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[2012] NSWIRComm 48
Industrial Relations Commission (NSW)
2012-06-07
Backman J
Original judgment source is linked above.
Judgment 1Albany International Pty Limited [ACN 008 446 713] (the defendant) pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000 (the Act). The offence occurred on 21 January 2010 when Murray Antony, an employee of the defendant, was killed after being struck on the head by a section of steel frame that fell from an industrial textile machine known as the Rostoni Creel (the Creel). At the time the Creel was undergoing disassembly at the defendant's factory at Lisarow. 2The Creel is fully described in an agreed statement of facts tendered during the sentence proceedings. In summary, its function was to transfer yarn onto a device called a "donut" for weaving. It was a large and heavy machine approximately 3.6 metres wide by 2.6 metres high by 20 metres long with a frame section that weighed 124 kilogrammes. At the time of the fatal incident, the Creel was being dismantled for the purpose of shipping it to another plant owned by the defendant in the United States. This was being done because the defendant's operations were being shut down at Lisarow.
Objective Factors 3The risk to the safety of the defendant's employees is particularised in the charge as the risk of, "fatal head injuries as a result of being struck by a falling unsupported section of metal frame from the ... Creel ...", during its disassembly. The charge sets out the failures on the part of the defendant alleged to have given rise to the risk. The Agreed Statement of Facts ("agreed facts") focuses on a number of those failures. It is apparent from that document that the defendant had procedures in place for the specific risk of disassembling the machine, but those procedures were significantly deficient, both in their content and in their implementation. 4The defendant at the time of the offence had a maintenance department which operated at the factory. Paul Harvey (Mr Harvey), the maintenance manager, in an affidavit prepared for the sentence proceedings, explained that the maintenance department was given the task of disassembling the Creel. He spoke to the leading hand fitter, Michael Harvey, about how the task should be accomplished. During their discussion, Mr Harvey suggested that a forklift with the sling and jib attachment should be utilised when taking down the steel frame so that the beams would be supported while they were being removed one section at a time. 5There were two components of the disassembling process: electrical and mechanical. The electrical component was organised by Mr Harvey with electricians, Joe Agius and Warren Benstead, at a toolbox meeting held on 13 January 2010. Mr Harvey asked Mr Agius to complete a "Decommissioning/disassembly of Plant and Machinery Hazard Identification/Control assessment form" (the risk assessment form). Mr Agius completed the electrical section of the form after which he undertook the electrical work which included isolating all electrical power feeds to the machine, with Mr Harvey monitoring his progress. 6According to the agreed facts, the mechanical component of the work started on 18 January 2010. Mr Harvey went through the mechanical section of the risk assessment form (which had not, at that stage, been completed) with Simon Teeling, Craig Gribbin and Warwick Bishop (all of whom had been allocated to the task of the mechanical disassembling of the machine). At no stage was there consultation with a rigger or a structural engineer and no "step by step" plan of how the machine was to be disassembled was documented. The only documentation which touched on the task was the risk assessment form. According to Mr Harvey, he gave verbal instructions on how the task should be performed. 7The risk assessment form identified as a significant risk the risk of "object fall". The control methods listed in the document for addressing the risk were, "control load when removing frame section"; "do not stand under load, machine"; and, "plan moves". There were no details in the document on how to control or support the load. Mr Harvey inspected the control methods on the form. He discussed the methods with those assigned to undertake the disassembly. According to him, he instructed the workers to adopt the following procedure during the disassembling process as follows: When you get to dismantling the frame sections and the rest of the bracing, you should start from the eastern end and work your way forward, section by section. When you are dismantling these parts, you will need to put in place a control such as using a forklift and jib attachment and a sling to support the overhead beams. You should attach a sling to the cross beam at the top prior to releasing that particular frame section. The frame section should then be slowly lowered to the ground. Once this is done, progress to the next section and repeat the process. Make sure you don't stand under the beams while they are being dismantled and lowered and always plan your moves. 