Defendant's evidence
12Ms P McDonald SC, who appeared for the defendant, read an affidavit of Robert David Madeley, Manager, Mechanical Engineering of the defendant, who is currently seconded to the regional office of Illawarra Holdings.
13Mr Madeley stated that he had authority to give evidence on behalf of the defendant.
14After setting out his employment history in the coal mining industry, where he commenced as an apprentice fitter machinist in 1979, Mr Madeley described the Douglas Project ("the Douglas Project"), observing that there were four main contracting companies on the site at the Douglas Project. Two companies, Southern Colliery and Delta were the premium contractors in the Illawarra region. The other two contractors were Mastermyne Pty Ltd and Minecraft Consulting Pty Limited. The Douglas Project was run as a separate mine project from the Appin Colliery, which was a fully operated production mine. However, the two sites shared one statutory manager. A statutory mine manager delegation was provided for the Douglas Project so that there was a Deputy Statutory Manager for Appin Colliery, Douglas District.
15The Douglas Project no longer exists. In the second half of 2007, the Douglas Project was integrated with the existing Appin Colliery (now known as Appin East Colliery). The site of the Douglas Project became the Appin West Colliery when it commenced longwall mining. This is a system of mining that involves the extraction of large blocks of coal, with the coal being mined on retreat in slices of up to one metre thick from the long coal face. The Douglas Project was to utilise the longwall method of extraction.
16To oversee the number of contractors that were utilised at the Douglas Project, Illawarra Coal attempted to minimise the number of small contracting companies and utilise the primary contractors, referred to earlier by Mr Madeley. If work was required to be performed that could not be performed by one of the primary contractors, on occasion that work would be subcontracted through one of the primary contractors.
17Relevantly, in respect of these proceedings the contracts in place between Illawarra Coal and Southern Colliery and Illawarra Coal and Delta, concerned the provision of supplementary labour to a number of sites, including the Douglas Project.
18As a general rule while at the Douglas Project, Southern Colliery performed the role of engaging fitters and electricians conducting engineering work and Delta undertook outbye services and development work.
19Neither Illawarra Coal nor the defendant had a contractual relationship with Waco or Blue Water. Delta and Southern Colliery filled each of their roles at the site as a full time equivalent position within the defendant's organisational chart while Delta and Southern Colliery contractors were contracted to the Douglas Project, they were performance managed as full time equivalent employees. In this regard, they were in charge and managed the work activities relevant to their areas of responsibility, under supervision from the defendant.
20The defendant had and maintains a system of pre-qualification for the contractors it uses. The pre-qualification system at the time meant that prior to being inducted and commencing work at the Douglas Project, the contractor had to go through the contractor screening process. The contractor screening process applied to contractors that represented a pre-determined level of exposure and risk to the Douglas Project. The level of exposure and risk applied to a contractor that:
(i) worked 20 hours or more during a calendar month;
(ii) undertook regular wok on site on monthly, quarterly or other similarly repetitive cycles; or
(iii) undertook a task considered to be of a significant level of risk to the business.
21Information sought from the contractor included:
i) OH&S general;
(ii) risk identification and management;
(iii) workers compensation and rehabilitation plan;
(iv) number of classified injuries for the last full year;
(v) number of restricted (work) duties for last full year; and
(vi) Health, Safety, Environment and Community ("HSEC") Management Standard performance.
22Contractors were assessed and had to receive a score of more than 60 per cent, or they were considered to have failed the contractor pre-qualification. The selection process was contained in a document annexed to the affidavit.
23Delta and Southern Colliery both went through the pre-qualification process. The Pre-Qualification Evaluation Checklist for both Delta and Southern Colliery was also annexed to the affidavit.
24The pre-qualification of contractors lasted for a period of time before contractors had to undertake a renewal of their pre-qualification. At the time of the incident, Detla was due to have its contract for the provision of supplementary labour reviewed by 31 December 2006. Similarly Southern Colliery was also to have their contract for the provision of supplementary labour reviewed by 31 December 2006.
25Mr Madeley detailed the circumstances which led to the necessity for scaffolding to be erected in the mine. He stated that to his knowledge there was no person at the Douglas Project that had the skills and training to design the scaffolding. Furthermore, it was known that the installation of the scaffolding required specific training, qualifications and certification. These were not held by anyone at the Douglas Project. As such, a contractor with suitable training and experience was required to design and install the required scaffolding.
26The defendant's requirements in relation to the installation and erection of scaffolding were set out. Annexed to the affidavit was a copy of the Delta 24 hour Project shift instructions for the day shift and afternoon shift on 7 July 2006 (the day of the incident) in which reference was made to Mr Larry Tynan to check David Loach's (both employees of Delta) notes regarding the sign off of the scaffolding.
