(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:
(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.
(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.
(4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.
27 One of the essential elements of an offence under s 26(1) is the contravention by a corporation of any provision of the Act or regulations - in this case, the contravention by the Company of s 92. For the purpose of s 26(1), this is simply a matter to be proved beyond reasonable doubt: sub-section (2) makes it clear that there may be a conviction under s 26(1), whether or not the corporation has been proceeded against or convicted. Sub-section (3) also emphasises the extent to which s 26(1) operates independently of any relevant criminal proceedings involving the corporation.
28 Although the syntax of sub-section (3) is somewhat awkward, it does suggest the following scenarios: it appears that a director may be found guilty of an offence under s 26(1), and yet, in separate criminal proceedings, the corporation may be acquitted of the underlying offence. On the other hand, it is conceivable that, notwithstanding a conviction against a corporation, the director may be acquitted in separate proceedings on the basis that one of the essential elements - the contravention by the corporation - has not been proven beyond reasonable doubt. Although such cases would be highly unusual (and extremely unlikely to occur in practice), it seems to us that sub-section (3) admits these possibilities. This reinforces our preliminary view that in appellate proceedings against a conviction under s 26(1), the contravention by the corporation is open to challenge on the ordinary principles governing appeals - as is any essential element - regardless of the status of the corporation or any proceedings against it.
29 Contrary to the respondent's submissions, WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd (2000) 102 IR 40 does not stand in the way of this preliminary view. If anything, it supports it. In determining whether a certificate of conviction was admissible pursuant to s 178 of the Evidence Act 1995, the Full Bench held that the fact of a conviction of a corporation is not a fact in issue in separate proceedings against a director or manager of the corporation under s 50 of the 1983 Act (which is equivalent to s 26 of the 2000 Act for the purpose of this discussion). Rather, the essential element of the offence was the contravention of the Act by the corporation not the conviction of the corporation.
30 However, as foreshadowed, Mr Tisdale has not persuaded us that there are any grounds of appeal in relation to his conviction under s 26(1). There is nothing to suggest that Magistrate Maughan failed to take adequate account of the terms of the improvement notice. Notwithstanding the appellant's submissions, improvement notices are not acts of parliament but are to be construed having regard to their nature and purpose, the way in which they are issued, and the statutory framework which gives them legal force. They are administrative instruments designed for the purpose of enforcing occupational health and safety legislation, protecting against safety hazards and preventing injuries arising from such hazards. They should be read in a practical, common sense manner, albeit having due regard to the consideration that a breach of an improvement notice may give rise to criminal sanctions.
31 The appellant attached particular significance to the concluding sentence in improvement notice no. 242912: "OR 3) You may comply by any other means." Focussing on this sentence begs the question: with what requirement must the Company comply? It is clear from his decision that Magistrate Maughan turned his mind to this question; correctly identified the answer; and immediately adverted to the fact that the means of compliance were not prescribed: "The notices required T&M to prevent persons from accessing dangerous parts of the machine(s) including table top and carriage by guarding or other means". Magistrate Maughan's later reference to fencing emphasised his Worship's awareness that alternative means of compliance would be acceptable: guarding was mentioned in the notice, but fencing was not.
32 We agree with Mr Moore's written submission that if compliance had been achieved by other means, the existence or non-existence of a fence would be irrelevant. But that submission highlights the issue his Worship had to (and proceeded to) determine: had compliance been achieved by other means? His Worship found, on the facts, that although the Company had taken some steps in an effort to comply with the notice, these steps were inadequate: persons could still gain access to the rear of the machine(s) which posed a risk to safety. The fact that Magistrate Maughan observed that the machine remained unfenced does not indicate that his Worship was immutable as to methods of compliance; it was simply an observation that, in the absence of satisfactory alternatives, one practical, effective method of preventing access to the rear of the machine(s) (which the Company had ultimately employed by early April 2002) had not been implemented by the necessary date.
