DIRECTOR OF ENERGY SAFETY and HERMANNS AND ROSSI ELECTRICAL CONTRACTORS PTY LTD

[2007] WASAT 327

DIRECTOR OF ENERGY SAFETY and HERMANNS AND ROSSI ELECTRICAL CONTRACTORS PTY LTD [2007] WASAT 327

Last Update :05/06/2008

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 327
Published:
Act:	ELECTRICITY ACT 1945 (WA)
Case No:	VR:124/2006, VR:125/2006	Heard:	19 AND 20 JUNE 2007
Coram:	JUDGE J ECKERT (DEPUTY PRESIDENT), MS K LANG (SESSIONAL MEMBER), MR R CAMPBELL (SESSIONAL MEMBER)	Delivered:	20/06/2007
No Pages:	56	Judgment Part:	1 of 2
Result:	There is proper cause for disciplinary action against each respondent.
Category:	B

Parties & CatchwordsOrders

Judgment: Pages 51 to 56


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : ELECTRICITY ACT 1945 (WA) CITATION : DIRECTOR OF ENERGY SAFETY and HERMANNS AND ROSSI ELECTRICAL CONTRACTORS PTY LTD [2007] WASAT 327 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT)

MS K LANG (SESSIONAL MEMBER)
MR R CAMPBELL (SESSIONAL MEMBER)

HEARD : 19 AND 20 JUNE 2007 DELIVERED : 20 JUNE 2007 FILE NO/S : VR 124 of 2006 BETWEEN : DIRECTOR OF ENERGY SAFETY

Applicant

AND

HERMANNS AND ROSSI ELECTRICAL CONTRACTORS PTY LTD
Respondent

FILE NO/S : VR 125 of 2006 BETWEEN : DIRECTOR OF ENERGY SAFETY

Applicant

AND

VINCENT LEONARD ROSSI
Respondent

(Page 2)

Catchwords:

Disciplinary proceedings ­ Application to cancel electrical licence ­ Serious conviction following electrocution of worker ­ Proper cause for disciplinary action

Legislation:

Electricity (Licensing) Regulations 1991 (WA), reg 3, reg 19, reg 30, reg 31, reg 46, reg 47
Legal Practitioners (Supreme Court)(Contentious Business) Determination 2006 (WA)
Occupational Safety and Health Act 1984 (WA), s 19, s 20
State Administrative Tribunal Act 2004 (WA), s 87
State Administrative Tribunal Rules 2004 (WA), r 40, r 41

Result:

There is proper cause for disciplinary action against each respondent.

Category: B

Representation:

VR 124 of 2006

Counsel:

Applicant : Mr C Bydder
Respondent : Mr S Davies

Solicitors:

Applicant : State Solicitor's Office
Respondent : Jonathan Eastoe, Solicitor

VR 125 of 2006

Counsel:

Applicant : Mr C Bydder
Respondent : Mr S Davies

(Page 3)

Solicitors:

Applicant : State Solicitor's Office
Respondent : Jonathan Eastoe, Solicitor

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Chan and Nurses Board of Western Australia [2005] WASAT 115
Fox v Percy (2003) 214 CLR 118; (2003) 197 ALR 201
Hughes & Vale Pty Ltd v New South Wales (No 2) (Transport case) (1955) 93 CLR 127
Lenzo and Executive Director, Department of Fisheries (WA) [2005] WASAT 218
Medical Board of Western Australia and Roberman [2005] WASAT 118
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Registrar, Real Estate & Business Agents Supervisory Board v Barnett, (unreported, WASC, Library No 970426, 26 August 1997)
Tavelli v Johnson, (unreported, WASC, Library No 960693, 25 November 1996)
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 In 2002, Goldfields Contractors WA Pty Ltd engaged licensed electrical contractor Hermanns and Rossi Electrical Contractors Pty Ltd on a subcontract basis to install street lighting in Madeley. Hermanns employed licensed electrical worker Mr Vincent Rossi as its nominated electrical worker, and as foreman of this project.

2 On 11 December 2002, Mr Rossi and fellow Hermanns employee, Mr Desmond Nicholson, attempted to install a light pole at Hepburn Avenue, Madeley, with the assistance of Mr John Smith, a crane operator employed by Lazza's Hiab and Tilt Tray Services Pty Ltd. The pole came into contact with high voltage overhead wires which resulted in the death of Mr Nicholson by electrocution. Mr Smith and Mr Rossi were injured.

3 On 14 October 2005, Hermanns and Mr Rossi were convicted of offences under the Occupational Safety and Health Act 1984 (WA) for causing the death of Mr Nicholson. The Director of Energy Safety then commenced disciplinary proceedings in the State Administrative Tribunal, alleging that proper cause for disciplinary action existed by reason that Hermanns and Mr Rossi were not fit and proper persons to hold a licence, and that they had permitted or carried out electrical work in a manner that endangered a person or was negligent.

4 The Tribunal found that the respondents' safety practices had improved significantly since the accident. The Tribunal was not satisfied on the evidence of the accident, three past warnings and Mr Rossi's temporary suspension by the Office of Energy, that the respondents were not currently fit and proper to hold a licence.

5 The Tribunal was satisfied on the evidence of the accident that the respondents had permitted to be carried out, or carried out, electrical work in a manner that endangered a person and was negligent, in breach the Electricity (Licensing) Regulations1991 (WA).The Tribunal accordingly found there was proper cause for disciplinary action.

6 The Tribunal censured the respondents, imposed restrictions and conditions on the respondents' licences including a requirement that Mr Rossi be supervised when undertaking electrical work, that he successfully complete specified educational courses of study and that his registration as the nominated electrical worker is cancelled for one year. The Tribunal also made a costs order against the respondents.

(Page 5)

Licensing Background

7 Hermanns and Rossi Electrical Contractors Pty Ltd (Hermanns) is the holder ofelectrical contractor's licence number EC004236, issued on 11 July 1991.

8 Mr Vincent Rossi has been the holder of electrical worker's licence number EW111538 since 7 July 1983. Mr Rossi is currently the nominated electrical worker and a director of Hermanns.

The Applications

1. The Director of Energy Safety (the Director) alleges against Hermanns in VR 124 of 2006 that:
(a) it is not a fit and proper person to hold an electrical contractor's licence because:
(i) on 14 October 2005 Hermanns was convicted of failing to provide and maintain, so far as practicable, a working environment in which its employees were not exposed to hazards and by that contravention caused the death of its employee, Desmond Nicholson, contrary to s 19(1) and s 19(7) of the Occupational Safety and Health Act 1984 (WA) (OSH Act);

(ii) Hermanns' conviction under the OSH Act demonstrates incompetence and negligence associated with work that was related to, and drew upon, electrical skill Hermanns required to hold its licence. The incompetence and negligence shown by Hermanns demonstrates that the public may be put at risk if Hermanns is permitted to continue as an electrical contractor;

(b) Hermanns permitted electrical work to be carried out in a manner that endangered a person and was negligent;
2. The Director alleges against Mr Rossi in VR 125 of 2006 that:

(Page 6)

(a) he is not a fit and proper person to hold an electrical worker's licence because:
(i) since receiving his licence on 7 July 1983, he has received three letters of warning relating to work done on 18 January 1985, 15 July 1987 and 31 July 1990;

(ii) his licence was suspended from 7 July 2000, after he had failed a competency assessment, to 18 April 2001, when he successfully completed a competency assessment on his third attempt;

(iii) he was convicted on 14 October 2005 of failing to take reasonable care to avoid adversely affecting the safety of other persons, thereby causing the death of Mr Nicholson, contrary to s 20(1)(b) and s 20(5) of the OSH Act;

