WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited

Industrial Relations Commission (NSW)|1992-06-30|Before: Staunton J, Ms P

Industrial Relations Commission of New South Wales in Court Session

CITATION: WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] NSWIRComm 263

PROSECUTOR: WorkCover Authority of New South Wales (Inspector Wilson) PARTIES: DEFENDANT: Chubb Security Australia Pty Limited

Interpretation Act 1987 (NSW) Misuse of Drugs Act 1981 (WA) LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000

Beckwith v R (1976) 12 ALR 333 Butler v Fife Coal Co [1912] AC 149 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Ex parte Fitzgerald, Re Gordon (1945) 45 SR (NSW) 182 Inspector Clark v W L Meinhardt & Partners Pty Limited (Unreported) Matter No's IRC 1212 and 1213 of 1990: 30 June 1992 Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 Krakouer v R (1998) 155 ALR 586 Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales [2000] 102 IR 84 Rice v Henley (1914) 19 CLR 19 CASES CITED: Waugh v Kippen (1986) 64 ALR 195 WorkCover Authority of New South Wales v TAFE (1999) 92 IR 251 WorkCover Authority of New South Wales (Inspector Campbell) v James Gordon Hitchcock [2004] NSWIRComm 87 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] 112 IR 284 WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montoro Pty Limited (Unreported) CT 1218 of 1996: 19 December 1996 WorkCover Authority of New South Wales (Inspector Jorgenson) v Christopher John O'Keeffe and C J & S J O'Keeffe Building Pty Ltd (2004) NSWIRComm 397 WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1992) 92 IR 251 WorkCover Authority of New South Wales (Inspector Page) v Woolworths Ltd (Unreported) NSWIR Comm 95: 9 September 1994 WorkCover Authority of New South Wales (Inspector Webb) v Nowra Truck & Farm Equipment (Holdings) Pty Limited and ors [2003] NSWIRComm 340

PROSECUTION: Mr D Fagan SC Ms P McDonald SOLICITORS: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr S Rushton SC Mr S Prince SOLICITORS: Corrs Chambers Westgarth

6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J DATE: 29/7/2005

Matter No IRC 4908 of 2003 WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited (ACN 003 605 098)

Prosecution arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 263 1 In these proceedings, the defendant has been charged with an offence arising pursuant to the provisions of s 8(2) of the Occupational Health and Safety Act 2000 (the 2000 Act). The defendant has entered a plea of not guilty to the charge. 2 The offence alleged asserts that on 3 September 2001, the defendant being an employer, failed to ensure that people not in its employment, and in particular Ahmed Rashid, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking, while they were at the defendant's place of work contrary to Section 8(2) of the Occupational Health and Safety Act 2000. 3 The particulars of the offence alleged are that the defendant: (i) Failed to provide adequate information, instructions to its subcontractors regarding the risks associated with the cash in transit work to be performed at Punchbowl RSL ('cash in transit work'); (ii) Failed to provide to its subcontractors an adequate risk assessment of the cash in transit work;

(iii) Failed to inform its subcontractors of a previous incident in which an employee of a subcontractor performing cash in transit work was attacked in a street near Punchbowl RSL after carrying out a cash collection;

(iv) Failed to warn its subcontractors about the high risks associated with the performance of cash in transit work;

(v) Failed to provide or maintain systems of work for its subcontractors in performing the cash in transit work that was safe and without risk to health;

(vi) Failed to ensure that its subcontractors used safe equipment and plant in the performance of cash in transit work;

(vii) Failed to ensure that its subcontractors and their employees were adequately trained to perform cash in transit work. 4 The plea of not guilty is confined to one issue, that is, whether under s 8(2) of the 2000 Act, the offence alleged occurred at the defendant's place of work. The only place of work pleaded by the prosecutor in the summons is the Punchbowl RSL Club. 5 Before dealing with the contested issue, the agreed facts between the parties are as follows:

