SafeWork NSW v ll Pastaio Pty Ltd

SafeWork NSW v ll Pastaio Pty Ltd - [2020] NSWDC 677 - NSWDC 2020 case summary — Zoe

[5]

The Removal of the Magnetic Interlock Safety System

The Mixer was capable of being operated with the lid open. This was because the magnetic interlock safety system had been removed. Someone with an understanding of the electrical wiring of the Mixer removed the proximity sensor that was supplied with the Mixer and installed a bridge in the wiring. This resulted in the magnetic interlock safety system being bypassed and the Mixer being able to operate normally while the lid was open. The removal of the safety proximity switch left a hole in the top of the casing of the Mixer.
Workers at the Premises were aware that the sensor on the Mixer had been removed and that the Mixer could be operated with the lid open. However, no concerns over the safety of the machine were raised with Mr Bacci as it was thought that an electrician would soon return with a new magnetic sensor. The magnetic sensor was not replaced and production continued for some time with the Mixer being operated with the lid up.
Mr Yuniar recalls the Mixer being out of order and Mr Sabanal explaining to him that following the repair works the machine would no longer automatically stop if the lid was opened. It then became a normal practice among workers at the Premises to operate the Mixer with the lid open. Mr Sabanal was fully aware of this practice taking place and also adopted it. The daily visual inspection report carried out on all machinery at the Premises did not identify the fault in the Mixer as an issue.
Operating the Mixing Machine with the lid open, or tampering with the safety devices built into the machine, was strictly prohibited by specific information provided by the manufacturer in the Manufacturer's Operation and Maintenance Manual.
The removal of the safety proximity sensor and installation of the electrical bridge exposed workers engaged by Il Pastaio to the risk of becoming entangled in the moving parts of the Mixer by allowing it to operate when there was no barrier between workers' limbs and the moving parts of the Mixer. Despite this, the company took no steps or measures to eliminate or minimise the risk of injury to workers.

[11]

Guidance Materials

Clause 203 of the Regulation provides "a person with management or control of a plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1".
Clause 206 of the Regulation provides that "The person with management or control of plant at a workplace must take all reasonable steps to ensure that all health and safety features and warning devices (including guarding, operational controls, emergency stops and warning devices) are used in accordance with the instructions and information provided by that person under clause 39".
Clause 208(5) of the Regulation provides "… the person with management or control of the plant must ensure: a) If guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced".
Section 4.1 of the Code states, under the heading, "Removal of guarding", that if any type of guarding is removed for the purposes of maintenance or cleaning, it must be replaced before the plant is put back into normal operation and that the plant should not be able to restart unless the guarding is in place.
Section 3.6 of the Code states, under the heading, "Inspecting plant", that inspection of associated work processes should be conducted regularly to identify any unsafe work practices associated with the use of plant. In addition, any control measures implemented, such as guards, must be regularly inspected and tested to ensure that they remain effective.
At the time of the incident, Il Pastaio did not manage the risks associated with the hazardous functions of the Mixer in accordance with the Code. Once the safety mechanism had been removed from the Mixer, Il Pastaio did not take steps to prevent workers from operating the machine until the safety feature was reinstalled. Il Pastaio allowed the machine to be operated regularly with its safety lid open. In particular, Il Pastaio - 1. did not confirm that the magnetic interlock safety system that was built into and supplied with the Mixer was in place and in working order before workers undertook work on the Mixer in accordance with cl 208 of the Regulation, and did not prohibit the use of the Mixer if the guard is not functioning and operational; and 2. did not confirm that the moving parts of the Mixer were not accessible to workers by maintaining an effective interlock on the safety lid which prevented the Mixer from operating if the guard was removed, in accordance with cl 206 of the Regulation.
Australian Standard 4024.1, 1-2014 Series Safety of Machinery dated November 2014 ("the Standard") provides that "the hazardous function of the machine shall only be possible when the monitoring detects the closed position of the guard and the engaged position of the locking element".
The Standard also states that "the defeating of interlocking devices can increase significantly the risk of harm and so far as practicable protective measures shall be taken to minimize the effect of such foreseeable misuse".
At the time of the incident, Il Pastaio did not manage the hazardous functions of the Mixing Machine in accordance with the Standard.

