Department of Commerce

Annual Report 2010-2011

Appendix 3: Prosecutions

Consumer Protection

Consumer Protection Division

Table 38 – 43 provides details of action undertaken in 2010-11 by the Consumer Protection Division. For the purposes of Table 38 - 43, the Commissioner is the Commissioner for Consumer Protection.

Civil applications - Court of Appeal

Table 38: Court of Appeal proceedings for the Consumer Protection Division in 2010-11
Name/ defendant/ parties Nature Outcome
Bluesky Healthcare Pty Ltd, George Michael Papos, Damien Ryan v Commissioner Appeal against Supreme Court single judge decision reversing Magistrate’s acquittal and convicting respondents on a prosecution under the Door to Door Trading Act 1987. Appeal allowed, costs pending (in previous year).
Costs agreed at $27,000 (comprising costs of the trial and subsequent appeals).

Civil applications - Supreme Court

Table 39: Supreme Court proceedings for the Consumer Protection Division in 2010-11
Name/ defendant/ parties Nature Outcome
Commissioner v Alwyn Robert Healy Application to commit for contempt; breaches of undertaking. Convicted of six counts of contempt. Sentenced to 20 days imprisonment suspended for 12 months.
Indemnity costs awarded. Costs to be taxed.
Alwyn Robert Healy v Commissioner Appeal against conviction for two offences under the Fair Trading Act 1987. Appeal dismissed. Appellant to pay costs of $6,717.
Commissioner v Alwyn Robert Healy Application for declarations and injunctions under the Fair Trading Act 1987 for false and misleading conduct. Matter pending.
Commissioner v Bon Levi, Colin Burton, and Leigh Currie (trading as ‘Bikini Girls Massage’) Application for permanent injunctions under the Fair Trading Act 1987, to restrain respondents from:
-Carrying on business under an unregistered business name in contravention of the Business Names Act 1962; and
-Making misleading representations in respect of employment in contravention of the Fair Trading Act 1987.
Respondents permanently restrained from making misleading representations in respect of employment and carrying on business under an unregistered business name. Respondents ordered to remove ‘Bikini Girls Massage’ signage at Applecross, and to take down website.
Commissioner v Fay Armstrong Application for injunction under the Fair Trading Act 2010, alleging contraventions of the Fair Trading Act 1987 and the Australian Consumer Law (WA). Respondent entered into enforceable undertaking.  Proceedings discontinued.
Commissioner v Philip Edwyn Douglas and Linda Jane Lyons Application for injunction under the Fair Trading Act 1987 for respondents to retransfer real property to the Fremantle RSL Club Wyola, or damages in the alternative to Fremantle RSL Club Wyola. Matter pending.
Commissioner v Salvatore Tomarchio Application for permanent injunctions under the Fair Trading Act 1987, alleging contraventions of the Credit (Administration) Act 1984 and alleged unconscionable conduct contravening the Fair Trading Act 1987. By consent, defendant to pay the Commissioner $149,642 to be held in trust for redistribution to the Indigenous community; Defendant permanently restrained from carrying on a business of providing credit without a licence.
In the Matter of Beagle Bay Community Incorporated (an Application by the Commissioner) Application under the Corporations Act 2001 (Cth), to wind-up the association pursuant to the Associations Incorporation Act 1987. Order that Beagle Bay Community Incorporated be wound up; Liquidator appointed.
Best Flights Pty Ltd v Commissioner Appeal against conviction in Magistrates court. Appeal discontinued by appellant.
Norman Phillip Carey v Commissioner Appeal against conviction for making false or misleading representations under the Fair Trading Act 1987. Matter pending.

Civil applications - District Court

Table 40: District Court proceedings for the Consumer Protection Division in 2010-11
Name/ defendant/ parties Nature Outcome
Fair Trading Act 1987
Alwyn Robert Healy v Commissioner Appeal against civil judgements. Appeal dismissed.

Civil applications - Magistrates Court

Table 41: Magistrates Court proceedings for the Consumer Protection Division in 2010-11
Name/ defendant/ parties Nature Outcome
Consumer Affairs Act 1971
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,213.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $1,706.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $4,237.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $1,661.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $4,424.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,098.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,213.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $3,017.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,866.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $1,309.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,052.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,716.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $1,208.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $3,570.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,258.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,917.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $1,766.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $3,620.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,314.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $1,706.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,816.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $3,218.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $5,278.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $1,125.
Costs $166.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $1,706.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,967.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $4,464.
Name withheld (as represented by the Commissioner) v Alwyn Robert Healy Representative Plaintiff action under section 18 for breach of contract. By consent, damages $2,349.
Consumer Affairs Act 1971 and Residential Tenancies Act 1987
Ramesh Thakur & Neena Thakur v Name withheld (as represented by the Commissioner) Representative defensive action on behalf of tenants under section 9 of the Residential Tenancies Act 1987 and section 18 of the Consumer Affairs Act 1971. Proceedings discontinued by claimants.
Ramesh Thakur & Neena Thakur v Name withheld (as represented by the Commissioner) Representative defensive action on behalf of tenants under section 9 of the Residential Tenancies Act 1987 and section 18 of the Consumer Affairs Act 1971. Proceedings discontinued by claimants.
Ramesh Thakur & Neena Thakur v Name withheld (as represented by the Commissioner) Representative defensive action on behalf of tenants under section 9 of the Residential Tenancies Act 1987 and section 18 of the Consumer Affairs Act 1971. Proceedings discontinued by claimants.
Ramesh Thakur & Neena Thakur v Name withheld (as represented by the Commissioner) Representative defensive action on behalf of tenants under section 9 of the Residential Tenancies Act 1987 and section 18 of the Consumer Affairs Act 1971. Proceedings discontinued by claimants.
Ramesh Thakur & Neena Thakur v Name withheld (as represented by the Commissioner) Representative defensive action on behalf of tenants under section 9 of the Residential Tenancies Act 1987 and section 18 of the Consumer Affairs Act 1971. Proceedings discontinued by claimants.
Ramesh Thakur & Neena Thakur v Name withheld (as represented by the Commissioner) Representative defensive action on behalf of tenants under section 9 of the Residential Tenancies Act 1987 and section 18 of the Consumer Affairs Act 1971. Proceedings discontinued by claimants.
Ramesh Thakur & Neena Thakur v Name withheld (as represented by the Commissioner) Representative defensive action on behalf of tenants under section 9 of the Residential Tenancies Act 1987 and section 18 of the Consumer Affairs Act 1971. Proceedings discontinued by claimants.
Fair Trading Act 2010
Rohanna Pty Ltd v Barry Chirgwin Representative defensive action under section 58 for breach of contract. Settled.
Residential Tenancies Act 1987
Valerie Sharman v Names withheld (as represented by the Commissioner) Representative defensive action on behalf of tenants under section 9 of the Residential Tenancies Act 1987. Settled.
Names withheld (as represented by the Commissioner) v Valerie Sharman Representative plaintiff action on behalf of tenants under section 9 of the Residential Tenancies Act 1987 for damages to personal property. Settled.

Civil applications - State Administrative Tribunal

Table 42: State Administrative Tribunal outcomes for the Consumer Protection Division in 2010-11
Name/ defendant/ parties Legislation Nature Outcome Costs
Fair Trading Act 1987 and Retirement Villages Code
Commissioner v Moss Glades Pty Ltd, Eion Samuel Martin, and Leonard Whyman Sections 44, 45 and 46 Application under for orders requiring observance of the Retirement Villages Code (the Code), prohibiting the Directors from conniving in a breach of the Code by the company, orders for rectification of drainage problems, and for leave to prosecute for multiple contraventions of  the Code. Application granted; ordered to observe Code; ordered to rectify certain structural defects; ordered to introduce dispute resolution procedure. $18,703
Finance Brokers Control Act 1975
Commissioner v Catherine Anne Thompson Sections 82(2)(c)(iii) and 82 Disciplinary proceedings. Matter pending.  
Commissioner v Mark Booty Sections 82(b) and 83 Disciplinary proceedings. Matter pending.  
Commissioner v Richard Lowenhoff Section 83 Disciplinary proceedings. Fine $1,000 $1,000
Retirement Villages Act 1992
Hewitt & Anor, v Dalesun Holdings Pty Ltd Section 56(1)(b) Application under section 56(1)(b) for specific performance of a service contract. Commissioner intervened on a jurisdictional point. Jurisdictional point prevailed and Commissioner withdrew as intervener. Nil

Prosecutions - Magistrates Court

Table 43: Prosecution outcomes (including appeals against prosecution) for the Consumer Protection Division in 2010-11
Name/ defendant/ parties Legislation Nature Fine Costs
Business Names Act 1962
Commissioner v Bon Levi Section 5 Fourteen counts of carrying on business under an unregistered business name. $1,400 $5,000 (1)
Commissioner v Bon Levi Section 5A Fourteen counts of carrying on business without leave of the District Court. $700 (1)
Commissioner v Bon Levi Section 17 Providing a false statement. $400 (1)
Commissioner v Colin Burton Section 5 Carrying on business under an unregistered business name. $100  
Consumer Affairs Act 1971
Commissioner v Megan Emma Healy Section 21(1)(a) Two counts of failing to give information when required under the Act. $400 $253
Credit (Administration) Act 1984
Stefan Richard Reksmiss v Salvatore Tomarchio Section 6(1) Carrying on a business of providing credit while unlicensed. Matter pending.  
Door to Door Trading Act 1987
Commissioner v Westbay Corporation Pty Ltd Sections 7(1)(f); 7(1)(g)(i); 7(1)(g)(ii) and 8(1) Failing to give prescribed cooling off period; failing to give prescribed notice about rights to rescind; failing to give prescribed form for rescinding the contract; and accepting money within the cooling off period. $4,000 $220
Commissioner v Julian Kaplan Sections 7(1)(f); 7(1)(g)(i); 7(1)(g)(ii); 8(1) and 20(2) Failing to give prescribed statement about cooling off period; failing to give prescribed notice about rights to rescind; failing to give prescribed form for rescinding; and accepting money within the cooling off period. $1,000 $220
Employment Agents Act 1976
Commissioner v Rogelio Molina Sections 12(4)(a); 12(4)(b); 46(1) and 47(1)(e) Carrying on business under a name other than specified in the licence; carrying on business at a place other than specified in the licence; failing to have records open for inspection and failing to produce licence/authority when required. $800 $253
Commissioner v Work Ready Australia Pty Ltd Section 12(1) Carrying on business as an employment agent without a licence. $100 against a person (name withheld).
$500 against Work Ready Australia Pty Ltd.
$253
Fair Trading Act 1987
Commissioner v Best Flights Pty Ltd Section 12(1)(g) Two counts of misleading representation concerning the price of services. $6,000 $7,667
Commissioner v Bon Levi  Section 14 Sixteen counts of misleading conduct in relation to employment. $9,600 Nil
Commissioner v Colin Burton Section 14 Eleven counts of misleading conduct in respect of employment. $6,000 Nil
Commissioner v Westpoint Realty Pty Ltd Section 12(2)(b) Six counts of making false or misleading representations concerning land. Convicted on five counts, one count withdrawn.
Sentencing pending.
 
Commissioner v Lanepoint Enterprises Pty Ltd Section 12(2)(b) Six counts of making false or misleading representations concerning land. All counts withdrawn. Nil
Commissioner v Norm Phillip Carey Sections 12(2)(b) and 81(1) Six counts of making false or misleading representations concerning land. Convicted on five counts, one count withdrawn.
Appeal of convictions pending.
 
Commissioner v Sean Colville Niven Sections 12(2)(b) and 81(1) Six counts of making false or misleading representations concerning land. Acquitted on five counts. One count withdrawn. Nil
Commissioner v Graeme John Rundle Sections 12(2)(b) and 81(1) Six counts of making false or misleading representations concerning land. Acquitted on five counts, one count withdrawn. Nil
Commissioner v (Name withheld) Section 12(2)(b) Four counts of making false or misleading representations concerning land (as agent of Westpoint Realty Pty Ltd). $2,000
Spent conviction.
Nil
Commissioner v (Name withheld) Section 12(2)(b) One count of making false or misleading representation concerning land (as agent of Westpoint Realty Pty Ltd). $750
Spent conviction.
Nil
Commissioner v Thomas Haynes Section 12(2)(b) One count of making false or misleading representation concerning land (as agent of Westpoint Realty Pty Ltd). $1,000 $1,180
Commissioner v Jisoo Holdings Pty Ltd Section 12(1)(l) Two counts of false or misleading representations. $1,000 $532
Commissioner v Sami Zaher Sections 12(1)(l) and 81(1) Two counts of false or misleading representations. $1,000 Nil
Residential Tenancies Act 1987
Commissioner v Siobhan Erin McLaughlin Section 29(4)(b) Failing to lodge security bond. $2,000 $344
Note:
  1. Denotes a “global” order for the counts described.

Motor Vehicle Industry Board

The prosecutions relating to the Motor Vehicle Industry Board are published in Addendum D: Motor Vehicle Industry Board – Final Report for the year ending 30 June 2011.

Real Estate and Business Agents Supervisory Board

The prosecutions relating to the Real Estate and Business Agents Supervisory Board are published in Addendum A: Real Estate and Business Agents Supervisory Board – Final Report for the year ending 30 June 2011.

Settlement Agents Supervisory Board

The prosecutions relating to the Settlement Agents Supervisory Board are published in Addendum B: Settlement Agents Supervisory Board – Final Report for the year ending 30 June 2011.

Building Commission Division

Table 44 provides the prosecution action finalised in 2010-11 on behalf of the Plumbers’ Licensing Board (the Board) by the Consumer Protection Division and the State Solicitor’s Office.

Civil applications – State Administrative Tribunal

Table 44: State Administrative Tribunal outcomes for the Consumer Protection Division in 2010-11
Name/ defendant/ parties Legislation Nature Outcome Costs
Water Services Licensing (Plumbers’ Licensing and Plumbing Standards) Regulations 2000
Raoul Agapis v Plumbers’ Licensing Board Regulation 100(2) Review of decision to refuse plumbing contractor’s licence. Matter pending.  

Prosecutions – Magistrates Court

Table 45: Prosecution outcomes for the Plumbers’ Licensing Board in the Magistrates’ Court in 2010-11
Name/ defendant/ parties Legislation Offence Fine Costs
Water Services Licensing (Plumbers’ Licensing and Plumbing Standards) Regulations 2000
Plumbers’ Licensing Board v Andrew Gerrard Power Regulation 72(1) Seven counts of failing to comply with a rectification notice. Convicted.
Sentencing pending.
-
Plumbers’ Licensing Board v Craig Clifford Lincoln Regulation 9(1) Unlicensed plumbing work. $700 $385
(and $352 compensation order to consumer)
Plumbers’ Licensing Board v John Bristow Regulation 9(1) Unlicensed plumbing work. $1,500 $346
Plumbers’ Licensing Board v Matthew Michael Brown Regulations 41 and 46 Failing to lodge a notice of intention to carry out major plumbing work by no later than 24 hours before commencing that work and knowingly giving false or misleading information on a notice. $500 (Regulation 41 offence)
$1,500 (Regulation 46 offence)
$352
Plumbers’ Licensing Board v Michael Christopher Treble Regulation 72(4) Two counts of requesting payment for work done pursuant to a rectification notice. $1,000 $346
Plumbers’ Licensing Board v Robert Hanssen Regulation 9(1) Unlicensed plumbing work. $800 $346.50
Plumbers’ Licensing Board v Stewart Morrison Regulation 9(1) Unlicensed plumbing work. $300 $253

Safety and Employment Protection

EnergySafety Division

Table 46: Prosecution outcomes for the EnergySafety Division in 2010-11
Name/ defendant/ parties Legislation Offence Fine Costs
Electricity Act 1945
Electricity Networks Corporation t/as Western Power
(Perth)
Regulation 25(1)(A) Failed to ensure all service apparatus was in a safe and fit condition for supplying electricity. $30,000.00 $649.70
Electricity Networks Corporation t/as Western Power
(Perth)
Regulation 25(1)(A) Failed to ensure all service apparatus was in a safe and fit condition for supplying electricity. $25,000.00 $649.70
Electricity (Licensing) Regulations 1991
Jonathon Beal
(Riverton)
Regulation 50(A) Caused or permitted unsafe wiring to be connected to the electricity supply. $2,000.00 $649.70
  Regulation 62 Failed to report an unsafe installation which he had caused.    
Herbert Clifford
(Somerville)
Regulation 52(3)
(2 breaches)
Submitted Notices of Completion to the network operator for electrical installing work that was defective and therefore not complete. $11,574.00 $74.70
  Regulation 49(1)
(3 breaches)
Carried out substandard electrical work.    
Cockburn Electrical Company
(Bibra Lake)
Regulation 53(2)
(3 breaches)
Employed and authorised a person to carry out electrical installing work while they were not authorised by an electrical licence or permit. $3,600.00 $575.00
Dunnings Electrical Service
(Byford)
Regulation 52(3) Submitted a Notice of Completion to the network operator for electrical installing work that was defective and therefore not complete. $7,000.00 $879.70
David Dunnings
(Byford)
Regulation 49(1) Failed to carry out adequate checking and testing on completion of electrical work, which resulted in the MEN (Multiple Earthed Neutral) connection not being fitted at the house sub-board. This rendered the installation unsafe and dangerous.    
Beresford Electrical Services
(Webberton)
Regulation 63 Failed to immediately report an electric shock to the relevant network operator. $4,000.00 $649.70
David Dilley
(Broomehill)
Regulation 49(1)
(2 breaches)
Carried out, or caused or permitted to be carried out, electrical work contrary to Wiring Rules, WA Electrical Requirements or specific standards. $4,000.00 $119.20
Eircom Electrical & Data
(Hannans)
Regulation 52(3) Submitted a Notice of Completion to the network operator for the electrical installing work when the work was defective and therefore not complete. $5,000.00 $649.70
Richard Fowler
(Boulder)
Regulation 19(1) Carried out electrical installing work without being authorised by a licence or permit. $1,500.00 $676.70
  Regulation 33(1) Held himself out as carrying on business as an electrical contractor without being authorised by an electrical contractor’s licence.    
Antonio Genovese
(Boulder)
Regulation 50(1) Failed to ensure the effective supervision of an apprentice. $1,500.00 $2,500.00
Nathan Haagensen
(Geraldton)
Regulation 50(1) Failed to provide adequate supervision of an apprentice. $4,000.00 $649.70
Ivco Electrics Pty Ltd
(Marangaroo)
Regulation 52(3) Submitted a Notice of Completion for electrical installing work that was defective and therefore not complete. $2,000.00 $300.00
Ringo Lim & Ringo Electrical Services
(Thornlie)
Regulation 49(1) Failed to connect a MEN connection at the main switchboard and failed to adequately test the installation after the electrical work had been completed. $8,000.00 $649.70
  Regulation 52(3) Submitted a Notice of Completion to the network operator for electrical installing work that was defective and therefore not complete.    
Paul Maindok
(Kalbarri)
Regulation 49(1) Failed to adequately check and test an electrical installation that would have identified a ‘Live’ unterminated cable protruding from the garage wall. $2,000.00 $2,000.00
  Regulation 52(3) Submitted a Notice of Completion to the network operator for the electrical installing work that was defective and therefore not complete.    
Gordon Martin
(Girrawheen)
Regulation 50(1) Failed to provide adequate supervision for a second year apprentice, which resulted in the apprentice receiving an electric shock. $500.00 $1,500.00
Steven McMullen
(Hillarys)
Regulation 49(1) Failed to earth the new metal “Din Kit” in the main switchboard, which rendered the installation unsafe and dangerous. $5000.00 $649.70
Ryszard Olszewski
(Sorrento)
Regulation 33(1) Carrying on a business as an electrical contractor without an electrical contractor’s licence. $500.00 $649.70
Gilders Electrical
(Bayswater)
Regulation 52(3) Submitted a Notice of Completion to the Network Operator for the electrical installing work that was defective and therefore not complete. $2,000.00 $649.70
Shane Willis Electrical
(Broome)
Regulation 52(1)
(2 breaches)
Failed to submit a Notice of Completion to the relevant Network Operator within the required timeframe. $4,000.00 $649.70
  Regulation 51(1)
(2 breaches)
Failed to submit a Preliminary Notice to the relevant Network Operator within the required time frame.    
Ivan Tanevski
(Marangaroo)
Regulation 49(1) Failed to earth the metallic main switchboard enclosure, which rendered the installation unsafe and dangerous. $4,000.00 $649.70
David Winton Turner
(Wanneroo)
Regulation 19(1) Carried out electrical work whilst not authorised by licence or permit. $3,000.00 $649.70
Electricity (Supply Standards and System Safety) Regulations 2001
Electricity Networks Corporation t/as Western Power
(Perth)
Regulation 10(1) Failed to ensure that the repair and operation of their network (prescribed activity) was carried out in such a way to provide for the safety of persons, including employees of and contractors. $8,000.00 $649.70
Gas Standards Act 1972
Jesse Gregory (Gidgegannup) Section 13A(2) Carried out gasfitting work while not holding a certificate of competency, permit or authorisation allowing him to do so. $7,000.00 $649.70
Phillip Jamieson
(Kingsley)
Section 13A(2) Carried out gasfitting work while not holding a certificate of competency, permit or authorisation allowing him to do so. $5,000.00 $3,071.00
Daniel James Williams
(Eaton)
Section 13A(2) Carried out gasfitting work while not holding a certificate of competency, permit or authorisation allowing him to do so. $5,000.00 $649.70
Gas Standards (Gasfitting and Consumer Gas Installations) Regulations 1999
Aaron Pascoe
(Canning Vale)
Regulations 18; 32; and 30 Failing to ensure that the installation complied with the requirements of Australian Standard – Gas Installations AS 5601 2004.
Failed to ensure the gasfitting work was rectified within seven days and failing to provide a Notice of Rectification within the required time.
$5,040.00 $649.70

EnergySafety Division investigations

Electricity-related serious accidents and fatalities

The number of electricity-related serious accidents and fatalities reported to the EnergySafety Division during 2010-11 is provided in Table 47.

Table 47: Number of reported electricity-related serious accidents and fatalities
Reports Number
Electric shocks 1,053
Serious electrical accidents (1) 12
Fatalities (included in serious electrical accidents) 4
Note:
  1. Electrical shock incidents resulting in the person requiring assessment and/or treatment at a medical facility.

The data provided in Table 48 relates to accidents based on date of accident. This data may not include all accidents due to time delay in reporting such accidents.

Table 48: Serious electricity-related accidents notified per million population (not including wilful incidents)
Year Number per million (1) Five Year
Average
2006-07 9 16
2007-08 10 15
2008-09 9 13
2009-10 6 10
2010-11 5 8
Note:
  1. Some of the numbers of serious electricity-related accidents notified per million population differ from the figures given in previous annual reports. These corrections resulted from a comprehensive review of statistics of serious electricity-related accidents notified.

The electrical accident rate for the reporting period was five accidents per one million population. This represents a significant decrease from the previous reporting periods. There has also been a significant increase in the number of fatalities. The number of serious electrical accidents includes four fatalities in which electricity was found to be the cause. Details are as follows:

Gas-related incidents and fatalities

The number of gas-related serious accidents and fatalities reported to the EnergySafety Division during 2010-11 is provided in Table 49.

Table 49: Number of reported gas-related serious accidents and fatalities
Reports Number
Incidents 52
Accidents (persons injured) 13
Fatalities 0
Table 50: Gas-related accidents notified per million population (not including wilful incidents)
Year Number per million (1) Five Year Average
2006-07 9 9
2007-08 7 8
2008-09 5 8
2009-10 7 7
2010-11 6 7
Note:
  1. Some of the numbers of gas-related accidents notified per million population differ from the figures given in previous annual reports. These corrections resulted from a comprehensive review of statistics of gas-related accidents notified.

The gas accident rate for the reporting period was six accidents per one million population, a decrease over the previous reporting period. There were no fatalities reported for gas during the year which is a decrease from last year.

Infringement Notices

The EnergySafety Division has continued to issue Infringement Notices as a system to provide an efficient and cost compliant regime for selected breaches. The system covers both gas and electricity and deals with non-compliance aspects of electrical and gas installations. There were 122 gas-related and 32 electricity-related Infringement Notices issued by the EnergySafety Division between the period 1 July 2010 and 30 June 2011.

Labour Relations Division

Table 51: Prosecution outcomes for the Labour Relations Division in 2010-11
Name/ defendant/ parties Legislation Offence Fine Costs
Industrial Relations Act 1979
Cliff White as trustee for The Kreative Family Trust trading as Dominos Pizza Morley and Ellenbrook Section 83(1) Failure to pay Minimum Conditions of Employment Act 1993 entitlements. $600.00 Fine
Order to repay $2,033.33 underpaid entitlements and interest
$99.00
Lisa Tran Section 102 Obstruction $500.00 $446.70
Phillip Saunders as trustee for the Saunders Family Trust trading as AWA Electrical Section 83(1) Failure to pay State Award entitlements. Private settlement at Pre-Trial Conference -

WorkSafe Division

The WorkSafe Western Australia Commissioner (the Commissioner) enforces the Occupational Safety and Health Act 1984 (OSH Act) and the Occupational Safety and Health Regulations 1996 (the Regulations) by prosecuting persons who commit the offences under the OSH Act and Regulations.  The WorkSafe Division co-ordinates and supports this function.

In 2010-11, prosecution notices were signed for 66 new prosecutions. There were 32 convictions recorded during the financial year (Note: A prosecution is counted as a conviction if at least one charge is successful). Table 52 provides details of convictions recorded during 2010-11 for breaches of the (OSH Act and Regulations. Eight prosecutions were withdrawn at Court by the prosecution and two prosecutions were dismissed. During this financial period, five appeals commenced before the Supreme Court with decision pending.

Table 52: Prosecution outcomes for the WorkSafe Division in 2010-11
Name/ defendant/ parties Legislation Offence Fine Costs
Occupational Safety and Health Act 1984
Beds Plus Pty Ltd
(ACN 009 179 088)
Section 19(1); 19A(2); and 23F Where under a labour hire arrangement work was carried out for remuneration by a worker for the Accused who was a client of a labour hire agent, in the course of the Accused's trade or business, the Accused failed to, so far as practicable, provide and maintain a working environment in which the worker was not exposed to hazards, and by that failure caused serious harm. $80,000.00 $1604.70
Blancoa Pty Ltd Section 19(1); 19A(2); and 3A(3)(b) Failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards and by that failure caused serious harm to an employee. $30,000.00 $1,750.70
Blueleaf Corporation Pty Ltd
t/as Whittakers Timber Products
Section 19(1); 19A(2); and 3A(3)(b) Failed so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards and by that failure caused serious harm to an employee. $45,000.00 $1,970.70
Craig Ford Section 20(1)(b) Failed to take reasonable care to avoid adversely affecting the safety of himself and other people, through his act of failing to properly set up and operate a slewing crane so that it did not hit or come into contact with the concrete panels or braces in the vicinity of the crane. $2,000.00 $649.70
Flexi Staff Pty Ltd (ACN 009 440 288) Section 19(1); 19A(2); and 23F Where under a labour hire arrangement work was carried out for remuneration by a worker, for a client of the Accused who was a labour hire agent, in the course of the clients trade or business, the Accused failed to, so far as practicable, provide and maintain a working environment in which the worker was not exposed to hazards, and by that failure caused serious harm. $40,000.00 $1,604.70
G&G Mining Fabrication Pty Ltd (ACN 100 230 304) Section 19(1); 19A(2); 23F; and 3A(3)(b) Where under a labour hire arrangement work was carried out for remuneration by a worker for the Accused who was a client of a labour hire agent, in the course of the Accused's trade or business in relation to matters over which the Accused had the capacity to exercise control, the Accused failed to, so far as was practicable, provide and maintain a working environment in which a worker was not exposed to hazards and by that failure caused serious harm of worker. $60,000.00 $2,500.00
Hay Australia Pty Ltd (ACN 008 221 645) Section 19(1); 19A(3); and 3A(2)(b) Failed so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards. $10,000.00 $1,600.00
Hitachi Plant Technologies, Ltd (ACN 124 967 853) Section 48(4); 54; and 3A(1)(b)(ii)(I) Being a person to whom improvement notice 22900108 was issued on 5 March 2009, and not having applied for a review of the improvement notice pursuant to sections 51 and 51A of the OSH Act, did not comply with the improvement notice within the time specified therein. $2,000.00 $958.70
Industrial Progress Corporation Pty Ltd Section 19(1); and 19A(2) Failed to far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards and by that contravention caused serious harm to its employee. $35,000.00 $1,057.70
Jenara Pty Ltd Section 19(1); 19A(2); 23F; and 3A(3)(b)(i) Where under a labour hire arrangement work was carried out for remuneration by a worker, for the Accused who was a client of a labour hire agent, in the course of the Accused's trade or business, in relation to matters over which the Accused had the capacity to exercise control, the Accused failed to, so far as was practicable, provide and maintain a working environment in which the worker was not exposed to hazards, and by that failure caused the death of the worker. $50,000.00 $1,684.00
Matnic Enterprises Pty Ltd (ACN 120 816 033) Section 19(1); 19A(2); and 3A(3)(b)(i) The Accused being an employer did not so far as practicable, provide and maintain a working environment in which its employees were not exposed to hazards and by that failure caused its employee serious harm. $15,000.00 $1,628.00
Primejade Holdings Pty Ltd (ACN 062 160 552) Section 19(1); 19A(2); and 23D Being a principal who in the course of trade or business engaged a contractor to carry out work for it, failed to provide and maintain, so far as practicable, a working environment in which the contractor was not exposed to hazards, being matters over which the principal had the capacity to exercise control, and by that failure caused serious harm to the contractor. $25,000.00 $1,420.70
Ria Contracting Pty Ltd (ACN 114 728 111) Section 19(1); and 19A(3) Failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards. $25,000.00 $5,910.18
Ronald William Roy Section 20(1)(b); and 20(A)3 Failed to take reasonable care to avoid adversely affecting the safety of other persons, through his act or omission at work. $6,000.00 $649.70
Russell Andrew Barnes Section 20(1)(b); and 20A(3) Failed to take reasonable care to avoid adversely affecting the safety or health of any other person through any act or omissions at work. $2,000.00 $760.70
Softwood Logging Services Pty Ltd (ACN 119206003) Section 19(1); and 19A(2) Failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards by the use of plant, namely a mobile chipper; contrary to section 19(2) of the OSH Act, and by that contravention caused serious harm to an employee. $15,000.00 $567.20
"The State of Western Australia" - Responsible Agency Department of Education Section 19(1); 19A(3); 21(2)(b)(ii); 21A(2); and 3A(3)(b)(i) Charge 1 (In regards to the Teacher )  - The Accused being an employer did not so far as practicable, provide and maintain a working environment in which its employees were not exposed to hazards. Charge 2 (In regards to the injured Student 3) - The Accused being an employer, did not so far as was practicable, ensure that the safety or health of a person, not being an employee of the Accused, was not adversely affected wholly or in part as a result of work that was being undertaken by the Accused or any employee of the Accused, or any hazard that arose from or was increased by the work of the Accused or the system of work that was being operated by the Accused and by that contravention caused serious harm to a person not being its employee. $50,000.00 $6,702.00
Topgold Enterprises Pty Ltd (ACN 082 884 964) Section 19(1), 19A(2), 23F & 3A(3)(b) Where under a labour hire arrangement work was carried out for remuneration by a worker, for a client of the Accused, in the course of the clients trade or business, in relation to matters over which the Accused had the capacity to exercise control, the Accused failed to, so far as practicable, provide and maintain a working environment in which its employee, was not exposed to hazards, and by that failure caused the serious harm of employee. $50,000.00 $2,500.00
Transpacific Industries Pty Ltd (ACN 010 745 383) Section 19(1); 19A(3); and 3A(2)(b) Failed, so far as practicable, to provide and maintain a working environment in which its employees were not exposed to hazards. $40,000.00 $3,395.32
Occupational Safety and Health Regulations 1996
Boutique Building Company Pty Ltd (ACN 124 188 209) Regulation 3.55(2); and 1.16 Being a person who at workplace was the main contractor or a person having control of the workplace, did not ensure that either: edge protection that complied with Regulation 3.55(5) of the Occupational Safety and Health Regulations 1996 made under the OSH Act was provided and kept in place whenever there was a risk that a person could fall three metres or more from an edge at the workplace other than an edge referred to in Regulation 3.55(1); or a fall injury prevention system was provided and in operation whenever there was a risk that a person could fall three metres or more from an edge at the workplace other than an edge referred to in Regulation 3.55(1). $5,000.00 $653.70
Bradley Robert Festa Regulation 4.54(4); 4.54(12); and 1.16 Failed to ensure that a hoist at the workplace was operated in accordance with Regulation 4.54(4) of the Occupational Safety and Health Regulations 1996 made under the OSH Act. $2,500.00 $679.00
Che Christopher Barden Regulation 3.55(1); 3.55(5); and 1.16 Failed to provide edge protection compliant with Regulation 3.55(5) of the Occupational Safety and Health Regulations 1996 whenever there was a risk that a person could fall two or more metres from the edge of a fixed stair, landing or suspended slab at the workplace. $1,500.00 $1,402.70
Coda Contracting Pty Ltd
(ACN 103 678 039)
Regulation 3.123(1) Being a person who was an employer at a workplace where demolition work other than class 1, class 2 or class 3 demolition work was being done, failed to ensure that the work was done in accordance with AS 2601. $2,500.00 $649.00
Diploma Construction (WA) Pty Ltd
(ACN 113 950 100)
Regulation 3.88J(1)(b) and 1.16 The Accused was a person, who, at a construction site where tilt-up work was proposed to be done, was a person having control of that workplace did not ensure that each person involved in the work had completed an approved course for persons involved in tilt-up work concerning the aspect of the tilt-up work in which that person was involved. $5,000.00 $2,178.00
Industrial Galvanisers Corporation Pty Ltd Regulation 3.55(2)(b) and 1.16 Failed to ensure that a fall injury prevention system was provided and was in operation whenever there was a risk that a person could fall three or more metres from an edge at the workplace, other than an edge referred to in Regulation 3.55(1). $17,000.00 $1,057.70
Liam Joel McClure Regulation 4.54(4); 4,54(12); and 1.16 Failed to ensure that a hoist at the workplace was operated in accordance with Regulation 4.54(4) of the Occupational Safety and Health Regulations 1996 made under the OSH Act. $2,500.00 $679.00
Permacast Pty Ltd
(ACN 121 513 255)
Regulation 3.88J(1)(b) and 1.16 Failed to ensure that each person involved in the work had completed an approved course for persons involved in tilt-up work concerning the aspect of the tilt-up work in which the person was involved. $2,000.00 $649.70
Transpacific Cleanaway Pty Ltd
(ACN 000 164 938)
Regulation 4.37(1)(f) and 4.29 Failed to ensure that every dangerous part of a fixed powered plant, namely the Multi Purpose Baler, was as far as practicable securely fenced or guarded in accordance with Regulation 4.29. $10,000.00 $2,891.32
T.S. & D.E. Cowcher Farms Pty Ltd (ACN 008 935 055) Regulation 3.134(1) and 3.131(1)(a) Charge 1- Failed to ensure that a record conforming to the requirements of Regulation 3.134(2) of the Occupational Safety and Health Regulations 1996, and being in respect of the work time, breaks from driving, and non-work time of each commercial vehicle driver who is required to drive a commercial vehicle that forms the whole or part of the workplace was established and kept current.
Charge 3- Failed to ensure that a commercial vehicle driver who was required to drive a commercial vehicle (without a relief driver) that formed the whole or part of the workplace did so in accordance with Regulation 3.132 of the Occupational Safety and Health Regulations 1996.
Charge 1 - $3,000
Charge 3 - $5,000
Parties to bear own costs
Western Metal Roofing Pty Ltd
(ACN 111 708 420)
Regulation 3.55(2) and 1.16 Being a person who at a workplace was an employer or a person having control of the workplace, did not ensure that either: edge protection that complied with Regulation 3.55(5) of the Occupational Safety and Health Regulations 1996 made under the OSH Actwas provided and kept in place whenever there was a risk that a person could fall three metres or more from an edge at the workplace other than an edge referred to in Regulation 3.55(1); or a fall injury prevention system was provided and in operation whenever there was a risk that a person could fall three metres or more from an edge at the workplace other than an edge referred to in Regulation 3.55(1). $5,000.00 $653.70
Wytona Pty Ltd Regulation 3.131(1)(a); 3.132(2)(a); and 1.16 Charge 1 - Failed to ensure that a commercial vehicle driver who was required to drive a commercial vehicle, that formed whole or part of the workplace, (without a relief driver) drove that vehicle in accordance with Regulation 3.132 (2) (a) of the Occupational Safety and Health Regulations 1996 made under the OSH Act.
Charge 2 - Failed to ensure that a commercial vehicle driver who was required to drive a commercial vehicle, that formed whole or part of the workplace, (without a relief driver) drove that vehicle in accordance with Regulation 3.132 (2) (a) of the Occupational Safety and Health Regulations 1996 made under the OSH Act.
$60,000.00 (1) $2,500.00
Wytona Pty Ltd Regulation 3.131(1)(a); 3.132(2)(a); 3.131(1)(b); and 1.16 Charge 1 - 4 – Failed to ensure that a commercial vehicle driver who was required to drive a commercial vehicle, that formed whole or part of the workplace, (without a relief driver) drove that vehicle in accordance with Regulation 3.132(2)(a) of the Occupational Safety and Health Regulations 1996 made under the OSH Act
Charge 5 and 6 - Failed to ensure that a commercial vehicle driver who was required to drive a commercial vehicle that formed the whole or part of the workplace was certified by a medical practitioner as fit to drive the vehicle.
(1) $3035.54
Note:
  1. Denotes a global fine was issued to Wytona Pty Ltd for all eight charges.

Reviews of notices issued by WorkSafe inspectors

The WorkSafe Division co-ordinates and supports the Commissioner in reviewing notices issued by WorkSafe inspectors under the OSH Act, and in considering applications for exemptions under the Regulations.

WorkSafe inspectors issue improvement notices to persons who may be contravening the OSH Act and Regulations. An improvement notice tells the recipient they may be committing an offence, identifies the offence, and sets a time by which the contravention must be stopped. WorkSafe inspectors can also issue prohibition notices to persons who may be involved in an activity that involves a risk of imminent and serious harm or injury to a person. A prohibition notice tells the recipient that they must immediately stop the activity.

A request for a review of an improvement notice can be lodged with the Commissioner before the deadline for compliance specified in the notice. A request for a review of a prohibition notice can be lodged with the Commissioner within seven days of the issue of the notice (or such further time as may be allowed by the Commissioner).

Improvement notices are suspended while they are being reviewed by the Commissioner, but prohibition notices remain in force. After considering a request for a review of a notice, the Commissioner can affirm, modify or cancel the notice. An applicant who is not satisfied with the decision of the Commissioner may refer the matter to the Occupational Safety and Health Tribunal for further review (Section 51A of the OSH Act). The decision of the Tribunal may be further appealed.

During 2010-11, 957 requests were processed for the Commissioner to review a notice in accordance with section 51 of the OSH Act. Review outcomes are detailed in Tables 53 and 54.

Table 53: Review of improvement notices for the WorkSafe Division in 2010-11
Outcome Number
Affirmed 7
Affirmed with time extended 787
Affirmed, modified and time extended 3
Affirmed with modification to wording 0
Notice cancelled by Commissioner 28
Review request withdrawn 1
Compliance effected on time and while under review 38
Received too late for review 80
Occupational Safety and Health Tribunal cancelled 1
Occupational Safety and Health Tribunal withdrawn by client 1
Occupational Safety and Health Tribunal dismissed 1
Total processed from 1 July 2010 to 30 June 2011 947
Table 54: Review of prohibition notices for the WorkSafe Division in 2010-11
Outcome Number
Affirmed 6
Notice cancelled by Commissioner 4
Total processed from 1 July 2010 to 30 June 2011 10
Table 55: Review of improvement notices for the WorkSafe Division 2006-07 to 2010-11
Year Improvement notices issued Improvement notices reviewed Percentage (%)
2006-07 10,365 1,033 10.0
2007-08 9,726 973 10.0
2008-09 9,852 917 9.3
2009-10 10,648 970 9.1
2010-11 10,419 947 9.1
Table 56: Review of prohibition notices for the WorkSafe Division 2006-07 to 2010-11
Year Prohibition notices issued Prohibition notices reviewed Percentage (%)
2006-07 638 4 0.6
2007-08 675 11 1.6
2008-09 722 1 0.1
2009-10 705 10 1.4
2010-11 602 10 1.6

Exemption from Regulations

The Commissioner may exempt a person from having to comply with the Regulations. The Commissioner received 42 applications for an exemption and granted 22 exemptions. None of these decisions of the Commissioner were appealed.