[1] At all material times, Inspector David Wilson of the Workcover Authority of New South Wales, Level 1, 60 - 70 Elizabeth Street, Sydney, was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the said Act to institute proceedings in this matter. [2] At all material times Chubb Security Australia Pty Ltd [ACN: 003 605 098], was a corporation whose registered office is situated at Level 1, 149 Milton Street, Ashfield in the State of New South Wales (the defendant). [3] At all material times the defendant was an employer. The defendant carried out the business of providing security services to its clients through its employees or through subcontractors, franchisees or licensees. [4] The defendant's business was divided into 4 divisions: · The Chubb Electronic Security; · Chubb Protective Services (this including Chubb Mobile Services - the Business Unit at the centre of this prosecution at the time); · Chubb Health · Chubb Traffic Management [5] The work of the division Chubb Protective Services included Chubb Mobile Services which involved work such as patrols, cash in transit and first line recovery of ATMs. ATS All Time Security Pty Limited [6] At all material times ATS All Time Security Pty Ltd (ATS) was a corporation and a subcontractor to the defendant and carried on the business of providing security services including security patrol work and cash-in-transit work conducted by "soft skin" vehicles, that is vehicles not protected by armour against ordinary handheld weapons. [7] At all material times ATS was an employer and employed Ahmed Rashid and Graham Pickering as security guards. Agreement between the defendant and Punchbowl Ex Services & Community Club [8] On or about 17 April 2001 the defendant entered into a Patrols Agreement No. 27159 with Punchbowl Ex-Services & Community Club Ltd (Punchbowl RSL) whereby the defendant undertook to provide security services to Punchbowl RSL as specified. [9] The scope of the security services covered by the agreement included the defendant providing attendances by its representatives at the premises of Punchbowl RSL at 1 Broadway, Punchbowl. The attendances included three (3) cash pickups on Monday, Wednesday and Friday and delivery of the collected cash to a bank. [10] Following the finalising of the agreement with Punchbowl RSL, details of the security services to be provided to Punchbowl RSL were entered into the defendant's computer system known as the Manpower Management System (MMS). This allowed the defendant to generate information to be provided to subcontractors about the cash pick ups. [11] During the period from about April to September 2001, the cash pick up work for Punchbowl RSL was performed under the agreement by subcontractors on behalf of the defendant. [12] From April 2001 until the end of July 2001 the cash pickup work at Punchbowl RSL was subcontracted by the defendant to another security company, State Security & Crime Prevention Pty Ltd (State Security & Crime Prevention). State Security & Crime Prevention performed the cash pickup work until approximately the end of July 2001. [13] On 17 April 2001 Mr Wayne Mar, the Chief Executive Officer of Punchbowl RSL signed the Patrols Agreement no 27159 on behalf of Punchbowl RSL. On 4 October 2001 Inspector Wilson conducted a record on interview with Mr Mar, where he asked Mr Mar: (20) Did all the persons carrying out the task of the collection of the days takings work for Chubb Security Australia Pty Ltd? A: As far as we were concerned, yes. (21) Did you become aware that these persons were not employed directly by Chubb Security Australia Pty Ltd? A: Only after the incident. In answer 21, 'the incident' referred to the attack upon Ahmed Rashid on 3 September 2001. ATS agreement with the defendant [14] On or about 1 May 2001 ATS signed a subcontract agreement no. 1906 with the defendant. Under the subcontract agreement ATS undertook to assist the defendant in the conduct of its business of providing security patrol services, alarm responses and/or casual guarding services for clients of the defendant by undertaking such assignments as are given to ATS by the defendant in respect of its* business.

[* The word preferred by the defendant at this point is 'the' such that the sentence would conclude 'in respect of the business' as distinct from 'its business' as preferred by the prosecutor. ] [15] Further under the agreement, ATS undertook to carry out all work and services required of it by the defendant in accordance with the directions issued by the defendant and in accordance with the relevant Sub-contractor's quotation and/or specification for such work and services. [16] Initially ATS assisted the defendant by the provision of night patrol services. At or about the beginning of August 2001, after the defendant had issued ATS with a request, ATS began assisting the defendant by performing the cash in transit work conducted by soft skin vehicles. This work included the cash pickups at Punchbowl RSL. [17] This was the first time that ATS had performed cash in transit work for the defendant. [18] When performing this work, the defendant required that its subcontractors and employees of its subcontractors wear a Chubb uniform and carry Chubb identification. The uniform and the identification were provided by Chubb to the subcontractor. Chubb identification consisted of a plastic identification card which was generally clipped onto the security guard's clothing. [19] The defendant required that its subcontractors and employees of its subcontractors seek assistance by radio from the defendant's control room located in Ashfield if required.

