Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector McGrath v DMP Container Labour Pty Ltd [2012] NSWIRComm 40
• Hearing dates: 26 and 29 March 2012
• Decision date: 14 May 2012
• Jurisdiction: Industrial Court of NSW
• Before: Marks J

Decision

(1) The defendant is found guilty of the offence with which it is charged and convicted accordingly.

(2) A monetary penalty of $100,000 is imposed with a moiety to the prosecutor.

(3) The defendant is to pay the costs of the prosecutor in an amount assessed in default of agreement.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(2) of the Occupational Health and Safety Act 2000 - guilty plea but not at earliest opportunity - appropriate penalty - failure to undertake risk assessment - failure to formulate Safe Work Method Statement - failure to ensure the proper supervision of contractors - failure to ensure that people who were not skilled, trained or qualified did not use forklifts -objective seriousness - serious offence - seriousness ameliorated by culpability of other persons - defendant did have in place some protocols and procedures - enhanced commitment to occupational health and safety following incident - general and specific deterrence - cooperation with the WorkCover Authority - no prior convictions - good character - penalties imposed
• Legislation Cited: Occupational Health and Safety Act 2000 - s 8(2)
• Category: Principal judgment
• Parties: Inspector Cherie McGrath of WorkCover Authority of New South Wales (Prosecutor); DMP Container Labour Pty Ltd (Defendant)
• Representation: Mr J Agius SC with Mr R Reitano of counsel (Prosecutor on 26 March 2012); Mr R Reitano of counsel (Prosecutor on 29 March 2012); Mr A Kostopoulos of counsel with Mr B Green of counsel; Legal Group, WorkCover Authority of New South Wales (Prosecutor); CA Legal (Defendant)
• File Number(s): IRC 535 of 2009

Judgment

1 The defendant, DMP Container Labour Pty Ltd ("DMP"), is charged by the prosecutor, Inspector Cherie McGrath of the WorkCover Authority of New South Wales, with a breach of s 8(2) of the former Occupational Health and Safety Act 2000 ("the Act"). Section 8(2) is in the following terms:

8 Duties of employers

...

(2) Others at workplace

An employer must, so far as is reasonably practicable, ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

2 The charge is constituted by an amended application for order filed in this Court on 8 June 2011. The defendant is charged that on 20 April 2007, at premises at 82 Marple Avenue Villawood, it failed to ensure,

by its acts or omissions as particularised below, that persons other than the defendant's employees and, in particular, Michael Scott Annetts and Stephen Mamuti, 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 contrary to s8(2) of the Act.

3 The particulars of the charge are as follows:

a.The 'risk' was the risk of forklifts hitting people (including the driver), tipping over onto people (including the driver) or crushing people (including the driver) while in use at the site.

b.The 'work' was the relocation of undamaged glass bottles from pallets onto other pallets and the discard of damaged glass bottles;

c.The defendant failed to ensure that persons other than the defendant's employees, and in particular, Michael Annetts and Stephen Mamuti, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work because of the acts or omissions set out in particulars (d) to (j) below.

d.The defendant failed to undertake a risk assessment that identified and considered the means of controlling the risk.

e.The defendant failed to provide and maintain a safe work method statement or procedure that set out the way in which the work was to be performed.

f.The defendant failed to ensure that its subcontractors, in particular Mr Annetts and Mr Mamuti, did not use forklifts.

g.The defendant failed to ensure that a safe distance was maintained between its subcontractors and forklifts in use at the site.

h.The defendant failed to ensure that people who used forklifts at the site had skills, training and qualifications in the safe use of forklifts.

i.The defendant failed to provide an induction to people working at the site about the safe use of forklifts at which people were told that

i.they must not use forklifts unless authorised and qualified to do so; and

ii.they must at all times remain a safe distance away from forklifts

in use.

j.The defendant failed to provide supervision to people working at the site, in particular Michael Annetts and Stephen Mamuti, so as to ensure that people who were not skilled, trained or qualified in the safe use of forklifts did not use forklifts.

As a result of the defendant's failures Michael Scott Annetts and Stephen Mamuti, and other people working at the site, were exposed to the risk.

4 The proceeding was set down for a hearing of five days' duration commencing on 26 March 2012. On that day, counsel for the defendant, Mr Kostopoulos, entered a plea of guilty on behalf of his client and the matter was set down for a sentencing hearing on 29 March 2012. Accordingly, this judgment is concerned only with the question of penalty.

