Inspector Barbosa v McDonalds Australia Limited - [2003] NSWIRComm 196 - NSWIRComm 1992 case summary — Zoe

NSWNSWIRComm

Inspector Barbosa v McDonalds Australia Limited

[2003] NSWIRComm 196

Industrial Relations Commission (NSW)|1992-06-30|Before: Walton J, Fisher CJ, Mahoney JA, Newmann JJ, Mr P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Walton J, Fisher CJ, Mahoney JA, Newmann JJ, Mr P

Catchwords

03/21/2002
05/07/2002
10/14/2002 DATE OF JUDGMENT: 06/23/2003

Source

Original judgment source is linked above.

Catchwords

03/21/200205/07/200210/14/2002 DATE OF JUDGMENT: 06/23/2003

Judgment (106 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Barbosa v McDonalds Australia Limited [2003] NSWIRComm 196 PROSECUTOR: Workcover Authority of New South Wales (Inspector Feixeira Barbosa) PARTIES : DEFENDANT: McDonalds Australia Limited FILE NUMBER: IRC 3834 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Occupational Health and Safety - Prosecution alleged a failure to provide appropriate plant and a failure to assess and prevent risks associated with manual handling activities - Plea of guilty - Objective seriousness of offence - Substantial systems of work - Significant efforts and expenditure in attempting to comply with Occupational Health and Safety obligations - Failure to provide appropriate plant - Failure to properly assess and avoid risks associated with manual handling activities - Risks to safety had the potential to have "serious consequences" - Potentially hazardous work environment - Nature of workforce relevant relevant to assessment of penalty - Deterrence - Both general and specific deterrence relevant to assessment of penalty in this case - Prior convictions - Interim convictions - Distinction between prior convictions and interim convictions unnecessary in this case as defendant's record not kind warranting "condign punishment" as discussed in Veen (No.2) - Subjective features in mitigation - Early plea of guilty - Assistance to prosecutor - Assistance to injured employee - Cooperation with prosecutor - Penalty imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 Bultitude v Grice Constructions Pty Limited (No 2) [2002] NSWIRComm 234 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Charara v New South Wales Director of Public Prosecutions [2001] NSWCA 140 Department of Mineral Resources (Insp. McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) Inspector May v McDonald's Australia Limited [2002] NSWIRComm 179 Inspector Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94 Inspector Webb v Namoi Cotton Co-op [2003] NSWIRComm 29 Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Pearce v The Queen (1998) 194 CLR 610 R v Boney (Unreported, Court of Criminal Appeal, Mahoney JA, Grove and Newmann JJ, 22 July 1991) R v Gardener [2003] NSWCCA 2 CASES CITED : R v Hutchins (1957) 75 WN (NSW) 75 R v Sharma [2002] NSWCCA 142 R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Withers (1789( 3 TR 428 Ridge Consolidated Pty Ltd v Mauger (2002) 115 IR 78 Veen v The Queen [No 2] (1988) 164 CLR 465 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 Workcover Authority of New South Wales (Inspector Low) v Capral Aluminium Limited [2002] NSWIRComm 12 Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales (2002) 115 IR 130 WorkCover Authority of New South Wales (Insp. Riley) v Broken Hill Proprietary Co Ltd (1998) 83 IR 427 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited (2000) 100 IR 23 Workcover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 Workcover Authority of New South Wales v Capral Aluminium Ltd (1998) 93 IR 211 Workcover v Capral Aluminium Ltd (1998) 82 IR 468 HEARING DATES: 10/29/2001; 03/21/2002; 05/07/2002; 10/14/2002 DATE OF JUDGMENT: 06/23/2003

[11]

