Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector McGrath v Edmen Recruitment Pty Ltd [2012] NSWIRComm 108
• Hearing dates: 11, 12 September 2012
• Decision date: 03 October 2012
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

(a)  in relation to SITA Australia Pty Ltd:

(i)  the defendant, SITA Australia Pty Ltd, is convicted of a breach of s 8(2) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 819 of 2011) to which the defendant entered a plea of guilty;

(ii)  the defendant is fined the sum of $130,000 with half that amount to be paid to the prosecutor by way of moiety;

(iii)  the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

(b)  in relation to Edmen Recruitment Pty Ltd:

(i)  the defendant, Edmen Recruitment Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 818 of 2011) to which the defendant entered a plea of guilty;

(ii)  the defendant is fined the sum of $117,500 with half that amount to be paid to the prosecutor by way of moiety;

(iii)  the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court

(c)  in relation to Christopher Andrew Livingstone:

(i)  in relation to the charge against Christopher Andrew Livingstone under s 20(1) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 820 of 2011) to which he entered a plea of guilty, the Court, without proceeding to conviction, discharges the defendant on condition that Christopher Andrew Livingstone enter into a good behaviour bond for a term of 18 months;

(ii)  the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1), s 8(2), s 20 -labour hire employee suffers horrific crush injuries arising from fall into automatic baling machine - pleas of guilty entered by three defendants - both labour hire employer and host client had electric isolation and tag out procedures - third defendant as site manager for host client had responsibility for the site and compliance with company's safety policies - failure to comply with isolation and lockout procedures - baler activated while employee working near open hopper - different circumstances of each defendant considered - serious breach found in each case - general and specific deterrence considered - numerous subjective factors considered - employee defendant makes application pursuant to s 10 Crimes (Sentencing Procedure) Act - inter-action with s 28 and provision of Victim's Impact Statement - whether finding of "guilty" is a "conviction" excluding consideration of s 10 application - medical evidence accepted - no conviction recorded for employee defendant - 18 months' bond imposed - fines imposed on corporate defendants.
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Occupational Health and Safety Act 2000; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Maxwell v The Queen (1996) 184 CLR 501; R v De Simoni (1981) 147 CLR 383 at 389; R v Thomas [2007] NSW CCA 269; Rail Infrastructure Corp v Inspector Page (2008) 179 IR 398; Regina v Reinsch (1978) 1 NSWLR 483
• Category: Principal judgment
• Parties: Inspector Cherie McGrath (Prosecutor); Edmen Recruitment Pty Ltd (Defendant in 11/818); SITA Australia Pty Ltd (Defendant in 11/819); Christopher Andrew Livingstone (Defendant in 11/820)
• Representation: Mr Reitano of counsel (Prosecutor); Mr Shume of counsel (Defendant in 11/818); Mr Hodgkinson SC (Defendant in 11/819); Ms Nomchong of counsel (Defendant in 11/820); Criminal Law Practice, Legal Group; WorkCover Authority of NSW (Prosecutor); Sparke Helmore (Defendant in 11/818); Baker & McKenzie (Defendant in 11/819); Middletons (Defendant in 11/820)
• File Number(s): IRC 818 of 2011; IRC 819 of 2011; IRC 820 of 2011

Judgment

BACKGROUND

1 These proceedings concern breaches of the Occupational Health and Safety Act 2000 ("the Act"). The three defendants have each entered pleas of guilty. The defendant SITA Australia Pty Ltd ("SITA") has pleaded guilty to a breach of s 8(2) of the Act while an employee of SITA, Mr Christopher Andrew Livingstone, has entered a plea of guilty to a charge of breaching s 20(1) of the Act. The third defendant, Edmen Recruitment Pty Ltd ("Edmen"), has entered a plea of guilty to a breach of s 8(1) of the Act.

2 SITA is engaged in the business of collecting waste material that is transported to transfer stations, and has operated source recovery and treatment facilities and advance resource technology facilities as well as landfills. It is a significant employer that commenced operations in Australia in 2000. At the relevant times during 2009 SITA operated a transfer station and product destruction facility from a site located in Devon Street, Camellia ("Camellia plant"). At all relevant times during 2009, Mr Livingstone was the site manager at the Camellia plant while also performing functions as the company's equipment manager. Edmen, at all material times, was a labour hire company procuring workers across many occupations but specifically in relation to heavy industry. SITA introduced Mr Shane Bushell to Edmen for the purposes of having Edmen supply SITA with Mr Bushell's services as a welder at the Camelia location. Under this arrangement Mr Bushell was employed by Edmen and supplied by Edmen to work as a welder at SITA's Camellia plant.

3 In mid-June 2009, Mr Bushell was involved in a workplace accident at the Camellia plant and suffered horrific injuries. Whilst performing work at the site Mr Bushell fell into and was caught in the hydraulic operation of a baling machine that was being installed. The injuries suffered by Mr Bushell included: the loss of both legs, the loss of a hand and significant injuries to his genitalia.

THE CHARGES

4 The Amended Application for Order concerning SITA alleging a breach of s 8(2) of the Act was particularised as follows:

1.The defendant failed to ensure that an hydraulic bailing machine or part/s thereof ("the bailing machine") provided for use, repair, maintenance, installation, assembly, erection, commissioning and/or alteration by Mr Bushell at work (hereinafter: "work on the bailing machine") did not expose Mr Bushell to risks to his health or safety, in that the defendant should have ensured, but did not ensure that:

(a)any modification to the bailing machine was completed: (1) before the hydraulic components of the bailing machine were installed, and/or (2) before the bailing machine was placed in its position at the premises, and/or (3) while the hopper was situated on the ground, and/or (4) before the bailing machine was connected to any source of power or was energised at the premises;

(b)the bailing machine was otherwise installed, assembled, erected and/or commissioned in accordance with the instructions of the designer/manufacturer with respect to (1) the position and direction of the conveyor feeding into the bailing machine, and (2) the method of activating or operating the bailing machine; and/or

(c)the bailing machine isolation switch was clearly labelled and identified as such.

2.The defendant failed to ensure a system of work on the bailing machine that did not expose Mr Bushell to risks to his health or safety, in that the defendant should have ensured, but did not ensure that Mr Bushell complied with a requirement to shut off and lockout the switch or switches that effectively and unalterably isolated all power to the bailing machine prior to performing any work on the bailing machine ("the isolation requirement"). The defendant should have ensured, but did not ensure such compliance by:

(a)informing Mr Bushell of the isolation requirement;

(b)demonstrating to Mr Bushell the proper method of complying with the isolation requirement;

(c)assessing and verifying Mr Bushell's competency in complying with the isolation requirement;

(d)regularly reiterating and reinforcing the isolation requirement to Mr Bushell such as at tool box meetings;

(e)providing Mr Bushell with sufficient and readily accessible tags, locks or lockout devices and lock boxes for the purpose of shutting off and locking-out the switch or switches that effectively and unalterably isolated all power to the bailing machine; and/or

(f)conducting regular site audits to ensure that Mr Bushell did not operate or work on the bailing machine other than in compliance with the isolation requirement.

3.The defendant failed to ensure a system of work on the bailing machine that did not expose Mr Bushell to risks to his health or safety, in that the defendant should have required, but did not require Mr Bushell to obtain a written permit prior to performing any work in or around the hopper or moving parts of the bailing machine and/or any work which required him to isolate the bailing machine, which would have ensured that:

(a)the Site Manager and/or a supervisor was alerted to or informed of the work to be performed by Mr Bushell,

(b)a competent person supervised the isolation and tag/lock out procedure and/or verified that the bailing machine was isolated correctly, and

(c)a competent person was present, ready and able to shut down the bailing machine, and/or assist in extracting Mr Bushell from the hopper of the bailing machine, in the event of an emergency while Mr Bushell was performing work on the bailing machine.

4.The defendant failed to ensure a system of work that did not expose Mr Bushell to risks to his health or safety, in that the defendant should have conducted, but did not conduct a risk assessment for any modifications to the original design of the bailing machine at the premises, including with respect to any risks to health and safety arising from welding work being performed in connection with any such modifications.

5.The defendant failed to provide such information, instruction and training to Mr Bushell as was necessary to ensure that he was not exposed to risks to his health or safety, in the defendant should have, but did not:

(a)inform, instruct, train and assess Mr Bushell in the proper method of effectively and unalterably isolating all power to the bailing machine;

(b)provide to Mr Bushell a copy of the defendant's isolation and Tag Out Procedure - Standard Operating Procedure - SOP008 (2); and

(c)provide to Mr Bushell instruction and training in the defendant's isolation and Tag Out Procedure - Standard Operating Procedure - SOP008 (2).

6.The defendant failed to provide such supervision or assistance to Mr Bushell as was necessary to ensure that he was not exposed to risks to his health or safety, in that the defendant should have, but did not:

(a)instruct Mr Bushell not to perform any work in or around the hopper or moving parts of the bailing machine and/or any work which required him to isolate the bailing machine without first informing or notifying his supervisor and/or Site Manager;

(b)ensure that Mr Bushell's supervisor and/or the Site Manager was otherwise alerted to or was aware of the fact that Mr Bushell was to perform the work referred to in (a); and

(c)in the event that Mr Bushell was to perform the work referred to in (a):

(i)ensure that a competent person supervised the isolation and tag/lock out procedure and/or verified that the bailing machine had been isolated correctly;

ii.ensure that a competent person was present, ready and able to shut down the bailing machine in the event of an emergency while Mr Bushell was performing such work on the bailing machine; and/or

iii.ensure that a competent person was present, ready and able to assist in extracting Mr Bushell from the hopper of the bailing machine in the event of an emergency while Mr Bushell was performing such work on the bailing machine.

7.As a result of the defendant's failures Mr Bushell was placed at risk to his health and safety, namely, the risk of falling into and/or being cut, crushed or entrapped in or by the bailing machine.

5 The charge brought against Mr Livingstone under s 20(1) of the Act was particularised in substantially the same terms as the particulars alleged against SITA. In relation to Edmen, the breach of s 8(1) of the Act was particularised in the Amended Application for Order as follows:

1.The defendant failed to ensure a safe system of work that did not expose Mr Bushell to risks to his health or safety, in that the defendant should have ensured, but did not ensure that Mr Bushell was not directed or allowed by SITA Australia Pty Ltd ("the client") to use, repair, maintain, install, assemble, erect, commission and/or alter an hydraulic bailing machine or part/s thereof ("the bailing machine") (hereinafter: "work on the bailing machine") unless it was safe to do so. The defendant should have ensured, but did not ensure that Mr Bushell was not so directed or allowed by:

(a)requesting or repairing the client to inform the defendant of the particular plant and equipment on which Mr Bushell would be required to perform work at the premises including, in particular, any hydraulically powered plant such as the bailing machine;

(b)conducting or requiring the client to conduct a risk assessment and/or safety inspection or analysis of the particular work to be performed by Mr Bushell on particular plant and equipment at the premises - namely welding, repairing, maintaining, installing, assembling, erecting, commissioning, and/or altering the bailing machine;

(c)not relying on a risk assessment that had been conducted: (1) before Mr Bushell was employed to work at the premises, (2) for general labouring work to be performed at the premises and not for work on the bailing machine, and (3) without regard to and in the absence of the bailing machine;

(d)inspecting and assessing or requiring the client to inspect and assess the safe installation, assembly, erection, alteration and/or commissioning of the bailing machine, including by conducting regular safety inspections of the bailing machine and work on the bailing machine to identify risks to safety and to ensure that:

ithe modification of the bailing machine was completed: (1) before the hydraulic components of the bailing machine were installed, and/or (2) before the bailing machine was placed in its position at the premises, and/or (3) while the hopper was situated on the ground, and/or (4) before the bailing machine was connected to any source of power or was energised at the premises and/or (5) was properly isolated; and/or

ii.the bailing machine was otherwise installed, assembled, erected and/or commissioned in accordance with the instructions of the designer/manufacturer with respect to (1) the position and direction of the conveyor feeding into the bailing machine, and (2) the method of activating or operating the bailing machine; and/or

iii.the bailing machine isolation switch was clearly labelled and identified as such.

(e)inspecting and assessing or requiring the client to ensure that Mr Bushell was provided with sufficient and readily accessible tags, locks or lockout devices and lock boxes for the purpose of shutting off and locking-out the switch or switches that effectively and unalterably isolated all power to the bailing machine; and/or

(f)requiring the client to instruct, inform and train Mr Bushell in the proper method of isolating machinery prior to performing any work on such machinery, including as to the mandatory use of danger tags, together with locking devices and lock boxes, for shutting off and locking-out the switch or switches that effectively and unalterably isolate all power to such machinery prior to performing any work on the bailing machine;

(g)prohibiting the client from directing or allowing Mr Bushell to work on the bailing machine unless and until a component person supervised the isolation and tag/lock out procedure and/or verified that the bailing machine was isolated correctly; and

(h)regularly inspecting the premises and/or making enquiries with the client and/or Mr Bushell to check and ensure that the client has complied or is complying with any applicable requirements imposed by the defendant upon the client.

2.As a result of the defendant's failures Mr Bushell was placed at risk to his health and safety, namely, the risk of being directed or allowed to work on the machine ("the bailing machine") or in a manner which otherwise exposed Mr Bushel to the risk of falling into and/or being cut, crushed or entrapped in or by the bailing machine.

In view of the detail of the Agreed Statement of Facts in the SITA matter covering the essential actions of all defendants, that documents is annexed to this judgment.

THE EVIDENCE

6 In the SITA matter the prosecutor's evidence consisted of the following:

(a) a number of photographs taken over a period of time showing details of the work site, the baling machine and the electrical switching panels;

(b) a factual inspection report prepared by Inspector Hinton;

(c) a technical report prepared by electrical engineer, Mr J Lawson;

(d) a further report prepared by Mr Lawson;

(e) the SITA environmental solutions structure and responsibility register regarding the site manager;

(f) Edmen job order details for the employment of Mr

Bushell;

(g) SITA isolation and tag out procedure - standard operating procedures issued 1 July 2007;

(h) SITA plant risk assessment checklist dated 25 June 2008 and hazard management/job safety analysis form for operation of the baler dated 6 July 2008;

(i) SITA risk management form for the transfer station upgrade dated 12 December 2008.

(j) WorkCover certificate confirming that the defendant, SITA, had no prior convictions.

7 In relation to Mr Livingstone, the Agreed Statement of Facts dealt substantially with the same matters covered by the Agreement Statement of Facts in the SITA matter and substantially the same documentation was tendered in relation to Mr Livingstone as in the SITA matter. Mr Livingstone had no relevant prior safety convictions.

8 In relation to Edmen, the Agreed Statement of Facts was substantially the same as SITA. A number of amendments were made at the hearing to the Agreed Statement of Facts in the SITA and Edmen matter and parts of the SITA Agreed Statement of Facts were incorporated into the Edmen Agreed Statement of Facts. In common with the SITA matter, the large selection of photographs, the factual inspection report, the June 2011 report of Mr Lawson, electrical engineer and the Edmen job order details for the employment of Mr Bushell were common to both matters. In addition there was also tendered: extracts from the Edmen safety handbook; an email with Edmen rates and transition plan; an Edmen client inspection checklist for heavy industry dealing with the SITA site at Camellia; an Edmen letter quoting the hourly charge-out rates for a welder and enclosing the company's terms and conditions. The WorkCover certificate stated that Edmen had no prior convictions.

9 The evidence for SITA was provided by Mr John Dyster, the general manger, human resources. Mr Dyster's lengthy affidavit was accompanied by numerous annexures and provided a background to the defendant's operations, the safety systems it had adopted and had improved as well as giving details in relation to the accident involving Mr Bushell. SITA had commenced operations in Australia in 2000 and currently employed approximately 1600 persons while engaging approximately 500 labour hire workers and contractors. The defendant company owned or operated more than 100 sites, facilities and offices across Australia delivering services ranging from waste collection to resource recovery, recycling and safe disposal of non-recoverable residual material. The majority of SITA's operations were located in New South Wales.

10 In New South Wales the defendant company had two business units described as collections and infrastructure. It owned or operated five landfills, nine transfer stations, fifteen collection depots, five resource recovery and treatment facilities, three material recycling facilities, five organic recovery facilities and three advanced resource recovery technology facilities. In this State the defendant company employed approximately 750 people and engaged approximately 140 labour hire workers and contractors.

11 In the period to 2009 the defendant company progressively developed environmental quality and safety systems on a national approach. Mr Dyster spoke of a number of aspects of those systems and in particular noted that labour hire workers and contractors were to be assessed for their competence before commencing work at a site. If gaps were identified, training was to be provided to employees, labour hire workers or contractors. The system included safety meetings, toolbox talks, a national contractor and visitor control procedure, a national audit procedure, safe operating procedures for sites and regular auditing by external auditors as well as internal auditors. Additional resources were made available to ensure that the national approach was adopted in all the company's operations.

12 The Camellia site was leased in 2005 and was previously used as a rail coal-loading yard. The defendant company established a transfer station and product destruction facility at the site under its national safety system. At that stage approximately 17 people were employed, together with a small number of labour hire workers and contractors. Mr Gary Leach was the manger, Sydney Collections and was in charge of this site although based at Wetherill Park. In late 2005 the facilities at the site were expanded by introducing resource recovery activities in the transfer station and installing liquid waste, quarantine, grease trap and medical waste treatment facilities. That expansion occurred between 2008 and 2011 and thereby increased significantly the number of business activities undertaken at the site. Mr Livingstone was employed by the defendant company as New South Wales equipment manager in 2002. While initially based at Wetherill Park, he transferred to the Camellia site in 2005. Mr Livingstone was described as the most senior operational person at the Camellia site with his role involving the installation and maintenance of equipment. He was not involved in sales or other business management activities. The Camellia site was certified to Australian Standard 4801 (addressing occupational health and safety management systems) through assessment and audit processes conducted in 2008 by an external auditor and was re-certified in 2012.

