It was alleged that as a result of these failures, employees of the defendant and in particular, Ms Nguyen and Ms Gunawan, were placed at risk of injury. On the filing of that Amended Application for Order in Court, the defendant entered a plea of guilty to the charge as amended.
3 This judgment deals with the evidence and submissions on sentence. In these proceedings it was common ground that the defendant had no prior convictions and that the maximum penalty that could be imposed was $550,000.
4 The evidence for the prosecutor was constituted by the following documents:
(a) an Agreed Statement of Facts (which appears as an annexure to this judgment);
(b) three WorkCover factual inspection reports;
(c) a number of photographs depicting the premises, the area surrounding the potato peeling machine and also showing the area being cleaned at the time of the accident;
(d) the defendant's safe operating procedure concerning the potato preparation line dated 16 October 2004;
(e) a hazard identification and risk assessment sheet for an Agware abrasive peeler produced by the manufacturer;
(f) the manufacturer's abrasive peeler handbook;
(g) the defendant's interim risk assessment on abrasive rollers on the Agware potato peeler dated 22 April 2006;
(h) the defendant's safe work procedure for the cleaning of abrasive rollers on the Agware potato peeler dated 24 April 2006;
(i) the defendant's interim training procedure for the safe cleaning of abrasive rollers on the Agware potato peeler dated 28 April 2006;
(j) the defendant's final risk assessment on abrasive rollers on the Agware potato peeler dated 5 May 2006; and
(k) a prior convictions certificate indicating that the defendant had no prior convictions,
5 For the defendant, the affidavit of Mr Rohan Benn together with a large number of annexed documents was formally read. Mr Benn was a director of the defendant and was aware of the incident at the premises at Marrickville that had previously been occupied by the defendant. He stated that, in these proceedings, he was authorised to speak on behalf of the defendant. Mr Benn had been a director of the defendant since June 1997 when the business was acquired and had been actively involved in the day-to-day operations of the business. He spoke of being intimately involved in the business, including attending the markets, loading and driving of trucks and, from time to time, assisting on the various process lines. With his brother Randal Benn (also a director and operations manager of the defendant), they prided themselves on working with the employees of the business and the fact that anyone could speak to them and raise issues with them about the business.
6 Mr Benn gave a history of the defendant noting that, prior to the Benn brothers' purchase in 1997, the business had traded for approximately 30 years. The company supplied whole and processed vegetables and fruit to the hospitality and catering industry and their clients included catering companies, hotels, production kitchens, food manufacturers, hospitals, restaurants, convention centres and airline catering. The preparation and processing of vegetables and fruit was broken into separate areas. Under this system there was a potato line, a carrot line, a pumpkin line, a fruit salad line and a general processing line. At the time of the accident the defendant employed approximately 40 people and that was when the company was located at Marrickville. In April 2007, the defendant moved to premises in Regents Park and as a result of an agreement with another company, a purpose-built facility was constructed for the defendant's operations. Mr Benn noted that Ms Nguyen remained an employee of the defendant.
7 The defendant had altered its method of engaging employees and now required them to be interviewed and engaged by the occupational health and safety co-ordinator and staff relations co-ordinator. Previously, the positions were advertised internally and current employees would refer suitable candidates for consideration and only after that process would external advertising be considered. An employee engaged by the defendant received a letter confirming a number of matters concerning the position but also setting out the company's policies including occupational health and safety obligations and identifying the employee's supervisor. Employees were required to acknowledge the contents of the letter containing these details. This process for new employees had commenced at the end of 2005 and had been applied to existing employees by way of confirmation of their position. Employees were provided with a position description with the manager and the employee being required to sign that document to confirm that they had both reviewed the requirements and satisfied themselves that it accurately reflected the requirements of the position. Once an employee had been engaged by the defendant they were required to complete an induction programme prior to commencing work in the process line on which they would be working.
8 New employees were required to undertake a two-hour induction programme prior to being inducted to their work area. During this time they were shown DVDs dealing with commencing work, slips and falls at work and manual handling. Employees were issued with the defendant's induction and safety manual and that document provided information to help employees understand and meet their safety obligations. Contact information and details for a first aid representative and safety representative and fire wardens were included. There was also information on the components of the company's occupational health and management system and the safety co-ordinator took employees through the safety manual and explained its contents. Employees were informed of the location of first aid rooms and the first aid representatives were identified as were others who could assist with first aid. There was an explanation of the incident reporting requirements of the operation. Employees were then taken on a site orientation tour through the warehouse and the office indicating access points, safety walk-ways, fire exits and fire excavation assembly points. Personal protective equipment relevant to an employee's role was then supplied to the employee and the correct use of that equipment explained. At the conclusion of this induction process an employee was required to sign a document acknowledging they had received the induction information. This process was in place prior to April 2006 and continued. Ms Nguyen had received the workplace induction information document when she returned to work.
