Agreed Statement of Facts
26An agreed statement of facts was tendered and was in the following terms:
1.The prosecutor, Inspector Michael Dall, is an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under section 106(1)(c) of the Act to institute proceedings in these matters.
2.The corporation, Ullrich Aluminium Pty Ltd, is and, at all material times, was a corporation, whose registered office is situated at 185-187 Woodpark Road, Smithfield, in the State of New South Wales ("the corporation").
3.Gilbert William Ullrich is and, at all material times, was a director of the corporation.
4.At all material times the corporation, trading as "Ullrich Aluminium", operated a trans-Tasman aluminium manufacturing and distribution business with over 47 branches in both New Zealand and Australia, with branches located in all Australian States and Territories.
5.At all material times the corporation operated and controlled a warehouse located at 6 Steel River Boulevard, Mayfield West in the State of NSW ("the Warehouse").
6.At all material times the corporation employed William Duncan (Branch Manager, Newcastle) to manage the Warehouse.
7.At all material times, the corporation also employed two supervisors Peter Inskip (Warehouse Manager) and John Wilmott (Assistant Warehouse Manager) at the Warehouse, together with approximately 10 staff, both employees and contract labour, retained to carry out day to day operations within the Warehouse.
THE DECEASED
8.As at 3 September 2007 the corporation employed Troy Murrell-Voigtlander, also known as "Troy Murrell" at the Warehouse as a storeman. Mr Murrell had been employed in that position for about seven (7) to eight (8) months.
9.As a storeman, Mr Murrell's duties included picking and packing aluminium products for orders. This work involved the use of the corporation's Demag crane in the movement of crates of aluminium product into, out of and within bulk storage racks. Prior to his employment by the corporation Mr Murrell had experience as a store person at Ryco.
10.Prior to and as at 3 September 2007, Mr Murrell was considered by the corporation to be experienced in his field of work and he was utilised by the corporation to train and supervise new storeman, both employees and labour hire workers, when they commenced work at the Warehouse. The training which the corporation utilised Mr Murrell to provide to new storeman included the corporation's stock handling practices, the use of the corporation's overhead cranes and the movement of stock into, out of and within the bulk storage racks in the Warehouse using the corporation's overhead cranes.
11.Some employees, who had been trained by Mr Murrell, when spoken to after the incident, stated Mr Murrell had instructed them that it was not safe to enter into bulk storage racks and walk between stacks of cases; and also, that they were not to do so.
12.Prior to the incident John Willmott had instructed some Warehouse staff not to enter into the bulk storage racks.
13.Mr Murrell was a member of the corporation's safety committee and he was undergoing safety committee and consultation training at the time of the incident.
MR CHRISTOPHER CRAWFORD
14.At all material times, Mr Christopher Crawford ("Mr Crawford") was employed by a labour hire company trading as "Select Industrial".
15.At all material times, Mr Crawford was assigned by Select Industrial to work as a storeman at the corporation's Warehouse. Mr Crawford had commenced work at the Warehouse 3 days prior to the incident.
16.On the day of the incident, Mr Crawford had been assigned to assist Mr Murrell in "picking and packing" orders.
17.In the course of his record of interview Mr Crawford giving the following answers to the following questions:
"Q100.Okay. All right. So what happened?
Forgotten where I was. Yeah, he was, basically he was telling me to be safe being up the side of there and I pulled the sling out and I came down, and I don't know why or how, but his sling sort of ended up in the middle of the pallets, and he's walked in to get it. I said well you told me to be safe, I would be standing there, and basically, it's just come down on top of him."
And:
"Q164. Been on the southern side [of the bulk storage rack]?
Yeah, 'Cause that's where Troy was originally before he went to get the sling.
Q165. So he was outside, he was outside the, the bollard?
Yeah.
Q166. The storage on the southern side?
Yep.
Q167. Okay. And then he's walked into [the bulk storage rack] on the south western side. Is that correct?
Yeah.
Q168. Okay. So he's walked into that particular storage area, which is W03. To remove or to get a sling?
Yeah.
Q169. Is that correct?
That's correct.