27Also annexed was the Douglas 12 Line Transfer Secondary Support Week 1 of the Delta weekly plan which confirmed that "Yogi/Mother to signoff the finished structure assessment with Waco scaffolders - handover certificate". Mr Madeley understood that "Yogi" referred to Mr Denis Winley (an employee of Delta) and "Mother" to Mr Greg Nees (also an employee of Delta).
28Mr Madeley stated that from his discussions with Mr Loach before the incident, he understood that Stephen and Danny King were employees of Waco and that Waco were selected by Delta/Southern Colliery because they had undertaken prior scaffolding work underground at the Douglas Project.
29Mr Loach provided the scaffolding company with the height of the scaffold and expected load requirements. A meeting was held between the defendant's contractor co-ordinator, the defendant's Geotechnical Engineer and Southern Colliery concerning the engagement of the scaffolding company.
30Delta had previously advised they could not engage the scaffolding company due to payroll issues. Southern Colliery had previously engaged a scaffolding company. The outcome of a meeting was that Southern Colliery engaged Waco.
31Mr Madeley described the risk assessment that was undertaken for the installation of the secondary support for the roof. The assessment included four representatives from Delta, the defendant's Geotechnical Engineer, a representative from Waco, and two scaffolders from Blue Water. The objectives of the risk assessment were:
(i) To identify hazards and existing controls associated with the installation of secondary roof support from scaffolding at 12C/T Douglas Main drivehead site, and to make recommendations for further controls where appropriate.
(ii) The main consideration is for personal safety however equipment damage, operational loss or environmental issues will be considered where relevant.
32As the purpose of the risk assessment was the overall task of installing secondary roof support, it did not specifically address the task of installing the scaffolding. However, the risk assessment did identify that the erection and dismantling of the scaffold would need to be done in accordance with the scaffold company standards and procedures. In conducting the risk assessment, the defendant also relied on the expertise of the scaffolders to identify the risks associated with scaffolding, including installation.
33The steps to be followed in accordance with the risk assessment for the secondary support for the roof were set out in detail in the affidavit. Mr Madeley then explained the scaffolding installation and the incident. His evidence is consistent with what is found in the agreed statement of facts. He observed that it accepted a practice throughout the mining industry to use cap lamps attached to a person's helmet to provide lighting underground. He said that at no time after 30 June 2006 or prior to returning on 7 July 2006, did any representative of Waco or Blue Water request additional lighting or raise any concerns regarding lighting. If this had occurred, additional lighting it would have been made available.
34Illawarra Coal's Contractor Management Plan ("CMP") contained an equipment checklist for scaffolding. A copy was annexed to the affidavit.
35In summary, prior to the incident, the defendant took the following steps:
(a) estimated the expected maximum load on the scaffolding, which included bolter thrust, materials and people;
(b) required compliance with a 2 to 1 (2:1) safety factor of the estimated maximum load;
(c) required competent and relevantly experienced scaffolders had been engaged;
(d) required appropriate documentation such as a safe work method statement;
(e) to have the design certified by a chartered civil engineer; and
(f) to have a sign over to confirm that the scaffolding had been assembled in line with the scaffold design.
36However, the defendant accepted that there was no confirmation whether Blue Water had inspected the scaffolding, as required by the equipment checklist, by reference to a recognised checklist such as found in Australian Standard 4576:1995 Guidelines for scaffolding . The defendant did not confirm whether Blue Water had tagged off the scaffolding before the scaffold was used.
37Following an onsite review after the incident, and the regulator's safety alert, the defendant reinforced to all mine site workers the importance of complying with all requirements of the equipment inspection checklists. A revised contractor management process was implemented following the incident.
38Mr Madeley described the actions taken by the defendant following the incident. This included assistance provided to Mr Evans after the incident and once he left hospital on 9 July 2010 and was recovering at home. Though not an employee of the defendant when he initially returned to work, he was given alternative duties by the defendant in the safety and training department. He was also provided training in the operation of the control room.
39Scaffolding rectification work was carried out in accordance with a notice issued by the Department of Primary Industries (as it was then known). A further risk assessment was also undertaken. Delta had four operators and a supervisor attend the further risk assessment. Waco had two people attend, and the defendant had two people attend. B-Tak Services who was engaged to carry out the work, had a director and three scaffolders attend. The defendant required Waco to attend the site to carry out a further inspection of the scaffolding before it allowed any further employees or contractors to work from it. This inspection occurred on 30 October 2006, at which time Waco advised that the scaffolding was fit for purpose and could be used.
