SafeWork NSW v Custom Bus Group Pty Ltd

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury death of worker
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty
SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011

Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Jahandideh v R [2014] NSWCCA 178
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
R v Borkowski (2009) 195 A Crim R 1
R v Thomson & Houlton (2000) 49 NSWLR 383
The Queen v De Simoni (1981) 147 CLR 383

Texts Cited: Australian Standard AS2359.2 – Powered Industrial Trucks
SafeWork Australia’s General guide for industrial lift trucks dated July 2014
SafeWork Australia’s General guide for workplace traffic management dated July 2015
SafeWork NSW Code of Practice - Managing the Risks of Plant in the Workplace published in August 2019

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
Custom Bus Group Pty Ltd (Offender)

Representation: Counsel:
E Kerkyasharian (Prosecutor)
S McIntosh (Offender)
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Wotton Kearney (Offender)

File Number(s): 2024/126210

Publication restriction: None

JUDGMENT

Introduction

1. Custom Bus Group Pty Ltd (Custom Bus) appears for sentence after pleading guilty to an offence pursuant to s 33 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act.

2. The maximum penalty for the s 33 offence is a fine of 5,770 penalty units ($594,021).

Facts

3. The parties have presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to Custom Bus to permit an understanding of the sentence imposed.

Background

4. Custom Bus operated a business designing, manufacturing and assembling buses. Buses were manufactured from raw materials at a manufacturing facility at St Marys (the site).

5. Custom Bus Support Services Pty Ltd (Custom Bus Support Services) provided labour hire workers to Custom Bus. It also processed the payroll of these workers.

6. At all material times Custom Bus Investment Trust owned a forklift truck, Clarke Model GTS33L (the forklift) and electric walker stackers.

Relevant workers

7. Tuaese Taufa was employed as a laser machine operator by Custom Bus Support Services to undertake work in Custom Bus' business or undertaking. Mr Taufa commenced work in late January 2021. He operated a laser cutting machine and was responsible for loading material onto the laser cutting machine by a loader, cutting parts and stacking them onto a pallet. Mr Taufa was not required to operate any forklift at the site.

8. At all material times Mr Taufa did not hold a High-Risk Work License to operate forklifts (the HRW license). However, he regularly operated the forklift to move parts or to restock the laser cutting machine.

9. Mark Paton was employed as a safety manager. He was responsible for meeting workplace health and safety (WHS) obligations at the site. Mr Paton had observed Mr Taufa driving the forklift and told Mr Taufa that he could not drive it without the HRW license. Mr Paton left his employment with Custom Bus in early February 2022.

10. Philip Dean and Jidendra Prasad were employed as supervisors. They replaced Mr Paton while Custom Bus was recruiting a new safety officer.

11. Mr Dean commenced work in 2006 and became a supervisor in 2018. He identified tasks, assigned workers, ordered material and trained employees on the machinery at the site. At all material times Mr Dean was Mr Taufa's supervisor and had observed Mr Taufa driving the forklift regularly. Mr Dean believed that Mr Taufa was licensed to use the forklift.

12. Mr Prasad was employed as a production supervisor in April 2019. At all material times Mr Prasad held the HRW license and supervised Mr Taufa with Mr Dean. He also had observed Mr Taufa driving the forklift and knew that Mr Taufa was unlicensed.

13. Richard Loadsman was employed as a machine operator. He held the HRW license and had operated the forklift to move material. Mr Loadsman had observed Mr Taufa regularly operating the forklift.

14. Daniel Hook was employed as a forklift operator. He held the HRW license and was responsible for loading and unloading trucks, organising and pre-staging deliveries. Mr Hook had observed Mr Taufa operating the forklift on multiple occasions.

The incident on 2 May 2022

15. At 6am on 2 May 2022 Mr Dean and Mr Taufa had a conversation. Mr Dean gave Mr Taufa a stack of drawings of required parts.

16. Mr Taufa started using the forklift that was parked unattended outside of the factory. Mr Prasad approached and had a conversation with Mr Taufa while he was on the forklift. Mr Prasad then walked away into the yard.

17. Mr Taufa continued to operate the forklift. He reversed the forklift in the yard past Mr Prasad, who was aware that Mr Taufa was still driving the forklift.

18. At about 6:05am Mr Hook started work at the site. He walked to Mr Taufa to retrieve the forklift and observed Mr Taufa driving the forklift transporting material to his loading bay.