Q170. All right. Did you say anything to him?
Yeah. At the time I did.
Q171. What, what did you say to him?
I said I wouldn't be standing there if I was you.
Q172. Did he reply anything to you?
No, he didn't have a chance."
THE "CASES" OF ALUMINIUM PRODUCT
18.At the time of the incident, the corporation stored large quantities of aluminium products within the Warehouse, including the bulk storage of "cases" of aluminium product which were stacked in various "bulk storage racks" located throughout the Warehouse.
19.The "cases" of aluminium product consisted of a pineboard base on which plastic wrapped aluminium extrusions are placed; a top sheet is placed over the top of the aluminium extrusions; and this "sandwich" (consisting of the pineboard base, the aluminium extrusions and the top sheet) was bound with wooden cleats (or gluts) secured with steel banding. The wooden cleats on the "cases" of the aluminium product consisted of wooden boards, 55 mm wide by 11mm thick, forming a rectangular border around the cardboard top sheet and pineboard base, with the product inside the "cases". The steel banding used to secure the "cases" was 19 mm wide.
20.The "cases" of the aluminium product stored in the Warehouse varied in length and configuration depending on the product. The lengths of aluminium ranged from 1.190 to 7.4 metres in length and the dimensions of the cases varied depending upon the dimensions of the product they housed. However, most commonly, the cases stored in the "bulk storage racks" were approximately 4 metres in length and 300 to 400 mm wide with the depth of the cases varying, generally, from about 200 to 300 mm.
21.In addition to whole "cases", open "cases" from which product had been extracted were also stored in the "bulk storage racks
BULK STORAGE - INCLUDING RACK WBO3
22.The components used by the corporation to make up "bulk storage racks" at the Warehouse, including the "bulk storage rack" identified by the corporation as "WB03", consisted of:
a.a base made from a piece of steel channel, inverted in a "U" position, and measuring approximately 150 mm x 75 mm x 2.710 m long which lay on the floor of the Warehouse unsecured; and
b.two yellow 100 mm in diameter cylindrical steel bollards, 2.600 m in length, welded to the top of each end of the steel channel.
23.Two of these components were used to make up each of the "bulk storage racks" within the Warehouse.
24.Each "bulk storage rack" was designed to accommodate five rows of cases across the base and then stacked to the height of the end bollards (i.e. 2.6 metres high).
25.The "bulk storage racks" did not incorporate vertical bollards, or any other vertical means of support and/or segregation, between the stacks of cases contained within each rack.
26.To remove or store the "bulk" aluminium product contained in the Bulk Storage Racks, workers, including Mr Murrell, utilised a pendant controlled electric overhead travelling "Demag" crane with fibre slings that were slung around each end of the cases of Aluminium product. Once the slings were in place around each end of a case, the crane was used to lift and move the case to the desired position.
27.Bulk Storage Rack WB03 was located on the south western side of the Warehouse.
28.At the time of the investigation of the incident involving Troy Murrell Bulk Storage Rack WB03 contained approximately thirty-six cases of aluminium product.
29.At the time of the incident, generally, the cases stored in WB03 were approximately 4.000 m in length, 300 mm to 400 mm in width and 200 - 300 mm in depth. Some the cases differed in length; or were otherwise differently configured.
30.At the time of the incident, each of the cases stored in WB03 displayed weights ranging between 66 kg to 331 kg, with the disparity of weight per case due to difference in length and configuration of their contents.
31.Horizontally, WB03 contained five stacks of the cases described above.
32.At the time of the investigation, vertically, each of the "outside" stacks [i.e. the 'eastern' and 'western' stacks] consisted of seven or eight of these cases of different depth. The three middle stacks had collapsed progressively towards the western end of WB03.
33.In the immediate lead up to the incident Mr Murrell and Mr Crawford moved pallets from stacks in the middle of WBO3 and placed those pallets onto other, adjacent, stacks within the same rack. In the immediate aftermath of the incident, in an attempt to free Mr Murrell from the collapsed cases members of the Warehouse staff moved cases within WB03.
