On 15 October 2020, the defendant company pleaded guilty in the Beenleigh Magistrates Court to an offence against section 32 of the Work Health and Safety Act 2011 (‘the Act’) for failing to comply with its duty to ensure the safety of its workers pursuant to section 19(1) of the Act. The company’s failure to provide adequate supervision exposed a worker to a risk of death or serious injury. Magistrate Clare Kelly convicted and fined the defendant $40,000. The conviction was not recorded.
The defendant company operated a business rolling sheets of metal with large rolling machines. At the time of the incident, the company owned and operated two plate rollers. One was located inside the factory. Another larger DAVI rolling machine was located outside the factory. To clean the inside machine, workers sprayed kerosene on the rollers and wiped them with a rag whilst the rollers were in operation. To operate the plant during cleaning, workers would bypass the machine’s hold-to-run control by hooking a c-shaped piece of wire around a button. The bottom two rollers could be lowered to create a space large enough to remove the pinch point. Although similar in appearance, the rollers on the DAVI machine could not be dropped, resulting in a pinch point and risk of injury whilst that machine was in operation.
On 6 June 2018, a general labourer employed by the defendant company was instructed to clean the DAVI machine. The worker had only been employed for 2 months at the time of the incident, had only been shown how to clean the DAVI roller once, and had never personally cleaned it. The worker was instructed not to turn on the machine whilst to cleaning it. The worker bypassed the machine’s hold-to-run control by using a bungee cord that ordinarily secured a protective tarpaulin over the DAVI machine when not in use. The worker secured the bungee cord around the joystick of the machine, in a similar fashion to the wire placed around the button of the inside machine, so that he could clean the rollers as they turned. Midway through cleaning the DAVI machine, the worker went inside the factory and asked his supervisor whether he could move the top roller of the machine upward to create a larger gap, as with the inside machine. The supervisor advised the worker not to turn on the machine while cleaning it, as operating the machine while the rollers were up would damage the machine. The worker returned to cleaning the machine with the rollers moving and his arm was subsequently drawn into the rolling machine, causing crush injuries and degloving injuries up to his elbow.
An investigation by Workplace Health and Safety Queensland (WHSQ) revealed that the company did not have any documented procedures or Safe Work Method Statements for cleaning the rolling machines. Discussions with other workers at the workplace revealed that the ‘correct’ method for cleaning the rolling machines was to clean a section of the roller, then turn the rollers to the next portion, turn off the machine, and then clean the next section of the roller.
When considering the penalty to be imposed, Magistrate Kelly noted the basis of the defendant’s plea was that the company failed to adequately supervise the worker at the workplace where he was a new employee, and was previously instructed to clean the inside machine while it was operating.
Her Honour acknowledged that the worker did not have experience in cleaning the machines and there were no written procedures outlining how to do so, although she commented that it was undisputed he disobeyed two clear instructions not to turn on the DAVI machine before cleaning it.
Her Honour noted that post-incident remediation steps had been taken by the defendant.
Her Honour observed the seriousness and significance of the worker’s injuries, noting that they required multiple surgeries, although it was not suggested that there had been a lasting impact.
Magistrate Kelly took into the account the defendant’s early plea of guilt, and observed that the company’s antecedents were significant, with only one injury on their work health and safety record since the company commenced operation in 1998. Her Honour took into account that the defendant had cooperated fully, both with the WHSQ investigation and by entering a timely plea. Her Honour had regard to the company’s strained financial position and that it had continued the employment of all its workers despite the adverse financial impacts of COVID-19. Her Honour determined that considerations of deterrence and punishment were paramount, although specific deterrence to a lesser extent than general deterrence given the defendant’s absence of prior work health and safety incidents and that the worker had disobeyed two clear instructions.
Her Honour had regard to the decisions in Reynolds v Tailored Adventures and Richardson v Ollis Constructions in determining the appropriate sentence.
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Section 19(1) duty and section 32 offence Work Health and Safety Act 2011