40Mr Madeley also attended that inspection of the scaffolding with a competent scaffolding person, and compared the design diagram to the actual scaffold that had been constructed. As a result of this comparison, the competent scaffolding person identified there was a missing component in the scaffolding, despite the rectification work. Annexed to the affidavit was a copy of the design diagram for the rectification work. Following a further inspection on 2 November 2006 Waco was issued with their Hazard and Corrective Action Report which recorded that the "scaffold had not been constructed as per certified design - kickboards not secure". A copy of this document was annexed to the affidavit.
41Waco's General Manager attended the Douglas Project on 10 November 2006 to meet with Mr Madeley and the then Vice President of Illawarra Coal. Following this meeting, Waco sent a letter outlining the corrective actions to prevent a reoccurrence of the incident. A copy of this letter was annexed.
42On 13 November 2006 Mr Pedro Camus, the civil engineer that signed off the original scaffolding design and Mr Johnson from Waco attended the Douglas Project to inspect the scaffolding and sign off its suitability for use. The defendant then sought an independent third party inspection of the scaffolding before any employees or contractors were allowed to access the scaffolding. Once the independent third party verified that the scaffolding was safe to use, the installation of the secondary support for the roof occurred.
43Mr Madeley set out the occupational health and safety systems in place for the defendant at the time of the incident. These systems included BHP Billiton's overarching Health, Safety, Environment and Community ("HSEC") Management Standard. This system included 15 HSEC management standards.
44As the Douglas Project progressed, it became a requirement that a task analysis was conducted for every task which did not have a written procedure. A copy of the HSEC task analysis conducted on 30 June 2006, together with other task analysis were annexed.
45All employees, primary contractors and visitors completed an induction process for the Douglas Project. There were four levels of induction, depending upon the type of work and where it was to be carried out.
46As part of the induction programme there was the " Working at Douglas Programme" that was delivered by the Operations Manager with the first few weeks of commencing at the site. The focus of the programme was on safety. A copy of the Programme was annexed.
47"Fatal Risk Control Protocol Champions" were implemented by each site to oversee fatal risk control protocols. BHP Billiton had 10 fatal risk control protocols.
48Planning and monitoring systems were also in place at the time of the incident. Once a week there was a planning meeting to plan the work for the next nine or ten days and to resolve any issues or operational conflicts which might arise as a result of the work planned. A weekly plan was prepared and emailed to relevant people and a copy was attached to the mine's noticeboard. An example of a weekly plan was annexed to the affidavit together with copies of the daily plan for 30 June 2006 and 7 July 2006.
49The Douglas Project had a Health, Safety, Environment and Community Committee ("HSEC Committee") which meet once a month. The Operations Manager, Health and Safety Manager and Deputy Statutory Manager for the Douglas Project District all attended the HSEC Committee meeting, along with other representatives of the workforce, including representatives from the primary contractors.
50The Douglas Project HSEC system was routinely audited by BHP Billiton's audit team. The Douglas Project also completed a HSEC self assessment against the HSEC Management Standards once a year. It was from the HSEC self assessment that the site developed and implemented its own performance improvement plan.
51Prior to the start of shift, the shift Undermanager, Deputies and shift supervisors would have a meeting to plan the work and resources for that shift. Prior to this meeting the oncoming and off going Undermanager's and Deputies would have conducted their shift handovers. A copy of the shift brief dated 5 July 2006 and 8 July 2006 was annexed. The shift briefing document was used to communicate additional information to the crews. In addition, from time to time, individual crew talks were held in the crib room underground to address any information that was specific to that crew. At the end of the shift, the offgoing Undermanager, Deputies and shift supervisors, would have a "shift debrief". Following this meeting, the Undermanager would prepare a report summarising the shift for the Deputy Statutory Manager. A copy of the shift operations reports from 30 June 2006 to 9 July 2006 was annexed. Once a month, the Operations Manager of the Douglas Project would hold communication sessions. Each communication session shared information concerning the Douglas Project's overall progress.
52In the Douglas Project Organisational structure the Operations Manager oversaw the Douglas Project. He was supported by function area management. Each of the primary contractors had a site representative from their organisation who attended the site to oversee the work being performed by that contractor. By way of example, Delta supervisor, Mr Loach, attended the Douglas Project three to five times a week. Delta issued their own shift instructions to their crews. A copy of the Delta shift instructions issued on 7 July 2006, day and afternoon shifts, was annexed. Similarly, Mr Paul De Leeuw from Southern Colliery also attended the Douglas Project two to three times per week to oversee the work that was being conducted by Southern Colliery employees.