THE INCIDENT
34.At approximately 12.30 pm, Monday 3 September, Mr Murrell was working with Mr Crawford. Mr Murrell and Mr Crawford were using the corporation's Demag crane to reposition 'cases' of aluminium product (shower screen sections) within Bulk Storage Rack WB03 for the purpose of obtaining access to particular cases of aluminium product located within that rack, the contents of those cases being required to fill orders that Mr Murrell and Mr Crawford were in the process of "picking and packing".
35.Prior to the subject incident, Mr Murrell and Mr Crawford used the Demag crane to re-stack cases within WB03, removing cases from the 2 stacks adjacent to the western-most stack within WB03 onto the other 2 stacks within WB03 to the east.
36.Immediately prior to the incident, with the Demag crane located above WB03, Mr Crawford was detaching the slings from one of the cases located within WB03. Mr Crawford climbed up one of the stacks to detach that sling.
37.Mr Murrell then entered about 2 metres [about halfway] into the gap that had been created in WB03 between the stacks to retrieve the other sling attached to the crane, as that sling was apparently hanging from the crane hook, in the middle of the cases, about halfway into WB03.
38.Whilst Mr Murrell was retrieving the sling, Mr Crawford and Mr Murrell exchanged words to the effect set out at paragraph 17 above. As Mr Crawford and Mr Murrell were speaking, several cases toppled onto Mr Murrell, trapping him and causing fatal crush injuries:
a.the cases were stacked five or six high and five cases wide before they moved;
b.some of the cases were damaged so that the stacks were described by Mr Crawford "dodgy", "unstable, "a bit unstable" and "didn't look safe";
c.Mr Murrell was about 2 metres into the rack [i.e. approximately halfway into WB03] with his left shoulder against the western-most stack of cases in that rack;
d.one of the cases that toppled over onto Mr Murrell hit him in the chest and chin area, pinning him in a vertical position against the western-most stack;
e.whilst trapped in this position Mr Murrell had raised his right arm parallel to his head to try and protect himself from the falling cases; and
f.approximately eight to ten cases were pinned down on Mr Murrell like a 'domino effect'.
39.Mr Crawford then alerted other staff that Mr Murrell was trapped in WB03.
40.Once other staff were alerted, Mr Crawford was aided in removing the cases off Mr Murrell by the following staff: Glen Cocking (truck driver), Michael Bourke (storeman), Lee Boulton (machine operator), Dale Marko (storeman truck driver) and Peter Hopkins (sales representative). Mr Inskip was holding up Mr Murrell's head.
41.Approximately six to seven cases were manually lifted off Mr Murrell, whilst the remainder of the cases were pushed off him.
42.Once Mr Murrell was released from WB03, Mr Murrell was placed in a recovery position pending the arrival of Ambulance officers. Whilst in the recovery position Mr Murrell's vital signs were monitored, however, he did not respond to verbal prompts and no pulse could be found.
THE CORPORATION'S FAILURES
43.At the time of the incident there was a risk that instability within a stack could result in cases collapsing within the confines of the bulk storage racks because the bulk storage racks used at the Warehouse did not incorporate bollards, or any other means of segregating, individual stacks of cases within a bulk storage rack.
44.Prior to the incident, the corporation was aware of the risk of stack instability and collapse.
45.On 27 June 2006, Dale Hutton, the Health & Safety Coordinator of the Ullrich Aluminium group based in Hamilton, New Zealand, informed WorkCover that the Ullrich Aluminium group was undertaking a review of racking at all of the corporation's branches.
46.On 6 October 2006, Phillip Wareham issued an Ullrich Aluminium Memorandum entitled "Bulk Storage Safety" in the following terms:
"In some of my recent visits to branches I have noticed a few examples of what I consider to be unsafe bulk storage cases.
A few basic points to keep in mind.
1.The steel "goalpost" dividers/stabilisers should be made from 100 mm by 40 mm square or round tube and a max of 2.5 meter (sic) high (see attached diagram)
2.These should be bolted to the concrete floor
3.Cases should not be stacked higher than the "goalpost"
4.Cases should be stacked as vertically as possible avoiding dangerous leans
5.If your branch is not complying with the above, please rectify ASAP, or if you have any issues or concerns re the above or any related matters please contact me.
