WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd, t/as Transfield Maintenance - [2001] NSWIRComm 289 - NSWIRComm 1993 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd, t/as Transfield Maintenance

[2001] NSWIRComm 289

Industrial Relations Commission (NSW)|1993-11-26|Before: Hungerford J, Maidment J, Bauer J, Ms P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1993-11-26

Before

Hungerford J, Maidment J, Bauer J, Ms P

Catchwords

09/05/2000
09/06/2000
09/07/2000
09/12/2000

Source

Original judgment source is linked above.

Catchwords

09/05/200009/06/200009/07/200009/12/200005/28/200105/31/2001 DATE OF JUDGMENT: 11/14/2001

Judgment (111 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd, t/as Transfield Maintenance (No 2) [2001] NSWIRComm 289 PROSECUTOR WorkCover Authority of New South Wales (Inspector Steven Finlay McMartin) PARTIES : DEFENDANT Transfield Pty Limited, t/as Transfield Maintenance FILE NUMBER: IRC 4586 and 4587 of 1999 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Prosecutions for failure to ensure safety - Explosion causing serious injuries to two workers - Use of oxy/propane cutting equipment in repair of a steelmaking ladle - Plea of not guilty changed to guilty during the hearing on amendment of the charges - Objective seriousness of offences in terms of nature and quality - Subjective features in mitigation - Record of prior convictions - Application of guideline judgment in sentencing process - Parity principle - Principle of totality - Defendant convicted - Fines imposed, with moiety to prosecutor - Costs. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) s 16(1) s 49A Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 CASES CITED : R v McNellee, Tucker and Dalley [2000] NSWSC 1154 R v Ryan [2000] NSWSC 724 R v Thomson, R v Houlton (2000) 49 NSWLR 383 WorkCover Authority of New South Wales (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported, Maidment J, CT93/1062, 26 November 1993) WorkCover Authority of New South Wales (Inspector Dubois) v Transfield Pty Ltd [2000] NSWIRComm 204 WorkCover Authority of New South Wales (Inspector Jones) v Transfield Construction Pty Ltd (unreported, Bauer J, CT96/1217, 28 November 1997) WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd, t/as Rod, Bar & Wire (2000) 101 IR 318 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 HEARING DATES: 09/04/2000; 09/05/2000; 09/06/2000; 09/07/2000; 09/12/2000; 05/28/2001; 05/31/2001 DATE OF JUDGMENT: 11/14/2001

[30]

10 The Alliance Contract under which the defendant performed the maintenance work to the steelmaking ladles contained a system to identify critical safety hazards and the precautions to be taken by workers against such hazards. That system involved as an important procedure the issue of individual job tickets by BHP to the defendant for each particular task to be performed. The job tickets were created electronically on BHP's computer system from information entered either by its employees or those of its contractors, such as the defendant, and dealt with the nature of the job and relevant safety precautions to be followed; after review by an authorised BHP representative, the job ticket was then issued to the contractor concerned. The job ticket system was designed to encompass the entire scope of work to be performed, and included a work method statement, tools and equipment, drawing references and critical safety hazards. In the present case, the agreed facts showed a job ticket was issued for the ladle repairs after being prepared by the defendant's Project Co-ordinator, Geoffrey Gordon, and reviewed and altered by BHP's Maintenance Supervisor, David Dowman. Specifically, the statement of agreed facts indicated that a job ticket was created and issued for the repairs to the ladle concerned but identified the deficiencies which existed in the following way: 28. The job ticket was created by cutting and pasting sections of an existing job ticket involving maintenance for a freight lift. The maintenance of the freight lift had involved the entering of a lift well area which is a designated confined space. Clause 8.1 of that job ticket identified hazards associated with the risk of gas accumulation in the lift well area. That part of Clause 8.1 as used in the job ticket for the work to be performed by Swan and Boyce was blacked out by Dowman. Before blacking out the section Dowman discussed it with Gordon and said: "Geoff I think you made a stuff-up there is a bit here that does not apply and he agreed and before we both signed it, it was blacked out".