33 Nor can we see any basis for questioning his Worship's findings that, on all of the evidence, the Company had not established any reasonable excuse for failing to comply with the notice and that Mr Tisdale could not possibly be said to have been acting with all due diligence. On the evidence, the fencing which was ultimately employed to prevent access to the rear of the machine was completed within approximately six weeks. The Company had just over 9 weeks between the date of the improvement notice and the compliance date to prevent access to the rear of the machine; moreover, it was well aware through its negotiations in relation to the issue and withdrawal of prior improvement notices arising from the same risk to safety that access to the rear of the machine was a matter of concern for Inspector Sequeira. In fact, Inspector Sequeira's contemporaneous notes of his meeting with Mr Tisdale on 5 December 2001 show that at that time, the work Mr Tisdale was intending to undertake to obviate the risks to safety included fencing the machine. There is no basis to suggest that it was not reasonably practicable to undertake that work and have it completed by the compliance date. We reject Mr Moore's submissions that it was improper for his Worship to take earlier discussions into account (as going to Mr Tisdale's awareness that action was required to satisfy the WorkCover Authority) when considering whether Mr Tisdale acted with "all due diligence".
The Section 31N(a) Conviction
34 Section 31N(a) of the 1983 Act provides:
31N Offence: obstruction and compliance
A person must not:
(a) obstruct, hinder or impede an inspector in the exercise of the inspector's functions under this Division
35 The information and summons the subject of Mr Tisdale's s 31N(a) conviction contained the following description of the offence:
Today, the informant informs me a Justice of the Peace, that the defendant has committed the following offence:
Breach of section 31N(a) of the Occupational Health and Safety Act, 1983. The defendant being a person who was present at premises known as T & M Industries (Aust.) Pty Limited located at 23 Britton Street, Smithfield in the state of New South Wales did on 25 July 2001 obstruct, hinder or impede an inspector in the exercise of the inspector's functions.
Date of Offence: 25 July 2001
Full Offence Description:
The defendant, on the said date, at the said place, obstructed, hindered and impeded an inspector in the exercise of the inspector's functions by reason that the defendant:
(a) refused to allow the informant access to employees of T&M Industries (Aust) Pty Limited at the premises;
(b) [w]as abusive and aggressive towards the informant throughout the course of his inspection of the premises.
36 Inspector Sequeira's notebook contained the following entry for 25 July 2001:
25/7/01 - 2.15pm - Attended premises of "T & M Industries Pty Ltd" at 23 Britton Street Smithfield NSW 2164 in response to complaint 1-2791. Issues - 1) No guard fitted on punching machine 2) One employee working alone at nightshift on punching, laser cutting and bending machine. Concern if accident occurred, no-one would know until morning shift starts. Met by Terry Tisdale. Owner. Denise Walsh - chairperson of Safety Committee. Employer stated that she was unavailable to attend inspection. I requested the attendance of another employee I observed in the factory however Mr Tisdale stated that he was not available to attend inspection. I advised Mr Tisdale of my powers under section 31 of the O H and S Act and my request to ensure an employee representative was present during an inspection of the workplace, to ensure all parties / stakeholders were fairly represented. Employer then escorted me to a room in premises where he asked me to wait. I waited for 10 minutes then advised him that I was going outside to make a phone call. I telephoned to speak to Glenn McCarthy to advise him of difficulties I was having with employer however he was not present in the office. Met by Denise Walsh Contract Manager. No Safety Committee. Also met by Ming Tir, Foreman.
Inspected Turret Punch Press, "Vipros 358 King" model "305080K". Machine in operation at time of inspection, punching holes in sheets of metal. X-axis carriage moves metal sheet. Sheet being moved is hazardous at times, it overlaps the table and acts as a guillotine. Inspected 'Vipros 255' Turret Punch Press model only type on premises. In use at time of inspection. Person operating machine at time of inspection Van Ha, machine operator. Sheets of metal overhanging table at times. Railing fence around machine, however this does not prevent person accessing moving parts of machine.
Inspected "Lasmac LC-2415 CX II". No apparent guards - need to review with specialists. I asked Mr Tisdale if any employees were ever required to work on machinery such as the turret punches or lasers, unsupervised with no other person present. He said "yes, they know what they are doing". I advised him of the potential risks associated with this practice and asked him what control measures had been implemented in case of an emergency. He stated that none were required.
