Freedom Foods Pty Ltd (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty pursuant to section 19 Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Mark Torbuck to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $1.5 million.
[3]
Facts
The Agreed Statement of Facts can be summarised as follows.
The offender conducted a business manufacturing gluten and allergen free cereal and snack products. Mr Torbuck had been employed by the offender as an Operator since 28 September 2013.
On 28 July 2014, Mr Torbuck was rostered to commence work at 2pm on the Flake Roller Machine (the machine) with Paul Puntoriero. The Flake Roller Machine formed part of the extrusion line.
On 28 July 2014 Mr Torbuck was working as a Main Extrusion Line Operator and had been in this role for approximately 1 week. He had been undergoing on the job training in this role for approximately 2 months prior to the incident, however he had not been assessed as competent to work on the machine.
Trent Pearse, a Production Supervisor, had been rostered to work on 28 July 2014 between 2pm and 10pm. However, Mr Pearse in fact commenced his shift at 12:33pm and finished at 4:52pm.
The Flake Roller Machine was approximately 2.15m high, 2.2m wide and 1.3m deep. On the top of the machine was an opening measuring approximately 800mm by 120mm, underneath which were two opposing rollers. An in-feed chute had been fitted over the top of the opening and was held in place by four spring-loaded clips. One of those clips was missing on the date of the incident. There was a steel platform over the top of the machine with an attached staircase, to allow employees to deliver product into the top in-feed chute.
At approximately 5:30pm on 28 July 2014, while Mr Torbuck was working alone, the machine became blocked. He kicked the chute to stop product from continuing to pass into the machine and then unclipped and removed the in-feed chute. He used a broom handle to try and clear the blockage. When this was not successful, Mr Torbuck opened the rollers of the machine, undid the clips securing the in-feed chute and removed the chute. The machine did not stop operating. Mr Torbuck balanced himself on top of the machine and the mobile work platform. He used one hand to hold onto the platform whilst using the other to clear the blocked product. As he did so he slipped and his hand fell into the rollers. The rollers grabbed his fingers and started turning.
Mr Torbuck yelled and a nearby cleaner activated the emergency stop switch. A few minutes later additional employees attended and manually wound the rollers back to release Mr Torbuck's hand. Mr Torbuck was taken by ambulance to Griffith Base Hospital before being airlifted to Canberra Hospital.
The incident removed the skin, tissue and tendons on Mr Torbuck's hand and required the amputation of all 4 fingers on his right hand. Mr Torbuck further suffered torn ligaments in his right arm and shoulder. He underwent several unsuccessful skin grafts, hand surgery, physiotherapy, hand therapy and counselling.
Mr Torbuck returned to work on 20 October 2015 on restricted duties 15 hours per week. The offender created a truck driver and site maintenance role for Mr Torbuck and leased a truck for this role at a cost of $8,625.23.
Mr Torbuck has not attended work since 2 December 2015 but remained employed by the offender.
The offender paid for Mr Toburck's wife and children to travel to Canberra, and for their food and accommodation whilst he was in hospital. The offender also provided financial assistance to Mr Torbuck's mother who cared for his children when he and his wife went to Melbourne for him to undergo further surgery.
The offender purchased and installed fittings and made adjustments at Mr Torbuck's home to accommodate his injury.
The offender arranged fundraisers for the purchase of a car for Mr Torbuck and made a financial contribution towards the purchase price. In around mid-August 2015 the offender paid for four employees to deliver the car to Mr Torbuck in Canberra. The offender also paid for repairs to and servicing of the car.
Between the date of the incident and 29 November 2015, the offender made payments to Mr Torbuck to top up his workers' compensation payments. These top-up payments amounted to approximately $16,500.
The offender has committed to creating a role for or redeploying Mr Torbuck at any of its site in New South Wales or Victoria, and covering relocation costs if required. The offender has offered to assist Mr Torbuck in undertake training and further education. The offender has secured a secondment at a retail hardware store for Mr Torbuck and has agreed to continue paying his wages should he accept this position.