9 Mr Benn explained the procedure at the conclusion of the orientation and induction process and how new employees were introduced to their working area, had their duties explained to them including their safety responsibilities. A "training buddy" was allocated to the new employee to support them during their on-the-job training. This person was an experienced employee who was to assist the new employee in learning the task required and answering questions. The defendant also engaged an external consultant who regularly attended the defendant's premises and conducted task specific training for all employees. Mr Benn noted that, at the time of the incident, all employees had been taken through this process with the exception of Ms Nguyen.
10 In relation to Ms Nguyen, the nightshift line manager for the potato line, Mr Zahr, provided orientation and line orientation. Ms Nguyen was informed about pedestrian safety zones, the requirement to walk between yellow markings to avoid moving plant, including forklifts. Other facilities, including fire exits, were identified by Mr Zahr. He then provided the necessary personal protection equipment consisting of hairnet, gloves, ear muffs, boots, plastic sleeves and a red waterproof apron. The colour of the apron identified Ms Nguyen as a member of the potato line team. Ms Gunawan, second in charge to Mr Zahr and a highly experienced worker, was paired with Ms Nguyen as a training buddy. Since the accident there had been changes to this process of induction. In August 2005, it was said that the induction programme became more structured and all line managers were advised of the induction requirements and received instruction in the induction programme. Initial training was the subject of a refresher on two days in October 2005.
11 The 1998 and the current occupational health and safety policy were before the Court and Mr Benn described how the occupational health and safety management system had developed since 1997 where there were no occupational health and safety systems and how the defendant had used an external consultant over a period of time, at significant cost, to develop the policy. There was extensive consultation between the consultant and line managers. Mr Benn explained the components of the occupational health and safety management system including such matters as hazard identification, safe operating procedures, training, safety inspections, supervision and audits. The training process included toolbox talks, information and instruction provided by line managers and other management members such as the occupational health and safety co-ordinator. Supervision was primarily provided by line managers. Mr Benn noted that, at the time of the accident, the defendant had 18 separate policies in operation, including policies dealing with personal protection equipment, manual handling, occupational health and safety and English language support. At the Marrickville premises in 2002, an encased occupational health and safety policy was displayed in such a position that employees had to pass it to bundy on and off and to attend the lunchroom. This approach was adopted to promote safety in the workplace. The cabinet was also used to display a number of documents besides policies, including photographs of safety representatives and first aiders, notices and minutes of safety representative meetings, and matters considered relevant to safety. This approach had been continued at the new premises at Regents Park.
12 Mr Benn also explained how hazard identification had been carried out since mid-2004 at the Marrickville premises and how that system of hazard identification had been developed. He referred to the development of safe operating processes which involved an inspection of premises, a review of existing work procedures, discussions with employees and line managers and observations of the process. Line managers were made responsible for employee compliance with safe operating processes. In relation to training, there was a documented system in place prior to the incident and a more comprehensive training register had been developed outlining the training undertaken by individual employees. The training needs of employees were discussed with the employees' line manager and with directly the employee. The employees were encouraged to discuss their training needs and interests.
13 Line managers and the occupational health and safety co-ordinator usually determined topics for toolbox meetings and an indication was given of the nature of topics dealt with at such meetings. Attendance at such discussions was compulsory and attendance was documented. Employees were encouraged to provide feedback and to suggest topics for future talks. There was on-the-job training which was deemed to be particularly suitable to the undertaking of the defendant, especially using the buddy system. It was noted that Ms Nguyen was injured during the shift while undergoing on-the-job training. First aid training was also provided and was conducted by Royal Life Saving. At the time of the incident and in the defendant's present operation there was at least one first aid officer on site during each shift. Although not required by law because of the number of employees, nevertheless, the defendant had provided and maintained a first aid room at Marrickville and that had continued at Regent's Park.