13 At the time of the accident Mr Bushell was performing work on the installation of new equipment as part of the expansion process. That equipment was part of a new recycling and processing system called the Camellia Recycling and Organics Processing System ("the CROP system"). That system was completed and became operational after the accident. The baler involved in the accident was not commissioned and not used again. That baler was replaced by another in the CROP system. After the accident the number of employees at the site expanded to 37 plus labour hire workers and contractors and that number remained constant between 2011 to the present time.

14 After the accident involving Mr Bushell, the defendant company reviewed its national safety systems as well as its site management arrangements in New South Wales. It was concluded that the Camellia site required a senior person on site because the business had grown considerably as well as in its complexity in a range of activities. A new management structure resulted in Mr Scott Bayliss being appointed the Camellia branch manger in October 2009: he was based at the site, reporting directly to the New South Wales general manager. In addition, the number of supervisors at the site was increased from two to four. Mr Bayliss was to ensure that activities undertaken at Camellia complied with the national safety system for the defendant company and the defendant also undertook a range of local initiatives to improve the safety, culture and work environment at the site. In part this was achieved by Mr Bayliss regularly conducting toolbox talks and conducting safety observations, being an informal assessment of tasks performed by workers. Mr Bayliss also met with the general manager of New South Wales collections on a regular basis to review and discuss the operations at the site, including health and safety matters. There were also regular meetings with Mr Livingstone, supervisors, and managers to discuss and review safety matters.

15 Mr Livingstone continued to be based at the Camellia site and remained responsible for installation and equipment maintenance. The defendant company provided Mr Livingstone with training in relation to systems and procedures relevant to his position both before and after the accident and details were provided to the Court. Since the accident involving Mr Bushell, Mr Livingstone had been provided with extensive training in numerous areas that were identified in Mr Dyster's affidavit.

16 Mr Dyster explained that, after the accident, the defendant company implemented a re-structure of management responsibility for safety matters at a national level. He accepted executive responsibility for these matters in January 2010. He met with the managing director of the company weekly and safety matters were a standing agenda item. In January 2010 the national safety manager was appointed to the company's executive committee in the role of General Manager, EQ&S, with the role of reporting to and advising the executive committee and the managing director on safety matters. Since that appointment the national safety team had increased from two to five persons and a national integrated systems manager was added to the national safety team in 2011. The safety systems officer and safety co-ordinator report to the national integrated systems manager. The organisational charts and qualifications of the people involved were set out in Mr Dyster's affidavit. Since June 2009 the New South Wales safety team was expanded to include a dedicated manager and three co-ordinators in the State. Each co-ordinator was given primary responsibility for a number of sites. The co-ordinator responsible for Camellia conducted audits and inspections, delivered training, provided safety advice and support and oversaw incident reporting and investigations at that site.

17 Mr Dyster then spoke of the implementation of the national safety governance policy in August 2009 and how all managers (including Mr Livingstone) had received training in that policy in late 2009. Along with that development, a structure and responsibility register had been set up, a national safety strategy had been developed, and in each State the State general manager and State safety manager set safety performance targets for each site. State safety managers monitored the targets and reported monthly to senior management and were reviewed by the executive committee. The national safety team distributed monthly safety alerts and they were received by the executive committee, all site managers, all safety managers, co-ordinators and all compliance staff. Toolbox safety talks were held regularly at all sites in order to communicate not only with employees but labour hire workers and contractors in relation to all safety matters and the company safety policy.

18 Independent experts had been retained to conduct risk assessment training on a national basis and that occurred in July 2009. Risk assessments were conducted on key plant and the results were incorporated into training for key operational employees. The independent experts were also engaged to conduct a review of high-risk areas, including isolation and tag out and that occurred in February 2012. An independent group of consultants with expertise in safety matters conducted a strategic review of the national safety system in 2010. The review team interviewed staff, reviewed procedures and inspected sites.

19 Mr Dyster provided further details in relation to the defendant company's review of safety procedures and in particular, training procedures where site managers were to identify the training needs for all employees and labour hire workers having regard to their role. In 2012 the company developed and implemented an online national safety and environment induction training programme and details were provided of the company's approach to induction and how it applied to all employees, labour hire workers and contractors. The contractor and visitor control procedure was explained, including the contract and monitoring checklist and how a "hot works" procedure had been developed in 2007. In 2011 stand alone permit to work procedures were developed formalising the permit system, identifying key operational controls and clarifying training, competency and supervision requirements. Isolation and tag out procedures had been developed in 2007 and were reviewed and revised in early 2012. The risk management procedure had been reviewed and revised a number of times. An audit procedure had been developed in 2011 and had also been reviewed on a number of occasions. In 2012 a fatigue management policy and procedure was developed and implemented. All staff and site workers, including all staff at the Camellia site, had been informed and trained in relation to this policy. A specialist risk assessment firm had been engaged to provide an online process for identifying hazards and risks associated with plant and equipment and a plant management procedure had been developed and reviewed by an independent consultant. The defendant company had also developed and implemented procedures for the management of projects such as the installation and commissioning of equipment.

20 Since the accident involving Mr Bushell, the defendant company had introduced safety week, an initiative to positively reinforce the importance of safety at the company's workplaces. Mr Dyster described the activities of safety week and the safety awards that had been initiated in August 2009, a step that was taken to recognise excellence in safety performance.

21 In relation to community involvement, Mr Dyster spoke of the activities of the community reference groups operated by the defendant. These groups inter-acted with community representatives through consultation to monitor the operation of the waste management and organic processing facilities and sought community input on a wide range of resource recovery, sustainability and community issues. The defendant company currently spent more than $100,000 per annum on sponsorship and community initiatives and late in 2012, a foundation would be established to support local communities through a community grants programme. The company funded a programme under which its education officers attended schools to talk about environmental issues.

22 The company had fully co-operated and assisted the WorkCover Authority in relation to its investigation into Mr Bushell's accident. Mr Dyster was authorised by the managing director to express, on behalf of the company, its sincere remorse for failing to comply with its occupational health and safety obligations and for the injuries suffered by Mr Bushell. Mr Dyster was not required for cross-examination.

23 In relation to his case, Mr Livingstone provided a lengthy affidavit together with numerous annexures. He was currently employed by SITA as the equipment and development manager at the Camellia site. He outlined his training in the Army from 1977 where he completed an apprenticeship in motor mechanics and also had training in welding and other areas. Between 1980 and 1982 he undertook further on-the-job training and completed his apprenticeship. His training covered many aspects of motor vehicle maintenance. Between 1982 and 1984 he worked on a variety of plant, including passenger vehicles, trucks and armoured personnel plant and he completed a heavy truck and earthmoving plant course. Mr Livingstone continued his training in a variety of courses until he resigned from the Army in 1988. He stated that his 12-year service with the Army was without fault or complaint and he had not been subjected to any investigation or disciplinary process concerning safety in the workplace. He had two years' employment in relation to the servicing and repair of all models of forklift plant and then was employed as a workshop mechanic, performing heavy truck repair for a waste management company. In this employment he was promoted to leading hand and later to workshop supervisor. After four or five years with this company he was transferred to the Homebush operation where he became workshop manager overseeing the repair and maintenance of vehicles and the stationary fleet and was also responsible for the procurement of mobile and stationary fleet. In relation to his employment with forklift plant and with waste management up until 1999, Mr Livingstone again spoke of never being the subject of any complaint or being involved in any incident or near miss regarding safety issues.

24 At the beginning of 1999, as a result of a merger, Mr Livingstone's employment was transferred to SITA. He did not recall being provided with a specific position description or a written contract of employment. He remained based at the Homebush site for a further year and then moved to the main SITA complex at Wetherill Park as workshop manager. He was then involved in the refurbishment of a transfer station at Davis Road. During the years he worked on this project, there were no safety issues. Mr Livingstone spoke of the fact that, together with team members, he was very attentive to the safety aspects of the project. During the same period he was involved in the initial setup of the Kemps Creek landfill and the procurement of extra fleet. In 1999 he attended and completed a material science engineering computing and engineering design concepts course at Meadowbank TAFE.

25 Due to re-zoning and residential development after the Olympics in the Homebush area, Mr Livingstone was given the task of re-locating the Homebush business to a new site. Work commenced on this project towards the end of 2003 and Mr Livingstone was appointed as equipment and development manager. Between 2003 and late 2007 he held that position at Camellia. This position involved development and implementation of procedures and instructions for the operation of various processes throughout the site. He also undertook some work on other SITA sites but was not provided with a position description for this role or provided with any documents setting out his duties and obligations as equipment manager. In approximately late 2007 Mr Livingstone took on the role of site manager at Camellia while retaining his position as equipment manager. He did not receive a new contract or any position description for the site manager duties. He received a number of reports relating to many aspects of the business, including financial, safety, human resources and administration matters. He reported on any incident and noted that audits were conducted at the site. Following a re-structure of the Camellia management he ceased being site manager on October 2009 and Mr Scott Bayliss was appointed to that position. Mr Livingstone retained his role as equipment manager.

26 Mr Livingstone described the Camellia site and its operations in some detail. He was deeply involved in all aspects of the development of the site, working with architects, engineers, environmental consultants and geotechnical experts. He was involved in the development approval from the local Council. For over two years he was part of the team that organised the site so it would take over the existing operations of the Homebush operation of SITA but also expanded its capacity. This expansion involved the construction of three buildings: a waste transfer liquid and quarantine building; a product destruction building; and, an administration building. The development of the site involved a number of installations dealing with different aspects of the waste industry. During this development Mr Livingstone said that he was careful to pay attention to all safety aspects and there was only one incident where a contractor was involved with a liquid spill. No injuries resulted from this incident and no investigation was conducted by WorkCover. There were no other safety incidents, near misses, complaints or investigation during this stage of the operation.

27 In 2005 the site became fully operational with approximately eight employees. Mr Livingstone reported to Mr Gary Leach. The site ran in accordance with the conditions of consent and licences with equipment moved from Homebush and most of that equipment had been upgraded or replaced. The environmental benefits of this approach, as opposed to merely using landfill, were explained Mr Livingstone.

28 Mr Livingstone identified some aspects of the plant and their operation that caused him to recognise that there was a risk of persons coming into contact with moving plant operating at the site. Having identified that risk he prepared a document that identified risks to persons in relation to the then existing plant. He used the document to identify risks in the process and to deal with operational issues but it was not distributed to new employees or contractors as a training aid. The documents were sent to Mr Leach to assist discussions between the two men regarding the operations at the site and to demonstrate Mr Livingstone's input into the original document.

29 In early 2008, Mr Livingstone spoke with Mr Leach about improving the Camellia site processes and overcoming sorting difficulties, including improving the recycling process. Mr Livingstone and his team developed a layout of the factory that would bring improvements, including separating personnel from machines. To overcome perceived problems it was decided to incorporate a baler that operated automatically. Mr Livingstone consulted site management about incorporating the baler in an area where manual sorting could be undertaken. Ultimately, a decision was made to upgrade the transfer station, including the installation of the baler, the incorporation of conveyors that transported waste to the baler and a platform set up alongside the conveyors to allow some manual sorting of the waste prior to final transfer to the baler. A platform was to be situated away from the machine involved in the tipping process. Mr Livingstone was "charged with the development and implementation" of the upgrade which was then known as the CROP system (Camellia recycling and organics process). He designed the system and helped it to be incorporated into the existing system: he costed various components, consulted with engineers, electricians and computer experts to resolve how the two systems could work together. Mr Livingstone gave details of each step in implementing the CROP system, including obtaining expenditure, gaining approval to engage a wide range of trade contractors, sourcing equipment and ensuring that as little modification as possible was involved in the use of this equipment. It was clear to him that the company management wanted the existing operations to remain functioning during the implementation of the CROP system.

30 In mid-December 2008 a risk assessment was prepared. At this point Mr Livingstone had identified all the plant required for the upgrade although not all of that plant was then on site. He then spoke of the need for a further risk assessment at the point of commissioning and at the operational stage. The environment quality and safety manger for New South Wales was "heavily involved" in creating the risk assessment. Also involved were the administrative supervisor and a contractor: their particular backgrounds were relevant to the risk assessment and in particular provided advice on the construction of the mechanical parts of the CROP system. Mr Livingstone regarded "commissioning" to be the stage at which the installation was complete: it involved gathering all the relevant people to discuss the details of the machine, a testing of all the safety risks and operational controls and to ensure that everything was working properly. At the time of the accident involving Mr Bushell, Mr Livingstone had been speaking with Mr Bushell and Mr Farraway, a contractor boilermaker, about getting ready for the commissioning risk assessment. At the date of the accident the baler was still in the process of being installed and was approximately one to two weeks away from being commissioned.

31 In preparation for commissioning, Mr Livingstone had spoken to a number of contractors as well as an engineering company in relation to checks of the structural integrity of the upgrade. The timing for having the baler in operation was affected by the fact that the other sections of the business continued to operate. While construction and installation was being undertaken, the transfer station continued under normal work procedures. SITA management anticipated targets for the new system would be met and while they were not being met in June 2009, Mr Livingstone said that management did not exert any undue pressure on him to complete the transfer upgrade nor did they place any unrealistic time frames on the work. In late 2008 or early 2009 Mr Livingstone discussed with the then occupational health and safety manager the prospect of engaging a consultant to assist in the preparation of a user manual for the CROP system and in particular for the baler when it was installed. Over the years Mr Livingstone had been involved with the installation, commissioning, repair and removal of numerous compactors and balers but he did not have any prior experience with this particular baler. Nevertheless, he believed he was competent to deal with the machine because it was similar to many of the other machines with which he had worked.

32 During the upgrade of the site a decision was made to engage another welder because the employed welder was occupied in the ongoing operations at the site. Another employee, related to Mr Bushell, provided Mr Bushell's CV to a supervisor and it was considered by Mr Livingstone. It was noted that Mr Bushell had extensive qualifications and experience with heavy machinery. Mr Livingstone then interviewed Mr Bushell, discussed his work experience, particularly in the mining industry and was taken around the site and told about the structure of the CROP system. Mr Bushell was informed of the work he would be doing in the installation of the CROP system if he was engaged and Mr Bushell spoke of his capacity to perform that work. On that basis Mr Livingstone was satisfied that Mr Bushell was suitable for the welding position and he was told to contact Edmen Recruitment who were labour hire providers to the site. Edmen then employed Mr Bushell who commenced at the Camellia site in late February 2009. The company inducted him to the site but Mr Livingstone did not take any part in that process.

33 To the best of Mr Livingstone's recollection, Edmen did not provide a safe work method statement for the work that Mr Bushell was to carry out although the company did initially attend the site, conducted a walk around but did not inspect the baler. When Mr Bushell commenced work with the company, Mr Livingstone placed him under the close supervision of an experienced contractor who was a boilermaker, in order to ascertain his competence as a welder. Mr Livingstone received reports and watched Mr Bushell closely and from comments from others he formed the view that he was a competent welder. Mr Livingstone gave directions to Mr Bushell about tasks that he was required to complete although his day-to-day work was supervised by the boilermaker contractor who reported on his progress to Mr Livingstone. After some weeks Mr Bushell worked with much less supervision as Mr Livingstone was satisfied as to his skills and experience. Mr Bushell was asked to review the December 2008 risk assessment of the transfer station upgrade but he expressed no difficulties or problems with that document and signed it in March 2009.

34 In the first three weeks of engagement Mr Livingstone spoke with Mr Bushell about the requirement to isolate plant on which work was being performed and using tags and locks. Mr Bushell was shown where tags and locks were kept in the workshop and was told that other tags were located in the administration lunchroom. He told Mr Bushell that if the tags or locks were not at these places, he was to find Mr Livingstone for those items. Mr Bushell said that he had his own locks and tags that he regarded as being reliable and that was agreeable to Mr Livingstone. Mr Livingstone was shown the lock and zip tags that Mr Bushell carried with him. Mr Livingstone was satisfied that in view of Mr Bushell being an experienced contractor he understood the requirement for isolating plant and using tags and locks. While Mr Livingstone understood his role was to show Mr Bushell around the site and direct him to where equipment was kept, he did not regard himself as being responsible for inducting Mr Bushell into the site. He had formed the view that, in light of Mr Bushell's experience, he would be able to perform the isolation procedure. Mr Bushell also supplied some of his own equipment. During his employment, Mr Bushell gave no reason for concern in relation to safety at the site. From Mr Livingstone's observation and the "good feedback" he had received, Mr Bushell appeared to be a professional and competent tradesman. There were no complaints about him taking shortcuts or having difficulty with technical expertise.

