WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante - [2003] NSWIRComm 201 - NSWIRComm 2003 case summary — Zoe

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WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante

[2003] NSWIRComm 201

Industrial Relations Commission (NSW)|2003-07-01|Before: Kavanagh J, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Kavanagh J, Mr P

Source

Original judgment source is linked above.

Judgment (119 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 201 Prosecution: PARTIES : WorkCover Authority of NSW (Insp Maltby) & Anor Defendants: Abigroup Contractors Pty Limited & Luis Bustamante FILE NUMBER: IRC5432,IRC5433,IRC5434,IRC5436,IRC5438, IRC5502 of 1999 CORAM: Kavanagh J IRC5432, 5433, 5436, 5434, 5438 of 1999 - Occupational Health and Safety Act 1983 - Sections 15(1) & 16(1) - Penalty - gravity of offences - foreseeability - lack of established procedure and protocols for specific and general deterrence - s47A orders on the defendant company and power to remedy - s10 of WorkCover Legislation Amendment Act 1995 and s51A of the Occupational Health and Safety Act 1983 - their effect on maximum penalty - corporate reputation - subsequent industrial record - totality principle - Penalty imposed - s44A of the Occupational Health and Safety Act 1983 and WorkCover's recommendations to Government - need for Industry Codes of Practice - Costs reserved CATCHWORDS : IRC5502 of 1999 - Penalty - Occupational Health and Safety Act 1983 - Section 19(a) - effect of industry practice on gravity of offence - specific and general deterrence - effect of continuing the work practice which created risk - no prior conviction - character, reputation, age and financial status of defendant as pensioner - s10 of the Crimes (Sentencing Procedure) Act 1999 rejected - Penalty imposed - No order as to costs Occupational Health and Safety Act 1983 LEGISLATION CITED : WorkCover Legislation Amendment Act 1995 Crimes (Sentencing Procedure) Act 1999 WorkCover Authority (Inspector Maltby) & Anor v Abigroup Contractors Pty Limited and Luis Bustamante [2003] NSWIRComm 35 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 Ferguson v Nelmac (1999) 92 IR 188 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Insp May) v Swift Placements Pty Limited [1999] NSWIR Comm407 CASES CITED : WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 WorkCover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales (2002) 115 IR 130 R v Thomson, R v Houlton (1999-2000) 49 NSWLR 383, (2000) 115 A Crim R 104 Pearce v The Queen (1998) 194 CLR 610 R v Hammoud (2000) 118 ACrimR 66 R v Gorman [2002] NSWCCA 516 Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 Caltex Refining Co Pty Limited v Maritime Services Board of NSW (1995) 36 NSWLR 552 HEARING DATES: 04/17/2003 DATE OF JUDGMENT: 06/24/2003

[16]

9 Elements as to deterrence are also to be given consideration. In this respect, I bear in mind what was said by the Full Bench in Capral at [74]: The ... Court should take [into account] in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited [No 2] [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare. . . . And at [77]: At least where the offender continues to be an employer, risk to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority (New South Wales) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd. [2000] NSWIRComm 53 at [46]. Consideration 10 The prosecution submits as to the nature and quality of each offence that their gravity is at a high level and that the gravity of the offence on 4 December 1995 is at the highest level. The prosecution submitted the damage to the gas pipe by a large construction machine, the consequent leaking of gas and the fact of the occurrence of two explosions was a risk to safety which was foreseeable in each relevant period of time. The prosecution conceded the risk was not "foreseen" by this defendant company but was foreseeable in the circumstances.

[20]

14 In each of the two charges related to activity on site on 10 November 1995, that is, the acts or omissions of the defendant company which constituted the risk to safety to employees under s15(1) and others on site under s16(1), the prosecution relied upon a series of failures as constituting part of the offence, namely, the defendant company: i) failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health; ii) failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed; iii) failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; iv) failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated. Each of the above alleged failures as pleaded against the defendant company was found proven. One other alleged failure was not proven. Other particulars which recited the circumstances on site that day were similarly relied upon as constituting particulars of each offence: 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line. 8. The Defendant was aware where the gas supply line had been cut and capped by Princi. 9. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated. 10. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 11. The Defendant failed to adequately protect the charged gas supply line on the KSU. 12. The Defendant failed to adequately identify the charged gas supply line on the KSU. 13. The Defendant failed to adequately mark the charged gas supply line on the KSU. 14. . . . . 15. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. Each of the particulars relied upon and the failures as found proven were found by the court in its prior judgment, when read together, to reveal the circumstances which existed on site on 10 November 1995, the day the gas pipe was disconnected and together constituted the offence.