5 A statement of agreed facts was tendered into evidence. Some of that material was included by way of background only and it is not necessary that I reproduce it in its entirety. In addition, the prosecutor tendered into evidence a series of photographs and a "Prior Convictions" document indicating that the defendant had no prior convictions for a breach of the Act and, presumably, any predecessor of that Act.

6 There was tendered into evidence for the defendant an affidavit of Mary-Ann Roncone, the sole director of the defendant, a series of seven character references and a tender bundle. The tender bundle consisted of extracts of a number of statements made by various persons to the prosecutor and other officers of the WorkCover Authority of New South Wales and also to certain police officers. The material in the defendant's tender bundle was received by the Court on the agreed basis that if there was any inconsistency between any evidence contained in it and the agreed statement of facts, then the latter document would prevail. As far as I can ascertain, there is no such inconsistency.

7 The defendant is a company engaged in the hiring of contract labourers for the warehousing and transport industry. According to the evidence of Mrs Roncone:

The main focus of the business of DMP is to hire staff to stack and restack and palletise and repalletise a variety of goods ranging from foods, whitegoods, furniture and all other types of freight.

8 The incident and other circumstances relevant to these proceedings occurred at premises that seem to have been used by a number of businesses as a warehouse. One of the businesses operating out of the warehouse premises was Personalised Freight Management (NSW) Pty Ltd ("PFM"). Part of its business was that of a labour hire company providing certain persons to work in the warehouse premises. PFM employed Mr Phillip Humphrey as its warehouse manager at the premises and a number of other persons. These included Mr James Harris, its Account Manager, Mr Jason Coleman, its Operations Manager, Mr Scott Smith as a driver and Mr Frisco Areta as a forklift driver.

9 The manager of DMP was Mr Giuliano Roncone.

10 DMP entered into a contract with Vanguard Logistics Services (Aust) Pty Ltd ("Vanguard"). Vanguard contracted DMP to provide labour to carry out certain repalletisation work. A number of pallets of glass soft drink bottles were stored at the warehouse premises. Some of the bottles were broken and needed to be discarded. The remaining glass bottles needed to be placed on different pallets or new pallets and DMP contracted with Vanguard to provide labour to carry out this repalletisation work at the premises. Some of the details of the contract between Vanguard and DMP were described in the agreed statement of facts in the following manner:

[22] On 15 January, 2007, in a letter from DMP to Vanguard representing the quote and engagement of DMP by Vanguard, a description of the work DMP labour hire and contractors were to undertake in relation to the repalletisation was as follows:-

"... Mr. Giuliano Roncone - Site manager - will attend this operation to inspect site and help price future container contracts ...

This quotation is for repalletising of glass bottles place cupboard on top layer of wooden pallet strap top and bottom pallets together-shrink wrap- any pallet with collapsed layer bottom layer to be discarded to ensure non reusable ..."

11 The overall arrangements for the implementation of the contract with Vanguard were undertaken by Mr Roncone. He is described as having had "approximately ten years experience packing and unpacking containers and held a certificate of competency for operation and use of a forklift."

12 In order to provide labour to carry out the contract, DMP engaged four persons to work in teams of two, all of who were engaged as independent contractors and were not engaged as employees at law.

13 At the northern face of the warehouse and associated warehouse office space, there was a concrete roadway approximately 95 metres long. The roadway started at the front northeast corner of the warehouse and finished approximately 6 metres west of the rear northwest corner of the warehouse. It was approximately 6 metres wide at its eastern end and approximately 12 metres wide at its western end. The incident that gave rise to these proceedings occurred at the western end of the roadway, at the rear northwest corner of the premises. The incident happened on 20 April 2007 when a forklift which one of the contractors, Michael Scott Annetts, was driving at the time overturned. He was crushed beneath the frame of the forklift and died.

14 The other contractors who were engaged by DMP were Mr Stephen Mamuti, Mr James William Tobin and Mr James Doyle.

15 Some further relevant evidence is contained within the agreed statement of facts and is as follows:

[45] The quote provided by DMP to Vanguard for undertaking the work did not refer in express terms to the need to use a forklift for the work. The quote also stated that:

Please be advised to have all WorkCover Safety aspects in consideration for all DMP contractors to ensure a safe working environment for all parties involved in the processing of the work.