35 At the site SITA used preferred contractors, often people who had worked at a number of sites for the company. Edmen was the nominated labour hire recruiter for SITA under an arrangement that began in August 2008. Mr Livingstone had little contact with Edmen who employed Mr Bushell at the time of the accident. CMS Electrical Services Pt Ltd ("CMS") had provided electrical services to the Camellia site from the beginning and had worked on SITA sites for approximately ten years. In relation to the CROP system, CMS were involved in the planning stages and their advice was sought as to appropriate processes for the work that was planned. This was the usual practice. Mr Livingstone had a number of discussions with CMS about integrating the CROP system with the existing system at the site. CMS, as a result of these discussions, moved some plant and machinery and then installed an electrical mains cabinet and this work was completed in early 2009. At the time of the accident CMS had finished the electrical cabinet and associated wiring. CMS had performed most of the electrical wiring at the Camellia site and was therefore chosen to undertake the wiring of the CROP system, including the baler.

36 During the transfer station upgrade, Mr Livingstone ensured that contractors on the site were in contact with each other. He said he relied upon his experience with the contractors and their expertise to perform their work competently and professionally. He accepted the advice of Mr Bushell and others from CMS during the upgrade process: Mr Livingstone nor anyone else at the site had greater expertise on the SITA site. In working with CMS over ten years, Mr Livingstone had no prior issue to cause him to worry about safety matters. He had some level of confidence in Mr Bushell's experience in safety because of his long time engagement in mines and other experiences without incident. He knew Mr Bushell had been engaged in high-risk areas. Mr Bushell's advice was sought on a number of safety aspects of the upgrade and Mr Livingstone noted, as an example, advice given by Mr Bushell on the guarding of a conveyor and the fact that some guards were not suitable from a safety point of view.

37 In relation to the electrical computer system during the upgrade, Mr Livingstone said he had numerous conversations with CMS and had reiterated to them that everything had to be isolated and have the proper tag out isolation capacity. He had a number of detailed conversations with CMS about the installation of the baler and Mr Bushell was present at some of them. On a number of occasions he had instructed them that any plant installed had to be able to be isolated. Mr Bushell and CMS were provided with electrical schematics and the owner's manual that came with the baler. CMS staff had seen the baler and an operational baler of a similar kind. Prior to installation of the baler, Mr Livingstone became concerned about how the isolation of the baler would be achieved as there was still power going to other plant in the building in order to continue the normal operations of the transfer station. SITA management wanted the existing operations to remain functional and in particular the product destruction unit (PDU) was to remain in operation and functioning during the implementation of the CROP system. The PDU consisted of conveyors feeding the trommel as well as the under conveyor and the conveyor that ran product up to drop in the middle of the transfer station. Mr Livingstone was aware that when the upgrade was complete, the conveyor/baler would operate with the PDU and so CMS had been wiring the PDU to work simultaneously with the baler. CMS set up the control box so it would control the whole system: if the conveyor went down, it would stop the whole system and thus, there would be no bottleneck with the baler being at the end of that system.

38 Approximately six or eight weeks prior to the accident, Mr Livingstone spoke to CMS and Mr Bushell was present. CMS explained that, because of changes made to the control box and the computer that monitored the whole system, the baler had to be "live" to send a signal to the control box. Only if the PDU thought that the baler was onine, could it operate under the new system. Mr Livingstone did not think that was correct and he wanted everything to be isolated until it was commissioned. CMS told him that all that was happening was a signal was being sent to the control box and that was how it had to be done otherwise the PDU would think the system was down and the computer would also shut down. Mr Livingstone enquired whether that was appropriate because he did not want the baler live until it was ready for commissioning. CMS told him that only a signal would be sent and that the baler "can't work" because it was not yet wired in that way. Mr Livingstone agreed to the CMS proposal but told them they had to ensure that all the safety switches and the features of the baler were operational. He then told Mr Bushell that he wanted to make sure that all the guards were fitted to the baler because the baler had to be "live." Mr Bushell agreed to do that. Everybody then walked around the machine and identified the guards and associated switching and also the baler's safety devices. CMS again assured Mr Livingstone that other than the transmission of the signal to the transfer station control panel, the baler would not be able to operate. Mr Livingstone pointed out the guard limit switches, eye-sensor switch and the category four access door switch to both CMS and Mr Bushell.

39 During the following two weeks or so prior to the baler being enlivened, Mr Bushell and CMS worked on the baler. Mr Livingstone checked this work but he did not test any of the switches because he was not competent to do so. He was satisfied, in view of their discussion, that CMS had ensured that all the safety and isolation switches were working. Mr Livingstone had also regularly walked past the baler and saw CMS working on the machine. During this time Mr Bushell ensured that all the guarding and fencing of the conveyor were in place. He estimated that Mr Bushell spent 80 per cent of his time dedicated to the installation of the CROP equipment although there were other tasks that were carried out within his role as a welder.

40 Around May 2009, approximately one month before the accident, CMS advised Mr Livingstone that the baler was ready to go "live." CMS, Mr Bushell and Mr Livingstone went to the baler and CMS plugged in a laptop computer and tested parts of the machine identified by Mr Livingstone to satisfy himself that the safety features were operational. A series of tests were run from the laptop. Mr Livingstone noticed that when commands were typed into the computer the machine moved according to their intended operation as instructed through the computer. Other tests were performed such as checking the mushroom stop button. Mr Bushell was standing close to the baler during these checks and Mr Livingstone walked around the machine and tripped the safety switches to make sure they were working. On the basis of this demonstration, his own checks and the advice he had been given by CMS that the baler could not operate and it was only sending a signal to the control box, Mr Livingstone therefore allowed work to continue on the installation of the baler.

41 Between May and 11 June 2009, Mr Livingstone said that he directed Mr Bushell to work on various tasks relating to the installation of the CROP system. Approximately two weeks before the accident they identified a gap at the top of the hopper and the possibility that some waste drawn intothe end of the hopper from the conveyor could fall through and become stuck in the gap. Mr Livingstone and Mr Bushell looked at the gap and Mr Livingstone said they would have to do something about it but gave no specific direction to Mr Bushell on that day to address the problem nor was he directed to do so in the near future. They did not discuss how to address the problem. Mr Livingstone said he made that comment as a general observation only and thought it would be discussed further and at a later stage when a plan had been devised for fixing the gap.

42 In early June 2009 the time was approaching for the commissioning of the baler. On the day of the accident Mr Livingstone saw Mr Bushell early in the morning. Mr Bushell pointed out that there was a gap that had to be filled and Mr Livingstone replied that, for today, he wanted Mr Bushell to bolt down the baler wire reel poles to the ground and Mr Bushell agreed to perform that task. Mr Livingstone did not discuss further with Mr Bushell that morning the filling of that gap as he regarded the bolting of the baler would take a significant amount of time. Although fixing the gap had been discussed two weeks earlier, there had not been any discussion about the task that would be performed. He had not asked or suggested to Mr Bushell that he go inside the baler or that he physically carry out the task of fixing the gap that day. Mr Livingstone said he had no inkling that Mr Bushell would go beyond his direction to bolt the reel poles and instead would begin fixing the gap on the baler. He had no reason to believe that Mr Bushell would "go off" and carry out this task without first discussing it and how it would be done. Later in the day he saw a labourer attempting to bolt the wire reel to the ground and was puzzled because Mr Bushell had not asked to use a labourer for that task. Because the job was not being performed properly, Mr Livingstone gave assistance to the labourer before raising with Mr Bushell why he was not performing the job. Before that could occur, Mr Bushell was crushed in the baler.

43 Mr Livingstone described the steps he took to render assistance to Mr Bushell, including shutting down the power, giving directions for emergency services to be contacted, personally giving them directions and information regarding access for a helicopter at the site and discussions with those services about providing space for access to the baler. When the fire brigade attended they took control of the situation and directed that the baler be isolated. Electricity to the access switch had previously been cut but for more abundant caution, the fire brigade made a decision that the power should be cut for the whole site and Mr Livingstone attended to that requirement. Throughout the difficult rescue mission, Mr Livingstone remained on site and well after Mr Bushell was removed. He said he was surprised to find Mr Bushell in the machine itself and had expected to find him working at the base of the baler securing the machine to the ground and working with the wire reels poles as he had been instructed to do. He had no idea that Mr Bushell was intending to mend, that day, the gap at the top of the hopper. Given the way they had worked in the past he expected that if Mr Bushell wanted to mend that gap, he would have spoken to Mr Livingstone in a more detailed way so they could have formulated a plan.

44 After the incident Mr Livingstone visited Mr Bushell in hospital. Mr Bushell asked him if he had turned the machine on but Mr Livingstone denied doing so. Mr Livingstone visited a few times but Mr Bushell then told him that he had engaged solicitors and after that, conversation became awkward. Mr Livingstone felt that he was not welcome. Mr Bushell's relative remained working at the site so Mr Livingstone was able to make further enquires through that relative. Mr Livingstone received a commendation from Rescue Services for the assistance he rendered on the day.

45 The nature and scope of the safety training received by Mr Livingstone was set out in considerable detail. Although not formally holding engineering qualifications he had wide experience with waste machinery, including compactorss and balers and held trades certificates. His experience stretched over 20 years. He regarded safety as part and parcel of the job and always made sure that the employees he supervised understood how machines worked, how to handle the machinery and process them safely. This was common sense. Formal safety training had only come to him more recently. He spoke of his induction in 1989 with Pacific Waste Management and having toolbox talks and some basic training but did not have any safety instructions. In 1996 a new safety manager had been appointed and Mr Livingstone attended some presentations but they were mainly directed to the statutory scheme.

46 On transferring to SITA in 1999, he could not recall any induction, site training or safety training. The safety manager had also transferred and continued to give presentations that he attended. He also attended an external seminar for managers and supervisors. There was no dedicated safety person at Camellia site when it became operational in 2005 but safety personnel visited from other sites. In the first year they began talking about risk assessments, emphasising the need for paperwork - a new safety policy was put in place in 2006. Mr Livingstone read the safety policy and familiarised himself with its terms. Organising safety training for employees and contractors was not part of his role. It was the role of another person. He looked after technical aspects of the plant although he would instruct personnel on safety features but would not conduct formal safety training sessions. He continued to attend internal presentations and attended two or three external seminars between 2005 and 2009.

47 In 2006 SITA became more serious about risk assessments and JSEAs were introduced. Mr Livingstone regarded them as a form-filling system and it was not explained to him that it had any other purpose. He did not know it was a document to be used as a blueprint for identifying risks and creating a system to address those risks. He did not receive specific training on the steps he was required to take when introducing new employees to the site or training in isolation procedures. He simply filled out the forms and submitted them. No one told him that it was wrong but he now knew how the JSEA and the permit system should inter-relate. He regarded the JSEA created for the CROP system as a very basic document, not containing enough detail and without any inter-relationship to the allocation of tasks or the directions to be given in relation to each task. Before the accident, between 2002 and April 2009, Mr Livingstone had attended 11 courses and identified the nature of those courses. After the accident, between June 2009 and January 2012, he had attended over 70 identified courses.

48 He now understood the need for more rigorous risk assessments and he used paperwork to give shape to each and every step in a particular task. He spoke about his approach to the permit system and acknowledged that, if such a system had been in place at the time of the accident, he would have been aware that Mr Bushell intended to weld the plate on the hopper and a risk assessment would have been performed. This would have resulted in the baler being tagged out. The most important consequence of the accident was that he no longer trusted anyone. He did not accept that employees or contractors would use commonsense or would utilise their experience and expertise. This applied to people he had known and worked with for many years. He gave examples of that sentiment and its results. His approach to safety had been coloured by this distrust and his ever-present worry that employees and contractors could not be given much latitude in how they carried out their work.

49 It was pointed out by Mr Livingstone that, prior to and since this incident, he had never been prosecuted or come to attention for any safety matter. He had fully co-operated and assisted the WorkCover investigation. He participated in an interview with WorkCover that covered five "exhaustive days" yet co-operated in every respect.

50 Mr Livingstone then spoke of the impact the incident had on his personal life. He was much troubled by the terrible injuries he saw that Mr Bushell had suffered and described it as one of the worst things he had ever experienced in his life. He continued to experience vivid and disturbing memories of the accident and it caused him significant stress. Since the accident he continue to replay in his mind the events leading up to and following the accident. He analysed and assessed the logic and appropriateness of his actions and questioned himself. He wondered if there was anything more he could have done once he became aware that Mr Bushell was trapped in the baler and those thoughts played on his mind on a daily basis. He woke up at night and these images came to him immediately: it also happened when he was simply sitting and having a cup of tea. He found himself continually working through the sequence trying to understand what happened. He had only spoken to his wife and children about the accident on one or two occasions. Although they knew about Mr Bushell's injuries, he did not want them to have to deal with the horrible images that he was dealing with in his head.

51 Mr Livingstone said that he had become withdrawn and did not want to talk about the accident and he did not like talking about the prosecution. He was "very stressed and overwhelmed." He was concerned that his stress would have a detrimental effect on his wife and three children and was also afraid that his stress was apparent to his family. Because of that he did not speak about the accident or explain why, at times, he appeared upset and worried. In balancing this experience and trying to appear strong and composed for his family's sake, nevertheless, it made him feel tense and stressed. The lack of trust he now exhibited at work had moved to his personal life. Although a counsellor was on site after the accident, he did not have time to see the counsellor that day. Some days later he spent one hour talking to the counsellors but he felt very uncomfortable: he said he was not the type of man who could talk about his emotions and he did not think that talking about it was going to make anything better. He had seen Associate Professor Gilandas. He said having to go through the accident all over again was "awful" - he felt saddened and sick about the accident. He did not believe that counselling would help him.

52 Mr Livingstone recognised his culpability in respect of the terrible accident involving Mr Bushell. He had attended many safety courses and had created flow-charts on how procedures and particular plant had been undertaken in the past so as to help in completing JSEAs in relation to any new maintenance. He once applied a hands-on approach to his management style but he now ensured that a large proportion of his working day was in the office completing paperwork and ensuring that safe working methods and risk assessments were completed for every task. He had become much more cautious in relying on employer's capabilities and experience. His was constantly seeking re-assurance from employees that they had completed risk assessments and were aware of their obligations and responsibilities prior to commencing a task. He could not erase from his memory or change the outcome of the accident and the only way he was able to move forward was by ensuring that he was doing all he could to follow and fully understand the systems that were in place and to apply practical knowledge to ensure that risk was eliminated.

53 The emotional and financial impact of the prosecution was significant. Mr Livingstone said changes to his personal behaviour had been hard on his wife and family and he was concerned about the possible financial consequences caused by the considerable stress having regard to his age and the financial obligations he had for his wife and children. He and his wife were quite distressed at the uncertainty in their lives, both financially and legally. It was difficult to plan finances with the legal proceedings outstanding. He had always worked hard and tried to do his best for his employees and his family and had always respected and tried to be helpful to those around him. He found it extremely difficult to understand how doing those things had led him to being found guilty of these charges.

54 When Mr Livingstone moved to the Camellia site he had a clean record without any investigations or safety complaints and as he saw it, he continued to be careful and vigilant about safety matters. He had never been involved in any work related accidents involving the type of injury suffered by Mr Bushell and he was absolutely shocked by the incident. He expressed his deep remorse in relation to the tragic accident. He said he had always had a genuine commitment to the safety of his colleagues and all people on sites at which he worked. He acknowledged and accepted his culpability arising from the circumstances which created the risk to health and safety and which were manifested in the accident and the injuries suffered by Mr Bushell. Accordingly, he pleaded guilty at the earliest opportunity after having had the opportunity to consider the technical and expert evidence in the brief and being provided with legal advice. Mr Livingstone was not required for cross-examination.

55 Attached to Mr Livingstone's affidavit was a report prepared by Associate Professor Alex Gilandas Ph.D, Clinical Psychologist. He had examined Mr Livingstone in late March 2012. The current symptoms described by Mr Livingstone were as follows:

Sleep disturbance; takes longer to fall asleep and wakes up thinking about the traumatic incident.

Pre-occupied with the issue of responsibility and imprinted with the details of getting the injured man out of the machine.

Unhappy and has daily preoccupation with the incident, as he remains working in the same environment.

He is now more anxious about the ability of employees to do things in the required manner. That is, he has lost trust in the abilities of others.

Lowered frustration tolerance and less patience with others.

He avoids using new trades people, as he does not trust them. He is even less trusting with employees he has supervised for 15 years. He no longer trusts the prevailing work culture, as he realises no matter how safety-conscious you are, there is always more that can be done. He has been in the trade for 37 years. He has never seen perfect adherence to all technical aspects of safety in any work site. He believes the apprenticeship training in previous times was more rigorous and emphasised personal responsibility regarding professionalism and safety. Consequently, he now has a heightened fear of working with recently graduated TAFE trade students and avoids employing them if possible. He experiences the safety system as not working, because it is driven by bureaucracy and safety factors, and personnel responsibility is not provided in training of a tradesman's early development. He believes that even if he complied with all the paperwork as listed, this would not have guaranteed the avoidance of this accident. He emphasises that, it is not realistically possible in industry, for a supervisor to stand beside a worker throughout the duration of a job assignment.

He experiences a deep feeling of remorse and regret that the accident occurred, which was the extreme of trauma.

Socially isolates himself and avoids going out. He represses his emotions and refuses to discuss the incident with his wife and their adult children. Consequently, he is seen as being more remote from his family. Thus they are secondary victims.

Loss of appetite and avoids breakfast.

Generalised fatigue - the incident has been a daily drain on his life for the past three years.

Fear for the future. If he has a criminal conviction recorded his career would be in jeopardy and he and his family would be financially ruined.

