WorkCover (Inspector Tyler) v Schindler Lifts

Industrial Relations Commission (NSW)|2001-03-08|Before: Peterson J, Ms P

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover (Inspector Tyler) v Schindler Lifts [2001] NSWIRComm 176 PROSECUTOR WORKCOVER AUTHORITY OF NEW SOUTH WALES PARTIES : (INSPECTOR TYLER)

DEFENDANT SCHINDLER LIFTS (AUSTRALIA) PTY LTD FILE NUMBER: IRC4520 & IRC4521 of 1999 CORAM: Peterson J CATCHWORDS : Occupational health and safety - prosecutions under s15(1) - employee of the defendant - s16(1) - employee of a labour hire firm - construction of lifts - overhead protection platforms - departure from normal work - serious commitment to the safety and welfare of persons for which the defendant has responsibility - plea of guilty - work usually and now uniformily being done by skilled contractors - principle of totality - principle of consistency in sentencing - discount - convicted and single penalty imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : WorkCover Authority of New South Wales (Inspector Tyler) v Workforce Link Pty Ltd, Unreported [2001] NSWIRComm 24, 8 March 2001. HEARING DATES: 06/13/2001 DATE OF JUDGMENT: 08/03/2001

PROSECUTOR Ms P E McDonald of counsel

SOLICITOR WorkCover Authority of NSW SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson of counsel

SOLICITOR Price Waterhouse Coopers Legal SYDNEY.

WORKCOVER AUTHORITY OF NSW (INSPECTOR TYLER) v SCHINDLER LIFTS (AUSTRALIA) PTY LTD. Prosecution under s16(1) of the Occupational Health & Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSPECTOR TYLER) v SCHINDLER LIFTS (AUSTRALIA) PTY LTD. Prosecution under s15(1) of the Occupational Health & Safety Act 1983 JUDGMENT

1 Inspector Tyler, an Inspector authorised to do so on behalf of the WorkCover Authority of New South Wales, has commenced prosecutions under ss.15(1) and 16(1) of the Occupational Health and Safety Act 1983 ('the Act') against the defendant, Schindler Lifts (Australia) Pty Ltd ('Schindler'). The offences, in respect of which Schindler has entered a plea of guilty, arise from the same facts but involve, in the case of the s.15(1) matter, a breach in respect of an employee of Schindler and in the matter arising under s.16(1) an offence in relation to an employee of a labour hire firm who was working at Schindler's workplace and exposed to relevant risks.

2 Initially, the prosecutor had commenced, in addition to the s.15 prosecution Matter No. IRC4521 of 1999, another Matter No. IRC4522 of 1999, also under s.15(1) of the Act. Matter No. IRC99/4521 directed to an alleged failure to ensure the health, safety and welfare at work of one of Schindler's employees, Con Tsiribas, in failing to provide or maintain systems of work in the construction of lifts that were safe and without risk to health and Matter No. IRC99/4522 directed towards a failure to provide such training as may have been necessary for Mr Tsiribas in the work which led to the charges. Upon the hearing of the matters the parties agreed, and the Court accepted, that the particulars of the charge in Matter No. IRC99/4521 should be amended to incorporate three new particulars relating to alleged failures in relation to training and IRC99/4522 could be dismissed. That having been done Schindler entered a plea of guilty in relation to the remaining two charges. It is appropriate to record that the prosecutions were mentioned on two occasions before the Court. On the first they were stood over to extend Schindler the opportunity to have a brief served and to take advice. Upon the matter being mentioned subsequently an indication was given that a plea of guilty would be entered subject to further discussions about merging two of the summonses and an estimate of two hours hearing time was given. The two remaining prosecutions were heard together by consent.

3 The essential facts in the matter were the subject of an agreed statement of facts which is in the following terms:

At all material times, the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter.

At all material times, the defendant, SCHINDLER LIFTS AUSTRALIA PTY LIMITED [ACN: 005 838 773] was duly incorporated with registered office situated at 52-54 O'Dea Avenue, Waterloo, in the State of New South Wales.