Information provided to the subcontractor by the defendant [20] The defendant provided to ATS client specification sheets which gave site and client details. The client specification sheet provided instruction on whom to contact at the site, the time the patrol officer should arrive at the site, the service to be performed and the days this should occur. [21] The defendant's clients, including Punchbowl RSL were told by the defendant that if a cash pick up service was late of if there was any problem with the cash pick up, they should contact the defendant's control room to inform it of the delay or the problem. Punchbowl RSL did not have any name, telephone number or other means or point of contact for the purpose of communicating with the provider of its cash in transit service other than the name of Chubb Security Australia Pty Limited as given on the Patrols Agreement dated 17 April 2001, which Punchbowl RSL were able to contact by telephone at its control room at Ashfield. [22] The client specification sheet for Punchbowl RSL which was provided by the defendant to ATS stated that the patrol officer would arrive on site Monday, Wednesday and Friday between the hours of 12.00 and 13.30 and take possession of a sealed wallet(s), transport the wallet to the ANZ Bank at Roselands and deposit the wallet with a teller. [23] The defendant also instructed its subcontractors that the vehicles to be used by (sic) in the cash pickups must have a drop safe fitted to the vehicle. The defendant supplied drop safes to ATS. [24] The defendant provided to ATS at the beginning of each week running sheets which contained details of the cash pickups that were to be completed for that week. [25] Prior to commencing work on a particular day, the security guards employed by ATS collected daily running sheets containing details of the jobs to be completed for the day from the ATS office. These daily running sheets were prepared by Chubb. [26] The daily running sheets contained information including the sites to be visited on the day and the service to be performed. The subcontractors were required by the defendant to complete the running sheets by entering the times that the pickups were made. [27] The defendant required that the running sheets be completed by its subcontractors and returned to it on a regular basis. [28] The Compliance Administrator employed by the defendant checked and verified the running sheets when they were returned. Any discrepancy or variation was reported to the Compliance Manager and State Manager employed by the defendant. [29] The defendant employed Patrol Inspectors or Mobile Services Inspectors whose duties included conducting audits and checks of the cash in transit services performed by its sub contractors. The Patrol Inspectors' duties included ensuring that sub contractors used the relevant forms and log sheets provided by the defendant, that client specifications and service times prescribed by the defendant were complied with and correctly recorded and that run sheets were up to date. These inspections were conducted at random, from time to time.

Procedure for cash pick up at Punchbowl RSL [30] When the security guards attended Punchbowl RSL they were required by the Club staff to show their Chubb identification at the reception desk. [31] The security guard would then be accompanied to the office and would enter the strong room to receive the sealed satchels containing the cash to be delivered to the bank. [32] Upon each pickup taking place, clients of the defendant (including Punchbowl RSL) were supplied with Chubb Protective Services document entitled Certificate of Banking/Escort Service . This document was a receipt issued by the security guard to the client. ATS was directed by the defendant that the Certificate of Banking/Escort Service was to be completed at each cash pick up recording the site, name of the person from whom the cash was collected, the number of wallets and amount in each wallet.