56 In relation to a psychological assessment it was stated that it was difficult to obtain graphic details of the accident as Mr Livingstone used repression as a defence mechanism in order to cope. The psychometric tests documented that he was severely traumatised by exposure to the accident. The psychometric assessment indicated that he fell within the severe range of depression and within the moderate range for anxiety. He fell within the severe range for combined depression and anxiety together with psychosomatic symptoms. There was evidence of some post-traumatic stress disorder symptomatology, however, he did not meet the technical criteria for PSD as he was not physically injured. He had difficulty meeting his emotional needs following the accident. His level of emotion resilience had deteriorated and Mr Livingstone attributed it to the three years of stress of being pre-occupied with the consequence of the accident. He fell within the moderate degree range of psychiatric dysfunction. Mr Livingstone's adjustment disorder with mixed anxiety and depressed mood and other problems were all directed to exposure to the accident on 11 June 2009 and the following three years of stress from the consequences emanating from the accident. In concluding the report it was recommended that Mr Livingstone be treated therapeutically rather than punitively. The tragic accident was a situation specific "one off" incident, unlikely to be repeated. The prognosis was poor. It was stated that he would never forget the trauma of the incident as it was indelibly imprinted into his brain. He would never be able to work in a supervisory role again as he could not trust tradesmen to behave with regard to their safety. In relation to the impact of any criminal conviction upon Mr Livingstone, the following was stated:

The impact of any criminal conviction would be devastating. Mr Livingstone does not have criminal personality traits. A criminal conviction would magnify his symptomatology to that of a Major Depressive Disorder and jeopardise his capacity to earn a living. His family would then be secondary victims.

Dr Gilandas was not required for cross-examination.

57 The evidence for Edmen was tendered through Ms Dallas Cooper by way of affidavit. She was employed by Edmen as a health safety and quality manager for both Edmen and Edmen Recruitment. Ms Cooper provided a work history that included periods in workers compensation and working as a workplace assessor before holding positions with Edmen, including that of the occupational health and safety co-ordinator. She became the health safety and quality manager in approximately November 2006. She held certificates in occupational health and safety and assessment and workplace training as well as an occupational health and safety auditor's qualification. She was a member of the Safety Institute of Australia and held a degree in Exercise Science and Rehabilitation from Wollongong University. She had completed a number of WorkCover approved courses regarding health and safety involving safety consultation and risk management for supervisors and line managers as well as construction induction.

58 Edmen Pty Ltd employed various internal administrative and management staff such as managers, human resources specialists and consultants and they provided services in relation to on-hire workers employed by Edmen Recruitment. Edmen Recruitment operated a labour hire/recruitment business specialising in manufacturing and industrial sectors. All administrative and management functions in relation to the defendant, Edmen Recruitment, were met by staff employed by Edmen Pty Ltd. The defendant company, Edmen Recruitment, commenced in approximately 1990 supplying blue-collar workers to the steel industry in the Illawarra but had grown to the point where it supplied a variety of industrial staff throughout the Illawarra, north and into Greater Sydney. The on-hire staff supplied by the defendant company fell into one of two categories, being either industrial or commercial. Ms Cooper identified nearly 20 classes of industrial staff that the defendant supplied, including boilermakers, electricians, fitters, plant operators, welders and riggers. The commercial staff supplied by the defendant included secretarial services, accounts clerks, customer service clerks, payroll personnel and accountants. At the time of the accident in 2009 the defendant company employed on average approximately 250 on-hire workers each day although that varied from day-to-day based on client demand.

59 On the day of the accident the defendant company had four people working at the Camellia site for SITA. There were two general labourers, a person working in the office and Mr Bushell who was supplied as a welder. The defendant company currently had over 1900 employees on its database and currently employed between 100 and 300 people per day, depending on client demand. The number employed each day reached between 100 and 300 people. Approximately 10 per cent of employees were in "permanent type work." Ms Cooper gave details as to client flow and the different trends in the placement of employees. Despite its apparent size, as at June 2009, Ms Cooper rated the defendant company as being "at the smaller end of the scale of labour hire suppliers." The defendant company had sought to distinguish itself in respect of health and safety and had sought to be a leader in the industry in terms of keeping their employees safe. It had the distinction of being accredited by both BHP Billiton and Bluescope Steel to conduct for all Edmen workers placed with those companies their client and site specific inductions in accordance with the client companies' requirements.

60 In relation to the accident, Ms Cooper pointed out that the defendant company was not permitted to attend the site to conduct its own investigation until almost a week after the incident. The defendant was only to speak to its own employees concerning the accident and had not been supplied with details of any investigation conducted by SITA. The accident involved the baling machine that had been introduced to the site sometime after she had conducted a pre-placement inspection and assessment of the site. It was pointed out that, on the understanding that the accident occurred as a result of power being connected to parts of the baling machine, Ms Cooper would not be aware when the power was connected and even if she had carried out an inspection of the baling machine on the morning prior to the incident, she would have relied upon Mr Livingstone as to the state of power and the safe procedure for the job. It was understood that Mr Livingstone understood that the power was not connected and further that he did not know what work was being performed by Mr Bushell on that morning and so any inspection that she would have conducted would have relied upon those understandings of Mr Livingstone.

61 It was understood that Mr Bushell had attempted to isolate the machine and that was expected of him given his experience. His actions were ineffective because the machine could be started from a different area to where Mr Bushell was working or because he did not isolate the correct parts of the machine in the area in which he was working. In either case Mr Bushell was not provided with adequate information in terms of systems instruction to allow him to safely perform the work he was doing. The defendant company was not informed, before or during the time that Mr Bushell was engaged at the site, of the addition of the baling machine or the development of parts of that site to accommodate the CROP system. As a result the defendant company was not afforded an opportunity to consider whether the introduction of that equipment or changes to the site were such as to require a re-inspection and re-assessment of the site before this accident. There was nothing in the process of employing Mr Bushell that alerted the defendant company to the possibility that the role he was to fill at SITA was such that a re-inspection and re-assessment of the site may be required.

62 Ms Cooper pointed out that the circumstances surrounding Mr Bushell's employment by the defendant company were unusual and not in the ordinary course of the way in which the business operated. Workers were supplied who held specific qualifications or skills and clients contacted the defendant company, nominating what skills or qualifications were required. When a person was being considered for that role there would be a discussion about the client's business and the details of what was required for the position. This information was usually obtained over the telephone or in person when a candidate appeared to hold suitable qualifications. Mr Bushell, however, was referred by SITA Camellia as the person they wanted to engage in a role and so a consultant did not go through the specific tasks that were sought by SITA. Mr Bushell had already met Mr Livingstone had been shown around the site and told the requirements of the position he was required to fill and that had been explained to him before he was introduced to Edmen Recruitment.

63 The details of the job that Mr Bushell was to perform for SITA, as supplied by SITA, was that of a welder to perform welding and general labouring duties while working on a waste plant. There were some ongoing repairs and maintenance required on plant and equipment and it was described as physical type work with some manual handling and working in a smelly environment. There would be a requirement to work outdoors. Standard PPE, long sleeves and long trousers were required and the person would be casual for a few months until SITA employed him on a permanent basis. At the initial interview with Edmen, Mr Bushell said nothing that caused them to query the job statement supplied by SITA. The potential to re-inspect or re-assess the site before supplying Mr Bushell was therefore not identified at the time of engagement. The defendant company did not ascertain what particular plant and equipment Mr Bushell was to work on or what modifications to the plant or equipment were to be made because the company had been advised that Mr Bushell would be performing welding and general labouring duties and a general site inspection and assessment had been conducted covering such duties. The defendant company was not made aware that Mr Bushell would be required to assist with the installation and commissioning of the CROP system.

64 Ms Cooper pointed out that, even if the defendant company had been alerted of the need for a re-assessment of the work, the company would have relied upon Mr Livingstone but apparently Mr Livingstone was unaware that the baler could operate. As an example of its approach to safety, Ms Cooper drew attention to the fact that Edmen had previously removed all employees from a site where the client had failed to inform them that they were conducting development on the site and installing a new line. At that time the company was regularly supplying between 120 and 140 workers at the site. In the process of removing Edmen personnel from the site, Ms Cooper and another person from the company attended the site daily for a few hours with the day and night shift to monitor the site, conduct toolbox talks, provide directions to their employees regarding appropriate PPE and if necessary, prohibit certain work or methods of work from being performed by Edmen employees. The company had also employed a safety supervisor who worked a shift straddling a day and night shift so that he was available for workers rostered on either of those shifts. This continued until the company was able to gradually move all employees from the site. Even though it was a lucrative contract on an ongoing basis, the defendant company was determined they would no longer supply employees to that client.

65 Ms Cooper related the various steps taken by Mr Bushell to satisfy himself that the baler was isolated. When that was achieved he attached his danger tag. He had not, however, advised Edmen of any concern about SITA during his placement. There were a number of ways in which he could have done so. Mr Bushell had contact details with the defendant company. A representative of Edmen did not speak to Mr Bushell during regular visits to the site but that person was able to monitor Mr Bushell's progress by speaking to Stacey Johnstone who had been the sole contact point for the company with SITA at that site. Ms Johnstone was understood to be responsible for safety on the site and it was understood that there was regular contact with safety representatives of SITA.

66 The terms of the contractual arrangements between Edmen and host clients was set out in some detail by Ms Cooper. The host client was to provide a safe working environment with all information, instruction, training, protective equipment and supervision as necessary. Edmen staff were not to work in an unsafe manner and at the commencement of an assignment, the host had to meet with Edmen staff, familiarise themselves with the nature of the job, carry out introductions to the relevant staff, provide specific site inductions, ensure that all necessary equipment required for the work was available and provided to the Edmen staff. There was to be no work commenced until those requirements were met. Edmen staff would perform all duties required under the work assignment but under the direction and supervision of the host client. Any amendments to the work or location was only to be undertaken after Edmen had been consulted and Edmen had undertaken a risk assessment of the changes and agreed to such changes. When amendments to the work or location were agreed upon, the host client was to ensure that no work was to be carried out by the Edmen staff unless that staff had received from the host client all information, instruction, training, protective equipment, necessary supervision and induction to enable the work to be performed in a safe manner and without risk to health. Edmen staff were permitted to suspend the work if the environment was unsafe: the determination of whether the work was unsafe was to be in the reasonable and sole discretion of Edmen. If not properly rectified, Edmen would be entitled to terminate the assignment. The host client was to comply with relevant State and Commonwealth safety laws.

67 When Mr Bushell was engaged for the SITA work, Edmen had an established safety management system and safety governance system. Ms Cooper identified 18 features of the documented policies and procedures. There were monthly operation meetings held where safety was the first item on the agenda. All aspects of safety were to be discussed that were relevant to the placement and supervision of on-hire workers. The consultants did not receive commission but were paid a salary and there was no incentive based on whether a worker was placed with a client or the number of hours worked by the worker.

68 In accordance with Edmen's procedure and practice, Ms Cooper inspected the Camellia site and assessed it in mid-August 2008. She was shown around the whole site by Stacey Johnstone of SITA. Ms Johnstone was the company's chief point of contact with SITA and had been involved in all meetings regarding the supply of on-hire workers. It was understood that Ms Johnstone would be able to provide information about safety measures and systems in place at the site and that she was also the person who would provide the induction to new workers. This inspection took approximately one hour. If the defendant company had been informed that Mr Bushell was required to work primarily on the erection of the CROP system involving the modification and commissioning of plant newly introduced to the site, the defendant would have sought an opportunity to make enquiries and to decide on information provided whether re-inspection or re-assessment was required. Ms Cooper stated that if she were in this situation again she would have been reliant upon assistance from someone from SITA. Even if this process had been followed, Ms Cooper was of the view that she would have relied upon Mr Livingstone's expertise and the specific risk that led to Mr Bushell's accident would not have been considered.

69 The details of the inspection carried out at the site by Ms Cooper were provided and it was noted that a tag out system was used at the site as part of the isolation procedure. Ms Cooper was also informed that JSEAs were completed for every job and that was noted. Ms Cooper was also shown a number of documents in support of the policies and procedures that were applied by SITA at the site. A number of those policies were provided to her. After completing the inspection, a checklist was completed: the purpose and details of that process was explained.

70 Ms Cooper dealt with the steps taken by Edmen after inspection and assessment. She had satisfied herself that the SITA site had appropriate safety systems allowing the placement of staff. There was to be no re-inspection of the site for a period of 12 months and the accident involving Mr Bushell occurred just shortly before that re-inspection was to take place. Details were also provided of the employee registration and induction process carried out by Edmen. Mr Bushell's qualifications were such that Edmen would have readily accepted him on a direct approach rather than coming through the introduction of SITA. There were no concerns about Mr Bushell's safety qualifications. The Edmen safety handbook was provided as a matter of course and each employer was required to satisfy a competency based assessment arising from information contained within the handbook.

71 Mr Bushell's induction and assessment test resulted in a score of 34 out of 35 thus placing him in the competent category. The internal induction was not intended to replace the site-specific induction that was also required for all workers. Amongst the documents Edmen provided to Mr Bushell was an instruction to him that if he was unsure of being unable to safely undertake a task, he was to stop and ask his immediate supervisor or make arrangements to obtain permission to contact Edmen. He was not to perform the activity if he felt it was unsafe or posed a risk to himself or others. He was to advise Edmen of any changes in his duties, use of plant or equipment or work location. In addition, Edmen operated a 24-hour, 7-day per week call support service and each employee was given a contact number. The number rang directly to a member of the safety team and workers were able to contact Ms Cooper or other members of the safety team either through consultants or the switchboard.

72 Ms Cooper explained the number of safety initiatives undertaken by the defendant company in the 18 months prior to the incident. These initiatives led to the defendant receiving a maximum percentage discount on its insurance premium. The defendant's workers' compensation insurer also sponsored part of the safety initiatives with a safety bonus of $7500. Edmen continued to receive the maximum percentage discount from the workers' compensation insurer.

73 Following the accident the defendant company supported Mr Bushell and his family as well as the other Edmen workers on the site through providing counselling and other assistance. It was decided that no further recruitment staff would be supplied to the Camellia site and that remains the position at the time Ms Cooper gave evidence. Edmen reviewed its policies and procedures regarding safety and made a number of improvements to its safety management system and procedures in relation to the supply and management of on-hire workers. Ms Cooper further explained those changes. The recruitment team now met daily as well as monthly and safety was the first item discussed.

74 Additional training for consultants had been provided regarding registering job orders, inspecting client's sites, inducting applicants and managing and monitoring the performance of on-hire workers. Consultants must pass a competency-based assessment before they were able to perform client site inspections. A copy of the position description for consultants was in evidence. The consultants were now required to ensure that a specified number of monthly contacts were maintained with employees, including a minimum number of site visits. The contacts were to be recorded on a safety observation checklist that required particular issues including, safety and fatigue to be discussed. Various documents were in evidence in relation to these systems, including the use of monthly audits, updating the safety policy, holding at least fortnightly in-house safety meetings, adding to the existing alternate internal audit regime a governance system ordinance, a job order audit and a fatigue management audit. Edmen now conducted quarterly internal audits in respect of its own quality systems.

75 A new computer database system known as the "Voyager" was introduced at a cost of in excess of $100,000. This system had been enhanced to allow improved monitoring and tracking of all clients and employee information. That system was further explained in relation to its operations. A number of other steps were also dealt with in Ms Cooper's evidence. In addition, Edmen was accredited now as a quality endorsed company under Australian Standards applying international standards concerning quality management. The steps required to gain that accreditation were explained.

76 Following the accident, Ms Cooper had kept in regular contact with Mr Bushell's sister. Ms Cooper, together with the manager of Edmen and the Chief Executive Officer, visited Mr Bushell in hospital in late July 2009 and later the managing director, safety manager and others also visited Mr Bushell. Assistance and support was provided during his time in hospital: this included counselling, provision of a laptop computer and internet access and later, an IPad together with a signed West Tigers jersey as it was understood that Mr Bushell was a fan of that club. Counselling was available for Mr Bushell's family. The company intervened with its insurer on Mr Bushell's behalf to ensure that his needs were addressed quickly.

77 On his discharge from hospital Edmen, through its staff, formed an ongoing relationship with Mr Bushell and he kept them up-to-date with his surgical procedures and the rate of his recovery. His progress was regularly discussed at meetings and they had received home movies from Mr Bushell demonstrating his progress. After the accident Mr Bushell received a number of visits, telephone calls and text messages from staff. There was regular attendance by the manager of the defendant who had also taken Mr Bushell fishing. There were visits to Mr Bushell's home and he had also visited head office on a number of occasions.

78 Mr Bushell was still employed by the defendant company and paid weekly. The defendant's insurer reimbursed those weekly payments. Since the accident, Mr Bushell had found work as a public speaker, something that the manager of Edmen had suggested. Mr Bushell shared his experience and emphasised to other workers the importance of safety in the work place. To date those public speaking engagements had been arranged through Edmen and a number of speeches had been delivered to its clients, including large operators. Mr Bushell also spoke at the Safety Institute of Australia's annual conference in October, 2011. There were other speaking engagements being considered. Ms Cooper spoke of Edmen being very proud and supportive of Mr Bushell and his determination to return to work and to help others to stay safe at work. Edmen arranged for Mr Bushell's speaking engagements and deducted taxation and superannuation from the speaker's fee and the balance was paid to Mr Bushell: Edmen did not receive any share of the fees paid nor any compensation for its expenses in administering these engagements.