(iv) as an electrical worker, Mr Rossi's knowledge and training ought to have informed him as to the dangers of working in close proximity to high voltage powerlines;

(v) Mr Rossi's recent conviction under the OSH Act demonstrates incompetence and gross negligence associated with work which was related to, and drew upon, the electrical skills he required to hold his licence;

(vi) Mr Rossi's previous disciplinary history and, in particular, his licence suspension, demonstrates a history of incompetent electrical work; and

(vii) the incompetence shown by Mr Rossi demonstrates that the public may be put at risk if he is permitted to continue to hold his licence and undertake electrical work,

(Page 7)

and that he ought not be permitted to pursue his trade.
(b) Mr Rossi carried out electrical work in a manner that endangered a person and was negligent;
3. The Director seeks orders that:
(a) Hermanns' electrical contractor's licence be cancelled under reg 47(2)(a) of the Electricity (Licensing) Regulations 1991 (WA) (the Regulations); and

(b) Mr Rossi's electrical worker's licence be cancelled under reg 31(2)(a) of the Regulations.

The hearing

9 We heard submissions and evidence on 19 and 20 June 2007. At the outset, counsel for the respondents made submissions regarding the admissibility of Mr Bunko's evidence and we deal with those submissions in our findings.

10 At the close of proceedings on 20 June 2007 we adjourned for a period of time and then delivered our decision and an outline of our reasons for the decision. These written reasons reflect the oral reasons given on that day and expand on them in accordance with our written notes made at the time referred to in our oral reasons.

The evidence

11 Hermanns and Mr Rossi were prosecuted under the OSH Act in the Magistrates Court. Hermanns was charged with failing to provide and maintain a working environment in which its employees were not exposed to hazards; Mr Rossi was charged with failing to take reasonable care to avoid adversely affecting the safety of other persons, through an omission at work. This conduct caused the death of Mr Nicholson. Those charges were heard on 29, 30 and 31 August 2005.

OSH prosecution

12 In his written reasons for decision delivered on 14 October 2005, Magistrate Tarr set out the statement of facts on which the prosecutor relied for each charge and held that the statement was "generally supported by the evidence":

(Page 8)

"In relation to Hermanns and Rossi it is stated that the company was engaged on a subcontract basis to install street lighting for a road works project to extend Hepburn Avenue between Giralt Road and Mirrabooka Avenue in Madeley. The main contractor for the project was Goldfields Contractors WA Pty Ltd.

Vince Rossi, an employee of the defendant [Hermanns] acted as foreman in respect of the works being done by [Hermanns]. On 11 December 2002 Vince Rossi, Desmond Nicholson and other employees of [Hermanns] were working at the site.

Preparatory work had been done for the installation of streetlights at the site. The holes for the streetlights had been dug, the poles had been positioned around the site near the holes and the various components of the streetlights had been assembled. Between 11.20am and 11.45am John Smith, a vehicle loading crane operator, employed by Lazza's Hiab and Tilt Tray Services Pty Ltd arrived at the site to lift the streetlights into position. On arrival Smith was directed by Rossi to set up the vehicle load crane ('the Hiab') at the corner of Hepburn Avenue and Bellerive Road to install the first pole ('the pole').

The pole was approximately 12.5 metres long and with the curved outreach extended to 14.5 metres in total length. The pole was to be installed into a hole with dimensions of approximately 1.6 metres by 2.9 metres wide and 2.2 metres deep. The pole weighed 210 kilograms. The hole had been dug the day before by Desmond Nicholson. Above the hole were overhead powerlines comprising three live conductors. The powerlines were 13.7 metres above the ground in respect of the red phase conductor, which was the lowest in height of the three live conductors. The overhead powerlines were high voltage lines being 132,999 volts.

Smith set up the Hiab near the hole. Smith set out the crane slings into a configuration to lift the pole then laid out the crane sling assembly adjacent to the pole. The pole was lying parallel with Hepburn Avenue towards Wanneroo Road with the base of the pole approximately 2 metres away from the hole. Rossi then attached the sling assembly to the pole.

(Page 9)

Smith operated the Hiab to raise the pole into position. Rossi was holding onto the pole to steady it and control its direction. Smith was in control of the Hiab standing on the driver's side of the truck at the crane operator's position. Smith fully extended the Hiab's boom to its maximum length of 10.3 metres to lift the pole off the ground. The pole was eventually lifted off the ground. Smith was slewing the Hiab's boom and lifting until the pole was vertical and either over the hole or at the edge of the hole. As the pole was raised in an almost vertical position the single outreach and light head section of the pole tended to rotate towards the overhead powerlines. The pole was hot having been lying in the sun and Rossi had difficulty controlling the spin of the pole to keep it away from the overhead powerlines. Smith handed Rossi a pair of leather gloves and at this point Nicholson was also holding onto the pole as Rossi put on the gloves.

Soon after this the pole was being lowered into the hole with Smith retracting the Hiab's boom approximately 1 metre. At this moment the head section of the pole rotated and made contact with the red phase electrical conductor. Witnesses heard two explosions and observed flashes of light travelling down the pole and the slings immediately after the pole made contact with the powerlines. This resulted in an electrical current travelling in parallel paths down the pole and down the boom of the vehicle of the Hiab earthing through the truck tyres and through Nicholson, Rossi and Smith. Western Power records indicate that the pole made contact with the overhead powerline at approximately 12.05pm. Nicholson was electrocuted and thrown into the hole. Nicholson could not be revived and was pronounced dead a short time later. Rossi was thrown to the ground landing on the road between the truck and the hole. He received second and third degree burn injuries to his back and right shoulder and severe injuries to his left leg which subsequently resulted in partial amputation. Smith was thrown away from the truck landing on his feet. Smith received an electric shock with an entry wound in his right ankle and an exit wound in his right calf.

[Hermanns] was responsible for the installation of the streetlight poles. [Hermanns] had no documented safety procedures or systems in place for work being done in the vicinity of overhead powerlines. [Hermanns] did not undertake a job safety analysis of the task before the work commenced. [Hermanns]

(Page 10)

did not make any arrangements with Western Power for the overhead powerlines to be isolated, insulated or de-energised before the work commenced in the vicinity of those powerlines, nor did it ensure that such arrangements were made."

13 The Magistrate continued:

"Generally the Statement of Facts for Rossi is the same as that for [Hermanns]. The first paragraph identifies Rossi as an employee of [Hermanns] and the last paragraph reads as follows:
'[Mr Rossi] was aware the overhead powerlines were live. When speaking to Nicholson and Smith immediately prior to the installation work commencing [Mr Rossi] said, "let's be careful of the HV lines". Knowing that the overhead powerlines were live [Mr Rossi] should not have either directed the street light pole to be raised and installed or allowed the work to proceed. As the foreman [Mr Rossi] should have ensured that a job safety analysis of the task had been undertaken before any work commenced. He should have ensured that arrangements had been made with Western Power for the overhead powerlines to be isolated, insulated or de-energised before work commenced in the vicinity of those powerlines.'"

14 The Magistrate convicted both Mr Rossi and Hermanns of the OSH Act offences, finding:

"... there can be no doubt that the defendants [Hermanns and Mr Rossi] were working well within the danger zones and that is the reason the light pole came into contract with the live overhead power lines.

I find that the defendants should have readily identified the hazard to which employees of [Hermanns] were to be exposed when installing the light pole in such close proximity to live overhead high voltage power lines…

As I have mentioned, there can be no doubt that the hazard of contact with live high voltage overhead powerlines raises a high severity of any potential injury or harm to health and often results in death.