(a) Failed to provide plant for the disposal of hot cooking oil that was safe and without risks to health. (b) Failed to make arrangements for ensuring safety and absence of risks to the health of its employees, and in particular Demetrios Kyriakidis, in that contrary to the Occupational Health & Safety (Manual Handling Regulations), 1991 it contravened: (i) the National Standard for Manual Handling (1990), paragraph 3.1(a) in not taking all workable steps to make sure that a bucket used for carrying hot oil was designed and constructed and maintained to be as far as workable, safe and without risks to health and safety when manually handled; (ii) the National Standard for Manual Handling (1990), paragraph 4.1-4.3 requiring the defendant to examine and assess the risks in relation to manual handling. (c) Contravened the National Code of Practice for Manual Handling recommendation that young employees under the age of 18 years not be required to lift or carry objects weighing more than 16 kilograms without mechanical or other assistance. 4 The particulars of the charge were as follows: 1. The defendant at all material times employed Demetrios Kyriakidis ("the employee") as a casual crew person. 2. At all material times the defendant was the occupier of premises at 312 Canterbury Road, Hurlstone Park, New South Wales, which premises were being operated as a fast food restaurant ("the workplace"). 3. The employee had commenced employment with the defendant as a casual crew person on 12 January 1998 at a time when he was slightly less than 15 years of age having been born on 15 March 1983. 4. At all material times between 12 January 1998 and 6 August 1998 the employee's duties at the workplace involved cooking burgers, mopping and brooming the floor, cooking in hot oil, cleaning the car park, washing up all equipment and, after closing time, changing the hot cooking oil, filtering it and skimming it. 5. At around 10.50pm on 6 August 1998 the employee was instructed to carry hot cooking oil, which had been drained from the kitchen deep fryers into a stainless steel bucket ("the bucket"), to a dumpster located inside a garage at the rear of the main restaurant building, a distance of approximately 30 metres from the rear door of the main building. 6. The employee had carried the bucket and was lifting it to dispose of the hot oil into the dumpster, but the floor was slippery and caused him to lose his balance and drop the bucket onto the floor and in doing so hot oil was caused to splash over his face, forearms, neck, chest and left ear ("the incident"). 7. The incident resulted in injuries to the employee involving burns to his face, forearms, biceps, neck, chest and left ear. 8. Following the incident the employee was unable to resume his normal work for in excess of seven days. 9. At the time of the incident the bucket which was being carried by the employee had a capacity of 25 litres and was filled to approximately 80% capacity. 10. The bucket at all material times had no handles to enable it to be securely gripped. 11. At all material times the edges of the bucket were sharp rendering it difficult to grip. 12. The task of removal and disposal of the oil from the deep fryers was conducted by the defendant on a regular basis. 13. Shortly prior to the incident the task of removal of the oil from the deep fryers was being carried out by the crew trainer on duty at that time, Konstantinos Aslanidis ("the supervisor"). 14. The supervisor instructed the employee to dispose of the hot cooking oil in the dumpster after he had removed it from the deep fryers. 15. At all material times on and prior to the incident the defendant provided personal protective equipment ("PPE") which included gloves, face shield and apron. 16. The defendant's documented Station Observation Checklist stipulated that PPE equipment was to be worn during the performance of the work involving removal and disposal of hot cooking oil. 17. At the time the work was being carried out the supervisor was wearing a set of PPE equipment. 18. At all material times other sets of PPE equipment were available from the manager's office upon request. 19. The employee was not instructed by the supervisor or otherwise to wear PPE equipment at the time of the incident. 20. The employee was not instructed by the supervisor to obtain PPE equipment from the manager's office. 21. At all material times prior to 6 August 1998 the employee was not provided with information relating to the availability of PPE equipment and the requirement as to the wearing of such equipment during the performance of the work of removing and disposal of hot cooking oil. Statement of Agreed Facts 5 The prosecutor tendered a Statement of Agreed Facts, which was in the following terms: 1. The Informant is and was at all material times an Inspector duly appointed and empowered by Section 48 of the Occupational Health & Safety Act (NSW) 1983 to institute the within proceedings. 2. At all material times McDonald's Australia Limited (ACN 000 697 763) was a company incorporated in New South Wales with registered office at 21-29 Central Avenue, Thornleigh in the state of New South Wales ("the defendant"). 3. At all material times the defendant was an employer in New South Wales and throughout Australia. 4. The defendant at all material times employed Demetrios Kyriakidis ("the employee") as a casual crew person. 5. At all material times the defendant was the occupier of premises at 312 Canterbury Road, Hurlstone Park, New South Wales, which premises were being operated as a fast food restaurant ("the workplace"). The workplace operated (on 6 August 1998) and continues to operate the following trading hours: Sunday to Thursday (inclusive) - 6.00am to 11.00pm, Friday and Saturday - 6.00am to 12 midnight and employed (on 6 August 1998) 70 employees (crew and managers) and continues to employ approximately 90 employees (crew and managers). 6. The employee had commenced employment with the defendant as a casual crew person on 12 January 1998 approximately 7 months before the incident at a time when he was slightly less than 15 years of age having been born on 15 March 1983. The employee had been trained in the various tasks associated with the preparation of food for sale at the workplace. 7. At all material times between 12 January 1998 and 6 August 1998 the employee's duties at the workplace involved cooking burgers, mopping and brooming the floor, cooking in hot oil, cleaning the car park, washing up all equipment and, after closing time, changing the hot cooking oil, filtering it and skimming it. 8. Shortly prior to the incident the task of removal of the oil from the deep fryers was being carried out by the crew trainer on duty at that time, Konstantinos Aslanidis ("the supervisor"). The supervisor commenced employment at the workplace on 13 March 1995 as a casual crew person and had been employed by the defendant approximately 3 years and 5 months before the incident. At the time of the incident, the supervisor was employed as a crew trainer and had held that position for approximately 2 years. In this position the supervisor was responsible for the following: (a) training restaurant crew on the different areas and operations within the restaurant including workplace safety; (b) consistently following recommended procedures (c) being aware that crew need to know and being able to communicate with them (d) being leaders within the crew (e) consistently reinforcing McDonald's standards. 9. The supervisor would have been aware from his training that the defendant required that employees were only to perform tasks in which they had been trained and verified as competent. 10. At around 10.50pm on 6 August 1998, despite his training, the supervisor, Mr Aslanidis, instructed the employee to dispose of the hot cooking oil, which had been drained from the kitchen deep fryers into a stainless steel bucket ("the bucket"), to a dumpster located inside a garage at the rear of the main restaurant building, a distance of approximately 30 metres from the rear door of the main building. 11. The employee had carried the bucket and was lifting it to dispose of the hot oil into the dumpster, but the floor was slippery and caused him to lose his balance and drop the bucket onto the floor and in doing so hot oil was caused to splash over his face, forearms, neck, chest and left ear ("the incident"). 12. Following the incident the employee received first aid from staff at the restaurant. 13. The incident resulted in injuries to the employee involving first degree burns to his face, forearms, biceps, neck, chest and left ear. 14. Following the incident the employee was unable to resume his normal work for in excess of seven days. 15. At the time of the incident the bucket which was being carried by the employee had a capacity of 25 litres and was filled to approximately 80% capacity. 16. The bucket at all material times had no handles to enable it to be securely gripped. 17. At all material times the bottom edge of the bucket was sharp and the top edge of the bucket was thin rendering it difficult to grip. 18. The task of removal and disposal of the oil from the deep fryers was conducted by the defendant on approximately a weekly basis. 19. At all material times on and prior to the incident the defendant provided personal protective equipment ("PPE") which included gloves, face shield and apron for the performance of the task of filtering and disposing of hot oil. 20. The defendant's documented Station Observation Checklist stipulated that PPE was to be worn during the performance of the work involving removal and disposal of hot cooking oil. 21. At the time the work was being carried out the supervisor was wearing a set of PPE. 22. At all material times other sets of PPE were available from the manager's office upon request. 23. The employee was not instructed by the supervisor or otherwise to wear PPE equipment at the time of the incident. 24. The employee was not instructed by the supervisor to obtain PPE from the manager's office. 25. Immediately subsequent to the incident, pending the delivery of the new oil disposal cart, the defendant implemented a system of disposal of the hot oil which required the oil to be placed in sealable oil containers with appropriate handles for carrying and which were not to be emptied into the bulk oil disposal dumpster but were collected by the oil disposal company themselves. 26. On 9 October 1998 a McDonald's approved oil disposal cart was delivered to the workplace for the disposal of oil. 27. Additional training and re-enforcement has been provided to the defendant's crew and management at the workplace on all work practices including disposal of oil and occupational health and safety guidelines. 28. The defendant fully cooperated with WorkCover in relation to its investigation of this incident. This co-operation is demonstrated by: (i) Notifying WorkCover of the incident on 7 August 1998, being the first day after the incident when WorkCover's offices were open. (ii) The defendant's staff fully co-operating in interviews conducted by WorkCover in relation to the incident and providing additional details that were not able to be initially provided in the interviews. (iii) The defendant's National Workplace Safety Manager participating in a detailed interview with the informant in relation to the incident. (iv) The defendant providing WorkCover with all relevant documentation in relation to the incident. The Course of the Proceedings 6 Proceedings relating to the 1998 incident were commenced in August 2000 and originally involved three separate prosecutions of the defendant under the Act. Following discussions between the prosecutor and defendant, two prosecutions were withdrawn and the remaining charge (now before the Court) was amended. In these circumstances, the defendant entered a plea of guilty. The matter was listed for hearing on 29 October 2001 and following that hearing, judgment was reserved.

