Inspector Rebecca Nixon v George Weston Foods Ltd [2005] NSWIRComm 287 | Case summary

1 On 22 June 2003, George Weston Foods Ltd employed Aye Thike as a process worker at its Ermington plant. The Ermington plant was a factory known as "Speedibake" and on that day Mr Thike was attempting to remove incorrectly formed dough from a dough pocket in the pizza line of a Dough Proover machine when his arm became caught in the mechanism causing serious injury. 2 Following an investigation of the accident, Inspector Nixon commenced proceedings against the defendant, George Weston Foods Ltd, alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000. At an early stage the defendant entered a plea of guilty although there were continuing discussions about the appropriate description of the offence and a need to attend to an accurate description of the events leadings to the injuries suffered by Mr Thike. These considerations led to an Amended Application for Order being tendered at the commencement of the hearing to deal with submissions on penalty. The defendant adhered to its plea of guilty in relation to this Amended Application for Order. 3 The Amended Application for Order charged that contrary to s 8(1) of the Occupational Health and Safety Act 2000, the defendant failed to ensure the health safety and welfare at work of its employees including Aye Thike ("the worker") in that the worker, while attempting to remove a double dough from a dough pocket in the pizza line Dough Proover machine, sustained serious injuries including a broken right arm and radial and median nerve damage to the right arm. The amended Application for Order stated: (1) The defendant failed to ensure that plant provided for use by its employees, to wit, the machine, was safe and without risks to health when properly used in that: (a) it was not properly guarded to ensure that its dangerous and moving parts were not exposed at all times during its normal manner of operation; (b) the guarding on the machine was capable of removal while the machine was operating which was not in accordance with the requirements of Clause 8.2. 11 of the Australian Standard 4024.1, Safeguarding of Machinery Part 1 General Requirements; (2) Further, the defendant failed to provide and maintain a system of work that was safe and without risk to health in relation to the use of the machine in that: (a) the machine was operated when its guards were capable of being removed or adjusted manually without the need for any special tool; (b) the process of removal of dough from the proover pockets of the machine whilst it was still operating was unsafe. 4 The particulars of the breach were: (a) the defendant was at all material times an employer; (b) at all material times the worker was employed by the defendant as a process worker; and (c) the worker sustained serious injury when he was attempting to remove dough from the machine while it was still operating and his arm became trapped between a sprocket and chain. 5 The parties tendered an Agreed Statement of Facts setting out the relevant circumstances as follows (formal parts omitted): ... 4. At all material times the defendant was an employer. 5. At all material times the defendant employed Aye Thike ("the worker") as a process worker. 6. Situated within the premises was a dough proover machine within the Pizza Line. In the Pizza Line were a number of processes including the dough maker, the dough hopper, the dough divider and the dough rounder. From the dough rounder the dough was fed into the Dough Proover machine ... 7. At an inspection of the premises and the machine by WorkCover Principal Inspector Ram Narayan on 23 June 2003 the following observations in relation to the machine were made: (a) the electric drive chain sprocket of the machine was located on the eastern side towards its bottom right side. This sprocket was connected by a chain to another sprocket which drives the proover dough trays. There were two sprockets attached to the dough tray shaft at the drive end. The drive sprocket was 300mm in diameter and the dough tray sprocket was 350mm in diameter; (b) there were three rows of trays which were attached to the chain and sprocket at both ends. The dough trays go up and down driven by the motor driven sprocket which rotates anti-clockwise. The motor chain and sprocket guard was hung on two hooks only and was not held by bolts; (c) At the time of inspection the motor drive chain had been cut and a section of it was lying on the concrete floor. The dough tray chain was also cut. The right side of the dough tray chain was hanging vertically close to the sprocket. The left side chain was hanging vertically beside the sprocket. The end of this chain was touching the concrete floor. The guard for these chains and sprockets was held by one 6mm bottle and two hooks; (d) The middle bottom guard on the eastern side for the dough tray chain and sprocket was held by one bolt and two hooks. The guard on the left side was held by two hooks only and was not bolted; (e) On the western side of the machine there were three guards installed above the concrete floor. The left guard was held by two hooks and one bolt. The middle guard was held by two hooks. The right guard was held by two hooks and one bolt; (f) The machine also had an emergency lanyard line which was red in colour and fitted all around the machine at a height of approximately 1390mm from the concrete floor. 