Abigroup Contractors Pty Ltd v Newman [2008] ICQ 17 (2008) 188 QGIG 45

[Extract from Queensland Government Industrial Gazette, Dated 23 May 2008, Vol. 188, No. 4, pages 45-54] INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate Abigroup Contractors Pty Ltd AND Clive John Newman (C/2007/48 and C/2007/62) PRESIDENT HALL 12 May 2008 DECISION The proceedings at first instance concerned an alleged breach of the Workplace Health and Safety Act 1995. The breach was alleged to have occurred on 29 July 2004. The version of the Workplace Health and Safety Act 1995 (the Act) in force at that date was Reprint 5C. The Complaint alleged a breach of s. 24. The obligation said to have been breached was the obligation imposed by s. 28(1) which provided: "(1) An employer has an obligation to ensure the workplace health and safety of each of the employer's workers in the conduct of the employer's business or undertaking.". Particulars were given. The workplace was particularised as "Block 7 Redevelopment, Herston Hospital Complex, Bowen Bridge Road, Herston" (the Workplace). The hazard and source of the risk was particularised as "floor penetrations at the said workplace". By way of elaboration, I should perhaps interpolate that the evidence established an issue about "floor penetrations" of some size and certainly of a size which would permit a worker to fall through the floor and onto the floor below. The evidence also showed that there was an issue about "core penetrations". The "core penetrations" were penetrations of about four inches to six inches in diameter through which tools might well fall and come into contact with workers on the floor below. The prosecution was about the "floor penetrations". It was not about the "core penetrations". The risk was particularised both globally and specifically. It was expressed as "The risk is the risk of death or injury, including the risk of fall injuries to Trevor William Fletcher.". Elsewhere in the particulars, Mr Fletcher was identified as a "worker" which in the context meant one of the Defendant's employees. In accepting that the risk was particularised globally as well as specifically, one has to bear in mind that it was an implicit limitation upon the global risk that it was the risk of death or injury to the Defendant's employees. It is important to make that point because at the evidentiary level, the materials pointed to a conclusion that workers on the site, including the Defendant's employees, were at risk of death or injury. Doubtless, an application might have been made to adjust the Complaint so that it accorded with the evidence. In fact, no such application was made. It followed that the case was always about the global risk to the Defendant's employees. Since the Appeals go to both liability and sentence, it is useful to note that limitation from the outset. A circumstance of aggravation was alleged. It was alleged as a consequence of a failure to discharge the workplace health and safety obligation, Trevor William Fletcher sustained grievous bodily harm. The Defendant made certain Admissions which were tendered as Exhibit 1. The Admissions were: "1. The defendant admits that on the 29th day of July 2004: a. ABIGROUP CONTRACTORS PTY LTD ('the defendant'): i was a corporation under the Corporations Law; ii operated a business that, on the site in question, involved the provision of managing contractor services pursuant to their contract with Queensland Health; iii was an employer within the meaning of section 10 of the Workplace Health and Safety Act 1995 ('the Act'), in that, on the relevant site, it employed Safety Advisor (Lauren Schultz), Senior Building Project Manager (Trevor Fletcher); iv had entered into a contract with Delta Pty Ltd ('Delta') under which Delta was carrying out certain works described in the sub-contract. b. Mr FLETCHER was a worker under the Act. c. Level 15(n) and 16(o) of the project were construction workplaces under the Act. d. The work carried out by Delta on the project was construction work under the Act. -- 1 of 9 -- 2 e. Two holes known as penetrations existed in the floor at Level 16(o) of the project. f. Mr FLETCHER fell through a penetration more than 2.4 metres onto the floor below. g. This fall caused spinal, rib, shoulder and lung injuries to Mr. FLETCHER. 2. The defendant also admits that Mr Fletcher's injuries amount to grievous bodily harm at law.". On the basis of those admissions the Acting Industrial Magistrate was entitled to find and did find, beyond a reasonable doubt that the Defendant was a person upon whom s. 28(1) imposed an obligation, that Mr Fletcher was an employee of the Defendant, that Mr Fletcher fell more than 2.4 metres through a penetration onto the floor below and that the fall caused grievous bodily harm to Mr Fletcher. The obligation at s. 28(1) being absolute, the Acting Industrial Magistrate was entitled to find and did find that the Defendant had breached s. 28(1) in failing to ensure the safety of Mr Fletcher. Mr Fletcher had neither been free from injury nor free of the risk of injury, compare s. 22(1). However, although the obligation at s. 28(1) is absolute, the Act is neither a statute about absolute liability nor a statute about strict liability. The Defendant was entitled to, and did, seek to avail itself of the defences at s. 37. Section 37 provided: "Division 4 - Defences 37 Defences for div 2 or 3 (1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 for the person to prove - (a) if a regulation or ministerial notice has been made about the way to prevent or minimise exposure to a risk - that the person followed the way prescribed in the