[35]

17 I do not propose to summarise that evidence. I will refer to those components of the evidence which received emphasis in the defendant's submissions, or which otherwise assist me in reaching findings of fact and in my consideration of the appropriate penalty. I note that during the proceedings the defendant was requested to draw attention to particular components that it relied upon in its case. In particular it referred to the following evidence, all annexed to Ms Berney's affidavit: 1. Manual handling checklist 2. Health and Safety Package (containing health and safety policy and specifications for the role of crew trainer) 3. The contents of a filtering procedures video, demonstrating oil disposal using the 'Prince Castle' oil filtering machine 4. Workplace Safety Training Matrix - an overview of employee health and safety training October 1996 - October 1997 5. Safety Alert Register 1998 6. Various Station Observation Checklists for the injured employee 7. Station Observation Checklist S6F December 1997 8. Fried products - Operations and Training Manual 'filtering oil' (printed in America, 1992). 9. Equipment Update Newsletter - 3 March 1997 10. Memorandum from Natalie Berney regarding implementation of oil disposal cart requirements throughout McDonald's system - 14 July 1998 11. Health and Safety Training Manual - Oil disposal for stores with stairs (issued 3 March 1999); setting out alternative options for stores with stairs which make use of the oil disposal cart inappropriate. 12. (Revised) Fried Products - Operations and Training Manual (printed in Australia in 1999) 18 Ms Berney stated that she personally, and the management team, took the subject of workplace injury very seriously, took extensive steps to prevent workplace incidents and deeply regretted the injury to Mr Kyriakidis on 6 August 1998. This was evidenced by the defendant taking every available step after the incident to rectify the problem, such as by ensuring the injured employee's well-being (by immediately providing first-aid and later, a rehabilitation plan), co-operating fully with Workcover in its investigation, immediately changing the oil disposal system to ensure this accident could not occur again and by entering a plea of guilty as soon as appropriate charges had been settled.

[39]

22 Regarding the defendant's endeavours to ensure occupational health and safety prior to 1996 (when Ms Berney commenced employment as National Workplace Safety Manager), Ms Berney gave evidence that the defendant had earlier ensured workplace safety by adopting the standardised (American) McDonald's corporation Operations and Training Manual and other reference materials (which ensured restaurants were operated in the intended manner and therefore, safely). The defendant had also relied on the extensive steps taken by McDonald's corporation to ensure that the safest possible equipment was installed in the restaurants. 23 The witness also gave evidence, however, of the defendant having developed and implemented additional resources with a view to promoting health and safety. Its locally produced Procedures and Policies Manual, given to employees upon commencement with the company, referred to the Occupational Health and Safety Act 1983 and provided employees with an overview of their rights and responsibilities regarding health and safety. The 'New South Wales Health and Safety Package' contained excerpts from the Act and highlighted obligations applicable in this jurisdiction, including the requirement to establish occupational health and safety committees. It set out the procedures, functions and powers of the Committee, which included undertaking safety inspections. It provided that safety inspections were to be conducted in accordance with a standardised checklist. One of the items the checklist required was "crew completing stock up or involved in any other lifting are trained in safe lifting practices". The manual also included a checklist for manual handling and a procedure to be followed for the treatment of burns. 24 In addition to requiring safety committees to routinely undertake safety inspections, the defendant arranged for regular auditing of its restaurants by its Operations Consultants (which assessed individual restaurants against a number of operational criteria) and random auditing of restaurants by employee relations consultants. The random audits contained a section dedicated to occupational health and safety, compliance with which was a minimum standard for 'passing' the random audit. Notably, one of the required criteria in this section was the display of the "Manual Handling Checklist" near the stock area. 25 According to the witness, the critical part of the defendant's safety system was its integrated training for 'crew' employees. It involved:

[41]

Assess Load 2. Get close to the load 3. Feet apart for balance 4. Relax knees 5. Lower body and bend knees. Let your back bend if it wants to. 6. Lower your head 7. Get a firm grip 8. Now…Raise your head. 9. Straighten legs. 10. Lift and turn your feet before you walk - don't twist. 27 This document was not an SOC as such, but was part of the Policies and Procedures Manual. 28 The SOC's for each of the tasks performed by crew members in the defendant's stores were tendered in a bundle. Regarding the lifting of loads, the relevant checklist was SOC T5 "Orientation" which provided that "store policies" should be "covered", including: "safety; safety committee, requirement to report all incidents, use of safety equipment, explain safe lifting practices". Ms Berney stated that it would have been usual for the injured employee to have had these safe lifting techniques explained to him during his initial training, by reference to the Manual Handling Checklist. This component was ticked off on the SOC that was tendered by the defendant as part of the injured employee's training records, although the record produced was not entirely clear. 29 The defendant drew particular attention to SOC S6F relating to oil filtration as applicable to the work occurring during the incident. Its stated objective was: "Filter oil using correct safety procedures resulting in extended shortening life and finished product quality". It contained the instruction "put on protective gear" and the warning "Caution! Hot shortening can cause severe burns. Put on protective gloves, face shield and apron." There were two versions tendered by the defendant dated July 1994, one for built in filtration and one for portable filtration. Both related to the re-use of oil. Neither referred to an oil disposal procedure. SOC HS1 regarding Health and Safety and 'trash' handling carried the objective: "To take simple precautions to ensure a safe working environment" and the instruction to "put on protective gloves and apron". The defendant did not, however, make specific reference to it. Although there was a checklist for 'Pre-Close/Close Grill Area' (SOC S6), which also referred to oil filtration, there was no SOC specifically directed towards oil disposal and none of these SOCs contained a general criterion regarding safety awareness or safe performance. 30 This was corrected in a later version of S6F from December 1997, which did establish a specific procedure for oil disposal. It utilised stark, visual prompts to warn against and emphasise hazardous steps within the checklist. In addition to the requirement to wear personal protective equipment, it now specified the following hazards to be controlled by the procedure: "hot oil splashes, hot surfaces, manual handling". A new section "Discarding Oil" had been added. It was in the following terms:

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38 In relation to the risk posed by the use of buckets in oil disposal, the witness confirmed under cross-examination that the risk had been identified as a medium risk by the external auditors. It had been scored at '8'. The risk relating to electrical cabling, highlighted by the 1996 incident, scored '10' and was also identified as a medium risk. No high risks were identified by the external audit. The risk scored 10 was the highest risk identified by the external auditors. 39 Ms Berney gave evidence of a number of risks having been identified in consequence of the audit and other steps outlined above. Ms Berney's evidence was that, if a serious risk was identified, it was dealt with as quickly as possible regardless of how difficult it was to manage. 40 Specific action involving extensive expenditure was taken to address the risk identified in consequence of the 1996 incident in Wollongong. This involved an electrical review and upgrade throughout all the defendant's stores. 41 A hierarchy of controls was adopted to address the manual handling risk (identified as a 'medium risk' by the external consultants), although this did not deal specifically with procedures relating to the handling of oil. This involved working with suppliers to decrease the weight of individual 'pre-mix' drink containers, thereby eliminating much of the risk in relation to them. It should also be noted that these were industry standard containers, and therefore potentially had a significant beneficial flow-on effect. 42 The Systems Review Group reviewed the risk arising from the use of buckets in changing oil, also identified as a medium risk by the external consultants. Ms Berney's testimony was that in the first place the risk was managed by her having ascertained from the external consultants the stores that had been using buckets and then ensuring that these stores were individually contacted about this risk. When asked about this decision in the prosecutor's cross-examination, the witness reiterated that the use of buckets was considered an unusual practice. Given other procedures were in place (and the fact that the practice was not an approved one), the defendant contacted the individual stores that the auditors identified as having used that procedure, but did not issue a Safety Alert (which are sent to all stores) regarding that practice at that time. The Hurlstone Park store was not one of the stores individually identified by the auditors and therefore was not included in that process. Having found the practice to be both an unusual practice and already adequately addressed by existing procedures the Systems Review Group decided that the bucket risk should be addressed "on an individual store basis through the hazard management system". The "controls" to which the group had regard in deciding to leave the risk to the individual restaurant's hazard management programmes were: 1) Relevant procedures and policies were available in all stores and precluded the use of buckets; 2) Personal protective equipment was required to be worn; 3) The work was restricted to staff who had been trained in it 4) The work was generally performed by more experienced staff, who were also older; 5) The disposal of oil had historically involved draining oil into the portable machine and then into containers which were wheeled to the fryer. "On a practical level", oil was "likely to be transported" using the disposal cart or "at worst" using "the portable oil filtering machine" given this historical background.

