Inspector Webb v Namoi Cotton Co-op - [2003] NSWIRComm 29 - NSWIRComm 1997 case summary — Zoe

NSWNSWIRComm

Inspector Webb v Namoi Cotton Co-op

[2003] NSWIRComm 29

Industrial Relations Commission (NSW)|1997-05-28|Before: Boland J, Hungerford J, Fisher P, Hill J, Marks J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1997-05-28

Before

Boland J, Hungerford J, Fisher P, Hill J, Marks J

Source

Original judgment source is linked above.

Judgment (96 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Webb v Namoi Cotton Co-op [2003] NSWIRComm 29 revised - 17/02/2003 PROSECUTOR Inspector Russell Webb PARTIES : DEFENDANT Namoi Cotton Co-operative Limited FILE NUMBER: IRC 2012 of 2002 CORAM: Boland J CATCHWORDS : Occupational health and safety - Section 15(1) of the Occupational Health and Safety Act - Plea of Guilty - Cotton ginning site - Employee sustained fatal injuries when his head was caught between cotton bale and bale press - Foreseeability - Simple and straightforward means available to avoid risk - Maximum penalty - Deterrence - Duty owed to careless employee - Relevance of employer's remote location - Relevance of educational standard of workforce - Contrition - Early guilty plea - Conviction - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 Department of Mineral Resources of New South Wales (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) 90 IR 432 James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107, 20 May 2002 revised - 24/05/2002 Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 333 Inspector Haynes v James Glass and Aluminium Pty Limited (unreported, Fisher P, CT91/772, 773, 774 and 775, 20 May 1994) Veen v R (No.2) (1988) 164 CLR 465 at 477-478 Mears (1991) 53 A Crim R 141 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 R v Carter [2001] NSWCCA 245 R v Cassar [1999] NSWCCA 152 R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Sharma [2002] NSWCCA 142 R v H (1983) 3 A Crim R 53 at 65 CASES CITED : Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131 WorkCover Authority of New South Wales v BHP (1998) 83 IR 427 WorkCover Authority of New South Wales (Inspector Piggott) v Capral Aluminium Ltd (1998) 83 IR 211 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited [2000] IRComm 53 WorkCover Authority of New South Wales (Inspector Ankucic) v Namoi Cotton Co-operative Ltd (unreported, Hill J, Matter No. IRC97/2251, 14 July 1998) WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority v Namoi Cotton Cooperative Limited (unreported, Miller CIM, 18 April 2001) WorkCover Authority of New South Wales v Orica Australia Pty Ltd (2002) 116 IR 158 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Rail Infrastructure Corporation [2002] NSWIRComm 217 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 WorkCover Authority of New South Wales v State Rail Authority of New South Wales (2002) 115 IR 130 WorkCover Authority of New South Wales (Inspector Gordon) v State Rail Authority (unreported, Marks J, 27 March 1997, at 6 - 7) WorkCover Authority of New South Wales v TRW [2001] NSWIRComm 52 WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd (2001) 105 IR 236

[18]

· was attending the work site for the first time on 29 April 2000. At the time of the incident Mr Kelley was working with Mitchell Kilby, a seasonal employee who had been told to train Mr Kelley in the use of the press. Mr Kilby had completed the two day seasonal induction course, and then returned to the work site when it commenced operations for the first time that season on 26 April 2000. Mr Kilby had operated the press for approximately one and a half days prior to 29 April. Mr Kilby had received instruction on how the bale press operated from Mr Barry Elford and other permanent ginning staff. Mr Kilby was not made aware of the documented Standard Working Practices ("SWPs") that applied to the bale press, namely MV-SWP-013 and MV-SWP-025. Mr Kelley had assisted in manually retying bale ties on approximately 10 to 15 occasions prior to the incident. At the time of the incident Mr Kelley was supervised by Sean Kelly, a member of the permanent staff of the defendant and a trainee cotton ginner with a TAFE qualification in cotton ginning. Mr Kelly was a trained workplace mentor. He had also been assessed as competent to operate the bale press at the work site, and the site manager, Joseph Juchnevics, had participated in the assessment of Mr Kelly. Mr Juchnevics was ultimately responsible for the supervision of Mr Kelley. Although Mr Kelly had suggested to Mr Juchnevics that both Mr Kilby and Mr Kelley should be shown the SWPs, Mr Juchnevics said that it could be done later. Mr Juchnevics became aware that, during the morning of 29 April, Mr Kelley was approaching the press too quickly after a bale had been tied, thus activating the safety mats and causing the press to stop operation before it had completed the process. Mr Juchnevics instructed Mr Kelley to slow down. Mr Juchnevics and Mr Kelly stated that Mr Kelley was being trained by each of them, by Mr Kilby, and by assistant ginner Barry Elford. Mr Elford was not familiar with the SWPs, but was familiar with the press procedures utilised at the worksite. The usual process involved one person operating the bale press with other persons (such as Mr Juchnevics, Mr Elford and Mr Kelly) located in the console room where they could monitor the cotton ginning and pressing process and operate machinery as necessary for the ongoing operation of the gin. During the morning of 29 April 2000, Mr Kelley was not left alone at the machine. Mr Juchnevics, Mr Elford, Mr Kelly and Mr Kilby had all been involved in showing Mr Kelley how the bale press worked. At the time of the band breaking that led to the retying operation during which Mr Kelley was killed, Mr Kilby and Mr Kelley were operating the bale press. Two people were present because Mr Kilby was training Mr Kelley. Mr Juchnevics, Mr Kelly and Mr Elford were in the console room. Mr Kelly observed that a band had broken and proceeded to the bale press to assist in the retying operation. Mr Elford operated other machinery to slow the flow of cotton to the bale press area. At the time of the incident Mr Kilby and Mr Kelley were involved in manually re-tying one of the six metal bands on a cotton bale. Other presses operated by the defendant: · had their doors closed while retying bands, thus preventing access to the press whilst in operation;

[19]

· were fitted with operational pressure mats. With the doors open a bale being re-tied occasionally wobbles on the ram on which it is balanced and may appear to an inexperienced observer as if it could fall out of the press. It was the practice of persons employed at the work site to the knowledge of Mr Juchnevics, to steady the bale on the ram with their foot. That practice had been followed on the morning of 29 April 2000 and may have been observed by Mr Kelley. Although not free from doubt, it is likely that Mr Kelley approached the bale in order to steady it but used his shoulder instead of his foot, thereby putting his head in the vicinity of the top of the bale and the top of the inside of the bale press. Mr Kelley and Mr Kilby had both prepared the bale for retying. They both stepped back from the press. Mr Kilby then motioned to Mr Kelly, who was operating the bale press console, that it was all clear to re-activate the press. Mr Kelly then indicated using a "thumbs up" signal to Mr Kilby that he was operating the press. It was necessary to use hand signals because of the noise from machinery at the work site. There was no formal training provided either to Mr Kilby or Mr Kelley in relation to the use of hand signals. The opening through which Mr Kelley accessed the bale was the side of the press out of which the bales came after tying. Once tied, the bales are ejected out of the press on to two chain conveyors. There were two pressure mats in front of this opening. The smaller of those mats was not working on 29 April 2000. The chains had been fitted in or about 1996. At the same time a pressure mat was fitted between the chains. If someone stepped on the pressure mat the press automatically ceased operation. Mr Juchnevics removed the pressure mat a short time after it was installed because the bales tended to activate the mat when being ejected from the press, causing the chains to cease operation. At no time after 1996 was a risk assessment carried out of the press specifically considering the safety of persons re-tying bands with the doors open. A mirror was fitted in front of the press operator console in or about 1997 after an employee had been put at risk of injury when the press was operated while the employee was still working with the bale. The purpose of the mirror was to enable the press console operator to see the area at the front opening of the press, however only some of the area in front of the press was able to be seen with the mirror. It is possible that Mr Kilby was blocking Mr Kelly's view through the mirror of Mr Kelley, at the time of the accident. The ordinary procedure for retying a bale involves one person at the bale. Two people are necessarily present when an employee is being shown, or trained in, the job. There were no procedures in place where more than one person operated the bale press.

[58]

· The defendant's significant failures were: (i) the failure to ensure the employee attended a complete induction program including viewing the safety video (ii) having regard to the limitations of the substitute induction program utilised, the failure to ensure that the current induction assessment was used; (iii) the failure to ensure the employee was trained in the SWPs before being permitted to operate the cotton bale press; (iv) permitting a new employee who was not aware of the SWPs to train the employee; (v) the failure to train the employee in the use of hand signals in a noisy work environment, noting an absence of any system in that regard; (vi) providing inadequate supervision, particularly in circumstances where the employee had already demonstrated excessive enthusiasm in approaching the press; (vii) failing to provide a system of retying bales, specifically when more than one person were involved in the process, that ensured persons did not approach the press when in operation. (viii) the failure to provide a system of work in relation to re-pressing of bales that ensured: A. that the operator of the console was able to see all persons in the vicinity of the press; B. that all persons were a sufficient distance from the press so as to prevent access in a timeframe that precluded the console operator from stopping the press; C. that the press itself was closed before operating the ram. (ix) permitting a practice to occur that involved employees using their feet to steady the cotton bale on the ram while the ram was operating; (x) providing a press that did not have an operational stop mat directly in front of the press; (xi) failing to maintain one of the stop mats in an operational condition; (xii) failing to provide adequate equipment to ensure that the console operator had a clear view of the front of the press; (xiii) failing to conduct any risk assessment of the cotton press in circumstances where the stop mat in front of the press had not been in place for between three and four years. · In relation to foreseeability the risk to injury was not only foreseeable, it was foreseen: (i) there had been a stop mat at the front of the machine but it had been removed for reasons unconnected to safety issues; (ii) the mirror had been installed because an employee had nearly suffered an injury at the same press; (iii) other presses owned and operated by the defendant were fitted with operational stop mats, and were operated with their doors closed; (iv) the risk to seasonal workers had been explicitly recognised in the safety audit process; (v) to the extent that Mr Juchnevics had responsibility for the Myall Vale gin, the defendant was aware through performance reviews that Mr Juchnevics' safety record was unacceptable. It was also aware that the site had been downgraded in a safety audit because of lost time injuries, suggesting the defendant was on notice of occupational health and safety issues arising at the site; (vi) there had been a number of serious incidents at other sites in the years preceding April 2000 so as to put the defendant on express notice of the particular dangers of cotton bale presses. · The penalty should reflect both general and specific deterrence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. Whilst the defendant has recognised the need for improved safety, to some degree it appears to have been motivated by the impact of work injuries on its productivity and bottom line.

[80]

38 In other words, where an informed and objective observer, having regard to all of the circumstances, would reasonably have foreseen that a particular state of affairs or set of circumstances represented a risk to safety which is likely to result in serious injury or death and the defendant has taken no available action or measure to eliminate that risk, the court will regard the nature and quality of the offence as more serious than if the risk was not reasonably foreseeable. 39 The work environment in the press area at the Myall Vale gin presented a serious risk to safety and the risk was reasonably foreseeable given: (i) a stop mat that had been positioned in front of the press for the obvious purpose of shutting down the machine if any person came dangerously close to the press while it was in operation had been removed some three or four years previously. Other presses operated by the defendant were fitted with stop mats in working order; (ii) the doors of the press were left open while the bale is being rammed up. Other presses operated by the defendant had their doors closed; (iii) a previous crush injury suffered by an employee in a cotton press at the defendant's Boggabri gin on 30 April 1995. See WorkCover Authority of New South Wales (Inspector Ankucic) v Namoi Cotton Cooperative Ltd (unreported, Hill J, Matter No. IRC97/2251, 14 July 1998). The remedial steps taken by the defendant in relation to that incident included repair to the pressure sensor mats at the rear of the press and protective fencing was installed at the front or bail eject side of the press. Access through this fencing is via an interlocked gate which stops the press when the gate is opened. In my opinion, this incident should have put the defendant on notice as to the prospect of similar risks at other presses operated by it and steps should have been taken to that such risks were eliminated; (iv) a further hand injury on 17 April 1998 to an employee of the defendant at the defendant's Yarraman mill where the employee had his right hand caught in a mote press: see WorkCover Authority v Namoi Cotton Cooperative Limited (unreported, Miller CIM, 3 October 2000). Again, this accident should have warned the defendant of the risks associated with presses and put it on notice as to the need for a risk assessment of machinery at its gins but no assessment was done; (v) the defendant's awareness of the Myall Vale site manager's unsatisfactory performance in the area of safety by virtue of his 1999/2000 performance review, the gin's poor injury statistics and the deterioration from the previous year in the NSCA's scores relating to training of managers and employees in its report of March 2000; (vi) the presence of a young, untrained and inexperienced employee working in proximity to a dangerous piece of machinery.

[85]

44 The defendant's record of prior convictions is set out earlier in this judgment. The defendant submitted that in considering its record consideration should be given to its large and diverse workforce. In WorkCover Authority of New South Wales v State Rail Authority of New South Wales (2002) 115 IR 130 at pars [71] and [72] Walton J considered this issue as follows: 71. I agree with the observations of Wright J, President in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales (at [47]), and the submission of the defendant in this matter, that the defendant's criminal record must be examined in the context of the whole of the circumstances in which it finds itself. This should include the fact that the defendant previously employed a significantly larger workforce on a considerably broader range of operations than is now the case: WorkCover Authority of New South Wales (Inspector Gordon) v State Rail Authority (unreported, Marks J, 27 March 1997, at 6 - 7). 72. This is not to suggest that the size of the organisation is in some way to be considered justification for a failure by a defendant to meet its obligations or for having a lengthy record of convictions under the Act. Such a notion is untenable given that the abject purpose of the Act is to provide a safe work environment for the workforce of this State: see WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 and the cases cited therein. However, the Court will take into account the size and extent of the operations of the defendant when considering a prior record: WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales and WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd (2001) 105 IR 236. The existence of a lengthy criminal history is an aggravating feature when considering the penalty to be imposed for a particular defendant. It is not that the nature and size of the organisation can permit the Court to disregard those prior convictions as aggravating features of an offence. In my view, the nature and size of the organisation ought reflect on the degree to which the defendant's criminal history can be considered an aggravating feature of an offence. The practical reality is that the larger and more diverse the workforce, the greater the opportunity for accidents.