On 5 January 2022, Saratoga Holdings Pty Ltd was sentenced in the Bundaberg Magistrates Court for numerous breaches of the Work Health and Safety Act 2011 (‘the Act’). The defendant was convicted of three offences against section 32 of the Act, having failed to comply with its primary health and safety duty in each instance. The defendant was also convicted of an offence against section 38 of the Act for failing to report a notifiable incident to the Regulator.
The defendant is one of the world’s largest growers and processers of macadamias. The defendant carried on business as ‘Hinkler Park Plantation’, with several plantations in the Bundaberg region. The defendant engaged several international workers as casual farmhands, including two UK citizens who were 25 and 24 years old (‘Worker 1’ and ‘Worker 2’ respectively).
On 27 August 2018, an incident occurred at a plantation of approximately 95 hectares known as the ‘Goodwood cell’. The Goodwood cell comprised approximately 140 rows of trees, around 6 to 7 metres high, with foliage limiting visibility.
On that date, several workers were working in the Goodwood cell. The cell manager employed by the defendant was operating a Fiat tractor with a skirting attachment, which had five large blades on a metal arm approximately 2.3 metres long (‘skirter’).
Worker 1 was tasked with operating an all-terrain vehicle (‘ATV’) to check the position of the trees’ irrigation lines. Neither Worker 1 nor two other workers in the cell were advised of the exclusion zone around the cell manager’s skirter operation area.
Shortly before 3pm, Worker 1 was driving the ATV between rows 5 and 6, towards the end of row 5. The cell manager was operating the tractor with the skirter, and was situated on the headland, between rows. Worker 1 exited the row and turned onto the headland, whereupon he collided with the skirter. His left arm contacted with the rotating blades of the skirter. He sustained an incomplete amputation of his left forearm.
The investigation found the defendant did not implement a clear exclusion zone around the skirter. The defendant’s policy required ‘Danger: machinery in use’ signs to be placed at all work entrances. The cell manager had put out two signs, but had not placed signs at all work entrances, including the incident location. Further, while Worker 1 received an induction, he did not watch the defendant’s quad bike instructional DVD or complete its quad bike questionnaire. The defendant failed to identify the hazard of the skirter’s moving blades and the risk of collision with its blades.
The defendant’s conduct in respect of this incident constituted charge 3.
Workplace Health and Safety Queensland’s (‘WHSQ’s) investigation into that incident revealed further offending.
The defendant owned a woodchipper, used to chip tree branches. It was fitted to the front of a tractor, which was consistently operated by the technical officer employed by the defendant. From about 23 July 2018, the technical officer instructed Worker 1 and Worker 2 to walk down the rows of macadamia trees, pick up tree limbs and feed them into the woodchipper while the tractor and chipper combination moved slowly towards them (‘the woodchipping task’). Worker 2 ceased the task on 3 August 2018, and Worker 1 ceased the task on or before 16 August 2018. There were no reported incidents relating to the woodchipping task.
The investigation revealed the defendant did not undertake a risk assessment of the woodchipping task. The woodchipper’s manual identified the hazard of ‘machine moves while in operation’, but there was no evidence the defendant considered this hazard. Further, while workers were shown a woodchipper induction video, the woodchipper was shown stationary, which was not how it was operated in practice. There was a risk that an operator may trip and fall under the wheels of the woodchipper or the vehicle, or accidentally fall into the area designed for wood to go into the machine.
The defendant’s conduct in this respect constituted charge 1.
On 3 August 2018, Worker 2 was assisting the technical officer with changing the woodchipper blades. The technical officer demonstrated how to change the blades, then asked Worker 2 to take over. The technical officer briefly left, while Worker 2 successfully changed a blade. Worker 2 then commenced changing the next blade. Worker 2 attempted to slow the disc’s rotation with his left hand. Momentum trapped his left-hand fingers between the metal casing and the disc containing the cutting blades. He suffered lacerations to two left fingers, including cuts to his tendons which required two operations to repair.
The investigation revealed the defendant’s ‘Wood Chipper Operating Procedure’ did not include a procedure for changing the blades. One method for changing the blades was to use a torque wrench to tighten the nuts. Worker 2 was not instructed to change the blades using a torque wrench, nor was he provided with any other formal training in changing the blades.
The defendant’s conduct in respect of this incident constituted charge 3.
By 6 August 2018, the defendant knew the notifiable incident (in respect of charge 3) had occurred. The defendant did not report the notifiable incident to the Regulator at any time (charge 4).
In sentencing the defendant, Magistrate McGarvie noted the defendant’s guilty pleas and considerable post-incident measures, including engaging a new health and safety manager to comprehensively review its health and safety procedures. Her Honour accepted that the defendant now takes its work health and safety obligations seriously but observed that it should have already been aware of them. The learned Magistrate noted the defendant had a prior conviction from 2014, concerning a similar set of circumstances.
Magistrate McGarvie noted the predominant sentencing consideration must be general deterrence, with denunciation also significant. Her Honour commented it was important that the defendant did not see penalties as part of the ‘cost of doing business’. Her Honour noted the steps required to protect workers were simple and reasonable, and noted that better plant and radios were purchased after the incident. Her Honour stated a vulnerable workforce must be offered no less protection than others.
Having regard to references tendered in support of the defendant, the learned Magistrate noted that while she had no doubt the defendant was an important corporate citizen in the region, corporate citizens must also be good ones. Her Honour was persuaded of the need to impose a penalty which would send a message to the community and other businesses that these offences are serious.
Her Honour had regard to the principles contained in sections 9(1) and 9(2) of the Penalties and Sentences Act 1992, and to the principles in the cases to which she had been referred. Her Honour observed she had considered the maximum penalties, the nature and seriousness of the offences, and the emotional and physical harm to two victims. Her Honour noted the defendant’s culpability for the offending, having caused the loss suffered by the victims. The Court also took into consideration the defendant’s character, the significant measures and financial investment it had taken to correct its health and safety procedures, and the prevalence of the offences in the community.
In ordering that a conviction be recorded, Her Honour had regard to the factors in section 12 of the Penalties and Sentences Act 1992, including the defendant’s prior conviction.
OWHSP contact: firstname.lastname@example.org
Charge 1 to 3: Sections 19(1) and 32 of the Work Health and Safety Act 2011; Charge 4: Section 38 of the Work Health and Safety Act 2011