14 Employees who met the eligibility requirements were required by the defendant to undertake a TAFE Certificate 3 food-processing course that, in part, provided instruction in relation to occupational health and safety food processing principles. The core modules were explained by Mr Benn and he further noted that Ms Nguyen was presently in the process of completing the TAFE course. By arrangement with TAFE the course was conducted on the defendant's premises by TAFE teachers with students attending classes for up to half a day per week during working hours. The course took two years to complete.
15 The safety representative system was explained to the Court with each department forming a work group and the work group electing a safety representative. Safety representatives were identified to the workforce. Once elected, the representatives were provided with a copy of their duties and responsibilities. Representatives participated in a four-day occupational health and safety consultation-training course conducted off-site by a WorkCover approved training company. The safety representatives also undertook the role of fire warden. Interpreters, if required, were available for consultation meetings attended by the representatives. Safety representatives were free to directly approach senior management as often as required in order to raise and discuss safety issues.
16 The variety of workplace inspections undertaken by the defendant were explained and they included a weekly compliance inspection carried out by the occupational health and safety co-ordinator, regular inspections by safety representatives, daily maintenance inspections carried out by the maintenance department that also considered the guarding of machinery, line managers' daily inspection, a daily cool room safety inspection and a daily documented inspection of safety conducted by line managers. Inspections were also conducted by other companies, including inspection of the fire safety systems, electrical inspections, air compressors and forklifts.
17 Mr Benn stated that the safety co-ordinator and the operations manager met at the premises daily regarding safety and staffing issues. Instruction in safe work processors was provided to employees through line managers. This was done on a daily, informal basis and formally if required. Meetings were also held when necessary with specific groups of employees and safety representatives when safety issues needed to be explained or discussed. There were inter-office memoranda issued when necessary to remind employees of the need to abide by policies and procedures and a quarterly safety newsletter was distributed with employee payslips. In view of the fact that a number of the defendant's workforce came from non-English speaking backgrounds and, while able to communicate in English, had difficulty reading and writing English, the defendant found it more efficient and effective to verbally and through demonstrations to provide and enforce training and instruction rather than providing written training instructions. The defendant had an arrangement with an interpreter service that was frequently used to overcome any language barrier issues.
18 The defendant carried out two types of internal audits, a food safety system audit and an occupational health and safety audit. The internal audits were programmed to be conducted every six months but it was noted in the five months preceding the incident involving Ms Nguyen, there were four audits conducted.
19 In November 2004 and May 2005, external audits were conducted of the defendant to determine if it met the criteria for receiving a discount on its workers compensation premium. On each occasion it was concluded that the defendant did meet that criteria. Among the matters considered in the external audit was the existence of an occupational health and safety risk management programme incorporating hazard identification, risk assessment and risk control measures and consultation with employees.
20 As earlier indicated, direct supervision of employees was provided by line managers while senior management daily engaged with employees on an informal basis. Mr Benn noted that Ms Nguyen had not received a timely induction and that this had arisen through circumstances which had not previously been experienced. At that time his brother was on leave when there was also an Easter long weekend break. The role of operations manager had therefore been covered by others, including Mr Benn, the safety co-ordinator and line managers. Mr Zahr had been unexpectedly called to Lebanon because of the passing of a family member and was absent on the shift when Ms Nguyen was injured. Mr Zahr would have normally performed the induction process according to the defendant's procedures and those in turn would have led to the safety co-ordinator taking Ms Nguyen as a new employee through the formal induction process. Mr Zahra had not told the safety co-ordinator that Ms Nguyen had been employed and by this combination of factors, the management team failed to identify the fact that she was only partially inducted.
21 Apart from the photographs before the Court, Mr Benn described the composition of the potato line and the operation of the stainless steel Agware abrasive potato peeler. The manufacturer of this equipment had produced a maintenance document explaining the specifications and dangers associated with the operation and maintenance of the peeler. The defendant's maintenance manager had used this document in conjunction with the manufacturer's manual to conduct repairs and to maintain the machinery. The Agware operating manual also provided a hazard identification and risk assessment. These identifications and assessments were carried out on five occasions between September 1998 and October 1998. Mr Benn noted that the only cleaning information provided by the manual was for the machine to be washed down at the end of each day, giving particular attention to bars and the inside of the guards on the side of the machine.