(Page 11)

There is a high foreseeable risk. The means of removing such a risk are available and suitable and at a cost which is not prohibitive.

It was practical for the defendants to have ensured that the light pole did not come into contact or come into proximity with the live high voltage overhead powerlines. Arrangements could and should have been made with Western Power to switch off the power to those power lines.

It is argued by defence counsel that the defendants relied on the expertise of John Smith the hiab operator but it was Mr Rossi who was generally directing Mr Smith and who was a licensed electrical contractor. Mr Smith gave evidence that he had raised street poles before, mostly in new subdivisions, but not under live power lines. When asked whether he would have raised the pole if he had known the overhead powerlines were live he said, "No"…

I am satisfied beyond reasonable doubt that the defendant [Hermanns] was responsible under the [OSH] Act to provide and maintain a working environment in which its employees were not exposed to hazards and the defendant Rossi failed to take reasonable care to avoid adversely affecting the safety of other persons and are responsible for the death of Desmond Nicholson.

I find both charges proven."

Michael Bunko

15 Mr Bunko testified that he is the Chief Electrical Inspector of EnergySafety with the Department of Consumer and Employment Protection. He has held that position for 16 years, has a number of relevant educational qualifications, an A grade electrical worker's licence and 34 years' experience as an electrical worker.

16 As part of his duties as Chief Electrical Inspector, Mr Bunko reviews and assesses all investigations reports and makes recommendations to the Director on whether or not to commence proceedings for disciplinary and prosecution actions.

(Page 12)

17 Mr Bunko attended the accident scene on 11 December 2002 on being advised that Mr Nicholson had been electrocuted. He arranged for Mr Peter Johnston, a WorkSafe inspector, to commence an investigation.

18 After detailing his observations, Mr Bunko states at [27] of his statement:

"I found it extremely astonishing that an electrical worker and electrical contractor nominee could permit the installation of a street lighting pole in circumstances where it was evident that if the 132 kV powerline were live and the street lighting pole contacted or came close enough to the powerline, such action would cause damage to equipment and in all likelihood serious injury or death."

19 Mr Rossi was interviewed on 20 February 2003 by Mr Johnston. In his witness statement, Mr Bunko set out his opinion on the record of interview based on his reading of it and on his experience in the field and what he observed when visiting the accident site:

"[30] The following statements made by Mr Rossi make it clear to my mind that he did not possess the necessary skill or experience to carry out this work safely and he did not understand the necessary clearances required to be maintained from high voltage conductors.

[31] Mr Rossi indicated that he was aware of the 132kV powerline well prior to the day of the incident and yet he did not notice any hazards prior to commencing work on the day of the incident. As an electrical worker and electrical contractor he should have undertaken a risk assessment, then ensured that the 132 kV powerline was isolated and earthed and that no work commenced to stand up the pole until these tasks were completed.

[32] Upon arrival on site prior to commencing work, I would have expected Mr Rossi, as an electrical worker and foreman for this job, to immediately realise the extreme dangers the 132kV powerlines posed. In particular, I would have expected him to realise that he would not be able to comply with WorkSafe and Western Power's required clearances, or indeed, the safety clearance from high voltage conductors that any competent electrical worker would know was required.

(Page 13)

[33] The basic knowledge that an electrical worker would have about the need for safety clearances around high voltage conductors should have suggested to Mr Rossi that the clearance was inadequate and, at the very least, have caused him to cease work until he was satisfied that the job could be undertaken safely. This may have involved him making inquiries of Western Power and/or Goldfield Contractors' design engineers.

[34] Further, given the work that Mr Rossi was engaged in, he should also have been aware of the relevant WorkSafe and Western Power high voltage safety clearance requirements. If Mr Rossi is not aware of the requirements of a particular kind of electrical work, neither he nor his company should begin such work. I note in this regard that in his record of interview, Mr Rossi said that he had not stood up a pole above 6.5m in length before. In my opinion, Mr Rossi should have made himself aware of any requirements relevant to that work, prior to undertaking it.

[35] In his record of interview, Mr Rossi acknowledged that the only advice he gave about the 132 kV powerline to his work crew was "let's be careful of the HV lines". In my opinion, this caution was grossly inadequate. The work crew should have been fully informed of the likely hazard that the 132kV powerline posed and what must be done to address this hazard. In this case, as I have noted above, the 132kV powerline should have been isolated and earthed and no work to stand up the pole should have been commenced until these tasks were completed.

[36] …

[37] In light of what occurred on the day and what I have set out above, it appears to me that Mr Rossi has no appreciation of the dangers high voltage electricity can present. He also cannot determine what electrical work he should undertake within his scope of experience. Further, it is clear to me that he is not able to carry out even the most basic risk assessment process.

(Page 14)

[38] In my view Mr Rossi also demonstrated that he cannot supervise an employee to ensure their safety and therefore he should not be able to supervise apprentices or other electrical workers who require supervision."

20 Mr Bunko then referred to Mr Rossi's electrical worker's file, which he noted at paragraph [39]:

"… discloses that Mr Rossi was issued with the following warning letters:

(a) 18 January 1985 – performed work without first obtaining the required licence and the consumer's main had not been installed to the specified depth;

(b) 15 July 1987 – substandard electrical installing work which did not comply with AS 3000 SAA Wiring Rules; and

(c) 31 July 1990 – wiring to an electric cooking range was not isolated from supply – breach of regulations 203 and 236 of the Electricity Regulations 1947 ..."

21 Mr Bunko goes on in his witness statement to refer to Mr Rossi's suspension:

"[42] Mr Rossi's licence was suspended on 7 July 2000 for three months as a result of his failing a competency assessment that he was required to undertake by the Electrical Licensing Board in relation to his position as nominee of Hermanns and Rossi Electrical (EC 004236).

[43] Mr Rossi failed to successfully complete a competency assessment on his second attempt and his licence remained suspended until 18 April 2001 when he successfully completed a competency assessment on his third attempt. The competency assessment deals mainly with basic technical issues such as ensuring that electrical work complies with the Wiring Rules.

[44] Mr Rossi's history, and in particular his two failures to successfully complete a basic competency assessment in 2000, demonstrates that he did not maintain his skills as an electrical worker and that his performance as an electrical worker has been substandard on at least four occasions (including

(Page 15)

the incident giving rise to his conviction)."

22 In answer to further questions from counsel for the Director, Mr Bydder, Mr Bunko testified that a worker need not come into direct contact with a high voltage power line to be at risk of electrocution:

"You don't have to touch it though, but, certainly, I would expect that if you are within 200 or 300 millimetres it would be sufficient for the electricity to transgress the resistance of the air and you would receive a severe electric shock." (T:37)

23 Mr Bunko then referred to the Code of Practice, issued by the Director since 1998 under the Electricity Act 1945 (WA). A copy of the Code is sent to every electrical worker in the State. This document sets out the required 6 metre danger zone or safety clearance which workers must observe around power lines. Appropriately trained and skilled persons wishing to work up to 1.5 metres from power lines must seek a permit from Western Power which would attach conditions to ensure a safe work system.

24 Mr Bunko explained that if an application had been made by the respondents, Western Power could have de-energised the power lines, with no impact on consumers of electricity in the area, if done at the right time.

25 Mr Bunko agreed under cross­examination that his knowledge of the warning letters and suspension of Mr Rossi was gleaned from the file, and that he has no direct knowledge of these matters. He was not present during the interview with Mr Rossi and formed his opinions after attending the accident site and reading the record of interview.