79 In relation to its own workforce Ms Cooper spoke of providing counselling to other workers at the SITA site and negotiating with SITA about time off work taken by one particular employee. More generally, the company was said to invest in its workforce by providing opportunities to pursue or benefit from traineeships, certificate training programmes, University or TAFE scholarships, career management, regular communications/feedback and lifestyle benefits and individually tailored assessments. There was an employee benefit programme to reward employees for their efforts and various benefits were identified in the evidence.

80 Edmen had participated in and contributed to the industry and the local community. It maintained a number of professional affiliations and sponsored or made donations to a very large number of entities. The defendant company also had a volunteering programme to encourage its staff to volunteer in their local community. Both Edmen Pty Ltd and the defendant company had been honoured at the Illawarra Business Awards a number of times and some examples were provided to the Court.

81 Edmen had co-operated at all times with the WorkCover Authority during its investigation of the accident. Ms Cooper was authorised and directed by the managing director and the Chief Executive officer to express the defendant company's sincere personal and corporate regret and remorse for the injuries suffered by Mr Bushell, the impact of his injuries on Mr Bushell and his family and for the breach of the Act. The defendant accepted that it failed as particularised in the charge and also accepted its responsibility for the incident and the consequences of the accident for Mr Bushell. The incident was said to have sincerely and deeply affected a number of people in the organisation and had reinforced the fact that the defendant must be continually vigilant with regard to health and safety.

DELIBERATION

82 The prosecutor submitted that the gravamen of the charge was "an utter and complete breakdown or overwhelming breakdown of the requirement to isolate a piece of machinery" and that ultimately had catastrophic consequences. It was necessary to treat each charge with care, as there were differences between each matter and in particular, in relation to Mr Livingstone the charge was brought under s 20 of the Act (requiring an employee to "take reasonable care of health and safety of people at the employee's place of work who may be affected by the employee's acts or omissions at work"). Notwithstanding these differences, the prosecutor's approach was that the culpability of each of the defendants was, nevertheless, broadly equal. In each case the offence was objectively serious. The consequences were "drastic and catastrophic" in circumstances where there were known and existing procedures in operation demonstrating a knowledge of the risk. The maximum fines for the corporate defendants was $550,000 and in relation to Mr Livingstone, the maximum fine was $3300.

83 Senior counsel for SITA agreed with the prosecutor's submission that the gravamen of the offence was the failure to isolate the baler while Mr Bushell was undertaking work on it. It was further agreed that SITA had procedures in operation that served to identify the risk related to the operation of the baler and in that context it was accepted that the risk was foreseeable. Although SITA had an appropriate system of isolation, it was ineffective in this instance and therefore Mr Bushell was exposed to the risk identified.

84 It was also accepted by senior counsel for SITA that its offence was objectively serious. That concession was placed in the context of SITA having a procedure in place for isolating machinery and a failure to adhere to that policy. There were a number of surrounding circumstances that were relevant: the baler had not yet been commissioned and therefore was not in general operation or continuous operation affecting employees who may work in the vicinity; Mr Bushell's specialised task of welding placed him at the top of the hopper and no one else was likely to be in that position and able to fall into the hopper; and, the particulars to which the plea was entered largely overlapped and ultimately identified the gravamen of the offence as described by the prosecutor.

85 Counsel for Mr Livingstone pointed out that SITA had accepted that there was a complete overlap between the particulars charged against the company and Mr Livingstone. SITA had ultimate responsibility for safety at the site and therefore the company had a higher level of culpability than Mr Livingstone. Although the objective seriousness of the breach committed by Mr Livingstone was not dealt with in terms, it would appear that it was implicit from submissions that the breach was serious and that SITA bore the real responsibility for the circumstances that led to this risk arising with its horrific consequences. It was submitted that Mr Livingstone's failures would be assessed in "the lowest order." That assessment was said to be appropriate having regard to the surrounding facts: Mr Livingstone did not have operational control of the plant or the site; he had never been instructed that he was to be responsible for ensuring safety training of employees and contractors; his job as site manager had evolved without any clear definition of his responsibilities and was merely added to his initial role as equipment manager; in fact, he reported on a daily basis to Mr Leach who was the Sydney manager; and, there was a structural failure of SITA's management and training that left him in an uninformed position and he was not trained to carry out the functions attached to the job in any meaningful way. The gravity of Mr Livingstone's offence had to be assessed by an analysis of his level of knowledge and understanding as to his roles and the duties and obligations that accompanied them. The issue of foreseeability had to be assessed in the context of what was supposed to be happening on that day: The risk was not obviously foreseeable in that CMS had guaranteed that the baler could not work, that it was not commissioned and there was no appreciation by Mr Livingstone that Mr Bushell was going to undertake the welding work on the day, let alone the way in which he performed that work.

86 Counsel for Edmen noted that the prosector had identified the gravamen of the offence as a complete breakdown in the requirement to isolate a piece of equipment. That description had to be placed in context: SITA and Mr Livingstone understood that the baler was isolated and would not operate. Nevertheless, Mr Bushell went through a process to attempt to isolate the baler, thus, trying to ensure that he was safe; having reached this position, Mr Livingstone attached a tag to the baler. These were peculiar circumstances leading to the risk on the day but the parties had turned their mind to the task of isolation and had a process for it. The failures of Edmen were more appropriately described as a lack of communication that failed to identify the work Mr Bushell was performing as opposed to the isolation process. Mr Bushell had been engaged on the initiative of SITA as a welder and Edmen had not been informed and did not know that he was working on the baler. This was a communication failure between SITA and Edmen.

87 In directly addressing the objective seriousness of the offence committed by Edmen, it was conceded that the injuries to Mr Bushell indicated that it was a serious risk. It was submitted, however, that the failures of Edmen did not fall into the most serious category of cases and were not gross failures. Edmen was trying to supply a safe workplace for employees but accepted that there were failures on their behalf which meant that this goal was not achieved. When the whole picture was looked at and consideration given to what was the understanding or what could or could not have been done about the circumstances and what would have been effective or not, it was submitted that the risk sat somewhere between the low and medium range of offence that come before the Court in this jurisdiction.

88 In considering the objective seriousness of the offence, it is appropriate to give attention to the nature and scope of the acts and omissions of each defendant noting that there was no evidence as to how the baler came into operation on the day of the accident. In this exercise it is to be noted that SITA operated the site and promulgated the safety measures that were to be taken at the site. I accept the submission for the prosecutor, in relation to SITA, that the gravamen of the offence was the breakdown of the requirement to isolate the baler having catastrophic consequences for a labour hire employee, Mr Bushell. While SITA had appropriate isolation procedures they were not enforced in relation to the work being carried out on the baler in circumstances where it was SITA's requirement that the baler be connected with the other machinery so that a break in operation would close down the entire plant which was effectively connected. Once SITA was informed by CMS that the baler had to be connected to the power it was then that the occasion arose for ensuring that the plant was, in fact, isolated and that the isolation process relating to the baler was made known to those who were to work in and around the baler, even up until the time of its commissioning. Disturbingly, SITA was on notice (as the result of an external audit) some nine months before the accident that this site had high safety related risks and hazards. Internal audits in September 2008 and March 2009 had also identified incidents where electrical equipment was not being tagged. The defendant was on notice that its procedure for isolation and tag out was not being adhered to. These deficiencies were exacerbated in relation to the introduction of the baler without informing Edmen of the work Mr Bushell would be required to perform under the CROP initiatives. No risk assessment was performed by SITA in relation to CROP and in particular, the installation and commissioning of the baler. The baler did not carry signage or markings to clearly identity isolation switches. Notwithstanding the context in which this offence arose, as submitted by its senior counsel, SITA's offence amounted to a serious breach of the Act.

89 In relation to Mr Livingstone, it is accepted that his offence is of a different nature: it is not an absolute liability offence but one involving the failure to take reasonable care for the health and safety of people at the employee's place of work and the penalty regime imposes a maximum fine of $3300. As already pointed out, the particulars of the charge to which Mr Livingstone entered his plea of guilty, allowing for the difference in statutory requirements, in substance, repeated the particulars ultimately pursued against SITA. Counsel for Mr Livingstone submitted that on the evidence it could not be concluded, firstly, that Mr Livingstone had "operational" control of the plant at this site and secondly, that Mr Livingstone had not given a direction to Mr Bushell to perform the welding work to cover the gap around the hopper nor could it be concluded that Mr Bushell had informed Mr Livingstone that he was installing the covering plate. These matters were submitted as going to the seriousness of the offence.

90 In relation to the first matter, Mr Livingstone's affidavit evidence describes a person with significant control over the plant both at a management and operational level. Having "operational" control did not require Mr Livingstone to personally perform all the functions associated with the plant and machinery at the site but his position as both equipment manager and site manager left him well placed to exercise operational control. While it can be accepted that the extent or limits of his authority were not spelt out in any document nor was he given any list of duties, the fact is that Mr Livingstone's actions spoke of a person with full authority at the site subject to the external direction of Mr Leach.

91 It is of significance that, in his affidavit evidence, Mr Livingstone said that he recognised that there was a risk of persons coming into contact with moving plant at the site and as a result he prepared a document that identified risk to others arising from the existing process. That document, he said, also dealt with operational issues relating to different waste types and how the process could be improved and then stated: "The purpose of this document was to identify operational risks." He used the document as an aide to identify risks arising from the process and to deal with any operational issues. It was sent to Mr Leach to indicate that Mr Livingstone had put some thought into the process. Indeed, Mr Livingstone's evidence about the leading role that he took in the upgrade programme as the site manager placed him clearly in a role of significant managerial and operational control of the site. Having regard to these matters, the first proposition cannot be accepted.

92 The second proposition is not as clear on the evidence. Mr Livingstone said that, early in his engagement, Mr Bushell was placed under a level of close supervision but once he had demonstrated his abilities that level of supervision was no longer necessary. Nevertheless, his evidence left the impression that Mr Bushell would not undertake any task until it had been discussed with Mr Livingstone and a plan of action arrived at after the discussion at which time, it appears, some form of direction would be then given to Mr Bushell to perform the task in accordance with the agreed plan. It is to be remembered that Mr Bushell was engaged as a welder. Once it had been established that he was competent in this area and that close supervision was no longer warranted, it appears to be something of an exaggeration to suggest that he was then subject to step-by-step direction by Mr Livingstone in everything he did. When the gap was discovered, Mr Livingstone clearly gave a direction that it would have to be fixed and did so in conversation with Mr Bushell. There was no evidence to suggest that the welding task itself was complex or raised any other safety issue bearing in mind that it was Mr Livingstone's understanding that the baler could not be operated prior to commissioning. In those circumstances the first part of the second proposition cannot be accepted. Whether or not Mr Bushell informed Mr Livingstone that he was going to install the plate is a difficult question to resolve. Both men have given different accounts. The Court is not in a position to determine one version over the other - their differing recollections may be a further example of communication difficulties at the site

93 The essence of the offence being a failure to isolate the baler while Mr Bushell was working on it leads to the conclusion, on all of the evidence, that Mr Livingstone's offence represents a serious breach of the Act. There was an isolation procedure involving a permit system and a tag out system. The Court accepts the prosecutor's submission that had SITA's isolation procedures been followed, this accident would not have occurred. It was part of Mr Livingstone's role to make sure that SITA's safety rules were followed: he was to be "pro-active" regarding safety and was required to be familiar with all the safety policies.

94 The circumstances of Edmen's breach arose in a different context to the offences committed by SITA and Mr Livingstone. In essence, Edmen failed to follow its own procedures so that it was abreast of the work that was being performed by its employee and the circumstances in which Mr Bushell was performing his duties as a welder. The risk assessment undertaken by Edmen was directed to general site safety and not to any particular work. At the time it was conducted the baler had not been brought to the site and there was no indication that Mr Bushell would be reqired to work on it. Although SITA and Mr Livingstone failed to inform Edmen of this change in Mr Bushell's duties, Edmen failed to make contact with Mr Bushell with sufficient regularity to keep abreast of the work he was performing and to undertake an inspection of that work when it did change. It is put on behalf of Edmen that, even if they had known about the change in his work and had attended the site, it is likely they would have accepted and relied upon Mr Livingstone's opinion (itself based upon what he was told by CMS) that the baling machine could not operate. On this hypothesis, it could not have escaped Edmen's attention, however, that either its isolation procedures or SITA's isolation procedures should be followed leading to a tag out that would have addressed the energy points that allowed the baler to operate. Having regard to the obligations of a labour hire firm placing its employees in a workplace isolated from its own centre of operation, the failures accepted in entering its guilty plea amount to a serious breach of the Act.

95 SITA accepted that the risk was foreseeable, albeit, in the somewhat unusual circumstances of this case. Mr Livingstone and Edmen, for different reasons already outlined, acknowledged a degree of foreseeability given the particular circumstances in which their offences were committed. The Court in relation to the issue of foreseeability accepts those submissions. On an overall analysis and having regard to the central position occupied by SITA in relation to this accident, the Court considers that the defendant bears the greatest culpability for the accident although Edmen's culpability and that of Mr Livingstone (for the reasons identified) bear a similar but lower level of culpability.

96 In all cases general deterrence will constitute a significant element in the consideration of an appropriate penalty. In relation to specific deterrence, all defendants have a clear record in relation to safety offences and have been operating with heavy equipment for a number of years. The particular circumstances drawn to attention by SITA and Edmen leads the Court to conclude that, although they remain engaged in heavy industry, specific deterrence will play a lesser role in assessing the appropriate penalty. In both cases these were somewhat unusual circumstances where the documented procedure was not followed. Both have taken steps to address those errors and omissions. Mr Livingstone falls into a different category. Following the accident involving Mr Bushell, his site management role was allocated to Mr Bayliss. There is nothing about his remaining role that suggests that he will have the same level of involvement in safety matters but rather will be subjected to direction by others and therefore it can be comfortably concluded that specific deterrence will have but a small influence upon any penalty imposed.

97 There are a number of subjective factors to be considered in relation to each defendant. In relation to SITA, there was an Amended Application for Order and in any event, a plea had been entered at an early stage. The defendant is to be given the full benefit of that early plea by way of a 25 per cent discount of the penalty ultimately to be imposed. In addition, SITA is a first offender and is entitled to the leniency that attends that status. The defendant has been involved in heavy industry for a considerable period of time at numerous sites and has employed or engaged a large number of people over that period. Having regard to those facts it cannot be concluded that their good safety record is merely a matter of chance and the evidence before the Court demonstrates that the company has established detailed safety systems in its workplaces. The defendant took numerous steps following this accident to address the risk evident from the occurrence of this serious workplace injury and in any event, had isolation procedures within its existing safety systems that if properly applied would have addressed the risks particularised. The defendant has fully co-operated with the WorkCover Authority during its investigation. Through the affidavit of Mr Dyster the defendant has clearly taken responsibility for its acts and omissions and their consequences and has demonstrated contrition. There is also evidence before the Court demonstrating that the defendant is a good corporate citizen, engaged with its workers and the communities where it operates its business and has been a significant financial contributor to many charitable and other worthwhile causes. These matters will all be taken into account in mitigation of the penalty to be imposed.

98 Edmen entered an early guilty plea and there was also an Amended Application for Order filed in Court at the beginning of the sentencing hearing. Edmen is a substantial employer supplying a range of people to heavy industry although some of those people are employed in administration or work that does not involve direct contact with heavy machinery or plant. The defendant has operated in this important field of labour hire with its inherent risks for a considerable period and its safety record is to be taken as an indication of its attention to safety. It had adopted processes that addressed safety and if followed in this particular circumstance, it is likely that proper isolation procedures would have been adopted for the task being undertaken by Mr Bushell. Being a first offender the defendant is entitled to the leniency provided in such circumstances. Edmen took a number of steps to address the acts and omissions exposed by this accident and fully co-operated with the WorkCover Authority investigation. The evidence of Ms Cooper demonstrates that the defendant has accepted responsibility for this offence and has shown its contrition. Those findings are supported by the continuing contact and care the defendant has taken in relation to Mr Bushell following this devastating accident. The defendant has continued to employ him and has supported him as he has re-focused on the work he can now perform and the valuable role he can play by public speaking engagements that draw attention to the need for safety in the workplace and the devastating injuries that may result even where there are comprehensive workplace rules in operation. The defendant has shown that it is a good corporate citizen and has contributed to a large number of charitable and other worthy causes. These circumstances will be taken into account in mitigation of the penalty to be ultimately imposed.

99 Mr Livingstone entered an early plea and he is to be given full recognition for that fact. He has spent a considerable period of his life working with heavy equipment and has not come to any adverse attention in relation to safety matters and is otherwise a first offender and entitled to leniency in the setting of an appropriate penalty. He co-operated fully with the WorkCover Authority investigation. References were provided that spoke well of Mr Livingstone, his integrity and his usual attention to safety. As earlier recorded, Mr Livingstone has taken many safety related courses since the accident and that conduct is indicative of his contrition. While recognising his culpability in respect of Mr Bushell's accident, nevertheless, he somewhat equivocally stated that while he had always worked hard and had done the best he could for his employer, his family, and has respected and tried to be helpful to those around him, he found it extremely difficult to understand how doing those things had led to him being found guilty of the charges. There are statements in his affidavit, however, that appear to indicate that he has taken responsibility for his role in this offence and is contrite. It may well be that his somewhat equivocal statement referred to above was not well expressed. Looking at the substance of these parts of his affidavit evidence and the submissions made by his counsel, the Court, ultimately, accepts that Mr Livingstone has taken responsibility for his part in the circumstances that led to Mr Bushell suffering horrific injuries and has shown his contrition in a number of ways.

