Inspector Christensen v Holmes Nominees (Aust) Pty Ltd

[2014] NSWDC 311

District Court

New South Wales

Medium Neutral Citation:	Inspector Christensen v Holmes Nominees (Aust) Pty Ltd [2014] NSWDC 311
Hearing dates:	11 December 2014
Decision date:	15 December 2014
Jurisdiction:	Criminal
Before:	Kearns SC DCJ
Decision:	The defendant is convicted of the offence charge. I impose a fine of $90,000. I direct a moiety of the fine to be paid to the prosecutor. The defendant is to pay the prosecutor’s costs in the sum of $19,302.90.
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY – s8(2) SENTENCE – gravity of offence – Defendant with safe system at several worksites, but unsafe system at subject site – unsafe practices at subject site under the control of general manager – after incident, new general manager appointed with focus on risk management qualifications – other mitigating factors
Legislation Cited:	Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181
Category:	Sentence
Parties:	Inspector Madeline Christensen (WorkCover Authority of New South Wales), Prosecutor Holmes Nominees (Aust) Pty Ltd trading as Aus Pits, Defendant
Representation:	Mr M Moir, instructed by WorkCover Authority of New South Wales, appeared for the Prosecutor; Mr D Jordan SC, instructed by Sparke Helmore, appeared for the Defendant
File Number(s):	2013/209438

SENTENCE

The plea

1. The defendant has pleaded guilty to a breach of s 8(2) of the Occupational Health and Safety Act 2000.

The facts

2. The parties have helpfully provided a statement of agreed facts. Relevantly it provides:

“2.   At all material times Holmes Nominees (Aust) Pty Ltd trading as Aus Pits (ACN 101 759 826) (‘Aus Pits’) was a corporation whose registered office was situated at 13 Leather Street, Breakwater in the State of Victoria.

3.   At all material times Holmes Nominees (Aust) Pty Ltd traded as Aus Pits.

4.   At all material times Aus Pits was engaged in the business or undertaking of the manufacture of concrete stormwater and electrical pits and associated custom concrete products.

5.   At all material times Aus Pits operated a number of manufacturing facilities in Victoria and New South Wales.

6.   At all material times Aus Pits operated a manufacturing facility at premises of 26A Buchanan Street, Murwillumbah, in the State of New South Wales (‘the Premises’).

7.   At all material times Aus Pits was an employer.

8.   At all material times Steve Hecksher was employed by Holmes Nominees as the General Manager of its operations at the Premises in Murwillumbah.

9.   At all material times, Duane Darragh was not an employee of Aus Pits.

10.   At all material times Duane Darragh was working at the Premises as part of the conduct of Aus Pit’s business or undertaking.

11.   Mr Darragh was 34 years of age as at 6 October 2011.

12.   At all material times Aus Pits operated an item of plant namely a Nissan 7 tonne forklift with Model No: WF05H700 and Serial No. 300458 (‘the Forklift’) for use in the manufacture of the concrete pits at the Premises.

System for engagement of casual labour at the Premises

13.   At all material times, Aus Pits employed approximately 13 persons to perform work on a permanent basis at the Premises.

14.   At all material times, Aus Pits had an arrangement with Tandem Australia Pty Ltd (ABN 98 101 457 970) trading as Bluestone Recruitment and trading as Online Personnel (‘Bluestone Recruitment’).

15.   Under this arrangement, Bluestone Recruitment would provide workers on a temporary basis as casual labour hire workers to undertake work at Aus Pits facilities in Victoria and New South Wales including at the Premises.

16.   As at 6 October 2011, Bluestone Recruitment supplied approximately 12 workers on a labour hire basis to perform work for Aus Pits at the Premises.

17.   The usual practice adopted by Aus Pits for the engagement of additional labour at the Premises was to engage labour through a scheme whereby they would have the initial contact with the prospective worker and make an assessment of their suitability.

18.   Aus Pits would then arrange for the prospective worker to complete the relevant paper work and other requirements for them to be employed by Bluestone Recruitment on a casual basis.

19.   This would include an Aus Pits employee providing the person with a Bluestone/Oneline Recruitment employment pack. The person would complete it, including providing their bank details, contact details, tax file number etc.

20.   It was common practice that a new worker engaged via this process would complete the employment forms for Bluestone Recruitment and commence to undertake duties for Aus Pits before any employment had necessarily been formalised with Bluestone Recruitment.

21.   Aus Pits would undertake all of the administrative arrangements to facilitate the employment of the person with Bluestone Recruitment.

22.   Once they started work the new worker would have a time sheet or a start sheet. The Online recruitment pack would then be sent through to Bluestone Recruitment by an Aus Pits employee. Aus Pits would fax or email the tax sheet and bank details and the contact details to Bluestone Recruitment so that they could pay the employee.

23.   Subsequently, Aus Pits would send all the paper work to Bluestone Recruitment by mail. The workers were also required to complete an online ‘Workpro safety training’ assessment before Bluestone Recruitment would pay them.

24.   Bluestone Recruitment’s role in the initial engagement of the person was limited.

25.   The workers hired to Aus Pits by Bluestone Recruitment were subject to the direction and control of Aus Pits employees in the course of their work. Bluestone Recruitment undertook little, if any, supervision or direction of the work performed by their employees at the Premises.

The engagement of Mr Darragh to perform work at Aus Pits

26.   Duane Darragh signed an agreement with Tandem Australia Pty Ltd trading as Online Personnel for the on-hire of his labour dated 3 May 2010 (‘Employment Agreement’).

27.   The Employment Agreement contained a term to the effect that Mr Darragh “will not accept casual or part time work offered to you directly by one of our clients with whom you have worked but will refer the client to us in the event that any such offer is made.”