26 Mr Bunko agreed that he made the recommendation to the Director to commence these proceedings against the respondents.

27 Under cross­examination, Mr Bunko did not agree that the crane operator was the person on site best placed to assess the danger (T:50):

"Mr Davies: The electrical contractor does not know how the crane operator is going to operate the crane, does he?

Mr Bunko: But he knows, he should know, the dangers that are expected from a 132kv. One thing he will know is that it is a 132kv power line. He knows that it is not a 240 volt power line. He knows there

(Page 16)

is extreme danger there. He can tell that by looking at the insulators and the type of power line and he would be the best equipped to do that."

28 Mr Davies also cross­examined Mr Bunko as to whether or not an electrician is required for the work involved (T:53):

"Mr Davies: It is not an electrician's work to stand up poles, is it?

Mr Bunko: An electrician needs to supervise that particular work. It is part of the electrical system. In this case, a lighting pole is an appliance and it is an electrical installation."

Peter Johnston

29 Mr Johnston, the Manager Electrical Inspection of EnergySafety with the Department of Consumer and Employment Protection, also filed a written witness statement and gave oral evidence at the hearing generally as to the procedure for issuing warning letters and completion notices, and the availability or otherwise of work safety courses for electrical workers. Mr Johnston holds an A grade electrical worker's licence endorsed for all electrical work and has 35 years experience as an electrical worker, team leader/manager, auditor and inspector in relation to all types of electrical work and installations.

30 In his witness statement, Mr Johnston concludes that there are no readily available courses in Western Australia that relate directly to safe working procedures and hazard reduction programs specifically for electrical workers and contractors.

31 Under cross­examination, Mr Johnston confirmed that he had no specific recollection of meeting Mr Rossi in 1990, although the file indicated that he conducted an interview before issuing a warning letter to Mr Rossi. He had no direct involvement with the other warning letters or the suspension.

32 Mr Johnston was cross-examined on his evidence that suitable training courses for licensed electricians on safety and hazard management were not readily available. Mr Johnston agreed that courses for electricians were available dealing with occupational health and safety issues and compliance with the regulations. Registered training organisations would also customise courses on request if they did not have a suitable existing course for

(Page 17)

electrical licensees on safe working procedures and hazard reduction systems.

Untested witness statements

33 The respondents had filed witness statements for Mr Rossi, Mr Eugene Koltasz, Mr Lambros Siamos, Mr Tad Szejkowski and Mr Kris Hooper.

34 By agreement between the parties, Mr Koltasz, Mr Siamos and Mr Szejkowski did not give oral evidence but their witness statements made it clear that they were aware of both the accident and these proceedings.

35 Mr Koltasz is the principal of Koltasz Smith which provides services in town planning and development consulting. He has known Mr Rossi professionally for 7 years, having worked on approximately 40 development projects with Hermanns. Mr Koltasz attests to Mr Rossi's professional conduct, safety awareness and the high regard in which he is held by the industry.

36 Mr Siamos is the general manager of Georgiou Group Pty Ltd, a civil contracting company which has used Hermanns many times on land subdivision projects. Hermanns conducts the majority of underground power reticulation on their projects. Virtually all require the installation of light poles. Georgiou Group Pty Ltd places high importance on safety and has confidence in the respondents' ability to carry out their subcontracting responsibilities safely and efficiently.

37 Mr Szejkowski, a Western Power project manager who has significant work experience of the respondents, declares that they are extremely safety conscious. In his experience, there has been no issue with the respondents complying with Western Power safety requirements.

38 Mr Rossi and Mr Hooper both gave oral evidence and were cross-examined at the hearing.

Vincent Rossi

39 Mr Rossi states in his witness statement at [51]:

"I do not have any specific memory of the letters of warning referred to by the Applicant. The most recent letter relied on is one apparently sent 17 years ago and the oldest is one which was apparently sent 22 years ago."

(Page 18)

40 In his witness statement, Mr Rossi addresses the issue of his suspension:

"[59] I admit that my licence was suspended on 7 July 2000 for three months as a result of failing a competency assessment that I was required to undertake. I also admit that I failed to successfully complete a competency assessment on my second attempt and my licence remained suspended until 18 April 2001. But at that time I did successfully complete my competency assessment.

[60] This incident arose because of something done by one of my employees. To the best of my recollection, the employee had not wired up a switchboard correctly and I was called into the Office of Energy to discuss that.

[61] When I was called into the Office of Energy they administered an oral test on me. At that stage I had not been working hands on in the physical side of the business for some time. I had been really doing more office work and I gave the answers to the questions as far as I knew them. My memory is they were quite technical questions.

[62] …

[63] … I did subsequently pass the test and was then found to be competent."

41 From [70] of his witness statement, Mr Rossi relates his evidence of the accident. Mr Rossi states at [79] that as site foreman, prior to undertaking any work on the site, "I checked the site for hazards." He discovered some problems relating to existing live underground cables not being adequately shown on the plans. This was clarified with Western Power. The laying of the electrical cables was completed on 10 December 2002. The next job scheduled to commence on 11 December 2002 was the installation of the light poles. He then continues:

"[82] On 10 December 2002, Hermanns and Rossi Electrical Contractors Pty Ltd engaged Lazza's Hiab & Tilt Tray Services to 'attend site tomorrow – approximately 10.00am to lift 12.5m poles for us'.

(Page 19)

[83] Hermanns and Rossi Electrical Contractors Pty Ltd had used Lazza's to perform this type of work on various other sites prior to December 2002. I considered Lazza's to be one of the best in the industry with the best equipment and operators.

[84] Hermanns and Rossi Electrical Contractors Pty Ltd did not have the machinery or employees with the expertise or qualifications required to perform the job of lifting and positioning the light poles into the holes. This is the reason why Lazza's was engaged to perform this job."

42 On 10 December 2002, Lazza's collected the 35 poles supplied by Western Power and took them to the site, laying them next to the holes which Hermanns had prepared previously in accordance with the drawings provided by the head contractor, Goldfields Contractors WA Pty Ltd (Goldfields).

43 The work of installing the light poles commenced on 11 December 2002. At paragraph 98, Mr Rossi states:

"[98] Smith commenced the lifting. I walked over to him, stopped him lifting and told him and Des Nicholson (who came over) be careful those power lines are live. I said the three above are live and the one below is dead and pointed to them. I did not believe there was a problem because the light pole was well away from the overhead power lines.

[99] – [105] …

[106] With myself and Des Nicholson holding the base of the light pole, I told Smith to lower the light pole into the hole still thinking that the light pole was a fair distance away from the overhead lines and relying on Smith's judgement that the light pole was far enough away.

[107] The next thing I remember is waking up in the sand on my back. I could not move my legs. I twisted my head around and saw Des Nicholson's legs sticking up out of the hole. I did not see Smith anywhere.

[108] – [109] …

(Page 20)

[110] I have performed this type of work on countless occasions in the three years prior to 11 December 2002 and have never had a problem. I had never encountered a situation where the crane operator had lifted the pole anywhere near high voltage wires above and did not foresee this being a problem on 11 December 2002.

[111] At the time I was following the normal industry practice in relation to the job.

[112] It was not possible for Western Power to turn off the power to the overhead lines prior to the work commencing because the lines supplied power to a large geographical area. Nor was it necessary for Western Power to do so or to cover the lines with a protective material. I have never known Western Power to do either.

[113] The crane could be positioned and the pole slung in such a way to make it impossible for the pole to swing towards the overhead power lines. This is how the job was always done in my experience.