22 The defendant, however, developed two cleaning processes for the peeler namely, a general daily clean and a weekly "deep clean". Soon after receiving the equipment it was recognised that the daily cleanse was inadequate and therefore the defendant developed its own "deep clean" process in recognition of the abrasive rollers requiring attention to meet food safety requirements. When the daily cleaning was performed at the end of each shift, employees cleaned up any material on the floor and at the end of each night shift either Mr Zahr or Ms Gunawan hosed the potato peeler with water and the peeler was switched off during the hosing operation. The deep clean was a thorough clean that occurred every Friday night and involved cleaning the hoppers, the dip tank and the potato peeler. Generally, Mr Zahr was the only person to perform this task. However, if he was absent Ms Gunawan had been trained to perform the deep clean task. When Mr Zahr was cleaning the potato peeler, no one, including Ms Gunawan, was to be in the vicinity of the potato peeler. The deep clean involved placing a cleaning liquid on the abrasive rollers before the night shift break. Mr Zahr turned the peeler off and removed the guards over the abrasive rollers, applied a cleaning liquid and then turned on the peeler. The peeler was operated at a very slow speed allowing the rollers to rotate slowly and allowing the cleaning liquid to clean all parts of those rollers. The abrasive rollers were located at the top of a short flight of stairs but while the cleaning process was undertaken, no one was permitted to obtain access to the platform. To ensure that this did not occur, Mr Zahr took all the potato line employees on a meal break. At the end of the cleaning process, Mr Zahr used a high-pressure hose to clean the abrasive rollers and this task was performed from the platform.
23 The other potato line employees cleaned the dip tank, the hopper and the floor and they were all instructed to stay away from the abrasive rollers during the deep clean. Mr Benn noted that Mr Zahr had 33 years' experience in the operation of an abrasive potato peeler and was considered one of the most experienced peelers in Sydney. Mr Zahr had used his experience in developing the deep clean process and recognised the risk of removing the guards and was therefore strict in ensuring the peeler area was vacant while undertaking the deep clean. The defendant was aware that Mr Zahr provided training and communication to Mr Gunawan in relation to cleaning the peeler and Ms Gunawan had been chosen to conduct the deep clean in Mr Zahr's absence because of his on-the-job training and her own experience on the potato line. Mr Benn made it clear that, on the night of the accident, Ms Nguyen did not have a role in the deep clean process and otherwise did not have a role in that process but was only required to assist in cleaning the floor.
24 The safe operating procedure for the operation of the potato line was developed in October 2004. There was consultation in that process and Mr Zahr was involved because of his experience. The investigation since carried out by the defendant indicated that the external consultant was not aware of the deep clean process. This safe operating procedure had since been revised and the task had been broken into specific steps. The line manager now takes each employee through each step of the procedure.
25 In relation to the accident that occurred in April 2006, it was thought that Ms Nguyen was cleaning potatoes with Ms Gunawan prior to the night shift break. Ms Gunawan then undertook the deep clean process and Ms Nguyen was cleaning the floor. There were no witnesses to the incident as it occurred but immediately after the accident first aid was provided and an ambulance was called. Mr Benn noted that the defendant had concerns for Ms Nguyen regarding the treatment being provided because she appeared to be suffering from infection while receiving treatment and that was affecting her prognosis and recovery. The safety co-ordinator attended Ms Nguyen's medical appointments with her and so requested a higher level of attention for her care and treatment and these concerns were raised with the insurer. The co-ordinator continued to maintain contact with Ms Nguyen and her family and it was stated that Ms Nguyen was always treated as a "top priority". Ms Nguyen has since returned to work and the defendant provided her with a rehabilitation officer. This officer assisted Ms Nguyen each week, assessing and identifying her treatment, establishing her capabilities, assessing her home and supplying any aids required. As Ms Nguyen progressed in her skill level and experience, the defendant was able to progress the type of work to be performed by her. Ms Nguyen was described as a "valued employee" and was considered a competent process operator who should have no concern in relation to her future employment.