regulation or notice to prevent the contravention; or (b) if an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to a risk - (i) that the person adopted and followed a stated way to prevent the contravention; or (ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or (c) if no regulation, ministerial notice, advisory standard or industry code of practice has been made about exposure to a risk - that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention. (2) Also, it is a defence in a proceeding against a person for an offence against division 2 or 3 for the person to prove that the commission of the offence was due to causes over which the person had no control. (3) In this section, a reference to a regulation, ministerial notice, advisory standard or industry code of practice is a reference to the regulation, notice, standard or code of practice in force at the time of the contravention.". The section is not without its difficulties. The proceedings at first instance and on the Appeal have been conducted on the basis that where "or" connects subparagraphs, it does not mean "and", and on the basis that a defendant will succeed if it brings itself within one or other of subparagraph (a) or subparagraph (b) of subsection 1, e.g. on the basis that compliance with an "advisory standard" will suffice though there has been a failure to comply with a "regulation". For fullness, I also add that the proceedings at first instance and on the Appeal have been conducted on the basis that the Defendant is required to establish its chosen defence on the balance of probabilities. In considering the defence at s. 37(1)(a) and (b) the Acting Industrial Magistrate gave consideration also to s. 26. Section 26 is a difficult section. In cases in which (fortunately) a complainant has not the opportunity to point to a death or an injury to establish that safety has not been "ensured" and is compelled to contend that an obligation has not been discharged as s. 26 requires, there is an issue as to whether the onus carried by the complainant is a true onus or no more than an evidential onus which, when satisfied, compels the defendant to hide behind s. 37(1). On the facts that issue is not a concern in these proceedings. The concern in these proceedings is that in July of 2004 s. 26(3)(b) and s. 37(1)(b)(ii) did not "match". Section 26 provided: "26 How obligations can be discharged if regulation etc. made (1) If a regulation or ministerial notice prescribes a way of preventing or minimising exposure to a risk, a person may discharge the person's workplace health and safety obligation for exposure to the risk only by following the prescribed way. -- 2 of 9 -- 3 (2) If a regulation or ministerial notice prohibits exposure to a risk, a person may discharge the person's workplace health and safety obligation for exposure to the risk only by ensuring the prohibition is not contravened. (3) If an advisory standard or industry code of practice states a way of managing exposure to a risk, a person discharges the person's workplace health and safety obligation only by - (a) adopting and following a stated way that manages exposure to the risk; or (b) adopting and following another way that gives the same level of protection against the risk.". The "mismatch" does give rise to an issue in these proceedings though not, I think, an important one. As is often the case on appeals of this type it is difficult to sketch a factual background without prejudging controversial issues. However, it seems to me to be legitimate to say that what was occurring at the Workplace particularised in the Complaint, was the refurbishment of Block 7 at the Royal Brisbane Hospital. The Defendant had been engaged by Queensland Health as managing contractor to oversee the refurbishment. It was always contemplated that the actual demolition and construction work would be physically carried out by the employees of subcontractors and contractors to those subcontractors. In particular, it was envisaged that the "floor penetrations" and the "core penetrations" which were contemplated by the tender agreement, would be cut by Delta Pty Ltd, a corporation contracted by the Defendant to carry out demolition at the site including the removal of asbestos. A Mr Treby, who did not give evidence, was to be the Project Director with overall responsibility for completion of the demolition/refurbishment project. Mr Trevor Fletcher was to be the Project Manager and was to manage the onsite completion of the demolition/refurbishment project and was to have management of safety issues. Mr Gill, who gave evidence, was to be the Project Manager for Delta Pty Ltd. Mr Fletcher and Mr Gill were based at the Workplace. A Ms Schultz, who gave evidence, was a Peripatetic Safety Officer/Advisor employed by the Defendant who visited the Workplace from time to time. Mr Fletcher, who had access to the tender documents, was always aware that the demolition project contemplated the creation of "floor penetrations". The documents did not, of course, indicate where or when the "floor penetrations" would be brought into existence. It is not clear whether (or when) particular "floor penetrations" came to the notice of Mr Fletcher who seems to have relied on observation of hazards by himself and subordinates whilst walking around the site to discharge other duties. However, it is apparent that in July 2004, the Defendant was aware that there were "floor penetrations" at the Workplace and that the penetrations were a safety concern. In the course of a walk around the site immediately prior to 6 July 2004, Ms Shultz noticed a number of penetrations on various floors which