On 20 April 2021, a plastic waste company, a labour hire company and the director of both companies were sentenced in the Richlands Magistrates Court for category 2 offences under the Work Health and Safety Act 2011 (‘the Act’). The plastic waste and labour hire companies failed to comply with their primary health and safety duties under section 19(1) of the Act, and the defendant director failed to exercise due diligence to ensure the companies complied with its duty. Magistrate Aaron Simpson imposed fines of $60,000 and $40,000 on the plastic waste and labour hire companies respectively. His Honour also imposed a fine of $10,000 on the director. No convictions were recorded.
The plastic waste company undertook a business at Wacol producing resins for the plastic industry and other extruded polyethylene products. The plastic waste company owned and operated a D3 Sheetline Plastic Extruder (‘D3 machine’) which produced plastic sheeting by extruding heated plastic raw materials through a series of rollers to form it to customer specifications.
The plastic waste company hired workers from a labour hire company operated by the same director. The labour hire company supplied a worker to the defendant company to operate machinery, including the D3 machine. The worker had operated the D3 machine for periods of two to three months at the end of 2018 and 2019. The worker received theory and practical training on safe use of the D3 machine and was instructed by his supervisor and other workers not to operate it when the guards were not operational due to the risk of entanglement in the rollers. The worker was also instructed not to climb over any of the machine’s safety mechanisms, not to leave the machine unattended or unsupervised while operating, and to isolate the machine before clearing jammed sheets from the rollers.
On 11 December 2019, the worker was operating the D3 machine. The worker left the D3 machine unattended for several minutes to assist another worker, during which time processing material became jammed between two rollers. The worker went to clear the jam by opening an access gate in the guarding and climbing onto the machine’s roller area. While standing on the jammed sheeting and attempting to cut it with a knife, his left foot was pulled between the rollers which caused degloving and laceration injuries. The worker required multiple surgeries and a skin graft.
Post-incident, the plastic waste company implemented control measures including an access platform to allow safe access to the roller area, automated interlock guarding and a written procedure for troubleshooting incidents on the D3 machine.
Magistrate Simpson observed that the defendant accepted responsibility for failure to maintain adequately safe plant and for the safety of workers and others. In mitigation, his Honour took into account the defendant’s early guilty plea, remorse, cooperation with the administration of justice and lack of prior convictions.
His Honour indicated that work health and safety legislation obliges employers to provide safe workplaces. His Honour observed that various measures could have been implemented such as machine guarding, as required by section 208 Work Health and Safety Regulation 2011 which lists interlocked physical barriers as an appropriate risk control where necessary to access plant during operation. An interlocked physical barrier permits access when the plant doesn’t present a risk, and prevents access at other times.
His Honour noted that while the machine’s pre-existing guarding partially mitigated the risk, there remained a risk of serious injury to a foot or limb caught between the rollers. Magistrate Simpson indicated the defendant’s efforts to address the risks with administrative controls were significant and the worker did not comply with his training. However, his Honour considered those measures low-ranking on the hierarchy of controls and commented that the risk should have been eliminated from the outset. His Honour observed the incident exemplified why administrative controls are a lower-order risk control, as serious consequences can occur when not followed.
His Honour was satisfied that the defendant’s post-incident measures were appropriate, including new guarding, and engaging more appropriately skilled persons to deal with safety issues. His Honour observed the defendant director was previously the controlling mind of companies with similar offences for little or no guarding on plant, considering it a factor against the defendant. However, the learned Magistrate referred to the defendant’s submission that the director had since adopted a proactive, holistic safety outlook for the defendant company.
His Honour considered several sentencing principles relevant, including deterrence, denunciation and protection of the community, as workers must be protected from harm and penalties must deter others especially when the injury is serious. His Honour commented that the conduct itself must be punished, noting that the resultant injury is not always the most important factor.
His Honour gave consideration to double punishment, apportioning the fines between the three defendants. In the different apportionment of the fines, His Honour acknowledged that each defendant had different obligations, whilst recognising the same person was behind each entity. His Honour apportioned the highest fine to the defendant company as it owned the machine and could have implemented guarding, and a different fine to the labour hire company as it had an obligation not to send its workers to unsafe locations. His Honour declined to record a conviction given the defendant’s lack of prior convictions and the potential economic impact on the imminent sale of the business.
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Sections 19(1) and 32 Work Health and Safety Act 2011