Mr MacGillivray said the defendant had conducted its own investigation of the incident and it had concluded that Mr Gray had not followed the procedure explained and demonstrated to him on induction. While he appeared to have locked the cabinet and removed the key, he had failed to turn off the power prior to locking the cabinet. In addition, he had not activated the safety switch at the mixer hopper before entering the hopper. Reactivation of the power switch that ultimately turned on the equipment was performed by an individual who was not part of the working party operating that particular machine at the time of the accident. The person who had turned on the equipment did so to help fellow workers and he appeared to have misunderstood why they were not operating the machine at the time. The procedure for the failsafe lock-out of the equipment therefore required amendment to ensure that, under no circumstances, was it possible for power to be available to any of the machinery during times of maintenance or cleaning.
19 A brief history of the defendant was provided by Mr MacGillivray. The previous owners of the premises had occupied the site since the mid-1960s and its land and buildings were purchased by Provimi Holding BV on 1 July 2001. Mr MacGillivray had joined the company as general manager on 1 August 2004 and until July 2005 the site was under the direct control of the operations manager. From August 2005, the site came under Mr MacGillivray's direct control pending the appointment of a new company production manager responsible for all three manufacturing sites in Australia. That appointment was made effective on 1 January 2006. From August 2005, Ms Tania Jackson was employed as a quality manager at the Forbes site to become directly involved in all aspects of quality and occupational health and safety. At the same time, Mr MacGillivray engaged a company called SGS as an external audit certification body for all quality, environmental, health, feed, safety and other certifications. The involvement of SGS commenced with a procedures audit of the company's system manuals. Another company, EQAS, was involved in supplying consultancy services to the defendant on all aspects of quality health and safety and environmental policies. The result of this was the development and existence of the company systems manual and in September 2005 SGS provided certification. Mr MacGillivray was appointed director of the defendant in 2004 and was still a director at the time of the accident. Mr MacGillivray stated that the board had taken steps to ensure the safety of its workers. Since being appointed a director, Mr MacGillivray said he was faced with the prospect of dealing with aging plant and equipment. There had been a significant commitment in the company's budgets since 2004 to allocate funds to remedy health and safety issues identified within the company, including the use of EQAS as a consultant to advise and guide the defendant in the comprehensive deployment of sound environmental quality and safety procedures across the whole company. He had instigated the closure of the manufacturing sites and the ongoing development of a new site to allow for more effective, efficient and less hazardous production methods. At the final commissioning of the new site it was intended to cease all production activities at the Union Street, Forbes plant. Mr MacGillivray also spoke of his active involvement in fostering a culture of safety and environmental responsibility. He spoke of the methods he had used in this task including formalising the operations and records of the occupational health and safety committee at the Union Street, Forbes site. Other methods to keep safety at the forefront had been the use of occupational health and safety inspections and checklists to highlight the potential problem areas. There was a formalisation of recording electrical testing and the inclusion of more detailed hazard identification checklists and examples were supplied. There was a more formal hazard/incident reporting procedure whereby staff members were encouraged to formally report any hazard or incident they may observe. He instituted electronic hazard control logs. He regarded himself as being passionate about occupational health and safety and that nothing in his working career had affected him more profoundly than the unfortunate death of Mr Gray.
20 In a separately prepared statement, Mr MacGillivray said that the defendant was a wholly owned subsidiary of a global company situated in the Netherlands being an expert in animal nutrition and in particular, nutritional and medical supplements to animal feed. There were in excess of 9000 people employed worldwide and in Australia there was an average of 63 employees. The company operated in Forbes and Tamworth in New South Wales, Macclesfield and Lameroo in South Australia, Victoria and Queensland. The Forbes operation had been acquired in July 2001 and the defendant had invested in the development of a new site approximately two kilometres out of Forbes. Its business operation would move from the Forbes site to Durham Street towards the end of 2006 and the Forbes site would be decommissioned.
