SafeWork NSW v Edstein Creative Pty Ltd

SafeWork NSW v Edstein Creative Pty Ltd - [2024] NSWDC 178 - NSWDC 2024 case summary — Zoe

[13]

Systems for the reduction of the Generation of RCS

The defendant had a number of documents relating to its systems of work at its Taree premises where the manufactured stone was fabricated from 2012 until October 2018.
There were no specific documented safe working procedures or safe work method statements in place at the defendant for installing manufactured stone products at custom premises or at commercial construction and refurbishment sites prior to 2019.
The defendant did not develop, implement, or enforce a safe work system for the reduction of the generation of airborne RCS dust for installation workers while performing the tasks in the relevant period that specified control measures.
In contrast, at the Taree premises, polishing and cutting processes were generally carried out using 'wet' techniques to minimise the generation of RCS dust. Automated machinery was used in the Taree premises to carry out most cutting and polishing process throughout the production line. This included that in 2017, the defendant introduced at its Taree premise equipment to reduce the generation of RCS dust.
The defendant's 'Skills Competency Evaluation Checklist' dated March 2011 did not list procedures relating to the use of control measures to minimise the generation of, or exposure to RCS, such as respiratory protection.
The defendant's 'Standard Operating Procedure Safe Material Handling' assessed the risk associated with 'airborne and resident dust' and listed control strategies including 'ventilation, staff awareness/training'. However, no information was provided in the document as to the worker's role in the implementation of those control measures or when they were to be applied.
The control measures referred to in the defendant's 'Standard Operating Procedure Kitchen Wet Polish' for minimising airborne dust were not contained in any safe work procedure applying to the installation work during the relevant period.
The various fabrication and installation guides provided to the defendant by suppliers of manufactured stone, as well as the MSDS and SDS documents also provide information on measures that could be implemented to reduce the generation of airborne RCS dust while performing tasks. These included: 1. Adequate natural ventilation 2. Mechanical extraction ventilation 3. Use of 'wet' tools and 'wet' cutting methods; and 4. Use of dust control systems such as vacuuming
Throughout the relevant period, the defendant had implemented the above control measures to varying degrees and at varying times in its Taree facility.

[14]

System for the reduction of the exposure of workers to the inhalation of RCS

The defendant did not develop, implement or enforce a safe work system for the reduction of the exposure of the workers to the inhalation of RCS dust while performing the tasks during the relevant period, including: 1. The provision of appropriate PPE; 2. The clean-up and disposal of dust and/or slurry created while performing the tasks; 3. The decontamination of workers clothing after performing the tasks.
The Skills Competency Evaluation Checklist dated March 2011 did not list procedures relating to the use of control measures to minimise exposure to RCS such as respiratory protection.
The 'Edstein Creative Policy Manual' dated May 2018 identified numerous policies. It included a 'Personal Protective Equipment Policy' which stated that the defendant provides PPE to its employees which includes but is not limited to - 'respiration and filters'. It did not contain information on the type of respirators or filters provided.
From in or about November 2018, the defendant introduced new systems for the reduction of the exposure of workers, including AB, to the inhalation of RCS while performing the tasks. This included issuing AB with a 'Honeywell 770030AL Half Mask'. However, information was not provided as to the fitting, operation, and maintenance of the mask.
In or about August 2019, the defendant introduced control measures to minimise the field technicians' (installers') exposure to RCS. These included: 1. Cutting manufactured stone outside; 2. Use of water for dust suppression during cutting; 3. Water applied to work area during internal polishing; 4. Training in the use of respiratory protection as per AS/NZS 1715; 5. Powered air-purifying respirator when cutting manufactured stone; 6. Full-face respirator during installation; and 7. Fit testing of PPE.
The 'Edstein Creative Positive Pressure Mask Allocation Procedure (2019)' provided some general guidance and information for selection, fitting, safe use, training, and maintenance of respiratory personal protection equipment.
Pursuant to clause 50 of the Work Health and Safety Regulation 2011 (NSW) and clause 50 of Work Health and Safety Regulation 2017 (NSW), the defendant was required to ensure that air monitoring was carried out to determine the airborne concentration of crystalline silica at its workplaces (it being a substance to which an exposure standard applied) to determine whether the airborne concentration exceeded the Workplace Exposure Limits or monitoring was necessary to determine whether there was a risk to health.
Prior to July 2019, the defendant did not ensure that air monitoring was carried out to determine the airborne concentration of crystalline silica at its workplace, using handling or generating crystalline silica.
There was no baseline medical or provision of medical records to assess the potential change in health status of installers, including AB, by ongoing health surveillance. Such medical assessments would likely have provided indicators of increasing frequency and severity of symptoms that could have pre-empted disease progression. Legislation requiring health monitoring for crystalline silica was in place during the relevant period.
Between February and March 2019, the defendant sent 31 workers to iCare Dust Diseases Care ('DDC') for health monitoring for crystalline silica.
A May 2019 report also outlined current and future control measures that were being trialled, implemented and/or proposed by the defendant for reducing RCS exposure. These included a ban on field cutting and modification/restriction of the types of products that could be taken into the field.

