WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New - [2004] NSWIRComm 247 - NSWIRComm 2004 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New

[2004] NSWIRComm 247

Industrial Relations Commission (NSW)|2004-08-25|Before: Walton J, Marks J, Staunton J, Mr P, Ms J

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Court

Industrial Relations Commission (NSW)

Decision date

2004-08-25

Before

Walton J, Marks J, Staunton J, Mr P, Ms J

Source

Original judgment source is linked above.

Judgment (120 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 APPELLANT: WorkCover Authority of New South Wales (Inspector Paul Mansell) PARTIES : RESPONDENTS: Mr Jian Chen Obing Pty Limited trading as Old But New FILE NUMBER: IRC6841 and 6842 of 2003 CORAM: Walton J Vice-President; Marks J; Staunton J CATCHWORDS : Appeal from decision of the Chief Industrial Magistrate imposing global penalty on corporate and personal defendant - appeal as to manifest inadequacy of penalty and extent of evidence going to defendants incapacity to pay - appeal conceded by respondent - matter proceeded as a redetermination of sentence - principle of restraint in determining Crown appeal on sentence - objective seriousness of the offences - specific deterrence relevant notwithstanding corporate respondent moved factory operations to China but continues to operate retail business in New South Wales - prior convictions of the respondents on similar charges - evidence now before the Court as to respondents capacity to pay fine - publication order sought under s115(1) of the Act refused - process that should be followed where order sought under s115 of the Act - pleas entered at the earliest opportunity - appeal upheld - penalties imposed - orders as to costs. Industrial Relations Act 1996 Crimes (Local Courts Appeal and Review) Act 2001 Occupational Health and Safety Act 1983 LEGISLATION CITED : Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996

[28]

18 Omitting the formal parts, the agreed statement of facts in relation to the January period encompassing the fifteen breaches disclosed the following: (i) At all material times the first defendant conducted its business of the manufacture of furniture from its premises at 59 Anzac Street, Greenacre in the state of New South Wales ('the premises'). (ii) At all material times the first defendant conducted its business under the registered business name of Old But New. The first defendant retails its product through retail stores trading under the name 'Old But New' throughout the Sydney metropolitan area. (iii) At all material times the defendant was an employer. (iv) At all material times the second defendant, Mr Jian (John) Chen , was a working director of the first defendant with day to day control of the company and was in a position to influence the conduct of the first defendant. (v) At all material times the first defendant employed Guo Shui Zheng ('the worker') as a carpenter. (vi) At all material times the first defendant employed approximately 8 to 12 employees. (vii) The first defendant's premises consisted of a factory which contained a number of woodworking machines which included, inter alia, power saws, panel saws, work benches, spray booth, an office area and a kitchen and amenities area. (viii) At the time of his inspection on 14 January 2002 the Informant made the following observations at the first defendant's premises: (a) There were approximately seven (7) to eight (8) persons, none of whom were operating machinery but were cleaning the factory; (b) There was waste timber and sawdust covering most of the floor space in the factory area; (c) There were three panel saws which included an SCM (SCM), a MSW Magic (MSW) and a Panhans (Panhans); (d) The SCM and MSW were fitted with outrigger/overhead guards. The Panhans was fitted with only an outrigger; (e) The SCM and MSW guards were not adjusted to be used above the blade on either machine; (f) Riving knives were fitted to both the SCM and MSW panel saws. No riving knife was fitted to the Panhans blade area at the time; (g) The spray booth used to apply stain to timber was not in use, however the paper filters were not adjusted across the suction area of the booth. The paper filters were in need of cleaning; (h) Adjacent to the spray booth were seven (7) unopened 60 litre drums of solvent; (i) Staff were using compressed air to clean machines and product; (j) The amenities area, which consisted of a meal room, adjoining change room with hand basin, adjoining toilet with two toilet bowls and a urinal, were in an unsanitary state. One of the toilet bowls was broken and the urinal was boarded off and the drain did not function. (k) The off cut timber on the floor of the premises constituted a trip hazard. (l) The guarding on the panel saws was not adequate to satisfy the requirements of AS 4024.1- 1996 Safe Guarding of Machinery - General Principles. (m) The guarding on the panel saws was not adequately adjusted so as to constitute an effective barrier between the operator and the cutting blade of the saw. (n) The storage of the drums of solvent was contrary to the provisions of AS 1940, 1993 - The Storage and handling of Flammable and Combustible Liquids. (o) The use and condition of the spray booth at the premises did not comply with the requirements of Clause 177 of the Occupational Health and Safety Regulation 2001 (the Regulation). (p) The first defendant failed to identify the hazards posed by the presence of timber off cuts over the floor of the premises as required by Clause 9 of the Regulation. (q) The first defendant failed to ensure that a clean amenities area was provided and maintained as required by Clauses 18 and 19 of the Regulation. (ix) As a consequence of Inspector Mansell's inspection on 14 January 2002, the following Improvement Notice was issued to the First Defendant pursuant to Section 91 of the Occupational Health and Safety Act , 2000 in respect of the use of compressed air to clean machinery:

[39]

19 Following his inspections of the defendant's premises on 14, 17 and 18 January 2002, Inspector Mansell prepared Factual Inspection Reports as follows: (i) INSPECTION 14 January 2002 On 14 January 2002 following the receipt of a complaint, I attended the premises at 59-61 Anzac Street Greenacre 2190. As I approached the building, I observed Mr. John Chen, Director of the company Obing Pty Ltd. He also observed myself, and proceeded me into the factory. Inside the factory, I introduced myself to Mr Chen and asked if he could accompany me on an inspection of the premises. The following were my observations. (1) There were approximately 7-8 persons, none of them were operating machines. All appeared to be cleaning up. (2) There was waste timber over much of the floor space in the factory, being offcuts and sawdust. (3) I observed three panel saws, a SCM, a MSW Magic and a Panhans. (4) The SCM and MSW were fitted with outrigger/overhead guards. The Panhans was fitted with only an outrigger. (5) The SCM and MSW guards were not adjusted to be used above the blade on either machine. (6) Riving knives were fitted to both the SCM and MSW panel saws. No riving knife was fitted to the Panhans blade area at the time. (7) The spray booth used to stain timbers was not in use, however the paper filters were not adjusted across the suction area of the booth. Paper filters in the booth were in need of a clean. (8) Adjacent to the booth area were 7 X 60 litre drums of solvent, which were yet to be opened. (9) Staff cleaning up at this time were using compressed air hoses to blow off machines and product. (10) The amenities being a meal room with adjoining change room and hand basin, adjoining a dual toilet and urinal, which were in a very poor state. One of the two toilet facilities was broken, while the urinal was boarded off, the drain did not work. (ii) INSPECTION 17 January 2002 On 17 January 2002, I attended the premises of Obing Pty Ltd 59-61 Anzac Street, Greenacre 2190. There I also met Christina Yu, receptionist for the company. I attended to issue some Improvement notices to the company following my visit of 14 January 2002. As I was about to do this the following occurred: (1) I was talking with Mr. John Chen adjacent to the SCM panel saw. He had been speaking to the operator of this machine. Following that discussion, the operator pulled the overhead guard over to line up with the saw blade of that saw. (2) As this was happening, I observed a person use the Panhans panel saw to cut some timbers. I was informed that that person was ZHENG Guo Shiu. The machine was not fitted with any guard about this saw blade and did not have a riving knife fitted to the saw blade area. (3) While standing beside the Panhans panel saw, Mr Chen was speaking to an operator of the MSW Magic panel saw. This person made adjustments to the overhead guard on the MSW Magic panel saw. He pulled the overhead guard over to line up with the machine saw blade. (4) I took photographs of this machine at the time. (5) I issued the improvement notices prepared earlier.

[43]

21 Again, omitting the formal parts, and avoiding duplication of undisputed facts already before the Court, the agreed statement of facts relevant to the August period encompassing nine breaches disclosed the following: (i) The first defendant's premises consisted of a factory which contained a number of woodworking machines which included, inter alia, power saws, panel saws, work benches, spray booth, an office area and a kitchen and amenities area. (ii) On 19 August 2002 the Informant attended the first defendant's premises in company with Tony Pavert. (iii) At the time of his inspection on 19 August 2002 the Informant made the following observations at the first defendant's premises: (a) There were approximately eight (8) to nine (9) persons in the factory; (b) There was waste timber and sawdust covering most of the floor space in the factory area; (c) There was a table which had been freshly painted with lacquer which was positioned in a passageway near the spray booth; (d) There was a strong smell of solvent in the air; (e) Staff who had applied the lacquer had worn only dust masks instead of vapour masks; (f) There were three panel saws which included an SCM (SCM), a MSW Magic (MSW) and an Altendorf F45 (Altendorf); (g) The SCM, MSW and Altendorf were fitted with outrigger/overhead guards but these guards were all out of position; (h) During the inspection the Informant observed Mr Chen pull these guards back into position over the saws; (i) There were electric leads lying on the floor amongst timber off-cuts. (j) One electrical lead was damaged and had been taped up with masking tape near the plug; (k) A docking saw had an electrical lead which had been repaired by tape having been applied to it; (l) The first aid box had no first aid supplies within it. (m) The off cut timber on the floor of the premises constituted a trip hazard. (n) The guarding on the panel saws was not adequate to satisfy the requirements of AS 4024.1- 1996 Safe Guarding of Machinery - General Principles. (o) The electrical lead connected to the docking saw had not been adequately inspected, tested or repaired contrary to AS/NZS 3760 - 2001 In-service safety and inspection and testing of electrical equipment (the Standard). (p) The Standard is called up by the Code of Practice for Technical Guidance which came into force on 1 September 2001. (q) The guarding on the panel saws was not adequately adjusted so as to constitute an effective barrier between the operator and the cutting blade of the saw.