21 Mr MacGillivray's duties extended to ensure compliance with Australian law, including occupational health and safety laws in jurisdictions in which the defendant operated. He attested to the fact that the defendant had no occupational health and safety convictions in New South Wales or under equivalent statutes in any other jurisdiction in which it operated. The Forbes site employed between 24 and 28 productions workers depending upon demand and there were five administrative staff. The quality manager, Ms Jackson, regularly visited the site and visited Forbes approximately monthly or every six weeks. Ms Jackson also attended the meetings of the site occupational health and safety committee. The committee at Forbes had been active in exposing a series of hazards and matters requiring remedial attention. Review processes had not found any fault with the "lock-down" procedure operating at the No 1 and No 2 mixers. The accident showed that there was room for further improvement in the lock-down system, which, until the time of the accident, was thought to be safe.
22 The defendant's enquiries and the inability to interview Mr Gray made it difficult to explain the direct causes for the lock-down not isolating the electricity supply to the agitators and the No 1 mixer. The company had retained electricians to install further lock-down switching mechanisms on the power supplies to all mixers to ensure, as far as possible, a failsafe lock-out while the hoppers were being cleaned. Mr MacGillivray also authorised the retention of an engineering firm from Parkes to install under the mixer lids a lockable mesh mezzanine cover fitted with cut-out micro switches that, when opened, would activate the switching mechanism and cut the power supply to the entire mixer.
23 Mr MacGillivray described his prompt reaction to being notified of the accident and the steps he had taken to have the company respond and the employees counselled. He had authorised immediate contact with WorkCover and had arranged for Ms Jackson to fly from Adelaide to Forbes to take control of the investigation. Contact was made with industrial relations consultants to the company as well as local police and the secretary of the National Union of Workers. He directed that the site be shut down and had reported to superiors in the Netherlands when he learned of Mr Gray's death. On arriving at Forbes on 10 July 2006 in the late afternoon, Mr MacGillivray convened a conference with the management and commenced the process of investigating the accident and authorised the undertaking of such remedial work as required, including as directed by WorkCover. On the morning of the following day, Mr MacGillivray had contacted Inspector Clothier.
24 Mr MacGillivray addressed all the staff and one-on-one counselling was authorised. With other representatives, including legal representatives, he attended Mr Gunn's home to invite him to undertake counselling and to assure him that he had the full support of the company. Counselling for Mr Gunn was then organised as was his attendance at the factory to assist in the defendant's enquiries into the accident. By mid-morning, Mr MacGillivray had met with other managers and had spoken to Mr Gray's family members (namely his three sisters, their husbands and Mr Gray's father). The family was offered the company's condolences as well as counselling services and they were accepted by the family. Counselling was to be continued and extended to Mr Gray's ex-wife and his five children, his current partner and his mother and the counselling was to continue as long as required. While he had undertaken, on behalf of the defendant, to meet the funeral or associated costs together with travel costs for two family members to attend the funeral, it was clarified in evidence that the family had paid for the funeral although some ancillary costs had been paid for by the defendant. Mr MacGillivray also arranged legal representation for the Gray family and ensured that the defendant's insurer was notified to enable any benefits available to Mr Gray's family to be processed quickly under workers' compensation and related legislation as well as under the general law. Mr McGillivray also attended upon the general manager of the Forbes Shire Council to advise the Council of what had occurred and steps undertaken by the defendant. He also kept the relevant union, the National Union of Workers, advised of developments as they occurred. Paid leave was authorised for members of the staff to attend Mr Gray's funeral. A full investigation into the facts and circumstances surrounding the incident had been authorised thus ensuring that any issues identified or system improvements could be implemented. Mr McGillivray had authorised a review of the implementation of the occupational health and safety systems at the Durham Street Forbes site to ensure those improvements could be implemented before production started at that site. He welcomed the contribution of the WorkCover Authority in reviewing any improvements made and had authorised complete compliance with two prohibition notices issued to the defendant. Steps were taken to have various benefits paid out to the family under their entitlements.