At all material times Schindler Lifts was contracted to Multiplex Construction (NSW) Pty Limited to undertake the construction of lifts at the Grace Bros site on the corner of Market and Pitt Streets, Sydney in the State of New South Wales.

At all material times WORKFORCE LINK PTY LTD [ACN 077 946 206] was a company duly incorporated with registered office located at 593 Botany Road Rosebery, in the State of New South Wales.

At all material times, Workforce Link Pty Ltd provided labour hire services to Schindler Lifts under a partly oral and partly written labour hire agreement ("the agreement").

By letter dated 22 July 1997, Workforce Link advised Schindler Lifts that it was "responsible for the control and supervision of Workforce employees while they were on their premises".

At all material times Workforce Link employed Hassan Simpson as a trades assistant and pursuant to the Agreement, provided Hassan Simpson to Schindler Lifts as a trades assistant at the construction site.

At all material times, the defendant Schindler Lifts employed a number of personnel at the construction site including Con Tsiribas as a leading hand fitter, Barry Murray as a Lift Fitter, Chris Collins as a Lift Fitter, Nicola Ceic as the Installations Supervisor and Richard Riley as the Project Manager.

On 29 August 1997 at 8.50am, Hassan Simpson was erecting an overhead protective platform in lift shaft No.11 at the construction site when a timber joist which was approximately 4.9 metres long fell from the lift car above him in the same liftwell. The timber joist struck the platform he was working on, causing the platform to break apart. This resulted in Hassan Simpson falling approximately 8 metres to the bottom of lift shaft No.11.

As a result of the fall, Hassan Simpson sustained multiple injuries including internal bleeding, fractured vertebrae, multiple fractures of the pelvis, multiple rib fractures, fractured top left shoulder, fractured right tibia, muscle damage to both shoulders, multiple lacerations, and chipped teeth.

On 29 August 1997, following the accident a Factual Inspection of lift shaft No.11 was undertaken. A Factual Inspection Report was prepared and photographs taken.

The investigation revealed that a decision had been made to dismantle the overhead protection platform in shaft No.11 at Level 6, and place this platform at Level B1 in the same shaft.

The overhead protective platform in lift shaft 11 at Level 6 was dismantled the previous week by Hassan Simpson and another worker. The timber was then stored on Level 5 floor level.

On the day of the accident, Hassan Simpson travelled in the false car to Level 4 and he was passed a length of timber. He then drove the car to Level B1, and unloaded the timber onto that level. He then went back up and obtained a stack of sheets of plywood, and brought them down to Level B2. Hassan Simpson and others then measured the dimensions of the lift shaft whilst standing at the doorway to the liftwell.

Con Tsiribas and Hassan Simpson then proceeded to lay the first of the joists on their flat. They then questioned Chris Collins as to whether the joists should be laid on their flat side or on their edge. The supervisor, Nicola Ceic, advised that they were safe to lay on their flat. A second joist was laid and a sheet of ply was placed on the joists, and a second sheet of ply was also placed on the joists. A further joist was then laid onto the platform and Hassan Simpson climbed onto the platform to position the joist. At that time he called out to Chris Collins who was on the upper levels of Level 4 to bring a safety harness down. At that time Con Tsiribas and Hassan Simpson sat on the platform at Level B1. Chris Collins then drove the false car down and passed a harness to Hassan Simpson. At that point, Con Tsirbas requested Chris Collins to obtain 2 more joists from Level 5.

Con Tsiribas then left the platform and was speaking to the supervisor, Nicola Ceic.

Chris Collins took the car to Level 4. He exited at Level 4, walked to Level 5 and requested Barry Murray to assist him to lay the timber joists on the floor of the car. As the timber joists were too long, and too close inside the car, they were placed, standing, on the floor of the false car. The timber joists then slid down from Level 5 onto the false car, standing on an angle.

The false car was then moved down to Level 4 due to the length of the timber joists. When the car was moved, one timber joist was flung onto the front wall and dropped vertically between the front of the car and the lift wall. At that point Chris Collins sung out the word "Under", as he could see that Hassan Simpson was in the shaft at the B1 level on the platform under construction. The timber joist struck the platform causing it to fall apart, and causing Hassan Simpson to fall into the pit below.

The timber joist that fell from Level 5 was approximately 4.9 metres long by 200mm wide and 48mm thick.

The false car is a suspended platform, which is suspended by steel wire rope and moved up and down by an electric winch. The false car is used as a working platform for installing lift guide rails.

Hassan Simpson had worked in lift construction and modification from March 1997.

Mr Simpson was attended by the site first aider, and Emergency/Ambulance Services Personnel subsequently removed from him the base of lift shaft 11 and transported him to St Vincent's hospital. It also appears that the emergency officers used the previously unsecured ladder access.

Subsequent to the accident Schindler Lifts produced a work method statement for removal of work deck and protective decks specified for lifts 11 to 13 at Sydney Central Plaza. The statement dated 1 September 1997 notes "the false car is not to be used as a means of lifting".

At all material times, there was no overhead protection platform in place whilst Hassan Simpson was undertaking work on the installation of a lift at the construction site which would have prevented any material or objects from falling onto him whilst he performed work underneath.

Hassan Simpson and Con Tsiribas had not received any formal training on how to put up timber platforms whilst working at heights. Hassan Simpson had not received any training on how to wear safety harnesses.

It is alleged that the defendant SCHINDLER LIFTS (AUSTRALIA) PTY LIMITED [ACN: 005 838 773] has breached Section 15(1) of the Occupational Health and Safety Act on the 29th August 1997 at the construction site at the Grace Bros store, located at the corner of Pitt and Market Streets, Sydney in the State of New South Wales, being an employer did fail to ensure the health, safety, and welfare at work of its employees, in particular, Con Tsiribas, in failing to provide or maintain systems of work in the construction of lifts that were safe and without risk to health in that: a. The defendant employed Con Tsiribas on the said construction site. b. The defendant contracted with Multiplex Constructions (NSW) Pty Ltd to undertake the construction of lifts at the said construction site. c. The defendant failed to provide or maintain systems of work in undertaking the construction of overhead protection platforms in shaft No 11, that were safe and without risk to health. d. The defendant failed to provide or maintain systems of work to ensure that fall arrest systems were in place for persons working within the lift well. e. The defendant failed to ensure that employees could not fall greater than 1.8 metres in height pursuant to Regulation 73(3) of the Construction Safety Regulations. f. As a result of the said failure, Con Tsiribas was placed at risk of injury. g. The defendant failed to provide such training that fall restraint systems were used whilst working within the lift shaft No 11 erecting the platform. h. The defendant failed to ensure that such training was provided to ensure that employees utilised a harness and fall restraint system. i. The defendant failed to provide such training pursuant to Section 14 of the Australian/New Zealand standard 4431 of 1996.

It is alleged that the defendant SCHINDLER LIFTS (AUSTRALIA) PTY LIMITED [ACN: 005 838 773] has breached Section 16(1) of the Occupational Health and Safety Act, 1983, on the 29th of August 1997 at the Grace Bros construction site located at the corner of Market and Pitt Streets, Sydney in the State of New South Wales being an employer did fail to ensure that persons not in its employment, in particular, Hassan Simpson, was not exposed to risks to their health and safety arising from the conduct of its undertaking at its place of work, in undertaking the construction of lifts in that: a. The defendant at all material times, employed personnel at the said construction site. b. The defendant contracted with Multiplex Construction (NSW) Pty Ltd to undertake the construction of lifts at the said construction site. c. The defendant, pursuant to a contract labour hire agreement with Workforce Link Pty Ltd, obtained the labour services of Hassan Simpson, as a trades assistant at the construction site. d. The defendant failed to provide such training as may be necessary, to ensure that fall restraint systems were used whilst working within the lift shaft No 11 erecting the platform. e. The defendant failed to ensure that no person could fall greater than 1.8 metres in height pursuant to Regulation 73(3) of the Construction Safety Regulation. f. The defendant failed to provide such supervision as may be necessary to ensure the health and safety of persons at work pursuant to Section 14 of the Australian/New Zealand standard 4431 of 1996. g. The defendant failed to provide or maintain systems of work in undertaking the construction of overhead protection platforms in shaft No 11, that were safe and without risk to health. h. As a result of the said failures, Hassan Simpson suffered multiple injuries.

4 In addition the factual inspection report by Inspector Tyler, a number of diagrams of the work scene and 32 photographs of the area were tendered. The Australian/New Zealand Standard 4431:1996, Guidelines for safe working on new lift installations in new constructions was also tendered in evidence.

5 Evidence was adduced in Schindler's case from Alan Younger, the Manager for NSW and ACT of the defendant. His affidavit included the following material: Schindler Lifts was established in Switzerland in 1874 and employs approximately 40,000 people globally. Schindler employs around 400 to 450 people in Australia depending on the prevailing conditions in the construction industry.

The company is involved in the manufacture and supply of transport systems, including lifts, escalators, moving walks and conveyors.

Major projects undertaken by Schindler in New South Wales in recent times include: · Airport Rail Link - $10M - approximately 30 units. · Westfield Developments on a national basis, the latest being Westfield Hornsby site - $8M - approximately 36 units. · Bennelong Point Development - $6M - 26 units · David Jones Redevelopment - $6M - 32 units.

As discussed above, the company is involved in the installation and maintenance of lifts and escalators. The installation side of the business is obviously heavily involved in construction and the industry as a whole has been identified by WorkCover as one of the high risk industries because of the nature of the work, ie working at heights and working with heavy machinery.

6 Mr Younger attested to Schindler's commitment to all areas of occupational health and safety. Schindler has, and had at the date of the accident, a policy statement in favour of such matters, a general Project Safety Plan which is adapted to suit each individual project.

7 Each employee, upon commencement of employment, is required to undertake induction on Site Installation Safety Procedures. There is in addition for each new project a site specific safety induction.

8 Work methods statements and risk analyses are provided for all facets of the installation. The evidence embraced other such approaches to safety issues which demonstrate to my satisfaction a serious commitment to the safety and welfare of persons for which Schindler has responsibility.

9 Despite those matters the incident which led to these proceedings occurred. As a result, Schindler has taken a series of actions which were attested to as follows: 23. Subsequent to the incident Schindler has at all times engaged specialist contractors to erect overhead protective platforms or to perform any tasks for which Schindler does not have experienced staff and detailed work plans.

The current process in relation to the installation of overhead protective platforms is: · A qualified mechanical engineer will design and detail the manufacturing and installation of overhead protection decks. · A separate installation company will then quote to supply and install the decks in accordance with the engineer's instructions. · This installation company will also produce work method statements and risk analysis for approval prior to commencement. An example of this is attached and marked "G". · The mechanical engineer returns to the site at the completion of the installation, inspects and confirms that the decks have been installed correctly and are fit for use. An example of the confirmation is annexed and marked "H".

Schindler now has a process in place to ensure that decisions to undertake unplanned work, such as the one made to construct the overhead protective platform, can not be made. When tendering on a project we review the scope of the work and any "non lift installation" items are separated. These items are either referred back to the builder and/or for a price from contractors that are specialist in the respective areas. Green Card training for all installations personnel also reiterates that any work which is unfamiliar must be reviewed and correct work method statements developed before any work is undertaken. The type of work we now subcontract to specialists are: · Installation of working and protection decks. · Installation of false cars for installing the lift. · Installation of car interiors. · Grouting and completion of door frames. · Any heavy lifting and/or installation hoisting.

Another factor that would prevent such an incident occurring again is that sites are now very strict on work outside of traditional areas. Work method statements must be produced on every facet of the installation and approved by the major contractor before work commences.

Immediately after the incident a detailed and uncompromising investigation was conducted by the company. Immediate action was taken as follows: (i) Full inspection of all lift shafts and associated areas for safety compliance.

(ii) A safety bulletin was issued to ensure no re-occurrence of the incident on any Schindler site.

(iii) Full review of installation procedures and method statements.

(iv) Full review of personnel competencies in all safety critical procedures and tasks.

(v) A review of employee and sub-contractor training to ensure competency in all safety related areas on construction sites. 30. The following steps were undertaken as a consequence of the investigations of the company:

(i) All work on the construction and removal of protective decks ceased immediately following the accident.

(ii) Removal works on the protective decks only recommenced when a work method statement was prepared that adequately protected personnel from risk of falls and specified the method of construction.

(iii) A qualified engineer was engaged to design and certify any new protective decks to be built in the future.

(iv) Safety bulletin had been issued to all Schindler personnel.

(v) A preliminary review of the site safety plan and work method statements relating to the Grace Bros site had been carried out and completed.

(vi) A complete and detailed revision of the project safety plan was conducted with an expected completion date of 19 September 1997.

(vii) All existing Schindler installation personnel formally inducted into the new project safety plan.

(viii) All employees (including labour hire and sub-contractors) were inducted into the safety plan and issued with an "ok" card to certify their attendance. Such attendance was recorded.

(ix) A further review of installation work methods was programmed to allow for the division of general safety procedures from task specific work instructions. This was designed to facilitate prompt and effective induction of new employees in regard to safety procedures and work methods on construction sites as well as allow task specific safety hazards to be identified as part of the work instruction.

(x) Supervisory and project management personnel attended a "managing occupational health and safety" training course to reinforce their responsibilities in regard to health and safety at the workplace.

Workforce Link Pty Ltd 10 On 8 March 2001 Marks J gave judgment in the matter of a prosecution by Inspector Tyler of Workforce Link Pty Ltd (Unreported, IRComm24), the employer of Hassan Simpson. A charge was brought under s15(1) and was relevantly particularised as follows: The defendant failed to ensure that Hassan Simpson would not fall greater than 1.8 metres in height in contravention of Regulation 79(3) of the Construction Safety Regulations.

The defendant failed to ensure that an overhead protection platform was provided while undertaking the installation of a lift at the construction site which would prevent any material or objects from failing onto Hassan Simpson while he performed work.

11 The defendant in that matter pleaded guilty. It had one prior conviction and consequently it was exposed to a maximum penalty not of $500,000 but $750,000 as a result of the operation of s51A of the Act.

12 Marks J formed the opinion that the defendant should be subjected to an appropriate penalty of $70,000 to which a discount of 25 per cent should be applied because of the early plea of guilty, giving a net penalty of $52,500.

13 I refer to the judgment in Workplace Link for the reason that, as Ms McDonald submitted for the prosecutor, the principle of consistency in sentencing operates here because the charges in the two matters arose out of the same facts. Ms McDonald however noted that the charge brought against Workforce Link was narrower in scope than those now brought against this defendant. Mr Hodgkinson also submitted the defendant here should have the benefit of a consideration, in the context of consistency, that the maximum penalty applicable in the present matter is not $750,000 but $500,000.

14 Schindler has accepted that whilst it normally did not undertake the work of the erection of overhead protection platforms and since this incident has ensured that it does not do so, on this occasion there was a departure in that its employees were undertaking the work directly. It was submitted that, so far as present management is concerned, it was a departure by surprise, a matter which reflects favourably upon Schindler's culpability.

15 In the assessment of the penalty in this matter it is necessary to take into account the principle of totality which requires that the two offences in relation to the employee, Mr Tsiribas and the employee of a labour hire firm, Mr Simpson, which arose out of the same facts, should attract what in essence is one penalty in respect of the two breaches to which Schindler has pleaded guilty. It is also necessary to take into account the principle of consistency in relation to the Workforce Link prosecution in which Marks J imposed the penalty earlier mentioned.

16 There is, in my opinion, only a limited basis for the penalty to pay particular attention to the element of specific deterrence given that the work was in a sense performed as an aberration, the work usually and now uniformly being done by contractors skilled in the construction of overhead protection platforms in liftwells.

17 Taking into account these matters, the fact of a plea of guilty entered early and co-operation with WorkCover, I consider an appropriate level of penalty to be $90,000 reduced by a discount of 25 percent giving a penalty of $67,500.

18 Schindler is convicted in respect of each charge and subjected to a single penalty of $67,500. I order that a moiety of penalty be awarded to the prosecutor and that the defendant should pay the prosecutor's costs as agreed or as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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