6(d) Informing and training workers in the relevant prescribed size and thickness of those glass sheets which necessitate the use of an overhead crane and a pinch grab in order to safely lift, carry or move them.
- These particulars can be conveniently dealt with together.
- The deceased was employed on 8 November 2012. He told Mr Dileo in his interview that he had worked at High Tech Aluminium (HTA) and had experience in the glass industry. HTA was a local business operated by members of the deceased's family. It manufactured aluminium glass windows and doors. It received pieces of glass cut to size for installation in window and door frames. The deceased worked in the assembly of windows and doors. Mr Dileo could not recall how long the deceased told him that he worked for HTA, but he believed the deceased undertook his apprenticeship with HTA.
- The defendant held toolbox talks at which safety matters were discussed. These were conducted by Mr Dileo, the factory manager, between July 2011 and December 2012 about once per fortnight. Mr Dileo instructed the workers as to the approximate weights of glass sheets according to their size and thickness, that panels of up to 30kg could be lifted by one person or 60kg by two persons and that panels that were too large or heavy were not to be lifted manually.
- Mr Spencer gave evidence that from his experience, a glass sheet that could be safely manually lifted by two people was no bigger than 2.4m long by 1.2m high. His experience was consistent with his observations of the workers at the factory.
- Cranes were used in the factory to lift large and/or heavy sheets of glass. There were three cranes installed in the factory. Mr Pham usually worked alone and would often refuse to move glass manually.
- The defendant's practice was to place new workers with more experienced workers to receive on the job training in the defendant's system and to be shown how to perform tasks safely (the buddy system). Inspector McDonald agreed that the buddy system was an accepted method of training and that persons could be considered "competent" within the meaning of clause 5 Work Health and Safety Regulation 2011 (the Regulations) as a result of receiving on the job training.
- Mr Chamoun told Inspector McDonald in an interview on the day of the incident that it was the usual practice of the defendant to use the buddy system to show new workers how to lift and manoeuvre glass.
- Mr Dileo gave evidence that Mr Smith was allocated as the deceased's buddy. At the end of the evidence the prosecution tendered the personnel file of Mr Smith that demonstrated he was terminated on 9 November 2012, the day after the deceased was employed. The contents of the file corroborate Mr Dileo's recollection to the extent that the deceased and Mr Smith were working together on the day Mr Smith was terminated.
- Mr Foot, the factory manager from January 2013 onwards, said that the training of new workers usually involved providing them with safety gear, a tour of the factory and then placing them with an experienced worker. Mr Foot could not recall the identity of the deceased's buddy.
- In submissions the prosecution questioned the experience of the deceased at the time that he began working for the defendant and whether or not he had a buddy after 9 November 2012. There were gaps in the evidence on these topics. The prosecutor had the power to investigate these matters [5] , but did not do so. The prosecution could have called evidence from the operators of HTA about his experience at the end of his employment with HTA, but did not do so. I am not permitted to speculate about the evidence or draw inferences to fill in gaps in the prosecution case.
- The lacuna in the evidence was insufficient for me to conclude that the defendant departed from its usual practice when it came to training the deceased. I am satisfied that even if he was not present at the training provided by Mr Dileo that the deceased received training through the buddy system in how to determine if a glass sheet could be safely lifted or moved manually.
- In any event from about February 2013, the deceased worked closely with Mr Mastroianni. They both worked in the factory cutting float glass in a dedicated area. Mr Mastrioanni had studied occupational health and safety modules at TAFE as part of his apprenticeship. He was experienced in the glass industry and was employed as a supervisor at the time of the incident.
- I infer that Mr Mastrioanni had considerable opportunity to supervise the deceased performing his everyday work. The deceased was considered to be a safe worker based on the observations of him by the supervisors, Mr Dileo, Mr Foot and Mr Mastrioanni.
- There was no evidence that before the incident workers were required to manually lift or handle glass sheets that were of such as size or weight that constituted a risk of injury, or in fact that they did so.