[50]

· The institution of Health and Safety Strategic Plans (those for 1996-1997 and 1998 were tendered) · Extensive training for managers and crew throughout the organisation in the risk management approach. In particular, the defendant referred to a workplace safety training matrix that set out the different levels of training required for different groups of employees and available training resources. In particular, several training videos and the SOC's T5 "Orientation" and S6F "Filtering" were listed as "general training tools" for "all employees". · Communicating to individual restaurants through the "ER News" publication, in relation to employment relations issues. · Communicating to individual restaurants through "Safety Alert" bulletins. These were first implemented in late 1996. A register of bulletins annexed to Ms Berney's affidavit showed two bulletins issued in July 1998 in relation to the disposal of waste oil. · The development of a hazard management 'pilot programme' and hazard log in 1996, substantially based on Workcover's 1994 Hazpak and the relevant legislation. This was subsequently 'rolled out' throughout the defendant's stores in May 1997. It required all new employees to undergo some hazard management training as part of their initial orientation, which also included training in a 'hazard log' reporting process. It required all staff to take up the responsibility for hazard identification and rectification and charged shift supervisors, store safety managers and safety committees with specific duties, such as taking immediate steps, or reviewing the log at regular intervals. (It was this store-based hazard management process that Ms Berney said the Systems Review Group had decided would address the risk posed by the use of buckets in oil disposal). · The development of a new "Employee Health and Safety - Policies and Procedures Manual" to supplement formal training. Ms Berney stated this was "very brief" and designed to emphasise matters already covered by other training and improve the coverage of matters that did not fit into other training. Occupational health and safety training was still incorporated into training for specific tasks, in keeping with the integrated risk management approach. 44 Following receipt of a Workcover press release (dated 10 June 1998) about a judgment against KFC regarding injuries sustained by one of its employees involving hot oil, Ms Berney sought approval from "senior management" to have the disposal carts made mandatory in all stores. A Safety Alert was issued once the proposal had received assent. The Safety Alert "Workplace Safety - Disposal of Waste Oil" was dated 20 July 1998 and was in the following terms:

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· SOC T5 "Orientation"; initial/induction training, which included separate sections on risk management and the defendant's 'open-door' management policy and instruction on manual handling/safe lifting techniques. · SOC T2/A "Appearance" · SOC G7 "Pies/Chicken McNuggets/Fillet of Fish" (for which there were eight separate completed checklists) · SOC GC9 "Buns/Dress/Grill (Clamshell Grill) · SOC GC10 "Buns/Dress/Grill (Clamshell Grill)" (for which there were four separate completed checklists) · SOC C6 "Production caller/wrapper" The annexed training records indicated, and the defendant conceded in its submissions, that the injured employee did not receive training in SOC S6F. Examination of the training records for the SOC's in which the injured employee was verified, reveals that in several instances the employee's performance was monitored against the checklist multiple times. SOC's filled out by crew trainers show no additional follow-up action to have been arranged when the employee was found to be departing from set procedures. 49 Ms Berney stated that it would have been "usual" for the employee only to have been performing tasks for which he had completed appropriate SOC training. The training was provided by a crew trainer - for whom there was a dedicated selection process (details of which were also tendered). The supervisor of the injured employee, Kon Aslanidis, was a crew trainer of some experience, having been employed by the defendant for 3 years and 5 months prior to the incident. Ms Berney stated in accordance with the promotion guidelines, he would have been verified as competent in a range of the SOC's including SOC S6F, before promotion to the position of Crew Trainer and should have been aware that employees were only to perform tasks in which they had been trained and assessed competent. 50 Ms Berney could not say whether the bucket contained in the photographs taken by the Inspector (and tendered by the prosecutor) had no handles as a consequence of damage to it, or poor design. Whilst the defendant had been aware of isolated instances of buckets being used between 1996 and 1998, Ms Berney had not seen the type of bucket used in this accident before; its use was unauthorised. 51 When questioned by the prosecutor in cross-examination as to the departure from the authorised system on the day of the accident, Ms Berney conceded that this was the "sort of thing that [could] happen in disparate cases with thousands of employees". Asked what the defendant had done to prevent this kind of unchecked departure from its systems giving rise to risks (not just arising from use of unauthorised buckets) in the future, Ms Berney stated that the defendant had a comprehensive system in place to address this. She referred to the Safety Alerts and the training system with SOCs as creating a safer environment. It was her evidence that the training empowered people to say no to management if they disagreed, and that the open-door management policy would 'cut across' an unsafe instruction from a 'boss'. Ms Berney also described the training of managers and supervisors such as the injured employee's supervisor as "extensive". She reiterated that the authorised system at the time of the accident at the Hurlstone Park store involved the use of the prince castle unit (with open grate top and pump) but not a bucket. 52 After the accident, an oil disposal cart was immediately ordered for Hurlstone Park in compliance with the July 20 Safety Alert. In the interim, by virtue of the distance between the oil vats to be emptied and the oil disposal drum, it was deemed inappropriate to continue to use the prince castle unit to transport the hot oil (because of the risk of splashes), and another system was devised whereby oil would be pumped from the prince castle unit into smaller 20L containers, with appropriate handles, which were then collected by a waste contractor. 53 Ms Berney also gave evidence as to other remedial measures taken by the defendant after the accident. These measures included:

[61]