Mr Rashid [33] Rashid commenced employment with ATS as a security guard approximately 3 weeks prior to 3 September 2001. During the 3 weeks of his employment with ATS, Rashid completed the same run each week, namely run 221. The run included the cash pick up at Punchbowl RSL. [34] In providing the cash pick up services to Punchbowl RSL Rashid was required by ATS to work by himself as the work was designated by Chubb as a one man operation. Where the run was a two man operation the defendant would include that instruction in the client specification provided to the subcontractor. [35] The fee charged by Chubb to Punchbowl RSL was $456.22 per month, (exclusive of GST). Under the subcontract agreement between the ATS and the defendant, ATS was paid 60% of this amount. [36] The first time Rashid attended at Punchbowl RSL to perform cash pick up services he did not carry any form of Chubb identification. Ms Anne Marie Bell an office assistant/clerical officer employed by Punchbowl RSL therefore contacted the defendant by telephone to verify that Rashid was the correct person to conduct the cash pick up. The defendant confirmed that Rashid was the correct person. 3 September 2001 [37] On 3 September 2001 Rashid performed security duties including cash-in-transit work at Punchbowl RSL. He carried a handgun issued by ATS. [38] When contacted by Punchbowl RSL, Chubb immediately contacted ATS to confirm Rashid's identity and then contacted Punchbowl RSL to confirm his identity, Chubb could not otherwise confirm Rashid's identity. On that day (3 September 2001) Rashid was wearing a Chubb shirt, a jacket and trousers. [39] To perform the cash in transit work, Rashid borrowed a motor vehicle from a friend Moeen Arshad. The motor vehicle was a Ford Meteor Sedan Registration No. PCL 538. [40] The motor vehicle was a soft skin vehicle and was not modified to include any security devices such as remote central locking, two way radio or a drop safe. Rashid was not provided with a panic alarm. [41] At approximately 12:30 pm on 3 September 2001 Rashid arrived at Punchbowl RSL Club to carry out a cash pick up. He parked his motor vehicle in the director's car park which is adjacent to the Club building. [42] After picking up the cash Rashid completed and signed a Certificate of Banking/Escort Service no 081350 . [43] He left the club building to return to his motor vehicle. As he approached the motor vehicle he was attacked and a robber took from him the cash. During the struggle in which the cash was taken, Rashid was shot and fatally wounded by the robber. [44] Julius Adnan ('Adnan'), a banking clerk employed by Punchbowl RSL observed Rashid and another man struggling beside Rashid's car in the car park. The other man was holding a gun in his hand and Adnan heard the words " Give me the bag ". [45] The man shot Rashid, took the money and the motor vehicle and drove away very quickly. Rashid died as a result of the gun shot wound. [46] The defendant was informed by staff employed by Punchbowl RSL of the incident. A representative of the defendant then contacted Safdar Ghafoor, the director of ATS and informed him of the robbery. Staff employed by the defendant attended at Punchbowl RSL shortly thereafter. [47] On 4 September 2001 Paul Price, the State Manager of the defendant informed Punchbowl RSL in writing that the defendant was terminating the agreement effective immediately. [48] The defendant completed and lodged a WorkCover NSW Accident Form No98-192361 dated 3/09/01 with the WorkCover Authority following the incident. Relevant legislative provisions and offence elements

6 Section 8(2) of the Occupational Health and Safety Act 2000 provides: 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. 7 Section 4, Definitions of the Act provides, inter alia, as follows: Place of work means premises where persons work. Premises includes any place, and in particular includes: (a) any land, building or part of any building, or (b) any vehicle, vessel or aircraft, or (c) any installation on land, on the bed of any waters or floating on any waters, or (d) any tent or movable structure. 8 For Chubb to be liable for the offence charged, the elements of the offence must be present and established by the prosecutor beyond reasonable doubt. Those elements, not disputed, are: (i) The defendant was an employer; (ii) The non-employee (Mr Rashid) was exposed to risks to his or her health and safety; (iii) The said risks arose from the conduct of the defendant's undertaking; (iv) The non-employee (Mr Rashid) was at the defendant's place of work (alleged to be the Punchbowl RSL); (v) There was a causal link between the defendant's breach and the risk to the non-employees safety. 9 In relation to the above elements, the defendant conceded elements (i), (ii), (iii) and (v). In relation to element (ii), the defendant qualified that admission by stating that it is not admitted that each and every particular of the charge is made out. The admission is only to that element of the offence being established. 10 In addition, the defendant admitted element (v) above subject to the prosecutor establishing the place of work. The defendant further qualified any ultimate admission as to causal link in the following terms: ... it should be noted that this does not mean that the breach caused the result in the present case, namely the death of Mr Rashid. There is no admission that any breach of the absolute obligation to ensure that Mr Rashid was not exposed to risks to his health and safety resulted in his death.

