SafeWork NSW v Williams Pressing and Packaging Services Pty Limited

SafeWork NSW v Williams Pressing and Packaging Services Pty Limited - [2018] NSWDC 409 - NSWDC 2018 case summary — Zoe

[9]

Systems of work before the incident

Williams and Phong had an undocumented system in place in relation to Forklift and high reach vehicle operations (Undocumented Forklift Procedure). The system included the following requirements: 1. all forklift and forklift high reach vehicle operators were required to, and did, hold relevant high risk operator qualifications and licences; 2. workers were required to stop and give way to forklifts and forklift high reach vehicles in motion; 3. a three metre exclusion zone applied around all forklifts and forklift high reach vehicles, which workers were not to enter; 4. forklifts and high reach vehicles were to be operated at low speed; 5. forklifts and forklift high reach vehicles were to be fitted with a horn and the horn was to be sounded when the vehicle was driven through the main thoroughfare into the warehouse from the loading dock, and also when entering and exiting an aisle; 6. where a forklift or high reach vehicle was to enter an aisle in the warehouse, all workers were to exit the aisle prior to the vehicle entering the aisle; 7. once a forklift or high reach vehicle had entered an aisle, workers were not to enter the aisle until the vehicle had exited from the aisle; and 8. as far as possible, forklift or high reach vehicle operations inside the warehouse and aisles were to occur either before the warehouse workers commenced work at 7.30am, or after workers had finished work at approximately 4.00pm.
Williams did not conduct a risk assessment or implement a safe work procedure that identified the reasonably foreseeable risks associated with workers working in common areas with a moving forklift, or require its contractors to do the same.
Williams did not provide any form of physical separation, such as moveable barriers at the entrance to the aisles where workers picked stock, to ensure an exclusion zone between forklift operators and workers.
Williams had an Induction Workbook, written in English, which employees were required to read and sign before commencing work. The information in the Induction Workbook was verbally explained in Vietnamese by Ms Pham to non-English speaking Phong employees.
Williams did not take sufficient steps, including consultation and engagement with contractors, to ensure all workers, including contractor workers, were adequately trained and supervised, and did not place themselves at risk of being struck by a forklift while working in the warehouse.
Workers were required to wear high visibility fluorescent vests whilst working in the warehouse.
A small flashing light and a horn were installed on the forklift.
While the warehouse had some pedestrian walkways marked, these markings were worn and not clearly visible in some areas including the aisles where workers picked stock.
Ms Ta commenced work in the warehouse a day prior to the incident and had no previous experience working in a warehouse.

[12]

Overview of the business

Williams is a family owned and operated business which provides integrated third party logistics services to the fashion industry. The services Williams provides include: warehousing of stock, inventory control, e-commerce and store-based order fulfilment, garment steaming and pressing services and stock ticketing and packaging services.
When the incident occurred, Williams had two directors. They were Mr Karatasos's mother, Sylvia Karatasos (Mrs Karatasos), and father, William Karatasos. At this time, Mr Karatasos was the General Manager of Williams. After the incident occurred, Mr Karatasos became a director and also the CEO of Williams.
Initially, Williams provided garment pressing and packaging services to the fashion industry. However, Williams has expanded its business over the years to include third party warehousing and logistics. Currently, and at the time of the incident, this has been Williams' main business. When business expanded to include third party warehousing and logistics, Williams transferred its operations to the Warehouse.
At the time of the incident, Williams employed approximately 90 workers. The number of employees fluctuates throughout the year and depends on how busy the business is. Of these 90 workers, Williams has approximately 60 to 70 full time workers.
In about September 2015 Williams contracted Phong to provide additional stock picking and packing services at the Warehouse. At the time of the incident, Phong employed approximately eight workers, including Ms Ta. Ms Pham was the team leader and supervisor of Phong and had worked in that role for around 10 months.
At the time of the incident, Phong workers picked and packed stock for orders placed with Williams. Phong workers were assigned by Williams mainly to pick and pack orders for t-shirts located in aisles seven and eight. On occasion, Phong workers were also assigned other work, such as picking product from an adjacent aisle, hanging garments and closing fashion bags for product transport. Presently, Phong employs about 10 workers and undertakes the same work which was performed at the time of the incident.

[13]