During inspection, Mr Tisdale was extremely obstructive and abusive during inspection. At one point, I advised him that it was an offence to obstruct an Inspector under the OHS Act 1983. Prior to vacating premises, I advised Mr Tisdale that he may be served with fines for 2 unguarded Turret punches and Improvement Notices for these plus unsupervised employees. Mr Tisdale stated that it was not his responsibility to guard machinery supplied to him without guards. I advised him that his obligations under s 15 OHS Act 1983 were such that all machinery in use at his premises must be securely fenced. Left premises at 3:20pm after Mr Tisdale refused to arrange a suitable appointment time to revisit him to serve Notices.
37 In evidence-in-chief, Inspector Sequeira elaborated:
Q. And did you seek to approach or talk to anyone else at the work place at the time?
A. Yes when I entered the factory area of the premises where various machines were in operation, I attempted to address a person I believed to be an employee in the work place and Mr Tisdale indicated that that person was not available for me to speak to, they were busy with work or words to that effect. I spent some time seeking to have an employee representative during my inspection but Mr Tisdale continually indicated that no one was available.
Q. For what purpose did you want to speak to this unidentified person?
A. For the purposes of having a greater understanding of how safety operated in that work place, how machinery operated in that work place, for the purpose of assessing safety issues in the work place if there were in fact any.
and:
Q. You gave evidence in relation to Mr Tisdale refusing you access to speak to another person on that day, you recall that?
A. Yeah.
Q. Can you describe to his Worship what you observed about Mr Tisdale's manner during that?
A. Yes about his manner, well he was extremely belligerent, hostile, yelling at me, telling me - saying things like I didn't know what I was doing, I've never seen machinery before and it was - basically his manner was belligerent, hostile, standing over me. Every time I moved around the work place he'd stand over me, and I'd start to talk to an operator of the machine and he would continue to berate me and yell at me and tell me I didn't know what I was doing, that's essentially his manner.
38 In cross-examination, Inspector Sequeira gave the following evidence consistent with his evidence-in-chief:
Q. Now can I suggest to you that when you were talking to people such as Van Ha you were talking to them in a conversation between you and he and no one was saying anything at the time?
A. Every time - to answer that honestly every time I tried to speak to anyone in that work place Mr Tisdale intervened and spoke over me.
and
Q. And you could have requested Miss Walsh, Mr Tisdale, Ming Tihr, any person to provide to you the information concerning the safe working procedure?
A. Under the circumstances it was very, very difficult to do that.
Q. But did you ever make the formal request to any person that they do that?
A. I made a number of attempts with Mr Tisdale and talking with other people in that work place to have them answer questions required of me.
and
Q. And what I am suggesting to you sir is this that you were allowed to carry out the inspection as you wanted on that day?
A. No that's not correct.
Q. Can I say you were observed to carry out the inspection by Miss Walsh and Mr Tir and Mr Tisdale?
A. Yes.
Q. You approached various operators and asked them questions uninterrupted?
A. Incorrect.
Q. Well can I suggest to you Miss Walsh will say at this Commission you were uninterrupted?
A. You may suggest that but I was interrupted.
Q. And in terms of that you were allowed to carry out any inspection you required?
A. That's not correct.
39 Mr Tisdale denied raising his voice at the Inspector or being hostile. According to Mr Tisdale's evidence, when Inspector Sequeira attempted to speak to an employee soon after arriving at the factory, Mr Tisdale informed him that that employee was not the appropriate person to speak to about machinery. In cross-examination Mr Tisdale explained that the person was the painter, who was leaving to pick up some paint. There was no evidence that this explanation was offered to Inspector Sequeira at the time of the inspection or indeed at any time prior to the hearing. Nor was Mr Tisdale's version of the conversation - including the assertion that the man was leaving the factory and the assertion that the person was not appropriate (as distinct from being too busy or not available) - put to Inspector Sequeira in cross-examination.