Revising the Orientation SOC to emphasise safety concerns and including a new segment in relation to disposal of oil in its Crew Orientation video, which also included the 'Safety is No Accident' video. 2) Creating (and updating over time) a new workplace safety SOC "WS-T6" that emphasised hazard management. The original version (introduced after the accident) in June 1999 was annexed to Ms Berney's affidavit, along with subsequent versions dated December 1999 and November 2000. It was a detailed document covering such topics as: employee and manager responsibilities; safety rules; hazard management (finding, checking and fixing hazards); following SOC's to control hazards; robbery guidelines; fire and evacuation procedures; the use of electrical equipment; the use of portable ladders; manual handling; handling of syringes and body fluids and store specific guidelines. It referred to some of the risks in McDonald's restaurants and specifically to the hazard of hot oil exposure, albeit in the following, limited terms: "Hot shortening - can cause burns so avoid contact and splashing." 3) Requiring all crew employees to be verified on that new workplace safety SOC annually. 4) Again reviewing SOC S6F and amending it slightly to include a step to ensure other staff know how to avoid coming into proximity to filtering/oil splashes, repeated warnings about contact with hot surfaces and the risk of splashes and a step to require cleaning of personal protective equipment, but not so as to change the procedure relating to hot oil disposal. 5) Continuing investigations into safer procedures for oil disposal in stores with stairs (having already devised a new section in the Workplace Safety Manual in relation to this, entitled "Oil Disposal - Stores with Stairs"). 6) Revising, updating and implementing new, detailed procedures in its Operations and Training Manual, for manual handling and for fried products and filtering. 7) Monitoring the implementation of the disposal cart system, which was completed in or around March 1999, at a cost of $155,000-$500,000. 8) Implementing a new, detailed "Manual Handling - Managing Risks" procedure manual in February 1999 "to assist stores in the ongoing management of manual handling risks". This included a risk assessment form directing attention to the weight of loads to be carried, specifically asking whether they were over 16kg (the mass specified in the National Standard). 9) Issuing another Safety Alert in relation to hot oil in April 2000 to reiterate the importance of correctly following procedure in relation to tasks involving oil. 10) Maintaining awareness of the risks of hot oil throughout its operational units by featuring them in its quarterly "Safety Theme" for April 2001. 11) Issuing a fax about manual handling and 20L drums in October 2001 to 13 affected stores. 12) Continuing to implement the Health and Safety Strategic Plans. These strategic plans included: a) The development of new "Crew Orientation", "Workplace Safety Critical Incident Investigation" and "Workplace Safety Policies and Procedures" manuals, and new supplier and contractor management systems. b) The expansion of the Workplace Safety Team to three members. c) The continued use of Safety Alerts to highlight important safety issues. d) The implementation in 2001 of an Australian version of the Operations and Training Manual. e) The defendant commissioning an independent quality assurance auditor to review its occupational health and safety management system using 'SafetyMap', prior to it seeking Workcover accreditation. f) The defendant seeking, and obtaining on its second audit, Workcover accreditation for Self Insurance. g) The defendant participating in follow-up audits to maintain its accreditation. 55 No specific evidence was led as to the nature of the risk going to the temperature of the oil, its potential to do harm, standard temperatures in the vat and so on. Nor was evidence adduced as to the severity of the injuries sustained by the employee. It was agreed by the parties that the matter should be treated simply as one in which the employee suffered burns as a consequence of the accident and these were at the lower end of the spectrum of possible burns.

[62]

Submissions of the Prosecutor 56 The prosecutor commenced his submissions by highlighting that, notwithstanding the thorough and comprehensive systems of the defendant, and the fact that the defendant was a world leader in systems management, the bucket used by the injured employee was not used at the instigation of the injured employee, but rather in consequence of an instruction given to that fifteen-year old employee by his trained supervisor. Moreover, it was submitted, it was hard to imagine a less suitable receptacle for hot oil than that bucket. It was too large and awkward, having a thin rim at the top and sharp edges at the bottom and no handles. It was a 25-litre bucket filled to approximately 80% capacity, of indeterminate weight, but certainly weighing over 18 kilograms. It was submitted that the risks inherent to its use were plainly foreseeable, and to some extent, were in fact foreseen, in the report produced for the defendant by the independent auditors in 1996. Moreover, the risks were serious. These contentions were advanced in reference to the sentencing authorities submitted to be relevant by the prosecutor: Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. 57 It was submitted that the power of general deterrence was no better illustrated than by the facts in this case - evidence having been adduced to show that a penalty imposed upon a competitor of the defendant had prompted the defendant to take immediate steps to change its policy and issue a Safety Alert to all stores regarding oil disposal. 58 As to specific deterrence, the prosecutor submitted that its power was demonstrated by the steps, which the evidence showed the defendant had taken, in an effort to obviate similar risks and a similar event in the future. 59 The prosecutor conceded that, having regard to size of the defendant's workforce, the defendant was a good corporate citizen. However, while Mr Skinner accepted that it was "difficult to control such a large workforce", this matter was essentially about unsafe plant; the bucket provided for the employee's use (which the employee was instructed to use). It was submitted that this constituted a failure to comply with a well recognised standard, in force since 1990, namely the National Standard for Manual Handling [NOHSC:1001(1990)], and ignored the limited lifting capacities of persons under the age of eighteen, such as the injured employee. This was all the more significant given the defendant was an employer of so many such young persons. 60 The prosecutor sought a moiety of any fine and costs.

[63]

Submissions of the defendant 61 The defendant conceded that, in light of its prior convictions, the maximum penalty for this offence was $825,000. It submitted that the principles relevant to the assessment of the penalty could be found in the following authorities: Lawrenson Diecasting at 474; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 427-433; Capral Aluminium; Workcover Authority of New South Wales (Inspector Lyons) v Warman International Pty Ltd (unreported, Walton J, Matter No. IRC 773 of 2000, 9 May 2001). 62 Mr Harmer, solicitor, who appeared for the defendant, tendered a detailed case outline helpfully setting out its submissions. These were supplemented by the defendant's oral submissions, in which some important further refinements to its position were made. As to primary factors relating to the nature and quality of the offence, the defendant made the following key submissions: 1. The defendant had an extensive safety system in place prior to 1996, based on the integrated operations procedures developed by its US parent and certain Australian initiatives. That safety system was enhanced following the 1996 fatality at the Wollongong franchise restaurant. One way it was enhanced was through the engagement of external consultants to conduct a safety audit. This (1996) audit identified: i. Use of buckets in changing oil in fryers as a 'medium' risk ii. Manual handling was also a 'medium' risk. 2. Prior to the accident on 6 August 1998, the defendant had: · Encouraged all stores to purchase a Shortening Removal Cart. · Issued in late 1997 a new SOC S6F relating to "discarding old oil" that specifically precluded the use of buckets to transfer oil to the bulk waste container and continued the requirement that personal protective equipment was worn. · Made the use of oil disposal carts mandatory in July 1998 and issued a Safety Alert that also precluded the use of open top containers in the transfer of hot oil (as was used in the 6 August 1998 incident) and further required that all crew and managers be properly trained in SOC S6F. · Failed to implement that Safety Alert at the Hurlstone Park restaurant prior to the incident on 6 August 1998 due to leave absences. 3. The risk posed by use of buckets, identified by the auditors, had been responded to on a store-by-store basis. This was because a team of senior managers considered the use of buckets in changing oil to be unusual. They therefore decided that the hazard management process that the defendant was developing as a pilot and was shortly to 'roll out' through all of its stores (and which was 'rolled out' in May 1997) would adequately address it. The manual handling risk identified by the auditors was addressed via a "hierarchy of controls", involving the "designing out" of the risk. 4. Increased priority had not been allocated to improvement of the oil disposal process due to the existence of documented procedures requiring personal protective equipment to be utilised; the conduct of the filtering and disposal operations by senior regular crew or managers properly trained in SOC S6F; and the disposal of oil generally using either the oil disposal cart or the portable oil filtering machine at restaurants. 5. It was the responsibility of Mr Aslanidis, the supervisor on 6 August 1998 to: · Ensure that employees only perform tasks in which they had been trained and verified as competent; and · Ensure that relevant procedures, such as SOC S6F were followed (which, as at the date of the incident, required the use of personal protective equipment and precluded the use of buckets in the transfer of oil). The supervisor was at fault in directing the conduct of the process in the way in which he did on 6 August 1998. 6. Mr Kyriakidis was trained and verified in a number of tasks and had received training in safe lifting techniques and was aware prior to the accident that the "normal procedure" involved "wearing all the safety equipment, and only the person in charge of a job did it".