[114] The real safety precaution is the provision of the appropriate expert crane operator to put the crane in the correct position and to ensure that the top of the poles does not move towards the overhead power lines during the lift.

[115] As a result of the accident Des Nicholson was killed and I suffered serious injuries including the partial amputation of my left lower limb and significant burns.

[116] The position is that although I was the foreman in respect of the work done by Hermanns and Rossi Electrical Contractors Pty Ltd at the site:

(a) I had no authority over the contractor which supplied the Hiab and which lifted the street light pole or over the employee of Lazza's responsible for the Hiab.

(b) I relied on Lazza's as did Hermanns and Rossi Electrical Contractors Pty Ltd to provide a

(Page 21)

competent, experienced and skilled Hiab operator for the installation of the street light poles.
(c) Lazza's failed to fulfil that duty.
[117] I consider that the pole struck the overhead power lines because of the negligence of Lazza's and its operator."

44 Mr Rossi stated that Mr Smith and Goldfields were both charged and convicted of offences under the OSH Act following the accident.

45 Mr Rossi stated that a great deal changed after the accident. At [131] of his witness statement:

"The accident itself serves as a permanent reminder to me and increases my awareness at all times of safety issues."

46 He now actively informs himself of safety issues from relevant publications and Hermanns spends a percentage of its turnover each year on safety related issues, including employing a full­time safety officer to maintain safety standards and train employees.

47 At paragraph [135]:

"The actual work that was being done that gave rise to the accident was not electrical work. It was raising lamp poles which does not need to be done by an electrical worker. It is in fact the work of a crane operator."

48 Mr Rossi testified that the lamp heads with cables attached were also delivered to the site. He did not do any wiring of the lamp himself.

"The procedure is we follow a plan that is provided by Western Power. We assess where the pole has got to go, we attach the light head, feed the cable … the pole is just an empty cylinder. Of course, it is curled on the top. We feed a rod through the pole, the empty pole …we feed the cable through the pole from the top. (T:75)

…

Mr Davies: So the cable is then pulled down through the pole and what do you do with it when you get to the inspection hatch?--- We just curl it up and leave it inside.

(Page 22)

Okay?---Curled up and left there inside.

Is there other cable already laid in the ground, the underground cable?---Yes

What do you do with that cable?---Once the pole is installed we feed that – we call it a feeder cable. We feed that through the bottom of the pole, through to the connection point which is the inspection plate.

…

Do you connect up the two cables – the cable coming from the ground and the cable coming down from the lamp?---No, we don't.

You leave them unconnected, do you?---Yes.

…

Do the Western Power people come and connect it later?---At a later date, yes.

Okay. So no actual wiring work is done by you in this procedure?---You run the wires but there's no connection done, no." (T:76)

49 Under cross­examination, Mr Rossi admitted that during the record of interview after the accident he told the investigators that he was wiring up the light heads on site.

"Mr Bydder: In your record of interview you have said that you were doing wiring up?---Yes. That's what I meant, feeding the cables. Wiring – pulling the wire down through the pole."(T:81)

50 Mr Rossi was not a director of Hermanns at the time of the accident but on behalf of Hermanns negotiated the contract with Goldfields and engaged Lazza's to attend the site with the hiab crane. Mr Rossi was Hermanns' foreman on site and personally worked on the installation of the street light poles with fellow employee Mr Nicholson and Lazza's' hiab operator, Mr Smith. Mr Rossi directed Mr Nicholson as to where to dig the holes for the poles the day before the accident.

(Page 23)

Kris Hooper

51 In his written statement, Mr Hooper attests that he is the full­time safety officer of Hermanns. He is a gasfitter by trade and was previously employed by Alinta Gas. His job involves visiting and auditing sites for risks and organising protective equipment, employee inductions and safety training.

52 He testified that safety is a high priority issue at Hermanns and all employees are aware of it. No serious injuries have occurred while he has been employed by Hermanns.

The law

Disciplinary proceedings

53 As to Hermanns in VR 124 of 2006, the Regulations relevantly provide in respect of disciplinary matters:

"46. Discipline
(1) There is proper cause for disciplinary action in respect of a person who is the holder of a licence if the person -

(a) is not a fit and proper person to be the holder of a licence issued under this Part;

…

(c) has carried out or caused or permitted to be carried out any electrical work in a manner that -

(i) endangers, or is likely to endanger, any person or property; or
(ii) is negligent or incompetent;
…
47. Disciplinary powers
(1) The Director may allege to the State Administrative Tribunal that there is proper cause

(Page 24)

for disciplinary action, as mentioned in regulation 46(1), against the holder of a licence.
(2) If, in a proceeding commenced by an allegation under this regulation against the holder of a licence, the State Administrative Tribunal is of the opinion that there is proper cause for disciplinary action, the Tribunal may do one or more of the following -
(a) by order cancel the licence held by that person;

(b) by order suspend the licence held by that person for a period, not exceeding 12 months, that is specified in the order;

(c) by order impose any restriction or condition on the authority conferred by the licence held by that person or vary any restriction or condition to which the licence is already subject;

(d) by order require that person to complete successfully a specified educational or training course of study;

(e) by order require that person to undergo a specified theoretical or practical assessment, examination or trade test;

(f) censure that person;

..."

54 As to Mr Rossi in VR 125 of 2006, the Regulations relevantly provide in respect of disciplinary matters:

"30. Discipline
(1) There is proper cause of disciplinary action in respect of a person who is the holder of a licence or permit if the person -

(Page 25)

(a) is not a fit and proper person to be the holder of a licence or permit issued under this Part;

. . .

(d) has carried out electrical work in a manner that -

(i) endangers, or is likely to endanger, any person or property; or
(ii) is negligent or incompetent;

....

31. Disciplinary powers
(1) The Director may allege to the State Administrative Tribunal that there is proper cause for disciplinary action, as mentioned in regulation 30(1), against the holder of a licence or permit.

(2) If, in a proceeding commenced by an allegation under this regulation against the holder of a licence or permit, the State Administrative Tribunal is of the opinion that there is proper cause for disciplinary action, the Tribunal may do one or more of the following -

(a) by order cancel the licence or permit held by that person;

(b) if the person is a nominated electrical worker - by order cancel the nomination of that person;

(c) by order suspend the licence or permit held by that person for a period, not exceeding 12 months, that is specified in the order;

(d) by order impose any restriction or condition on the authority conferred by the licence or permit held by that person or vary any restriction or condition to which

(Page 26)

the licence or permit is already subject;
(e) by order require that person to complete successfully a specified educational or training course of study;

(f) by order require that person to undergo a specified theoretical or practical assessment, examination or trade test;

(g) censure that person;

. . . "

55 The purpose of disciplinary proceedings is not retributive in character – the purpose is to protect the community. Protection of the public may require a disciplinary sanction that is more severe than any penalty a criminal court may impose for the same conduct and that involves a great deprivation to the person disciplined: Registrar, Real Estate & Business Agents Supervisory Board v Barnett, (unreported, WASC, Library No 970426, 26 August 1997) at 9 per Kennedy J (with whom Parker J agreed); New South Wales Bar Association v Evatt(1968) 117 CLR 177 at 183 to 184; Ziems v Prothonotary of the Supreme Court of New South Wales(1957) 97 CLR 279 at 286.

56 We must have regard to the serious consequences which may flow from the result of an affirmative finding and we follow the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, which requires a very high level of satisfaction before a finding resulting in serious consequences ought be made.