53There was a strong emphasis on creating a strong safety culture at the Douglas Project. In the short time that the Douglas Project was operating, there were a number of safety initiatives that were undertaken. These included a four day induction training programme conducted by Southern Mines Rescue. Illawarra Coal held and continues to hold, a one day refresher training at the Southern Mines Rescue Station in Woonona for all employees and primary contractors. The refresher training involved the use of self rescuers, compressed air breathing apparatus ("CABA"), fire fighting and a mock underground evacuation. A copy of the underground re-accreditation training materials was annexed. The Douglas Project also implemented the "Working Together" Program, which was a residential leadership programme that ran over four days. The programme concerned leadership and culture with a focus on team exercises and the practical aspects of leadership. Employees and primary contractors were all invited to attend. A copy of the presentation was annexed.
54The "Watch Program" which stands for "We Aim To Change Habits" ("WATCH"), was a documented peer safety observation program. The programme was designed to be a "no blame, no name" program. A WATCH observation required the observer to assess against the provided criteria the behaviour of the person being observed. The WATCH Observation List was contained in the Douglas Project Blue WATCH book. Each employee and primary contractor at the Douglas Project received one of these books and they were available in the muster room. A copy of the book was annexed. WATCH observations were conducted by both managers and other workers at the mine. All personnel were required to perform at least one to two WATCH's per week. WATCH reports for Mr Love, Mr Loach, Mr Nees, Mr Tynan and Mr Withers were annexed.
55The "WATCH Committee" reviewed the number and quality of the WATCH observations to identify any trends from the observations. In addition to the "Working Together at Douglas Program", there was also the " Leadership Intervention Skills Training" ("LIST"). LIST was a three day mentoring and leadership training programme prepared with external consultants. The course aimed to improve leadership skills and create a unified work force. The training was provided to people in supervisory roles. A copy of the LIST training materials was annexed.
56In response to concerns regarding an increase in the number of near misses in 2005 operations ceased for one day to attend a "safety day". All employees and contractors that regularly worked at the Douglas Project attended. The Operations Manager made a presentation regarding the safety obligations at the Douglas Project. The Operations Manager then sought from all of the attendees a written confirmation of acceptance of their role and responsibilities. A copy of the Agenda for the safety day was annexed.
57Managers, Undermanagers and Coordinators each had a personal behaviour chart which recorded what safety actions and leadership skills had been demonstrated by that individual over the course of a 12 month period. The personal behaviour chart focused on the person's leadership within their department. The personal behaviour chart sought to make sure that persons in leadership roles "walked the talk, not just talked the talk". The personal behaviour chart was discussed as part of a person's performance review.
58Mr Madeley stated that the safety performance in 2006 prior to Mr Evans' incident was good. In July 2006 the lost time injury frequency rate of 8 was based on the number of injuries times 1 million exposure hours. In the month prior to Mr Evans' injury the lost time injury frequency rate was 3.3. Attached to the affidavit was a graph reflecting the safety performance at the Douglas Project.
59In the financial year of 2007, the Douglas Project spent $0.948 M on capital risk reduction projects. In the financial year ending 2007 the overall spend for safety was $1.206 M.
60In the financial year ending June 2011 the defendant's safety spend was $21.321 M.
61Mr Madeley detailed the Health and Safety Management system that had been mapped to the requirements of AS4804 and legislative requirements. Operations within the BHP Billiton group achieved the requirements of the standards through implementation of policies, procedures and processes suitable to their particular operation. He stated relevantly, hazard identification and risk management forms part of planning processes supported by formal risk assessments, behavioural safety observations, inspections and on the job risk assessments. Hazards are managed by application of the hierarchy of controls. Implementation and performance of the health and safety management system are monitored and the system incorporates processes for continual improvement. A copy of the Health and Safety management system structure was annexed.
62Mr Madeley set out the current safety systems relevant to the incident and stated that in 2006, a scheduled review of the procedures and documents underlying the CMP was undertaken. The review involved consultation with key members of operation at each Illawarra Coal site, engineers and team leaders and lead to the development of the Working with Contract Partners Framework.
63This contemplates the life cycle of the contractual process from scoping of the work to contract management and performance. When the contracted work is being executed a daily site inspection is to be undertaken. A copy of the Framework was annexed. Procedures regarding Work Preparation and Works Execution have also been developed to support the Working with Contract Partners plan. An e-learning package was developed for each of the key steps of the Working with Contract Partners Framework which included request for contract; tender process; contractor evaluation and award contract; execute, manage and improve, and performance management and contract closure.