[19]

Objective seriousness of the offence

The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]: '…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.'
Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
The duties of the defendant require that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81].
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). His Honour Justice Basten, under the heading 'Assessment of Risk' said at [34]: 'The sentencing judge commenced his consideration with the proposition that '[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.' However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.'
His Honour further observed at [42]: 'The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.'
I accept that section 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under section 32 of the WHS Act is considered in the context of the gradation of offences contained in sections 31-32 of the WHS Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a section 32 offence include: 1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City [34]; 2. The availability of steps to eliminate or minimise the risk: Nash v Silver City [34]; 3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City [34] and [53]; 4. Whether the risk was known or ought reasonably have been known to or identified by the offender; 5. Whether the risk was an obvious or clear one; and 6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).
However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying: 'It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.'

[20]

Matters are relevant to determining the culpability of the defendant:

The offence arises from the defendant's failure to comply with its duty in section 19(1) of the WHS Act, in that AB was exposed to a risk of serious illness, by failing, during the relevant period, to take reasonably practicable steps to eliminate or minimise the risk of AB acquiring silicosis, as a result of repeated inhalation of airborne RCS dust created by tasks associated with the installation of manufactured stone products, including cutting, grinding, drilling and polishing.
The plea of guilty represents an acknowledgment of its failures which gave rise to AB being exposed to the risk, and of the manifestation of that risk in the serious occupational illness, silicosis, acquired by AB.
The admitted admissions of the defendant are contained in paragraph 13 (a) - (f) of the Amended Summons. The particularised measures are admitted by the defendant to be reasonably practicable steps which it ought to have implemented, but failed to do so, that gave rise to AB being exposed to the risk to his health and safety.
The defendant was aware of the relevant hazards and risks associated with the exposure of its workers to RCS dust in the relevant period. It had taken a series of measures to minimise the creation of that hazard and the exposure to the risk in relation to one group of its workforce (fabrication workers who worked in the defendant's factory premises), but failed to do so in relation to another group of its workers, namely its installation workers who worked off site, where the installation of the pre-fabricated pieces were installed, in particular AB.
Having this knowledge of the nature of the occupational illnesses that could have been acquired by its workers, in particular silicosis as a result of repeated inhalation of RCS from cutting manufactured stone products, this represents a serious failure on the part of the defendant.
The diagnosis of silicosis in AB represents a manifestation of the risk.
The risks associated with the associated with the defendant's installation workers being exposed to high levels of airborne RCS dust whilst undertaking cutting of manufactured stone products, were not only foreseeable, but were foreseen by the defendant.
The hazards and risks associated with the cutting of the manufactured stone, and in particular the creation of airborne RCS, were known in the industry during the relevant period and were known by the defendant. Long term exposure of workers in general to RCS dust can lead to silicosis which is incurable, progressively disabling and potentially fatal.
The defendant was aware that tasks that involved the use of handheld power tools to trim, shape and cut slabs of manufactured stone products could generate amounts of RCS dust in the breathing zone of its installation workers.
The defendant was also aware that its installation workers, in particular AB, used various power tools such as drills, electric saws, electric polishers, jigsaws, electric planes, grinders and cutters while performing installation work with fabricated manufactured stone.
There was significant information published in scientific literature and industry publications stating that dry cutting activities performed on manufactured stone was known to generate RCS at significant concentrations that were well in excess of the relevant work place exposure standard which can result in silicosis.
Such significant information also identified a range of control measures to minimise the production of airborne RCS during the fabrication and installation processes, and minimise the exposure of workers to dust.
Although the defendant had knowledge of the hazards and risks associated with cutting and manufacturing stone products, and had some systems in place to protect the safety of workers who were working in the Taree premises where the manufactured stone was fabricated, it failed to ensure that these systems applied to its installation workers in the relevant period.
The defendant had no specific documented safe working procedures or safe work method statements in place by the defendant for installing manufactured stone products at customer premises or at commercial construction and refurbishment sites prior to 2019.
In contrast to the Taree premises, where polishing and cutting processes were generally carried out using 'wet' techniques to minimise the generation of RCS dust, and automated machinery was used to carry out most cutting and polishing processes, the defendant did not develop, implement or enforce a safe work system for the reduction of the generation of airborne RCS dust for installation workers or for the reductions of the exposure of installation workers to the inhalation of airborne RCS while performing cutting tasks.
I accept that the defendant whilst cognisant of the risks of exposure to RCS dust, had in place a system to protect its workers in the factory, it did not ensure that such systems were enforced off site in the installation process. This is not a defendant who knew of the risks and ignored them, but a defendant that failed to ensure that its systems were followed and enforced at any time that its workers were modifying the stone at the installation site.
It was not until July 2018 that the defendant embarked upon a program of personal exposure monitoring of its workers. This initially involved air monitoring being carried out to determine the airborne concentration of crystalline silica at its Taree premises. This was not done for the installation workers until August 2019.
In 2018 the defendant introduced a policy to require its workers to undergo health monitoring, and between February and March 2019, the defendant sent 31 workers, including AB to DDC for health monitoring for crystalline silica. Further testing was performed in 2020.
I accept that the measures to which the plea has been entered were measures that were suitable and available, and were able to be implemented by the defendant during the relevant period, and had they been so, the risk would have been eliminated or at least minimised.
The gravity of the potential risk to safety flowing from the breach is relevant to the assessment of the gravity of the breach and the culpability of the defendant.
Although the damage or injury caused by the breach does not itself dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis from a breach unlikely to have such consequences.
The risk existed over a significant period of time, despite the defendant's knowledge of the risks and the availability of the measures available to address the risk were neither expensive nor difficult to implement. For those reasons I conclude that the offence is an objectively serious one.