25 In his interview with Inspector Salmon, Mr Paul Hemming stated that he was employed by the defendant as the production supervisor having commenced employment with the defendant in early 2002. He had been present when the accident occurred and described his involvement in the process of rendering assistance to Mr Gray. Mr Hemming observed that the power box was locked at the time of the incident and that meant to him that the power was cut off to the mixer. Mr Gray had previously been employed as a contractor and helped with some maintenance but in that position did not have experience of the mixer plant.
26 Mr Hemming said he had worked on every machine in the plant and was aware of the isolation procedure to enable the mixer to be cleaned. That procedure was to turn the mixer "off external to the power board" using the red button - that button switched off all the machinery. A switch inside the cabinet was then to be turned off, the cabinet door closed and locked and the operator was to keep possession of the key. The mixture was then isolated for cleaning purposes. The cleaning process would require the lid of the mixer to be opened and to push the beater with a foot to get the ribbon into an appropriate position to clean. It was necessary to stand on the shaft and with the other foot, apply pressure to the outer blade fixed to the shaft. It was generally necessary to enter the mixer to enable the sweeping process to be effectively carried out. A formal induction was carried out for employees and it was not limited to the sweeping procedures. All other aspects of occupational health and safety were covered such as the "safety board", what to do when injured, who to contact for assistance and other more minor matters. Mr Hemming said that the induction process was documented and after being shown induction and procedures, the company generally placed new employees with an experienced operator so that it worked like a buddy system until they gained experience. There was nothing in the induction that pinpointed the buddy but Mr Hemming said that he did not put individuals into a situation without having somebody experienced with them and he did not "throw them in to the system". He did not identify a buddy assigned to Mr Gray. Mr Hemming regarded Mr Hosler as having experience and Mr Merritt, who had not worked there as long as Mr Hosler, was quickly gaining experience. Mr Hosler had been employed for a few months and Mr Merritt had been employed for six weeks. Mr Hemming thought that this was sufficient experience to operate the plant because it was a basic operation that even an inexperienced employee would pick up quickly. The significant changes to the guarding system had dramatically improved the safety of the cleaning operation. Prior to the accident, Mr Hemming regarded the isolation procedure as appropriate. There was pressure to maximise productivity in order to meet transport needs and customer requirements. As soon as the workforce finished one mix, they were told to get on to the next one.
27 In a separately prepared statement, Mr Hemming spoke of the method of operation and the batching of mixtures describing the work as involving a significant amount of manual handling. He described the induction process as explaining to employees the nature of their duties and they would usually be manual or semi-skilled in nature. The work was demonstrated, including using a buddy system, and he regarded the work as not being complex and that experienced employees were able to pick it up quickly. A checklist was used to guide new employees through the various aspects of the operation and involved demonstrating to the employees the health and safety precautions relating to the work they would be undertaking. The company's rules in relation to lifting and using lifting equipment were explained, while in relation to electrically operated equipment the electrical switching arrangements were described and demonstrated to employees. The use of the mixers for different batches meant regular cleaning was necessary and also required the mixers being shut down. Within the defendant company this was described as a lockout to enable the equipment to be thoroughly cleaned manually.
28 Mr Hemming was involved in the induction process for Mr Gray who was 42 years old and was regarded as experienced in relation to the type of duties to be undertaken at the defendant's location, including manual handling and general duties. Mr Hemming had know Mr Gray for more than 30 years and he was known for his mechanical skills in general maintenance, plant and equipment, as well as a diverse range of farming skills and skills associated with maintenance of plant and equipment in the agricultural industry. Mr Hemming had demonstrated to Mr Gray the manner in which the No 1 mixer was locked-out for the purposes of cleaning and this occurred on 3 July 2006. Mr Hemming described the lock-down process for the No 1 mixer. In this statement, Mr Hemming referred to a further precaution namely, the switch close to the top of the mixer hopper at the mezzanine level. He described this switch as being inactive in circumstances where the power supply had been cut off by the lockdown operation conducted at the switchboard but said it would operate to cut the power supply to the mixer when the power supply was otherwise live. Mr Gray had been shown both the process at ground level and the further isolation process at the mezzanine level.