Fit and proper person

57 The expression "fit and proper person" is familiar enough as traditional words when used with reference to offices and perhaps vocations, but their very purpose is to give the widest scope for judgment and indeed for rejection: Hughes & Vale Pty Ltd v New South Wales (No 2) (Transport case) (1955) 93 CLR 127 at 156.

58 The requirement that a person be fit and proper usually comprises the three characteristics of honesty, knowledge and ability. The requirement of knowledge and ability goes to the need for the person concerned to be sufficiently qualified and skilled so as not to put the physical well being of members of the public with whom he or she deals at risk in the course of undertaking the regulated activity: Registrar, Real Estate and Business Agents Supervisory

(Page 27)

Board v Barnett at 4 to 5 per Kennedy J; Lenzo and Executive Director, Department of Fisheries (WA)[2005] WASAT 218 at [124]; Chan and Nurses Board of Western Australia [2005] WASAT 115 at [73] to [76].

59 It is not necessary for us to confine ourselves to the special provisions of the Regulations in deciding whether Mr Rossi or Hermanns is a fit and proper person, provided that we give weight only to matters which can fairly be seen to be relevant to holding an electrical worker's licence or an electrical contractor's licence respectively: Registrar, Real Estate and Business Agents Supervisory Board v Barnett.

60 In determining whether a person is fit and proper, a number of factors may become relevant. In the case of convictions, they will generally be regarded as more serious if:

(a) they occur in the course of or relate to the carrying out of the relevant occupation;

(b) they are offences of dishonesty, broadly understood;

(c) they occur while the person is the holder of a licence under the relevant statute; and

(d) they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.

61 See Tavelli v Johnson,(unreported, WASC, Library No 960693, 25 November 1996) at pages 7 to 8 per Wheeler J.

62 Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:

(a) the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes, which understanding will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;

(b) where the offences were committed a substantial time ago, although no set period will result in the expunging of the effect of previous convictions on character and much will depend on the

(Page 28)

additional factors listed and, in appropriate cases, on others;
(c) any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;

(d) a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. Character references will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences: Tavelli v Johnson.

The submissions

63 Written submissions were filed by both parties and supplementary submissions were presented orally at the hearing.

Applicant's submissions

Mr Rossi is not a fit and proper person

64 The Director submitted that Mr Rossi is not a fit and proper person to hold an electrical worker's licence because his history demonstrates that when undertaking electrical work or work that involves risks associated with electricity he lacks the knowledge and ability necessary to ensure that he does not put the physical wellbeing of members of the public with whom he deals at risk. The Director says that this is reflected by Mr Rossi's:

(a) conduct in relation to the accident;
(b) previous substandard work and refusal to accept that his work was substandard; and

(c) failure to maintain his skills as an electrical worker.

65 Mr Rossi holds an electrical worker's licence which is endorsed as an "A" grade licence (electrical mechanic). The licence authorises Mr Rossi to carry out electrical installing work without supervision and to supervise electrical installing work.

(Page 29)

66 The scope of the work that Mr Rossi' s licence authorises him to carry out is apparent from the applicable definitions of "electrical equipment", "electrical installation" and "electrical installing work", which appear in reg 3(1) of the Regulations:

"'electrical equipment' includes any component or part of an electrical installation;

. . .

'electrical installation' includes all wiring, wiring enclosures, switch gear, control and protective gear, appliances and any other components permanently connected to or associated with the wiring and that is on premises to which electricity is or is intended to be supplied through distribution works and where electricity is supplied from a private generating plant includes that plant;

'electrical installing work' means the work of assembling and fixing in place, altering or adding to any electrical installation or maintaining, enhancing, repairing, removing, or, connecting to fixed wiring, any electrical equipment;.

... "

67 In the course of performing electrical installing work, licensed electrical workers may regularly encounter dangerous situations involving electricity. In order to ensure their own safety and the safety of other persons, including members of the general public, licensed electrical workers must be able to appropriately appreciate, assess and respond to potentially dangerous situations. An electrical worker begins to develop this knowledge and ability during his or her apprenticeship.

68 The Director says that a person who has demonstrated an inability to respond appropriately to dangerous situations presented by electricity is not a fit and proper person to hold an electrical worker's licence, as that person lacks the necessary knowledge and ability.

69 The Director contends that Mr Rossi's conduct in relation to the accident which is the subject of his conviction under the OSH Act, demonstrates such an inability.

(Page 30)

70 The Director submits that there could be no doubt that Hermanns and Mr Rossi were working around high voltage transmission lines within the six metre danger zone in light of:

(a) the evidence of measurements that was provided by Mr Poulton (a Worksafe inspector) to the Magistrates Court, including that the streetlight pole was 14.5 metres high with an outreach section of 3.6 metres;

(b) the evidence of Mr Williamson (a bricklayer on the scene at the time of the accident) and Mr Gooden (a traffic controller on the scene at the time of the accident) in the Magistrates Court that they saw the streetlight make contact with the powerlines; and

(c) the photographs showing the streetlight pole upright with its base partially in the hole dug for the pole and its luminaire next to the powerlines.

71 The six metre danger zone:

(a) is in place because no one can safely enter or work within the danger zone while high voltage transmission lines are live (evidence in the Magistrates Court of Mr Buchanan, an employee of Western Power responsible for dealing with applications to work within the danger zone);

(b) is observed as a matter of standard practice within the earthworks, road works and construction industries and has been for many years (evidence of Mr Cox in the Magistrates Court, the site supervisor at the Madeley worksite and a person with 40 years' experience in the industry); and

(c) is the subject of a guidance note first issued by Worksafe in 2000 that is widely distributed within industry, including to the Electrical Contractors Association;

72 On the day of the accident: (Page 31)

(a) Mr Rossi had been a qualified electrical mechanic for more than 20 years, having commenced his apprenticeship 25 years before the accident;

(b) Mr Rossi had focused on large scale subdivisions involving cable laying, installation of street poles, transformers and related work for subdivisions since 1999, where one would expect that he would have been exposed to standard practice within the earthworks, road works and construction industries;

(c) Mr Rossi' s experience should have reinforced and improved his ability to assess risk and undertake electrical work safely;

(d) no one else involved in lifting the streetlight pole was a licensed electrical mechanic or the holder of an electrical worker's licence; and

(e) Mr Rossi was the only person involved in lifting the pole who undoubtedly knew that the powerlines were live and high voltage.

73 Mr Rossi asserts that he said no more about the overhead powerlines to Mr Smith and Mr Nicholson before the accident than: "Lets be careful of the HV lines above, the 3 top ones [are] live and the bottom one is dead, I think it's an earth wire, its dead".

74 The operator of the hiab crane, Mr Smith, denies that Mr Rossi told him the overhead powerlines were live and says that he would not have lifted the streetlight pole if he had known they were live. The Director concludes that it is unlikely that Mr Rossi told Mr Smith that the powerlines were live, given Mr Smith's evidence that:

(a) he was not told the overhead powerlines were live;

(b) he would not have lifted the streetlight pole if he had known the overhead powerlines were live; and

(c) he had seen the diagrams on his hiab vehicle warning of the dangers from high voltage powerlines and the relevant safety zones.

75 Even if Mr Rossi did tell Mr Smith that the powerlines were live, the fact remains that Mr Rossi is a licensed electrical mechanic who had over 20 years' experience at the time of the accident and considered it appropriate to raise (Page 32)

a conductive metallic streetlight pole in close proximity to what he knew to be live high voltage powerlines. Indeed, Mr Rossi thought that the powerlines were live with 160,000 volts rather than 132,000 volts.

76 The Director contends that the risks involved in raising the streetlight pole should have been obvious to Mr Rossi, given his experience and training as an electrical mechanic and his knowledge that the overhead powerlines were live.

