Industrial Relations Commission
New South Wales

Medium Neutral Citation:

Inspector Christensen v P & M Quality Smallgoods Pty Ltd [2013] NSWIRComm 91

Hearing dates:

8 August 2013

Decision date:

11 October 2013

Jurisdiction:

Industrial Court of NSW

Before:

Boland J, President

Decision:

(1) The defendant is convicted of the offence charged.

(2) The defendant is fined an amount of $110,000 with a moiety thereof to the prosecutor.

(3) The defendant shall pay the prosecutor's costs as agreed or assessed.

Catchwords:

OCCUPATIONAL HEALTH AND SAFETY - Meat processing industry - Contractor injured when concrete saw struck pipe containing butane gas - Prosecution under s 10(1) of Occupational Health and Safety Act 2000 - Plea of guilty - Sentencing principles - Fine imposed

Legislation Cited:

Occupational Health and Safety Act 2000

Cases Cited:

Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29
Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8
Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66
Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992)
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Morrison v Powercoal Pty Ltd & Anor (No. 3); [2005] NSWIRComm 61; (2005) 147 IR 117

Category:

Principal judgment

Parties:

WorkCover Authority of New South Wales
(Inspector Madeline Christensen) (Prosecutor)
P & M Quality Smallgoods Pty Ltd (Defendant)

Representation:

Mr P Ginters of counsel (Prosecutor)
Mr B Hodgkinson SC
(Defendant)
WorkCover Authority of New South Wales (Prosecutor)
Corrs Chambers Westgarth (Defendant)

File Number(s):

IRC 1904 of 2011

Judgment

1Inspector Madeline Christensen, an Inspector with the WorkCover Authority of New South Wales, and empowered to institute proceedings under the Occupational Health and Safety Act 2000 ("the Act"), has alleged that P & M Quality Smallgoods Pty Ltd contravened s 10(1) of the Act in that the defendant, on 6 February 2010, having had control in the course of its trade, business or other undertaking of the Primo Australia Scone Abattoir, Muffett Street, Scone, used by people as a place of work, failed to:

[E]nsure by its acts or omissions as particularised below that the premises were safe and without risks to health to people who were not in the defendant's employment, in particular, Barry Irwin Bisby ("Mr Bisby"), contrary to s 10(1) of the Act.

2The particulars of the charge in the amended application for order were as follows:

(a) The "risk" was the risk of a person undertaking work (see particular (b) below) at the premises, in particular Mr Bisby, suffering injuries as a result of an explosion and/or fire resulting from Butane being ignited when a pipe containing Butane was cut whilst the work was being performed.

(b) The 'work' refers to the performance of concrete cutting work using a concrete cutting saw at the premises.

(c) At all material times the defendant had control or alternatively only limited control of the premises.

(d) The defendant exerted its control of the premises by reason of, amongst other things:

1. The defendant being the registered proprietor of the premises.

2. The defendant's occupation of the premises.

3. The defendant having systems which, had they been implemented, or properly implemented, were intended to direct or command that the premises were safe and without risks to health.

4. The defendant having the ability to permit contractors to attend the premises and direct that contractors immediately leave the premises.

(e) At all material times persons not employed by the defendant, in particular Mr Bisby, used the premises as a place of work.

(f) At all material times the premises were not occupied only as a private dwelling.

(g) The defendant should have ensured that prior to the work being performed it undertook a risk assessment, or an adequate risk assessment, of the work to be performed that identified the risk and the following means (see paragraphs (h) - (k) below) by which it could be controlled.

(h) The defendant should have ensured that a Manager at the premises informed Mr Bisby of the risk, and related to Mr Bisby any of the defendant's work practices which were pertinent to controlling the risk.

(i) The defendant should have ensured that a pipe containing Butane that was located in the vicinity of the area of the premises where the work was being performed was clearly labelled and colour coded to indicate the direction of flow and what was carried within the pipe, so as to ensure that the premises were safe and without risks to health.

(j) The defendant should have ensured that a pipe containing Butane that was located in the vicinity of the area of the premises where the work was being performed was isolated or disconnected prior to the commencement of the work, and that the isolation or disconnection was confirmed in writing, so as to ensure that the premises were safe and without risks to health.

