On 18 December 2023, a company engaged in the business of manufacturing and supplying bakery products was sentenced in the Townsville Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The company pleaded guilty to failing to comply with its primary duty to ensure workers’ health and safety, thereby exposing them to the risk of death or serious injury. The charged period was over almost 18 months.
The defendant purchased a ‘Downhill Spiral Freezer Conveyor’ (‘conveyor’) in 2013, which was installed in the packing room at the workplace and used to move frozen product from the freezer to the packing room. Sometime in May 2019, the belt of the conveyor was replaced. It was threaded in such a way that exposed the tension roller on its underside, creating an unguarded nip point between the roller and the conveyor belt which was accessible by workers. It was from this date that the charged period commenced.
There was no risk assessment completed by the defendant in relation to the conveyor, nor a safe work instruction or procedure for the safe operation of the conveyor, including the method of cleaning it, which was a daily task. Cleaning of the conveyor often occurred while it was still operational, and not deenergised. The cleaning task was hazardous in that it posed a risk to the health and safety of workers, namely the possibility of serious injury if part of a worker’s body became caught or entangled in the moving parts of the plant.
On 23 October 2020, a worker was using a scraper to clean product from the tension roller on the underside of the conveyor. To reach the build-up, the worker crouched under the conveyor belt, which was operational at the time. His sleeve got caught by the rotating tension roller and was pulled in, contorting his left arm around the tension roller, where he was trapped for over one hour. The worker suffered multiple fractures of his left arm, which required surgery, and he remained in hospital for five days, and unable to work for at least four months.
The defendant declined to participate in a recorded interview with investigators, but cooperated and complied with notices which were issued following the incident. This involved the defendant quickly developing and implementing a standard operating procedure for the cleaning task, which included that the belt be switched off during cleaning and, further, if the rollers were caked with product the new procedure dictated that there was an extra clean which first required isolation of the control panel with a padlock on the main power switch.
In sentencing, Magistrate Lehmann considered that the offending was serious, the risk was obvious and it was easily overcome by low cost measures which were developed within three days, and that it was not a case of “inadequate” measures but rather they were non-existent, particularly in terms of no risk assessment being performed and there being no safe work procedure. His Honour also considered the prolonged period of the risk as aggravating, but that was to be balanced against there being no evidence as to the frequency of the risk and nor was there a risk of death, and that while the injury was serious, there was no evidence of permanent impairment. Overall, his Honour found that general deterrence and community denunciation formed a key part of the court’s consideration, but that there were also substantial mitigating factors to consider, including the early plea of guilty, which not only saved court time and cost but also the worker from having to give evidence, and which also indicated remorse. His Honour also considered that remorse was evidenced in the significant steps taken by the company since the incident to improve work health and safety, including a five-year program to implement a full upgrade to its work health and safety practices. His Honour also found that the defendant was a good corporate citizen, shown in its employment practices and engagement in the local community, including donations to Foodbank and supporting a local indigenous AFL club.
His Honour fined the defendant $55,000 and exercised his discretion to not record a conviction. Costs of $1,601.40 were also ordered.
OWHSP contact: email@example.com
Sections 19(1) and 32 of the Work Health and Safety Act 2011