- At the time of the incident, Mr Pham knew that the safe way to access the required glass sheet was to use the crane to transfer the obstructing glass sheets to another A-frame trolley. He was involved in that process when approached by the deceased. He knew that the way that the deceased approached the task was unsafe, because the glass was too heavy and the procedure involved the deceased standing in the fall zone. He said no to the deceased on a number of occasions and he sought to dissuade the deceased from the procedure. He called out to the supervisor on multiple occasions to get help and/or I infer to have the supervisor intervene.
- Mr Pham's participation was necessary for the incident to occur. He failed to use the crane to lift and move the glass sheets that presented the risk of a crush injury, but he knew that the crane was required. He had commenced the work with that state of mind and sought to convince the deceased to allow him to continue using the crane.
- The prosecution relies on section 244(1) of the Act to argue that Mr Pham's failure to use the crane was the conduct of the defendant, and that this conduct was thereby condoned by the defendant. [6] Section 244(1) provides:
For the purposes of this Act, any conduct engaged in or on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.
- Section 244(1) is a deeming provision that has the effect of facilitating proof of the responsibility of a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38 per Lockhart J. In order to invoke the deeming provision the employee engaging in conduct must be acting within the actual or apparent scope of his or her employment.
- It was common ground that Mr Pham was not a supervisor and had no responsibility for training other workers. Accordingly, the prosecution cannot establish that it was within the apparent or actual scope of his employment to prohibit, warn, direct, train or supervise the defendant's workers as contemplated by the particulars of breach in sub-paragraphs 6(b)-(e) of the Summons.
- As to sub-paragraph 6(a) of the Summons, Mr Pham was not acting within the scope of his employment when he failed to use the crane because he knew what he was doing was unsafe and thereby he exposed the deceased to a very grave risk. Mr Pham's actions were not in accordance with his training and experience, they were inconsistent the duty imposed on him by section 28 of the Act and the express terms of his employment.
- In February 2013, the defendant had its employees, including Mr Pham sign a document entitled "Wollongong Glass Policies - February 2013". That document provided at [14] under the heading "Occupational Health & Safety:
It is the responsibility of each employee to;
1. Take reasonable care of the health and safety of others in the workplace;
2. Co-operate with the employer in their efforts to comply with OHS requirements such as following procedures and participating in hazard identification and reporting.
3. Use equipment properly in order to provide for the health and safety of other people in the workplace.
Serious breaches in the OHS procedures may result in instant dismissal.
- The use of the crane by Mr Pham in order to provide for the health and safety of the deceased was at the time of the incident was an express term of Mr Pham's employment and carried with it the threat of dismissal if it was not complied with.
- For these reasons, I am satisfied that Mr Pham was not acting within the scope of his employment and accordingly the deeming provision does not operate.
- The requirement to use equipment properly also applied to the deceased.
- I am satisfied that the defendant's system of work ensured by adequate training that was enforced by supervision, that the crane was used in the factory on pieces of glass that could not be manually lifted by two people, being panels weighing more than 60kg or bigger than 2.4m long by 1.2m high.
- I am satisfied that the defendant's system of work provided training to its workers on the weight of a glass sheet by reference to its dimensions.
- It was not reasonably practicable for the defendant to provide the training required by sub-paragraphs 6(a) and 6(d) in a written SWMS for the following reasons.
- First, a SWMS is only required by the regulations for "high risk construction work", which the work in the factory was not: clause 299 of the Regulations.
- Second, a person is competent within the meaning of clause 3 of the Regulations if they have acquired the knowledge and skills to carry out a task through training, qualification or experience.
- Third, whilst a SWMS may provide evidence that a defendant has in place a safe work procedure, it does not necessarily follow that its workers have been adequately trained in the content of a SWMS or that they will comply with it. Both Mr Pham and Mr Heaton were considered to be good workers. Neither of them could read the SWMS that was adopted on 14 March 2013. I have also found Mr Pham and the deceased failed to comply with the terms of the written policy contained in the February 2013 document relating to the use of the crane. The deceased failed to comply with the terms of the written policy relating to drug use set out in [13] of the February 2013 document, by being in the factory whilst under the influence of cannabis.
- Finally, for the reasons expressed the defendant trained the workers by oral instruction and on the job training in the matters required by the particulars of breach in 6(a) and 6(d) and those matters were enforced by adequate supervision.