(k) The defendant should have ensured that a temporary stairway was installed in the area of the premises where Mr Bisby was performing the work so that in the event of an emergency Mr Bisby was able to safely leave the area. An example of an emergency requiring Mr Bisby to leave the area of the premises where he was performing the work was in the event of an explosion and/or fire.

As a result of the defendant's failures, persons not in the employ of the defendant at work at the premises were placed at risk and, in particular, on 6 February 2010, Mr Barry Irwin Bisby sustained injuries which were a manifestation of the risk.

3The defendant pleaded guilty to the charge. I am satisfied the plea was properly entered and I find the defendant guilty.

Legislation

4Section 10 of the Act is in the following terms:

10 Duties of controllers of work premises, plant or substances

(1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.

(2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used.

(3) The duties of a person under this section:

(a) do not apply to premises, plant or substances used only by employees of the person, and

(b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and

(c) extend to the means of access to or exit from a place of work, and

(d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person.

(4) In this section, a person who has control of premises, plant or substances includes:

(a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and

(b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease).

Evidence

For the prosecutor

5The prosecutor tendered an Agreed Statement of Facts ("ASF") and a tender bundle consisting of 22 documents and photographs relevant to the issue of sentencing.

For the defendant

6The defendant tendered an affidavit of Martin John Collings, National Occupational Health and Safety Manager for Primo Admin Pty Limited. Exhibited to Mr Collings' affidavit were four folders of documents marked MC1-MC4.

Agreed Statement of Facts

7The ASF is set out in the annexure to this judgment and forms part of the judgment. The ASF identified the dramatis personae as follows:

a. The directors of the defendant were Paul Lederer (Mr Lederer) and John Hunt (Mr Hunt). Mr Lederer and Mr Hunt worked from the defendant's head office in Chullora.

b. Mr Bisby was a concrete cutter and core driller who worked via his company, Dolrow Pty Ltd t/as B & G Concrete Sawing and Drilling.

c. Mr Daryl Thomas (Mr Thomas) worked as a Maintenance Manager at the Premises. Mr Thomas was not employed by the defendant, but was employed via Homebush Unit Trust by Primo Meats Admin Pty Limited. Following the Incident Mr Thomas' employment was terminated on the basis of his breach of the defendant's procedures in relation to the Incident. Sometime after the Incident Mr Thomas moved to Victoria. Attempts to conduct a formal WorkCover record of interview with Mr Thomas were unsuccessful, with Mr Thomas indicating he was not interested in giving a statement.

d. Mr Martin Collings (Mr Collings) worked as a National Occupational Health and Safety Manager. Mr Collings primarily worked from the defendant's head office in Chullora.

e. Mr Steven Lindner (Mr Lindner) worked as a contracted Maintenance Supervisor at the Premises.

f. Mr Todd Brooks (Mr Brooks) worked as a General Manager at the Premises.

g. Ms Joanne Wright (Ms Wright) worked as an Occupational Health and Safety Co-ordinator at the Premises.

h. Mr Roger Newport (Mr Newport) worked in a Special Projects role at the Premises.

8The circumstances of the incident that led to the charge are well explained in the ASF. As the prosecutor submitted, the circumstances included the following matters:

a. on 6 February 2010 Mr Bisby was engaged by P & M to cut part of the concrete floor of a mezzanine level at the Premises;

b. the concrete floor that Mr Bisby was engaged to cut had, on at least one side, a concrete nib wall that was approximately 150mm deep and 200mm above the concrete floor ("Concrete Nib Wall"). Positioned on top of the Concrete Nib Wall was a wall panel made of EPS - expanded polystyrene metal "sandwich" building panels ("EPS Wall");

c. Mr Bisby had previously been engaged by P & M on 16 January 2010 to cut another part of the same concrete floor at the Premises. Whilst performing this work Mr Bisby did not cut the Concrete Nib Wall or any part of it;

d. underneath the concrete floor that Mr Bisby was required to cut out was "Bondeck", a metal base onto which a concrete floor slab is poured;

e. in addition to the concrete floor on 6 February 2010 Mr Bisby also cut through the Concrete Nib Wall and the EPS Wall;