77 Further, the risks involved in working within the danger zone of high voltage overhead powerlines are well known. A guidance note about the risks has been published and widely distributed. Mr Smith, Mr Cox and Mr Buchanan were all aware of the risks. Unlike Mr Rossi, however, they were not aware that the streetlight pole would be raised in close proximity to live, high voltageoverhead powerlines.

78 If Mr Rossi had the necessary ability and knowledge, he would have realised that the work could not be done outside the safety clearances that any competent electrical worker would know were required and were well known within the industry.

79 Mr Rossi should have responded to the dangerous situation by informing himself of any relevant requirements or procedures and ensuring that the powerlines were de-energised before the streetlight pole was raised.

80 There was available a well-established Western Power procedure which would have allowed the powerlines to be de-energised so that the streetlight pole could be raised safely (evidence in the Magistrates Court of Mr Buchanan).

81 The Director submits that despite the accident and his conviction, Mr Rossi still does not appreciate that he did anything wrong or that he should have taken steps to ensure that the accident did not occur. Mr Rossi continues to assert that the safety analysis should have been done by Mr Smith before lifting the pole. Mr Rossi asserts that a crane could be positioned and the pole slung in such a way as to make it impossible for the pole to swing towards overhead powerlines and that this is how the job was always done in his experience. He says that it is the crane operator who is the expert in ensuring that the pole does not move towards the overhead powerlines. But Mr Rossi had no experience on which to base his assertions, having previously raised poles of a maximum length of

(Page 33)

6.5 metres. He had also not had any experience of a crane operator raising poles near live high voltage powerlines. Mr Rossi's contention is also not supported by Mr Smith, who gave evidence in the Magistrates Court that the placement of the crane was irrelevant to the movement of the pole; rather, its proximity to the overhead powerlines is dictated by the position of the hole into which it is to be placed. Mr Rossi appears to have relied on Mr Smith's expertise to the exclusion of the exercise of any independent judgment on his own part. He remained adamant that it was the negligence of Lazza's and Mr Smith that caused the accident.

82 The Director also submits that Mr Rossi also does not appreciate that industry practice for lifting streetlight poles must be adapted to the dangers presented by high voltage overhead powerlines. In any event, there is an established industry practice not to work within the six metre danger zone of high voltage electrical powerlines and Mr Rossi was aware of, or should have been aware of that practice.

83 The Director says that it is also relevant that, despite the fact of the accident and despite hearing the evidence of Mr Buchanan at his trial in the Magistrates Court, Mr Rossi denies that it was possible for Western Power to turn off the power to the overhead powerlines before commencing lifting of the streetlight pole and denies that it was necessary for Western Power to de-energise the overhead powerline.

84 Mr Rossi and Hermanns had ample time to make inquiries about the powerlines with Western Power and failed to do so.

85 Mr Rossi's inability to appreciate his responsibilities and his role in the accident, in the Director's opinion, only serves to emphasise that he lacks the ability and knowledge necessary to be a fit and proper person to hold an electrical worker's licence.

86 The Director submits that Mr Rossi's lack of the ability and knowledge necessary to be a fit and proper person is also reflected in:

(a) previous examples of substandard work on his part, noting that only a very small proportion of any electrical worker's work is inspected;

(b) his refusal to accept that his work was substandard and his attempt in two cases to blame the actions of others for it;

(Page 34)

(c) his requiring three attempts to successfully complete a competency assessment; and

(d) the continuation of the circumstances which he says led to his difficulties with the competency assessment.

87 Mr Rossi did not challenge the warning letters issued to him. Further, the letters were only issued after a formal interview in which he was given the opportunity to say what he wished about the relevant inspector's concerns. If his explanation had been satisfactory to the inspector then the warning letters would not have been issued. The Director concedes that the warning letters were issued many years ago. Mr Rossi seeks to dispute the circumstances giving rise to the letters.

88 The competency assessment which Mr Rossi was first required to undertake in 2000 and which took him three attempts to successfully complete dealt mainly with basic technical issues such as ensuring that electrical work complies with the Wiring Rules. Mr Rossi's two failures to successfully complete the assessment demonstrated that he did not maintain his skills as an electrical worker.

89 The Director argues that it is apparent from the above that the circumstances which led to Mr Rossi's failure to maintain his skills as an electrical worker have not changed.

146 Mr Smith had no qualifications to work near high voltage overhead powerlines and was not employed for any knowledge or skill relevant to electrical risks. Mr Rossi was the only worker on site who was qualified as an electrician and we reject his assertion that Mr Smith was responsible for anything other than lifting the pole with the hiab, under Mr Rossi's direction. Mr Smith was in no way responsible for conducting a safety analysis on site.

147 Mr Rossi has never adequately explained why he did not appreciate the grave danger to all on site. Mr Rossi failed to conduct a full safety analysis prior to commencing the work and failed to recognise the danger posed by the overhead powerlines. Mr Rossi had previously directed Mr Nicholson where to dig the hole for the pole. He unfairly blames Mr Smith for then lifting the pole in this location.

148 Mr Rossi admits that he did not know prior to the accident that electricity within a certain proximity could jump from the overhead powerlines to the conductive metal pole. He admits that he was ignorant of the 6 metre danger

(Page 45)

zone and the process for applying to Western Power for permission to work within that clearance. He continues to assert that the powerlines could not be temporarily de-energised, even after hearing Mr Bunko's clear evidence to this effect, which we accept.

149 Although Mr Rossi still refuses to accept responsibility for the accident, even after his 2005 conviction, it is clear that his ignorance was a clear cause for the accident. Mr Smith's conviction under the OSH Act for his own role in the accident in no way minimises Mr Rossi's responsibility.

The fit and proper application

150 The evidence of the warning letters is weak. The letters were sent many years ago. The evidence of the circumstances giving rise to those warning letters is sketchy and reconstructed from incomplete paperwork. We give this evidence very little weight. It is insufficient to support the allegation that Mr Rossi was not fit and proper to hold a licence whether at the time of the letters or today.

151 The evidence of Mr Rossi's suspension also fails to assist the fit and proper application due to the time that has elapsed, the lack of detail of the surrounding circumstances and the agreed fact that Mr Rossi was eventually successful in proving his competency.

152 The accident itself is the strongest evidence against the respondents. If Mr Rossi had the necessary ability and knowledge, he would have realised that the work could not be done outside the safety clearances that any competent electrical worker would know were required and were well known within the industry. Mr Rossi should have responded to the dangerous situation by informing himself of any relevant requirements or procedures and ensuring that the powerlines were de-energised before the streetlight pole was raised.

153 We find that the OSH Act convictions are serious convictions within the meaning of Tavelli v Johnson. The respondents were both licensed at the time of the offences, which occurred in the course of their electrical work. The offences are so serious as to reflect adversely on both respondents.

154 Mr Rossi's conduct in relation to the accident demonstrates that he lacked the necessary ability and knowledge at the time of the accident.

(Page 46)

155 For all of the above reasons, we find that Mr Rossi, and therefore Hermanns, were not fit and proper persons to hold a licence at the time of the accident. However, we are of the view that in all the circumstances of this particular matter, including the time period and the conduct of the respondents since the accident, the relevant question is whether the respondents are fit and proper now. To decide this, we consider the relevant factors outlined in Tavelli v Johnson.

156 Mr Rossi fails to demonstrate true insight and understanding of his role in the accident by persisting in blaming Mr Smith. We are not satisfied that Mr Rossi accepts his own responsibility for the accident. This lack of insight has less weight as the accident occurred a considerable time ago.

