WorkCover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure t/as Australian Inland Energy and Water - [2003] NSWIRComm 408 - NSWIRComm 1992 case summary — Zoe

NSWNSWIRComm

WorkCover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure t/as Australian Inland Energy and Water

[2003] NSWIRComm 408

Industrial Relations Commission (NSW)|1992-11-09|Before: Staunton J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-11-09

Before

Staunton J, Mr J

Source

Original judgment source is linked above.

Judgment (176 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure t/as Australian Inland Energy and Water [2003] NSWIRComm 408 Prosecutor: PARTIES : Inspector Belley Defendant: Australian Inland Energy Water Infrastructure t/as Australian Inland Energy and Water FILE NUMBER: IRC 709 of 2002 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of not guilty - application for permanent stay of proceedings refused - insufficient evidence to be satisfied beyond reasonable doubt that there was a failure to identify hazard as pleaded - failure to be satisfied beyond reasonable doubt that there was a failure to control risk as pleaded - defence under section 53 of the Act established - summons dismissed - costs to be determined. LEGISLATION CITED : Occupational Health and Safety Act 1983 Jago v District Court of NSW (1989) 168 CLR 23 Walton v Gardiner (1993) 177 CLR 378 Rodney Morrison v Joy Manufacturing Co Pty Ltd (2002) NSWIR Comm 366 McMartin v Broken Hill Company Pty Ltd (1988) 100 IR 241 Inspector Davies v Prospect Electricity, unreported, 9 November 1992 WorkCover Authority (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 CASES CITED : Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 State Rail Authority v Dawson (1990) 37 IR 110 WorkCover Authority (Inspector Farrell) v Ross Colin Morrison (2001) NSWIR Comm 325 Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 WorkCover Authority of NSW (Inspector Mayo Ramsay) v Maitland CC (1998) 83 IR 362 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Australia) Pty Ltd (1999) 101 IR 239 Kennedy-Taylor(NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 Cullen v State Rail Authority (NSW) (1989) 31 IR 207

[89]

76 The accepted procedure for the completion of a Hazard Risk Assessment form in relation to work to be performed was explained by Mr Jamieson in his statement as follows: Q13. Can you tell me when one of these forms should be completed? A. Yes, it should be completed before the start of any works to be carried out on or near and in a number of other circumstances where there is perceived to be a risk. Q14. Have you had any input on the risk controls listed on the HRA form? A. I had the task of reviewing the HRA procedure nine months ago but the form itself was not reviewed at that time. The procedure and the form are being reviewed again at present. Q15. Do you know why Craig, John and Peter completed only one form for the 3 or 4 different jobs they were doing on that day? A. No, I don't know. Q16. Was it common practice to complete one Hazard and Risk Control Assessment (HRA) form for the day or the job even if different sites were being visited? A. Yes, in some instances, but only when the tasks were similar at each site and each site was similar. The requirement was still to review the assessment at each site even if there was no requirement to fill out a new sheet at each site. This has been reviewed and considerably tightened since the accident. Q17. If the work groups are self-supervising how would you know if each site is being assessed for hazards? A. We require that the HRA sheets are submitted with the timesheets and the jobs on the timesheets are compared to the HRA forms filled out. Prior to the accident I can't say how rigorously this was being done but it has tightened up since then. Random audits are also carried out and there was not one occasion when a HRA form hadn't been filled out as far as I am aware. Q18. If you look at the form 15270, Crystal Lane Sub 1 is not even listed, so how could they have assessed the hazards at that site? A. They certainly could have assessed the hazards of the site but there is no evidence that the hazards have been assessed.

[93]