100 After addressing the various issues that arose in relation to Mr Livingstone, his counsel made an application under s 10 of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Act") that the Court, without proceeding to conviction, dismiss the charge. In the alternative it was submitted that it was open for an order to be made under s 10(1)(b) whereby Mr Livingstone would be discharged without proceeding to a conviction upon entering into a good behaviour bond for a period not exceeding two years. In support of this application it was submitted that the relevant factors were Mr Livingstone's character and antecedents, his age and his physiological condition. He had been employed full-time for 37 years and was now 51 years old. He had no prior safety convictions nor had he come to any adverse notice for safety matters or any other matters in his life. He was a trusted person occupying a middle management position with SITA and it was submitted that this breach was completely out of character. It was relevant that he had been charged under s 20 as an employee rather than charged for the much more serious offence under s 8(2) by operation of s 26(1) as being a person concerned in the management of SITA. Particular attention was paid to the report of Dr Alex Gilandas.

101 The terms of Dr Gilandas' report have been set out earlier in this judgment as has the evidence of Mr Livingstone as to how he had been affected by his involvement in this accident and how his life and attitude had changed. Mr Livingstone mentioned how the prosecution had significant impact on him and his family both emotionally and financially. He and his wife were stressed about the uncertainty that lay ahead of them both financially and legally and spoke of the difficulty of planning their lives and finances in anticipation of these legal proceedings. At the conclusion of the submission regarding the s 10 applicant, it was clarified that he remained employed by SITA: it was submitted that employment might be in jeopardy if his psychiatric condition transmogrified into a major depressive disorder that may render him incapable of maintaining his employment. There was no evidence that, apart from such a disabling condition, Mr Livingstone would be dismissed from his employment with SITA following the conclusion of these proceedings. Indeed, he has continued in his employment since the accident in June 2009. As to his present financial position arising from these proceedings, the maximum fine is $3,300 and no evidence has been called to suggest that Mr Livingstone, an occupant of a middle-management position with SITA, would be unable to pay a substantial fine within that range. Further, it was clarified by his counsel that his legal costs for these proceedings would be met by SITA and although there was no arrangement for the payment of any penalty it is an open inference that he may well receive assistance in that direction from his employer. The immediate financial burdens of the proceedings, therefore, are of little moment in relation to the application made under s 10 of the Sentencing Act.

102 As earlier discussed, the offence to which Mr Livingstone has pleaded guilty, being brought pursuant to provisions of s 20 of the Act, is not an absolute liability provision such as s 8(1). The Court of Criminal Appeal in Lavorato v R [2012] NSWCCA 61 held that the fact that an offence is a strict liability statutory offence does not preclude an applicant being given the benefit of a s 10 dismissal. The position is a fortiori it in relation to a provision such as s 20.

103 It might be immediately stated (and it was not argued to the contrary) that the nature of the offence was not trivial. In a sense the context in which the offence arose might be said to amount to unusual but not "extenuating circumstances" in that Mr Livingstone was unaware of the full scope of his duties as site manager and accepted the advice of CMS that the baler could not operate at that time. Primarily, the submissions addressed Mr Livingstone's character, antecedents, age, health and mental condition.

104 Neither Mr Livingstone nor Dr Gilandas were required for cross-examination. The Court would have been assisted by hearing directly from Mr Livingstone as to his personal circumstances and the changes in his life and usual behaviour since being involved in close proximity with Mr Bushell during the time that he was trapped in the baler. It may well have been that a decision was made that such oral evidence would itself create unacceptable health risks for Mr Livingstone but there was no medical evidence to that effect. The Court may also have been assisted by some evidence from members of his family, particularly his wife, in regard to changes in his nature and the stresses placed on the family. The position of the Court was not assisted by some aspects of Dr Gilandas' report that travelled into the territory of advocacy for a person who, by the terms of the medical report, had only been seen once in March 2012.

105 Mr Livingstone's current symptoms are set out in [55]. They present a picture of a person physically and emotionally drained by his experience in helping retrieve Mr Bushell from the hopper and the horrific nature of the injuries that he witnessed firsthand. It is not surprising that the circumstances of the accident continually play on his mind, especially when he considers the role he played that led to the risk of injury arising. For the purposes of the s 10 application, Dr Gilandas' prognosis is particularly relevant. The prognosis is said to be poor and that Mr Livingstone will never forget the trauma of the accident and it is indelibly imprinted on his brain. It is said that he would never be able to work in a supervisory role again and he cannot trust how tradesmen behave with regard to their safety. Dr Gilandas then says that the impact of any criminal conviction would be devastating and would magnify his symptomatology to that of a major depressive disorder and jeopardise his capacity to earn a living. While Dr Gilandas does not explain how a conviction would have that effect, the totality of his evidence was not challenged nor was any other or different medical assessment put forward by the prosecutor suggesting a more rosy picture for Mr Livingstone.

106 The Court has found that this is a serious offence committed by Mr Livingstone. The granting of any application under s 10 of the Sentencing Act has been something of a rarity in this jurisdiction in relation to strict liability offences. In Thorneloe v Filipowski (2001) 53 NSWLR 60, Spigelman CJ, speaking in the Court of Criminal Appeal, stated that it was relevant to the exercise of the discretion pursuant to s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant could have done to avert the event that had occurred. Where there was a comparatively minor pollution by a first offender under the Marine Pollution Act 1987 and where it was difficult to identify any effective step which the offender could have done that did not require virtual perfection, those considerations were to be given weight by the sentencing judge. Importantly, his Honour also noted that s 10 of the Sentencing Act had a scope and purpose that extended beyond the elements of the offence of the relevant charge. The discretion conferred was wide-ranging and there was no warrant for treating, in a narrow way, the scope and range of matters that were "proper" for a sentencing judge to take into account.

107 Mr Livingstone's age and work history suggests that, at the age of 51, he is unlikely to progress beyond the "middle-management" position he now holds. In substance, he has been removed from a position of primary responsibility for safety and there must be a reasonable doubt that he will ever be placed in that type of position again, even if he feels that he could cope with the responsibility. Having regard to his overall record and his attention to matters of safety, there does not appear to be a realistic possibility that he will offend in this way again. He has now undertaken a wide variety of safety courses and by gaining that knowledge it is suggested that he will never again be put in a position where his attention to safety lapses and creates risks in the workplace.

108 It is not without significance that the prosecutor proceeded under s 20 rather than under s 8(2) pursuant to the provisions of s 26(1) of the Act. To say that does not enter into the field of prosecutorial discretion but is merely to state a fact. In this case the prosecutor has chosen a very much lower penalty range offence but nevertheless, the Court is required to deal with the offence on all the evidence. Having regard to his good prior record, his position as a first offender, his long working career involving heavy machinery and plant and the fact that he is entitled to a 25 per cent discount because of his early plea, it is likely that any fine imposed would be less than $1000. Nevertheless, this is a serious offence that was foreseeable and where the risk posed was capable of inflicting horrific injury and possibly death. In balancing those very significant competing considerations the Court is ultimately moved by Dr Gilandas' opinion that the imposition of a conviction would plunge Mr Livingstone into the realms of a major depressive disorder that would jeopardise his capacity to earn a living. It is apparent that Mr Livingstone has been traumatised in his personal life by his involvement in the incident that led to Mr Bushell receiving horrific injuries. Proceeding to a conviction resulting in a penalty of less than $1000, that gives full weight to all the aspects of the offence, strongly suggests that the potential harmful effect of the conviction brings about a situation where it is inexpedient to inflict any punishment other than nominal punishment on the defendant. Pursuant to s 10(1)(b), the Court, without proceeding to conviction, will therefore discharge Mr Livingstone on condition that he enter into a good behaviour bond for a period of 18 months.

109 A Victim's Impact Statement ("VIS") was prepared by Mr Bushell outling in detail the nature of his injuries and the continual difficulties under which he now leads his life. The extent of his injuries were also detailed in the Agreed Statement of Facts. By agreement of the parties the prosecutor read that VIS in relation to the matters of SITA and Edmen, with each defendant conceding that a conviction should be entered against them at the conclusion of the evidence. The Court adopted that course. In relation to Mr Livingstone, because there was an application under s 10 of the Sentencing Act, the VIS, by consent, was marked for identification with the Court to consider the matter if a conviction was to be entered. Accordingly, Mr Bushell's VIS has been read and taken into account by the Court in relation to the offences committed by SITA and Edmen.

110 It is to be noted that s 28 of the Sentencing Act in sub-section (1) states that, if it considers it appropriate to do so, the Court may receive and consider a VIS at any time after it convicts but before it sentences an offender. As already noted, s 10 of the Sentencing Act permits a court, without proceeding to conviction but after finding a person "guilty of an offence", to make an order that the relevant charge be dismissed or the person be discharged on conditions as specified. A possible difficulty was raised as to whether the Court, in the present case, could enter a "conviction" for the purposes of s 28 and receive the VIS in Mr Livingstone's case and whether "such a conviction" precluded an application under s 10 of the Sentencing Act because a conviction had already been entered.

111 It has been accepted that the word "conviction" is capable of a number of meanings and its true import will be determined by the statutory framework within which the word occurs. In Rail Infrastructure Corporation v Inspector Page (2008) 179 IR 398, the Full Court of the Industrial Court gave consideration as to whether a conviction had occurred for the purposes of an appeal where a finding of guilt had been made in contested proceedings and where the appeal was sought to proceed before sentencing. At [8], the Court noted that there was no ordinary meaning to be given to the word "conviction" and that it had been described as "uncertain, ambiguous" and only properly assessed by reference to the context in which it was used. The statutory context as a whole had to be considered in order to gauge its meaning. At [20], the Court observed that, traditionally, courts had ascribed two meanings to the word "conviction" - a determination of guilt either by way of a verdict, guilty by jury or by way of a plea of guilty. Other authorities had held that there could be no conviction until there had been a judgment or final disposition of a matter ordinarily by way of the imposition of a sentence. The precise meaning that may be attributed to the word would therefore depend entirely on the context in which it was used (Maxwell v The Queen (1996) 184 CLR 501 at 507 per Dawson and McHugh JJ).

112 The Full Court then went on to consider the situation where a plea of guilty was entered and how the provisions of s 556A/s 10 were able to operate. In this context the Court stated:

32In Griffiths v The Queen (1977) 137 CLR 293 the High Court considered s 5D of the Criminal Appeal Act which provides for an appeal against sentence. The appellant had pleaded guilty to offences in the District Court. The District Court judge accepted his plea and the appellant was remanded for sentence for 12 months on the condition that he enter into a good behaviour recognisance for that period. The High Court held that the appellant had not been sentenced within the meaning of s 5D and, therefore, the Court had no jurisdiction to hear the appeal.

33 Barwick CJ, in considering the issue, made a number of observations about the meaning of conviction and the relevance of s 556A of the Crimes Act 1900 (the predecessor to s 10 of the Crimes (Sentencing Procedure) Act 1999) within the context of conviction by courts exercising either summary or indictable jurisdiction (at 301 to 303):

It is apparent that, in the mechanical amendment of s. 556A so as to extend the powers formerly exercisable only by a magistrate to be exercisable by "any court", insufficient attention has been paid to the very different situation which obtains in the course of a hearing before a magistrate and the course of a trial, whether before a District Court or before the Central Criminal Court. The magistrate, having found guilt, may choose to resort to s. 556A, in which case he does not proceed to convict. But if he decides to convict, as a rule he does so expressly by appropriate words.

But the traditional position where there is a trial with a jury is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. That accords with long-standing practice in the courts of New South Wales where accused are tried with a jury, where no specific step is taken to convict, or direct the entry of a conviction after verdict. There is the possibility, though extremely rare, of a trial judge refusing to accept the jury's verdict at least on its first return. But, usually, that verdict is acted upon and no question of its non-acceptance arises. Thus, having received the verdict of the jury, the trial judge is in a position without taking any further step to sentence the accused.

However, the position where an accused has pleaded guilty is not so easily resolved. In this instance, quite clearly the trial judge has the ability to refuse to accept the plea. Consequently, it can scarcely be said that the making of such a plea is itself a conviction. As a rule, the trial judge's acceptance of such a plea is implicit in so far as he indicates, having heard the plea of guilty, that he will act upon it as, for example, by calling for the record from the gaol recorder or by some other act. Such acts indicate that he is proceeding on the footing that the accused is convicted.

Although it has not been the practice hitherto to do so, it seems to me that it would be prudent in the case where a plea of guilty is accepted, and no question of utilizing s. 556A is in contemplation, that the trial judge should expressly indicate that the accused is convicted: and to do so before proceeding to make any order in relation to that conviction.

This recital of the usual procedure at a trial by the Central Criminal Court or by the District Court in its criminal jurisdiction immediately highlights the difficulty of such courts using the powers given by s. 556A. But I am of opinion that the provisions of that section may be accommodated to that procedure by the following practice. It seems to me that a trial judge, who wishes to consider the exercise of the powers given by s. 556A where there is a verdict of the jury, should first direct that the verdict be recorded but that no conviction thereon be recorded until further order. The prisoner may then be remanded so that on the day to which he is remanded, the question of recording or not recording a conviction can be decided and a further order or a formal sentence pronounced, as the case may be. If, at that time, the judge decides to use the power given by s. 556A he should direct that no conviction upon the jury's verdict be recorded and then proceed to make his order under the section. This, of course, may seem anomalous in that it may well be said that, immediately on the return of the verdict, the conviction had occurred. Also the trial judge will not have decided at the time the verdict is returned what course he will take. But it seems to me that such a practice as I have outlined would satisfy the language of s. 556A as now amended for it can be said that the court has not proceeded to conviction. After all, it is for the court, and not for the jury, to convict the accused. Further, the suggested practice really does no substantial violence to traditional concepts notwithstanding consequences of the verdict.

34The foregoing passage suggests that an accused person is convicted when he or she has been found guilty by the jury, or when he or she pleads guilty and the judge has taken some steps which indicate an acceptance of that plea as establishing guilt: see also R v Stone per Hunt A-JA at [27]. We would add that we respectfully endorse Barwick CJ's suggested approach to s 556A of the Crimes Act 1900 (now substantially re-enacted by s 10 of the Crimes (Sentencing Procedure) Act) outlined by his Honour in the passage above. Given that approach it may be prudent for the trial judge in a prosecution under the Occupational Health and Safety Act, who finds a defendant guilty, and who may wish to consider the exercise of powers under s 10, to record a guilty finding but that no conviction be recorded until further order. Upon sentencing, the trial judge may then consider whether a conviction should be recorded or whether a power under s 10 should be exercised.

113 The approach put forward by Barwick CJ in Griffith v R was specifically adopted by the Court of Criminal Appeal in Regina v Reinsch [1978] 1 NSWLR 483. At the time of those decisions, of course, there was no provision for the prosecutor to read a VIS as now available by operation of s 28 of the Sentencing Act. It is relevant in this discussion to acknowledge that the common law has required sentencing Judges to have regard to the effect of the crime on the victim and to consider all the conduct of the offender such as damage, harm and loss occasioned to the victim (R v DeSimoni (1981) 140 CLR 383 at 389). Section 3A(g) of the Sentencing Act states that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community." In R v Thomas [2007] NSW CCA 269, Basten JA stated at [36]:

Although the Act does not provide how an impact statement is to be taken into account, it should be inferred that it is material upon which the sentencing judge can rely in determining the appropriate sentence. The relevance of that factor is expressly identified in s 21A(2) which identifies one aggravating factor as arising where "the injury, emotional harm, loss or damage caused by the offence was substantial": s 21A(2)(g). Indeed, as stated by Spigelman CJ in R v Henry at [94]:

There is no doubt that impact on victims is an aspect of the seriousness of an individual offence.

114 There is nothing in the Sentencing Act to indicate that the inclusion of s 28 was intended to preclude a court from considering a s 10 application. There appears to be nothing inconsistent with the objects of the Act if the court receives a VIS and then proceeds to grant a s 10 application having regard to the totality of the material properly before the court. It follows, therefore, that a finding of guilt by the court on a sentencing hearing with an express determination that no conviction is entered complies with the requirements of s 10 yet allows a VIS read consistently with the provisions of s 28, to be received and if necessary, considered by the court. In the present case where a different course was followed, the Court confirms the guilt of Mr Livingstone and without proceeding to a formal conviction, has taken into consideration the VIS.

ORDERS

115 (a)in relation to SITA Australia Pty Ltd:

(i)the defendant, SITA Australia Pty Ltd, is convicted of a breach of s 8(2) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 819 of 2011) to which the defendant entered a plea of guilty;

(ii)the defendant is fined the sum of $130,000 with half that amount to be paid to the prosecutor by way of moiety;

(iii)the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

(b)in relation to Edmen Recruitment Pty Ltd:

(i)the defendant, Edmen Recruitment Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 818 of 2011) to which the defendant entered a plea of guilty;

(ii)the defendant is fined the sum of $117,500 with half that amount to be paid to the prosecutor by way of moiety;

(iii)the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

(c)in relation to Christopher Andrew Livingstone:

(i)in relation to the charge against Christopher Andrew Livingstone under s 20(1) of the Occupational Health and Safety Act 2000 (as particularised in the Amended Application for Order in Matter IRC 820 of 2011) to which he entered a plea of guilty, the Court, without proceeding to conviction, discharges the defendant on condition that Christopher Andrew Livingstone enter into a good behaviour bond for a term of 18 months;

(ii)the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE

AGREED STATEMENT OF FACTS

1The Prosecutor, Inspector Cherie McGrath of the WorkCover Authority of New South Wales, is and was at all material times an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in these matters.