29 Besides these statements relied upon by the defendant, there were also summaries of the thrust of his evidence and a description given of the company structure, including the management structure at the time of the incident. Figures provided for the financial years between 2003 and 2007 showed consistent net losses ranging from over $1.5 million in 2003 to over $3 million in 2007. Other documents portrayed the effect of the worsening drought from 2001 that was said to have adversely affected the defendant's profitability. It was immediately made clear that the financial losses and the drought were not raised to support a submission about the defendant's incapacity to pay a fine but merely to put in context the company's operation at the time of the accident. Reference was made to the corporate management systems prior to the accident, the management review meetings that had been undertaken and minutes were provided of the occupational health and safety committee indicating the matters that had been identified and had ultimately been addressed as part of the defendant's system. A number of matters had been identified, including the isolation of motors and the use of lockouts, especially in relation to the ribbon blenders. While these matters had been addressed, at no stage had it been suggested that the isolation procedures for the large mixers were inadequate or ineffective. An occupational health and safety checklist provided by a consultant to the defendants was accurately completed on behalf of the defendant but in the light of this accident, did not appear to ask the questions necessary to cause any investigation of the isolation procedures. Consultants had largely approved of the systems adopted by the defendant.
DELIBERATION
30 In addressing the objective seriousness of the offence, the defendant readily accepted that there was a clear systems failure. That failure was placed in the context of the defendant purchasing the business in deteriorating economic times and inheriting aging machinery. The defendant had determined to commission a new plant and machinery and had engaged consultants to review the safety system of the business and those reviews were largely favourable. It was frankly accepted that there were risks in the operation of the plant and many of them were identified, including by the occupational health and safety committee, and they were addressed. These matters can be accepted and it can also be accepted that this was not a case where there was a lack of safety systems but a particular failure relating to the isolation procedures for the mixers.
31 There was some considerable debate concerning the prosecutor's submission that the risks in the operation of the mixers were foreseeable and that those risks could be simply addressed, leading to the conclusion that the gravity of the offence was thereby increased. While accepting that the nature of the machinery and the operation requiring the isolation of power and also requiring an operator to physically enter the machine in order to clean it presented foreseeable risks, it was submitted those risks were identified and addressed by the defendant's systems of isolating the power. It was said to be significant that the defendant had recognised these risks and had addressed them, and that it could not be concluded that the defendant knew about the precise risk that lead to Mr Gray's death and did nothing about addressing that risk.
32 There is much to be said for the defendant's submission in relation to foreseeability, as far as it goes, but the essential feature of this breach was the fact that, although the defendant had policies about guarding dangerous machinery and having lockout devices, the isolation of the mixers was a manual operation in three undocumented steps. There was no cover over the entrance to the mixer whereupon removal, the power would be isolated. The very concept of employees having to enter this machine in order to clean it, and to do so at least several times a day, must have alerted the defendant that something more was required than the system that had been adopted. In the course of submissions, it was again readily conceded by the defendant that an employee who opened the power board box to operate the appropriate switch to isolate one of the mixers was faced with a "panoply" of switches from which to choose. This may have led to some of the confusion referred to in the evidence, especially amongst the new employees, as to precisely which switch needed to be turned off.
