1 Onesteel Reinforcing Pty Limited has pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000 (OHS Act 2000). The charge, set out in an application for order, alleges that on 4 March 2005, at premises at Revesby, the defendant failed to ensure the health, safety and welfare at work of its employees, in particular, John Vaimoe Afoa. The particulars of the charge allege:
(a) [failure] to provide and maintain a safe system of work in relation to the lowering and removal of suspended or hung forklift loads in circumstances where the mast of the forklift was or became jammed;
(b) [failure] to have a procedure in place for identifying and controlling the risks associated with suspended or hung forklift loads and for lowering and removing a suspended or hung forklift load in circumstances where the mast of the forklift was or became jammed;
(c) [failure] to provide plant, being a Nissan Forklift Model PGF02 Serial Number 021280, that was safe and adequately maintained;
(d) [failure] to provide adequate supervision in relation to the use of forklifts and, in particular, in relation to the use of forklifts where the load was suspended or hung in circumstances where the mast of the forklift was or became jammed;
(e) [failure] to ensure that employees working with forklifts (whether as operators or not) were properly instructed and trained in all aspects of the proper and safe use of forklifts and, in particular, in relation to the use of forklifts where a load was suspended or hung in circumstances where the mast of the forklift was or became jammed.
2 At the time of the offence Mr Afoa was employed by the defendant as a machine operator. Mr Ung was Mr Afoa's team leader. At about 7pm on 4 March 2005 Mr Ung drove a forklift truck to which was attached a scrap dumping bin, to an area within the defendant's premises in order to empty its contents. The bin was secured to the forklift with a sling and shackle which were in turn secured to the mast of the forklift. The procedure for emptying the bin was to lift it a little from the ground. Mr Ung emptied the contents of the bin, but when he attempted to lower it he could not get the forklift mast and tynes to operate in the normal range of movement. As a result, the forklift tynes, to which the bin had been secured, could not be lowered more than about 1.7 metres from the ground. Mr Ung made a couple of further attempts to lower the bin which were unsuccessful. He then drove the forklift with the bin still attached in the raised position back to an area designated as Bay 7 where he had first picked up the bin. He parked the forklift in neutral and put on the handbrake.
3 According to the agreed statement of facts Mr Ung then got Mr Afoa to assist him. Mr Afoa used the hoist control and attempted to lower the tynes, again unsuccessfully. According to Mr Ung, Mr Afoa then went to the front of the bin and tried to shake it down. Mr Ung said he told Mr Afoa, "Don't do it, its going to drop on your feet". Mr Afoa, however, went back to the forklift, unshackled the sling and then shook the bin again. According to Mr Ung he repeated his instructions to Mr Afoa not to shake the bin. Mr Afoa gave a different version of events in relation to this particular activity. He recalled stepping up on the forklift to have a look. He also recalled a discussion between himself and Mr Ung during which a decision was made to push the bin back up and secure the safety latch on the bin. Mr Ung denied that this discussion took place. Mr Afoa denied that he was instructed by Mr Ung not to go under the forklift tynes while the bin was in the raised position.
4 Although these conflicting versions are set out in the agreed statement of facts, they bear little if any relevance to the nature and quality of the offence, dealing as they do with the circumstances of an accident and not with the risk to safety. They are mentioned in these sentencing reasons only for completeness.
5 What appears not to be in issue in the sequence of events is that at some stage Mr Ung noticed that the right mast wheel of the forklift was outside its channel, and he informed Mr Afoa who went to the location where he had unshackled the bin and proceeded to tap the bin with the palm of his gloved hand. Mr Ung, who considered that this activity would not achieve the desired result, then found a piece of steel which he showed to Mr Afoa, and proceeded to tap the bin at the same time instructing Mr Afoa to stay in front of the bin. On about the fourth tap Mr Ung heard a loud bang. He got down off the forklift and saw Mr Afoa trapped under the tynes of the forklift. Mr Afoa recalled being at the front of the bin and attempting to push it up when it fell down on him.
6 Tony Taueva, a machine operator employed by the defendant observed some of the activity involving the attempts of Mr Ung and Mr Afoa to lower the tynes of the forklift. According to him Mr Ung drove the forklift with the bin in the raised position back to the Bay 7 area and thereafter requested assistance from Mr Afoa. He saw them both shaking the bin, and he saw Mr Ung trying to move the levers. He then saw both Mr Ung and Mr Afoa hitting the bin on the side with bars, and Mr Ung returning to the forklift and attempting to shake the lever. He turned away to continue his own work when he said he heard a loud bang. He went out to see what had happened and saw Mr Afoa lying on the floor injured and being assisted by a co-worker.