were not being managed in accordance with a Work Method Statement published by Delta Pty Ltd. At a regular Health, Safety and Environment Committee meeting on 6 July 2004, Ms Shultz, who was accompanied by other representatives of the Defendant, raised the matter of "floor penetrations" which were not being appropriately managed. Her concerns were noted in the published minutes of the meeting with an action date of "ongoing". An outcome of that meeting was that Ms Shultz issued a document entitled "Site Instruction" which included a requirement that "all penetrations be securely covered and marked (e.g. manhole).". A copy of the document was transmitted by facsimile to Mr Gill. As a result of a further walk around the site on a date immediately prior to 20 July 2004, Ms Schultz noticed the further incidence of inappropriately managed "floor penetrations". At a regular meeting of the Health, Safety and Environment Committee meeting on 20 July 2004, Ms Schultz again raised the issue of inappropriately managed "floor penetrations". The matter was recorded in the minutes with an action date of "ongoing". On 27 July 2004, Mr John Luke, a Senior Workplace Health and Safety Inspector with the Department of Industrial Relations, went to the Workplace as a result of a telephone call concerning certain electrical installations. In the course of the time which he spent at the Workplace, Mr Luke became aware of what he considered to be inappropriately managed "floor penetrations". In the course of the visit, he walked around the site with Ms Shultz and drew her attention to those "floor penetrations". He also had a discussion with Mr Fletcher at which he expressed his concerns about the "floor penetrations". As a result of that discussion, Mr Fletcher spoke to Mr Gill and told him in the clearest of terms that the "floor penetrations" were to be appropriately secured before any other work took place. Mr Gill, whose evidence was accepted by the Acting Industrial Magistrate and who admitted being given the oral instruction by Mr Fletcher, spoke to a subordinate, Mr Kinson, about the matter, and a "Toolbox Talk" took place on the morning of 28 July in consequence of that direction. Mr Fletcher, one should add, followed up the oral direction with a written Site Instruction. However, as the Acting Industrial Magistrate correctly pointed out, because the Site Instruction did not nominate a time for compliance a "default" time period of 7 days attached. In fact, all "floor penetrations" were not properly secured and there was no cessation of work. On 29 July 2004, Mr Luke revisited the Workplace. After a discussion about a variety of other matters, Mr Luke turned his attention to the matter of "floor penetrations". He inquired whether Mr Fletcher had followed up his instructions and had physically checked the "floor penetrations" on level 16. It was the evidence of Mr Fletcher, who had not in fact physically inspected level 16 and was not sure of the "exact status" of the "floor penetrations" on that floor, that because Mr Luke continued to press him for information he said: -- 3 of 9 -- 4 "Well, let's go up and have a look and we'll - rather than me giving you an answer that may not be correct, let's go and have a look.". An inspection party consisting, inter alia, of Messrs Luke and Fletcher and Ms Shultz took a lift to level 14 and then walked up the stairs to levels 15 and 16. On level 16, the group walked down a corridor and turned a corner. A large, visible and unprotected penetration measuring approximately 1 metre wide by 2 metres long had been cut into the floor up against a wall. There was no fencing or other controls around the "penetration". Mr Luke expressed a measure of concern about that which he could see. Mr Fletcher's response was to say that all that had to happen was that a piece of loose ply lying upon the floor had to be moved forward to cover the "penetration". Mr Fletcher then picked up the closest end of the piece of ply to him and, using the other end of the piece of ply as a shovel to move a small amount of floor rubble, pushed it forward towards the visible penetration. As he moved forward sliding the ply, he fell through a "floor penetration" onto the concrete floor below. As indicated earlier, he sustained spinal, rib, shoulder and lung injuries. His spinal injuries resulted in paraplegia. It is against that background that I move to consideration of the defences at s. 37(1) and (2). The Acting Industrial Magistrate found that the Defendant was engaged in "construction work" of the type contemplated by ss. 184 and 186 of the Workplace Health and Safety Regulation 1997 and that the Defendant had not followed the way prescribed in the Regulation to prevent the contravention of the Act. That finding was challenged by the Defendant's Application to Appeal. However, that ground of appeal was not pursued. There was general agreement at first instance that the relevant advisory standard for the purposes of s. 37(1)(b) was the Risk Management Advisory Standard 2000 (the Standard). Consistently with the decision of this Court in Lutheran Church of Australia - Queensland District v Newman (2002) 170 QGIG at 248 the Acting Industrial Magistrate proceeded on the view that the five essential steps required by the Standard are: "(1) Identify hazards; (2) Identify risks that may result because of the hazards; (3) Decide on control measures to prevent or minimise the level of risks; (4) Implement control measures; (5) Monitor and review the effectiveness of the measures.". By his written Outline of Argument, Counsel for the Defendant summarises the Acting Industrial Magistrate's