[65]

64 The defendant conceded various aspects of the incident. That is, the defendant conceded that: the lack of adequate oil removal equipment; the oil splash dangers; the length the oil was to be transported; the weight of the container; the height the container was to be lifted; and, the slippery condition of the floor, were all relevant to the determination of the nature and quality of the offence. Mr Harmer accepted that, in the circumstances of this matter, the Court should impose a sentence reflecting both general and specific deterrence (the latter being reduced given the defendant's extensive and improved OH&S management). 65 The defendant further submitted, however, that despite the lack of appropriate oil transport equipment at the Hurlstone Park restaurant on 6 August 1998, compliance with existing procedures and requirements specified by the defendant would have significantly reduced the risk of serious injury. Whilst hot oil splash injuries and manual handling issues associated with the incident were foreseeable - they were addressed, in part, by the existing procedures. The use of personal protective equipment would have minimised or avoided the injury. Compliance with a "general McDonald's approach" to manual handling would have eliminated the age/weight non-compliance. In its oral submissions, it was highlighted by the defendant that the non-compliance with the manual handling standard arose in consequence of the unauthorised use of a bucket that was not designed for the purpose to which it was put. That breach would not have occurred had procedures been followed properly. However, the defendant conceded that, notwithstanding that historically the open-topped, 'prince castle', unit had been used not only in the filtering process but also for disposal (and was, therefore, likely to be used), at no point did its policies or procedures stipulate that the mobile filtering unit was to be used to discard oil. Rather than amounting to a concession that the defendant's system of work was wholly inadequate in this respect, however, in light of the evidence provided by Ms Berney about the contents of the training videos and the rest of the defendant's submissions, I consider it more appropriate to understand this concession to mean that the defendant admitted that it had not specifically required the use of the prince castle unit as an oil removal device, and explained this as based on the view, that it had long held, that the custom-built disposal cart was the preferable device for disposing oil. 66 It was submitted that the subjective factors relevant to assessment of penalty that the defendant was entitled to have taken into account were: 1. Steps taken subsequent to 6 August 1998 to remedy deficiencies, including specific remedial steps and the ongoing implementation of high standards of safety including auditing and accreditation. 2. Cooperation with WorkCover 3. Entering a plea of guilty at an early stage. The defendant submitted that its plea was an "early plea, in circumstances where conviction was likely, but only following careful negotiations to remove two alleged offences". It referred to Warman (pp. 23-25) as authority for the proposition. This cooperation saved the time and cost otherwise involved in a trial. 4. Prior record. It was submitted that the defendant's two prior convictions must be placed in the context of the nature and size of McDonald's operations. 5. Nature and size of Operations. The defendant's evidence was that it had been operating in New South Wales for 27 years and at the Hurlstone Park restaurant for 26 years. It directly employed 7680 persons at 112 outlets in NSW and the ACT, but along with its franchise restaurants engaged approximately 55000 persons at 707 outlets. Approximately 70 employees worked at the Hurlstone Park restaurant at the time of the accident. It had long hours of operation and was a casual workplace with high employee turnover. The defendant submitted that its prior record must be considered in this context. 6. McDonald's Character as a Corporate Citizen. It was submitted that the defendant's awards and community contributions evidenced its good citizenship, as did its general safety measures. 7. Assistance provided to the Injured Employee, in the provision of first-aid and the rehabilitation plan devised for the injured employee. 8. Contrition and remorse. It was submitted that Ms Berney's statement of remorse should be considered. Apart from Ms Berney, a number of the defendant's senior corporate officers were present in court and the defendant submitted that their presence evidenced the defendant's contrition and remorse. 67 The defendant noted that that the assessment of penalty necessitated the balancing of primary and subjective factors. It further submitted that this offence was less serious than the Wollongong offence. It submitted that consistency with the KFC precedents (Inspector Robert Stobo v Kentucky Fried Chicken Pty Ltd [1998] CIMC 144 (16 December 1998) and Workcover Authority of New South Wales v Kentucky Fried Chicken Pty Ltd [1998] NSW IRComm 251 must be maintained. It conceded that this offence was compounded by manual handling issues, but submitted that a discount should be applied for the co-operation given by the defendant and the plea.

[68]