[25]

19 However, further particulars were relied upon which distinguished the circumstances on site on this day. After the recitation of the circumstances leading to the disconnection of the gas service the court also found as fact: 11. On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter. 12. The excavator was used to create the batter in the area where the gas supply line was situated. 13. The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU. 14. The Defendant failed to prevent the operation of earth moving machinery on the construction are close to the charged gas supply line. 15. On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah. 16. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape. 17. At approximately 2.00p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ. 18. Between 2.00 p.m. and 4.00 p.m. on 4 December 1995, the Defendant was advised of the explosion which had occurred. 19. At approximately 4.00p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ. 20. The gas explosions were of sufficient extent and severity that persons were injured thereby. 21. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 22. The Defendant failed to adequately protect the charged gas supply line on the KSU. 23. The Defendant failed to adequately identify the charged gas supply line on the KSU. 24. The Defendant failed to adequately mark the charged gas supply line on the KSU. . . . 26. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. 20 On the day of the explosions the defendant company, it was found, did not attend on site, yet it knew of possible activity on site, knew of the removal of the stake and bunting and allowed the existence of a charged gas supply line to remain on site unmarked.

[37]

33 A further update on the Occupational Health and Safety policies was conducted dated May 2002. It was significantly more comprehensive and identified under a list of "Typical Hazards" to be considered in risk assessment from a "check" document "O'head/U'ground services". It required the hazards to be identified in a grading 1 to 3. In the "Hazard Control" column of the document there was then required a consideration by employees as to how the identified risk could be minimised. "Services" is listed 17th in a list of 22 "typical" hazards and the risk assessment form allowed seven lines for the consideration of safe working procedures for all or any of the 22 typical hazards identified as relevant. 34 The defendant company relies upon the fact that safety audits by its clients, the Roads and Traffic Authority and the Department of Public Works and Services in 1999 and again in the 2002-2004 had approved its policies and procedures. 35 The defendant company's practice since the explosions is to disconnect and remove the service, if possible, outside of the construction zone. I accept services such as gas, water and electricity, sometimes cannot be disconnected on a construction site if these services are required to run to neighbouring buildings and residential homes on the other side of the construction site. In such circumstances, the first affidavit of Mr Yates revealed the service is identified by the service provider (for example, AGL) then its position within the construction site is confirmed by the defendant company pot holing the services across the site, then it is marked, as it was in 1995, with stake and bunting. If work has to take place in an area close to a service, the service provider is asked by the defendant company to advise so as to ensure the work will not interfere with the service. However, this system puts the obligations under the Occupational Health and Safety Act 1983 on the service provider rather than on the defendant company to ensure the health and safety of persons at the site.

[72]

66 Beazley JA in R v Gorman [2002] NSWCCA 516 reflected on the language used in Pearce to warn at [4-5]: 4 In stating the principles in these terms, their Honours did not use language such as "part of the one criminal enterprise" or "the same criminal enterprise" for the purposes of determining the question of concurrence or accumulation as well as totality of sentence. Notwithstanding that, the terminology has survived Pearce . Indeed, it is referred to by this Court in R v AEM [2002] NSWCCA 58. 5 Whilst adopting that categorisation may not necessarily be an error, especially for the purposes of considering questions of totality, there is a risk that it may lead a sentencing judge into error, especially where as here the offences were of the one 'kind', that is, sexual assault (recognising that one was aggravated sexual assault) on the one victim on the one night. Her Honour then referred to the above quoted remarks of Simpson J's in Hammoud : 8 . . . Those remarks, with which I also agree, demonstrate the potential for error where a series of offences are labelled or characterised as being part of the one criminal enterprise without due regard being had to the individual circumstances of each offence. 9 In the present case, the three offences had to be considered separately. There was no common element in any of the offences, in the sense that notion is explained in Pearce . To characterise the offences, therefore, as his Honour did as "one episode of criminality" misapplied Pearce and failed to have regard to the specific circumstances of each individual offence. In my opinion, his Honour's categorisation also led him into error in that he then failed to deal adequately with the totality of the criminality involved. I should add that, although I have expressed my reasoning in different terms, I do not see that it necessarily involves a different approach to that taken by Sperling J, except to eschew the characterisation of these offences as being "part of the same" criminal enterprise or being "one episode of criminality" .