19. At 6:30am Mr Taufa drove the forklift past Mr Hook, transporting a collection of loose pallet items to the laser cutting machine. Mr Hook followed him. Mr Taufa also drove past Mr Dean and Mr Loadsman who were walking in the backyard.

20. Mr Taufa's forklift accelerated, collided into metal parts and tipped over. Mr Taufa fell with the forklift which landed on its left-hand side.

Systems of work before the incident

Safe Operation Procedure - Forklift

21. At the time of the incident Custom Bus had in place a “Safe Operating Procedure – Operations All Forklifts” dated 3 May 2019 (SOP – Forklift).

22. Workers, other than forklift operators, operated the forklift although they were not required to do so. These workers did not receive relevant training or induction in the SOP – Forklift.

23. Managers and supervisors (Managers, at least one supervisor and some workers) were aware that Mr Taufa used the forklift regularly without the HRW license. They failed to prevent him from operating the forklift and to discipline him for using it when he was unlicensed to do so.

24. There was no documented “License Register” accessible. Workers, including managers and supervisors, did not know the identity of those who held the HRW license and/or were authorised to operate the forklift as part of their job function.

25. Keys were regularly left in the ignition when the forklift was left unattended. These practices were observed by and known to workers other than forklift operators. The SOP – Forklift did not specify controls to manage access to the forklift keys such as storing the keys in a designated lock box or other secure location.

Traffic Management Plan

26. Custom Bus did not have a traffic management related plan or policy in place at the time of the incident.

Workplace Health and Safety Policy

27. Custom Bus developed a document titled "Workplace Health and Safety Policy" to comply with its obligations under the Act. Scott Dunn, the sole Director of Custom Bus, signed the document on 5 May 2020. Managers and supervisors failed to do the following:

(a) ensure that only authorised workers with HRW license use the forklift; (b) discipline or take action to prevent any unlicensed workers observed operating the forklift from continuing to use the forklift; (c) inform workers that it is prohibited to operate forklifts without holding the HRW license; and (d) train or induct workers, other than forklift operators, who used the forklift in the course of carrying out their job function.

Guidance material available at the time of the incident

Australian Standard AS2359.2 – Powered Industrial Trucks

28. Australian Standard AS 2359.2 was available to Custom Bus. It relevantly stated:

When a truck is left unattended, the following requirements and precautions shall be observed by the operator:

...

(e) The motive power shall be turned off and the key removed (where fitted). In cases where other means such as a keypad are used to prevent use of a truck by unauthorised personnel, these systems shall be turned to turn off the power..."

SafeWork Australia – General Guide for Industrial Lift Trucks

29. SafeWork Australia’s “General guide for industrial lift trucks" dated July 2014 was available to Custom Bus. It provided information about managing health and safety risks arising out of industrial lift trucks including forklifts. It relevantly stated:

a. Provided that a person conducting a business or undertaking must ensure people who operate industrial lift trucks:

Hold a valid high risk work license for the type of industrial lift truck they are operating.

Are trained to operate the type(s) of industrial lift truck(s) and attachments they are using, and

Are provided with information, training and instruction on the hazards, risks and control measures relevant to the workplace.

b. Recommended that management systems should be in place to ensure:

Only those workers who hold a relevant high risk work licence and have received the required training and instruction carry out the work.

Work is supervised so safe work procedures are followed.

c. Identified that a common risk is for an industrial lift truck to tip over by rolling or overturning sideways. Identified that industrial lift trucks can tip over if the operator turns too fast or brakes or speeds up whole cornering or driving down a slope.

General Traffic Management Guide

30. SafeWork Australia’s "General guide for workplace traffic management" dated July 2015 was available to Custom Bus. It provided information on how to manage traffic risks at a workplace and recommended:

The creation of a traffic management plan for a large workplace with a high volume of traffic.

Before mobile plant is used in a workplace, anyone who will use it must be provided with the information, training or supervision necessary to protect them and others from the risks associated with traffic in a workplace.

Vehicle routes at the workplace should have a firm and even surface, be wide and high enough for the largest vehicle using them and be well maintained and free from obstructions.

Vehicle routes be provided that were well drained, maintained and lit, and free from obstructions, grease, and surface damage.

Code of Practice - Managing the Risks of Plant in the Workplace

31. "SafeWork NSW Code of Practice - Managing the Risks of Plant in the Workplace" (COP) published in August 2019 was available to Custom Bus. It provided that the PCBU must ensure that information, training or instruction provided to a worker are suitable and adequate having regard to:

the nature of the work carried out by the worker.

the nature of the risks associated with the work at the time of information, training and instruction, and

the control measures implemented.