decision on compliance with the Standard as follows: "2.5 The Acting Industrial Magistrate correctly found that the Appellant satisfied the first and third steps required by the Risk Management Advisory Standard, namely: (1) The identification of the hazard associated with penetrations at the site; (2) The appellant made specific decision concerning the control measures that should be implemented to prevent or minimise the risk of a fall occurring through the slab penetrations on site. 2.6 However, the Acting Industrial Magistrate erred in finding that the Appellant failed to meet the other three steps required by the Risk Management Advisory Standard.". The Acting Industrial Magistrate's finding that the Defendant had "decided on control measures to prevent or minimise the level of risks" is said to be inconsistent with the finding that the Defendant had not "identified risks that may result because of the hazards". There is an inconsistency. However, the inconsistency arises out of the rigidity with which the Acting Industrial Magistrate separated out the five steps. For the purposes of exposition, the Acting Industrial Magistrate treated each of the steps as separate and discrete. I understand why it was to avoid unnecessary turgidity of style that the Acting Industrial Magistrate would take that approach. However, the steps are not separate and discrete. The steps overlap. When the Acting Industrial Magistrate concluded that the Defendant had "decided on control measures to prevent or minimise the level of risks", His Honour was concluding that the Defendant had decided on steps that would prevent or minimise the risks of falling through the "floor penetrations" if the control measures were implemented. The measures, one should add, were sufficiently comprehensive to grant protection against unidentified risks. However, having found that the control measures decided upon by the Defendant were "adequate", the Acting Industrial Magistrate went on to find that the control measures had not been implemented. Control measures which are not implemented are of no consequence. The truth is that, once it is recognised that the control measures were not implemented, it must also be recognised that the control measures were not "adequate" in that the measures did not contain a system to ensure their implementation. Indeed, because the obligation imposed by s. 28(1) is continuing the five steps, which are actually the five steps at s. 22(2) of the Act, are best seen as not merely overlapping but as moving. If the Defendant had shouldered the ongoing obligation to "identify risks that may result because of the hazards", the Defendant would have discovered that the control measures had not been implemented and would have been compelled to undertake again the task of deciding on control measures to prevent or minimise the level of risks. -- 4 of 9 -- 5 Accepting that the concept is "assessment of risks", not identification of risks", a conclusion that the Defendant had not assessed the risks which might result from the hazards, seems to me on the evidence at first instance to be unassailable. It is certainly true that even before Delta Pty Ltd had been contracted the Defendant had turned its mind to the issue of penetration protection. A record of a meeting between the Defendant and Delta Pty Ltd on 2 December 2003 records: "Penetration protection - Delta advise they can adequately cover - eg plywood etc, mesh panels or plywood marked and dynabolted to slab, or hand rails/kick rails to large penos. All protection will remain in place until building works made safe. Hand rails, etc to be removed and handed back to Delta progressively.". It is also clear that Mr Fletcher was generally aware of the risks associated with "floor penetrations". The Acting Industrial Magistrate was also aware of Mr Fletcher's state of knowledge. His Honour's decision quotes the following exchange from the transcript: "Counsel: Thank you. Not only on this site, but I take it over the years you have worked with Abigroup on sites, the fact of and presence of and risk posed by penetrations is something that you are entirely familiar with? Mr. Fletcher: Yep Counsel: The risk being? Mr. Fletcher: Fall Counsel: That people might fall through them? Mr. Fletcher: Fall, Yep Counsel: Hence, your discussions with Martin as to the importance of coverage or fencing? Mr. Fletcher: Yes.". However, the Standard requires that an obligation holder do more than turn its mind to the risks posed by identified hazards and be aware of the potential consequences of those hazards. Clause 4 of the Standard has the purpose of describing how the step required by s. 22(2)(b) is to be undertaken. It requires consideration of a likelihood of an incident occurring, an estimate of its consequences and a rating of risk based upon an analysis of those factors when combined. Whilst I accept the submission of Counsel for the Defendant that a written assessment is not required, I find it difficult to understand how such an assessment might be carried out without generation of a written or electronic record. In any event there is no evidence at all that an assessment of the type required was undertaken. It was certainly not sufficient for the Defendant to adopt the Work Method Statement prepared by Delta Pty Ltd. It was, of course, entirely appropriate for Delta Pty Ltd to produce such a document. Delta Pty Ltd was required to produce such a document by s. 58 of the Workplace Health and Safety Regulation 1997. However, the document is not a substitute for a risk assessment by an obligation holder under s. 28(1). The obligation created by s. 58 of the