WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd - [2002] NSWIRComm 2 - NSWIRComm 2002 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd

[2002] NSWIRComm 2

Industrial Relations Commission (NSW)|2002-01-10|Before: Hungerford J, Mr P, Hon Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-01-10

Before

Hungerford J, Mr P, Hon Mr J

Source

Original judgment source is linked above.

Judgment (106 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd (No 2) [2002] NSWIRComm 2 PROSECUTOR WorkCover Authority of New South Wales (Inspector Steven Robins) PARTIES : DEFENDANT Labour Co-operative Limited FILE NUMBER: IRC 2974 of 2000 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Prosecution for failure to ensure health, safety and welfare at work of employee - Plea of not guilty - Offence found proven - Assessment of appropriate penalty - Sentencing process - Objective nature and quality of offence - Subjective features - Defendant a labour hire company - Client also charged and sentenced for an offence arising out of same incident - Consistency in sentencing - Deterrence - No prior convictions - Contrition - Conviction entered - Fine imposed, with moiety to prosecutor - Defendant to pay prosecutor's costs in assessed amount. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15 s 16 s 53 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 Dowling v Overtop Pty Ltd (1998) 86 IR 319 Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 CASES CITED : Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 R v Rushby [1977] 1 NSWLR 594 Robins v CSR Ltd, t/as CSR Timber Products [2001] NSWIRComm 296 Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd (No 1) [2001] NSWIRComm 223 HEARING DATES: 10/18/2001 DATE OF JUDGMENT: 01/10/2002

[10]

3 The circumstances in which this matter arose and the immediate events leading to the subject incident were set out extensively in the earlier judgment (in pars [3], [5]-[15], [25]-[26] and [38]-[44]). For present purposes, however, they may be shortly stated. It appeared the defendant was a labour hire company providing labour to a wide range of industrial, commercial, construction, professional and clerical clients in the Newcastle area, including CSR Timber Products at Raymond Terrace; Ms Lister was engaged by the defendant to perform duties as a labourer at the premises of CSR Timber Products pursuant to an arrangement between it and the defendant under which the defendant regularly supplied labour. She attended two induction programmes by the defendant on 15 June 1998 (induction programme for CSR Timber Products) and on 19 June 1998 (occupational health and safety programme); she then attended work training at CSR Timber Products on 23 and 30 June and on 1 July 1998. Initially, Ms Lister worked, according to the evidence, on "a simple job", and on the third day, 1 July 1998, she was moved to the Boardmaking Area of the plant on production work as a "back end operator" in the team of workers operating heavy presses with movable racks. Up to the time of her work at the Raymond Terrace plant, Ms Lister had no experience in operating heavy machinery and she had no qualifications related to the operation of plant. In her own words during an interview with the prosecutor, Mr Robins, on 17 February 1999 she described what then occurred as follows : I was standing at Press 4 waiting for the automated loading rack to load Press 4 with wet lap. While the Press was being loaded I was standing on the right hand side of the Press, near the ladder. When the automated loading rack moved away, I walked to the left side of Press 4 to find the tool used for spotting. I walked to the left side of Press 4 as this is the side that the other three presses are spotted up from. When I got to the left side of Press 4, I realised that you have to spot up this press from the right side. As I went to walk back to the right side of Press 4, I was slowly trapped by the automated unloading rack, which was sent without my knowledge. When I was trapped I remember reaching for something to stop the automated unloading rack, but nothing happened. Ms Lister attributed the accident to her inexperience in the area, having worked according to the system of work concerned for only five or six hours, and to the lack of trip wires on the automated rack which could have been used to stop its movement in an emergency. She considered she could have been killed as a result of the incident.

[98]

22 The fundamental duty of the Court in the sentencing process has repeatedly been said "to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace" but with "a corresponding duty ... not to impose such a penalty as would be oppressively high": see Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at p 388 as approved by the Full Bench in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at p 643; (2000) 99 IR 29 at p 60 in pars [73]-[74]. In satisfying that duty, the established principle, as I understand it, is to the effect that the penalty must reflect the nature and quality of the particular offence in an objective sense with proper weight to subjective considerations in tempering any penalty but where such subjective considerations are necessarily subsidiary to the main considerations that determine the appropriate amount of punishment: see Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 at p 339; Dowling v Overtop Pty Ltd (1998) 86 IR 319 at p 333; and Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at p 475. In light of those principles, and particularly having in mind the submission of Mr Macken that any penalty imposed in this case should not include a component for general deterrence, it is pertinent to repeat what Street CJ said in R v Rushby [1977] 1 NSWLR 594 at pp 597-598 as to the sentencing process, as follows : The law upon the matter of sentencing is well stated in the judgment of the Court of Appeal in New Zealand in R v Radich [1954] NZLR 86 at p 87, a passage which has been cited in other judgments on numerous subsequent occasions: "... one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, present the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment." That passage was cited with approval by a Full Bench of the Court in Capral Aluminium (49 NSWLR at p 643; 99 IR at p 59 in par [72]). Therefore, Mr Macken's submission on this aspect of deterrence cannot be accepted as it would lead to a failure by the Court in its duty to impose an appropriate fine consistent with principle. Of course, that is not to exclude consideration of the factors subjective to the defendant as identified by Mr Macken and which were, it may be emphasised, conceded as relevant by Mr Skinner.

[100]

24 Before finalising an assessment of the objective quality of the present offence, reference should be made to the case before Kavanagh J concerning the prosecution of CSR Timber Products as noted by Mr Skinner. As it happened, her Honour gave judgment therein on 23 November 2001 in Robins v CSR Ltd t/as CSR Timber Products [2001] NSWIRComm 296 and imposed a fine of $150,000 after allowing a discount of 15 per cent for subjective features, including the utilitarian value of the guilty plea. Of course, in considering that outcome it is important to bear in mind that the maximum penalty there was $825,000, by reason of CSR Timber Products having had prior convictions and where her Honour found that "CSR held full responsibility for the design of this work method and the machine's safety features". Importantly, however, for present purposes, her Honour concluded (in par [34]) : Although the defendant involved the labour hire firm in its training programme for site safety as a large organisation it must accept it cannot pass over its obligations for site safety to such as the labour hire firm. Each organisation must meet its own obligations whether it be as the employer or as the contractor. I think that last-mentioned comment is directly applicable to the task before me. In the result, her Honour held (in par [20]) that taking into account the objective features of the offence committed by CSR Timber Products it "was a serious offence sufficient to attract penalty in the middle range" and, after allowing for the various subjective factors in mitigation, a penalty was fixed accordingly. The relevance of her Honours' approach, as I say as was noted by Mr Skinner, arises from the comments of the Full Bench of the Court in Warman in considering consistency in sentencing as between a labour hire company and its client for respective breaches of the Occupational Health and Safety Act under s 15 and s 16. Their Honours said (80 IR at p 341) : While the offences with which we are dealing under the OH&S Act do not involve the notion of co-offenders, the fact is that the same circumstances have given rise to prosecutions for offences under ss 15 and 16 of the OH&S Act of the direct employer, Drake Personnel Ltd t/as Drake Industrial which supplied the labour involved, and the defendant here who utilised that labour in relevant circumstances. While those defendants have been found guilty of different offences, nevertheless the factual circumstances giving rise to the charges justify an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen (1984) 154 CLR 606 at pp 610-611.