71 The defendant did not dispute that it had twice been convicted of offences against the Act, nor that the maximum penalty that could be imposed by this Court under s51A was $825,000. It submitted that it was now well settled that in sentencing a defendant to which s51A applies, the Court will adopt a one, rather than a two step approach: Capral Aluminium. The issue it now agitated was the appropriate treatment of prior convictions under s51A. 72 The defendant submitted, that although the use of the word "previously" in s51A indicated a clear legislative intention for that section to apply to both prior convictions and 'antecedents' as previously known at common law, this different language did not affect the applicability of common law principles in relation to the treatment of "prior convictions" and "interim convictions". 73 It was submitted by the defendant that the approach to be adopted by the Court to interim convictions differed from that applicable to prior convictions. It submitted that, in this case, prior convictions were those prior to 6 August 1998 (the date of the offence). Other convictions, recorded against the defendant after that date but prior to the sentence in this case, were interim convictions. That is, the conviction recorded against the defendant in the Chief Industrial Magistrate's Court in 1993 was a prior conviction. The conviction recorded by me in 1999 concerning a 1996 offence (a prior offence) and the conviction recorded by Kavanagh, J in 2002 in relation to a May 1998 offence (another prior offence) were both interim convictions. 74 It was submitted that the prior conviction in the Chief Industrial Magistrate's Court removed any doubt as to the applicable maximum penalty and that as a prior conviction it should be considered in assessing the objective seriousness of the offence, (although not so at to impose a second penalty for the initial offence): Lawrenson Diecasting. A different approach applied to an 'interim' conviction. It was submitted that, whilst the interim conviction must be considered to the extent that it negated leniency otherwise to be granted to the defendant based on subjective factors, it should not be taken into account in assessing the objective seriousness of the offence. 75 The defendant argued that a different approach was warranted for prior and interim convictions. Whilst prior convictions were plainly relevant to the extent that they may demonstrate the necessity for a greater sanction, one of the reasons this was so was because the subsequent commission of an offence demonstrated that the prior conviction had failed to deter further criminal conduct. This could not be said for interim convictions: whilst they might be indicative of a pattern of criminal behaviour, even if they concerned prior offences (as in this case both interim convictions did) they did not of themselves signify willful disregard of the law, which may further aggravate the instant sentence (because of the role of penalty in specific deterrence). Whilst prior convictions contained some element of deterrence that could be said to have failed, this argument did not apply to interim convictions because for interim convictions the defendant had not yet had a chance to prove itself deterred from further breaches. Therefore, it was the defendant's submission that the approach that should be taken to interim convictions should differ from that taken to prior convictions - they should not be considered to aggravate sentence, or in the alternative, they should not aggravate sentence so much as prior convictions. 76 In support of this approach, the defendant referred to the application of it by Schmidt, J in Workcover v Capral Aluminium Ltd (1998) 82 IR 468, 473-475 & 479, adopting the comments of the Full Bench of the Court of Criminal Appeal in R v Boney (Unreported, Court of Criminal Appeal, Mahoney JA, Grove and Newmann JJ, 22 July 1991), applying R v Withers (1789( 3 TR 428 and R v Hutchins (1957) 75 WN (NSW) 75. Her Honour found (at 479): I accept that the proper approach to be adopted to a consideration of antecedents is that described by the Court of Criminal Appeal in Boney . I take the view however that the defendant's antecedents in this case are relevant in determining leniency to be afforded to the defendant… 77 The defendant noted that her Honour's approach was adopted by Hill, J in Workcover Authority of New South Wales v Capral Aluminium Ltd (1998) 93 IR 211, 222-223 and Cahill, J in Workcover Authority of New South Wales v Capral Aluminium Limited (Unreported, Industrial Relations Commission of New South Wales in Court Session, Cahill VP, 5 August 1998). 78 However, the defendant also noted the consideration of the approach by Boland J in Inspector Low v Capral Aluminium Ltd [2002] NSWIRComm 12 and his Honour's concern that the approach may be inconsistent with the operation of s51A of the Act. It was submitted that in light of the Full Bench decision in Capral Aluminium that, whilst s51A has the effect of increasing the maximum penalty available where another conviction of the defendant has been recorded prior to the date of conviction for the current offence, the section "merely makes the additional penalty available to the Court". The approach contended by the defendant, which it said the principles in the decisions of the Commission in Court Session pointed to, did not alter the maximum penalty but rather went to the appropriate exercise of the Court's discretion within the penalty range.

[69]

79 To adopt common law principles would not derogate from the legislative intention of implementing higher penalties in respect of offenders with previous convictions, but would rather: 1) In the case of prior convictions, potentially result in a higher level of "objective" offence being assessed within the increased range afforded by s51A (subject to judicial discretion). 2) In the case of interim convictions, potentially result in a lower degree of lenience being afforded to a defendant within the increased range afforded by s51A (subject to judicial discretion). 80 The defendant conceded that, whilst the application of relevant principles established by the Court of Criminal Appeal (in R v Boney) had been considered elsewhere and in various matters before the Commission in Court Session (matters separately before Schmidt J, Hill J, Cahill J), the approach to be adopted to interim, as opposed to, prior convictions, had not been finally determined by the Commission in Court Session. The defendant submitted, however, that even if the approach it proposed was not justified by decisions of the Court of Criminal Appeal, it was partially warranted by what was said in relation to the role of general and specific deterrence by the Full Bench in Capral Aluminium. 81 The prosecutor contended that this approach was incorrect. Mr Skinner drew a distinction between interim offences and interim convictions and noted that R v Boney was directed to interim offences and not interim convictions. In this instance it was an interim conviction that required consideration. As to interim convictions being relevant to consideration of leniency and not the appropriate punishment for the offence per se, it was submitted that Boland J was correct in his identification of inconsistency between the Boney principle and s51A of the Act. His Honour was also correct to identify a distinction between absolute offences and offences with a mens rea requirement. Further, following Veen v The Queen [No 2] (1988) 164 CLR 465 at, as quoted by his Honour in Capral at [41], an antecedent criminal history may enliven considerations of retribution, deterrence and protection of society, warranting the imposition of a more severe penalty for the offence being sentenced - even though it was not a fresh or second penalty for the antecedent offence. The Boney principle is over-ridden by the principles in Veen where applicable. 82 The prosecutor "did not wish to be heard against the proposition", conceded by the defendant, that prior convictions may be considered by the Court as an aggravating circumstance, increasing the penalty to be imposed. Nevertheless, it was submitted by the prosecutor that any question of aggravation in this respect was more correctly assessed, together with other considerations, in terms of the subjective factors relevant to sentencing. The defendant's submissions that prior convictions were relevant to consideration of the "objective seriousness" of the offence were mistaken. The prosecutor noted "ongoing jurisprudential controversy" regarding the two-stage approach to sentencing.

[70]