[78]

71 The Full Bench in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 discussed this overlap between s15 and s16 of the Act at [44]: The relationship between these provisions was considered by Wright J, President , in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362. (Leave to appeal from this decision was refused: Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16.) His Honour considered an objection that a summons under s 16(1) used the language of s 15(2) to describe a charge under s 16(1) and was thereby invalid. His Honour said (at 372-373): However, on their proper construction, s15 and s16(1) are to be seen as in part parallel provisions. Both impose liability on employers. Section 15 imposes liability to "ensure health, safety and welfare at work of all of the employer's employees"; whereas s16(1) imposes an obligation to ensure that persons who are not employees of the employer are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking whilst at the employer's place of work. . . . . Some confirmation of the interrelationship of these sections is provided in the useful discussion by Bauer J in his Honour's judgment in Workcover Authority of New South Wales (Inspector Reid) v CSR Limited t/as CSR Wood Panels (unreported, matter number CT1176/94, 10 August 1995) at 24-25. See also his Honour's discussion of the elements of the offence created by s16(1) at page 12 of that judgment. . . . Thus, when the practical circumstances envisaged by the form of s16(1) are considered, and the evident purpose of the provision is identified, it does not follow, as the defendant contends, that the use of language derived in whole or part from words in s15(2) is inappropriate to describe offences said to arise under section 16(1), or a summons using such words is thereby invalid. Whilst it is to be accepted that the language of parts of s15 derives from the common law (see for example, the discussion by Fisher CJ in Boral Gas (1995) 37 NSWLR 150 at 153; 58 IR 363 at 386) the fact that important features of s16 (namely "its terms, its essential elements, its field of operation and its common law jurisprudential background" - as referred to in the defendant's submissions) may not be applicable to s15 is, for present purposes, irrelevant. What is relevant is that both s15 and s16 impose statutory obligations which conceptually overlap, although the identity of the persons the object of the obligations specified is different . [emphasis added] 72 I therefore find the charge under s15(1) and the charge under s16(1) covering the period 10 November 1995 have some common elements to attract accumulation as to penalty. The charges brought under s15(1) and s16(1) covering the period 11 November to 3 December 1995 (inclusive) also attract some accumulation as to penalty.

[86]

78 The provisions of the Occupational Health and Safety Act 1983 (see s44A (1-10) and the recently operative Act, Occupational Health and Safety Act 2000 (see s40-s46) contain provisions which empower the WorkCover Authority to formulate and prepare Industry Codes of Practice to provide practical guidelines to employers and others who have duties in respect of Occupational Health Safety and Welfare. Relevantly, the Act states: 44A. Industry codes of practice (1) For the purpose of providing practical guidance to employers, self-employed persons and employees, the WorkCover Authority may formulate and prepare industry codes of practice. (2) The Minister may, having regard to any recommendation of the WorkCover Authority, approve an industry code of practice. (3) An industry code of practice may: (a) consist of any code, standard, rule, specification or provision relating to occupational health, safety or welfare approved by the Minister, or (b) apply, incorporate or refer to any document formulated or published by any body or authority as in force at the time the industry code of practice is approved or as amended, formulated or published from time to time. (4) The Minister may, having regard to any recommendation of the WorkCover Authority, approve any amendment of the whole or any part of an industry code of practice or revoke the approval of an industry code of practice. (5) The Minister shall cause to be published in the Gazette: (a) an approved industry code of practice, (b) an approved amendment of an industry code of practice, and (c) the revocation of approval of an industry code of practice. (6) The Minister shall cause: (a) a copy of every approved industry code of practice, (b) if an approved industry code of practice has been amended, a copy of every approved industry code of practice as so amended, and (c) if an approved industry code of practice applies, incorporates or refers to any other document, a copy of every such document, to be made available for inspection by members of the public without charge at the office of the WorkCover Authority during normal office hours. (7) An approved industry code of practice commences on the day when the code is published in the Gazette or, if a later commencement date is specified in the code, on that date. (8) An approved amendment of an industry code of practice commences on the day when the amendment is published in the Gazette or, if a later commencement date is specified in the amendment, on that date. (9) An approved revocation of an industry code of practice commences on the day when the revocation is published in the Gazette or, if a later commencement date is specified in the revocation, on that date. (10) A person shall not be liable to any civil or criminal proceedings by reason only that the person has failed to observe any provision of an approved industry code of practice. The Occupational Health and Safety Act 2000 defines the powers of the WorkCover Authority of New South Wales in similar terms: Section 40 - Purpose of industry codes of practice The purpose of an industry code of practice is to provide practical guidance to employers and others who have duties under Part 2 with respect to occupational health, safety and welfare.