WorkCover Authority of NSW (Insp Charles) v Mainbrace Constructions Pty Ltd

PROSECUTOR: Mr J.J. Millar of counsel SOLICITORS: WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr G.J. Parker of counsel SOLICITORS: Eakin McCaffery Cox

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

IRC608 of 1998 WORKCOVER AUTHORITY OF NSW (INSP CHARLES) v MAINBRACE CONSTRUCTIONS PTY LTD Prosecution under s 16(1) of the Occupational Health and Safety Act 1983

JUDGMENT AS TO PENALTY 1 The Prosecutor submits that the maximum penalty for a breach of s16(1) of the Occupational Health and Safety Act 1983 ("the Act") at the date of this offence in March 1996 is $500,000. There was a previous published judgment as to liability in this matter. 2 As was held by Hill J in Boral Gas (NSW) Pty Limited v McGill ((1995) 58 IR 363) a s16 charge attracts only one breach under the Act but the particulars to the summons supply the details of the alleged breach. Seven particulars as to the alleged breach were pleaded against this employer but the court found only six had been proven. 3 In assessing penalty the court has been recently reminded by the Full Bench in Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Insp Ch'ng) ((1999) 90 IR 464) as to its considerations: . ., in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'.

The Full Bench notes that: The proper approach is first to consider the gravity of the offence viewed objectively.

and the Full Bench said: It has observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to the consideration of the nature and quality of the offence.

The Full Bench gave approval to the passage from the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce.

4 As to the objective seriousness of this offence, Mr Parker submits that the court should give consideration to the circumstances in which the variation to the contract was made. He submits the defendant always issued a Method Statement in relation to work undertaken by the company. Such a Method Statement was prepared in respect to the original scope of the work and identified all the appropriate safety supports required for site safety. The defendant accepts the findings of the court that the defendant failed to create a Method Statement in respect of the variation, but Mr Parker submits the court should consider this breach as an isolated deficiency in the activities of an otherwise safety conscious defendant. He submits the evidence reveals the present breach represents a random failure by the defendant to adhere to its otherwise careful and conscientious standards. 5 In making this submission, Mr Parker relies on the fact that Mainbrace did not have exclusive control of the hanging area over which the respondent ceiling was erected. He submits the absolute nature of the obligation under s16(1) of the Act should be ameliorated by reason of the defendant's limited ability to control the activities of others at the site and inability to control the effect of those activities. He relies on evidence that the suspended ceiling was intended to be trafficable; that the ceiling was used regularly; that there were direction signs as to access which were complied with by the injured workmen; that the ceiling was poorly constructed twenty years ago prior to the accident and the responsibility of Chisholm, the occupier of the site, must be weighed into the court's consideration as to the gravity of the offence. The defendant submits if there was potential compromise to the inherent integrity of the suspended ceiling, Chisholm or Pinacle had a responsibility to appraise Mainbrace, the defendant of same. 6 Relevant in these considerations however is the finding of the Court that the hanging area became a Mainbrace place of work at the time of the variation, therefore Mainbrace was responsible to inspect, warn and instruct as to the risks to safety of this place of work for its undertaking. Further its initial assessment of the worksite, while it may have prepared a Method Statement, contained no real safety assessment. There was evidence that a "walk through" of the site was made but safety issues were not addressed. There was certainly no site safety assessment when the variation was made by this Head Sub-contractor with its electrical sub-contractor, Kennedy-Taylor. 7 In assessing the objective seriousness of the breach pleaded against Mainbrace, the evidence of Mr Doring, their employee, who ordered the supports to the hanging ceiling be removed without checking whether anyone was up in the ceiling and did so while the acrow props had become weight bearing of the hanging ceiling is relevant. The fact the acrow prop became weight bearing was not however within Mr Doring's knowledge. Acknowledgment must be also given to the fact the dust suppression wall was removed carefully in the appropriate manner using the acrow props, etc. However, it was Mr Doring, an employee of Mainbrace who authorised the work to be done in the hanging ceiling and was aware the injured workers required access to it. 8 While the engineering evidence revealed the ceiling was inherently unsafe, the defendant as the Head Contractor nonetheless had a responsibility to ensure it inspected this ceiling when it became its place of work and its failure was to adequately assess the risk to safety of persons at its place of work. 9 Mr Parker submits Mainbrace's conduct was mere inadvertence and the breach exhibits a minimal degree of culpability. The court does not accept this submission. However, it does take into account that this ceiling was clearly not structurally sound even at the time it became a Mainbrace place of work. On all the objective evidence I find the breach a serious one. 10 As to the subjective features of the breach, Mr Gregory Allan Scott gave evidence. He is employed as a Construction Manager for Mainbrace. He has been so employed since 1995. He revealed Mainbrace is a medium sized building company which contracts projects to the value of $100,000 to $30 million. The company has a turnover of $50 million to $60 million per year. Mr Scott produced a financial document of the company which verified the turnover of the company although there was some argument about how the taxable profit revealed in it was derived. 11 Mr Scott also tendered a document outlining the management structure of the company, his position in it and that of others named in the litigation. His evidence was the company, since the accident, has implemented a full Safety Management Review. After successful tender it attends at the worksite for a full risk assessment of the site. This assessment incorporates Method Statements for the task as a whole and addresses practical tasks, site inductions, safety committee meetings, the recording of certificates and qualifications of operators and a monthly safety report of lost time and lost hours for ongoing work evaluation. This comprehensive document is adjusted to the particular needs of each contract and each worksite. 12 The company has just completed another stage in the upgrading of its safety programme and tendered modifications to its Safety Management plan. The overall plan now reflects the expressed concern of the company to ensure safety on its worksites. A risk assessment is now made on all site activities. All functions required for a contract are listed, all training planned; hazardous substances are identified; the code of practice to be followed is identified; material storage is identified; major plant and equipment required are identified; personnel protection is particularised; equipment requirements are noted as are hours of work; plans for protection of the public are made; fire prevention is planned and there is acknowledgment of the required engineering reports. Access and egress to worksites and the procedure for rubbish removal are also addressed. Potential risks are now identified and procedures put in place to meet same. 13 Mr Scott is the person responsible at senior management level to ensure the Risk Assessment is completed thoroughly. Before the court there was placed comprehensive documentation related to the Management Plan. 14 When asked whether the Management Plan met the circumstances identified in this case where there was a variation to the original contract, Mr Scott assured the Court, although the plan does not directly reflect what is to be done when there is a variation, such variations would require a further site risk assessment is undertaken. I accept Mr Scott's assurances of same although such a circumstance should addressed in the documentation. 15 There is no suggestion of an early plea in this matter and as I have noted, the defendant conducted a rigorous defence to the charge. The defendant has no prior convictions and importantly it has been operating in the building industry for many years, which industry is identified as a high risk industry. 16 In submissions as to the consideration of penalty, Mr Parker submits the court should give consideration to the fact that Chisholm, the occupier of the site, was not charged. He relies on Nesmat Pty Ltd and WorkCover Authority of NSW ((1998) 87 IR 312) where the court expressed a view as obiter: The absence of prosecution of other parties, on whom the appellant has reasonably relied, underlies the cogency of argument presented on appeal that the sentence gives rise to a justifiable sense of injustice. 17 As Walton J, Vice President said in WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Ltd & Anor (unreported, 4 February 2000, IRC1104, 1106 of 1998): The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken. This approach is consistent with the approach in Nesmat. . . . Nothing in the decision in Nesmat warrants the adoption of the further approach contended for by the defendants that the Court should assess, in the context of the sentencing of the defendants, whether a prosecution should have been continued against (others). Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an inquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities under s17 and the 'nature and quality' of any offence committed by them. Embarking upon an inquiry as to whether prosecutions should have been commenced or continued against various entities, or whether those prosecutions may have been successful, would involve the Court conducting a procedure which would be, as the prosecutor submitted, tantamount to conducting a trial of the other entities. In any event, the Court would, if it adopted the contentions of approach by the defendants, be required to make unqualified adverse findings concerning an entity which had no opportunity to answer the allegations made against it.

I note the expressed sense of injustice from this defendant 18 There may be some consideration given to the principle of parity arising out of the circumstances of the accident. The Court has before it two defendants both involved in the same series of events. Mainbrace was the head contractor on the building site and Kennedy-Taylor, the other defendant, was a subcontractor to Mainbrace and the employer of the injured workers. The issue as to parity of sentence is relevant between the two. 19 In Warman International Ltd v WorkCover Authority of NSW (1998) 80 IR 326) parity was discussed by the Full Bench (at 340-341): We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione v R ((1997) 145 ALR 408) has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe v R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v R, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.' That principle was referred to by Mason J in Lowe v The Queen ((1984) 154 CLR 606 at 610) as follows; `Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.' While the offences with which we are dealing under the O H & 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 ss15 and 16 of the O H & S Act of the direct employer, . . . 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.

20 I take into account the subjective features of the breach as well as the finding the gravity of the offence is of a serious nature. In truth, Mainbrace had in place a system of work to address site safety but it was not adhered to. The site assessment address only defined work spaces as to its safety. When the variation to the contract was made there was no procedure in place for a site re-assessment. The company did not execute a procedure for an assessment of risk for a defined new area of the company's place of work. The company however has been operating in the high risk building industry, with a significant number of workers on its site, without prior conviction. This is taken into consideration as is an acknowledgment of the defendant has made significant endeavours at considerable expense to re-evaluate its safety procedures. Such endeavours assure the court of a commitment of safe working. 21 However the words of Maidment J in WorkCover Authority of NSW (Insp Callaghan) v Saunders Constructions Pty Ltd (unreported, CT93/1062, 26.11.93) are apposite in the case. Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working . . .

22 I find the defendant guilty. I apply the principal of parity between this defendant and Kennedy-Taylor and I fine the defendant $100,000 with a moiety to the prosecutor. **********

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