33 To the extent that the defendant relied upon the fact that, since approximately the 1960s, this system had worked without difficulty and that the accident would not have occurred if the system had been followed by Mr Gray, there are well settled principles that are against those propositions. As an employer the defendant's obligation was not only to be reactive to situations that arose in the day-to-day operation, but to also be energetic and active in seeking out and identifying potential risks before they occurred. Over a long period of time the apparent success of the system may be a question of luck, or may be due to a system of work where only experienced employees isolated this machinery and were well instructed in the method to be adopted. The defendant had recently come into ownership of this longstanding plant and on the day of this accident, the employees performing the work in relation to the mixers had very little experience with that plant: Mr Gray had one weeks' experience. He was the person who was isolating the power and was doing so without the assistance of the "buddy" system otherwise adopted by the defendant. Mr Gunn activated the mixer although the power board was locked, indicating that someone was working in or on the mixer. There was no evidence of anybody being actually allocated to Mr Gray as a "buddy". Further, it is not a satisfactory explanation in mitigation that the work was relatively simple and did not take much by way of training and that it simply did not require documentation. True it is that documentation can be over emphasised, but documentation is not required to be complex or lengthy. A simple step-by-step instruction, even posted in the power box, identifying the switches to be operated in order to isolate No 1 mixer or No 2 mixer would have been more effective, although the ultimate system adopted by the defendant after the accident is much more effective with its use of cut out devices. The sign fixed to the power board by tape also identified the fact that someone was working on or in the mixer - this was not part of the formal induction nor was it continued as a safety measure.
34 The defendant also accepted that the switch at the side or rear of the mixer that was capable of isolating each mixer was at a location not well known amongst the workforce, especially the newer members of the workforce. It was also frankly accepted that there was no assessment of the performance of the newer members of the workforce to see if they understood what was required of them when operating and attempting to isolate the mixer.
35 Unfortunately, the longstanding use of this system of isolation may have lulled the defendant into a false sense of security and a belief that the system was "fail proof" as submitted on their behalf but as earlier stated, their duty was to be active and diligent in seeking out risks and ensuring they did not occur. If there was a sense of complacency about this aspect of the operation, the evidence also suggests that there was pressure to meet production targets that affected the workforce and had the capacity to affect the way in which they performed their work. Under the system operating at the time of the accident an employee, under pressure of work and making choices from a "panoply" of switches in order to isolate the power to a mixer, was at risk of making a poor or inaccurate selection and this possibility was not adequately addressed by the defendant's system. The defendant accepted that its induction system, while it covered aspects of isolation, was inadequate. Importantly, the prosecutor points to the fact that there was no verification procedure in place to indicate that the item of plant could or could not be started once the isolation procedure was completed. Other matters of relevance going to the seriousness of the offence are: the necessity for an informal system of lockout using the sign as a warning and the removal of a fuse to affect isolation; the failure to comply with Australian Standards for guarding and locking out the machinery; the fact that the switches set up was confusing; that not all employees were shown the isolation switch behind the mixer; the lack of compliance with the "buddy" system; and the concentration in the evidence of the induction given to Mr Gray when it was evident that the induction given to Mr Gunn was seriously inadequate.
36 The charge to which the defendant has entered a plea of guilty details the comprehensive nature of the company's failure to ensure the safety of its employees in the operation of this machinery. The defendant has pleaded guilty to: improperly guarding the machinery; failing to have appropriate controls in place to prevent the mixing blades coming into contact with employees during the cleaning and maintenance operation of the plant; failing to ensure that there was a safety system of work to prevent employees from coming into contact with the mixing blades and the failure to ensure that employees could only enter the hopper of the plant once the plant had been isolated and locked-out; a failure to ensure an adequate risk assessment was undertaken in relation to working near the moving parts of the plant, the operation, cleaning and maintenance of the plant and the system of electric isolation of plant; the failure to ensure that employees were provided with adequate information, instruction and training in relation to the risks of moving parts of the plant during the cleaning, operation and maintenance of the plant, the system of electric isolation and lock-out of plant during the cleaning and maintenance of the plant; and, the failure as to ensure that the employees were provided with such supervision as to ensure their safety in the operation, cleaning and maintenance of the plant. Bearing in mind that it was an essential step in the defendant's system of work for an employee to climb into a mixer in circumstances where workers could be operating the adjacent mixer and were able to work at another level without necessarily knowing that a person was inside the mixer, it can be readily concluded that this was a serious breach of the Act.