[46] On about 17 January 2007 Mr Roncone and Mr Doyle conducted a 'trial' in relation to the repalletisation work. The 'trial' was conducted at the premises. Mr Roncone and Mr Doyle trialled the work by performing what needed to be done on the premises. None of the other DMP contract labourers (including Mr Annetts and Mr Mamuti) were present whilst the trial was being conducted.

[47] On 5 April 2007 it was decided by Suttons that the repalletisation work would commence on 13 April 2007. There were to be two teams of two workers undertaking the work.

[48] On 13 April 2007 the contractors engaged by DMP for the PFM site repalletisation task were advised by PFM that Mr Humphrey was their supervisor during this period and he would undertake any forklift activities required during the repalletisation process.

[49] There was no risk assessment undertaken in relation to the repalletisation work. The DMP contract labourers were not consulted about the risks involved in the work.

...

Michael Scott Annetts (deceased)

[30] Mr Annetts was a sole trader. He signed a contractor's agreement with DMP on 30 March 2007 and commenced work at the premises on or about 13 April 2007. The contractor's agreement set out the terms upon which he was engaged. The contractor's agreement made it clear that he was to be regarded as an independent contractor and not as an employee.

[31] The task Mr Annetts was engaged to undertake at the premises was repalletising undamaged empty glass bottles from damaged pallets onto undamaged pallets, strapping and shrink-wrapping the newly stacked pallet, and discarding of collapsed bottom layers of bottles.

[32] The tasks undertaken by Mr Annetts, or any subcontractor assigned to the Vanguard contract and as part of DMP's quote and engagement by Vanguard, did not include the operation of a forklift.

[33] Mr Annetts was an unqualified person in relation to the work of operation and use of a fork-lift truck in that he did not hold a certificate of competency or recognised qualification in relation to forklifts.

[34] Mr Annetts was not a trainee in relation to the work of operation and use of a fork-lift truck in that he was not engaged in a recognised course of training for that kind of work, he was not operating or using a fork-lift truck under the supervision of a supervisor, and he was not using a record of training.

[35] Mr Annetts' usual place of work at the premises was under the awning at the front northeast corner of the warehouse, adjacent to the roadway.

The events of 20 April 2007

[50] On 20 April 2007 Mr Coleman and Mr Smith arrived at the premises at about 6.30 am and opened the gates to the premises and the warehouse. At about 6.45 am Mr Annetts and Mr Mamuti arrived at the premises. Together they went to the lunchroom, which was inside the warehouse immediately behind the office.

[51] Mr Annetts and Mr Mamuti worked unsupervised from the time they commenced work to the time of the incident.

[52] At about 7.00 am Mr Humphrey arrived at the premises. Shortly after he arrived Mr Humphrey saw Mr Annetts and Mr Mamuti in the area of the warehouse where DMP were undertaking the repalletisation work.

[53] Mr Humphrey saw that various pieces of equipment had been taken out for the purpose of doing the work. Mr Humphrey went to the office. Mr Annetts and Mr Mamuti left the lunch room and walked past the office. Mr Annetts asked Mr Humphrey which forklifts he and Mr Mamuti could use. Mr Humphrey pointed to one of the forklifts.

[54] Mr Annetts and Mr Mamuti each went to a forklift. They went to the forklifts with the intention of operating them. Mr Humphrey does not recall giving permission to Mr Annetts or Mr Mamuti to use the forklifts on 20 April 2007.

[55] The forklifts were in the warehouse and the keys had been left in the ignition. Mr Annetts and Mr Mamuti each drove a forklift to the area where they were to commence working. Shortly after 6.50 am Mr Annetts and Mr Mamuti drove the forklifts out of the warehouse roller door which was adjacent to where the work was being undertaken. The forklifts had on them pallets with the equipment the DMP contract labourers were using for undertaking the repalletisation work. They were seen by Mr Tobin at this time. Shortly after 7.00 am Mr Annetts was driving the forklift. He was seen by Mr Doyle taking the pallets out of the warehouse area and also going around the side of the warehouse. Mr Doyle had a conversation with Mr Mamuti. Mr Mamuti then followed Mr Annetts.

[56] As the forklift that Mr Mamuti was driving went around the corner of the warehouse he saw the forklift driven by Mr Annetts at the end of the roadway roll over and land on top of Mr Annetts. There was no load in the vicinity of where the forklift over turned. The tynes of the forklift were fully extended.