8. At all material times on and prior to 22 June 2003 the worker's duties involved him working on the pizza line and part of that job involved him in the operation of the machine. 9. The worker had commenced his shift on 22 June 2003 at approximately 12 noon. He had worked on the pizza line for a number of hours until approximately 3.20 pm when he was attempting to remove dough from the machine whilst the machine was still operating and his arm became trapped between a sprocket and chain. 10. The worker sustained serious injuries to his right arm involving a facture and some nerve damage as a consequence of the incident and was unable to resume his normal work for a period of more than seven days immediately following its occurrence. 11. At the time of the incident the worker had accessed the machine through an opening which was normally covered by a white guard but the guard had been removed by a person or persons unknown. 12. At all material times the removal of the white guard exposed the chain and sprocket drive of the machine. 13. At all material times on and prior to 22 June 2003 the white guard which was supposed to prevent access to the chain and sprocket drive whilst the machine was in operation was readily removed without the need to use any special tool. 14. At all material times on and prior to 22 June 2003 whilst it was not normal or approved procedure, employees working on the pizza line had on occasions removed the white guard covering the chain and sprocket drive in order to enable them to remove excess dough which had become stuck in the machine. 15. However, at all material times on and prior to 22 June 2003 the normal procedure to follow in such circumstances was to stop the machine's operation before removing the guard. The machine was not to be operated until after the guard had been replaced. This procedure was documented in writing in the Defendant's safety manual which was part of the Defendant's induction procedures. 16. At all material times prior to 22 June 2003 the worker had received training by the Defendant in occupational health and safety including induction training which included training in the procedure referred to in paragraph 15. 17. At all material times on and prior to 22 June 2003 there was no interlock device on the machine to prevent its operation once the guard to the chain and sprocket drive was removed. 18. The Defendant has at all times assisted the Prosecutor in the proceedings including the timely compliance with Improvement Notice 7-31570 dated 26 June 2003. The defendant has improved the safety of the machine by ensuring that the relevant guards which are placed on the machine are secured by bolts which can only be removed by the use of a specific tool. 6 Apart from the Agreed Statement of Facts the prosecutor tendered a factual report prepared by WorkCover Authority's principal inspector, seven coloured photographs of the plant in question, an extract from the Australian Standard AS 4024.1-1996 "Safeguarding of machinery" and a document recording prior convictions of the defendant including convictions of a number of associated trading entities being Tip Top Bakeries, Associated Baking, Gartrell White, Allied Bakeries (Fairfield), Jasol Australia, Western Milling and Speedibake. Issues as to the precise nature of some of the more recent convictions led to an adjournment of the proceedings to allow details to be collected and presented to the Court. Unfortunately, that exercise extended over a number of months and was only recently completed: a delay of that magnitude for this limited purpose is unacceptable. 7 For the defendant, its Operations Director - Speciality Foods, Mr Roger Millichamp gave evidence by way of affidavit. Mr Millichamp described the defendant's corporate structure and its principal operations as being undertaken in Australia and New Zealand. The speciality foods division was part of the defendant's baking division which employed over 5,000 people and had an annual revenue of approximately $800 million. 8 Mr Millichamp also explained the nature of the Speedibake business that operated out of the Ermington factory. Speedibake produced a large variety of baked and par-baked products that were sold in large supermarkets and fast food outlets. The Speedibake operation, as part of the defendant's group operations was traced to 1949 when George Weston Holdings Ltd purchased Gartrell White Pty Ltd. The Speedibake operation, subject to production needs, operated 24 hours a day, seven days a week and employed between 160-180 persons. The annual revenue for the Speedibake operation was approximately $40 million. 9 In being responsible for the day to day management of the speciality foods division of the defendant, Mr Millichamp had responsibility for sales, supply and distribution and employee relations including health and safety. The defendant as a whole and the Speedibake operation in particular was said to take extremely seriously the health and safety of its employees and that was a central part of the role of Mr Millichamp. The defendant expressed its sincere regret for the accident and the injuries suffered by Mr Thike, expressed its remorse and conceded its own failings in the conduct of this part of the operation. 