On 6 June 2023, Seven Star Rubber Crumb Pty Ltd (‘the defendant’) was sentenced in the District Court at Brisbane for breaching section 31 of the Work Health and Safety Act 2011 (‘the Act’) having failed to comply with its health and safety duty pursuant to section 19 of the Act. Judge Everson convicted and fined the defendant $650,000.
On 21 July 2023, the defendant was sentenced in the Brisbane Magistrates Court in relation to two summary offences for breaching sections 38 and 39 of the Act. The defendant was convicted and not further punished.
Seven Star Rubber Crumb Pty Ltd was incorporated on 13 October 2016. The company conducted a tyre recycling business from a factory on Ipswich Road, Rocklea. The recycling process produced rubber granules from disused tyres for onward commercialisation.
Among the machines for carrying out the tyre recycling process at Seven Star, there were two machines to slice the sidewalls from the tyres; one machine to crush sliced tyres to separate them from their steel wire beads (‘de-bead’); and two machines to chip tyre material into small fragments. Seven Star had acquired the machines from China.
The task of feeding material into, and retrieving material from, the machines meant that the operator’s hands would often be near exposed shear or crush points. The operator would be at risk of death or serious injury from incidental contact with an exposed cutting blade or crushing surface.
Work Health & Safety Queensland (‘WHSQ’) first became aware of the hazardous machines operated by workers at Seven Star following an unrelated incident at the factory in July 2017. On 18 July, WHSQ issued notices prohibiting the use of the machines by workers until Seven Star had remedied the risk of injury that the machines presented when in operation. The director of seven star instructed a worker of Seven Star to fabricate metal mesh guarding to limit access to shear and crush points. By 25 July, this had been installed on at least the slicing and chipping machines.
In February 2019, guarding had been removed from some of the machines. WHSQ inspectors reiterated to supervisors at the company that the operation of the machines without appropriate guarding was dangerous to health and safety. On 12 March 2019, WHSQ inspectors raised this issue with the director in person. Through an interpreter, they informed him that he held a responsibility to ensure the machines were appropriately guarded to protect workers from the risk of injury from contact with cutting edges.
On 30 separate days between 22 November 2019 and 2 April 2020, workers of Seven Star were operating the machinery without any guarding in place. Guarding was either removed or moved aside when the machines were in operation. In directing workers to operate the machines in an unguarded state, Seven Star was reckless as to the risk of death or serious injury inherent in that activity.
The failure by the defendant to prevent the operation of the machines in an unguarded state exposed workers to the risk of death or serious injury from physical contact with exposed shear or crush points.
The risk of serious injury materialised for one worker who, in the evening of 2 April 2020, was operating the de-beading machine to separate steel wire beads from sliced tyres. Two workers were operating other machines. There was no guarding in place on any machine in operation.
The rotating metal rollers of the de-beading machine were completely exposed to the worker. He stepped away from the de-beading machine after placing a tyre onto the roller. As the rollers pressed and separated the steel wire bead from the tyre, he stepped forward to prepare to lift the material off the machine. The glove on his right hand became caught. Before he could free his right hand, it was dragged by the rotating rollers into the crush point between the rollers. The worker’s thumb and fifth finger were partly amputated while his index and third fingers were fully amputated. His ring finger was fractured. Co-workers immediately took him to hospital where his amputated index and third fingers were surgically reattached. The functioning of his right hand was unable to be fully restored.
CCTV footage from the factory revealed that, notwithstanding the incident, workers continued to operate the slicing and chipping machines in an unguarded state on 4, 5 and 6 April 2020.
Following the incident, at approximately 10:00 am on 3 April 2020, mesh guarding was installed on the machinery. In doing so, the defendant failed to ensure, so far as was reasonably practicable, that the site where the incident occurred was not disturbed until an inspector arrived at the site or any earlier time than an inspector directed.
At approximately 3:30pm on 3 April 2020 the defendant notified the regulator of the incident. The defendant failed to ensure the regulator was immediately notified of the incident.
In sentencing the defendant, Everson DCJ had regard to the maximum penalty of $3,000,000. His Honour also had regard to the nature and circumstances of the offending, which occurred over a period of approximately 4 months and exposed multiple workers to the risk of death or serious injury.
His Honour had regard to the ongoing intervention from WHSQ on a number of occasions prior to the incident and remarked that the defendant’s conduct, in continuing to operate the machinery, exemplified a contumacious disregard for its safety obligations.
His Honour considered that the aggravating features of the offending were the protracted period of disregard for the safety of workers while continuing to operate the factory, and the failure to immediately cease using the hazardous machinery following the incident. His honour considered that both warranted particular denunciation and that it was difficult not to conclude that there was a desire to merely maximise profit at the expense of workers’ safety.
His Honour noted that the defendant was placed into external administration on 16 April 2021 and that it seemed inevitable that any fine imposed would not be paid.
In terms of mitigating factors, his Honour took into account the defendant’s plea of guilty which was entered at committal, and lack of prior convictions.
Having regard to all matters, his Honour convicted and fined the defendant $650,000. A conviction was recorded.
In sentencing the defendant in relation to the two summary charges, Magistrate Noud had regard to the penalty imposed on the defendant in the District Court and noted that totality was a relevant consideration in determining the appropriate penalty to be imposed for the summary charges.
His Honour concluded that had the summary charges been dealt with at the District Court sentence, they most likely would not have resulted in a material uplift of the total effective penalty imposed.
Taking into account all of the circumstances, including that the defendant had been placed into external administration and any fine was unlikely to be paid, his Honour convicted the defendant on each charge, and did not further punish. Convictions were recorded.
OWHSP contact: email@example.com
Sections 19(1) and 31 of the Work Health and Safety Act 2011; Section 38 of the Work Health and Safety Act 2011; Section 39 of the Work Health and Safety Act 2011