[4]
Training and Systems
The offender trained employees working on the extrusion line through on the job training with an experienced buddy.
Mr Torbuck undertook induction training with the offender upon commencing employment, re-training in February 2014 and upon returning to work in October 2015. During induction employees were instructed not to remove guards from machines whilst in operation.
At the time of the incident Mr Torbuck had not been given in-depth instruction in operating the machine, or seen the Standard Operating Procedure or the operator's manual for the machine. He had not been given instruction or seen a documented procedure about how to clear a blockage in the machine.
At the time of the incident Mr Torbuck had not been trained in isolation procedures and did not know how to lock out or tag out the machine.
There were no systems in place at the time of the incident to prevent unauthorised removal of the in-feed chute.
Following the incident the offender took a number of steps including
1. training employees in a revised Safe Operating Procedure for the machine;
2. developing a skills matrix which it displayed at the premises and shows the core training employees must have completed to work in each production area;
3. amending the Enterprise Bargaining Agreement to include disciplinary sanctions for breaching the new safety provisions; and
4. Employing a Group Workplace Health Safety and Environment Manager.
[5]
Modification of the Machine
The machine was installed at the premises in around 2009. At that time the in-feed chute was bolted in place. Between 2009 and the incident the machine was modified by replacing the bolts with hand operated spring loaded clips. No risk assessment was conducted prior to making these modifications.
Following the incident the offender conducted a risk assessment of the machine and made a number of modifications.
The spring loaded clips were replaced with bolts to secure the in-feed chute and an electrical interlock was fitted to the chute so that the chute could not be removed until the machine has stopped.
Key locked doors were installed on the machine and keys were placed with maintenance staff to prevent unauthorised entry.
Safety switches were installed on all removable guarding on the machine, including the in-feed chute. These switches can only be released once the rollers have stopped moving.
[6]
Standards and Regulations
At the time of the incident there were relevant standards applicable to the use of plant.
Managing the Risks of Plant in the Workplace Code of Conduct (July 2014) identified engineering controls, such as the installation of guards to prevent contact with moving parts of machinery, as a method of controlling the risk.
The Work Health and Safety Regulation 2011 (the Regulation) required, pursuant to cl 208(2) that a person with management or control of plant must ensure that when access to an area of plant requiring guarding is necessary during operation that there be an interlocked physical barrier.
[7]
The Offender's Evidence
The Offender read an affidavit of Timothy Moses affirmed 25 July 2016. Mr Moses was cross-examined before me at the sentence hearing.
Mr Moses is the General Manager of the offender and performed this role at the time of the incident.
In his affidavit Mr Moses gave evidence that the offender commenced operations in April 1995 and has not been previously prosecuted for any work health and safety matter.
At the time of the incident it was the policy of the offender to ensure that there was one supervisor rostered on at the premises at all times. On 28 July 2014 Mr Pearse was required to work from 2pm to 10pm. He did not apply to start or leave early on that day.
Mr Moses provided that if Mr Pearse wanted to commence or finish work early on a given day he would have been required to apply to Mr Thomas for leave. Applying for time in lieu or leave was described as being a two stage process. The first stage was to verbally seek approval from a supervisor, with the second stage being a formal process in which a leave form was signed by both parties prior to that leave being taken. Those forms are kept. Mr Moses provided that this form would have been most definitely required if Mr Pearse was to take time in lieu.
Mr Moses gave evidence in cross-examination that he looked for the forms to see if any request for time in lieu had been made by Mr Pearse for that day, however that none were found. Mr Moses also made inquiries with Mr Thomas after the incident about whether a leave application had been made.
Records showed on the day of the incident Mr Pearse clocked into work at 12.43pm but did not clock out. Mr Moses said that it would be unusual for an employee not to clock in or out. The failure to clock out by Mr Pearse has been investigated by the offender and Mr Pearse had been issued with a warning for failing to follow company process.
In cross-examination Mr Moses gave evidence that the policy to ensure that a supervisor was on-shift at all times was written in the Business Policies and Procedures of the offender. There would be a handover of shift between supervisors to ensure that no supervisor left early.