80 On that issue Mr Collins evidence was more equivocal though no less confirmatory as to the requirement for him to undertake the hazard risk assessment at the workplace. As he said: Q. And opposite that is a paragraph - do you see the last sentence says 'This risk assessment does not replace the assessment to be done by employees immediately prior to the work?' A. Yes. Q. Do you see what I am referring to? A. Yes. Q. And you understood, didn't you, that you had to conduct a process of - whatever team members were there had to look at the hazards or risks, identify them and then work out what were the control or minimisation measures for the identified hazards and risks? A. Yes. Q. You understood that from this training? A. Yes. Q. And if you look over the next page, to page 5 of 15, opposite 4.5 - can you read 4.5 until the words in bold, to yourself? A. Where did you say to read up to? Q. The words concluding with in bold 'Do not just fill in the form.' You have read those four lines? A. Yes. Q. You knew as early as 26 May 2000 what is set out opposite 4.5 in those four lines was what you had to do - it was not optional. It was mandatory - it was mandatory when you went somewhere like Crystal Lane Sub 1? A. Yes. Q. And it was not something you forgot on the afternoon of the accident? A. Well, I just can't recall whether we did it or not. We may have done it. We may have done it. Q. I will deal with it in two stages. You may very well have gone through that process of identifying all hazards, assessments and prioritising the risks and selecting the control measures to control the risks prior to the work being done at Crystal Lane Substation 1, is that what you are saying? A. Oh, I just don't remember discussing it at all. I don't know. Q. The second part of that is - you have already said, because this is what you told Mr Corney - you thought one of you had filled in the form as the second part, the end part of the process, that's right is it? A. Yes. Q. Is it the effect of your earlier evidence that at least you certainly did not do the mandatory part of the risk assessment process because you didn't even look into the side doors, that's right isn't it? A. Yeah I - yeah, I can't remember discussing that with Craig, no. Q. And you can't remember looking in the side doors to the horizontal earthed metal bars because I think you have already agreed if you had looked you would have seen them? A. Yes.

[119]

A. Bus bars are required to be strongly supported because of the electrical forces that can occur usually either inside or outside and there is usually a non metallic insulating material - it can be sheet timber or some of the plastic materials and then that material is then supported by metal, usually steel. Q. Why is metal, usually steel, involved as part of this support arrangement you just described? A. It is strong and cheap. Q. And why did you say it needs to be strong? A. Again I say that while it is just sitting there the weight of the bus bar is not particularly onerous or heavy and fairly light supports could do that but if there is an electrical short circuit outside the bus bars there can be huge magnetic forces that can pull the bus bars together or apart and the bus bars have to be supported in a very strong manner by metal through insulating materials so that they don't distort on the occurrence of a short circuit outside the cubicle or switchboard concerned. Q. Have you heard the expression angle iron frame in the context of this type of arrangement? A. Angle irons are often used as they are an efficient structural steel supporting system and yes, a frame in the bus bar arrangement are to sit by themselves, a frame rather than to say piece be supported by a box outside a frame is required to hold the angle irons in place. Q. You looked at the photos, was there the use of angle irons for this Crystal Lane Substation 1? A. Appeared to be, yes. Q. Have you considered whether one could use sheet metal instead of angle irons in this sort of structure? A. Sheet metal can be used externally but then sheet metal in the configuration probably would not have been strong enough. Q. Now, whatever the metal be, in your experience and qualification, is there a need for the metal to be earthed? A. Yes, there is a number of reasons why the metal needs to be earthed. First of all, for the application of a person who might be near it, a person needs to know whether the material is either earthed or potentially some of the wires. And it is the practice and it is also in the rules that all metal which is exposed, which can be touched or can be nearby, is formally and strongly earthed.

[131]

113 An amount of evidence was received about the use of insulation mats or sheets that may have been able to be placed around the earthed metal framework prior to Mr Salisbury attempting to place the clamp on the bolt of the live bus bar. The critical evidence about this matter was given by Mr Clarke, the expert called by the defendant. In Mr Clarke's opinion, the application of insulation material to the earthed metal frame in the situation at Crystal Lane Sub 1 would, of itself, be 'extremely difficult and quite hazardous.' As he explained: In that particular insulation, insulation of bare earth metal would have been extremely difficult and quite hazardous. The amount of work required to insulate the angle irons and other metal, particularly the angle iron near the live bus bar, would have taken quite a long time, probably in the order of an hour or so. And it would have brought the person trying to insulate the bare metal in close contact with the bare metal. They would have to go into the switchboard further than they did or the kiosk which contains the switchboard so that applying insulation by the usual form is wrapping it with plastic or rubber sheet and then tying off with cable ties would have been quite impractical and indeed rather dangerous in that situation of that switchboard. 114 Mr Clarke's evidence on that issue was not challenged by the prosecution. In final submissions, counsel for the prosecution conceded, properly in my view, on the evidence before me, that I could not be satisfied beyond reasonable doubt that insulating the earthed metal framework was a procedure that could be safely carried out as a means of controlling the risk. As such, I could not be satisfied as to the alleged failure by the defendant as particularised. In the alternative, even if I could be so satisfied, on the evidence of Mr Clarke, the procedure of insulating the metal framework was, quite simply, not reasonably practicable in the circumstances of Crystal Lane Sub 1.