157 Mr Rossi has a permanent reminder of the accident in the loss of his lower leg and the lasting trauma of the death of Mr Nicholson, which was evident during his testimony. Mr Rossi demonstrates genuine regret and has made efforts to better inform himself since the accident. He is now aware of the risks of working near high voltage powerlines and the applicable danger zones. The employment of a safety officer by Hermanns and the significant financial commitment by Hermanns to safety in the workplace demonstrates the company's understanding of the need to make appropriate effort to reduce risks.

158 Mr Rossi gave clear evidence that he now takes a personal and corporate responsibility for safety in the workplace, risk prevention and continuing education. We accept Mr Rossi's evidence in this regard.

159 We take into account that there is no evidence that the respondents have committed any breaches in the five years that have elapsed since the accident. The respondents have also taken demonstrable steps to address their previous safety shortcomings.

160 We accept the evidence of Mr Rossi's good character, which is not in dispute.

161 We are not satisfied that the respondents do not now have sufficient knowledge and ability to be licensed. Accordingly, we dismiss the application that the respondents are not fit and proper persons to be licensed under the Regulations.

(Page 47)

The application that the respondents permitted or carried out electrical work in a manner that endangered a person or was negligent

162 The remaining issue for the Tribunal is whether the respondents, in relation to the accident, permitted or carried out electrical work in a manner that endangered a person or was negligent.

163 We reject the respondents' submission that the relevant work was not electrical within the statutory definition. The installation of the street lighting poles falls squarely within the definition of an electrical installation which is electrical work within the terms of reg 3.

164 There is no dispute that persons were endangered in the course of this work.

165 We are satisfied on the balance of probabilities, to the higher Briginshaw standard, that the respondents carried out electrical work in a manner that endangered a person.

166 It is not necessary to do so, but we find further that both Hermanns and Mr Rossi owed a duty of care to Mr Smith and Mr Nicholson, which they breached. We reject the respondents' submissions that there was no duty of care or that if one existed, it was satisfied by the employment of Lazza's to undertake the pole lifting. Mr Rossi had a duty of care to other workers on site, whether employees or subcontractors, as the foreman in charge and the licensed electrician. His duty of care was to take all reasonable steps to identify and prevent injury from foreseeable risks on site.

167 Mr Rossi failed to undertake a full safety assessment of the site prior to commencing work. He failed to appreciate the risk of electrocution at the site. Mr Rossi testifies to the effect that he relied on Mr Smith to take responsibility for all safety issues arising from lifting the pole near the powerlines. This reliance was not reasonable. Mr Rossi failed to comply with Western Power's Code of Practice and other requirements for working near powerlines and failed to make application to work within the 6 metre danger zone. Mr Rossi failed to take steps to ensure that the powerlines were de-energised and didn't use a spotter whilst the pole was being raised. Mr Rossi took no safety precautions in relation to the power lines other than to tell Mr Smith and Mr Nicholson to be careful.

168 We find that Mr Rossi's omissions breached the duty of care and caused the death of Mr Nicholson and injuries to himself and Mr Smith. Hermanns is vicariously liable for the negligence of its employee.

(Page 48)

169 Hermanns is also negligent in its own right for breaching its duty of care to its employees and subcontractors, in failing to provide a safe environment for their work. Hermanns negligently failed to put in place appropriate training and safe systems at work, which contributed to the accident.

170 We are satisfied that Mr Rossi and Hermanns carried out electrical work in a manner that endangered a person and was negligent.

171 We accordingly find that there is proper cause for disciplinary action against both respondents.

Penalty

172 The range of penalties is set out in reg 31(2) (in respect of Mr Rossi) and reg 47(2) (in respect of Hermanns). The Tribunal may do one or more of the following:

(a) Cancel the licence;

(b) Order a suspension of the licence for a period not exceeding 12 months;

(c) Impose a restriction or condition on the licence;

(d) Require a person to complete successfully a specified educational or training course of study;

(e) Require a person to undergo a specified theoretical or practical assessment, examination or trade test; and

(f) Censure the person.

The applicant's submissions as to penalty

173 The Director submits that the purpose of disciplinary proceedings is to determine whether the respondent is sufficiently competent to undertake the skilled and potentially dangerous work done by an electrical licensee, and whether its continuing to hold an electrical licence would put the public or employees at risk. The negligence of the respondents demonstrates they should not hold a licence and the Tribunal should cancel the licenses. In the Director's view, the potential risk to the public from having the respondents undertake electrical work justifies the cancellation of their licences.

(Page 49)

174 Cancellation of the licences will have some impact on the business of Hermanns. However, Hermanns could engage another electrical contractor to undertake the electrical installation work.

175 There may be no adverse impact on Mr Rossi, who would not require his electrical workers licence if he is not currently undertaking electrical work.

176 As the holder of an electrical workers licence, Mr Rossi is entitled to:

(a) undertake electrical work for which an electrical licence is required;

(b) supervise apprentice electrical workers; and

(c) become a nominee of an electrical contractor (subject to completing the nominee course). A nominee certifies electrical work done pursuant to the electrical contractors licence is complete, in accordance with the relevant Australian Standards, and is safe.

177 The Director submits that Mr Rossi should not be permitted to undertake any of these tasks.

178 The circumstances of the accident calls into question Hermanns' procedures and practices for ensuring that work is done safely. Mr Rossi did not identify any procedures in place at the time of the accident.

179 The Director argues that no appropriate safety course exists which could teach Mr Rossi skills relating to safe electrical work practices and systems for the type of work that he carries out and that an order that Mr Rossi complete a training course would therefore in the Director's submissions be appropriate.

Likelihood of repeated behaviour

180 Mr Rossi currently acts as a director of Hermanns and maintains a role of power and authority within the company. Mr Rossi has demonstrated a lack of skill in ensuring that work he is involved in is undertaken in a manner which gives safety the utmost priority. Given the potential for serious injury or fatalities necessarily involved in electrical work, the Director contends even a slight chance of risk to the public ought not be entertained.

(Page 50)

The respondent's submissions as to penalty

181 Mr Davies submitted on behalf of the respondents that they have been punished enough and that no further action should be taken. The OHS Act convictions are sufficient to both punish the respondents and to protect the public. In addition, Mr Rossi's injuries are a permanent reminder of the safety lessons that he has learnt from the accident.

182 Mr Davies submits that cancellation of the licences would be extreme and inappropriate given this is effectively a first offence. The accident occurred almost five years ago and the respondents since have an incident free record.

183 The respondents have implemented safety procedures and now employ a full time safety officer. Mr Davies says cancellation of their licences would cause disruption and seriously compromise the business.

184 Cancellation is the most extreme and severe penalty available to the Tribunal. The respondents submit that other remedies are more appropriate.

The Tribunal's decision as to penalty

185 Having considered the submissions on penalty, we are satisfied that cancellation of the respondents' licences is not necessary to ensure protection of the public. Given the time which has elapsed since the accident and the fact that the respondents have instigated significant improvements to their approach to safety at work, we find that censure and conditions on the respondents' licences are appropriate penalties.

Orders

Hermanns - VR 124 of 2006:
1. The application for orders under reg 46(1)(a) of the Regulations that Hermanns is not a fit and proper person to be the holder of a licence is dismissed;

2. There is proper cause for disciplinary action against Hermanns in that it carried out, caused or permitted to be carried out electrical work in a manner that endangered a person and was negligent pursuant to regulation 46(1)(c);

3. Hermanns is censured;

Judgment: Pages 51 to 56