32. The COP also stated that the person with management or control of powered mobile plant must manage risks to health and safety associated with the plant overturning or the plant colliding with any other person or thing, among other risks. Powered mobile plant may present a risk to health or safety if measures are not taken to prevent unauthorised operation.

Operator Manual

33. The “Operator's Manual” of the forklift stated that:

If you are going to leave the truck unattended: … 6. Remove the key..."

Systems of work following the incident

34. SafeWork NSW issued the following improvement notices to Custom Bus in response to the incident:

(a) Improvement Notice 7-416838 dated 3 May 2022 required Custom Bus to manage the risk from being struck by moving plant and/or vehicles at the workplace. (b) Improvement Notice 7-416841 dated 3 May 2022 required that Custom Bus must not direct or allow workers to operate forklifts unless workers provide written evidence that they hold a current high risk work license for this work. The notice also stated that Custom Bus may consider development of a register of HRW licenses for workers at the workplace, a system for ensuring workers hold a valid high risk work license before operating forklifts and restriction of access to keys/plant, preventing unauthorised forklift use.

35. In compliance with improvement notices 7-416838 and 7-416841, Custom Bus took the following steps:

36. In May 2022 Custom Bus updated the SOP – Forklift to include the following.

37. Training: operators must be trained in the sites traffic management SOP.

38. Forklift Keys: keys to operate the forklifts are kept in a designated locked box. The key to access the designated lock box is only held by approved staff that hold a current forklift license. Forklift keys are not to be left in the forklift at any time when the forklift is unattended. Forklift keys must be returned to the designated locked box at the end of each shift and/or when the forklift is no longer in use and the supervisor must be notified that this has been done.

39. Actions/methods: an operator must always have their forklift license with them while operating a forklift.

40. In May 2022 Custom Bus also developed a documented "Forklift License Register" which identified all employees who held a HRW license for forklifts. It identified that there were six licensed employees at the site.

41. In June 2022 Custom Bus prepared a "Traffic Management Plan" which identified locations where forklifts would be in use. Custom Bus also developed a related "SOP - Safety Traffic Management."

42. Custom Bus subsequently employed a new site safety officer.

Offender’s Case on Sentence

37. Custom Bus relied on an affidavit of Anthony Scott Dunn affirmed 22 April 2025. Mr Dunn was present in Court at the sentence hearing but not required for cross-examination.

38. The following is a precis of the evidence relied on by Custom Bus. I will try not to repeat matters already referred to.

39. Custom Bus was registered on 1 March 2018, but the business has been operating since 1955. It has about 150 employees, comprised of mostly permanent full-time employees.

40. Mr Dunn has been the Managing Director of Custom Bus since 1 March 2018 and has ultimate responsibility for its operations and performance. At the time of the incident, he had ultimate responsibility for ensuring compliance with Custom Bus’ WHS obligations. Employees who assisted him in this work include:

(a) Daniel Bale – Head of Operations; (b) Chris Parks – Lead Engineer; (c) Andy Mutton – Warehouse Supervisor; (d) Mark Paulson – Chassis Area Supervisor; (e) Daniel Black – Area Supervisor; (f) Aryn Stanley – Area Supervisor; (g) Philip Dean – Supervisor; and (h) Jay Prasad – Supervisor.

41. Mr Dunn deposed that he ensured compliance with the WHS obligations with the following steps:

(a) developing and maintaining safe work method statements in consultation with Custom Bus’ other managers and employees; (b) ensuring control measures are implemented to manage risks appropriately; (c) developing and implementing safety management plans; (d) maintaining records such as training and incident reporting; (e) conducting regular inspections on workers; and (f) identifying and adopting legislative and training changes.

42. On behalf of Custom Bus Mr Dunn expressed to the Court its unreserved acceptance of responsibility for its failure to adhere to the duty imposed by the Act. Mr Dunn stated that Custom Bus is truly sorry both to the Court and its workers.

43. On the day of the incident there were 14 full-time employees and four labour hire workers at the site. Mr Dunn further deposed that prior to the incident the following steps were implemented by the executive level:

(a) team leader meetings every second day where any safety concerns are raised and noted on a whiteboard for rectification; (b) monthly workplace inspections; and (c) monthly safety committee meetings.