11 As the agreed facts disclose, at the time the alleged offence occurred, Mr Rashid was working alone, undertaking the pick up of cash from the Punchbowl RSL and taking it to the local ANZ Bank to be deposited. It was as he was leaving the Punchbowl RSL that he was attacked and fatally wounded in the car park of the Club. 12 That the Punchbowl RSL Club and its attendant car park was, on 3 September 2001, both a 'place of work' as well as 'premises' as defined in s 4, Definitions of the Act, is unquestioned. The issue is whether, on that day, it was Chubb's place of work.

13 Notwithstanding the authorities to which I have been referred, what is the employer's 'place of work' is a matter of fact to be determined by the circumstances of the case: see WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] 112 IR 284 at [63] and WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1992) 92 IR 251 at 263. 14 I agree with counsel for the defendant that many authorities of this Court that have had cause to consider the question of an employer's 'place of work' have done so within the context as to whether or not the immediate environs of a 'place of work' were within the application of that expression as it is used in the Act. See, for example, Inspector Clark v W L Meinhardt & Partners Pty Limited (Unreported) Matter No's IRC 1212 and 1213 of 1990: 30 June 1992 at 12 where Fisher CJ, in considering 'place of work' in the circumstances then before him, said: With respect to the duty under s 16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed. 15 The broad approach of Fisher CJ in Meinhardt was adopted by Peterson J in WorkCover Authority of New South Wales (Inspector Page) v Woolworths Ltd (Unreported) NSWIR Comm 95: 9 September 1994. That broad approach, in my view, is encapsulated by the words of Fisher CJ in Meinhardt that a defendant's place of work 'includes every area which may be affected by the work being done'. 16 In Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales [2000] 102 IR 84 at 96 the Full Bench of the Court affirmed the broad construction of 'place of work' as determined by Fisher CJ and Peterson J in Meinhardt and Woolworths respectively. As they said at [51]: While each case will indeed be a question of fact, we consider that a broad construction of the term 'place of work' in s 16(1), consistent with the approach of Fisher CJ and Peterson J in the cases cited, is also appropriate in this case. 17 Further, in Mainbrace the Full Bench quoted with approval the judgment of Hungerford J in Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40. In that judgment, Hungerford J dealt with the proper approach to the construction of s 16 of the Occupational Health and Safety Act 1983 (the statutory predecessor to s 8(2) of the Occupational Health and Safety Act 2000). In doing so, his Honour referred to Butler v Fife Coal Co [1912] AC 149 at 178-179 where Lord Shaw said: The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistent with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. 18 An analogous approach was taken by Isaacs J in Rice v Henley (1914) 19 CLR 19 at 22 where his Honour said: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language and the Act will reasonably permit. 19 Of more recent times in this Court, the meaning and application of 'place of work' has been considered in diverse factual circumstances. See, for example, WorkCover Authority of New South Wales (Inspector Webb) v Nowra Truck & Farm Equipment (Holdings) Pty Limited and ors [2003] NSWIRComm 340 where Boland J concluded that employees of the defendants were at a place of work when they were driving up a hill in the defendant's paddock counting cattle. 20 See also WorkCover Authority of New South Wales (Inspector Jorgenson) v Christopher John O'Keeffe and C J & S J O'Keeffe Building Pty Ltd (2004) NSWIRComm 397 where Haylen J, after considering all relevant authorities, determined that the footpath outside the relevant driveway and the roadway around it by which access was gained to the worksite was a place of work. 21 Finally, in WorkCover Authority of New South Wales (Inspector Campbell) v James Gordon Hitchcock [2004] NSWIRComm 87 Walton J, Vice-President found that the defendant's articulated lorry was a 'place of work'. In his judgment, Walton J, Vice-President considered the decision of Peterson J in WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montoro Pty Limited (Unreported) CT 1218 of 1996: 19 December 1996 where his Honour dealt with the issue of place of work. In that case, the defendant Boral Montoro had contracted with A V Jennings Limited to supply and fix roof tiles on a new residence under construction. Boral Montoro sub-contracted the work to one of its regular sub-contractors G C & Meyne Roofing Pty Limited. The work was carried out without incident but without any fall restraint being provided. Boral Montoro was charged with an offence under s 16(1) of the Occupational Health and Safety Act 1983 to which it pleaded not guilty. 