f. in a WorkCover record of interview Mr Bisby stated that to cut through the nib wall "as directed" he had to fold back the front half of the guard (on his concrete cutting saw) on the hinge to enable the saw to cut through the nib wall;

g. whilst cutting through the Concrete Nib Wall and EPS Wall Mr Bisby cut through a pipe containing Butane (located behind the EPS Wall), which was later observed to have a cut or slice in it. The Butane Pipe behind the EPS Wall was not labelled, nor was it isolated or disconnected before Mr Bisby started concrete cutting;

h. butane is an extremely flammable gas which "will be easily ignited by heat, sparks or flames";

i. as a result of the Butane Pipe being cut the Butane ignited and a fire ensued. It is likely this occurred either as a result of the sparks generated by Mr Bisby's concrete saw cutting through the Bondeck or coming into contact with the Bondeck;

j. Mr Bisby's ability to escape the fire was hampered by the fact that a set of steps to the mezzanine level at the Premises where he was working had previously been removed;

k. as a result of the fire Mr Bisby suffered burns to his left forearm and top of his head;

l. whilst P & M had made provision for occupational health and safety documentation and procedures at the Premises:

i. it did not, prior to the commencement of the concrete cutting work, conduct a risk assessment, or an adequate risk assessment, of the concrete cutting work which identified the risk of a pipe containing Butane being cut whilst concrete cutting work was being performed by Mr Bisby and then Butane being ignited leading to an explosion and fire, and the means by which the risk could be controlled;

ii. procedures set out in P & M and Primo Smallgoods Pty Ltd documents were not complied with. For example, the Contractors Procedure, which required that managers inform contractors of any hazards which they may encounter whilst working on the Premises and relate to the contractor any work practices which are pertinent to the works they are to undertake, was not complied with;

iii. P & M's labelling and colour coding procedure was not complied with. The Butane Pipe was not labelled or colour coded;

iv. P & M did not ensure that the Butane Pipe was isolated or disconnected, and that that isolation or disconnection was confirmed in writing, prior to the commencement of the concrete cutting work.

9The ASF explained that following the incident on 6 February 2010, the defendant made changes to its procedures and to the Premises to improve occupational health and safety and comply with Improvement Notices issued by WorkCover. The defendant implemented a "Primo Scone Abattoir Broad Risk Assessment" document and a "Primo Scone Abattoir Safe Work Method Statement".

10The Broad Risk Assessment document identified, amongst other things, the need for:

a. Services for disconnection to be identified prior to demolition work;

b. The need for a Hot Work permit if [oxy] cutting is to take place within 5 metres of EPS panelling.

c. The ceasing of work if unforeseen hazards or risks are identified.

11The Safe Work Method Statement identified, amongst other things, the need for:

a. Services to be identified.

b. Services identified to be disconnected (with written confirmation) prior to demolition work commencing.

c. The use of qualified persons to locate position and depth.

d. A spotter to be with machinery at all times when it is being used near services.

e. Only cold cutting methods to be used when cutting [EPS] panels.

f. The use of fire proof shields where sparks could cause fire or explosion.

g. The completion of Hot Work permit when oxy cutting.

h. The completion of EPS permits when working within 5 metres of panelling and using oxy cutting equipment.

Mr Collings' evidence

12Mr Collings was not required for cross-examination. His affidavit described the defendants' operations and, in particular, the Scone abattoir. He also described the scope of his duties and responsibilities.

13Mr Collings described the nature of the work required to be performed by Mr Bisby:

From conversations I have had with Todd Brooks, I understand that in order to increase the size of the bleed table, it was necessary to remove half of an elevated concrete slab. The process for removing the elevated concrete slab involved the following discreet tasks:

a. cutting the designated part of the elevated concrete slab into strips;

b. using a jack hammer to further break up the concrete strips;

c. physically removing the broken concrete from the area; and

d. removing the bondeck (which was below the elevated concrete slab) from the area.

Mr Bisby was engaged to attend the Scone Abattoir on 16 January 2010 to carry out the first of these tasks, that is, cutting part of the elevated concrete slab into strips.

I understand from conversations I have had with Todd Brooks that on 16 January 2010, Mr Bisby was only required to cut half of the elevated concrete slab. The rest of the elevated concrete slab was going to remain as a viewing platform.