7 Mr Afoa was taken to Bankstown Hospital, where he was found to be suffering from a head injury, an abdominal injury and a fractured hip. At the time of the sentencing proceedings he continued to suffer headaches, memory impairment and had difficulty concentrating. He had not returned to effective work and his employment with the defendant ended at the end of his 12 month fixed term contract. He was receiving payments under the relevant workers compensation legislation.
8 The defendant had in place prior to and at the time of the offence a comprehensive and effective system for dealing generally with defects or faults identified in forklifts. The evidence tendered during the sentence proceedings showed that Mr Ung was trained in many aspects of the system and was aware, in particular, of what to do when encountering a problem with a forklift. He was also aware of the defendant's requirement to follow the system. Mr Ung's knowledge and understanding of the system was acknowledged by him in his record of interview with WorkCover shortly after the accident. In the affidavit of Brenton Donald Michaels, the defendant's NSW Operations Manager, the following extract from that interview appeared:
Q77. What is the usual procedure to report problems with the forklifts?
A77. Ah, if the forklift have a problem we always report it, we have to take the key off and tag it properly and on the tag there is a name of the person who identify if there something wrong on the forklift. And we have to report it to the maintenance shop and write a green slip and give the key and the green slip to the maintenance area.
9 The risk to safety arose, in circumstances where Mr Ung decided, unilaterally, to fix the problem posed by the jammed tynes and mast of the forklift with the assistance of Mr Afoa, who was attempting to push up the bin when it fell on him (or when he became trapped under the tynes). The bin, which was empty at the time of the accident, nevertheless weighed some 200 kilogrammes. Had Mr Ung followed the defendant's procedure the bin would not have fallen on Mr Afoa, (or he would not have become trapped under the tynes), and there would have been no risk to his safety.
10 The defendant's system for dealing with faulty plant or equipment (including forklifts) was set out in the affidavit of Mr Michaels, and in the agreed statement of facts. The system may be conveniently described by reference to three components.
11 First, the defendant had a procedure called a Forklift Truck Drivers' Daily/Shift Checklist, which required every forklift to be checked prior to its operation. The check was undertaken by the forklift's operator. The checklist required the operator to identify whether various parts of the forklift were "ok" or "needs attention/repair". It specifically required that the masts and attachments be inspected. Mr Ung, who was licensed to operate a forklift, had successfully completed pre-start checklists in conformity with the prevailing procedure. He had not however, completed the pre-start check on the condition of the forklift which was involved in the accident, on the day of the offence.
12 Secondly, the defendant had a procedure which required the operation of plant or equipment, including forklifts, to cease and warning tags to be attached to the plant once a fault was identified with the plant or equipment. The same procedure was to apply in the event that a fault occurred during the operation of the plant or equipment. With regard to a forklift this meant that the forklift was to be turned off, no longer operated and a warning tag attached. The warning tags, which were accessible to all employees, were to include the details of the fault, the date of detection and the name and department of the person who attached the tag.
13 Thirdly, following the identification of a fault, the defendant required that a maintenance service request (MSR) form, also known as a green slip, be completed and forwarded to the defendant's maintenance department at Revesby. The form was to include information on the time, date and location of the plant or equipment, and the fault identified. Mr Ung had previously completed MSR forms for faulty equipment and was therefore aware of the procedure.
14 After tagging out the defective item, the next step in the procedure required the maintenance department to be notified. This was done by sending the department the MSR form. Maintenance of forklifts was outsourced to Oden Equipment Pty Ltd and arrangements made for Oden to attend the Revesby site and repair the forklift. When undertaking the repair work Oden was to complete a risk assessment for the work to be done in accordance with its own safe systems of work. When the plant or equipment was repaired, the defendant's maintenance department verified that the repairs had been done and arranged for the handover of the item to the relevant operations employees who signed off on the repairs, signifying that the repairs had been completed and that the item was in working order.
15 In the circumstances leading up to the accident Mr Ung did not tag out or report the problem with the forklift's suspended load using the MSR form procedure, even though he was aware of the procedure. The system required that operations employees, such as Mr Ung, not work on, or attempt to repair faulty plant or equipment. Once operations employees identified a fault and tagged out the item, they were to have no further involvement in using or repairing the item. It is clear from the extract of Mr Ung's record of interview, earlier referred to in these sentencing reasons, that Mr Ung was aware of these requirements at the time of the offence.