28.   On 3 May 2010, Mr Darragh, pursuant to the Employment Agreement, commenced to undertake work for Aus Pits at the Premises as a casual labour hire worker. Mr Darragh performed the role of a Production Worker.

29.   On 4 May 2010, Mr Darragh was given a Safety Induction at the Premises by the General Manager, Steve Hecksher. Mr Darragh was also given training on the task of ‘Pit Building.’

30.   On or about 18 August 2010, Mr Darragh was given training on the task of ‘Pit Popping’ at the Premises by Steve Hecksher.

31.   Mr Darragh worked on an intermittent basis at the Premises for Aus Pits during the period from May 2010 until May 2011 pursuant to the Employment Agreement.

32.   In relation to each of the occasions during this period when Mr Darragh worked at the Premises, these were arranged directly between Mr Darragh and an employee of Aus Pits, and generally via a telephone discussion with Mr Hecksher.

33.   Bluestone Recruitment and/or Online Personnel did not have any direct role in placing Mr Darragh with Aus Pits on those occasions.

34.   In the period 17 May 2011 to 5 October 2011, Duane Darragh did not undertake any work for Online Personnel and/or Bluestone Recruitment on a labour hire basis at the Aus Pits facility in Murwillumbah or elsewhere.

35.   At no stage prior to 6 October 2011 had Mr Darragh or Bluestone Recruitment formally terminated the employment Agreement.

36.   Prior to 6 October 2011, Martyn Chisholm, a Labourer employed by Aus Pits and friend of Duane Darragh, asked Steve Hecksher if there was a position available at Aus Pits for Duane Darragh.

37.   Steve Hecksher informed Mr Chisholm that there was and to let Mr Darragh know to come in.

38.   On 5 October 2011, the General Manager, Mr Hecksher spoke to Dan Pilon. Mr Pilon was responsible for Administration and Dispatch for Aus Pits at the Premises. Mr Hecksher requested that Mr Pilon contact Mr Darragh to offer him a role of ‘spotter’ assisting with the pit popping procedure.

39.   Mr Hecksher had been assisting undertaking this role on an ad hoc basis in the week or so before this conversation.

40.   On or about 5 October 2011, Duane Darragh was contacted by telephone by Daniel Pilon. During that conversation Mr Pilon enquired if Mr Darragh was in employment. Mr Darragh indicated he was not. Mr Pilon then asked whether Mr Darragh was interested in coming back to work at Aus Pits. Mr Darragh indicated that he was interested. Mr Pilon indicated that the role did not involve building pits, but would involve ‘pit popping’. Mr Pilon advised Mr Darragh that he could start the next day, 6 October 2011 and that he should attend the Premises at 6.30am.

The Task of Pit Popping

41.   Aus Pits constructed Concrete Pits of various sizes and dimensions at the Premises.

42.   The construction of the Concrete Pits involved a number of stages. Each of the stages was undertaken in different locations around the Premises.

43.   The Concrete Pits were built using moulds in a shed at the Premises. The moulds needed to be constructed by Aus Pits’ Production Workers. The moulds generally consisted of a pre fabricated steel inner mould. The outer mould was constructed using steel plates. Steel reinforcement was then placed into the moulds and concrete then poured into the moulds.

44.   The concrete in the moulds was then left to set/cure.

45.   Once the concrete in the mould had cured the Pits need to be removed from the moulds.

46.   The task of removing the Concrete Pits from the moulds was known as ‘Pit Popping’.

47.   The task of Pit Popping involved a number of stages.

48.   Aus Pits used the 7 tonne Nissan Forklift to assist with the task of Pit Popping.

49.   The Forklift had a built in safety mechanism to stop the accidental release of products and an attachment fitted which had hydraulically operated rotating grabs which were used to lift and move the Pits and inner/moulds.

50.   The procedure used for the task of Pit Popping, as at October 2011, is described below.

51.   First, the moulds with the Pits inside were lifted off the base where they were built in the shed by the Forklift. A Production worker would then manually knock off the ‘height plates’ and outer moulds.

52.   The Concrete Pit and inner steel mould were then transported by the Forklift using the grab attachment to another part of the Premises, where a piece of plant or equipment called a ‘Pit Popping Table’ was located.

53.   The Pit Popping Table consisted of a solid frame manufactured from RHS steel. The four outer steel beams were fixed into place. A further internal steel beam was attached to the right and left beams of the frame and was able to be moved on rollers forward and back along the right and left beams of the frame to suite different size Pits. This was known as the Roller Beam.

54.   The side beams of the Pit Popping table had a number of holes drilled into them at various intervals which represented the appropriate size table for different size Pits. The side beams also had the various measurements of the different Pit sizes marked in blue. The Roller beam could be moved to the appropriate location/width along the side beams. Locking pins would then be fitted through holes at either end of the Roller Beam and into the appropriate hole in the corresponding side beams to lock the Roller beam in place. The locking pins were made of round steel rod.

55.   The front fixed beam had a blue line marked across its length, approximately in the middle of its width. With the guidance of a spotter, the blue line was used to provide the Forklift Operator with guidance as to where to place the Pit and inner/mould onto that beam.

56.   The Forklift was used to transport the Concrete Pit and inner/mould to the Pit Popping Table. Before the Pit was placed on the Table, the Spotter would set the Roller Beam on the Pit Popping Table to the correct size for the Pit to be popped.

57.   The Forklift Operator would then line the Pit and inner/mould up with the blue line on the front beam of the Pit Popping Table.

58.   Once the Pit and inner/mould was lined up correctly with the frames of the Pit Popping Table the Forklift Operator would then lower the Pit onto the frames of the Table.

59.   Once the Pit was sitting flat on the Pit Popping Table the Forklift Operator would put the Forklift in neutral and put the hand brake ‘on’ and then get off the Forklift to assist the Spotter.