The safety of our people is worth more than the time or a few extra dollars we may need to pay.
Best Regards
PAW"
47.The corporation was aware prior to the incident that there had been collapses of cases of product within the bulk storage racks at the warehouse, albeit these prior incidents did not result in any injury.
48.Prior to the subject incident, an alternative racking system was being trialled in the corporation's South Australian warehouse which obviated the risk of stacks collapsing by providing for the bulk storage of cases of aluminium extrusions in single stacks, isolated by bollards.
49.In the period since the incident, the corporation has developed and installed a new racking system at the Warehouse. The new racking system incorporates bollards that separate each stack of cases and hence, eliminates the risk of stacks of cases collapsing with the racking system.
50.The investigation of the incident revealed that, prior to and at the time of the incident, the corporation did not have in place any formal, documented Job Safety Analysis (JSA), or Safe Work Method Statement (SWMS), with respect to the bulk storage and/or handling of cases of aluminium extrusions at the subject Warehouse; including the movement of cases into and/or out of bulk storage; and the transfer of cases within the bulk storage racks.
51.Prior to the incident, the corporation relied upon informal and undocumented "on the job" training with respect to the manner in which the bulk storage of cases of aluminium extrusions was performed within the Warehouse.
52.The informal work practices that were in place prior to incident included a direction that workers were not to enter within the confines of the bulk storage racks.
53.The informal work practices that were in use prior to and at the time of the incident included, at times, the use of a piece of timber with a nail in one end to hook and retrieve the sling. The informal work practices made no other provision for the recovery of the slings used to connect the cases to the overhead travelling cranes, used to move the cases into, out of and within the bulk storage racks, when those slings came to rest within the confines of a bulk storage rack.
54.Prior to the incident although provided with informal, oral warnings from the corporation not to walk between stacks of cases in the racks, from time to time, workers entered the racks, between rows of cases, to retrieve slings that came to rest within the confines of a bulk storage rack or, alternatively, individual workers developed ad hoc responses such as leaning into the racks from the side, or using a nail attached to a long piece of wood to hook the sling and pull out it to the edge of the rack.
55.Prior to the incident, Warehouse management was aware that the slings used in conjunction with the overhead travelling cranes to move the cases into, out of and within the bulk storage racks, from time to time came to rest within the racks and that, from time to time, workers entered into the racks to recover the slings.
56.Prior to the incident, the corporation took no steps to put in place any formal controls on entering or leaning into the racks and to provide a safe means of retrieving the slings if and when they came to rest within the confines of a bulk storage rack. Subsequent to the incident the corporation developed a documented system of work regarding the task of removing stock from the racks. The documented work system addresses the risk of slings coming to rest within the confines of a bulk storage rack and included the provision of a hook to enable staff to recover slings without having to enter within the confines of the bulk storage racks.
57.Prior to and at the time of the incident some workers in the Warehouse who used the overhead cranes in the course of their employment, including Mr Murrell, did not receive formal, documented training in the use of the overhead cranes; nor were there any formal systems of work in place to ensure that Mr Murrell, and Mr Crawford were competent in the use of the overhead cranes. Other workers, who operated the overhead crane at the Warehouse, had been assessed and recorded by the corporation as competent.
58.There was no requirement for operators of the overhead crane at the Warehouse to be assessed and certified under the Occupational Health and Safety Regulation 2001 (NSW).
59.Prior to the incident, the corporation did not audit the task of operating the overhead crane.
60.Workers who operated machinery requiring formal certification, such as forklifts, were appropriately trained and certified.
61.After the incident, the corporation introduced formal documented, skills-based competency training for all workers required to use the overhead cranes in the course of their employment. This training is provided by an appropriately qualified third party trainer and upon successful completion of the training, the third party trainer undertakes a competency based assessment and certification of the subject trainees.
62.Subsequent to the incident, the corporation developed a documented procedure (dated 21 September 2007) for the task of removing stock from racks.