I understand from conversations I have had with Todd Brooks that on 16 January 2010, Mr Bisby cut the designated part of the concrete slab into strips and he cut up to the wall but did not cut into the wall itself.

I was informed by Todd Brooks, and I believe, that sometime after 16 January 2010 and before 6 February 2010, reconsideration was given to the design of the Kill Floor area and a decision was made by Todd Brooks, Daryl Thomas, Roger Newport and Graham Coker to further increase the space that was allowed for the bleed table. I understand that in order to allow more space for the bleed table, the remaining half of the elevated concrete slab had to be cut and subsequently removed.

I am informed by Todd Brooks, and I believe, that Daryl Thomas engaged Mr Bisby to cut the remaining half of the elevated concrete slab into strips on 6 February 2010.

14Mr Collings explained that at 6 February 2010, P & M had a three-pronged approach to safety that comprised a Risk Management Manual, an Occupational Health and Safety Management System and an Emergency Management Plan. He described each of these elements in his affidavit. It may be accepted that the defendant had in place a comprehensive and modern system for managing and monitoring occupational health and safety.

15Mr Collings described how occupational health and safety policies and procedures had been improved since 6 February 2010 and that in order to do so had carried out a review and audit using external consultants. Mr Collings stated:

The Site Safety Instructions to Contractors document in place at Scone Abattoir is tailored to the circumstances at the Scone Abattoir and replaces the Site Safety Instructions for Contractors documents that is found in the national Risk Management Manual. The Site Safety Instructions to Contractors document is regularly reviewed to ensure that it is appropriate and adequate for the particular circumstances at the Scone Abattoir. Since 6 February 2010, the Site Safety Instructions to Contractors document has been varied on at least three occasions to include additional instructions for contractors....

P & M has consistently paid between $100,000 and $150,000 to Marsh Risk Consulting (before 2011) and Aon Global Risk Consultants (since 2011) on an annual basis for reviewing, updating, auditing compliance with, and providing technical advice in relation to, the Risk Management Manual.

16In relation to education and training Mr Collings stated:

The maintenance staff, including supervisors and contractors, receive annual training in relation to contractor management and the Risk Management Manual. This training was provided by Marsh Risk Consulting on 3 March 2010 and 22 February 2011 and by Aon Global Risk Consultants on 6 June 2012 and 26 March 2013.

Training in relation to OH&S Risk Management and Assessment was provided to Supervisors and Senior Management on 27 September 2010, October 2010, 24 May 2011 and the Maintenance team received Risk Assessment and Isolation training on 1 March 2013.

Moore Training Solutions has provided training in relation to emergency management on an annual basis since 2009 and continues to do so. This training has been provided to the emergency management team and relates to warden training, fire extinguisher training, breathing apparatus training, confined space training and ammonia awareness training.

In May 2010, the induction programs for maintenance personnel and contractors at the Scone Abattoir were revised to include new powerpoint presentations and an assessment....

In August 2010, the induction program for new employees at the Scone Abattoir was revised. The new program includes a one hour talk on health and safety by the Occupational Heatlh and Safety Coordinator.

17Regarding the labelling of pipes, Mr Collings said:

Shortly after 6 February 2010, and after receiving an improvement notice from WorkCover, P & M spent over $7,000 in labour costs checking the labelling of pipes, ducts and conduits at the Scone Abattoir and labelling any pipes, ducts and conduits which were not labelled or which required a new label.

18Mr Collings referred to the defendant's extensive involvement in the local community and donations to local organisations including charities. He said the defendant cooperated with WorkCover and that representatives of the defendant had attended all interviews that they were requested to attend by WorkCover and provided all written statements that WorkCover requested that they provide.