[154]

134 Section 4 of the document sets out the procedure that underpins the defendant's approach to Hazard and Risk Assessment. That section states as follows: 4. PROCEDURE 4.1 A Hazard and Risk Assessment (HRA) will generally be carried out by AIE personnel or accredited designers for projects on which they are preparing designs or costings, with control measures identified, recorded and incorporated into the design and costing of the project, and will be supplied to supervisors and field staff for reference. AIE staff or accredited service providers undertaking the construction works must undertake their risk assessment by listing the identified hazards on the Hazard and Risk Control Assessments form (Appendix A) prior to commencing works. 4.2 (a) AIE supervisors may undertake their own safety risk assessment of a worksite to facilitate the programming of sufficient man power, time and resources to complete the works. Any identified control measures shall be recorded and provided to field staff for reference. This risk assessment does not replace the assessment to be done by employees immediately prior to the work. The supervisor shall also ensure time is allocated so that field staff are free to carry out a worksite safety risk assessment prior to the commencement of work. In the case of fault and emergency works, once the site and nature of work is known, staff will carry out an assessment prior to commencing the task. (b) Supervisors of contractors are responsible for ensuring that the contractors have completed their own worksite safety risk assessment. 4.3 The work crew, (which may be only an individual, either from AIE or a contractor), is to carry out a worksite safety assessment in accordance with this procedure and record the findings on the assessment form provided, refer Appendix A. All members of the work crew are to participate in the assessment and measures as identified are to be implemented. REMEMBER all members of staff are responsible for their own safety and the safety of those they work with. Whatever your status within the work crew you should diligently apply yourself to this task and encourage others to do so as well. If for any reason there is an unexpected change to the worksite environment which significantly impacts upon the risks as previously identified, a review of the assessment will be undertaken by the work crew to ensure any new or altered hazards are identified and appropriate control measures taken. All members of the work crew are to be made aware of any changes by the leading hand or person deemed in charge of the crew. Anyone who attends a worksite after the assessment has been completed will be informed of the findings of the assessment and all control measures taken, and, if joining the crew, must sign the assessment form. 4.4 Upon completion of works, if any staff member has reason to be concerned as to the effectiveness of the worksite safety assessment and/or any control measures taken, they must bring it to the attention of their supervisor at the earliest opportunity. 4.5 It must be emphasised that the purpose of completing the HRA is to perform a hazard assessment to identify all hazards, assess and prioritise the risks, and to select control measures to control the risks, prior to doing the work. DO NOT JUST FILL IN THE FORM. The form is arranged to simplify the assessment process as much as possible, while still considering all the possible hazards and available controls. If all the perceived hazards are not listed for your task (this will be the case in most instances), then please write them into the 'other' section of the form and continue on the rear of the form if necessary. If you feel that there is something missing from the form, please contact your immediate supervisor, your regional manager or the manager network, who can arrange to have the form reviewed and amended.

[157]

136 It is clear that hazard and risk assessment procedures were in place, were documented in some considerable detail and had been the subject of in-service education on the part of the defendant. There was also an audit process to back up the hazard and risk assessment procedures. The Hazard Risk Assessment form formed part of that audit process. To start with, the completed Hazard Risk Assessment form was sent into the defendant's administrative section in order to audit compliance. As well, there was a random audit undertaken at the defendant's worksites. As Mr Jamieson stated in evidence: Q. How did you actually do these audits? Did you go to the Hazard Risk Assessment forms on a random basis and have a look at them? A. No. In fact this was done by picking a job at random. Q. Picking a job? A. Visiting the job on site, and checking the documentation live at the site, whilst the job was being carried out, talking to people, looking at what they are doing and asking them to take you through exactly what processes they would put in place, what they meant by those on the form, and identifying anything that way. Q. So you looked at the form at the site at the time that you went? A. That is correct, so when you got to the site for the job, either you got there right at the start of the job which was probably there, and you basically watched the job right through the discussion process, the filling out of the form. More often you got to the job while the job was ongoing, and the form was already filled out, along with any documentation, and you would stop the job, bring people together and ask them to take you through how they had completed the paper work, how they had carried out the identification process, what they had put in place. You have picked box A, show us what you have done. Q. When you do this audit, do the employees know you are going to do it? A. No, it was a random audit, which is partly why you will see the same people were audited five times. Some people were working in the same period. It was purely a random process that on any one day the auditor would take the daily job list, find out where the crew were working, and it was unannounced on site. 137 Mr Collins and Mr Salisbury were familiar with the audit process and in the seven month period preceding the accident on 12 October 2000, both had been audited on a number of occasions.