[57] Mr Mamuti called out to Mr Annetts but he did not respond. Mr Mamuti then returned to the warehouse and sought help. Mr Tobin and Mr Doyle went to Mr Annetts' assistance. Mr Annetts was pinned underneath the forklift he was operating when it tipped onto its left side. Mr Humphreys arrived a short time later and saw that Mr Annetts had no pulse, was cold and was blue. Mr Humphreys was told over the phone by the emergency service to lift the forklift off Mr Annetts. He did so as an ambulance arrived and a paramedic confirmed that Mr Annetts was deceased.

[58] Upon examination there was no mechanical defect or failure detected such that would have caused the forklift to overturn. The forklift overturned and crushed Mr Annetts as a result of Mr Annetts lack of training and experience in driving forklifts.

Dangers Concerning Training and Information

[59] The DMP contract labourers were not provided with training or information about the operations, hazards and system for managing safety or workplace arrangements for consultation, supervision and hazard reporting in relation to the use of forklifts.

[60] Mr Annetts was provided with occupational health and safety induction training by DMP on 30 March 2007. This included the provision of a written Safe Work Method Statement that was signed by Mr Annetts on 30 March 2007. The Safe Work Method Statement did not proscribe Mr Annetts from operating forklifts or from operating any other machinery at the premises. The Safe Work Method Statement contemplated that Mr Annetts would use machinery whilst on site. The Safe Work Method Statement stated:

When using any machinery on site, remember to treat all equipment with just respect. Keep to all Safety Rules according to all Machinery or Equipment used on site.

[61] On 13 April 2007 Mr Sutton provided Mr Annetts and other contractor labourer engaged by DMP with 'on the job training' for the repalletisation work. Mr Sutton worked with the contract labourers on 13 and 14 April 2007. No work was undertaken on 15 April 2007.

[62] Mr Annetts and the other DMP contract labourers were not provided with any instructions or information about safe work systems at the premises of PFM and for the use of forklifts. PFM had no system of work developed and/or implemented to provide OHS induction information, instruction or training to other persons working on the premises of PFM.

[63]Mr Roncone supervised the DMP contract labourers on 13 April 2007. Mr Roncone visited the premises on 16 April 2007 and on 19 April 2007. Mr Sutton supervised the DMP contract labourers on 14 April 2007. Ms Morgan from Suttons worked with the DMP contract labourers on 19 April 2007 and it was anticipated that she would be at the premises on 20 April 2007. She was not at the premises on 20 April 2007 before Mr Annetts died.

Dangers Concerning Systems of Work

[64] DMP did not have adequate procedures in place to identify hazards at the premises while its contract workers were working at the premises of PFM.

[65] There was a Standard Operating Procedure prepared for the repalletisation work. It was provided to all of the DMP contract labourers by Mr Roncone on 13 April 2007. A copy of the Standard Operating Procedure was kept on site with the DMP equipment.

[66] The Standard Operating Procedure did not contain any direction or procedure for how the pallets were to be moved in and out of the DMP work area. The movement of the pallets was essential for the performance of the repalletisation work. The repalletised goods were to be taken away by an employee of PFM. The DMP contracted labourers were expected to contact Mr Humphrey or another of PFM's employees when it was necessary to move the pallets and ask them to undertake the task of moving the pallets. The Standard Operating Procedure did not proscribe DMP contract labourers from doing that work. The Standard Operating Procedure did not deal with how the repalletised goods were to be taken away if PFM did not undertake that task.

[67] The Standard Operating Procedure referred to the need to discard broken glass and the layer of the pallet containing the broken glass. However it did not contain any procedure at all for how this was to be done. The procedure that was to be applied involved discarding by hand damaged bottles into large cardboard boxes supplied by PFM, or by leaving them on a damaged pallet in the 'damaged row'. PFM was expected to move the cardboard box or damaged pallet to the perimeter fence at the premises using a forklift. It did not contain anything that proscribed DMP contract labourers from doing that work or say anything about how the work was to be done if PFM did not undertake that task.

[68] The Standard Operating Procedure did not proscribe the DMP contract labourers from undertaking the task of discarding the cardboard box or the pallets themselves. The Standard Operating Procedure did not lay down any procedure or system that was to be followed in contacting PFM for the purpose of moving the cardboard boxes or the pallets.