44. Relevant safety systems in place prior to the incident are as follows:

45. Quality Management System dated 9 May 2019.

46. Training/Toolbox Attendance Sheet with corrective action plans dated 17 May 2019.

47. Incident Report Form/Injury Register dated 12 March 2019.

48. Daily Forklift Check Sheet dated May 2019.

49. Standard Operating Procedures- Forklift Rev 4 dated 3 May 2019.

50. Plant Risk Assessment Checklist dated 26 June 2020.

51. Safety Management Systems Manual dated 24 June 2020.

52. Completion of a Skills and Training Matrix for each worker.

53. Mr Dunn explained that employees are primarily employed as machinery operators. These workers perform consistent daily tasks and almost all products can be handled by hand or using manual trolleys.

54. DELETED.

55. DELETED.

56. DELETED.

57. DELETED.

58. Following the incident Mr Dunn deposed that in his capacity as the Managing Director he ensured that Custom Bus undertook changes to its safety systems to ensure a similar incident does not occur again. These relevantly include the following:

(a) a safe lock box for the storage of the forklift keys; (b) health and safety induction for all new workers; (c) weekly toolbox talks and training for site-specific tasks including forklift safety; (d) annual refresher training and competency assessments across key roles including forklift operators; (e) safety behaviour monitoring program; (f) maintenance of legal register and risk register; (g) DELETED; (h) increased leadership involvement through morning operation meetings and fortnightly WHS operation catch-ups; (i) new WHS Manager and Officer with particular expertise in industrial and manufacturing engineering; and (j) new and updated WHS policies and procedures:

(i) Forklift Licence Register for Custom Bus dated May 2022 (ii) SOP - Forklift Rev 5 dated May 2022 (iii) SOP - Traffic Management – Charles Street dated 11 May 2022 (iv) Traffic Management Plan – Charles Street dated 6 June 2022 (v) Fitness for Work Procedure dated 30 June 2022 (vi) Isolation and Tag Out Procedure dated 1 July 2022 (vii) Workplace Inspection Procedure dated 8 July 2022 (viii) Safety Consultation Procedure dated 26 July 2022 (ix) Forklift Driver Assessment dated 6 October 2023 (x) Safe Work Procedure – Chain of Responsibility COR Policy dated 18 March 2024 (xi) Safe Work Procedure – Drug and Alcohol Screening dated 26 March 2024 (xii) Safe Work Procedure – Walkie Stacker Assessment dated 1 July 2024 (xiii) Incident, Injury, Hazard, and Near-Miss Report Procedure dated 3 July 2024 (xiv) Emergency Evacuation Procedure dated 8 July 2024 (xv) Risk Assessment Procedure dated 18 September 2024 (xvi) Work Health and Safety Policy dated 18 September 2024 (xvii) Driver Monitoring Procedure dated 1 November 2024 (xviii) Safe Work Procedure – Road Vehicle Driver Assessment dated 3 December 2024 (xix) Safety Training and Competency Policy dated 13 December 2024 (xx) Hazardous Manual Task Policy dated 13 December 2024 (xxi) Safe Work Procedure – Shipping Container Loading and Unloading dated 13 January 2025 (xxii) Safe Work Procedure – Forklift Awareness dated 14 January 2025 (xxiii) Safe Work Procedure – Emergency Evacuation dated 14 January 2025 (xxiv) Safe Work Procedure – Situational Awareness dated 14 January 2025 (xxv) Traffic Management Plan dated 5 March 2025 (xxvi) Risk Management / Emergency Preparedness / Injury / Safety Induction Policy

51. DELETED.

52. Custom Bus cooperated with SafeWork NSW’s investigation in relation to the incident. It complied with the following notices issued by SafeWork NSW:

(a) Prohibition Notice 59366 (7-4163902) dated 2 May 2022; (b) Improvement Notice 7-416841 dated 3 May 2022; (c) Section 198 Notice 02052022-1 (7-417105) dated 3 May 2022; (d) Improvement Notice 7-417639 dated 13 May 2022; (e) Section 155(2) Notice 7-422674 dated 26 July 2022; (f) Section 155(2) Notice 7-432644 dated 13 December 2022; (g) Section 155(2) Notice 7-452664 dated 15 August 2023; (h) Section 155(2) Notice 7-452670 dated 15 August 2023.

53. Custom Bus has no other record of any injuries, incidents or convictions.

54. Mr Dunn deposed that as the only Australian manufacturer of electric buses, Custom Bus has been supporting the local economy through job creation and retention, and skills development with its apprenticeship programs and partnerships with schools and industry groups. It also continues to support local supply chain and export growth.