Workplace Health and Safety Regulation 1997 does not derogate in any way from the obligation carried by an employer pursuant to s. 28(1) of the Act. For completeness, I should add, there is nothing in the "Work Method Statement" to indicate that Delta Pty Ltd was conscious that the risks posed by a "floor penetration" might change if the "floor penetration" became hidden or concealed; nor is there any evidence that the Defendant turned its mind to the exacerbation of risk which concealment would create. The Acting Industrial Magistrate found that the "adequate" control measures identified by the Defendant had not been fully implemented. As a matter of first impression, on the basis of the admissions made at first instance and on the factual background which I have earlier outlined, His Honour's decision appears to me to be entirely correct. The case made against His Honour's conclusion is summarised by Counsel for the Defendant as follows: "Step 4 - Implement Control Measures 2.15 Implementation of the control measures must be considered in light of the Appellant's role as managing contractor at the site. It is evident from the contract documentation between the Appellant and the Crown in right of the State of Queensland through the Department of Health that whilst the Appellant was responsible as managing contractor to ensure completion of the contract works, the carrying out of the construction work with the contractor was to be performed under subcontracts which were to be made between the Appellant and subcontractors. The contract clause is referred to at paragraph [242] of the Acting Industrial Magistrate's decision as follows: -- 5 of 9 -- 6 'Construction Work under the Contract was to be performed under subcontracts which were to be made between the Defendant and subcontractors, unless otherwise agreed by representatives of Queensland Health in writing (clause 21.2.1 on page 85 of volume 1 of the Contract).' 2.16 Accordingly, in considering what steps the Appellant should take to meet its obligations under section 28(1) of the Act, proper regard must be given to the nature of the Appellant's business or undertaking, being that of a managing contractor, and the fact that in accordance with the contract the carrying out of construction work was to be performed by subcontractors. 2.17 In that regard, the Appellant refers to paragraph 24(d) of its submissions on sentence which sets out in detail the evidence concerning the steps taken by the Appellant to ensure implementation of the control measures by Delta. 2.18 It is submitted that in finding that the Appellant failed to implement the control measures as required by the Risk Management Advisory Standard, the Acting Industrial Magistrate erred in properly considering the steps the Appellant took to ensure the agreed control measures were implemented by Delta in its role as managing contractor at the site.". With respect, the summary encapsulates the problem with the argument which the Defendant is compelled to put. Starting from the proposition that Delta Pty Ltd who, by its servants and contractors bore the burden of demolishing, removing hazardous materials and refurbishing, had the carriage of discharging the obligation to ensure the health and safety of those at the Workplace, the contention is developed that the Defendant's role was to manage Delta Pty Ltd's discharge of the obligation and that the Defendant did that by considering Delta Pty Ltd's control measures, conducting periodic inspections of the Workplace, drawing matters to the attention of Delta Pty Ltd, and providing Delta Pty Ltd with advice, requests and directions. From what I have seen of the (very voluminous) agreements governing the exercise in demolition and refurbishment, the contention seems to have a sound contractual basis. However, the obligation cast upon the Defendant by the Act is the obligation of ensuring the workplace health and safety of each of its workers in the conduct of its business or undertaking at the workplace. By s. 22(2) workplace health and safety is (generally) to be managed by taking the five steps further developed in the Standard. That management is to be management by the Defendant. The management required management of the risks. The obligation imposed by s. 28(1) is absolute and non-delegable and it is of no consequence that Delta Pty Ltd has the same or similar obligations to a range of persons including the employees of the Defendant. It was not enough for the Defendant to manage Delta Pty Ltd. In my view the Acting Industrial Magistrate was entirely correct to find that the Defendant did not monitor and review the effectiveness of the control measures. So far as monitoring is concerned, the Defendant seems to have relied upon the same process as it used to identify hazards; viz., observance in the course of moving through the Workplace for other reasons. There is no evidence of servants or agents of the Defendant following up requests and directives issued to Delta Pty Ltd to ensure that appropriate control measures had been implemented. Even in circumstances in which Mr Luke had raised issues about "floor penetrations" with Mr Fletcher and Ms Schultz and in circumstances in which Mr Fletcher assumed that Mr Luke would reappear to inquire about what had been done, there was no attempt to follow up the oral directions to Mr Gill and the Site Instruction. There was certainly no review of the effectiveness of the various measures which were being taken. In particular, even on 27 July after Mr Luke had raised the issue of "floor penetrations", Mr Fletcher chose to rely on oral direction and the issuing of a further Site Instruction which, as the Acting Industrial Magistrate expressly found, was "a method that had proved somewhat ineffective on a previous occasion". No consideration seems to have been given to the step which the Acting Industrial Magistrate rightly found was open to the Defendant of bringing all work at the Workplace to a halt until such time as the Defendant was satisfied that the risks emanating from the "floor penetrations" had been properly controlled. On the contrary, as the Acting Industrial Magistrate found the Defendant "...appeared to be content to let the issue continue to drift without any increasing sense of urgency to address the problem.". In my view, the Defendant failed to make out a defence pursuant to s. 37(1)(b)(ii) of the Act. Whilst s. 37(1)(b)(ii) does not require that the other way of managing exposure to risk needs to be reduced to writing, it seems to me that both at first instance and on appeal, the Court dealing with the matter is entitled to know what the "other way" actually was. Here, what is pointed to, is the evidence which was held to be insufficient to establish that the Standard had been adopted and followed. As noted above, that evidence showed that the Defendant was about the business of managing Delta Pty Ltd and was not about the management of exposure to risk. If s. 26(3)(b) of the Act be relevant, a body of evidence which shows that the Defendant did not do all that the Standard required cannot establish that the Defendant was "following another way that gives the same level of protection against the risk". As to the defence of s. 37(2) of the Act, it seems to me to misconceive the nature of the defence to assert that "... the Appellant could not possibly have done anything more to avoid Mr Fletcher's sudden unannounced and unforeseen departure from his normal practice in circumstances where he was being 'badgered' by the inspector ...". The breach of s. 28(1) and, in consequence, the breach of s. 24 was complete before Mr Fletcher fell through the concealed "floor penetration". So long as the causal nexus between the circumstance of aggravation and the breach was established, it -- 6 of 9 -- 7 matters not that the precise mechanism of injury was unforeseeable. The Acting Industrial Magistrate's findings that the Defendant did not take the steps which it might and should have taken to manage the safety of its employees at the Workplace had been rehearsed above and inevitably lead to the conclusion that the breach of the obligation at s. 28(1) and therefore of s. 24, was not attributable to a cause beyond the Defendant's control. In my view, the Defendant's Appeal against its conviction should be dismissed. The decision of the Acting Industrial Magistrate finding the Defendant guilty of failing to discharge its obligation to ensure the workplace health and safety of its employees at the Workplace was delivered on 29 June 2007. The Acting Industrial Magistrate then took submissions on penalty and on 16 November 2007, delivered the sentencing decision. The penultimate paragraph was in the following terms: "5. Formal Orders [26] Taking into account the reasons on liability previously delivered together with the remarks in this decision and the written submissions of both parties, in my view any penalty fixed in these proceedings must contain a significant aspect of deterrence having regard to the maximum penalty at law. The formal orders of the Court will be as follows:- 1. The defendant be convicted, and a conviction should be recorded against the defendant. 2. The defendant will pay a fine of one hundred and twenty-five thousand dollars ($125,000-00) together with the complainant's professional costs of two thousand six hundred and twenty-five dollars ($2,625-00) and witness expenses of two hundred and seventy-five dollars ($275-00) and investigation costs of two thousand five hundred dollars ($2,500-00) and court costs of sixty-three dollars and twenty cents ($63-20). 3. The defendant will be allowed nine (9) months from this date to pay the several sums ordered against it in paragraph two of this order. 4. In default of payment by the defendant of those several sums ordered in paragraph two of this order, within the time allowed in paragraph three of this order, the defendant company will suffer levy and distress.". The Defendant, who had filed an appeal against the substantive decision on the matter of liability on 20 July 2007, filed an appeal against the quantum of the fine imposed and against the decision to record a conviction on 28 November 2007. (There was also an appeal against the orders about costs. That aspect of the Appeal was not pursued.) The Appeal against the substantive decision on liability and the Appeal against sentence were heard contemporaneously on 31 March 2008. It was in the nature of that process that there would be some overlap of the arguments developed on each of the Appeals. For example, on the Appeal against the conclusion that the Defendant was guilty of the offence, the Defendant contended that the Acting Industrial Magistrate should have found that the Defendant had ensured that appropriate control measures were put in place to prevent or minimise the risk of a person falling through slab penetrations. Inevitably, it was contended on the Appeal against sentence, that the Acting Industrial Magistrate erred in proceeding on the basis that the Defendant had not taken that step. Having upheld the Acting Industrial Magistrate's finding that the Defendant had not ensured that appropriate control measures were put in place to prevent or minimise the risk of a person falling through the slab penetrations, I find it unnecessary to deal with the submission on the sentence Appeal that the Acting Industrial Magistrate erred in proceeding on the view that the step had not been taken. In the same way I put aside a submission that the Defendant had a comprehensive system to manage safety at the site, and a submission that the Defendant, as managing contractor, had in place a system for reviewing the control measures for "floor penetrations". The submission that fault for the incident lay primarily with two labour hire workers engaged by Delta Pty Ltd and Delta Pty Ltd's failure to properly supervise the two labour hire workers is (perhaps) deserving of some comment. The short answer is that each of the Defendant and Delta Pty Ltd had obligations under the Act. However, Delta Pty Ltd's obligations were separate and distinct from the absolute obligation cast upon the Defendant by s. 28(1). So too were the offences separate and discrete. The Defendant and Delta Pty Ltd were not co-defendants. The Acting Industrial Magistrate was entirely correct to reject an argument pressed upon His Honour to sentence on the basis of the relative fault of all of those who had failed to discharge an obligation. To adopt that approach would have been to fall into the error of applying principles which, at the point of sentence, would undermine the policy of the Act by distributing liability as if the Act established a fault-based scheme. The process of sentencing involves the exercise of a judicial discretion. The discretion was vested in the Acting Industrial Magistrate. This Court is entitled to interfere only on the limited basis described in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. Here, Counsel for the Defendant very properly concedes that the Acting Industrial Magistrate was correct to take as a starting point the nature and quality of the Defendant's (mis-) conduct and the objective gravity of the offence, to discount the perception of the offence developed on that basis to allow for mitigating factors and settle on a global figure. In those circumstances, and given the dismissal of the arguments set out above, save as to the matter of recording a conviction, the case is really about whether the penalty -- 7 of 9 -- 8 imposed was so severe as to justify a conclusion that for a reason which does not appear, the Acting Industrial Magistrate erred either in law or in principle. In my view the Acting Industrial Magistrate was entirely correct to start from the proposition that the offence was grave and serious and called for a deterrent sentence. The reasoning lying behind His Honour's conclusion that the offence was grave and serious appears sufficiently at paras [18] to [20] of His Honour's sentencing decision: "[18] Abigroup had the power to monitor closely the works of its subcontractors, including Delta, to ascertain when penetrations would be completed, and undertake systematic inspections of the penetrations after completion to ensure that work method statements had been complied with, had it chosen to do so. [19] The defendant had the power, through the administrative system of site instruction and ultimately through its contractual 'stop work sanction' to take remedial action when the issues of uncontrolled core holes, penetrations and voids were not being dealt with appropriately. Unfortunately for Mr. Fletcher, the defendant ultimately chose not to exercise the control that it had to remedy the continuing issue of uncontrolled penetrations. [20] Even before the Workplace Health and Safety Inspector, Mr Luke, raised the issues of non-compliance of the voids, penetrations and core-holes with published safe work method statements, the defendant had notice of the issues through it's regular on site health, safety and environment committee meetings which was attended by it's own safety advisor Ms. Schultz and despite the significant number of warnings the defendant was content to allow the matter to be dealt with by it's sub-contractors in their own good time. There was no sense of urgency to address the issues over a continuing period of at least a month, and unfortunately Mr. Luke's visits were seen as an inconvenience, and his actions treated as an annoyance.". I cannot accept that the circumstances of this matter fall within the category of case referred to in Waltham v Transfield Services (Australia) Pty Ltd (2007) 184 QGIG 179 at 183. This was not a case of lower level grievous bodily harm injury. The injuries led to paraplegia. Neither was it a case of momentary lapse. There was inertia bordering on complacency on the part of both Mr Fletcher and Ms Schultz. There is no comparator to which one might reasonably go. The facts of the matter are entirely singular. A senior staff member with wide experience in workplace health and safety and previously recognised for his contribution to workplace health and safety, injured himself in the very presence of a workplace health and safety inspector seeking to ascertain what had been done about the very type of hazard which led to the employee's injury. Put aside the orders about costs, the fine imposed was one-third of the available maximum. As the Acting Industrial Magistrate rightly observed, mitigating factors which are often present were not present. There was not an early plea of guilty. The Defendant was not a first offender. There was a previous Queensland conviction and convictions in other jurisdictions. Those convictions may not have justified sentencing the Defendant on the basis that the Defendant was a recalcitrant of no corporate character, but the Acting Industrial Magistrate did not sentence on that basis. The Acting Industrial Magistrate simply treated the convictions as denying the Defendant the opportunity to claim in mitigation that the Defendant was a first offender of good character. Section 9(2)(k) of the Penalties and Sentences Act 1992, I should add, is about sentencing for an offence committed at or about the same time as the offence for which the sentence was imposed in another jurisdiction. The section has no application here. The Acting Industrial Magistrate rightly recognised the Defendant's grief at the injury to Mr Fletcher and the considerable post-injury assistance which the Defendant made available to him and (perhaps generously) accepted that the Defendant was remorseful. However, those factors need to be weighed in a balanced way against the need for deterrence and denunciation. In my view the Acting Industrial Magistrate did balance the factors in an appropriate way. The fine imposed on Delta Pty Ltd was very much lower, viz. $38,000.00. In my view the explanation for the difference lies not in the difference in mitigating circumstances but in the Defendant's decision to go to trial. I quite accept that, where a timely plea of guilty is a mitigating factor, insisting on the right to appeal is not a circumstance of aggravation. However, where there is a plea of guilty an industrial magistrate will often have little more than a brief history from the bar table and/or an agreed statement of facts. Here, the transcript of the sentencing hearing and the decision on transcript dealing with Delta Pty Ltd (annexed to the Affidavit of the Defendant's Northern Region Service Manager, David Edward Jenkinson) show that the Acting Industrial Magistrate (reasonably) thought that it was a case of safe system of work frustrated by a casual lapse not detected by a basically sound supervision system. Here, the Industrial Magistrate was educated by the evidence and fully appreciated that it was a case of systemic breach. The troubling matter is the Acting Industrial Magistrate's decision to record a conviction. His Honour did not give a reason. Reasons for a decision to record or not record a conviction are seldom given. However, the Affidavit filed by Mr Jenkinson established that, in tendering for future contracts, there was every likelihood that the Defendant would be required to reveal a recorded conviction. The Defendant (not unreasonably) entertained an apprehension that revealing the conviction might jeopardise the Defendant's prospects of tendering successfully. On the assumption that "economic well-being" at s. 12(2)(c)(i) of the Penalties and Sentences Act 1992, extends to the "economic well-being" of a corporate defendant, the delegation to consider whether or not to record a conviction was squarely triggered. -- 8 of 9 -- 9 Recognising that s. 12 vests a discretion and that the discretion was vested in the Acting Industrial Magistrate, it seems to me that the Defendant's Appeal on this matter, must lead to the decision of the Acting Industrial Magistrate's being set aside on the simple ground that the Defendant was entitled to reasons and was not given reasons. Given the effluxion of time (the Acting Industrial Magistrate's decision was given on 16 November 2007) and that the relevant materials were written, rather than remit the matter I propose to exercise the power at s. 351(4)(b) of the Industrial Relations Act 1999 and substitute another decision. At the request of the Court, Junior Counsel for the Complainant and the Solicitor for the Defendant perused records of "court results" retained by the Division of Workplace Health and Safety. They reported to the Court as follows: "1. The Appellant and Respondent have perused tabulated internal records of court results retained by Workplace Health and Safety Queensland ('the Records'). 2. The Records for convictions occurring prior to the 2000 calendar year are few in number and incomplete. 3. The Records relating to convictions for offences under relevant Workplace Health and Safety legislation from 1 January 2000 disclose that there were 72 convictions of offenders with one previous conviction under the legislation (excluding the matter before this Court). 4. Twenty One (21) of these convictions were recorded and fifty one (51) were not. 5. Given the relevant sentencing variables and discretionary nature of the sentencing process, the parties consider that the records do not contain sufficient information to enable any further accurate submission as to the existence or otherwise of any common practice in relation to the application of s. 12 of the Penalties and Sentences Act 1992 (Qld) by Industrial Magistrates.". The discretion at s. 12 - at least in the case of prosecutions under the Workplace Health and Safety Act 1995 - seems to be unfettered by authority. I note the changes made by the Defendant since 29 July 2004. However, those enquiring about the Defendant's history are persons with a legitimate interest in knowing. Given that the Defendant has already had the indulgence of an unrecorded conviction, it seems to me that the conviction should be recorded. In all the circumstances I confirm the Acting Industrial Magistrate's orders on sentence. As a matter of prudence I reserve all questions as to costs on both Appeals. Dated 12 May 2008. D.R. HALL, President. Released: 12 May 2008 Appearances: Mr R. Perry SC, instructed by Mr A. Anderson of Deacons Lawyers, for the Appellant. Mr M. Byrne QC, instructed by Mr G. Lee of Legal and Prosecution Services Unit, Division of Workplace Health and Safety, the Department of Employment, Training and Industrial Relations, for the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 9 of 9 --