[21]

Deterrence

In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in section 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 ('Bulga') at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
General deterrence must be a significant feature of the sentence imposed upon the defendants. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the stone masonry industry and working, in particular, with manufactured stone and the industry itself can be described as a hazardous.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.
However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.
After the dealings with SafeWork NSW with regard to the levels of dust, and AB's condition having been brough to the attention of the defendant by iCare, the defendant undertook some serious steps to make the workplace safer. In excess of $1,000,000.00 was spent purchasing machinery which ensures the workers are a distance away whilst the stone is being cut, and another machine which keeps workers away from any dust emanating from the cutting of the stone.
The defendant, upon receiving the notice from iCare, commenced discussions with the University of Western Sydney about investigating dust levels at the factory and sought advice with regard to keeping workers safe.
In 2019 the defendant reviewed its own policies with regard to installation of the cut stone off site and introduced a policy whereby no adjustments or polishing of the stone were to be done off site. If such adjustments were to be made, the defendant insisted that the stone be returned to the factory and the work be done there under the much more stringent conditions. I accept that this policy was strictly enforced, and that one employees was sacked for performing such work for a period of 30 seconds on the installation site.

[23]

Mitigating factors

In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following: 'We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.'
The defendant has not been subject to any prior convictions under work health and safety law: section 21A(3)(e) of the Sentencing Act.
I accept that the defendant is a corporate citizen of good character and has made significant charitable donations and contribute to the community: section 21A(3)(f) of the Sentencing Act. I note that stonemasonry is no longer a subject offered at TAFE, and that the defendant is meaningfully involved in training and educating tradespersons in this vocation. To that end they offer a number of apprenticeship/training opportunities each year.
I accept that the defendant is unlikely to reoffend (section 21A(3)(f) of the Sentencing Act) as it has undertaken significant changes and is even more focused than before on the health and safety if its workers. This is not a defendant that had no regard to safety at all - it has systems in place to protect its workers, but there was no enforcement of such policies when the workers went to perform the installation tasks during the relevant period.
I accept that the defendant has demonstrated a very strong commitment to workplace safety, and has very good prospects of rehabilitation: section 21A(3)(h) of the Sentencing Act.
I accept that the defendant has demonstrated its remorse, and accepted responsibility for the offence: section 21A(3)(i) of the Sentencing Act. I note that Mr Gray and his wife, and their three children were all present in court, and I believe that this was because of how seriously they take this matter, which is to their credit. The affidavit of Mr Gray deposes as such.
The defendant tendered five character references, which were very similar in their wording. Nonetheless, they depose to the good character of the defendant and I have taken that into consideration in coming to my determination.
The defendant co-operated with SafeWork NSW during its investigations: sections 21A(3)(m) of the Sentencing Act.
Prior to the entry of the plea there was a stay of the proceedings by his Honour Judge Russell SC whilst the particular of the charge were finalised. Once that was done and an amended summons was filed, and the defendant entered a guilty plea. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383 and sections 21A(3)(k) and 22 of the Sentencing Act.

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (7)

Cases Cited (26)