16 The prosecutor submitted in oral submissions that the defendant's statutory obligations extend to having in place procedures which take into account the fact that, "people don't do what they're told, for whatever reason", and that the defendant was obliged to guard and protect against the actions of Mr Ung which involved errors of judgment and mistakes.
17 The submission echoes the well-known principle in occupational health and safety prosecutions which imposes a requirement on a defendant to be pro-active in seeking out risks to safety and taking appropriate measures to obviate those risks. The requirement, however, which has undoubted relevance in occupational health and safety prosecutions, does not, in the present circumstances, derogate from the finding, which I am prepared to make, that the defendant had a system of work in the event plant or equipment used within its premises was identified as defective. In other words, the system demonstrated that the defendant had to a significant extent been pro-active in identifying and taking measures to minimise the risks to safety. In WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 Hill J observed:
This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. I am satisfied that the defendant approaches its duties under the Act on that basis. But it is always possible to achieve greater effectiveness and success as this case demonstrates.
18 In the present circumstances the defendant's system, although comprehensive, lacked a procedure for dealing with the lowering and removal of suspended forklift loads in circumstances where the mast of a forklift became jammed (particulars (a)(b)(d) and (e) of the offence). Following the offence however, the defendant had taken prompt and effective measures to address this gap in its system. The measures included the retraining of employees in the correct use and application of the Forklift Truck Drivers' Daily/Shift Checklist and the MSR procedure. A national audit of the integrity of mast roller bearings on all the defendant's forklifts had also been undertaken. Following the issue of improvement notices by WorkCover the defendant tailored risk assessments for the emptying of waste tipper bins in compliance with the notices. It also conducted an audit into the integrity of waste tipper bins and undertook a replacement and upgrade programme and developed training and competency assessment instruments for the emptying of the bins. In addition, a safety leadership programme was developed and implemented. The programme focused on the skills and competencies required of front line leaders within the defendant's organisation and gave particular attention to the use of warning tags, MSR forms, incident reporting and behavioural auditing. Inspection on the afternoon shift (the time when the accident occurred) at the Revesby site was implemented and included the appointment of a dedicated afternoon shift supervisor. Many of these measures no doubt could have been put in place prior to the offence. These facts exacerbate the objective seriousness of the offence. Nevertheless, the Court is prepared to take into account the extent and effectiveness of the defendant's more general system of safety in place prior to the offence as mitigating the otherwise objective seriousness of the offence.
19 Before leaving this point I should make brief reference to other aspects of the defendant's safety system which were in place prior to the offence. These other aspects have been set out in some detail in the affidavit of Mr Michaels, and include training regimes and site inductions of all employees at the Revesby site. All employees who operated forklifts at the site were required to be licensed. Mr Ung had successfully undertaken forklift training and obtained his forklift driver's licence on 9 September 2003. All forklift operators were also required to undertake annual refresher training on the safe use of the machines. Mr Ung had successfully completed this refresher training on 8 September 2004. Earlier, on 6 February 2003, Mr Ung had also completed training on forklift exclusion zones and on the control of risks associated with the interaction between forklifts and employees. In July 2004 Mr Ung completed refresher training, part of which included questions concerning the operation of equipment with warning tags attached, and instructions on the repair of equipment.
20 Mr Afoa was not required to operate forklifts or repair or maintain them. He was required to isolate and place a warning tag on any plant or equipment, including forklifts, and complete a MSR form in the event a fault occurred. Mr Afoa had also completed various training modules as part of the defendant's training regime, prior to the offence. These included mandatory computer based induction modules with respect to general safety, and plant safety and induction training. Documentation annexed to Mr Michaels' affidavit disclosed that Mr Afoa, like Mr Ung was aware that he was not permitted to operate equipment with warning tags attached, or repair equipment, and that he was to report any equipment or plant that looked unsafe.
21 Mr Michaels' affidavit also contains information on various safety codes, goals and procedures which the defendant had in place prior to the offence and which discloses that its commitment to occupational health and safety was taken very seriously. The defendant's board, for example, had an occupational, heath, safety and environment sub-committee which was responsible for overseeing the implementation of safety instructions and the monitoring and review of safety performance across the defendant's group of companies. The sub-committee, which continues in existence, meets quarterly and receives and reviews reports on significant injuries, incidents, compliance with legislative standards, and feedback from audits. The defendant also had in place at the time of the offence a comprehensive induction programme which included instructions on the interaction with forklifts and isolation and tagging procedures. It also had in place risk management programmes, an induction procedure and job safety analysis for contractors, as well as a rigorous auditing programme.