8The control measure identified by Mr Harvey for dismantling the frame sections (use a forklift, jib attachment and a sling) was not documented. Mr Harvey did not believe that it was necessary at the time to consult a rigger or a structural engineer with regard to the procedures for undertaking the work. In his affidavit he explained his reasons: Compared to other machines which had been decommissioned by the Maintenance department in recent times, the Creel Disassembly Job was quite a small job. Also, qualified tradesmen were allocated to perform the task. Both Mr Teeling and Mr Gribbin had been involved in assembly and disassembly tasks many times during their employment at Albany and even more so in recent times due to the planned shutdown of the site. 9At the time of the offence, Mr Antony was a 60-year old production worker at the factory and was not attached to the maintenance department. His involvement in the mechanical disassembling of the Creel only came about after Mr Harvey requested some additional assistance on 19 January for the work. Mr Antony was asked to drive a forklift to assist in the disassembly. Messrs Teeling and Bishop said they were unaware of whether Mr Antony had been shown the risk assessment form or whether he had been instructed as to how the work was to be undertaken, or the risks associated with the plant falling over. Mr Gribbin said he had the impression that Mr Harvey was, "looking after that". Mr Harvey said he asked Mr Antony to obtain instructions from the fitters with regard to the work. He said he did not instruct Mr Antony about the risks associated with the plant, including the risk of its component parts falling down, and he did not know if Mr Antony was shown the risk assessment form. 10On the day of the fatal accident, the only parts of the Creel still standing were the modular frame sections. A white rope had been tied between three of the frames on one side of the machine. An inspection by Mr Gribbin revealed a broken footing on the sixth frame. He proceeded to remove both the longitudinal "C" channels on the left-hand side between the first two frames, as well as the "C" channel from the next two frames, at the same time checking the stability of both. This left two frames standing and unsupported by horizontal bracing. He was in the process of removing the "C" channel in the third bay when Mr Antony arrived. 11What happened next is described in the agreed facts as follows: Craig Gribbin proceeded to his trolley to get a bag to put the bolts from these two frame sections in. Simon Teeling and Joe Agius were in proximity at the opposite end of the machine, having a conversation. Gribbin returned to the third frame section and turned around to observe them at which point he heard a loud noise. He looked around to see Mr Antony prone on the ground with one of the frame sections lying on top of him. Teeling and Gribbin ran over and pulled it off him, called an ambulance and assisted with administering first aid. Other first aid officers also attended to Mr Antony. Antony was not wearing a hard hat. Neither Simon Teeling, Joe Agius nor Craig Gribbin were wearing hard hats. Nobody saw the frame section fall over. 12What these facts demonstrate is that the defendant had at least turned its mind to the implementation of a safe system of work for the Creel's disassembly, a factor that operates in mitigation, to some extent, of the objective seriousness of the offence. Nevertheless, the same facts demonstrate serious deficiencies in this system, a matter which the defendant frankly concedes both in written and oral submissions. 13The suggested control measure for safely carrying out the work was the use of the forklift, jib attachment and sling, but this measure was communicated verbally to some of the workers involved in the disassembly. A verbal instruction in the Court's view was an inadequate means of ensuring that the workers followed the nominated control measure: see on this issue, Inspector Cobbin v Thomas & Coffey Limited (ACN 000 263 678) [2012] NSWIRComm 46 at [12]. This is so when regard is had to the fact that Mr Harvey had identified the risk of "object fall" in the risk assessment form which was a serious risk when account is taken of the weight of the steel frame section that fell, which was 124 kilogrammes. Nor do the control measures which were identified in the risk assessment form appear to have been implemented or, if so, monitored at the time of the accident. For example, Mr Antony was standing under the load when it fell over and struck him. Mr Antony, it would seem, was not given the benefit of any proper instructions. Certainly, Mr Harvey did not instruct Mr Antony in relation to what assistance he was expected to provide and nor did the other employees recruited to undertake the disassembly, namely, Messrs Teeling, Bishop and Gribbin. Mr Antony was not shown the risk assessment form. 14These matters attest to the objective seriousness of the offence. They also serve to demonstrate that the risk was reasonably foreseeable. This becomes apparent when regard is had to the deficiencies in the defendant's procedures. Although the risk was identified, the control measures set out in the risk assessment form were neither properly implemented, nor monitored. This is particularly evidence in the case of Mr Antony, who, it appears, received little, if any, instructions as to how he could safely perform his role. Mr Harvey simply assumed that those employees assigned to undertake the mechanical component of the work would instruct Mr Antony. The employees were unable to say whether Mr Antony had been shown the risk assessment form or whether Mr Antony was given any instructions with regard to the work he was to undertake, including the obvious risk associated with the plant, or part of the plant, falling over. 15The unsupported steel frame which fell and crushed Mr Antony weighed in the vicinity of 120 kilogrammes. This of itself demonstrates the gravity of the risk to safety and the likely consequences arising from the breach of the Act, namely, the unfortunate death of Mr Antony. The ease with which the risk could have been obviated is also relevant to the objective seriousness of the offence. Proper channels of communication would have ensured that Mr Antony was the recipient of instructions sufficient to ensure his safety. Control measures intended to obviate the identified risk in the risk assessment form were both readily available and capable of implementation through basic instructions and supervision. By way of example, Mr Antony could have and should have been prevented from standing near the unsupported steel frame. It should be borne in mind when assessing the objective factors relevant to the offence that Mr Antony did not work in the maintenance department. He was a production worker and the dismantling operation was outside his normal work area. He had only been requested to assist in the task because of time constraints. Given these matters it was incumbent upon the defendant to ensure that Mr Antony had the benefit of clear and proper instructions and supervision, both of which the defendant was capable of providing. 