10 Mr Millichamp described the defendant's occupational health and safety programme at Speedibake and noted that all employees received induction training, and depending on the nature of the employment, induction could extend from half a day or longer. That training covered the defendant's policies and procedures as well as its work practices and reference was made to an employee induction manual. At least one and a half hours' training was devoted to health and safety including the defendant's health and safety policies and the viewing of a safe manual handling video. It was noted that in the manual the defendant's policies were set out, including a section that stated that guards and electrical safety switches on machinery were provided for the protection of employees and further stating that machinery was not to be operated without the guards being in place. In another part of the manual it was stated that the machines had to be switched off after use at the main switch and that all machinery was to be tagged and locked out when it was being cleaned or maintained. There was a tag and lockout procedure which was part of the safe standard of operating procedure of the defendant. Employees were trained in the tag and lockout policy and procedure when they commenced employment and there was refresher training carried out from time to time. 11 The safety training with the defendant continued after induction and involved weekly toolbox meetings where specific issues could be raised from the floor by employees. There was a occupational health and safety committee comprising ten employees including a union delegate plus two management employees and meeting monthly, a consultative committee, fortnightly safety walks and specific training for employees involving periodic refresher training. Mr Millichamp emphasised that the defendant's commitment to its employees' health and safety was a "whole of organisation approach" and that the defendant continually strived to maintain the highest levels of safety in respect to its systems of work and practices regarding its plant and equipment. 12 Since the accident involving Mr Thike, the following changes had taken place at Speedibake: (a) the defendant immediately fixed new bolts to the guard which had been removed from the machine allowing Mr Thike access and resulted in his injuries. The bolts now placed on the guard could only be removed with the use of a special tool that remained in the custody of the maintenance manager who is designated to work on each shift. In order for the guard to be removed the person must obtain the assistance of the maintenance manager; (b) the defendant also restructured its operations to ensure that the shift supervisor, with overall responsibility for all lines operating on a shift, was now employed on each shift. This was to ensure that if a problem arose on a particular line and any employee required assistance, that assistance could be provided by the shift supervisor. It was noted at the time of the accident involving Mr Thike while a shift supervisor was employed, that supervisor usually worked only on one line and that was the line on which they were rostered; (c) the defendant engaged external professional consultants to undertake a general audit of the guarding of plant and machinery on the site. That audit identified some health and safety issues which were attended to by the defendant; (d) a full time occupational health and safety manager had been engaged with responsibility for site occupational health and safety. Prior to this engagement the defendant did not have a person whose role specifically encompassed the sites' occupational health and safety. The occupational health and safety manager is a member of the Occupational Health and Safety Committee and provides a report to the defendant's monthly management meetings on site; (e) after the incident the defendant reissued, separately from the manual, the health and safety provisions of the manual. The defendant's health and safety policy is now a stand alone document and emphasises in bold print that machinery is not to be operated without its guards being in place. Mr Millichamp proffered the opinion that these steps were likely to ensure that a similar accident would not happen again. 13 Mr Thike had commenced employment in June 2000 and had undertaken health and safety induction training. He had also received further health and safety training in accordance with the defendant's policies and there were a number of areas identified in the evidence in relation to that additional training made available to Mr Thike. Mr Millichamp stated that Mr Thike had been assisted through his rehabilitation phase and had recently been assessed as fit for suitable duties. The defendant was currently working with Mr Thike to find a suitable position for him. DELIBERATION 14 The prosecutor pointed out that because of the defendant's significant record the maximum penalty was $825,000. Attention was directed to the decision of WorkCover Authority of New South Wales (Inspector Dawson) v Waugh and Thora Sawmilling Pty Ltd (1995) 59 IR 891 at 100 for the proposition that when considering a statute giving expression, as a matter of public policy, to standards of safety, management had a positive obligation to inform itself of the circumstances of safe working. In the present case, the defendant had a system of checking the site on a fortnightly basis to identify any health and safety issues but that system did not identify the absence of an appropriate method of securing the guard. Further, a "guarding survey" carried out for the defendant by independent auditors after the accident identified other health and safety concerns. 