2The proceedings relate to an incident involving Mr Shane Joshua Bushell ("Mr Bushell") at the premises of, SITA Australia Pty Ltd ("SITA"), at Lot 9 Devon Street Camellia in the State of New South Wales ("the premises") on 11 June 2009 ("the incident").

BACKGROUND

Edmen Recruitment Pty Ltd

3At all material times Edmen Recruitment Pty Ltd ("Edmen"), was a labour hire company that employed persons as on-hire workers to work on a temporary basis in various industries in Sydney and the Illawarra. Edmen did not employ any administrative or supervisory staff.

6Edmen currently employs between 150 and 250 persons per day. It holds a workers compensation policy for more than 750 employees.

7At all material times:

(a)SITA was a client of Edmen;

(b)Edmen employed Mr Bushell as an on-hire welder to undertake work for SITA at the premises;

(c)Edmen also employed Mr Anthony Stockings to perform labouring work for SITA at the premises; and

(d)Edmen's sole director was Mr Edward John De Gabriele.

SITA Australia Pty Ltd

8At all material times, SITA:

(a)was owned by two international companies Suez Environnement (60%) and Sembcorp Environmental Department Pte Ltd (40%);

(b)operated in the resource recovery, recycling and waste management industries;

(c)had three Directors, two of whom were based in New South Wales; and

(d)operated 6 sites in metropolitan Sydney, including the premises, 7 sites in regional New South Wales and 1 site in the Australian Capital Territory. SITA also operated sites in Victoria, Queensland, South Australia and Western Australia.

9At the time of the incident SITA employed about 248 persons in NSW.

10The incident occurred in the building known as the "Transfer Station" which was located at the premises. The premises is known as the "Camellia Resource Recovery & Treatment Facility" ("SITA Camellia").

11In or about February 2005 SITA leased the land at Lot 9 Devon St, Camellia NSW 2142 from Shell Refining (Australia) Pty Ltd for three consecutive five-year terms ("the lease").

12In accordance with the lease SITA undertook building works including the construction of a waste recovery and treatment facility on the premises. These building works were subject to development applications, drawings and an Environmental Impact Statement submitted to Parramatta City Council and the Department of Infrastructure, Planning and Natural Resources. The building works were approved by Parramatta Council on 11 August 2004.

13SITA proposed to utilise the premises for the destruction and recycling of material such as rejected beverages, beers, spirits, shampoos, concentrates and quarantined goods. The material was to be processed through the Transfer Station and recycled through the product destruction unit at the premises. SITA proposed that the facility would process the following types of waste:

• Liquid sludges (quarantine and non-quarantine);
• Packaged non-hazardous liquid or solid product (beverage industry, dairy industry, food industry, customs etc);
• Commercial solid dry waste (excluding putrescibles) including food wastes, wastes high in cardboard, paper, plastics and alloy residues.

14SITA proposed that processing this waste would involve the establishment of four main processing units:

• Solid waste recovery hall (enclosed area);
• Liquid waste treatment and quarantine area (covered awning);
• Packaged goods storage (enclosed area) and recycling area (open

awning); and

• Boiler equipment shed (partially enclosed area).

15About 9 months prior to the incident, SITA Camellia was audited by SAI Global which produced a report dated 16 September 2008 stating that: 'In considering the activities within SITA Camellia, this is a site with potentially high Environmental and OHS related risks and hazards'. SITA Camellia did not qualify for 'OHS certification' in the September 2008 certification audit. In addition, incidents of electrical equipment not being tagged at the site had been identified in the course of OHS audits conducted by SAI Global on 16 September 2008 and 11 March 2009.

16On 18 December 2008 SAI Global issued SITA with a Certificate of Registration for the period 28 February 2008 to 27 February 2011.

17At the time of the incident the premises consisted of four buildings: the main office, the Product Destruction Unit or shed, the Transfer Station/Quarantine and the weighbridge office.

18Prior to the incident 15 SITA employees and five on-hire employees worked full time at the premises, including Mr Bushell.

Christopher Livingstone

19At all material times Mr Christopher Livingstone was employed by SITA.

20At the time of the incident, Mr Livingstone was employed as the SITA Camellia Site Manager and also as SITA's New South Wales Equipment and Development Manager.

21Mr Livingstone had been based at SITA Camellia for approximately 3 ½ to 4 years prior to the incident. He commenced in the role of Site Manager approximately 18 months prior to the incident.

22As Site Manager of SITA Camellia Mr Livingstone had responsibility for the operational control of the premises. The Depot Supervisor at SITA Camellia, Ms Stacey Johnstone ("Ms Johnstone"), controlled the administrative operation at the premises.

23At all material times Mr Livingstone had certain responsibilities for occupational health and safety at the premises, including the identification/management/assessment/control of safety risks and hazards in relation to the work performed by SITA employees, labour hire personnel (such as Mr Bushell) and contractors on or in connection with the construction, installation and operation of a waste recovery and treatment facility at the premises.

24Mr Livingstone's responsibilities as Site Manager were set out in a document titled 'SITA Environmental Solutions Structure and Responsibility Register REG007(7) - Site Manager'. Set out in that document his responsibilities included, inter alia:

• Management of the Environment, Quality and Safety Systems - Maintain and control the EQ&S Management System and Injury Management at each operating location, and report on performance to senior management.
• Monitoring and measurement - Ensure staff are trained and competent in activities relating to key monitoring criteria of tasks.
• Operational Control - Ensure operations are conducted according to documented operating procedures.
• Training - Determine the training needs of labour hire personnel.
• Training - Ensure all workers receive the required EQ&S training as specified in the Training Needs Matrix.
• Training - Ensure all workers are competent in performing work tasks and are assessed against the key monitoring criteria specified in the relevant Standard Operating Procedures (SOP's) and local Job Safety and Environmental Analysis (JSEA's). Conduct random competency assessments and record.
• ·Risk Management - Overall responsibility for identification, assessment, control and evaluation of hazards and risks in their area of responsibility.
• ·Risk Management - Prior to purchasing any goods including capital expenditure items, ensure that OH&S is evaluated, there has been consultation in relation to the proposed purchase and concerns are addressed. The OH&S Pre-Purchase Information Sheet provides guidance to assist in meeting these requirements.
• Risk Management - Ensure JSEA's/risk assessments are completed for all ongoing and one-off tasks and hazardous substances.
• Risk Management - Hazard ID's - determine the controls required to manage the hazard and record on the Risk Management Form.
• Risk Management - Ensure that all JSEA's, Risk Assessments and Hazard ID's are recorded in the Risk Register.
• Contractors and visitors - Overall responsibility to ensure that contractors and visitors do not expose any people, property or the environment to any risk, whilst performing work for SITA.
• Legal requirements - General - Provide safe premises, plant, equipment and systems of work and ensure they are properly maintained.

25Mr Livingstone reported to and was supervised by Mr Gary Leach, SITA Sydney Collections Manager. Mr Leach was located at the SITA NSW State Office & Wetherill Park Service Centre 201-205 Newton Road, Wetherill Park.

26Mr Livingstone directly supervised 12 SITA employees, two Edmen employees (including Mr Bushell) and a contractor, Mr Luke Farraway from Heavy Vehicle Engineering Pty Ltd.

27Prior to becoming the SITA Site Manager, and then concurrently with the Site Manager role, Mr Livingstone was also employed as the SITA Equipment and Development Manager. In this position Mr Livingstone reported to SITA Sydney Collections Manager, Mr Gary Leach.

28In his role as SITA Equipment and Development Manager, between 2002 and 2004, Mr Livingstone was based at SITA's premises at 201-205 Newton Rd, Wetherill Park. This role had initially involved the procurement and disposal of equipment such as rental compaction equipment at most of the NSW sites. Mr Livingstone then became involved in site development. He progressed the development application for SITA Camellia and closed down a site at Homebush Bay in New South Wales which, prior to 2004, SITA had operated as a waste management and resource recovery facility.

29Mr Livingstone's role as Equipment and Development Manager

included the 'Key Task' of 'Full compliance with SITA Policies, including Safety, Environment and Quality Policy' with the 'Expected Output' of 'Due diligence'. The 'Detailed Activities' for 'Environment Health & Safety' stated:

• To be familiar with and comply to all Environmental Health and Safety policies, procedures, and standard operating procedures pertaining to their site.
• To be proactive in assisting with the development of safe work practices.
• To report any non-conformance or matters of concern regarding Health & Safety, directly report to your OHS Committee representative'.

30Mr Livingstone's relevant experience and qualifications included 19 years experience in the waste industry (for SITA and the predecessor companies which had owned SITA's waste management operation) as a mechanic on the floor, workshop leading hand, workshop supervisor and workshop manager. He had mechanics certificates and qualifications in Natural Gas and LPG, and had undertaken TAFE courses in Engineering.

31Mr Livingstone designed and was responsible for the installation and commissioning of a sorting system at the premises, known as the Camellia Recycling and Organics Processing ("CROP") system.

32Part of the CROP system consisted of a second-hand WHS Stacey & Son Pty Ltd 30 x 38 inch (762 x 965mm) hydraulic baling machine ("the baling machine"), which was involved in the incident.

33During the installation of the CROP system Mr Livingstone was informed by an electrical contractor, CMS Electrical Services Pty Ltd ("CMS") that the baling machine would need to provide a signal to the transfer station control panel located on the back wall behind the trommel so that the other machines in the "Transfer Station" could continue to operate.

34Mr Livingstone instructed Mr Bushell to assist in the constructing and erection of the CROP system, which included the baling machine.

35Mr Livingstone supervised Mr Bushell in relation to repair and maintenance tasks at the premises.

36Mr Livingstone was also responsible for ensuring that SITA's Isolation and Lockout procedure was used by Mr Bushell.

37The SITA training procedure policy required Mr Livingstone to determine the training needs of labour hire personnel on a case-by-case basis.

Relationship between SITA and Edmen

38On or about 6 August 2008 Anton Lokmer (Edmen Sydney Branch Manager) and David Cuda (Edmen Chief Financial Officer) met with Ms Johnstone at the premises to discuss the provision of on-hire personnel to work at SITA Camellia.

39On or about 7 August 2008 SITA and Edmen agreed that, on and from 12 August 2008, Edmen would provide on-hire staff to SITA at the SITA Camellia site ("the on-hire agreement").

40Ms Johnstone was the SITA contact person for Edmen.

The employment of Mr Bushell

41 At all material times Mr Bushell was a qualified fitter and turner who held a Certificate in Mechanical Engineering (Trade), a National Certificate of Competency - Dogging, a National Certificate of Competency - Forklift, a National Certificate of Competency - Advanced Rigging, a National Certificate of Competency - Basic Scaffolding, a National Certificate of Competency - Work Platform, an OHS Construction Induction Training Certificate, a Senior First Aid Certificate, and a Confined Space Certificate. He had also completed the units of competency for Heights Safety & Recovery from the Certificate III in Public Safety.

42Prior to commencing work for SITA, Mr Bushell gave his resume to Mr Brad Grosso who worked at the premises as a permanent forklift driver. Mr Grosso was the partner of Mr Bushell's sister. Mr Grosso gave the resume to Ms Johnstone.

43Also, prior to Mr Bushell commencing work for SITA, Mr Livingstone met with Mr Bushell at the premises and reviewed his resume.

44Mr Bushell states that he understood that he would be employed by Edmen initially for three months before being made a permanent SITA employee. He was asked to contact Edmen for the purpose of undergoing their checks.

45Pursuant to discussions between Edmen and SITA, Edmen generated a job order for the employment of Mr Bushell titled: 'Edmen Recruitment Pty Ltd - Job Order Details - Job Order = S012285'. That job order included the following information about the work that Mr Bushell was to undertake at SITA Camellia:

welder to perform welding and general labouring duties, working in waste plant. Some ongoing repairs and maintenance required on plant and equipment. Physical type work with some manual handling, working in smelly environment. May be required to work outdoors. Standard PPE, long sleeves and long trousers required. Required as a casual for a few months until SITA take him in perm[anently].

46On Wednesday, 25 February 2009 Mr Bushell attended Edmen's premises at 700 Princes Hwy, Kogarah. He undertook the employment process with an Edmen representative, Ms Cunial. Mr Bushell provided Ms Cunial with his resume and a copy of his certificates, entered his personal details on the 'Edmen Recruitment Applicant Assessment Form' and signed that form. The accompanying 'Edmen Recruitment Employee Agreement' was not signed until 5 March 2009.

47Edmen did not at any time provide Mr Bushell with information regarding the tasks he was to perform at SITA Camellia; nor did it ask Mr Bushell for any details of the work he was to perform.

48In addition, Edmen did not at any time make any inquiries to identify the particular plant and/or equipment at SITA Camellia on which Mr Bushell would be required to work.

49Mr Bushell commenced work at SITA Camellia on 26 February 2009

THE CROP SYSTEM

50In early 2008 SITA identified that the manual operation of tipping waste onto the Transfer Station floor at the premises resulted in low recycling outputs and that long lengths of cardboard and plastic were getting caught in the trommel sorting system. Mr Livingstone was given the task of modifying the sorting system at the premises to redress these problems.

51As part of his direct responsibility for designing, installing and commissioning the CROP system, Mr Livingstone proposed changes involving a number of processes and various items of plant including 12 conveyors, two balers, augers and a trommel, to be located in both in the Product Destruction Unit and the Transfer Station.

52The changes to the sorting/recycling plant in the Transfer Station were known as the "Transfer Station Upgrade".

53The installation of the baling machine involved in the incident was part of the Transfer Station Upgrade.

54The CROP process involved commercial dry waste being tipped onto the floor of the Transfer Station, loaded with an excavator onto a conveyor belt, which led to other conveyor belts where recyclable material such as cardboard and plastic would be separated by hand. The plastic would be fed into a plastics baler and the cardboard was fed into the baling machine.

55At the time of the incident the CROP consisted of a truss-style sorting platform on support legs, six conveyors, a plastics 'Tretherway' Baler and the baling machine involved in the incident.

56The conveyors in the sorting line were assembled and reconfigured from a number of various parts which were sourced from different places.

57Mr Bushell was primarily engaged to carry out work on the conveyors in the course of constructing the CROP system.

58The in-feed conveyor of the baling machine was supplied in an "unmounted" form. Mr Bushell installed the sideboards of the in-feed conveyor of the baling machine.

59The trommel input conveyor and the waste transfer trommel were operational at the time of the incident. The PDU incline conveyor, which fed into the waste transfer trommel, was operational and in use on the day of the incident. All of the six other conveyors were operational at the time of the incident. The PDU was separate and not connected to the baling machine.

60Mr Leach stated in an email dated 21 May 2009 (20 days prior to the incident) that:

There are a few things to be done before commencement. Belts, balers, stands are in place and virtually ready to go. Chris [Livingstone] needs to place some guards around the plant and put a canvas roofing over the processing lines. As well he needs to tidy up around the end of the conveyor. This will be completed by Monday June 1st and we will be processing from then.

61As at 25 March 2009 the total cost of the 'sorting/recycling plant' changes at Camellia was $491,538.

The Baling Machine

62SITA owned the baling machine involved in the incident. It was a second-hand 1984 STACY hydraulic 'horizontal open-end continuous baler with automatic bale tie-off mechanism' - Serial No. 43636. There was a conveyor system connected to the top of the baler hopper, which fed waste paper into the baler for processing. The baling machine was part of the CROP, but was not yet in use at the time of the incident.

63AMr Livingstone stated that no date or timeline had been set for commissioning. Further that prior to the commissioning of the CROP system, he intended to discuss the system with the SITA OHS personnel, his supervisor, Mr Leach and with all of the employees at SITA Camellia. In that process, he intended to include CMS, Mr Bushell and Luke Farraway. In particular, prior to commissioning, Mr Livingstone had intended to go through each and every piece of the CROP equipment.

63The baling machine was designed and manufactured by W.H.S. Stacy & Son Pty Ltd, 20 Hearne St, Mortdale 2223 and supplied to their client, Kimberly-Clark Aust. Pty Ltd, in June 1984.

64The design and manufacture of the baling machine by W.H.S. Stacy & Son Pty Ltd included two feed conveyors: a horizontal conveyor that fed onto an incline conveyor, which fed into the hopper of the baler from the left side.

65The manufacturer's Operation and Maintenance Instructions for the baling machine stipulated that the control system for the baling machine was designed for operation at a single panel on the baling machine itself.

66The baling machine and in-feed conveyors were designed by W.H.S. Stacy & Son Pty Ltd to:

Deliver material into the hopper until the photoelectric cell at the preselected level is covered continuously for a time interval (normally about 1.5 seconds) after which the conveyor stops and the compression cycle commences. Alternatively the compression cycle may be started at any time by depressing the Auto START button, in which case the conveyor then stops.

67The original electrical system was electromechanical, but was comprehensively altered by Kimberly-Clark in 1999.

68W.H.S. Stacy & Son Pty Ltd made alterations to the hydraulics in 2002.