16In the present circumstances, Mr Harvey did not check that the risk assessment form was completed before the workers commenced the dismantling of the Creel. He frankly conceded that a few days after the offence he discovered that the form had only been partly completed. He explained that at the time he had an increased work load and expected that Messrs Gribbin, Teeling and Bishop would have filled out the form, "as they had done many times previously". However, it is not enough for a defendant to expect such important matters as instruction and supervision to be performed by employees, however reliable and experienced, without having some procedures in place to ensure that all relevant safety issues have received attention. 17Other measures capable of implementation in relation to the dismantling of the Creel, are illustrated by the steps taken by the defendant after the offence. Mr Harvey set out the details of those steps in his affidavit: On 22 January 2010, I participated in a full risk assessment process for the job of dismantling the remainder of the Creel. Mr Owen and Mr Harvey were also involved with the risk assessment. One of the primary risks was that further frame sections might fall while disassembly continued. Comprehensive controls were put in place to ensure that this did not recur. For example, spool racks were placed in between each of the frame sections to prevent a complete fall of any other frame sections. We also specified control measures as to how the load of the frame sections would be supported using lifting equipment and sling and jib attachments whilst lowering frame sections to the floor.
Deterrence 18The defendant acknowledged that the principle of general deterrence is a proper matter to be taken into account in sentencing. The present circumstances emphasise the need for employers to have in place, and to enforce, appropriate processes and procedures to ensure that the tasks associated with the dismantling of heavy items of plant are undertaken safely. Such procedures include the need to have in place, and properly implemented, risk assessments where all relevant risks associated with dismantling heavy plant are identified and safe controls are properly enforced so that all workers engaged to do the work receive the benefit of proper instructions and supervision. 19The defendant contended that the role of specific deterrence should be a minor one having regard to the fact that it is no longer engaged in manufacturing and no longer has employees engaged in manufacturing or other industrial activities. Currently the defendant operates a sales business with a much reduced workforce. The prosecutor submitted in a similar vein that the relevance of specific deterrence is, "of some, albeit, reduced significance" on the basis that it has ceased operations in Australia. Given these matters, the Court agrees that specific deterrence is of limited application in the present circumstances.
Maximum penalty 20The defendant is not adversely recorded and therefore faces a maximum penalty of $550,000.
Subjective factors 21There are a number of subjective factors in mitigation brought to the Court's attention by both parties which will be taken into account. The parties were in agreement on the following factors: (i) the defendant has no prior convictions; (ii) the plea of guilty was entered at the earliest opportunity; (iii) the defendant co-operated with the WorkCover Authority throughout the investigation; (iv) the defendant has a good industrial record. 22The absence of prior convictions entitles the defendant to leniency normally extended to offenders not adversely recorded. The plea of guilty at the earliest opportunity entitles the defendant to an appropriate discount of the penalty taking into account utilitarian considerations. The Court assesses an appropriate discount at 25 per cent. The defendant's co-operation with the investigating authority will be taken into account in its favour. 23The defendant's good industrial record is demonstrated by its lack of prior convictions and the fact that it was engaged in an industry using large and heavy machinery which was used primarily to manufacture engineered textiles. According to Simone Elizabeth Lenehan, in an affidavit sworn on 1 February 2012, much of the machinery and other plant used at the Lisarow factory was large, heavy and potentially hazardous when operated. In her affidavit, Ms Lenehan explained: Some of the major pieces of equipment in operation at the Lisarow site included three large finishing machines, a large industrial fabric washer, six large weaving looms, seventeen smaller weaving looms, five large felt needling machines, three web making lines, a blending machine, two calendaring machines, two large gas fired tentering ovens, a bale opening and blend distribution machine, more than thirty cranes, three