site. It has no prior convictions for any offence under the Act. I have been informed by counsel for both parties that the defendant has operated the mine since 1992. I conclude it has an excellent safety record. 30 Given the concession, properly made by the prosecutor, that the culpability of this defendant is less than that of the contractor, P&H Minepro Australasia Pty Ltd, it is necessary to examine the circumstances of the prosecution brought by the prosecutor against that company for a breach of ss 8(1) and 8(2) of the Act arising out of the same incident. This prosecution was the subject of a judgment of Boland J, President in Morrison v P&H Minepro Austalasia Pty Ltd [2009] NSWIRComm 144. An examination of his Honour's judgment reveals that the particulars of the breaches alleged against that defendant were much broader than those brought against the defendant in these proceedings. Those particulars included the fact that the EWP had a faulty drive joystick, that the defendant did not ensure that a level and well-graded pad for the operation of the EWP was provided, that the EWP was not operated in accordance with operator's manual, that no adequate risk assessment of the task was carried out, and that the defendant failed to provide Messrs Belle and Baxter with such information and instruction as was necessary to ensure their health and safety. 31 That defendant faced a maximum fine of $825,000 because of prior convictions. His Honour, in essence, imposed a fine of $130,000 in each matter, making a total of $260,000 taking into account the principle of totality. 32 The defendant in these proceedings has no prior convictions for breaches of any relevant occupational health and safety legislation. Accordingly, the maximum fine payable is $550,000. In considering the appropriate penalty, I will take into account not only the matters to which I have referred that are specific to these proceedings, but also the quantum of the penalty imposed by the President in the circumstances of those proceedings, but having regard also to the matters that relevantly differentiate the proceedings in Minepro from these proceedings. 33 Having regard to all of the matters to which I have referred, I find that an appropriate penalty is the sum of $45,000. 34 The prosecutor sought orders for costs and a moiety, which were not opposed, and which I find it is appropriate to grant. Orders

35 I make the following orders: 1. The defendant is found guilty of the offence with which it is charged and convicted accordingly. 2. I impose a monetary penalty of $45,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor assessed by the Court in default of agreement.

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.

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

Parties

Cases Cited (1)