[69] DMP supplied the DMP contract labourers with safety shirts and safety boots. DMP supplied plastic wrap and strapping. Suttons provided the hairnet, knives, tape, gas bottles, heat guns, cardboard and a staple gun. Mr Roncone spoke to Mr Humphrey and told him that the DMP contract labourers would store the equipment on a pallet and that Mr Humphrey or another of PFM's employees would need to bring it to the DMP contract labourers at the beginning of each day.

[70] The Standard Operating Procedure did not contain anything about the use or non-use of forklifts by the DMP contract labourers. It did not proscribe the use of forklifts by the DMP contract labourers. It did not lay down a procedure to be followed when contacting PFM or anyone else in order to have the pallets moved.

[71] Neither DMP nor PFM put in place any system or procedure to make sure that Mr Humphrey or one of its employees who was trained or competent in the operation of forklifts undertook that task. Mr Humphrey permitted the DMP contract labourers to use forklifts. DMP did not prevent Mr Humphrey from giving DMP contract labourers permission to use forklifts.

[72] DMP did not develop and implement a system of work to ensure that hazards were identified. DMP did not ensure all persons carrying out work on forklifts held an appropriate Certificate of Competency, or recognised qualification for operating forklifts. DMP did not ensure that only people with those qualifications worked on forklifts.

Dangers from Forklift/Mobile Plant Operation

[73] DMP and PFM did not make sure that there were traffic control systems at the premises so that people contracted to it were not at risk of being struck by moving plant including forklifts. DMP did not ensure that there were signs relating to traffic movement, that vehicles and pedestrians were not working in the same areas and pedestrian walk ways were unobstructed.

[74] DMP and PFM did not have any procedures or systems in place at the premises so as to restrict people who were unqualified and untrained from using forklifts.

[75] DMP and PFM did not have a system of work to ensure access to forklifts was restricted; or a system of work to ensure maintenance of a record of training of trainees; or a system of work to ensure supervision of trainees.

[76] The practise at the premises was that the keys were left in forklifts when they were parked during working hours and when stored over night in the warehouse. There was no key register and the keys were not labelled.

[77] Neither Mr Humphrey nor any other employee of PFM or DMP gave any of the DMP contract labourers any instruction or information about the operation of forklifts and in particular about the risks associated with a forklift overturning and how to reduce or eliminate that risk. None of the DMP contractors were provided with any instruction or information about the use of seatbelts in the forklifts at the premises. They did not know that there were seatbelts in the forklifts.

Obligations Regarding Operation of Forklifts/Mobile Plant Operation

[78] The relevant obligations in relation to the use of forklifts are found in:

(i)Chapter 5 of the Occupational Health & Safety Regulations 2001;

(ii)WorkCover publication 'Making your forklift work for you' Catalogue no.215;

(iii)WorkCover publication 'Fork Lift Truck Drivers Guide' October 1998;

(iv)WorkCover publication 'Forklift Truck National Certificate of Competency Assessment Instrument 2000;

(v)Australian Standard AS 2359.2 Powered industrial trucks - Part 2 - Operation;

(vi)Australian Standard AS 2359.6 Powered Industrial Trucks Part 6: - Safety Code; and

(vii)Australian Standard AS1319 Safety Signs for the Occupational Environment 1994.

Investigation of the Incident

[79] On 20 April 2007, Inspector Peter Beacham attended the premises and made observations obtained in a Factual Inspection report dated 24 April 2007.

[80] On 20 April 2007 and 23 April 2007 Inspector Frank Pennings took a number of photographs at the premises.

Changes to Systems of Work after 20 April 2007

[81] After 20 April 2007 DMP implemented a number of changes at the premises and implemented the following systems of work to improve conditions and minimise the risk of incidents:

(i)A 'Job Risk Management and draft of 'Safe Work Procedure' for use at each new site and for each new task;

(ii)A 'Safety Management System Flowchart';

(iii)A 'Traffic Management Plan' for use at each new site and for each new task;

(iv)A 'Workplace Health and Safety Audit' form to use with each new client;

(v)The role of DMP Bookings Manager was expanded to include the occupational health and safety responsibilities for implementing the new procedures, and developing and implementing further change.

[82] PFM implemented and maintained a register containing the certificates of competency for all persons at the premises who were competent in forklift operation. Log books were created for people who were being trained in forklift operation.

