On 28 September, two members of an unincorporated family partnership were sentenced in the Richlands Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with their duty under section 21 of the Act to ensure, so far as is reasonably practicable, that plant used as part of the business was without risks to the health and safety of any person. Additionally, one of the partners was also sentenced for a breach section 39 of the Act, having failed to ensure, so far as was reasonably practicable, that the site where the incident occurred was not disturbed until an inspector arrived.
The defendants were operating a business which supplied meat to restaurants. As part of that business, workers would prepare the meat for supply which included using a meat slicer to cut bulk meat into portions prior to packaging and delivery. The meat slicer used at the workplace had been purchased by the business from China. In January 2019, the meat slicer was placed in the workplace for operation by workers, without any risk assessment being conducted. There was also no policy or procedure developed for its safe operation by workers.
A third member of the partnership had provided instruction to workers on how to operate the machine. Workers operating the machine found the blade on the machine did not always cut through the fat on the meat being sliced and this would collect at the bottom of the machine. They were instructed to turn the machine off and cut off the fat. There was also a stick or ‘back scratcher’ implement that the third partner instructed workers to use to move the meat after it was cut when the blade was still operating. This implement subsequently went missing and could not be used.
Prior to the incident, a worker reported to the third partner that the meat slicer was not cutting properly. That partner removed the front guard and outer casing of the machine and made adjustments to the blade. An attempt to refit the guard was unsuccessful and the worker was told not to put his hand in front of it. The worker operated the unguarded meat slicer without incident on 15 August 2019. On 21 August 2019, he was crouched down in front of the meat slicer which was not operating when the blade came down onto his right hand, severing it across the palm. His head was positioned near the controls.
The first defendant was present at the workplace when the incident, notifiable to Work Health and Safety Queensland (‘WHSQ’) pursuant to the Act, occurred. He obtained the guard for the meat slicer from the kitchen and employed another person to refit the guard to the machine.
In sentencing, Magistrate Aaron Simpson noted it was a timely plea of guilty by the defendants to the offences charged. His Honour referenced the object of the Act and the particular obligations placed on duty holders.
His Honour held the risk of injury in this case, with the guard removed, was significant. Additionally, it was noted that the machine was labelled in Chinese and that no safe operating procedures were developed or risk assessment undertaken. His Honour commented it was inadequate that a stick or ‘back scratcher’ implement had previously been used to remove items from the machine.
In relation to the submissions made on behalf of the defendants attributing blame to the worker, his Honour found that was unfair and not reasonable. In particular, his Honour noted the power imbalance between the defendant as an employer and the injured individual being a worker. His Honour noted there was an expectation that employers would provide safe plant and equipment at all times, and repeatedly stated that the primary duty falls to the employer to protect workers from unsafe procedures and practices. His Honour stated that the defendants need to understand that the worker is not to blame for what occurred and that through the penalty to be imposed perhaps they will understand.
His Honour did not accept the first defendants’ lack of English literacy as an excuse. It was indicated that those conducting businesses needed to be aware of the Code of Practice relevant to managing the risks of plant and understand it. His Honour held the defendants were not absolved of responsibility because they were not in charge of that particular area of the business, and that if they undertake the business and share the profits they bear the responsibility.
His Honour had regard to the defendants’ cooperation with the administration of justice through their pleas of guilty, and that post-incident the business had engaged a Work Health and Safety consultant to review their workplace procedures. However, his Honour remained concerned, in light of the submissions made attributing blame to the worker, as to the defendants’ understanding of their obligations, and held that those submissions were relevant in considering the extent of the defendants’ remorse.
His Honour considered that the penalty should acknowledge that the business had good commercial practices previously and no prior prosecutions for breaches of the WHS Act. In relation to the offence of failing to ensure the site was not disturbed, His Honour determined that, even though he had suspicions about why the first defendant ran to put the guard back on, he would ‘assume the best’ in the circumstances as it could not be said that it was done for a malicious purpose.
His Honour imposed a $25,000 fine on each defendant in relation to the category 2 offending, and a further $2,000 fine on the first defendant in relation to the failure to preserve the incident site. His Honour exercised his discretion to not record a conviction.
OWHSP contact: firstname.lastname@example.org
Charge 1: Sections 21 and 32 of the Work Health and Safety Act 2011; Charge 2: Section 39 of the Work Health and Safety Act 2011
Sections 21 and 32 of the Work Health and Safety Act 2011