[52]

15 Ms P E McDonald, counsel for the prosecutor, provided a record of the defendant's prior convictions for offences against occupational health and safety legislation. It covered the period from 7 September 1962 to 28 November 1997 and noted 21 convictions which incurred fines ranging from $20 to $130,000. Relevant to a consideration of the impact for present purposes of the defendant's prior record was how that record was viewed by the Court in sentencing it for the two most recent serious breaches of the Occupational Health and Safety Act. In WorkCover Authority of New South Wales (Inspector Jones) v Transfield Construction Pty Ltd (unreported, Bauer J, CT96/1217, 28 November 1997) the defendant, in its former name, was fined $70,000 where the maximum was $250,000 for an offence against s 15(1) committed during the erection of storage tanks for a water reticulation system at Appin; an employee was fatally injured and another received severe head injuries. Bauer J described the nature of the offence in terms that the fabrication of the tanks "was never supervised" and added that although the potential for serious injury was manifest "no systems were in place at that time which required the assessment of the conditions under which the plates were placed" (at p 11). Nevertheless, his Honour made the following observation (at p 10) : Material presented on behalf of the company by counsel leads to the conclusion that the defendant in this matter is a company which has in recent times, particularly since the reorganisation of the company into two groups, accepted and adopted responsibility for safe working practices and engaged in the implementation of codes of conduct and practice aimed at ensuring a safe work place. The material suggests that Transfield was a company which recognised the responsibility of large and successful companies to lead the way in the implementation of safe working practices. I accept the submissions of counsel that, having regard to the size and nature of the organisation and the large range of industrial activities in which it has been involved the record of the company in the past has to be viewed as a reasonable one.

[90]

36 As alleviating the otherwise extremely serious nature of the offences, Mr Hodgkinson relied on the evidence, which I have accepted, of Mr Kiprioti concerning the defendant's status as a corporate citizen and its approach to occupational health and safety matters. Included in that evidence were details of the safety audit conducted in 1999 of the defendant's safety management system, together with the recommendations for improvements thereto; those recommendations have been implemented. Further as to matters subjective to the defendant, and as the statement of agreed facts noted, immediately following the subject incident the defendant joined with BHP to conduct an investigation and, in the result, various remedial steps were taken. It is apparent that the defendant exhibited a co-operative approach to the investigation by the WorkCover Authority of what occurred and was concerned to ensure appropriate corrective action was taken, including an overall review of its safety management system. I am able to say, as I was with the comparable situation of BHP (101 IR at p 330 in par [27]), that I am satisfied the factors subjective to the defendant "represented a responsible and contrite approach to workplace safety ... and for which some credit in further reduction of penalty should be allowed". As part of that process, however, the prior convictions of the defendant, particularly the two most recent instances where it was subject to fines of $70,000 and $130,000, must be viewed as somewhat negative factors. I nevertheless note in that respect the comment by Bauer J in Jones v Transfield Construction (at p 10) "that having regard to the size and nature of the organisation and the large range of industrial activities in which it has been involved the record of the company in the past has to be viewed as a reasonable one"; also, in Dubois v Transfield (in par [22]) it was remarked by Kavanagh J that the defendant "has a fine corporate reputation as a contributing corporate citizen". The evidence of Mr Kiprioti provided continuing support for those comments.

[99]

43 I have been much assisted in this case in assessing an appropriate fine by what Kirby J said in Postiglione (189 CLR pp 340-341) as to the purpose of the parity and totality principles and how they operate in the sentencing process, as follows : The "parity" and "totality" principles are in the nature of checks required of sentencing judges out of recognition that the task of sentencing is not a mechanical due. The task could hardly be so given the many, sometimes conflicting, goals of sentencing which are "broad and varied" ( R v M (CA) (1996) 105 CCC (3d) 327 at 369, quoting R v Goltz (1991) 67 CCC (3d) 481 at 495). The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case. The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example co-operation with authorities or absence of remissions). But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment. It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike. Or it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. Obviously, the adjustments for the parity and totality principles, whether performed by a sentencing judge or an appellate court, involve subtle considerations which defy precision either of description or implementation. It has been recognised by this Court ( Mill v The Queen (1988) 166 CLR 59 at 67) that the adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. Whilst this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders. The risks of unacceptable disparity will be lessened if it is remembered that the touchstone adopted by the law is the avoidance of a justifiable sense that an injustice has occurred. In a real sense, the above comments by Kirby J mirrored what his Honour said in the Court of Criminal Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 698 that : ... The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided ... the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum ... must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender ...

WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd, t/as Transfield Maintenance

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Judgment (111 paragraphs)

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Cases Cited (14)

Cited By (9)