15 There is force in the prosecutor's submission that the risk and the dangers arising from the risk were clearly foreseeable and that the objective seriousness of the offence was increased where there were simple and straightforward steps to remedy the defect. This was an unguarded machine: unguarded machines are notoriously dangerous, a fact recognised well before the passing of the Occupational Health and Safety Act 1983. The law has required machinery to be appropriately guarded to protect those operating them and the defendant had a policy that recognised that imperative. The policy however does not appear to have been effective, nor was it effective through its implementation by way of induction and further training. The evidence suggested that it was not unusual for this particular machine to be unguarded and there was no special tool required to remove the guarding. Lack of supervision on certain shifts meant that unguarded operation of the plant could continue undetected at a supervisory level for lengthy periods. 16 Quite apart from these unexplained gaps appearing in the defendant's system of operation, I am satisfied that there were simple and straightforward steps available to remedy the defects in the system. Ensuring that there was a supervisor actually supervising a shift and requiring a special tool to remove the guard on the machine and further ensuring that only specified supervisory staff had access to that tool were steps that could have and should have been taken before this incident which so severely injured Mr Thike. These considerations, including the matters referred to in the previous paragraph, lead to a conclusion that this was a serious breach of the Act. In this case the nature of the injuries suffered by Mr Thike provide evidence of the serious nature of the risk. At the time of hearing, Mr Thike had not yet returned to suitable employment and it was clear that he was unlikely to be fully fit for his previous employment. 17 In this case, both general and specific deterrence require consideration. The danger of working in and around unguarded machinery has been evident since the industrial revolution. It is such a longstanding and known danger that it beggars belief that workers are still injured because they are working on or near a piece of machinery that has not been properly guarded. It is obvious that employers generally need to be reminded of their obligations in this regard. In relation to specific deterrence, the defendant continues to be a large employer using plant and machinery which may cause injury to employees who are engaged to operate them. There is a clear need to remind this defendant of its obligations in relation to occupational health and safety generally, and in particular in relation to the guarding of machinery and the need for vigilance in eliminating risks prior to an accident rather than reacting to accidents on a case by case, ad hoc, basis. 18 In this context, the defendant's prior record of convictions requires close consideration. As indicated earlier, the defendant's record covers not only activities conducted in the name of George Weston Foods Ltd but also the defendant trading as Tip Top Bakeries, Associated Baking Corporation (previously Speeedibake) Gartrell White (a predecessor to Speedibake), Allied Bakeries (Fairfield), Jasol Australia, Weston Milling and Speedibake. That record covers convictions relating to workplace safety between 1978 and 2002. Those convictions number in excess of 50, admittedly over a considerable period of time. Approximately half of the convictions have been recorded under the Occupational Health and Safety Act 1983 and the present matter appears to be the first breach recorded under similar provisions of the 2000 Act. The vast majority of convictions have been recorded in the Chief Industrial Magistrate's Court and the Local Court: s 15(1) and s 16(1) offences have in more recent times incurred penalties largely between $15,000 and $20,000 with Speedibake being convicted in 2001 under s 16(1) and fined $20,000. The largest fine imposed on the defendant occurred in 2000 in relation to three offences under s 15(1) of the 1983 Act which resulted in a global penalty of $120,000 being imposed by the Court. Those offences relate to proceedings commenced in 1997 following a fatal accident which occurred in June 1996 and arose from the failure to adequately supervise contractors, a failure to provide and maintain a safe system of work and a failure to maintain a safe place of work. The offences occurred at an Enfield site operated by the defendant that involved several distinct business units, including Weston Milling. In that case, counsel appearing for the defendant had submitted that George Weston had in place a system directed at ensuring the adoption of safe practices by contractors on the site although that system had proved to be inadequate. Nevertheless, the existence of a system manifested the corporate concern for safety. Maidment J noted, amongst other matters, that George Weston had improved its safety systems "such that they appear to be of a higher standard" and were the subject of continuous monitoring with the aim of constant improvement. His Honour pointed out that George Weston however did not have a good record but that the fatality arose from an extraordinary set of circumstances which could not have been anticipated by the defendant. 19 The present offence is quite unlike the type of failure exposed in the proceedings before Maidment J.

[85] Although we accept that the sentencing of the appellant should occur in relation to the particular events with due regard to the particular circumstances of other offences included in its record, we do not accept that in assessing the appellant's previous record we should not have regard to relevant aspects of that record to the extent that they relate to plants other than the plant at which the present offence occurred. 22 The prosecutor submitted that the defendant had a significant history of prior convictions in relation to "guarding matters" and that these had occurred over a period of 24 years. Further, after the injury to Mr Thike an audit of the defendant's Speedibake premises revealed further problems with a guard that had to be corrected. It is also to be noted that in his affidavit evidence, Mr Millichamp made it clear that he was the operations director for the speciality foods division which was part of the defendant's baking division. He gave evidence not only about the Speedibake operation at Ermington but also gave general information about the nature of the defendant's corporate structure and operations. That evidence rather suggests that the defendant itself takes a broad view of the supervision and management of its related operations: by that structure it is well placed to be aware of risks to safety arising from the unguarded operation of machinery in its broader bakery activities. Indeed, Mr Millichamp stated that the defendant's commitment to its employees' occupational health and safety was a "whole of organisation approach". 23 The use to be made of prior convictions has received considerable judicial attention. In Veen v The Queen [No 2] (1987-1988) 164 CLR 465 (at 477-8), the majority of the Court (Mason CJ, Brennan, Dawson and Toohey JJ) stated that the antecedent criminal history of an offender was a factor which may be taken into account in determining the sentence to be imposed but that it could not be given such weight as to lead to the imposition of a penalty that would be disproportionate to the gravity to the offence: to do so would be to impose a fresh penalty for past offences. The majority went on to state: The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and never has been the approach of the courts in this country and would be at odds with the community's understanding of what is relevant to the assessment of criminal penalty. 24 In Weininger v The Queen (2003) 212 CLR 629 the High Court dealt with an appeal where, in imposing sentence on a first offender charged with drug offences, the sentencing Judge had stated that although the accused's prior good character (in that he had no prior convictions) must receive some recognition, given the evidence establishing his previous participation in cocaine importation he could not be treated as a first offender with the attendant leniency that that status usually attracted. In rejecting the appeal, the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [32]: Secondly, there is no reason to doubt the conclusion of the Court of Criminal Appeal that the primary judge had not sentenced the appellant for crimes with which he was not charged. Of course it would have been wrong to do so. A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration. 25 More recently, the Court of Criminal Appeal has given consideration to whether it was impermissible to use the prior criminal record as an aggravating factor in the sentencing process. In Regina v Brett Raymond Walker [2005] NSWCCA 109 (31 March 2005), the appellant had been charged with two counts of supplying a prohibited drug and accepted that his criminal history was "absolutely appalling". In the course of sentencing, the District Court Judge spoke of taking into account those matters required to be taken into account under s 21A of the Crimes (Sentencing Procedure) Act and noted that aggravating factors included the fact that the appellant had a record of prior convictions. 26 Speaking for the court, Johnson J stated: 27. Section 21A (4) of that Act provides that the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. It has been held that the effect of s 21A(2)(d) and (4) is to require the court to apply the common law principles in Veen v The Queen (No. 2) (1988) 164 CLR 465 with respect to use of a prior criminal record on sentence: R v Johnson [2004] NSWCCA 76 at paragraphs 32-37; R v Wickham [2004] NSWCCA 193 at paragraph 24. In R v Shankley [2003] NSWCCA 253 , Howie J expressed the principle in Veen (No. 2) as follows (paragraph 31): The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted. ... 30. The Crown submitted that, applying Veen (No. 2), the applicant's criminal record, which included convictions for possession, use and supply of prohibited drugs, was such that personal deterrence had to be given more significance than would otherwise have been the case: R v Berg [2004] NSWCCA 300 at paragraph 29. It was submitted that the applicant had not demonstrated that the sentencing judge's treatment of his criminal record was otherwise than in accordance with the applicable principles. 31. I am not persuaded that error had been demonstrated in this case in the use by the sentencing judge of the applicant's criminal history. As in Berg, there were parts of the applicant's criminal history which the sentencing judge would have been entitled to take into account in accordance with the principles in Veen (No. 2). 32. It should be observed, however, that a passing reference to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 , without reference to the precise manner in which the sentencing judge takes that factor into account on sentence, is unsatisfactory. A failure to explain the manner in which the factor is taken into account does not enlighten the sentencing process, in a manner which s 21A appears to have been designed to achieve. Nor does it inform the offender, the Crown and the community of the use which the sentencing judge has made of this factor. In a case where the offender's criminal history is not capable of attracting the principles in Veen (No. 2), error may be demonstrated which affects the sentencing process. It is important that sentencing judges keep firmly in mind the limited purpose for which an offender's criminal record may be taken into account, in a manner adverse to the offender, in the exercise of sentencing discretion . 27 In the present case I have concluded, on a consideration of the facts surrounding the injury to Mr Thike, that the present offence is a serious offence. The defendant's prior record is not available to increase the objective seriousness of the offence. The defendant's record, however, demonstrating a number of convictions for operating unguarded machinery and permitting machinery to be worked upon and maintained while not isolated from the power source, demonstrates that specific deterrence is a significant consideration in the setting of an appropriate penalty. I accept that in previous cases, as in the present case, the defendant has moved quickly to properly guard a machine following an incident or injury but that action has to be considered in the context of the defendant's long association with mechanised baking operations, the clear need to properly guard the machines involved and the simple steps available to achieve that objective. The defendant clearly needs to be more diligent in ensuring that its systems are effective in preventing injury to those who work in its factories. 28 In relation to subjective features, I accept that there was an early plea in circumstances where the particulars and surrounding facts were yet to be clarified and an adherence to that plea when the amended application for order was tendered in Court. It is appropriate in those circumstances that the defendant be given the full benefit of the early plea by receiving a discount on the penalty of 25 per cent. 29 In relation to other factors, there is evidence of the defendant's co-operation with the enquiries of the WorkCover Authority, the remedial steps taken shortly after the accident, and its contrition demonstrated by not only its early plea but the concern and involvement of the defendant in the rehabilitation of Mr Pike. These are all significant matters which should be taken into account in mitigating the level of the final penalty. ORDERS 30 Having considered the above matters, the Court makes the following orders: (1) The defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the amended Application in Matter No IRC 5828 of 2004. (2) The defendant is fined the sum of $110,500 with a moiety payable to the prosecutor. (3) The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement, as ordered by the Court.

Inspector Rebecca Nixon v George Weston Foods Ltd

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (10)

Cited By (4)