83 In reply, the defendant highlighted the risk of a further (that is, a third) penalty being imposed against the defendant in respect of its antecedent history. It referred to the Full Bench decision in Capral Aluminium at [51]: Nevertheless, the fact of an earlier conviction means that the maximum penalty for this offence is $750,000 rather than the usual $500,000 and it is necessary for the Court to ensure that there is no "double counting" of either culpability or penalty by failing to recognise a previous conviction of itself has an impact on sentencing. A prior conviction cannot be taken into account twice in relation to the assessment of penalty. 84 Particularly in light of the effect of s51A of the Act, it was submitted by the defendant that the antecedent history of an offender should only be considered in the circumstances described by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2): The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in the commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take into account the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows a need to impose a condign punishment to deter the offender and other offenders from committing further offences of a like kind. 85 It was submitted by the defendant given the broad spectrum of offences under the Act, the Commission should only conclude that an offender has demonstrated an attitude of continuing disobedience where there is clear similarity between the instant offence and previous offences. The defendant submitted that no such similarity existed between the instant offence and either of its two prior convictions. In any event, the prosecutor had not demonstrated such a similarity. Not only did the defendant not have an antecedent history suggesting a continuing attitude of disobedience to the law, it was contended, on the contrary its conduct was demonstrative of its commitment to the law. On this basis, it was submitted that the defendant's antecedent history should not be the source of further aggravation of the penalty to be imposed on the defendant (beyond that imposed statutorily by the operation of s51A). Alternatively, if aggravation was considered appropriate, it should only be minor. Further Supplementary Submissions 86 The parties addressed the decision of Kavanagh J in Inspector May v McDonald's Australia Limited [2002] NSWIRComm 179, 5 August 2002 in further supplementary submissions. That judgment related to an offence committed on 23 May 1998 (that is, prior to the instant offence), and concerned a failure by the defendant to provide safe plant and systems of work, and adequate information, training and instruction. That matter concerned an accident in which a twenty-two year old truck driver for the travelling Ronald McDonald show was injured while setting up the stage for the performance. He had unlocked a latch that was holding the stage vertical to the side of the truck and was struck by the stage on his neck and back, when it fell unrestrained from the side of the truck where it had been suspended. He sustained injuries resulting in fractures and dislocation of his vertebrae and permanent paraplegia. 87 The prosecutor submitted that the fact and circumstances of this prior offence should be taken into account in the assessment of the appropriate penalty in this case; that offence was an aggravation of the criminality of the defendant for the instant offence, or was at least a basis for extending less leniency to the defendant than otherwise might have been considered appropriate.

[84]

101 As conceded by the defendant, the Safety Alert of 20 July 1998 had not been implemented at the Hurlstone Park store prior to the accident. Moreover, the process at Hurlstone Park would seem to have differed from the defendant's 'formal' system for oil disposal. The process at Hurlstone Park involved oil being decanted into a bucket by an employee wearing personal protective equipment and the bucket then being carried a considerable distance to the waste oil bin. This was contrary to the defendant's "formal system" which, put at its highest, required the use of the price-castle filtering unit. 102 At the time of the incident that ultimately gave rise to these proceedings, an employee not trained in the process was called upon to assist a trained employee in the performance of the task. I note the disparity between the injured employee's account of having received no training in safe work practices and the defendant's evidence that he was trained in safe procedures for the performance of some tasks. It was not disputed, however, that the employee was not trained to perform the task in question. As for the training provided to the supervisor, it is unclear just what training that employee had received. As he had been employed by the defendant for some time, it is also unclear which version of SOC S6F he was trained and verified in. 103 I accept the evidence of the injured employee that he had been performing the task in this way 'since he started'. Although the frequency with which he was required to perform the task is unclear, I do not consider this to be in issue since no evidence was led to rebut the injured employee's evidence. It was not contradicted directly or indirectly by the supervisor's evidence, which, going as it did only to his work with the injured employee, did not indicate that the injured employee's evidence was anything other than truthful. Further, the defendant did not seek to challenge the employee's account in the evidence that it led in the proceedings. I am satisfied that the injured employee did not receive any instruction on how to undertake the manual handling task associated with the disposal of the waste oil, and that the employee was directed to undertake this task by his immediate supervisor on more than one occasion. 104 Although both the injured employee and supervisor were aware that they should both have been wearing personal protective equipment, at the time of the accident only the supervisor was wearing such equipment. I accept the evidence of the supervisor that another set could have been obtained from the Manager, but was not obtained. 105 Following the accident, a change to the system of work was implemented in accordance with the Safety Alert, which had been dispatched to the store prior to the accident. Although delays in its arrival were expected, a disposal cart was immediately ordered. In the meantime, the open-topped prince-castle filtering unit was used (instead of buckets) to wheel the hot oil to the disposal bin (some 30-40m away), where the oil was pumped into the bin. Shortly thereafter, however, the system was again changed. The portable filtering unit was used to pump oil into smaller 20L containers with 'appropriate' handles, which were then removed by a waste contractor. This removed the requirement to transport oil in an open container over any significant distance and reduced the manual handling risk because the 20L containers were not to be completely filled. 106 Whilst the defendant did take some steps to address the risk of use of buckets in 1996 and 1997 (contacting individual stores it knew to be using buckets for oil disposal and reissuing SOC S6F), it did not issue a Safety Alert to all stores or ascertain those stores that did not possess the custom-built disposal cart. This removed the opportunity to identify aggravating hazards at individual restaurants, such as the 30m distance between the oil vats and bulk disposal bin at the Hurlstone Park store.

[94]

69 Whilst it may arguably be thought there exists some tension in the position stated in the authorities cited, as indeed the submissions here of Mr Agius may have suggested, it is strictly unnecessary for present purposes to definitely resolve the issue. If one has regard to the table of previous convictions set out at paragraph [15] of this judgment, it can be seen that the defendant had a not inconsiderable number of convictions for offences under s15 of the Act prior to the occurrence of the present offence. At least one of those would appear to have been a substantial offence warranting a fine of $40,000 which reflected a significant percentage of the maximum penalty for such an offence at the relevant time. In any case, the relevance in the sentencing process of convictions for offences committed after the subject offence must be seen as long settled: see Boney as citing The King v Withers (1789) 3 TR 428 and Reg v Hutchens (1957) 75 WN (NSW) 75. I consider no reason exists to depart from the approach so laid down for offences under the Act. In the result, all of the convictions against the defendant, as set out above (at [15]) may permissibly be taken into account in sentencing the defendant for the present offence by tempering the leniency or mitigation which the defendant might otherwise attract in subjective terms, but not so as to increase the appropriate penalty based on the objective seriousness of the instant offence. … 71 I agree with the observations of Wright J, President in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales (at [47]), and the submission of the defendant in this matter, that the defendant's criminal record must be examined in the context of the whole of the circumstances in which it finds itself. This should include the fact that the defendant previously employed a significantly larger workforce on a considerably broader range of operations than is now the case: WorkCover Authority of New South Wales (Inspector Gordon) v State Rail Authority (unreported, Marks J, 27 March 1997, at 6 - 7). 72 This is not to suggest that the size of the organisation is in some way to be considered justification for a failure by a defendant to meet its obligations or for having a lengthy record of convictions under the Act. Such a notion is untenable given that the abject purpose of the Act is to provide a safe work environment for the workforce of this State: see WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 and the cases cited therein. However, the Court will take into account the size and extent of the operations of the defendant when considering a prior record: WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales and WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd (2001) 105 IR 236. The existence of a lengthy criminal history is an aggravating feature when considering the penalty to be imposed for a particular defendant. It is not that the nature and size of the organisation can permit the Court to disregard those prior convictions as aggravating features of an offence. In my view, the nature and size of the organisation ought reflect on the degree to which the defendant's criminal history can be considered an aggravating feature of an offence. The practical reality is that the larger and more diverse the workforce, the greater the opportunity for accidents.

Inspector Barbosa v McDonalds Australia Limited

At a glance

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Judgment (106 paragraphs)

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Cases Cited (27)

Cited By (3)