air compressors, two gas fired oil heating furnaces with a hot oil supply loop system and cooling towers. Some of the larger pieces of equipment were up to 20 metres wide, 6 metres deep and over 7 metres high, weighing more than 150 tonnes. Two of the larger types of equipment were the weaving looms and the needling machines. The weaving looms used "shuttles" which were approximately 450mm long which travelled up to 90km/hour when fired up to 50 times per minute and travelled up to 27 metres across the width of the loom. The needling machines contained several thousand barbed needles which punched through the felts at 600 strokes per minute. The purpose of this part of the process was to anchor additional fibre through the woven fabric. This part of the process was referred to as "needling" or "felting" the fabric. Potential hazards associated with both of these machines included crush hazards, impact hazards from rapidly moving needles and shuttles, and drawing in hazards. Much of the equipment used at Lisarow also carried with it the risk of burns, such as the thermal oil system, the singeing machine, and the finishing machines. 24Also relevant to the defendant's good industrial record is the fact that prior to the offence it had been operating at Lisarow for 43 years without incident, and, according to Ms Lenehan, at one stage, was the second largest employer on the Central Coast, excluding local councils and hospitals. 25Prior to the offence, the defendant had in place a number of safety systems. These systems were described in detail in the affidavits of Mr Harvey and Ms Lenehan. The defendant, in written submissions, provided a helpful summary of the main features of those systems which are set out below: (1) Induction and training of employees; (2) Toolbox Talks and other communications to employees; (3) Workplace safety committee; (4) Provision of PPE; (5) OH&S and Injury Management Manual; (6) Employees' safety handbook; (7) Standard operating procedures for all machinery and equipment; (8) External safety audits; (9) Formal risk management and hazard identification procedures; (10) The employment of an OH&S Manager, Ms Marlene Walsh. 26Mr Antony also received training throughout his employment with the defendant. In submissions, the defendant set out the various training sessions attended by Mr Antony from the period 2005 up to the beginning of 2010. These sessions included safety matters dealing with electrical safety, personal protective equipment, safety awareness, falls in the workplace, plant safety rules, machine hazards, hazard reporting, accident reporting and OH&S legislation. 27As earlier adverted to, the defendant also undertook extensive remedial action after the offence by developing a full risk assessment process for the job of dismantling the remainder of the Creel. 28These matters attest to the defendant's genuine and ongoing commitment up to the time it effectively ceased operation at Lisarow to matters of worker safety. 29The defendant also demonstrated contrition which is reflected in the development and implementation of the risk assessment shortly after the offence and by reason of the defendant's expression of remorse for the incident. This was personally conveyed by Mr Williams who had flown from the United States in order to be present at the sentencing hearing. It was conveyed by the defendant through counsel from the bar table without objection by the prosecution. Accordingly, the Court accepts that the defendant is genuinely remorseful for the circumstances of the offence. 30The evidence indicates that the defendant has been a good corporate citizen by reason of the many contributions it has made to the community, for example, its involvement as a founding member and steering member of the Central Coast Safety Group, which involved the provision of financial support to smaller local companies to promote safety in management and by generally increasing awareness of safety issues and providing educational opportunities for members. 31According to Ms Lenehan, Mr Antony's family was also provided with support in the form of ongoing communication and offers of financial assistance. Ms Lenehan also said that following a request from Mr Antony's family, the defendant made a donation of $10,000 to a nominated cancer fund, that had been supported by Mr Antony. 32The defendant also provided support for Mr Antony's work colleagues, in the form of counselling through a clinic in Lisarow, after the incident.
Victim Impact Statement 33During the sentence proceedings the Court accepted a Victim Impact Statement prepared by Mr Antony's wife, Pauline Antony. The statement attaches two reports, one from consultant psychologist, Dr Diane F Bull, and the other from a psychiatrist, Dr Peter Snowden. The material attests to the dreadful impact Mr Antony's tragic death has had on Mrs Antony. According to Dr Snowden's report, Mrs Antony has developed chronic major depression as the result of her husband's death. 34Mrs Antony's statement and the annexures show that she has suffered enormously as a direct result of her husband's death. Although the Court is unable to take into account the effect of Mr Antony's tragic death on Mrs Antony in determining penalty, the Court expresses its deepest sympathy to her.
Orders 35The Court makes the following orders: (1) The defendant, Albany International Pty Limited [ACN 008 446 713], is convicted of the offence and fined $104,000 with a moiety to the prosecutor. (2) The defendant is to pay the reasonable costs of the prosecutor as agreed, or in the absence of agreement, as assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2012
Inspector Christensen
Albany International Pty Limited