63.Prior to and on 21 February 1996 the corporation occupied and controlled a warehouse located on premises known as 32 Victoria Street, Smithfield in the State of New South Wales. On 21 February 1996, a stack of unrestrained "cases" of aluminium extrusions at the corporation's Smithfield warehouse collapsed, striking and fatally injuring an employee of the corporation, Darren Gascoigne, whilst he was in the course of picking and packing stock in proximity to the subject stack of cases.
64.Following the above incident, as part of the corporation's response to it and, more particularly, in response to Prohibition Notices issued by Inspector James Ch'ng, the corporation designed and introduced the style of bulk racks which were in use at the Mayfield branch at the time of the incident leading to the death of Mr Murrell. The racks in use at the time of the incident were originally constructed for use in warehouse premises at Cardiff. Those racks were then transferred to the Mayfield site when the corporation moved its operations from the warehouse at Cardiff to the Warehouse at Mayfield.
65.Prior to the incident leading to the death of Mr Murrell, there had been no formal risk assessment conducted relating to the use of the bulk racking system at the Warehouse. In particular, the corporation had not adequately assessed the risks associated with the use of the overhead cranes and sling system in association with the racks, such that inadequate consideration had been given to the risks associated with the slings coming to rest and/or being caught within the confines of this style of rack.
66.Prior to the incident, the corporation had undertaken a review of the racking system in place in its Adelaide warehouse and, as noted above, a different system, in which individual stacks of cases were segregated by bollards or staunchions had been developed and installed in the Adelaide warehouse.
THE ROLE OF THE DEFENDANT
67.The defendant was appointed as a director of the company on 1 August 1988 and has served continuously in that office since that appointment.
68.The defendant is the Chief Executive Officer of the company.
69.At all material times the defendant was aware that an incident had taken place on 21 February 1996 at the factory premises, occupied and controlled by the company, known as 32 Victoria Street, Smithfield in the State of New South Wales in which an employee of the company, Darren Gascoigne, sustained injury and died as a consequence of being struck by cases of aluminium product when an unrestrained stack of cases collapsed.
70.At all material times, following upon the incident on 21 February 1996 in which Mr Gascoigne sustained injury, the defendant was aware that the company had introduced racks of the kind which were being used in the bulk storage of cases of aluminium product at the company's premises at Mayfield West as at the date of the subject incident, including but not limited to the bulk storage racks known as WB03.
71.At all material times, the defendant was aware that the racks in use for the bulk storage of aluminium product at the company's premises at Mayfield West, including but not limited to WB03, did not make use of internal bollards between stacks of cases of aluminium product which would have prevented the collapse of stacks of cases of aluminium product within those racks.
72.At all material times the defendant was aware that on 27 June 2006 the company's occupational health and safety officer, Mr Hutton, had informed WorkCover that the company was undertaking a review of all of the racking in use at all of the defendant's branches.
73.At all material times the defendant was aware that racking was under trial at the company's Adelaide premises for the bulk storage of cases of aluminium product that incorporated vertical bollards between each stack of cases that prevented the collapse of the stacks.
74.At all material times the defendant knew that the racks used in the bulk storage of cases of aluminium product at the company's Mayfield premises had not been the subject of a review and that the said racks had not been modified to incorporate vertical bollards designed to prevent the collapse of stacks within the bulk storage racks or otherwise replaced with new racks which incorporated vertical bollards designed to prevent the collapse of stacks of cases within the bulk storage racks.
27An additional agreed statement of facts was tendered at the hearing of the matter which was in the following terms:
Upheaval in the Warehouse Prior to September 2007
1.Between December 2006 and July 2007 a number of key personnel resigned from Ullrich's Newcastle branch as did the chief operating officer from the Australian head quarters located in Sydney. Those individuals who resigned took up positions with a rival company in the Hunter region. Among the staff who resigned were the Warehouse manager, a sales representative, the debtors/creditors clerk, all of the purchasing staff, a stores person and a truck driver. The chief operating officer who resigned took a head role in establishing a competing business in Newcastle.
2.One of the consequences of the loss of staff was that the Warehouse was overstocked. This occurred for two reasons, firstly there was a drop in sales and secondly a belief on Ullrich's part that immediately prior to resigning some of the staff deliberately overstocked the Warehouse in what was considered to be a form of commercial sabotage.