22 In defence of its position, counsel for Boral Montoro submitted, inter alia, that the mere existence of a contractual arrangement whereby persons are sub-contracted to undertake work would not demonstrate an undertaking or place of work of the defendant Boral Montoro. 23 In his judgment, Peterson J found against Boral Montoro. He found that the building site of A V Jennings Limited was the defendant's undertaking and place of work while the roof tiling work was being performed. In coming to that view, his Honour said: It seems to me this case is somewhat analogous to the elevator situation dealt with by Maidment J in the Boral Johns Perry Case . His Honour held that an elevator, in respect of which the defendant had a maintenance contract, was not the defendant's place of work while no maintenance work was being done thereon. In the same way the building site of Jennings would not be the place of work/undertaking of Boral Montoro except when the defendant is engaged in roof tiling work. I would so conclude. 24 What is clear from the judgment of Peterson J is that he considered both the concept of 'undertaking' and 'place of work' in his considerations. On one view, a reading of the judgment as to submissions made as well as his Honour's view is that the two expressions were used synonymously. In any event, his Honour determined, notwithstanding that Boral Montoro or its employees played no part in fixing the roof tiles, the work undertaken in that task by its sub-contractors was Boral's 'place of work/undertaking'. 25 The facts and circumstances of the matter before me are somewhat analogous with the circumstances confronting Peterson J in Boral. In the present factual circumstances, the defendant Chubb had a written agreement with the Punchbowl RSL. That agreement, known as a Patrols Agreement signed on behalf of Chubb on 17 April 2001, obliged the defendant to provide security services at Punchbowl RSL 'by its representatives'. As its representative, Chubb sub-contracted that work, initially to State Security and Crime Prevention Pty Limited and, from about the end of July 2001, to ATS. 26 Counsel for the defendant submitted, on the day of the incident involving Mr Rashid, the Punchbowl RSL and its environs was not a 'place of work' for Chubb or any of its employees in any respect. The defendant submitted that the car park of the Punchbowl RSL, or indeed the Punchbowl RSL Club itself, could not be the place of work of Chubb because: (i) it was not a place where Chubb's employees work; (ii) it was not a place adjacent to where Chubb's employees work; (iii) it was not a place which was affected by work done by Chubb's employees. 27 As well, it was submitted, it was important to distinguish between 'place of work' and 'undertaking' for the purposes of an offence under s 8(2). On that distinction, Walton J, Vice-President in Hitchcock said at [310]: Although there are obvious connections (indeed, an employer's place of work will always be part of its undertaking), the two concepts do not always overlap. An employer's undertaking may be present at a place which is not the employer's place of work and the key to the distinction lies in the examination of performance of work in the circumstances of a particular case. 28 As earlier stated, Chubb has conceded that the work being performed by Mr Rashid on 3 September 2001 was part of its undertaking. 29 In relation to offences under s 8(2) of the Act, it is necessary, in the first instance, to consider the aspects of 'undertaking' and 'place of work' separately: see WorkCover Authority of New South Wales v TAFE (1999) 92 IR 251 at 262. 30 In the first instance, counsel for the defendant pointed to the occupational health and safety legislation of other states which, it was submitted, in relation to similar legislative provisions as expressed in s 8(2) of the Occupational Health and Safety Act 2000 (NSW), had no geographical limitation to the expression 'place of work' that s 8(2) allegedly gave rise to. 31 In my view, such a submission is irrelevant. If I am to construe 'place of work' for the purposes of the matter before me, I must do so in accordance with the relevant provisions of the New South Wales legislation and no other. 