Consideration

55. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes *(*Sentencing Procedure) Act 1999.

Objective seriousness

56. The offences involve some objective gravity.

57. The existence of a risk to the health and safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13].

58. A Category 3 offence provided for by s 33 of the Act requires the proof of breach of the s 19(1) duty, by the existence of a risk to health and safety of a worker.

59. A Category 2 offence provided for by s 32 of the Act, a more serious offence, has a further element, that the breach of duty exposes a worker to a risk of death or serious injury.

60. This offence was detected as a result of an accident involving Mr Taufa. The prosecution does not allege that as a result of the offender’s breach of the s 19(1) duty that any worker, including Mr Taufa, was exposed to a risk of death or serious injury because that would prove a more serious Category 2 offence and offend the De Simoni principle: The Queen v De Simoni (1981) 147 CLR 383. I have not had regard to the incident involving Mr Taufa, the injury that he sustained or that anyone was exposed to a risk of death or serious injury in assessing the objective seriousness of the offence.

61. The offender submitted that when assessing the objective seriousness of the offence that I should not assess the seriousness of the risk posed, because that would also offend the De Simoni principle. I do not agree. The offence requires the existence of a risk to health and safety of workers. The severity of that risk is relevant to the assessment of the seriousness of the breach of duty. In the present case, the risk to the health and safety of workers that existed as a consequence of the offender’s failures to prohibit unauthorised use of forklifts and to provide adequate traffic management was a risk that a worker could be seriously injured or killed.

62. Custom Bus was responsible for the system of work at the site. The risk of a forklift collision and/or overturning was obvious and known to Custom Bus. The need for appropriate systems, training, supervision and risk management was also known, but poorly addressed. There was a large volume of guidance material available to Custom Bus at the time of the incident that outlined the need for the prohibition of unauthorised forklift operation, traffic management procedures and risk management of forklift operations. Custom Bus had a safe operation procedure for forklifts in place, but it was deficient. By its plea of guilty Custom Bus admitted that it should have had adequate systems in place, managed the site-specific risks, inducted the workers accordingly, ensured they were qualified to undertake the work at the site and provided effective supervision. The control measures that should have been implemented were simple, inexpensive and well known to Custom Bus.

63. I have taken into account the maximum penalty for the offence.

Deterrence

64. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

65. There is some need for specific deterrence in this case. Custom Bus still operates a business that potentially exposes workers to risks as a result of its operation. Conversely, Custom Bus has taken comprehensive and timely steps to improve its processes and safety system as a result of the incident.

Aggravating factors

66. There are no relevant aggravating factors.

Mitigating factors

67. Custom Bus does not have any record of previous convictions: s 21A(3)(e) Crimes *(*Sentencing Procedure) Act 1999. Custom Bus has been operating its business since 1955.

68. Custom Bus has good prospects of rehabilitation: s 21A(3)(h) Crimes *(*Sentencing Procedure) Act 1999. Custom Bus has taken steps to respond to the incident and has demonstrated that it has good prospects of rehabilitation.

69. Mr Dunn, on behalf of Custom Bus, accepted responsibility for its actions, expressed remorse and acknowledged the harm done by it: s 21A(3)(i) Crimes *(*Sentencing Procedure) Act 1999. I am satisfied that the offender is genuinely contrite.

70. Custom Bus entered a plea of guilty: s 21A(3)(k) and s 22 Crimes *(*Sentencing Procedure) Act 1999. Custom Bus is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The matter was listed for trial to commence on 23 June 2025 (1 day) and to continue on 18 August 2025 (10 days). On 17 June 2025, the offender accepted the prosecutor’s offer to plead guilty to the s 33 charge. The appropriate discount is 15%.

71. Custom Bus co-operated with the investigation conducted by SafeWork NSW: s 21A(3)(m) Crimes *(*Sentencing Procedure) Act 1999.

Capacity to pay a fine

72. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. Custom Bus' capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

73. Custom Bus did not contend that it had a reduced capacity to pay a fine.

Penalty

74. Custom Bus Group Pty Ltd is convicted.

75. The appropriate fine for the s 33 offence is $200,000 that will be reduced by 15% to give effect to the plea of guilty. I impose a fine of $170,000.

Other orders

76. I order that Custom Bus pay the prosecutor's costs of the proceedings, as agreed or assessed.

77. I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Amendments

03 October 2025

The following paragraphs have been deleted: [46]-[49]; [50(g)] and [51].