On 20 April 2022, the Chief Executive Officer of a fertiliser company was sentenced in the Caboolture Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The defendant pleaded guilty to failing to exercise due diligence to ensure the company complied with its primary health and safety duty, thereby exposing workers to the risk of death or serious injury.
The company produced bags of fertilizer at its factory. The bags were moved along a conveyor belt to be sealed, flattened and stacked onto pallets by machinery. Workers were required to inspect the bags as they moved along the conveyor belt. Dangerous sections of the conveyor belt did not have sufficient guarding in place. There were no visual markings to identify an exclusion zone to minimise the potential for workers to interact with the moving conveyor. No risk assessment or safe operating procedures had been developed regarding the work that was done in proximity to the moving conveyor. Workers therefore encountered a risk of injury from falling onto, or otherwise contacting, the moving conveyor. Over a 13-month period, the defendant failed to exercise due diligence to ensure the company took reasonably practicable steps to address the risk. This failure exposed workers to the risk of death or serious injury.
On 10 March 2020, the risk materialised for a worker who, while working near a dangerous section of the conveyor, became partly trapped in a part of the machinery designed to flatten bags. By the time another worker found him, he was unconscious and unable to be revived. His injuries included a severe traumatic brain injury which resulted in his death.
In sentencing, acting Magistrate Ellis had regard to the seriousness of the defendant’s failure of duty. Her Honour noted that, as the defendant was the CEO, “the buck stopped with him in terms of decision-making” at the company. Her Honour found that the risk of harm to workers was real and foreseeable because of the lack of guarding and that workers were required to work in close proximity to the moving conveyor.
Her Honour considered general deterrence was a paramount sentencing consideration because, under the Act, workers are entitled to expect the highest level of protection, as far as reasonably practicable, from risks to their health and safety. In this case, the risk of a worker falling onto the moving conveyor was real and foreseeable. There was a lengthy period of time when the defendant failed to ensure the company implemented any measures to address the risk. The measures that could have eliminated or minimised the risk were not onerous or difficult to achieve. Her Honour also had regard to the significant impact that the death of the worker has had upon his family.
Her Honour took into account matters in the defendant’s favour. The defendant had no prior convictions and had otherwise led an “unblemished” career. The defendant was personally affected by the worker’s death and had given a substantial level of support to the worker’s family. Since the death of the worker, the defendant had taken steps to ensure the company had addressed the risk presented. He had entered an early guilty plea. Her Honour determined a fine of $60,000 to be appropriate in all the circumstances. Due to the defendant’s demonstrated remorse and otherwise good character, her Honour decided against recording a conviction.
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Sections 27(1) and 32 of the Work Health and Safety Act 2011