32 Counsel for the defendant contended that an artificial construction should not be placed on the words 'place of work' as they appear in s 8(2) of the Act. To that end, he submitted, it was not to the point that ATS is an employer and performed work as a subcontractor to Chubb. That background certainly points to Mr Rashid's activities at Punchbowl RSL being part of Chubb's undertaking but, he submitted, it cannot go to establishing the geographic question of Chubb's place of work. To suggest that it did would be excessively straining the construction of a penal statute. Reliance for that proposition was placed on the principle espoused by Jordan CJ in Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 at 186 as follows: If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving a penal provision wider scope than its language admits. 33 That principle was relied upon by McHugh J in his judgment in Krakouer v R (1998) 155 ALR 586 at 600 relating to the application of ss 11 and 33 of the Misuse of Drugs Act 1981 (WA) in the proceedings then under appeal. 34 At the outset, the approach to adopt in relation to the construction of a statute is provided in s 33 of the Interpretation Act 1987 (NSW) that provides: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 35 The underlying purpose and object of the provisions of the Occupational Health and Safety Act 2000 is to secure the health, safety and welfare of persons at work. That clear objective, which is essentially beneficial in nature, requires that an employer must ensure the health, safety and welfare at work of his (or its) employees (and non-employees as the case may be). Associated penal provisions apply where an employer is shown to fail in relation to his or its statutory duty. 36 The meaning of the words 'must ensure' has long been settled and affirmed at appellate level as that expressed by Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470 as 'guaranteeing, securing or making certain'. It has been described as an absolute duty. 37 It has long been recognised that there can be conflict in interpreting beneficial legislation broadly in order to achieve its purpose while at the same time not extending the penal provisions of the same legislation beyond its strict words. This issue was addressed by Gibbs J in Beckwith v R (1976) 12 ALR 333 at 339 as follows: The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences... The rule is perhaps one of last resort. That statement was endorsed by the High Court in Waugh v Kippen (1986) 64 ALR 195. In doing so, the High Court addressed the issue at 200-201 as follows: In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: 38 The legislature clearly intended to afford protection to Mr Rashid by placing that primary responsibility on his employer ATS. The legislature also has extended that obligation to an employer of non-employees at the employer's place of work. On that latter point, counsel for the defendant contended that there was 'no intention revealed that the legislature intended to extend the operation of the Act to 'principal contractors simpliciter'. It was not made clear what was intended by the addition of the word 'simpliciter' to a principal contractor's obligations under the Act but if it is being used to somehow limit a principal contractor's responsibilities under the Act, it does not, without more, do so. The overriding objective of the Occupational Health and Safety Act 2000, like its predecessor, is accident prevention. Pursuant to the provisions of s 8(2), the duty to provide a workplace free of risks to safety applies equally to principal contractors. Section 8(2) cannot be read down to in some way limit the proper application of the words 'risks to the health and safety arising from the conduct of the employers undertaking'. Ultimately, it is necessary to look at the 'intention of the legislature from a fair meaning of the words ... it should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have' (Waugh v Kippen). 39 In the facts and circumstances before me, the contractual and associated arrangements as between Chubb and ATS and its employees tied Chubb inextricably and on an ongoing basis to the work being performed on its behalf at the Punchbowl RSL by employees of ATS. For example: (i) The work and the system of work were determined by the defendant. The defendant determined which of its subcontractors would perform certain runs. As well, the work to be carried out by the defendant's sub-contractors was in accordance with the defendant's instructions and job specifications.

