1 This is a prosecution appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 by Profab Industries Pty Limited against the judgment of Peterson J delivered on 24 June 1999 in sentencing proceedings involving the respondent. The proceedings before his Honour were instituted by William Hopkins, an inspector of the WorkCover Authority of New South Wales, and alleged an offence under s 15(1) of the Occupational Health and Safety Act 1983 in respect of the alleged failure of the respondent to ensure the health, safety and welfare at work of all its employees and, in particular, its failure to maintain a system of work that was safe. The respondent entered a plea of guilty and Peterson J held that the circumstances were appropriate for the application of s 556A(1)(b) of the Crimes Act 1900 by dismissing the charge without entering a conviction.
2 The question raised by the appeal is whether Peterson J erred in applying s 556A(1)(b) of the Crimes Act 1900. Mr S Crawshaw SC and Mr B G Docking of counsel appeared for the appellant and Mr B D Hodgkinson of counsel appeared for the respondent. The Honourable J W Shaw QC, Attorney General and Minister for Industrial Relations, also appeared pursuant to s 167(1) of the Industrial Relations Act, and Mr D J Brezniak of counsel appeared with him.
The decision appealed against
3 The original charge alleged a failure to ensure the health, safety and welfare at work of all of its employees, in particular Jae-Wan Chang, in failing to provide and maintain systems of work, to wit, systems in welding steel fabrications that were safe and without risk to health, contrary to s 15(1) of the Occupational Health and Safety Act. The charge was originally particularised as a failure to "provide and maintain" and was amended to:
The defendant failed to maintain systems of securing steel truss fabrications whilst undertaking welding work on the said date upon the steel truss.
4 Peterson J summarised the factual circumstances of the matter in this way:
On 14 July 1996 an employee of the defendant was engaged in the welding of a steel truss beam of approximately 12 metres length and 2 metres height made up of two horizontal steel beams, one 200 universal column and one 150 universal column connected by rectangled steel pipework which had been welded together on a temporary basis. The employee concerned was engaged in the final welding of the truss beam, it standing on the workshop floor, resting on the 150 universal column, with the heavier column at the top, thereby being "top heavy". While attempting to attach a chain to the top of the beam, after completing the welding, so that the truss could be lifted away by crane, the truss toppled causing the employee, who was standing on a bed of steel supports, to fall, striking his head on a support and suffering injuries which were fatal.
5 In relation to the provision of a safe system of work his Honour said:
Here the system of work adopted by the company was safe. It involved either welding the trusses while lying, on the flat, upon a bed of steel supports (referred to earlier by me as a fixture upon which the deceased employee was standing) or in the vertical. The choice was the employee's. When vertical the truss was to be either supported by remaining chained to the crane or by having steel supports welded to it.
6 The deceased worker had been employed by the defendant for eight years and had been employed in a team which had done between 35 and 40 of the particular truss types involved in the incident. A senior production supervisor was aware on the day of the incident that the deceased was welding while the truss was in the upright position as he had seen the truss so positioned. However, as recorded in the agreed statement of facts, he did not see whether or not it was braced or supported by the crane because he was not in the area of the job that morning. Also on the day of the incident, two fellow employees had spoken to the deceased about the dangers of standing the truss up without support.
7 In considering the nature of the offence his Honour held that:
... the nature and quality of this offence is at the lower end. The employee concerned had been the subject of a serious approach to the institution of safe working practices both by design and instruction. He was a tradesman/welder with the capacity to utilise the 5 tonne overhead crane to which he was attempting to attach the truss when it fell. He had been warned by two neighbouring employees also working upon beams of this type that his approach was unsafe and should be altered. With this he agreed, yet he did nothing and thus for a period of between 20 and 30 minutes he created a risk which ultimately exposed him to serious danger. The defendant's culpability in that context, is very low indeed, given that it is confined to a short timeframe in relation to an employee of some eight years' employment with the company who was obviously aware of his own failure in not employing the defendant's system of work. In practical terms the failure of the defendant may be seen as one of supervision. However, there are also practical limits to the ability to supervise experienced tradesmen in their work. This case is an illustration of that difficulty.
8 Peterson J then considered the subjective features of the offence, as follows:
The defendant's history of no prior convictions, its generally meticulous approach to safety, for a reasonably small employer in a relatively dangerous industry, its co-operation with authorities, its care and concern for employees who were emotionally affected by the accident, its grant of time off for those employees together with counselling, all militate in the defendant's favour.