26 On the day of the accident, the defendant undertook a risk assessment and issued an interim risk assessment for the abrasive rollers on the potato peeler. There was consultation in relation to this interim risk assessment and employees were trained as to its requirements and were required to sign off in recognition of their understanding of the new requirements. The interim control measures required the machine to be turned off at the control box, the control cabinet to be locked before removing the shrouds guarding the rollers and also required the key to the control box to remain with the person designated to clean the rollers until the cleaning was completed and the shrouds were replaced. An interim safe work procedure for cleaning the rollers was also prepared and employees were instructed in its provisions. By May 2006, there was a final risk assessment and that had been carried out with the assistance of the WorkCover Inspector. The control measures specified in this assessment required nets to be permanently attached as a safety guard specifying the mesh size and the mesh was installed over the side panels underneath the shrouds, eliminating bodily access to the abrasive rollers by fingers or hands. A training procedure was developed that required the mesh to be removed during the cleaning process and when this occurred, the peeler had to be completely turned off and the switchboard locked prior to cleaning with a person supervising the cleaning process holding the key.
27 Since then the defendant had developed a procedure for the deep clean process which did not require the mesh guards to be removed. The new procedure specifically stated that the mesh guarding was never to be removed and that all other personnel, apart from the person authorised to clean the peeler, were to be removed from the immediate area, including the platform. Changes were also made to training with all potato line employees being re-trained in the practices of the operation of the line and the peeler. The re-training was explained to the supervisors and managers and re-trained employees had to give written acknowledgement of their re-training and understanding of their re-training. In July 2006, the defendant also provided refresher training for supervisors and managers. Following the accident, the changes made to the potato peeler involved mesh being installed to cover the abrasive roller in circumstances where there had not been any prior risk assessment of this particular task. Guarding was also installed on the shaft to ensure people working in the area would not be in contact with the rotating shaft and additional emergency stops were added to the peeler to minimise risk to injury while working on the sorting line. Improvements in safety procedures had continued with the design and construction of the new premises at Regents Park.
28 Mr Benn spoke of the defendant's commitment to the community in which it conducted its business and gave evidence of providing support to that community in the form of cash and food donations. He listed some 19 bodies that had been in receipt of such support and there were also copies of certificates of appreciation that had been conferred upon the defendant. In relation to prior convictions, it was noted that the defendant had no prior convictions and that the business bought by the defendant had traded for 30 years without a conviction. The defendant had co-operated with the WorkCover Authority throughout its investigation. Mr Benn stated that the management of the defendant had a "deep and painful regret" for any wrongdoing concerning the incident and the fact that Ms Nguyen had been injured and that the defendant had been in breach of the Occupational Health and Safety Act. He re-asserted that the defendant was committed to occupational health and safety and the welfare of all its employees and others at its workplace. The defendant strove to provide an accident-free workplace and was committed to the process of continual improvement as demonstrated by the actions already taken. Mr Benn was not required for cross-examination.
29 Having concluded that the plea of guilty had been properly entered and that a conviction for the offence as particularised was to be entered, the Court formally received a Victim's Impact Statement provided by Ms Nguyen. In that statement Ms Nguyen confirmed that, following the accident, she had lost three fingers from her right hand and that she had scars on her left hand. One finger had to be amputated after a week because of infection. Ms Nguyen stated that she was right handed and therefore all activities in her life were more difficult, including getting dressed, cooking and housekeeping. She had trouble opening doors with a key. After the accident Ms Nguyen had trouble looking after her daughter who was one year old at the time. She had to rely on her ex-partner much more and so her daughter now lived more with her ex-partner than with Ms Nguyen. Her 13 year old son was now helping a lot more around the house and that had been very hard for her as a mother. Following the accident she was off work for eight months and was required to attend regular hospital appointments for the changing of the dressings and for physiotherapy. At the time of the accident, Ms Nguyen suffered a great deal of pain and found it very hard to sleep and was taking "a lot of medication". She now took painkillers from time-to-time but still suffered nerve and phantom pains where her fingers once were. She stated that, although she had a job with the defendant, it was always on her mind and she worried that they might terminate her. She stated that working was good for her as it allowed her to escape from the house - she preferred to work rather than stay at home. Ms Nguyen said that, for the most part, the defendant had been good to her and that the managers tried to look after her and she tried to do her best while she was at work. She said that sometimes she got upset with people on the street, people she did not know who stared at her hand without knowing what had happened.
30 The Victim's Impact Statement allows the Court to be informed of the effect of a workplace accident on a victim. It brings home to the Court, the defendant and the public who read these reports, firstly, the regrettably widespread incidence of such accidents and also the ongoing disabilities suffered by the victims. The Court expresses its deep regret for the accident that caused Ms Nguyen such pain, disfigurement and the loss of three fingers. She can be assured that, as a result of undertakings by the defendant given in these proceedings, her employment is secure and that she is regarded as a good employee.