(ii) Through the client specification sheets given to the subcontractor, the defendant dictated whether the run was a one man or two man operation. Details such as the date and time of pickups were stipulated in the client specifications. The manpower and mode of operation for cash pickups, including those from the Punchbowl RSL were also implicitly set by the defendant by the price that it agreed with its client ($35 per pickup) and with its subcontractor (60% of this amount).

(iii) The defendant issued running sheets to the subcontractor which designated the runs and the order in which runs would be undertaken.

(iv) The information contained in the client specification and the running sheets was obtained and controlled by the defendant and distributed to subcontractors.

(v) The subcontractors were required to wear Chubb uniforms and carry Chubb identification in carrying out work pursuant to the subcontract. (vi) The defendant required that its subcontractors and employees of its subcontractors seek assistance by radio from the defendants control room in Ashfield as and when required in carrying out their work.

(vii) The Certificate of Banking/Escort Service which was completed by the subcontractors as a receipt for the cash picked up was a document on Chubb Protective Services/ Chubb Security Australia Pty Ltd letterhead. (viii) Punchbowl RSL did not have any name, telephone number or other means or point of contact for the purpose of communicating with the provider of its cash in transit services other than the name given on the Patrols agreement and the Certificate of Banking/Services. The name and details of contact were the defendant's. (ix) When Ahmed Rashid attended Punchbowl RSL for the first time without adequate Chubb Identification, Anne Bell, an employee of Punchbowl RSL contacted the defendant to verify that he was the correct person to conduct the cash pick up. (x) Under the Patrols agreement with Punchbowl RSL the defendant undertook to notify the customer in the event of any emergency. An emergency was defined in the agreement to mean an occurrence at the premises of which the company's representatives becomes aware and which the representative reasonably believes could adversely affect the security of the Premises. 40 Further, the defendant is actively engaged in the business of providing security services, including cash in transit services. It was Chubb who actively sought the contract with the Punchbowl RSL Club. But Chubb went much further than merely entering into a contract to provide services and then, without more, simply sub-contracting that work to ATS. 41 Chubb had an ongoing contractual and beneficial financial relationship with the Punchbowl RSL to provide cash in transit services. In sub-contracting the provision of those services, that relationship, as I have already denoted above, ensured that Chubb maintained an ongoing interest, involvement and control over the way ATS undertook its sub-contracted services. Chubb was, at all times, figuratively speaking, looking over the shoulder of ATS to make sure ATS was undertaking its role according to the job specifications dictated by Chubb. As further evidence of Chubb's ongoing involvement and control, three provisions of the sub-contract agreement between Chubb and ATS are particularly pertinent. They are: Work Standards 5.01 The Sub-contractor will carry out the work required of it under this agreement in a proper and professional manner and in conformity with the applicable standards and any other requirements of the Company made known to the Sub-contractor from time to time ("the Standards"). 5.02 Any failure of the Sub-contractor to comply with the Standards shall entitle the Company to require the Sub-contractor to make good the failure at the Sub-contractor's expense and to the reasonable satisfaction of a representative of the Company. 5.03 The Sub-contractor will promptly comply with the Company's reasonable reporting requirements relating to the work undertaken by the Sub-contractor under this agreement. ... Safety 12.01 The Sub-contractor shall comply with all relevant legislative requirements relating to work place health and safety and shall if required by the Company, provide the Company with written evidence of compliance by the Sub-contractor with its obligations under such legislation. ... Quality Assurance 18.01 The Sub-contractor undertakes to work in accordance with the applicable provisions contained in the applicable Company Policy and Procedures Manual as it relates to the works undertaken by the Sub-contractor . (emphasis added) 18.02 The Sub-contractor undertakes that all work provided under this agreement by the Sub-contractor shall be provided by accredited personnel with appropriate qualifications and at a level of performance reasonably acceptable to the Company. 42 In short, in order for Chubb to meet its own contractual obligations to the Punchbowl RSL, Chubb had a direct, ongoing and controlling involvement in the work being undertaken by ATS at the places in which it undertook that work on behalf of Chubb. As the facts disclose, Chubb monitored the activities of ATS and its employees while they were at work. Also, if any assistance had been sought by Mr Rashid as he collected the cash from the Punchbowl RSL on 3 September 2001, he was required to seek assistance by radio from Chubb's control room in Ashfield. 43 By his presence at the Punchbowl RSL and its attendant car park on 3 September 2001, Mr Rashid was at a place of work. Further, he was undertaking that work in a place and in circumstances directly affected by ongoing directions from Chubb arising from a system of work put in place and continuing to be done by Chubb employees (as per Meinhardt). In my view, as the factual circumstances disclose, the Punchbowl RSL Club and its attendant car park was both an undertaking and a place of work of the defendant at the time of Mr Rashid's attendance at the Club on 3 September 2001 while performing cash in transit services. 44 I am satisfied beyond reasonable doubt that on 3 September 2001, the Punchbowl RSL and its attendant car park was a place of work for the defendant pursuant to the provisions of s 8(2) of the Occupational Health and Safety Act 2000. I rule accordingly.

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.

Occupational Health and Safety Act 2000(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)

Cited By (5)