37 In relation to deterrence, the defendant accepted that the primary consideration in this case was general deterrence. General deterrence is an important element of the sentencing process and in particular in relation to occupational health and safety laws. In this case, the defendant operated a business where the predominant class of labour was engaged in manual work. The operation required the utilisation of machinery such as the mixers and the moving and handling of bulk material by forklift and other devices. In such an operation, there are inherent dangers that need to be addressed. This case provides another example of a gap being exposed in an otherwise extensive system of safety in circumstances where a level of complacency may have crept into the procedures because of a lack of prior accidents. The case emphasises the need for employers to be alert and diligent in seeking out potential risks rather than simply reacting to accidents.
38 The issue of specific deterrence raises other considerations. The evidence is that the defendant has sold this plant and is in the process of realising its other assets in Australia. Its plan is to complete that task by the end of the calendar year and it is likely that the defendant will then be deregistered. On one view, if that plan is adhered to, there is little likelihood of the defendant offending again, at least in relation to this type of operation, while on another view, offending at all. The defendant did not give an undertaking that it would not, at some future time, seek to operate in a similar or in a different field but there is no evidence of a present intention to do so. In all the circumstances, while specific deterrence will be taken into account in setting an appropriate penalty, that element will represent a comparatively minor component of the ultimate penalty.
39 In relation to subjective features, it is apparent that the defendant moved the Court to initially list this matter earlier than otherwise proposed in order that it could enter a plea of guilty. While that plea was entered in circumstances, primarily to permit an early closure of the business, it nevertheless represents an early plea for which the defendant should be granted a discount of 25 per cent. There is an undoubted utilitarian benefit arising from that plea and the Court could well have been occupied for some time in a close consideration of the system of work and in particular, the isolation system and the actions of individual employees in the absence of such a plea.
40 The defendant has a recent history of operation and has engaged a medium sized workforce in a business that has inherent dangers in its daily processes. The defendant therefore comes before the Court as a first offender with a good industrial record and it is entitled to a measure of leniency on that account. The defendant by its early plea of guilty, the assistance provided to Mr Gray's family and the counselling made available to its other employees has exhibited a level of contrition. Importantly, the defendant worked closely with and co-operated with the WorkCover Authority during its investigation of this accident and promptly responded to notices issued by the Inspector. Following the accident, the defendant acted quickly to have guarding and interlocking devices fitted to the machinery to produce what appears to be a "failsafe" system and was able to do so at what was conceded to be a modest level of expenditure. This protective step was implemented very quickly, but is also indicative of the simple and effective steps to protect the workforce that could have been taken at a much earlier time. It is also a relevant consideration that the defendant had an established system of safety, although this accident demonstrated unsatisfactory aspects of that system. It had engaged consultants to assist in bringing about an effective system of safety. All of these matters will be taken into account in mitigating the ultimate penalty to be imposed.
41 Having reached the view that the plea of guilty was properly entered and that a conviction should be recorded against the defendant for a breach of s 8(1) of the Occupational Health and Safety Act¸ the Court turns to the victim's impact statements handed up by the prosecutor from five members of Mr Gray's family. Those statements demonstrate the sense of distress and loss suffered by the members of Mr Gray's family and their continued grieving for his loss. Those statements bring home to the Court some of the devastating consequences of workplace accidents and fatalities and remind the Court of the much wider consequences of workplace accidents. The sympathy of the Court is extended to the family for their tragic loss.
ORDERS
42 (1) The defendant, Provimi Australia Pty Ltd, is found guilty of a
breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 1026 of 2008, to which it entered a plea of guilty.
(2) The defendant is fined the sum of $150,000 with half that sum to be paid to the prosecutor by way of moiety.
(3) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as determined by the Court.