3.Another consequence was a vacuum at the Warehouse was created in terms of the skill base of the remaining workforce. To cope with the staff shortage Ullrich was forced to make increased use of labour hire resources.
Safety Management Prior to September 2007
4.In the period leading up to September 2007 Bill Duncan (the Warehouse Branch Manager) had taken steps to create a safety committee at the Warehouse. To that end 5 employees, including Troy Murrell, had been sent to external safety committee training. Prior to the incident Troy Murrell had not completed his training due to missing the last day as a result of illness.
5.Prior to the incident toolbox meetings at the Warehouse were held on an irregular basis.
6.There was a policy within Ullrich prior to the upheaval (referred to above) to conduct safety meetings at the Warehouse. That policy was not adhered to following the Warehouse upheaval in late 2006 and early 2007.
Safety Management Since September 2007
7.In the aftermath of the incident in September 2007 a senior OH&S professional was employed by Ullrich to oversee, review and where necessary implement new processes insofar as the health and safety aspects of the Ullrich interests in Australia were concerned. There was a lengthy and difficult process in locating a suitably qualified and available individual. In November 2009 Lynn Hart was employed to perform the above role. During the process of interviews approximately 12 candidates were interviewed before Lynn Hart was offered the job.
8.In the immediate aftermath of the incident Ullrich took the following initiatives at the Warehouse:
a.Regular toolbox meetings were instigated.
b.The Warehouse staff were trained in crane competency.
c.The Warehouse staff received fire and emergency training.
d.JSA and work method statements have been drafted in respect of each position in the Warehouse.
e.An improved procedure was formulated, including the development of a kit, for the induction of all new workers at the Warehouse.
f.The cleaning hours were changed so that the cleaning staff were not at the Warehouse unsupervised.
New Bulk Racking System
9.Following the incident Ullrich took steps to completely redesign and reinstall the racking systems in place in the Newcastle Warehouse and make changes across its facilities in Australia.
10.In October 2007 Ullrich procured from EMA Consulting Engineers Pty Ltd an engineering report relating to the design and installation of a new racking system at the Warehouse.
11.The pendant controller for the crane at the Warehouse has been replaced by a remote control system to remove the risk associated with removing the pendant from within the bulk racks.
12.In total, Ullrich spent close to $1 million installing new racks around its branches to prevent a situation such as that which occurred in September 2007 ever happening again. This has included a significant re-racking and upgrading of the Newcastle Warehouse.
13.The welfare of staff is at the forefront of Ullrich's considerations and it continues look out for the need to upgrade facilities and processes where necessary to address this.
14.Since the incident on 3 September 2007 the defendant has undertaken steps, described by the Court in Inspector Dall v Ullrich Aluminium Pty Ltd [2012] NSWIRComm 156 at [64] as being "commendable", to ensure there is no recurrence of the contraventions that brought it before the Court.
15.Since the incident Ullrich has worked "diligently" (to use the words of the Court in Inspector Dall v Ullrich Aluminium Pty Ltd [2012] NSWIRComm 156 at [67], to improve its overall safety performance and has introduced a number of safety initiatives. These include:
a.the employment of a senior occupational health and safety supervisor (Mr Hart);
b.the development and installation of a new bulk racking system;
c.the reinstatement of tool box meetings;
d.the implementation of safe work method statements addressing inter alia the loading and unloading of bulk racks using an Overhead Bridge and Gantry Crane;
e.the preparation of an Ullrich Aluminium Group occupational Health and Safety Management System Overview;
f.the development of an Ullrich Aluminium Occupational Health and Safety Plan; and
g.the preparation of an Ullrich Aluminium Operational Risk Management Index of Procedures.
16.Since the incident a Safe Work Method Statement for the task of "Lifting Packs with Overhead Bridge and Gantry Crane" has been developed by Ullrich. It makes clear that "[u]nder no circumstances" are workers to step into any area where packing could topple over. In addition, a long handled hook pole has been developed for use to recover slings.