[83] A procedure was put in place by PFM to ensure that keys were removed from forklifts overnight and stored in a locked security box. A procedure was implemented that required forklift drivers to sign for the keys and to keep them in their possession at all times whilst they had them. A system for daily operating checks of forklifts was implemented. Collision protective devices were installed at the premises. Pallets and goods were removed from outside the warehouse roller door, adjacent to the office area, to improve visibility for forklift drivers. Line markings were renewed around the warehouse and collision protective devices were installed adjacent to pallet racking. An occupational health and safety consultant was engaged who developed and commenced to implement an occupational health & safety management system.

[84] The defendant cooperated with the WorkCover investigation.

[85] The defendant has no prior convictions.

16 Taking into account the evidence to which I have referred above, and in particular that contained within the agreed statement of facts, and having regard also to evidence consisting of statements made by a number of persons to WorkCover inspectors and police officers, I am able to make a number of findings of fact which will assist in the task of assessing the objective seriousness of the offence, which is at the heart of the sentencing process. These are as follows:

(1) It was never contemplated between DMP and Vanguard that the work that would be undertaken by DMP and its contractors would involve the use of a forklift by any of the DMP contractors.

(2) Nevertheless, the movement of pallets after the repalletisation process, the replacement of broken pallets with new or substitute pallets, and the removal of broken glass and broken pallets, was to be undertaken by means of a forklift. It was the understanding of DMP and of PFM that if a forklift was required in connection with work being carried out by DMP contractors, a request would be made to PFM personnel, and in particular Mr Humphrey, to perform that work.

(3) There was an arrangement between Mr Roncone, representing DMP, and Mr Humphrey that Mr Humphrey would generally supervise the work being performed by DMP contractors. This was known to the DMP contractors.

(4) Initially, the forklift work was carried out by Mr Humphrey or other PFM personnel as and when requested by DMP contractors.

(5) Later, some of the DMP contractors, and in particular Messrs Annetts and Mamuti, asked Mr Humphrey whether they could use the forklift to assist in performing their work, and he allowed them to do so. In a statement to the prosecutor, Mr Humphrey said that on the Monday preceding the incident, Mr Annetts had told him:

that he would like a job as a forklift driver, that he was getting his ticket and could he practise. I could see nothing wrong with that. That's how I did my licence. I gave him parameters to work in, which were where they were working out under the awning. I told him that he could then bring finished pallets inside warehouse to where they were being put, just inside the door, which was about 20 metres away, and that was it. They weren't to go, he was not to go anywhere else. He was to ask before using the machine. I watched him on the machine for the first time and he seemed very competent. He was not stupid in any way. It seemed quite obvious to me that he had driven one before.

17 Mr Doyle, in a statement to the police, said that he had observed Mr Annetts

to use a forklift ever day since we started here and would estimate he would do it for 80 per cent of the day ... every time I saw Michael on the forklift, I told him not to use it because he was messing about on it and not working. I also know that he was not qualified to use it. He would use the forklift even if he didn't need to. I saw him moving pallets unnecessarily and doing wheel spins and burnouts.

18 Mr Ashley Clegg, in a statement to a police officer, said that he had been to the PFM site every day to drop "James", presumably Mr Doyle, off for work. He said:

Nearly every morning I have observed Michael [Mr Annetts] to be driving a forklift when I arrived. I realised that he didn't have forklift ticket but I knew the boys were always telling him not to drive them so I left it at that.

Mr Clegg was employed by DMP as its Bookings Manager.

19 In a statement to the prosecutor, Mr Doyle was adamant that it was his understanding and that of the other contractors that neither Mr Roncone nor his wife wanted any of them to drive a forklift.

20 In his various statements, Mr Roncone said that he had advised the contractors that they were not to drive a forklift. He knew that none of them was licensed to do so. In any event, it was not part of the work arrangement. Nevertheless, Mr Roncone was aware that circumstances might arise where PFM personnel were not available to use of forklift at a time when the contractors needed material or items to be moved. In a statement to the prosecutor, Mr Roncone said that on a:

... Thursday, there was, was one fork where the guys were working and I remember jumping on that and taking one pallet of scrap bottles because they had that full and I placed that in the bin for 'em and, 'cause they needed another pallet to commence working and PFM were busy so what I done I just grabbed the one full tray, took it down into, and tipped it in the bin and ... .