[106]

64 It is useful at this point, in our view, to restate the proper approach to the totality principle as part of the sentencing process. This was expressed in some detail in the judgment of the Full Bench of the Court in Crown in Right of the State of New South Wales (Department of Education and Training v Keenan) (2001) 105 IR 181 at 192-193. It is appropriate in our view to restate those principles relevant as they are to the matters before us: [21] ... There was a well-established practice in New South Wales that when structuring sentences for multiple offences the trial judge could impose one sentence which represented the totality of the overall criminality involved in the offences. It was not considered necessary to consider each sentence separately to ensure that it appropriately represented the criminality involved in each particular offence: ... [22] In Pearce v The Queen (1998) 194 CLR 610, however, the majority of the High Court rejected this approach. That case concerned an offender charged with two offences - the malicious infliction of grievous bodily harm and the infliction of grievous bodily harm during a break and enter - which both arose out of the same incident. The majority, McHugh , Hayne and Callinan JJ, stated: [45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. (emphasis added) [46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. [47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. [48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. (references omitted, emphasis added) [23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved. [24] The approach in Pearce has been applied on a number of occasions by the Court of Criminal Appeal: see, for example, R v Kalache [2000] NSWCCA 2, at [106] to [111]; R v Wheeler [2000] NSWCCA 34 at [34] to [37]; and Giam (No 2) (1999) 109 A Crim R 348 at 351. [25] The approach in Pearce has also been applied by this Court in relation to multiple offences under the Occupational Health and Safety Act : see, for example, WorkCover Authority of New South Wales v State Rail Authority (unreported, Kavanagh J, IRC 97/7032-7036, 13 October 1999); WorkCover Authority of New South Wales (Inspector Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29; WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284; WorkCover Authority of New South Wales v Company B Ltd [2000] NSWIRComm 119; and WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/a Boral Asphalt (No 2) (2000) 101 IR 458 at 470-471.

[112]

70 Taking into account what we consider to be the proper approach in the determination of these matters, we determine penalty in these matters as follows, mindful as we are of the principle of restraint in determining sentence on appeal as expressed in Dinsdale and Weathertex earlier referred to: (i) In relation to the corporate defendant, we impose a penalty of $4000 for each of the twenty four offences giving a total penalty of $96,000. In applying the principle of totality and arriving at a penalty that we believe properly reflects the overall criminality of the corporate defendant's conduct in relation to those breaches, we assess a total penalty in respect of the twenty four matters of $50,000. To that figure we allow the discount of 25 per cent as assessed for entry of the early plea of guilty. Accordingly, there is a total penalty with respect to the twenty four offences of $37,500. We consider the most sensible approach is to apportion that figure equally between the twenty four breaches. Accordingly, we impose a penalty of $1562.50 in relation to each of the offences with respect to the corporate defendant. (ii) We turn now to the personal defendant, Mr Chen. We are mindful that his Honour found, at first instance, he was in every respect the controlling mind of the corporate defendant and played a very active role in the conduct of the corporate defendant's business by his presence at the workplace in a direct and hands on way. Having regard to the twenty three offences in relation to the personal defendant, we determine a penalty in respect of each offence of $1000, giving a total penalty of $23,000. In applying the principle of totality to properly reflect the defendant's overall criminality in these proceedings, we determine a final penalty in respect of all offences in relation to the personal defendant of $15,000. In applying the discount as assessed for the early plea of guilty, we determine a total penalty of $11,250. Apportioned equally as between the offences results in a penalty with respect to each offence of $489.13.