[15]

Response to the Incident

Two Improvement Notices issued by SafeWork NSW on 8 June 2017 were fully complied with within about a week of their issue.
Mr Bacci described the following measures taken by Il Pastaio post-incident: 1. Providing support to Mr Yuniar during his rehabilitation and providing a return to work plan for Mr Yuniar who continues to remain a full-time employee for Il Pastaio. 2. Employing a Quality Assurance Manager to re-develop Il Pastaio's safety systems, including its work health and safety system. 3. Engaging Mr Hammam at a cost of $28,600 to conduct a comprehensive review and upgrade of all of Il Pastaio's food safety and WHS policies and procedures. 4. Conducting a high-level risk assessment of all plant and equipment, with the assistance of Mr Hamman. 5. Conducting a risk assessment specific to the Mixer in its new location, with the assistance of Mr Hamman (DX1, p 256). 6. Development of a SOP for the Mixer and other SOPs for various other plant (DX 1, p 257). 7. Training workers to operate the Mixer in accordance with the risk assessment and SOP (DX 1, p 209). 8. Applying safety recommendations identified by Mr Kirwin Hamman, Managing Director of the Environmental Health Consultancy, who conducts an annual Hazard Analysis and Critical Control Points (HACCP) review. 9. Ensuring all staff members are certified with HACCP status by an external HACCP trainer annually. 10. Ensuring the new WHS system provides for the identification of defects in plant and equipment and a procedure for having those defects rectified, including the following requirements: 1. Daily inspections are to be undertaken by the Quality Assurance Supervisor and recorded on a Daily Equipment Inspection Record. 2. Electrical or mechanical faults reported by workers to the Operations Manager be recorded on an Equipment Fault Record form. 3. When a machine is under repair or being serviced, it must be tagged as faulty and those responsible must isolate and disconnect it from the power supply or remove the plug fuse. 1. Arranging for machinery parts that are not operating to be inspected, isolated and repaired by relevant experts within a short period of time, usually within 1-2 days.

[20]

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 The Queen (No. 2) [1988] HCA 14; (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] NSWCCA 242; (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] HCA 67; (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].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "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 the offending."
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 relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater 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 on assessment of all those factors."
Further at [42] his Honour continued: "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 [event] 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 little, if any, costs."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. The risk of a worker being seriously injured as a result of having a limb pinched in the moving part of a Mixer being operated with its lid up and without an interlock safety guard in place, was obvious and foreseeable. The risk was one that was known, or ought to have been known, to Il Pastaio. Further, there was guidance material available regarding the risk of using machinery without guarding devices. 2. The likelihood of the risk occurring was quite high. Il Pastaio failed to: 1. conduct and document a risk assessment in relation to the Mixer; 2. consult and review the relevant machine manuals; 3. prohibit workers from using the Mixer if the guard was not functioning and securely in place; 4. adequately inspect and isolate faulty machinery; 5. ensure moving parts of the Mixer were not accessible when the guard was not in place. 1. The potential consequence was the exposure of workers to a risk of serious injury. 2. The necessary steps to eliminate or minimise the risk were known and readily available to Il Pastaio. Following the incident, Il Pastaio promptly complied with all Improvement Notices relating to guarding and safety features, inspections and reinstallation of safety features. 3. As a result of the Il Pastaio's failures, Mr Yuniar suffered serious injuries that have had a considerable impact on his life. 4. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 5. While Mr Bacci himself did not know that the interlock had been bypassed and that the Mixer was regularly being operated with the lid open, senior personnel in the factory knew both things and yet did nothing.
I find that Il Pastaio's level of culpability is in the mid range.

[24]

Capacity to Pay a Fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [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.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
There was no submission that Il Pastaio did not have the capacity to pay a fine.
In relation to the size and scope of Il Pastaio's business, counsel for the defendant submitted that Il Pastaio is a small business. According to Mr Bacci's affidavit and the attached annexures, while there was a loss of $25,556 in 2017, the business remains profitable making a profit of $213,930 in 2018 and $38,102 in 2019 (DX 1, par 24). Further, the retained earnings at the end of the 2019 financial year were $1,816,221 and the total equity was $1,394,105 (DX 1, pp 53-54).
Counsel for the prosecutor submitted that Il Pastaio has experienced an increase in sales during the 2020 calendar year, despite the COVID-19 pandemic. This is reflected in the Income Review conducted by Il Pastaio's accountant, which records an increase in sales in the January to March quarter and the April to June quarter (DX 1, p 69). The relevant figures are reproduced below: Quarterly Sales Percentage Change January - March 2019 January - March 2020 $1,390,644 $1,714,979 23% April - June 2019 April - June 2020 $1,566,814 $1,804,479 15% July - August 2019 July - August 2020 $1,147,307 $934,709 -19%

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