40 Mr Tisdale gave the following evidence in cross-examination concerning the employees who ultimately attended the inspection:
Q. The inspector indicated to you that he wanted to speak to an employee, a representative, do you recall that?
A. I do.
Q. And you told the inspector to wait in the reception room I think you said?
A. No, the main meeting room.
Q. The main meeting room, correct?
A. Correct.
Q. And during that time you then brought in Ms Walsh?
A. I did.
Q. And Mr Tehr?
A. I think we met Mr Tehr in the factory.
Q. And Ms Walsh is not a sheet metal worker is she?
A. She has a degree in building economics.
Q. And her position was contract manager I think?
A. Contracts.
Q. And Mr Tehr was a foreman on the shop floor, I take it?
A. Sheet metal.
Q. And you selected those two persons to accompany the inspector on his inspection, did you not?
A. I thought they were the most qualified people, correct.
41 Ms Walsh and Mr Ha also gave evidence about the inspection on 25 July 2001; Mr Ming Tir did not. Mr Ha's evidence did not bear upon the issues relevant to s 31N(a). Ms Walsh's evidence was relevant to the extent that she described herself and Mr Tisdale as standing apart from Inspector Sequeira during his inspection of the factory floor. This was largely consistent with Mr Tisdale's evidence but contradicted Inspector Sequeira's evidence in cross-examination that he was accompanied by Messrs Tisdale and Ming Tir and Ms Walsh during his inspection of each machine. This difference was not put to Inspector Sequeira in cross-examination; nor was it put to him that Mr Tisdale was not with him throughout the inspection. Ms Walsh further stated that Inspector Sequeira "seemed satisfied with everything that he'd inspected" and "did not indicate that he had not carried out what he wanted to do that day". She did not give any evidence concerning Mr Tisdale's demeanour, and conceded that she did not observe Mr Tisdale's behaviour before she met Inspector Sequeira at the board-room immediately before going to the factory floor.
42 Magistrate Maughan found:
The Information against Terrence Tisdale pursuant to s 31N(a) of the Occupational Health and Safety Act 1983 alleges that on 25th July 2001 he obstructed, hindered, or impeded and [sic] inspector in the exercise of the inspectors functions.
The evidence clearly establishes that on 25/7/01 shortly after entering the factory inspector Sequeira asked to speak to an employee he saw by virtue of the authority given in Section 31I of the Act. The inspector gave evidence that Tisdale refused to allow him to speak to that person. That evidence is supported by Tisdale's evidence that he determined that this was not an appropriate person to speak to and that he should talk to someone else, ultimately referring the inspector to his foreman Mr Ming Tir.
Both Crown and Defence have referred the Court to Hinchcliff [sic] -v- Sheldon (1955) 3 All E R 406 in which that Court said, inter alia, "Once it is established that the inspector and the appellant were ad idem about the course they should jointly follow to give effect to the inspectors desire we would be loath to conclude that there was in fact any obstruction in the requisite sense. We do not consider a momentary expression of view resiled from shortly thereafter to constitute such an offence."
The evidence in this case before me clearly establishes that the inspector and Tisdale were not "ad idem" nor was there "a momentary expression of view that was resiled from shortly thereafter".
The crown put that the evidence established that Mr Tisdale's manner was hostile, abusive, and belligerent. It is the Courts finding given the standard of proof required that Mr Tisdale's manner was decidedly uncooperative and to a degree hostile but did not amount to being abusive or belligerent.
In finding that the inspector was prevented by Mr Tisdale from speaking to an employee of his choice in these circumstances the Court finds the offence proved against the defendant.
43 We note with respect that the quotation attributed by Magistrate Maughan to Hinchliffe v Sheldon [1955] 3 All E R 406 was in fact from the judgment of the Full Bench of this court in Praglowski v Inspector Robins (WorkCover Authority of New South Wales) (Cahill J, Vice-President, Maidment and Peterson JJ, unreported, 6 July 1998).
44 Mr Tisdale asserts in the Application for Leave to Appeal and Appeal that Magistrate Maughan committed an error of law in determining that the facts, as found, established the elements of an offence under s 31N(a) of the 1983 Act.