60.   A series of metal brackets, known as ‘C’ brackets, were placed onto the inside of the Pit Popping Table frame and the inner/mould of the Pit. The ‘C’ brackets were designed to hold the inner mould down onto the Pit Popping Table whilst the Pit was removed or ‘popped’.

61.   Two hydraulic jacks were then placed under the concrete walls of the Pit on the two sides.

62.   A number of metal height stands were then placed onto the hydraulic jacks, which then pressed against the underside of the concrete pit walls.

63.   The height stands were initially held in place by hand by one of the workers, while the other of the workers would use the controls for the hydraulic jacks to place tension on the height stands so that they were in position, and no longer needed to be held in place by hand, before the ‘popping’ process commenced.

64.   After the height stands and hydraulic jacks were in position, the Spotter and the labourer was supposed to stand back from the Pit Popping Table and operate the remote control of the hydraulic jacks to raise the jacks which would cause the concrete Pit to rise. As the inner/mould was fixed to the plates of the Pit Popping Table by the ‘C’ Brackets, they would remain in place allowing for the Pit and the inner/mould to be separated.

65.   The Spotter and or labourer was supposed to remain within the vision of the Forklift Operator while using the remote hydraulic controls to ‘pop’ the Pit off the inner/mould.

66.   While the Pit was being ‘popped’ off the inner/mould, the Forklift Operator would raise the grab attachment, which was still attached to the outside edges of the concrete Pit, at the same rate as the hydraulic jacks raised the Pit, until the Pit slid off the inner/mould.

67.   The Forklift Operator would continue to lift the Pit until it was above the height of the inner/mould.

68.   Once the Pit was above the height of the inner/moulds, the metal height stands on top of the hydraulic jacks would fall away, as would, on some occasions the ‘C’ brackets.

69.   The Spotter was required to stand clear of the Pit Popping Table and in clear view of the Forklift Operator during this process so as not to be struck by the height stands and ‘C’ brackets as they fell down from the Pit Popping Table.

70.   Once the Pit was clear of the inner/mould, the Forklift Operator moved the Forklift back from the Pit Popping Table and then lowered the Pit and rotated the Pit by 180 degrees. The Forklift Operator would then use the Forklift to transport the Pit to another area of the factor known as the ‘mudders area’ for finishing.

71.   While the Pit was being taken to the ‘mudders area’, the Spotter or labourer would undertake the tasks of removing the ‘C’ brackets, height stands and hydraulic jacks from the pit popping table area.

72.   Once the Pit had been dropped off at the ‘mudders area’, the Forklift Operator would return to the Pit Popping Table to lift the inner/mould off the Pit Popping Table and take it back to the Shed for re-building.

73.   In preparation for the process of pit popping, the Spotter or labourer was required to get inside the Pit Popping Table to re-set the table size and to clear any ‘C’ brackets or height stands that many be obstructing the roller beam.

Circumstances of the incident

74.   On 6 October 2011 at approximately 6:20 am, Duane Darragh attended the Premises to commence work at Aus Pits.

75.   Duane Darragh went to the Office at the Premises where he met Mr Pilon. Mr Pilon informed Mr Darragh that he would be working as a Spotter and helping ‘pop’ the Pits.

76.   Shortly afterwards, Mr Hecksher saw Duane Darragh outside the Office and welcomed him back and then told him to “give me two minutes and I will be out to see you.” Mr Hecksher introduced Mr Darragh to Nathan Williams and indicated they would be working together that day.

77.   Nathan Williams was a Labourer who was employed by Bluestone Recruitment, but was on-hired to Aus Pits to work at the Premises. Mr Williams had commenced working at Aus Pits from on or about 8 August 2011.

78.   Mr Williams’ primary role at the Premises involved the operation of the Forklift in the process of Pit Popping.

79.   Mr Darragh then spoke to a few co-workers who were located in the lunch room at the Premises.

80.   At approximately 6.30 am, most of the workers in the lunch room started to move into the factory areas of the Premises to commence work. Mr Darragh went in to the factory area of the Premises to commence work when all the other workers did.

81.   Mr Darragh stated that he went to start work with the other workers because he thought that if Mr Hecksher saw him sitting around doing nothing, that he wouldn’t be happy. Mr Darragh was not told to commence work by anyone at Aus Pits. However, Daniel Pilon (administration worker for Aus Pits at the time of the incident) advised Mr Darragh that he would be working as the spotter for the forklift.

82.   At that time Mr Darragh had not undergone a site specific induction or health and safety induction of the Premises conducted by Aus Pits.

83.   Mr Darragh had previously been given a site induction when he first started at Aus Pits in May 2010 and was re-inducted on 27 August 2010 when Aus Pits changed its Safety Induction sheet.

84.   Prior to commencing duties on 6 October 2011, Mr Darragh was not provided with any refresher training by Aus Pits in relation to the system of work to be followed while performing the task of Pit Popping or in relation to the role of ‘Spotter’.

85.   Prior to commencing duties on 6 October 2011, Aus Pits had not provided Mr Darragh with a Bluestone Recruitment or Online Personnel employment pack. Mr Darragh had not been provided with an employment contract or any other document setting out the basis of his engagement. He had not provided Aus Pits with his personal details such as his bank details, contact details, tax file number etc.

86.   At approximately 6.30 am, as Mr Darragh was walking around past the Shed, he saw Mr Williams driving the Forklift and picking up a Pit off the Pit Popping Table.

87.   On 6 October 2011, Mr Williams had commenced work at the Premises at approximately 5:50 am, undertaking a task left over from the day before.