The machine was used most days and following the incident the offender developed a Safe Work Method Statement for unblocking the machine. Interlock devices were placed on the in-feed chute of the machine and similar devices were placed on other machines. The offender reviewed its machines to ensure compliance with the relevant standards.
Mr Moses provided that supervisors undergo formal training every 6 months, whilst other employees receive refreshment training every 12 months. All employees are assessed on compliance.
[8]
Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[9]
Objective Seriousness of the Offence
The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
The risk posed to employees when using machines with movable parts is an obvious one. The machine was not used everyday and had become blocked approximately 7 or 8 times in the preceding year.
Employees had been generally instructed not to remove guards from machines whilst they were moving. Mr Torbuck had not been trained in isolation procedures or how to clear blockages in the machine. He had not been trained in how to safely operate the machine. No supervisor was present at the time as Mr Pearse left early without the authorisation of the offender. Any systems in place at the time of the incident were behavioural controls only. The system failed because Mr Torbuck was not trained on the machine and the supervisor was absent. But for the incident it appears that the measures in place went a substantial way towards ameliorating the risk.
The risk in this case could have been eliminated by the use of an interlock device which prevented the in-feed chute from being removed whilst the rollers underneath were moving. The offender fitted such a device following the incident.
Mr Torbuck sustained injuries to his right hand, arm and shoulder, and amputation of four fingers. He has required ongoing treatment including surgery. The risk was one of serious injury.
Mr Torbuck put himself in a position of peril by attempting to clear the blockage in the way that he did. He acted contrary to his training not to remove the guards on machinery whilst it was in operation.
The offence is in the low range of objective seriousness.
[10]
Deterrence
The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers 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].
There is also a need for specific deterrence, however in this case it is substantially reduced for the following reasons.
First, the offender took immediate steps to improve the safety of the machine involved in the incident, as well as other machines at its factories. The offender also took a number of steps which I have outlined already to improve safety across the business.
Second, the prior conduct of the offender in its regular training of employees and policy of 24 hour supervision on-site, demonstrated a commitment to workplace health and safety.
Third, the offender has accepted responsibility for the breach of its duty which caused the injury to Mr Torbuck. It has provided extensive support to Mr Torbuck and his family over the two year period since the incident occurred.
Specific deterrence remains relevant, despite my finding that the offender is unlikely to re-offend because the offender continues to employ a large workforce over a number of sites: Bulga Underground at [185].
[11]
Aggravating factors
There are no relevant aggravating factors.
[12]
Mitigating factors
The offender does not have any record of previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This factor should be assessed by reference to the fact that the offender has been in operation for 21 years and operates five factories.
The offender is unlikely to re-offend: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. At the time of the offence the offender had in place a number of systems to ensure that employees were adequately trained and that supervisors were on-site at all times, although those systems failed on the date of the incident. Following the incident the offender took significant steps to improve safety on its sites. The offender has demonstrated a genuine commitment to workplace health and safety. I am satisfied on the balance of probabilities that the offender is unlikely to re-offend.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender took a number of steps after the incident to provide support to Mr Torbuck including financial support, modification of duties to assist him in returning to work, and assistance in undertaking further education and training. I am satisfied on the balance of probabilities that the offender has accepted responsibility for its actions and demonstrated genuine remorse and contrition.
The offender entered an early plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: 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 prosecutor accepted that the offender entered a plea of guilty at the earliest opportunity and is entitled to the maximum discount on penalty. In the circumstances, the appropriate discount for the plea of guilty is 25%.
It was submitted on behalf of the offender that I should take into account cooperation with investigating authorities as a mitigating factor pursuant to section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. This factor was not conceded by the prosecutor and was not the subject of any evidence at the sentencing hearing.
[13]
Penalty
The offender is convicted.
The appropriate fine is one of $100,000 that will be discounted by 25% to take into account the early plea of guilty.
I impose a fine of $75,000.
I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order that the offender pay the prosecutor's costs as agreed in the sum of $25,000.
[14]
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Decision last updated: 01 August 2016