Consideration

19Commencing with a consideration of the objective seriousness of the offence charged, the following matters are relevant:

a. Mr Bisby was not inducted onto the Premises;

b. occupational health and safety procedures in P & M and Primo Smallgoods Pty Ltd documents were not complied with;

c. the defendant did not, prior to the commencement of the concrete cutting work, conduct a risk assessment, or an adequate risk assessment, of the concrete cutting work which identified the risk of a pipe containing Butane being cut whilst concrete cutting work was being performed by Mr Bisby and then Butane being ignited leading to an explosion and fire, and the means by which the risk could be controlled;

d. Mr Bisby's position is that he was, in contrast to the position on 16 January 2010, "told to cut through it [the Concrete Nib Wall] this time [on 6 February 2010] because they'd had trouble getting the concrete out of the other side.";

e. Mr Bisby was not told anything about the existence of services in the area he was working;

f. Mr Bisby was not advised, "that there was a live gas pipe alongside and within 500mm of the edge of the slab.";

g. butane is an extremely flammable gas which "will be easily ignited by heat, sparks or flames.";

h. the Butane Pipe was not labelled or colour coded;

i. the Butane Pipe was not isolated or disconnected (and that isolation or disconnection confirmed in writing) prior to the commencement of the concrete cutting work;

j. The matters referred to in (h) and (i) above occurred in circumstances where the Primo Smallgoods Pty Ltd "OH&S Management Systems Polices and Related Documentation Labelling, Colour Coding Procedure (reviewed 2009) states, inter alia:

Primo Smallgoods Pty Ltd will implement a Labelling and Colour Coding System to highlight potential hazards or hazardous areas.

...

The current Australian Standard; "Identification of the Contents of Piping, Conduits and Ducts", necessitates that all pipes, ducts and conduits within the site be clearly labelled and colour coded to indicate their direction of flow and what they area [sic] carrying.

...

A Workplace Checklist - Generic will be the mechanism via which labelling and colour coding plant and equipment will be monitored.

Any new works undertaken on site must have all hazardous plant and locations clearly marked to comply with nominated Standards.

20The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [81]-[82]; Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 and Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66. The matters described in the immediately preceding paragraph demonstrate the foreseeability of the risk. For example, in the absence of a risk assessment in circumstances where a contractor was cutting concrete in the near vicinity of an unmarked pipe containing butane gas, the existence about which he was not informed, it was reasonably foreseeable he might cut the pipe creating a serious risk to his safety and perhaps the safety of others.

21In assessing the objective seriousness of the offence it is, of course, necessary to have regard to any mitigating circumstances. In this case the fact that the defendant as at 6 February 2010 had made provision for occupational health and safety documentation and procedures at the Premises that were reasonably comprehensive and sophisticated is a mitigating factor. Where the defendant fell down, was in the observance and implementation of its policies and procedures, which is so often the case in my experience with these prosecutions.

22The other mitigating factor relates to Mr Bisby and the manner in which he carried out the work. In that respect, I note what Mr Hodgkinson SC submitted for the defendant:

a. Mr Bisby was the owner and operator of a company that traded as B & G Concrete Sawing and Drilling. He had over 40 years experience in concrete cutting and drilling.

b. Mr Bisby had been visiting the Premises for the purpose of carrying out contract works for in excess of 10 years.

c. Mr Bisby had come to the site on 16 January 2010 to perform the work of concrete cutting of the floor and had cut out approximately half of the floor without incident.

d. Underneath the concrete floor there was a permanent form of formwork in the nature of Bondeck on which the concrete had originally been poured. Mr Bisby's role in the removal on the 16 January of that concrete was to utilise his concrete cutting saw, and to cut the concrete into sections which could then be jack hammered at a later point to free it from the Bondeck. The Bondeck would then constitute the remaining flooring until it also was removed at a later stage.

e. Mr Bisby's task on 6 February 200 was to cut the remainder of the floor to enable the concrete sections to be jack hammered out. The concrete floor that Mr Bisby was engaged to cut had, on at least one side, a concrete nib wall that was approximately 150mm deep and 200mm above the concrete floor (Concrete Nib Wall). Positioned on top of the Concrete Nib Wall was a wall panel made of EPS - expanded polystyrene metal "sandwich" building panels (EPS Wall).

f. Mr Bisby said he was instructed to cut through the Concrete Nib Wall and the EPS Wall. There was no evidence to support such an instruction having been given other than Mr Bisby's statement. Mr Lindner denied he gave such an instruction. Mr Thomas was unavailable to be interviewed by WorkCover.

g. Mr Brooks stated in a WorkCover record of interview, "the retention of the [EPS/nib] wall was part of our original scope of works."

h. In order to cut through the EPS/Nib Wall Mr Bisby had to fold back the front half of the guard (on his concrete cutting saw) on the hinge to enable the saw to cut through the Wall. That is to say, the guard on the saw was removed or impermissibly altered.