(6) There is other evidence to the effect that whenever Mr Roncone attended the site, which he did on a few occasions, if Messrs Annetts or Mamuti were driving a forklift, they made sure that they ceased doing so. The totality of the evidence is that Mr Roncone had no knowledge that any of the contractors were driving forklifts at the site, and he was not told by any of the persons who knew that this was happening, including any of the contractors, Mr Clegg, PFM personnel or, in particular, Mr Humphrey. It was asserted on his behalf that if he had known that this was occurring, he would have ensured that this practice ceased.

(7) There is evidence that at the time that the incident occurred, the tines of the forklift had been fully extended and, on one version, were about 20 feet in the air. There was also a skid mark near the incident, which was indicative that Mr Annetts may have been attempting a sharp turn. It was agreed between the prosecutor and the defendant that the Court could proceed to determine this matter on the basis that driving the forklift with the tines up in this manner was dangerous because the centre of gravity had shifted dramatically.

(8) At the time of the incident Messrs Annetts and Mamuti were in the particular area outside the warehouse so as to empty the forklifts with layers of glass into a bin nearby, and then eventually return with more pallets.

21 Mrs Roncone gave oral evidence. She addressed the shock that she and her husband felt when they learned of the incident. She expressed deep regret for what had occurred and said that it had had a profound effect on her.

22 Annexed to Mrs Roncone's affidavit is voluminous documentation which describes the safety management systems utilised by DMP since it commenced operations in 2004. This documentation also canvassed protocols and procedures implemented by the defendant after the incident. I am persuaded on this evidence that at the time of the incident, the defendant did have in place a number of systems and methodologies to assist it in complying with its occupational health and safety requirements, and that after the incident it took positive and active steps to enhance compliance with its occupational health and safety obligations. The prosecutor did not contend otherwise, and there is no necessity for me to elaborate on this evidence.

The objective seriousness of the offence

23 The starting point for the assessment of penalty is a consideration of the objective seriousness of the offence. The defendant agreed with the prosecutor that this was a serious offence. However, there are degrees of seriousness and the defendant asserted that there were some ameliorating factors that the Court should take into account. Of course, in entering a plea of guilty the defendant is taken to have admitted the failures asserted against it and in particular the acts and omissions that are particularised in the amended application for order.

24 The prosecutor submitted that the facts, as I have found, reveal that there was on the part of this defendant a systemic failure to comply with its occupational health and safety obligations. If the defendant had undertaken a risk assessment, it would have identified the integral part that the movement of materials played in the operations that it was carrying out at the premises. This would have revealed a necessity to ensure that the movement of materials by use of a forklift was undertaken safely, by persons with appropriate competence and qualifications to do so. Furthermore, if the defendant had formulated a Safe Work Method Statement or procedure, it would have formalised a requirement that contractors used by it should not operate forklifts, and that forklifts should only be operated by PFM personnel. The prohibition on the use of forklifts is something which should have been reinforced in any induction and training process, but was not.

25 At the heart of these proceedings is the fact that, at the time of the incident, both Mr Annetts and Mr Mamuti were driving forklifts, which they were not qualified or trained to do, and, on the evidence, Mr Annetts was courting danger by having the tines fully extended and apparently seeking to make a sharp turn or, at least, a turn sharper than should have been attempted. Mr Annetts and Mr Mamuti were, on the evidence before the Court in these proceedings, permitted to drive forklifts, even though they were neither trained nor qualified and were forbidden by Mr Roncone from doing so, by Mr Humphrey, the PFM site manager, who had been given the task by DMP of supervising its contractors.

26 It was the defendant's submission that its culpability should be assessed at a lower level because, firstly, it was no part of the work of Messrs Annetts and Mamuti to drive forklifts, they had been expressly forbidden to do so and the only reason why they did so was because they were permitted by Mr Humphrey of PFM to do so. The defendant submitted that the blame for the incident clearly lay with PFM and Mr Humphrey and that the defendant had a lesser role in the circumstances leading up to this tragic and unfortunate incident.

27 These submissions lead to a consideration of particular (j), namely one that is directed to a failure to provide supervision, so as to ensure that people who were not skilled, trained or qualified did not use forklifts. As the prosecutor was at pains to point out, there is no allegation that the defendant failed to provide supervision. There was in place a supervisory regime constituted by Mr Humphrey. However, Mr Humphrey's failure to ensure that neither Mr Annetts nor Mr Mamuti drove a forklift in circumstances where they were not trained nor qualified to do so was a failure of the supervisor appointed by the defendant. This therefore constituted failure on the part of the defendant to ensure that there was proper supervision because, on the evidence, Mr Humphrey failed to discharge his supervisory function in a proper and appropriate manner. In that that failure brought about a situation which led to Mr Annetts untimely death, I am unable to approach the assessment of the objective seriousness of the offence in the manner contended for by the defendant. It matters not that Mr Annetts in particular, and perhaps also Mr Mamuti, behaved in an inappropriate and senseless fashion on the day of the incident. Certainly, Mr Annetts showed little regard for the proper, appropriate and safe use of a forklift. This may not be surprising, because he had not been, on the evidence, trained to operate a forklift, nor was he qualified to do so. Furthermore, there is evidence that he had previously driven forklifts in a cavalier and irresponsible fashion. Whilst these are deficiencies that hopefully are not encountered too often in persons engaged to perform work, entities such as the defendant must put in place some measures to guard against the type of conduct and behaviour that Mr Annetts engaged in on the day of the incident. A lack of proper and adequate supervision is at the heart of the circumstances leading up to this incident. However, this lack of supervision must be seen as being complemented by a failure to have in place appropriate procedures and protocols which would have identified the possibility of a risk of this kind arising and measures to guard against it.

28 In all the circumstances, the offence must be characterised as a most serious one. However, I will take into account that, on the basis of the evidence given in these proceedings, there is greater culpability on the part of Mr Humphrey in contributing to the circumstances that occurred and, to this extent, the seriousness will need to be ameliorated.

29 Furthermore, as the prosecutor properly conceded, this is not a case where there has been reckless or wanton disregard by the defendant of its occupational health and safety obligations. As I have said, it did have in place protocols and procedures and it did instigate a system of supervision, albeit one that proved inadequate in all the circumstances.

30 In assessing penalty, it is also necessary to take into account the deterrent effect, both generally and with respect to this defendant. I shall do so. However, in considering the circumstances of this defendant, I shall ameliorate the deterrent effect to some extent to reflect the enhanced commitment to occupational health and safety matters that this defendant has demonstrated since the incident.

Subjective matters

31 There are a number of matters that the Court is entitled to take into account, which are subjective to the defendant and which, to the extent appropriate, will have the effect of reducing the overall penalty to be imposed.

32 The defendant has a good safety record with no prior convictions. It is of good character, as is attested to by the various references which were supplied to the Court during the course of the hearing. Moreover the defendant co-operated with the WorkCover Authority in and about its investigation of the incident. The defendant has demonstrated its commitment to compliance with its occupational health and safety obligations by reason of the proactive and comprehensive steps that it has taken since the incident, as referred to in the affidavit of Mrs Roncone.

33 The defendant entered a plea of guilty, but not at the earliest opportunity. That opportunity would have been provided upon filing of the amended application for order on 8 June 2011, or a reasonable time thereafter. The defendant submitted that the entry of a plea of guilty at the commencement of five days set aside for the hearing of the proceedings constituted the earliest opportunity, because it was not until that stage that an agreed statement of facts had been settled. However, I accept the prosecutor's submission that there is a vast difference between the entry of a plea of guilty with a consequent admission of breach of the charge, albeit there may be some debate about some of the particulars, and agreement being reached on the evidentiary material to be put before the Court. Even though the defendant did not enter a plea at the earliest opportunity, some allowance will be given in that the entry of the plea has saved some Court time, and has permitted persons who would otherwise be called as witnesses to be relieved of having to give evidence. There has been some utilitarian value in the entry of the plea when it occurred, but not sufficient to justify the application of the full discount which would otherwise apply.

34 The prosecutor sought orders for the payment of a moiety and costs, which were not opposed and I propose to make orders accordingly.

35 Having regard to the objective seriousness of the offence as reflected by the observations and findings that I have made, but having regard also to the subjective matters to which I have referred, I am of the opinion that an appropriate penalty in all the circumstances is the sum of $100,000. This amount has been fixed by reference to a maximum penalty of $550,000.

Orders

36 I make the following orders.

(1) The defendant is found guilty of the offence with which it is charged and convicted accordingly.

(2) I impose a monetary penalty of $100,000 with a moiety to the prosecutor.

(3) The defendant is to pay the costs of the prosecutor in an amount assessed in default of agreement.

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Decision last updated: 14 May 2012