Accused: Marcello De Frenza ABN / ACN:
Industry: Construction and Utilities  Accused Type: Individual
Date of Offence: 13/02/2006 Date of Determination: 23/01/2007
Incident: Offences in relation to inspections
Offences in relation to inspectors
Judge / Magistrate: D Muling
Incident Summary: On 13 February 2006 WorkSafe Inspector Robert Jones attended an excavation site on the northern side of Cureton Avenue, Mildura where storm water pipes were being laid. He was aware that the Mildura Rural City Council had a contractor laying storm water pipes in that area. The contractor was using several excavators. Jones noted that there was no traffic management system in place or traffic signage to warn oncoming traffic on Cureton Ave of the excavation works being carried out at that site. Upon approaching the trench being excavated at that site (which was approximately 3 metres deep), he observed that there was no fall protection around the perimeter of that trench being excavated. He also observed two persons inside it, one at the bottom and the other standing on the concrete pipe that had been laid into the excavation. The only person observed by Inspector Jones above ground was the person operating the large orange excavator, now known to him as Peter Prostamo. The large orange excavator was a Hitachi EX 300 excavator. It had lifting chains fitted to its boom; no bucket was attached to the boom. It appeared to Jones that the excavator had lowered a concrete pipe into the excavation. Inspector Jones observed that whilst a trench shield had been placed into the excavation, it did not serve any real purpose in providing a safe work area because at least one of the two persons working in the excavation (Murrone and De Frenza) were not working in the area protected by the trench shield. Murrone was standing on the pipe. In his sworn statement, Murrone states that he was within the area protected by the trench shield. De Frenza was standing at the bottom of the excavation with a spirit level and a shovel. De Frenza was not within the area protected by the trench shield. Inspector Jones formed the opinion that there was an immediate risk to their health and safety should the trench collapse and directed them to immediately get out of the trench, exercising his powers under section 120(1) of the OHS Act (Jones was of the view that there could have been a failure of the trench wall and, had such occurred, it would have occurred very quickly, giving no person in the trench adequate time to escape. It is in these circumstances that the positioning of the trench shield in a trench is critical to the safety of persons working in the trench.) There was also an immediate risk to the health and safety of persons working above ground at this excavation site as a result of falling into the trench because there was no fall protection around the perimeter of the trench being excavated at that site. When Murrone and De Frenza came out of the trench, Inspector Jones showed them his WorkSafe inspector’s identification and asked them who was the person in charge of and had control of the excavation. De Frenza then pointed to Prostamo, who was operating the excavator at that time. Jones called out to Prostamo to stop the excavator, which he did and then approached Inspector Jones. Inspector Jones identified himself as a WorkSafe inspector and produced his identification card. He informed Prostamo that he was of the opinion that the way they were doing the job was not safe because the workers were outside the area protected by the trench shield and that he intended to stop them working on the excavation until these and other matters relating to traffic control measures and fall protection had been addressed. He instructed them not to continue any work until he had prepared and issued his Entry Report and proposed Prohibition Notice. However, both Prostamo and De Frenza challenged his power to stop them working and questioned his experience in the construction industry. Prostamo walked away and proceeded to continue operating the excavator, directing either De Frenza or Murrone to connect the lifting chain on the excavator boom to the trench shield. He then used the excavator to drag the trench shield approximately 2 metres along the trench and one of the workers removed the chain slings. Both De Frenza and Murrone ignored further requests by Inspector Jones to have Prostamo stop the work as directed by Inspector Jones. Inspector Jones then obtained his camera from his car and then proceeded to take photographs of the site to support the proposed Prohibition Notice. Prostamo then came over to him and demanded that he hand over the camera as he did not want his photos spread all over their ‘magazine’. When Inspector Jones refused, having advised Prostamo that he had the power under the OHS Act to take photographs, there was a disagreement concerning the entitlement of Inspector Jones to take these photographs and, as a consequence, Prostamo grabbed him from behind and forcibly restrained him whilst De Frenza took the camera from his hands. De Frenza then opened the camera, removed the film and threw it into the trench and then gave the camera back to Inspector Jones. Prostamo then went back to resume work, operating the other (smaller) excavator on site to back-fill the excavation. Having been threatened and intimidated as he was being restrained by Prostamo and confronted by De Frenza at the same time as described above, Inspector Jones was concerned for his own safety. He called the Mildura Police for his own protection and to assist with having the excavation works stopped as the work practices had not altered and he continued to have concerns for the safety of the worker’s and any other persons at the site
Court Number: U01509570 Jurisdiction: Magistrates Court

Act & Section [Maximum Penalty] Count(s)
OH&S Act 2004 - s 125(1)(a) A person intentionally hindered or obstructed an inspector [60 penalty units individual 300 penalty units body corporate] Summary offence 1
Plea: Guilty Fine: $1,000.00
Result: Without conviction (Matter was adjourned to 22 January 2008 with the condition attached that the defendant pay $1,000.00 into the court fund.)