23If Mr Bisby had been instructed to cut the EPS/Nib Wall, he should have advised the defendant that he was unable to do so without unlawfully removing or altering the guard on his concrete cutting machine and therefore he should have declined to cut the Wall.

24On the one hand, it seems unlikely an instruction was given to cut the Wall when the retention of the Wall was required. On the other hand, it seems odd that Mr Bisby would go to the trouble of unlawfully removing or altering the guard on his machine, in order to cut the Wall unless he was told to do so.

25In light of the conflict in the evidence regarding the cutting of the Wall, I resolve the conflict in the defendant's favour. Accordingly, it is not part of my consideration in sentencing the defendant that Mr Bisby was instructed to cut through the Wall. If he had been, given the location of the Butane Pipe, I would have considered the offence to be far more serious than it otherwise is and one attracting a higher penalty.

26 Additionally, there was no evidence that Mr Bisby undertook any risk assessment before undertaking the task of concrete cutting. He was clearly obliged to and if he had he may have discovered the existence of the Butane Pipe. Whilst that does not exculpate the defendant, it is a matter to be taken into account in mitigation.

27As the prosecutor correctly submitted, although damage or injury to persons does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17]-[18].

28As the prosecutor submitted, whilst the injuries sustained by Mr Bisby were relatively minor there was, in the context of the ignition of the Butane and fire that ensued, every prospect of there being significantly more serious consequences. As the prosecutor pointed out, Mr Bisby's ability to escape the fire was hampered by the fact that a set of steps to the mezzanine level at the Premises had previously been removed. To escape the fire, Mr Bisby was required to take "a running jump off the slab and out through where they'd taken a wall panel out".

29A further consideration relevant to objective seriousness is the existence of simple and straightforward remedial steps that could have been taken by a defendant to avoid the risk to safety is relevant to assessing the seriousness of the offence: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476 and Morrison v Powercoal Pty Ltd & Anor (No. 3); [2005] NSWIRComm 61; (2005) 147 IR 117 at [90]. Those steps included:

a. a risk assessment, or an adequate risk assessment, of the work to be performed that identified the risk and the means by which it could be controlled;

b. informing Mr Bisby of the risk, and advising him of any of the defendant's work practices that were pertinent to controlling the risk;

c. ensuring that the Butane Pipe was clearly labelled and colour coded to indicate the direction of flow and what was carried within the pipe;

d. ensuring that the Butane Pipe was isolated or disconnected prior to the commencement of the work; and

e. ensuring that a temporary stairway was installed in the area of the premises where Mr Bisby was performing the work so that in the event of an emergency Mr Bisby was able to safely leave the area.

30General and specific deterrence are relevant considerations Capral Aluminium at [71]-[80]. The penalty should reflect the need for general deterrence so as to draw attention to those operating businesses such as abattoirs that in engaging contractors to undertake work in their businesses, it is necessary to ensure the work may be undertaken without risk to health and safety.

31Insofar as specific deterrence is concerned, notwithstanding the commendable steps taken by the defendant to improve its approach to occupational health and safety, some weight should be given to specific deterrence. This will encourage diligence by the offender in the future.

32Careful consideration must be given to the maximum penalty: Markarian v R [2005] HCA 25; (2005) 228 CLR 357, as the defendant is a previous offender, the maximum penalty is $825,000.

33In relation to subjective considerations, the prosecutor accepted there had been an early plea and I am satisfied the utilitarian value of that early plea warrants a discount on the sentence of 25 per cent. Additionally, it may be accepted the defendant was cooperative with the investigating authority and that the defendant may be regarded as a good corporate citizen.

34I have also taken into account the commendable steps taken by the defendant following the incident to improve its systems for managing occupational health and safety. To some extent those steps and the early plea of guilty represent an indication of remorse.

35Having regard to the objective and subjective factors I have addressed in this judgment I consider an appropriate penalty to be $110,000.

Orders

36The Court makes the following orders: