Inspector Sharpin v Concrete Civil Pty Ltd and Inspector Sharpin v Daryl Smith [2004] NSWIRComm 173

Inspector Sharpin v Concrete Civil Pty Ltd and Inspector Sharpin v Daryl Smith [2004] NSWIRComm 173

The first defendant, as a labour hire employer, failed to give adequate instructions, training and warnings to its labour hire contractors and failed to undertake an adequate risk assessment, including by making no inquiries about the state of equipment used by A Team Concrete. The breach was serious, though the penalty was fixed in the low to mid range because of reduced need for specific deterrence and mitigatory factors. After a 35% discount and applying parity with related proceedings, the appropriate penalties were $45,000 for the first defendant and $4,000 for the second defendant, who was the sole director deemed liable under s 26(1).

Jurisdiction
Australia
Judgment Date
24 August 2004
Procedural Posture
Occupational Health and Safety Prosecution Under S.8(2) of the Occupational Health and Safety Act 2000 and Application Under S.26(1) of the Occupational Health and Safety Act 2000 / Judgment on Penalty After Guilty Pleas
Outcome
Each defendant was found guilty and convicted; penalties, moiety and costs orders were made.
Legal Topics
['labour Hire' 'risk Assessment' 'safe System of Work' 'training and Instruction' 'director Liability' 'guilty Plea Discount' 'parity in Sentencing' 'costs']
['occupational Health and Safety' 'industrial Law' 'sentencing and Penalties'] ['labour Hire' 'risk Assessment' 'safe System of Work' 'training and Instruction' 'director Liability' 'guilty Plea Discount' 'parity in Sentencing' 'costs']

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Procedural Posture

Occupational Health and Safety Prosecution Under S.8(2) of the Occupational Health and Safety Act 2000 and Application Under S.26(1) of the Occupational Health and Safety Act 2000 / Judgment on Penalty After Guilty Pleas

Legal Issues

  1. 1 ["What was the objective seriousness of the first defendant's breach of s 8(2) of the Occupational Health and Safety Act 2000." 'Whether a labour hire employer was obliged to satisfy itself about the safety, repair and maintenance of equipment and systems used by the host at the worksite.' 'What penalties should be imposed after allowing for guilty pleas, contrition, co-operation, absence of prior offences, deterrence and parity with related proceedings.' 'What penalty should be imposed on the second defendant as sole director deemed to have contravened the same section under s 26(1) of the Occupational Health and Safety Act 2000.']

Ratio Decidendi

The first defendant, as a labour hire employer, failed to give adequate instructions, training and warnings to its labour hire contractors and failed to undertake an adequate risk assessment, including by making no inquiries about the state of equipment used by A Team Concrete. The breach was serious, though the penalty was fixed in the low to mid range because of reduced need for specific deterrence and mitigatory factors. After a 35% discount and applying parity with related proceedings, the appropriate penalties were $45,000 for the first defendant and $4,000 for the second defendant, who was the sole director deemed liable under s 26(1).

Court Disposition

Each defendant was found guilty and convicted; penalties, moiety and costs orders were made.

Orders

  • ['Each of the defendants is found guilty and convicted of the charges brought against them.' 'I impose a penalty on the first defendant of $45,000 and on the second defendant of $4,000.' 'The defendants are to pay a moiety of the penalty to the WorkCover Authority of New South Wales.' 'Each of the defendants is to...