64At the date of the sentencing hearing, 278 employees and contractors had completed the e-learning package. The e-learning package for Contract Owners includes the key steps of contractor evaluation and award contract. At the date of the sentencing hearing, 90 employees and contractors had completed this e-learning package. There is also an e-learning package for Job Owners which includes the key steps of execute, manage and improve and performance management and contract closure. At the date of the sentencing hearing, 159 employees and contractors had completed this e-learning package.
65In the latter half of 2008, the Working at Heights Protocol was reviewed and revised. The protocol provides that where working at heights (above 2 metres) is unavoidable a safe work platform is to be used. Where a platform cannot be used, fall arrest equipment is used and the protocol provides guidance regarding its use. A copy of the Working at Heights Protocol was annexed.
66The Working at Heights Protocol is supported by a Working at Heights Permit system. This permit system includes requirements for the use of scaffolding on site, including the requirements for a scaff tag to be installed; for the scaffolding to be designed and erected by ticketed scaffolders, and for the scaffold to be independently inspected. A copy of the permit was annexed.
67Mr Madeley stated that Illawarra Coal and the defendant are active in the communities around Appin. In the financial year ending 2009 Illawarra Coal spent $1,056,839 M in the community and $948,041 in the 2010 financial year. The monies provided support community activities, community working groups and donations.
68BHP Billiton is also a regular entrant in the NSW Minerals Council Safety Award innovation competition. It also conducts its own internal safety innovation awards ceremony with entrants from across its global operations. Winners are selected by an external panel of safety experts. This programme has had great success in encouraging and supporting safety initiatives across the global operation.
69Mr Madeley stated that he was authorised on behalf of the defendant to express its sincere regret and remorse for the injury suffered by Mr Evans, and the impact of his injury on Mr Evans' family. The defendant also expressed sincere regret and remorse for the exposure of risk of injury to Mr Nees, Mr Withers, Mr Tynan and Mr Morrison, and for the breach of the OHS Act . He stated that he understood that the President of Illawarra Coal was aware of the incident and of the breach of the OHS Act and would be providing a letter of contrition to the Court.
70Mr Madeley concluded by stating that BHP Billiton had co-operated with the Department of Primary Industry (as it was then known) during its investigation into the incident. The co-operation consisted of the provision of resources to the investigators, access to the underground environment for investigative purposes and making persons available for interview, together with the provision of relevant documents.
71During cross-examination, Mr Madeley confirmed that both an Authority to Work and a Task Analysis were completed in relation to the scaffolding work. He said that he assumed that the documentation that was provided at the risk assessment that was carried out prior to the scaffolding work would be relevant to "the job of erecting, of carrying out the secondary support in 12 cut through". He acknowledged that Mr De Leeuw, an employee of Southern Colliery, identified a problem with Waco's engineering assessment and OHS work policy and management plan. Subsequently, Mr De Leeuw postponed the erection of the scaffolding until the issue with the documentation was rectified. Mr Madeley learnt of this after the incident had occurred. He stated that he did not know whether Mr De Leeuw reported back to the defendant about the Waco OHS work policy and management plan. He further gave evidence that Mr Larry Tynan received and signed the handover certificate following the completion of the scaffolding work. Mr Tynan was a member of Outbye Services.
72Mr Madeley acknowledged that he participated in the investigation of the incident. He added that he became aware, during the course of the investigation, that there was a deficiency in the handover certificate in that it did not certify that the scaffold was fit for use. He agreed that he was a "champion" of the working at heights protocol. In a document titled "Working@Height", Mr Madeley described what was meant by "standards used for testing". He said it meant that testing of the fall restraint equipment was completed by an industry recognised facility.
73In an interview with the Department, he contended that although the defendant was generally responsible for implementing the fatal risk control protocol, his individual role was to provide guidance in the area of working at heights.
74He accepted that the fatal risk control protocol should have been included in and referred to as part of the risk assessment for two reasons. First, because there was the potential for the scaffolders to work at heights in erecting the scaffolding, and secondly, alternative methods of reaching heights required to install scaffolding considered at or prior to the risk assessment may not have been appropriate.
75Asked whether the task analysis should have included a measure that an inspection must be performed according to recognised standards, he stated that he did not have an opinion on this. After the incident, he recalled having discussions about the fact that both the handover certificate and the scaffolding were incomplete.
76During re-examination, he accepted that scaffolding was not included under the "Contractor Equipment Inspection Checklist" because it was not a usual piece of equipment used by the defendant who engaged scaffolding firms, such as Waco. In doing so, it relied upon such firms to provide appropriate equipment and completing scaffolding tasks satisfactorily.