69Mr Livingstone, on behalf of SITA, sourced the baling machine from Graham Garth Smith trading as East Kurrajong Engineering who provided SITA with a quote dated 4 June 2008:

To supply one only second hand W.H.S. Stacy & Son Pty Ltd 30 x 38 inch (762 x 965mm) hydraulic Baling machine with automatic wire tying system, single hydraulic pre press and feed conveyors 1200mm wide x 2600mm long and 1050mm wide x 6800 long. Full electrical control circuit diagrams. Operation & Maintenance Manual. All guarding with electrical interlocks to OH&S requirements and 1 pallet of tie wire coils. Price $33,750.00 + GST.

70The baling machine was transported by East Kurrajong Engineering to the premises of a SITA client, Blayney SeaLink, in August 2008.

71On or about 25 June 2008, at a SITA site in Lithgow New South Wales ("SITA Lithgow"), SITA performed a risk assessment for the operation of the baling machine. The risk of someone being crushed due to contact with moving parts during testing, maintenance/repair was identified by that risk assessment.

72However, no risk assessment was performed for work in connection with the modifications made to the baling machine whilst it was situated at the SITA Camellia site. In particular, there was no risk assessment conducted by SITA identifying the risk of falling into and being crushed by the machine when welding plates to fill gaps resulting from modifications to the position and direction of the conveyor feeding into the machine, or the risk of falling into and being crushed by the baling machine when modifying the design of the machine, or the risk of failing to properly and effectively isolate the baling machine in view of any remote and/or portable means of activating the baling machine.

73Work was done on the baling machine whilst located at SITA Lithgow including:

• installation of baler, power supply and parts for isolator
• 'run and terminate cable and trays for relocated power head on baler/compactor'
• modification to photoelectric sensor - provision of Omron E3B2-D2M4D-G plug in base, long range sensor.

74On 30 January 2009 the baling machine was transported to the premises as a stand-alone piece of equipment.

75When it arrived at the premises, the baling machine had also been modified in that there was a switch attached to a flexible lead located adjacent to the hopper inspection door that could also be used to activate the baling machine.

76AMr Livingstone was not aware of the electrical modifications until after the Incident.

76Whilst at the premises, the baling machine was modified so that material entered the hopper from over the top of the main compactor chamber, rather than over the top of the pre-compaction blade. This created a gap which Mr Bushell was attempting to cover by welding a steel plate to the side of the hopper at the time of the incident.

77A Whilst Mr Livingstone had discussed generally with Mr Bushell the need to fix the gap created at the top of the hopper, Mr Livingstone had not directed Mr Bushell to undertake that task on the day.

77At the time of the incident, the baling machine consisted of the following components (from BACK to FRONT) :

• a horizontal ram
• ·a wire reel holder in the ground to the LEFT
• a platform
• an access door to the receiving hopper
• the receiving hopper
• and, to the LEFT of the receiving hopper:
• ·a prepress
• a prepress hood or guard
• a hydraulic reservoir
• a baling chamber (called a prepress chamber by Mr Livingstone)

an out-feed chute extension

• a horizontal in-feed conveyor (referred to as Transfer Conveyor #14 on the diagram) located above the baling chamber and chute.

Electrical works for the Transfer Station Upgrade

78Electrical works for the Transfer Station Upgrade were carried out by CMS. Mr Livingstone engaged CMS to do so on behalf of SITA. CMS was engaged to install the CROP and also to integrate the CROP with the existing PDU. SITA had engaged CMS for all of the previous electrical projects and repairs work at premises. As a result, Mr Livingstone had worked with CMS in relation to those other projects and repairs at the premises.

79CMS installed a starting feature for the CROP whereby the baling machine - if it was in automatic mode - could be activated from two remote locations at the premises, but only if the main isolation switch located immediately adjacent to the baling machine was in the "ON" position and only after a number of other switches on the control panel at the baling machine itself had been activated. One of those remote locations was on the main control panel located on the back wall behind the trommel, and another on the platform where the operator stands.

80Prior to the incident:

• CMS had worked at SITA Camellia to 'run the mains cables' as a part of the electrical works in the quote.
• CMS had run the mains cables from the main switchboard to the control panel which was behind the trommel.
• CMS had installed the electrical components on the two conveyors on the truss supporting platform, the baling machine in-feed conveyor, and the commercial waste sort conveyor.
• The hydraulic pack was connected to the baling machine.
• Well before the middle of May 2009, CMS had connected the mains cable to the baling machine's supply control panel.

81The mains cable connection to the baling machine was energised in mid-May 2009. The baling machine was in automatic mode from end of May 2009. CMS handed-over the baling machine to Mr Livingstone on 1 June 2009. The baling machine could be operated in automatic mode from the handover on 1 June 2009.

THE INCIDENT

82On 11 June 2009 Mr Bushell arrived at the premises at 6.49am.

83Ms Johnstone directed Mr Bushell to repair the Quarantine cooker bins, to assist another worker in the product destruction shed with a conveyor belt, and to return to the baling machine to work on the skirting around the exit point of the baler chute. 84.Mr Livingstone had previously instructed Mr Bushell to get the baling machine "up and running".

85A Mr Livingstone stated that on the day of the incident he instructed Mr Bushell to bolt the baler and the wire reel poles to the ground. Mr Bushell stated that he told Mr Livingstone he was "installing the plate and doing the end of the chute rails" which forms part of filling the gap. Mr Livingstone states he did not instruct Mr Bushell to fix the gap at the top of the baler however he acknowledges he was aware that filling the gap was a task Mr Bushell had to complete.

85Mr Anthony Stockings, an Edmen on-hire employee who was working as a labourer at the premises, was asked to assist Mr Bushell.

86Mr Bushell took the equipment he required up to the sorting platform on the outside of the Transfer Station. He started to fill in some panels on the transfer conveyor that fed into the in-feed conveyor to the baling machine.

87After about 9.30am Anthony Stockings started to assist Mr Bushell. He received information from Mr Bushell on what to do, and then worked by himself to tighten a conveyor belt on which Mr Bushell had worked that morning.

88At midday the conveyors in the Product Destruction Unit were turned off. However, the trommel, and conveyors connected to the trommel were left on.

89When Mr Bushell finished filling in the panels on the transfer conveyor that fed onto the feed conveyor to the baler, he moved his tools to the baler end of the feed conveyor in order to weld a steel plate to cover a gap on the side of the hopper that had been created by the relocation of the in-feed conveyor to the top of the main compactor chamber.

90A Prior to commencing work on the baling machine, Mr Bushell moved his tools to the end of the conveyor and grabbed his danger tags. He then went to the hydraulic pack and switched off two isolation switches but the motor kept running. He then went in search of another isolation switch and found two silver handles on a pole and switched them to the off position which shut everything down. He then hit the 'deadman switch' on the control panel and turned it back on and found that nothing came on. He then heard sirens indicating to him that someone was trying to start up the production line again so he reset everything using the reset buttons on the control panel. Everything fired up again so he pressed the reset button again and turned it off at the isolator. He then tried to operate the machine by pressing the start button on the control panel and it still wouldn't start up. He was then satisfied that the machine was isolated and attached his danger tag by means of an airline safety clip through the isolation switch.

90Before commencing any welding work on the baling machine Mr Bushell attempted to isolate the baling machine. He did so through a process of trial and error because he states that he did not know the proper procedure for isolating the baling machine. Mr Bushell had not previously been shown how to isolate the baling machine. Mr Bushell was allowed to use his own equipment for isolating machinery, such as danger tags and locks. Mr Bushell did not have any locks at the time of the incident. He could not find any locks the night before. He states that he was not aware of the availability of locks or tags at the premises.

91Mr Bushell also states that he failed to lockout the isolation switch on the baling machine because he did not have time the night before to find his locks as he "was just too tired" and "gave up".

92Mr Bushell then proceeded to work at the edge of the in-feeding conveyor and on the top of the opening to the hopper of the baling machine. Mr Stockings lifted a metal plate up into position on the side of the hopper above the prepress hood. They aligned the metal plate so that Mr Bushell could bolt and weld the plate to the hopper. Mr Stockings retrieved bolts, passed tools such as the grinder, and cut edges off steel plate. The purpose of the metal plate was to stop waste 'overflowing' out of the hopper as it fed into the hopper.

93When the metal plate was bolted into position, Mr Stockings went to the other side of the baler and used a hammer drill to drill holes in the concrete floor. The holes were for anchor bolts so that the second wire dispenser frame or wire reel holder for the baler tie mechanism could be installed.

94Mr Bushell sat on the end of the feed conveyer. His left leg extended down into the hopper and his left foot rested on the protruding cutting edge of the retracted prepress arm. His right leg was bent at the knee and rested on the feed conveyor. He states that the baling machine suddenly started and the prepress arm moved, causing him to slip and fall into the hopper and chamber of the baling machine. Mr Bushell states that he tried to pull himself up and over the lip of the prepress arm that was closing in. He managed to get out only as far as the top of his legs. Mr Bushell was screaming for help. He reached with his left hand for his phone in his back pocket, at which point Mr Bushell felt a 'pop' sensation and the prepress arm crushed and severed his legs and left hand.

95There was a compressed bale of paper in the compression chamber which blocked egress through the compression chamber and out the chute.

96Mr Stockings heard Mr Bushell's call for help, looked into the baler, realised Mr Bushell was caught and yelled to Mr Livingstone to turn the machine off. Mr Livingstone stopped the baling machine and isolated power to the baling machine by the control box behind the transfer station trommel.

97The Ambulance Service of NSW was initially contacted soon after the incident at 12.32pm. The first ambulance arrived at the premises at 12.43pm. Six ambulance vehicles arrived between 12.48pm and 2.09pm. A rescue helicopter landed at 12.57pm. At 1.07pm a medical team arrived.

98Mr Bushell was released from the baler at 3.24pm. Mr Bushell was conscious throughout the process of his removal from the baling machine.

99At 3.40pm Mr Bushell was transported from the premises to Westmead Hospital.

Injuries

100The injuries Mr Bushell sustained included bilateral traumatic amputation in proximal one third of both femurs; left hand traumatic amputation at carpometacarpal joint level; bilateral complete testicular detachment; extensive de-gloving injury of the skin and soft tissues in buttock, perineum, pelvis and penis and hypothermia secondary to major trauma.

101Mr Bushell currently experiences intense phantom pains, mainly in the region of his left leg. He is on pain killing medication, and receives regular physiotherapy, blood tests and testosterone injections. He uses a wheelchair (and skateboard and scooter) for mobility on the ground, and a set of stiff prosthetic legs for stairs.

SYSTEMS OF WORK BEFORE THE INCIDENT

Edmen

System

102Edmen had a safety management system at the time of the incident.

103Edmen provided an 'Edmen Group Safety Handbook' to each on-hire worker.

104The 'Rates & Transition Plan' provided to SITA on 7 August 2008 stated: 'Edmen consultant to conduct/assist with SITA specific inductions for new starters at Camellia'. However, no Edmen representative attended any induction for Mr Bushell at the premises. In practice, Edmen personnel usually did not attend site inductions of its employees.

105Edmen did not ascertain what plant and equipment Mr Bushell was to work on at the premises, or what modifications to such plant or equipment were to be made or had been made. There was no inquiry as to whether Mr Bushell was to work on hydraulic machinery (after Edmen identified that Mr Bushell had no experience or competency with such machinery).

106Edmen did not assess Mr Bushell's competence in isolating power to electrically energised plant.

107In Edmen Recruitment's safety handbook there was a section dedicated to danger tags and isolation at section 9.0. It contained a requirement for workers to familiarise themselves with the danger tag procedures for the site as they will differ from site to site. It required a danger tag to be attached to the main isolating switch, valve or other isolating device of equipment whenever there would be danger to someone if the isolating device was turned on. It also included a requirement to place the danger tag on the operating switch of any plant or equipment where the operation of the equipment could place the worker in danger. Although there was no reference to the use of locks in isolating plant in Edmen Recruitment's safety handbook it did state that danger tags and lock out systems are generally controlled in the same manner.

108Edmen conducted an initial OHS site visit on 12 August 2008 and identified an isolation hazard. However, at that time, Edmen rated the SITA operation at the premises as "low risk".

109Apart from the initial site inspection in August 2008 - and (thereafter) annual inspections of sample completed inductions/JSEAs - Edmen had no system for checking whether SITA was actually conducting or providing inductions, task specific training and/or training in isolation procedures with its employees.

110Edmen Recruitment conducted one site inspection of SITA Camellia in August 2008. This was prior to supplying labour at this site for the first time. The labour supplied to the site was for labourers. The site inspection was the only risk assessment performed by Edmen Recruitment prior to the incident.

111No OHS representative from Edmen visited the premises after 12 August 2008, and there was no requirement for Edmen representatives to speak with their on-hire employees (although consultants did so on a site-by-site basis).

112An Edmen representative did regularly visit the site administration office at the premises to deliver pay slips and speak to Ms Johnstone. The Edmen representative only visited the administration office, and never actually visited or inspected the rest of the SITA Camellia site.

113Although there was a hazard reporting form on the back (reverse side) of the Edmen time sheets, a SITA employee, Mr Palmer, filled out the Edmen time sheets based on bundy card records. Mr Bushell did not fill out the Edmen timesheet with OHS hazard reporting form on its reverse side.

114Edmen Recruitment did not enquire with SITA or Mr Bushell as to what tasks he was performing, or on what plant or equipment he was required to work.

SITA

Plant

115The original structure of the baling machine was modified by SITA at the premises. The original position of the conveyor feeding into the baling machine was moved from above the prepress hood on the left of the baling machine to the front wall of the hopper of the baling machine, which created a gap on the left side of the hopper.

116Mr Bushell attempted to cover that gap with a metal plate by positioning himself at the end of the conveyor and at the edge of the opening of the hopper.

117Mr Bushell worked on the aforesaid modifications to the structure of the baling machine after:

(a)the hydraulic components of the baling machine had been installed;

(b)the baling machine had been placed in its position at the premises;

(c)the hopper of the baling machine was situated on the ground; and

(d)the baling machine had been connected to a power source and was energised at the premises.

118There was no signage, markings or label on the baling machine to identify the main isolation switch on the baling machine.

Isolation and tag out procedure

119SITA's written isolation and tag out procedure stipulated that, inter alia, personnel must 'securely attach a "Lockout Device" and personal "Danger Tag" to all isolation points before commencing any work'. A danger tag is a method of warning that the equipment is in an unsafe condition and that the operation of the equipment may endanger the person who attached the tag. A lockout device prevents the movement of an isolation switch or valve.

120Although SITA had a written isolation and tag out procedure, incidents of electrical equipment not being tagged at the site had been previously identified in the course of OHS audits conducted by SAI Global on 16 September 2008 and 11 March 2009.

121Moreover, SITA did not train Mr Bushell in its isolation and tag out procedure, whether in relation to the proper method of isolating the baling machine or at all.

122There was no relevant task-specific information or training provided to Bushell at all. Mr Bushell only received an initial 30-minute induction process conducted by Ms Johnstone, the provision of the site safety rules, and some training in competency in forklift driving.

123Mr Bushell was also permitted to use his own danger tags and equipment for isolation and lock out procedures.

124The availability and location of danger tags and locks at the site was uncertain to some workers at the premises, including Mr Bushell, Mr Dafter, Mr Tulliani, Mr Grosso and Mr Tuite. Mr Bushell states that tags and locks were not supplied to him by SITA.

Permit to work system

125SITA also had a 'Permit to Work' form that provided for any hot work, work in confined spaces and work involving isolation of equipment. The permit system required the area supervisor to be notified, a risk assessment to be conducted and for confirmation that SITA's isolation and tag out procedure had been reviewed.

126However, Mr Bushell states that he had never seen the SITA Permit to Work form and had not been required to use them.

127Mr Tuite was employed as a boilermaker/welder at the site for 10 years as at August 2009 and he states that he had never seen a work permit form.

128Ms Johnstone, who conducted Mr Bushell's induction at the site, was not aware of any permit to work being completed for Bushell to undertake hot work, and not aware of when or who might have informed Bushell of the permit requirement.

Risk assessment

129As noted above, a risk assessment of the baling machine was performed by SITA prior to its installation at the premises. However, no risk assessment was performed for the modifications made to the baling machine at the premises.

130Risk assessment check lists and Job Safety Analyses (JSA) for the baling machine were dated 15 June 2008 and 6 July 2008 respectively, and did not identify the risk of falling into and being crushed by the machine when welding plates to fill gaps resulting from modifications to the position and direction of the conveyor feeding into the machine. The risk assessment for the transfer station upgrade dated 12 December 2008 did not identify risks of falling into and being crushed by baling machine when modifying the design of the machine (although it did identify the need for a hot work permit to be issued when fitting out the baling machine).

131The risk of someone being crushed due to contact with moving parts during testing, maintenance/repair was identified by a risk assessment dated 25 June 2008. However, Ms Johnstone (who inducted Mr Bushell) was not aware of this assessment, nor was she aware of the existence of the Operation and Maintenance instructions or JSA for the baling machine.

Training

132Mr Bushell was not trained in SITA's isolation and tag out procedure generally; nor was he trained in the proper method of isolating the baling machine in particular.

Supervision

133SITA's isolation and tag out procedure required the Site Manager (Mr Livingstone) to supervise the isolation and tag out of plant by Mr Bushell. This did not occur. Mr Stockings was assisting Mr Bushell by passing tools to him from the ground level, but was drilling a pole to the ground with Mr Livingstone nearby and was not observing Mr Bushell at the time of the incident.

134Mr Bushell was not otherwise supervised while he was working on, and attempting to isolate, the baling machine.

oo00oo

Annexure

Decision last updated: 04 October 2012