88.   After undertaking that task, Mr Williams had used the Forklift to transport a Pit and inner/mould to the Pit Popping Table. Mr Williams had then undertaken the task of Pit Popping of the Pit on his own, without the assistance of a Spotter or any other worker.

89.   Mr Darragh reached the Pit Popping area by the time Mr Williams had removed the Pit from the Table.

90.   After undertaking this task Mr Williams spoke to Mr Darragh. Mr Darragh informed Mr Williams that he had ‘popped’ pits before.

91.   Mr Williams then asked Mr Darragh if he was right to go out and set the Pit Popping Table up for a particular size of Pit known as a ‘700’.

92.   Mr Williams informed Mr Darragh that the Pit Popping Table should be “pretty right” as he had the table set up for a 700 before. Mr Darragh replied “yeah no worries” and headed to the Pit Popping Table.

93.   Mr Williams then went to the Shed with the Forklift to collect the ‘700’ Pit that was to be ‘popped’.

94.   The Pit with the inner/mould weighed approximately 2087 kilograms. The Pit measured approximately 1100 mm wide x 2110 mm high x 900 mm deep.

95.   Mr Williams then grabbed the Pit with the Forklift grabs and proceeded to take it out to the popping area.

96.   Mr Williams then lined the Pit up with the front beam of the Pit Popping Table.

97.   As the Forklift and Pit got close to the Pit Popping Table, Mr Williams noticed that Mr Darragh was standing to his right, but that he was standing inside the Pit Popping Table. Mr Williams asked Mr Darragh to move out of the inside of the Pit Popping Table, as it wasn’t a ‘safe spot’.

98.   Mr Darragh replied “ok cool”.

99.   Mr Williams then saw Mr Darragh put his legs over the beam and jump over the side beam of the Pit Popping Table so that he was outside the Pit Popping Table.

100.   Mr Williams then asked Mr Darragh “if we were right”. Mr Williams states that Mr Darragh said “yeah, we’re right”.

101.   Mr Williams then drove the Forklift forward and lined the inner/mould up on the blue line on the front beam of the Pit Popping Table.

102.   Mr Williams then started to lower the Forklift grabs to place the Pit down on the blue line on the front beam of the Pit Popping Table. After placing the Pit on the Pit Popping Table, Mr Williams released the Forklift grabs from the Pit. Mr Williams practice was to then realign the grabs on the Pit so that they were closer to the Pit during the ‘popping’ process.

103.   At the time he released the Forklift grabs from the Pit, the ‘C’ brackets that hold the inner/mould in place on the Pit Popping Table had not been put into place. Nor had the hydraulic jacks or height stands been put in place under the Pit.

104.   At the time he released the Forklift grabs from the Pit, Mr Williams could not see where Mr Darragh was located.

105.   Almost immediately after he released the Forklift grabs from the Pit, Mr Williams saw the Pit start to fall from the Pit Popping Table.

106.   At around the same time that Mr Williams had released the Forklift grabs from the Pit, Mr Darragh saw that the ‘C’ brackets and height stands that go onto the jacks, were lying around inside the Pit Popping Table. The ‘C’ brackets were required to be used to secure the inner/mould of the Pit to the beams of the Pit Popping Table, and height stands were required to be used to place on the hydraulic jacks prior to popping the Pit off the inner/mould.

107.   The Pit and inner/mould then fell off the Pit Popping Table in the direction of the Roller beam.

108.   The Concrete Pit and inner/mould fell onto Mr Darragh crushing him between the Pit and the ground.

109.   Mr Williams got off the Forklift and then looked for Mr Darragh. He saw that he had been crushed between the Pit and the ground. Mr Williams observed that Mr Darragh was bleeding and then called for assistance and a number of other workers at the Premises came to the location of the Pit Popping Table to provide assistance.

110.   A second Forklift was obtained and used to lift the Pit off Mr Darragh.

111.   Mr Darragh was then conveyed by Ambulance to Tweed Heads Hospital.

112.   As a result of being crushed Mr Darragh sustained serious injuries including a punctured left lung, numerous fractures down his side including ribs, shoulder and arm. Numerous spinal, chest and neck fractures, a fractured jaw, skull, ear drum and severe vein and blood injuries.

113.   Subsequently Mr Darragh was transferred to the Gold Coast Hospital on 6 October 2011, and then to the Brain Injury Rehabilitation Unit, of the Princess Alexandra Hospital, Brisbane on 7 November 2011.

114.   An inspection of the Pit Popping Table undertaken by Mr Hecksher shortly after the Incident revealed that the locking pins that were used to lock the Roller Beam into the correct location for the particular size Pit were not in place. One locking pin was found sitting on the ground near the Pit Popping Table and the other one was on the ground or sitting on top of the beam.

115.   Mr Hecksher stated that in light of his observations of the scene of the Incident that it appeared that the locking pins weren’t in place at the time that the Pit was being placed onto the Pit Popping Table. Further, it was not clear whether the Roller Beam had been set at the correct distance for the Pit size. Mr Hecksher stated that he believed that after the Pit had been released from the Forklift grabs it fell forward onto Mr Darragh.

Systems of Work prior to the Incident

116.   Prior to the date of the Incident, Aus Pits had developed a number of documented work method statements for the task of Pit Popping.

117.   Aus Pits had developed a job specific procedure for pit popping titled ‘Removing of pits off slip moulds’ dated December 2001. This procedure included a requirement that 3 people were required to undertake the task to safely place Pits on the Pit Popping Table.

118.   This procedure stated the following:

‘Before placement of the pit on the table the operation is to halt while a third person (spotter) is called to assist with the placement on the table. The third person is to direct (under instructions from the dogman) the forklift into position. Only then is the forklift operator to lower the pit onto the table as instructed by the third person (spotter).’

119.   Aus Pits had also developed a series of Safe Work Method Statements for the task of Pit Popping.

120.   These included a ‘Safe Work Method Statement for Pit Popping’ dated 30 August 2011 (the SWMS). This was the SWMS applicable at the date of the Incident.

121.   The SWMS document was applicable to a number of Aus Pits’ manufacturing facilities. However, the various Aus Pits’ manufacturing facilities did not use the same method for the task of Pit Popping as the one used at the Premises at Murwillumbah.

122.   The SWMS document did not address the particular circumstances, hazards and risks applicable to the method of Pit Popping undertaken at the Premises.

123.   Further, the SWMS did not provide a detailed guide to the steps involved in the task, the risks associated with them and the control measures.

124.   In particular the SWMS did not include information in relation to the task of setting up the Pit Popping Table, and in particular the requirement to insert the locking pins in the Roller beam of the Table.

125.   The SWMS did not specify who’s role it was to undertake the task of inserting the locking pins in the Roller beam of the Table; when the task should be undertaken; the hazards that may arise if it is not undertaken properly or at all; the risk involved in performing this task; and whether any one was required to check that the locking pins had been inserted properly or at all.

126.   The SWMS did not detail the step of the task that involved the attaching the ‘C’ brackets to the inner/mould. The SWMS did not specify whose role it was to undertake this task; when it should be undertaken; the hazards that may arise if it was not undertaken properly or at all; the risk involved in performing this task; or whether any one was required to check that it had been undertaken properly or at all.

127.   In relation to those above parts of the process the SWMS did not deal with the role of the Forklift Operator. Nor did it include a requirement that the Forklift Operator should not release the Pit until the other workers have confirmed that they had attended to the required steps, the Pit was secured to the Pit Popping Table and they had moved to a position where they were clear of the area should the Pit or any other equipment fall.

128.   Nor did the SWMS address in particular the hazard of the Pit and mould/inner failing during the process. In particular it failed to address the risk of being struck, if the workers were undertaking the various tasks involved including the process of attaching the ‘C’ brackets, placing the jacks, placing the steel height stands, or were otherwise inside or in the vicinity of the Table.

129.   The SWMS did not specify that a control measure that should be adopted to eliminate or minimise the risk was that workers were to stand well clear of the area where the Pit could fall during the process.

130.   The SWMS did not address the issue of where the ‘no-go’ zone was for workers in relation to the Pit Popping process or how it was to be delineated.

131.   The SWMS did not adequately address the interaction of the Forklift operating in the same area as the other workers. It did not specifically address where the workers should stand in respect to the Forklift and the Pit Popping Table and how communication was to be maintained between them and the Forklift Operator.

132.   The SWMS did not address the issue how many persons were required to undertake the task of Pit Popping or what their particular roles and responsibilities were.

133.   Further, the practice adopted by Aus Pits at the Premises for the task of Pit Popping did not accord with the written documented procedures for the task.

134.   As at the date of the Incident, the system of work that should, under company policy, have applied at all premises operated by Aus Pits required three persons to be involved in the task of Pit Popping. This included a Forklift operator, a dogman and a labourer/Spotter.

135.   However, the practice at the Premises was that generally only two workers were involved in the process of Pit Popping, namely the Forklift Operator and a Spotter. However, on occasions only one person would undertake the whole of the task of Pit Popping at the Premises, including operating the Forklift.

136.   The practice of having only two persons undertaking the task was done with the knowledge and acquiescence of Aus Pits NSW General Manager, Mr Hecksher.

137.   The practice at the Premises prior to the Incident involved the Forklift Operator releasing the Pits from the grabs, of the Forklift, if required, to readjust where they were holding the Pit, prior to the Pit and inner/mould being secured to the Table. This readjustment of the position of the grabs of the Forklift was sometimes required on larger sized Pits.

138.   The system of work also involved a requirement that workers get inside the Pit Popping Table while the Pit was sitting on the Table to undertake the placement of the ‘C’ brackets, the hydraulic jacks and the steel height stands.

139.   The practice adopted therefore required or permitted workers to be inside or in the vicinity of the Pit Popping Table prior to the Pit being secured to the Table.

140.   This meant that, before the Pit Popping process commenced, workers were required to enter into the immediate vicinity of the Pit Popping Table.

141.   The system used for affixing the inner/mould to the Pit Popping Table involved the use of ‘C’ brackets. However, the ‘C’ brackets were simply placed over the inner/mould and the beams of the Table and were not able to be clamped or secured into place. As a result there were occasions when the ‘C’ brackets would fall away during the Pit Popping process.

142.   The design of the Pit Popping Table at the Premises did not incorporate a brace or support on the Roller beam to prevent the Pit from toppling over on the rear side that was not being held by the Forklift, should there be a failure on the part of the worker to insert the pins into the roller beam or a failure of the Forklift to maintain pressure on the Pit during the placing of the Pit on the Table. In such a circumstance the weight of the Pit could cause the Roller beam of the Table to move allowing the Pit to fall.

143.   The practice at the Premises did not include the implementation, delineation or the enforcement of a no-go zone around the Pit Popping Table, while the Pit was being placed on the Table and while the Pit was sitting unsecured on the Table.

144.   The Premises did not have a no-go zone painted or otherwise delineated around the Pit Popping Table in which persons were not permitted to be located during the process or to enter until given the all clear by the Forklift Operator.

145.   The practice at the Premises, prior to the Incident, was that workers involved in the task of Pit Popping were not provided with training and/or instruction in the contents of the SWMS developed for the task.

146.   Mr Hecksher stated that although Aus Pits had developed SWMS’s for the task, these procedures were not used during the training of workers or provided to them.

147.   Mr Hecksher stated that this was because he believed that they would not be read by workers and would be left around to get dirty.

148.   Mr Hecksher stated that prior to 6 October 2011 changes that were made to the Pit Popping procedure were conveyed to the workers verbally.

149.   On 18 August 2010, while previously working at Aus Pits, Mr Darragh received instruction on the task of Pit Popping from Mr Hecksher. This was done by hands-on demonstration. Mr Darragh was not provided with instruction in relation to the content of the SWMS or other documented procedure. Nor was he provided with a copy of the SWMS or other documented procedure.

150.   Mr Williams had commenced undertaking work on the task of Pit Popping from on or about 20 September 2011. Mr Hecksher had given him hands on training in the task. Mr Williams was not trained in, shown or given any written procedure or safe work method statement in relation to the task of Pit Popping. Mr Hecksher had worked with Mr Williams on the task of Pit Popping in the three week period that Mr Williams had been undertaking Pit Popping. It was during that three week period that Mr Hecksher provided Mr Williams with hands on training on the pit popping process and the role of the forklift drive.

151.   During this period there were also occasions when Mr Williams undertook the task of Pit Popping by himself without assistance from a Spotter or Dogman.

152.   The investigation revealed that a few days prior to the incident, there had been an incident at the premises in which a pit had fallen from the pit table.

153.   The Register of injuries and other documents kept by Aus Pits demonstrates that there were a series of incidents, injuries and near misses at the Premises involving the system of work for the production of concrete pits including the task of removing the concrete pit from the steel inner/mould.

154.   Further, while Aus Pits had a Factory Inspection Program, which included semi-regular inspections of the Premises this system did not identify any issues in relation to the pit popping, the documented systems of work and whether those systems removed the risk to workers at the premises.

155.   A series of audits were undertaken by the labour hire supply company ‘Online Personnel’ in 2009 which identified a number of deficiencies in Aus Pits’ systems of work at the Premises. However, none of the identified deficiencies related to the task of pit popping.

156.   The ‘Online Personnel’ audit dated 17 April 2009 identified a number of matters including that there were no risk assessments undertaken; no emergency and evacuation plans; issues regarding use of chemicals; that safe operating procedures were not available near machines for workers to read; no documented job specific training; no traffic management plan.

157.   Online Personnel conducted a further audit on 19 November 2009 which also identified a number of deficiencies including no emergency plan; safe operating procedures not visible or adjacent to machines for the operators to read; no traffic management plan.

158.   The Total Recruitment Group quarterly review, dated 28 September 2010, identified that there were no risk assessments, a number of outstanding actions, and a lack of an evacuation drill & traffic management plan.

159.   Similarly Aus Pits own Factory Inspection dated 25 February 2011 raised and series of issues and concerns regarding forklift/crane operator blind spots & forklifts working in the same area as other workers (Traffic management); poor housekeeping/trip hazards

160.   Aus Pits factory inspection dated 21 April 2010 raised and series of issues and concerns regarding no machine operating instructions; poor housekeeping; trip hazards.

161.   Aus Pits factory inspection dated 6 December 2010 raised and series of issues and concerns regarding forklift/crane operator blind spots, poor housekeeping trip hazards.

162.   Aus Pits factory inspection dated 29 June 2011 raised and series of issues and concerns regarding poor housekeeping; trip hazards; workers climbing on sides of moulds to carry out work; blind spots on forklifts; no emergency alarm,

163.   Aus Pits factory inspection dated 27 September 2011 raised and series of issues and concerns regarding poor housekeeping; trip hazards, blind spots for forklift operators.

164.   Mr Hecksher, the General Manager at the Premises, had responsibility for employing staff, training, supervision, quality control and assisting with dispatch at the Premises. He was also required to at time undertake day to day production tasks. He had only limited qualifications and training to undertake this role. Mr Hecksher was aware that the pit popping task was being undertaken by methods other than accordance with the documented system of work, in accordance with Aus Pits general company policy.”

The particulars

3. The particulars relied on by the prosecutor are contained in the amended summons filed on 15 September 2014. The details are extensive and the particulars are as follows:

“1.   At all material times the Defendant was an employer.

2.    At all material times the Defendant, as part of its business or undertaking:

(a)   conducted a business of the manufacturing and sale of concrete stormwater and electrical pits for use in the construction industry;

(b)   operated a number of manufacturing and storage facilities in Victoria and New South Wales;

(c)   operated a manufacturing facility at premises at 26A Buchanan Street, Murwillumbah, in the State of New South Wales (‘the Premises’);

(d)   operated an item of plant namely a Nissan 7 tonne forklift with Model No: WF05H700 and Serial No. 300458 (‘the Forklift’) for use in the manufacture of the concrete pits at the Premises;

(e)   had a contract or arrangement with Tandem Australia Pty Ltd (ABN 98 101 457 970) trading as Bluestone Recruitment and trading as Online Personnel (‘Bluestone Recruitment’) to provide workers on a temporary basis as casual labour hire workers to undertake work at its facilities in Victoria and New South Wales including at the Premises.

(f)   pursuant to its contract or arrangement with Bluestone Recruitment engaged Duane Darragh as an on-hire Production Worker at the Premises;

3.   At all material times the Premises were a place of work of the Defendant.

4.   Persons not in the Defendant’s employ, in particular Duane Darragh, were exposed to risk of injury arising from the Defendant’s undertaking whilst at the Premises.

5.   The duty or obligation of the Defendant was, so far as was reasonably practicable, to ensure that persons not in the Defendant’s employ were not exposed to risks to their health or safety arising from the conduct of the Defendant’s undertaking while they were at the Defendant’s place of work.

The risk:

6.   The risk was that of persons who were not the defendant’s employees and in particular Duane Darragh, being struck and/or crushed by a concrete pit and inner/mould weighing approximately 2087kg falling from a pit popping table during the task of removing the concrete pit from the steel inner/mould at defendant’s place of work.

7.   As a result Duane Darragh was placed at risk of suffering serious personal injury.

The particulars of the acts or omissions in failing to eliminate the risk:

8.   The defendant failed to have an adequate system of work in place in relation to the procedures for persons undertaking the task of removing the concrete pit from the steel inner/mould at defendant’s place of work in that it failed to take the following measures:

(a)   develop, implement and enforce an adequate safe work method statement for the task which specified the control measures that persons performing the task should take to mitigate against the risk such as:

i.   the steps involved in the task, the hazards associated with them and the control measures to eliminate the hazards;

ii.   the number of persons required to undertake the task and their respective roles and responsibilities;

iii.   whose role it is to undertake each particular step in task, when the step should be undertaken, and the hazards that may arise if the step is not undertaken properly or at all;

iv.   whose responsibility it is to check that a step has been taken prior to proceeding with the next step in the process;

v.   where the workers are to be located during the undertaking of various steps in the process;

vi.   the required communication between the operator of the forklift and other workers involved in undertaking the task;

vii.   the requirement that the forklift operator should not release the pit from the forklift clamps until the other workers have confirmed that they have attended to all the required steps, the pit is secured to the table and the workers have moved to a position where they are clear of the area should the pit or any other equipment fall from the popping table;

(b)   develop, implement and enforce a system of work for the task which specified the control measure that persons performing the task should take to mitigate against the risk such as:

i.   a requirement that three suitably trained, qualified and experienced persons be utilised to undertake the task of pit popping

ii.   ensure that the popping table was set up with the locking pins inserted into the rear roller beam of the table roller prior to the concrete pit and the steel inner/mould being placed on the popping table

iii.   a requirement that the forklift operator was not permitted to release the pit from the grabs of the forklift prior to confirmation that the pit and inner/mould had been secured to the table;

iv.   a requirement that the forklift operator did not release the concrete pit and inner mould from the grabs of the forklift prior to confirmation that no persons remained within the area of a no go zone in the vicinity of the table

9.   The Defendant failed to ensure that the plant and equipment provided for use by persons undertaking the task of pit popping was safe and without risk to health and safety when properly used, in that it failed to take the following measures:

(a)   provide a pit popping table which had a means of bracing or supporting the concrete pit and the steel inner/mould on the rear roller beam of the table to prevent the concrete pit and the steel inner/mould from falling from the popping table;

(b)   provide a secure system for affixing the steel inner/mould to the popping table before it was released from the forklift grabs;

(c)   marking the area of the no-go zone around the pit popping table in which persons were not permitted to be located during the period after the concrete pit and the steel inner/mould had been released by the forklift grabs;

10.   The Defendant failed to provide such information, instruction and training as was necessary to ensure the health and safety of persons who were not its employees, and in particular Duane Darragh, in relation to the procedures for persons undertaking the task of removing the concrete pit from the steel inner/mould at defendant’s place of work in that it failed to take the following measures:

(a)   provide refresher training to Mr Darragh in relation to safe work procedures for pit popping prior to him commencing duties;

(b)   provide information, instruction and training to forklift operators that they were not to release the concrete pit and the steel inner/mould from the grabs of the forklift until they were informed by the other workers that the concrete pit and the steel inner/mould were secured to the popping table;

11.   By reason of the Defendant’s act and omissions:

a.   Duane Darragh was exposed to the risk; and

b.   Duane Darragh sustained injury as a consequence thereof.”

The sentencing

4. I need to bear in mind several matters. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I need to bear in mind the purpose of the occupational health and safety legislation, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I need to bear in mind aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act, so far as any are relevant.

5. I start my analysis with the consideration of the gravity of the offence. This is determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of risk coming home and the measures available to the defendant to avoid the risk.

6. It does not take technical documents or expert evidence to foresee the risk or the consequences of the risk of injury in the defendant’s operations in this case. They were readily foreseeable. Indeed, there was an incident of a pit falling from a pit table a few days before the incident. The details are not specified but the defendant’s documents reveal other incidents, injuries and near misses involving the process of removing the pit from the inner/mould. Also, the defendant’s standard operating procedure for pit popping, clearly contemplated the risk of injury if its procedures were not followed (tab 3 of exhibit B).

7. Measures were readily available to the defendant to avoid the risk. This is manifest by its practices introduced after the incident.

8. Further, this was not a case of an isolated incident gone wrong in the functions of an otherwise good safety system. The system at Murwillumbah was not safe. This is evident from the statement of agreed facts. Paragraphs 119 to 122, in particular, reveal that the defendant had safe work method statements that applied to a number of its premises but somehow or other they did not apply at the premises at Murwillumbah. The safe work method statements did not provide a detailed guide as to the steps involved in the task, the risks, the control measures, the requirement to insert the locking pins in the roller beam, or whose task that was, or when it should be undertaken, or whether anyone should check whether it had been done. They did not detail the task of attaching the C‑brackets to the inner/mould, or whose task it was to undertake that, or when it should be undertaken, or whether anyone should check that it had been done. They did not deal with the role of the forklift operator. They did not specify that workers should stand well clear when the pit could fall. They did not address where workers should stand or how they should communicate. They did not address how many persons were required to undertake the task or what their roles should be.

9. Company policy for all the premises was that the task should be undertaken by three persons but that was not the practice at Murwillumbah. Sometimes two persons did it, sometimes one.

10. There was no system for clamping the C‑brackets into place. Occasionally, they would fall away during the process. The practice did not involve a no‑go zone, while the pit was being placed on the table or while it sat unsecured on the table.

11. Safe work method statements that were developed for the task were not used during the training of workers or provided to them.

12. Having said all that, Mr Jordan of Senior Counsel, who appeared for the defendant, in a carefully reasoned argument, put forward a number of matters which I accept. He submitted that there were four primary causes of the incident. One, the pit popping table was not properly set up. Its locking pins were not inserted to prevent one of the beams, being D, from rolling (see photographs at tab 6 of exhibit B). Two, the grabs on the forklift should not have been released when they were. Three, a third person should have been present as a spotter. Four, there was a lack of adequate training and instruction.

13. The defendant acknowledges its failures in each of these respects but it is submitted that this occurred against the background of a safe system of work that the defendant had established from its head office premises in Victoria. The defendant has six different business premises, employing or retaining the services of about 120 works. Mr Darrah was not a direct employee. His services were retained through a labour hire company.

14. The problem with the defendant’s system however, is that while it worked elsewhere, it failed at Murwillumbah. The defendant acknowledges this and puts forward that its practices failed to meet proper standards because Mr Hecksher’s approach was not up to standard. I accept that this was so.

15. The defendant’s written procedures at the time of the incident were not adequate to deal with the risk. Those procedures, however, combined with the procedures in practice, at least at places other than Murwillumbah, would have been adequate. This confirms the inadequacy of Mr Hecksher’s attention to the necessary aspects of safety. This does not detract from the defendant’s guilt. It is however relevant to the defendant’s culpability - R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 [31]. This is not a case where the defendant had no system in place and each set of its premises operated according to its own haphazard way. Nor is it a case of established safety procedures put in place that were obviously inadequate. It is a case where one of the six premises of the defendant had regrettably slipped through the cracks and the defendant’s systems failed to pick that up. This does not mean that the breach was not serious. It was and it was all the more serious because the system was failing in its safety over a period of time.

16. Another matter Mr Jordan relied to reduce the defendant’s culpability, was the fact that Mr Darrah had not been told to start work. I do not think there is anything in this point. The premise in the submission is correct. However, Mr Darrah had been told he would be pit popping. He knew that task as he had worked at the defendant’s premises before. He had been asked by Mr Hecksher to wait a couple of minutes. He waited more. Others then went off to start their work. No doubt, he thought, he should too. He came across the forklift operator who was already in the process of pit popping. Naturally enough, he started to work, though he had not been told to commence work. If he was not meant to, Mr Hecksher should have told him so. This point I think, is just another manifestation of how Mr Hecksher had not kept on top of ensuring that safe practices were implemented.

Deterrence

17. I turn to deterrence. Specific deterrence has a relevance here but it is of limited moment. The process has been changed and an accident of this type cannot happen in pit popping again. However, the defendant is still in the business. It is a business with inherent risks. The defendant’s steps taken to avoid such an accident again, and to implement and enforce proper safety procedures, make specific deterrence a matter of little moment.

18. General deterrence remains an important consideration and I bear in mind that others operating in like industries, need to be reminded of the need for safety and of the consequences of failing to ensure it.

Mitigation

19. On mitigation, Mr Jordan relied on six matters. They are all apposite and to be taken into account. One, the defendant is unlikely to re‑offend. I accept that. Two, the defendant entered an early guilty plea. Three, the defendant has cooperated fully with the prosecutor in the investigation of the incident and in the prosecution. Four, the defendant has accepted responsibility for the incident and expressed remorse. This is not simply by word. It has been amply corroborated by actions of the defendant, especially as set out in paras 30 and 31 of Mr Holmes affidavit of 8 December 2014. Five, the defendant has no prior convictions. Six, the defendant has a good corporate standing in the community. This is exemplified by the material in para 32 of the affidavit of Mr Holmes. There might be added to these matters, steps the defendant has taken since the incident.

20. The defendant’s business of design and manufacture of customised concrete pits is highly specialised. The defendant has been a pioneer in this industry. Its processes have been constantly changing over the life of the company. State of the art developments have occurred as new ideas develop and are implemented. These changes have brought with them, changes that have improved the safety in the workplace. The process now in place for pit popping has taken most of the manual operations out of it. It is not to be critical of the defendant that that was not in place at the time of the incident. This was one of those state of the art developments and it was implemented over time. There were other changes to processes that the defendant did make after the accident that could have been implemented before the incident. That they were not implemented before, is a matter that goes to the guilt of the defendant. That they were implemented immediately after, goes to the sentencing process. The steps included things such as a No Go Zone, having three operators, and installing an RHS support to prevent the movement of beam D - see drawings at tab 6 of exhibit B.

21. Further, the defendant has implemented changes of personnel and functions of personnel at Murwillumbah, to not only improve safety processes but also to improve supervision, vigilance, monitoring and implementation of safety processes. Significantly, the role formerly undertaken by Mr Hecksher is no longer undertaken by him and is now undertaken by a person more amply qualified.

22. I have been referred to some cases in terms of appropriate penalty. Plainly they cannot be definitive. They can be no more than a guide but they are a guide and to that extent, are useful.

23. The parties have agreed that the defendant will pay costs in an amount of about $19,000. Costs are a consideration to bear in mind when assessing penalty. It is not simply a factor of deducting the amount of costs from what would otherwise be the penalty but they are nevertheless, a factor to bear in mind.

24. The defendant having no prior conviction, the maximum penalty that may be imposed is a sum of $550,000. In all the circumstances I have set forth, I think an appropriate fine without any discount would be the sum of $120,000 and by reason of the defendant’s early plea, I think it is entitled to the full benefit of a discount of 25%. The appropriate fine in the circumstances is $90,000

25. The defendant is convicted of the offence charge. I impose a fine of $90,000. I direct a moiety of the fine to be paid to the prosecutor. The defendant is to pay the prosecutor’s costs in the sum of $19,302.90.

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Decision last updated: 24 March 2015