Work activities at the Warehouse - picking and packing

Mrs Karatasos, who manages day-to-day Warehouse operations, works on the shop floor in the Warehouse as a Production Manager, overseeing the allocation and conduct of the work done in and around the Warehouse. Such work includes the steaming, pressing, folding, sizing and ticketing of garments; the handling or picking and packing of stock; the replenishment of stock for picking and packing; the bulk manual handling of product, such as the unloading of containerised garments and accessories and the loading and unloading of delivery trucks. However, the primary work undertaken by workers is the picking and packing of stock.
Picking and packing is divided into the e-commerce section, where e-commerce orders are picked and packed; the hanging section, where hanging garments are picked and packed and the areas of racked storage, where garments and accessories are picked and packed.
Workers doing picking and packing will receive an order slip and fill the order by picking the named items of stock and then packing those items for delivery to the customer. Picking and packing usually occurs between 7.30 am and 4.30 pm from Monday to Friday. If there is a lot of work then picking and packing may occur on a Saturday or Sunday.
Picking and packing in the racked storage areas of the Warehouse is performed by work teams with a supervisor trained and experienced regarding a customer's product range. Every morning, the supervisors meet with warehouse operations management at around 6.30 am for work allocation. These meetings, on occasion, are used to report and discuss operational and safety issues in the Warehouse.
At the time of the incident, forklift movement and operations within the Warehouse were restricted to areas of racked storage. There were no forklift movements or operations in either the e-commerce or hanging storage sections. These restrictions still apply.
At the time of the incident, forklift movements and operations in the Warehouse to replenish stock were to be avoided as much as possible during the hours of 7.30 am and 4.30 pm while picking and packing work took place. Williams follows the same practice regarding replenishment work.
At the time of the incident forklift movements and operations within the Warehouse were limited to Forklifts. The same Forklifts are currently used in the Warehouse. The Forklifts are fitted with a flashing yellow light and horn. When the incident occurred, Williams employed five licensed Forklift drivers. Williams currently employs the same number of Forklift drivers. Williams currently keeps a copy of Forklift operator's licence in its personnel records.

[14]

Work health and safety management prior to and at the time of the incident

In about 2005, Williams contracted an occupational work health and safety consultancy business, WorkSafe In Business Pty Ltd (WorkSafe) to help develop Williams' work health and safety systems for use in its warehouse at Cook Road, Marrickville, New South Wales. Also in about 2005, Williams purchased an Occupational Health and Safety Saver Plus occupational health and safety package from WorkSafe. WorkSafe assigned an occupational health and safety consultant, Anne Condren (Ms Condren), to consult with and help Williams to develop and implement a new work health and safety system.
In about 2005, Ms Condren created work, health and safety induction, policy and procedure documents for Williams. Ms Condren also assisted Williams to consult with its employees to provide work, health and safety training. Ms Condren has visited Williams' various warehouses since 2005, including the Warehouse since approximately 2012.
These warehouse visits by Ms Condren included a work health and safety walk-through where Ms Condren reported to Williams' management any work health and safety issues that needed to be raised. Ms Condren would also raise any opportunities for work, health and safety to be improved. Ms Condren's visits also included a compulsory formal toolbox meeting with Warehouse supervisors and staff. At these meetings, Ms Condren addressed any issues she noted during her warehouse walk through, provided an update on recent developments in work, health and safety and conducted a formal work, health and safety training session on a specific work, health and safety topic. Ms Condren also consulted with staff if they had any work, health and safety concerns.
Work, health and safety consultancy services to Williams have continued. Williams has been provided with ongoing reviews of its occupational health and safety management and work, health and safety management documentation, procedures and processes.
At the time of the incident, attendance at toolbox meetings was mandatory for all workers, including Phong workers, in the Warehouse. The meetings usually went for around 30 minutes and workers could raise any issues relevant to their work at the Warehouse. At toolbox talks Ms Condren would provide workers with different work, health and safety training modules. Ms Condren would use a buddy system at the meetings so workers could discuss issues together in their primary language.
At the time of the incident, Mr Karatasos would do regular walks around the Warehouse floor and speak to staff about work safety.

[15]

Induction

Ms Condren, in about 2005, developed the induction material for the workplace and provided Williams with guidance on how to deliver inductions.
All workers engaged to work at Williams were required to undergo the induction process. The induction provided each worker with information and guidance in relation to the Undocumented Forklift Procedure.
There were three workers at Williams who would provide employees with inductions. These workers inducted a number of people, were familiar with the Warehouse and induction materials and had been trained in the Undocumented Forklift Procedure.
At each induction, a worker was provided with a copy of Williams' Induction Handbook and was taken through its content. The worker was also taken through the Warehouse and spoken to about work safety in the Warehouse and site-specific hazards, including Forklift operations, which they should be aware of.
After each induction, the worker was meant to return a signed acknowledgment stating that they had received a copy of the Induction Handbook and had read and understood its contents. However, at the time of the incident, copies were not always returned signed. A copy of each worker's induction was kept on each worker's personnel file.
In about July 2013 and June 2015, all of the Williams workers were re-inducted, with assistance from Ms Condren, following updates of the work health and safety system provided by Williams' consultants.
At the time of the incident, Williams required Phong to induct each of its workers in accordance with Williams' induction procedure and handbook prior to commencing work at the Warehouse. Phong workers were also required to sign the induction acknowledgement. However, Williams did not routinely follow up on Phong to obtain signed copies of the induction acknowledgements.
On 15 July 2016 Ms Pham provided Ms Ta with an induction to the Warehouse. Ms Ta's first language is Vietnamese. Phong chose Ms Pham to do Ms Ta's induction as Ms Pham also speaks Vietnamese.

[23]

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) (1998) 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 (1998) 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 relative 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 Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 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; 93 NSWLR 338. His Honour Justice Basten at paragraph 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 paragraph 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 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
My findings about the offender's level of culpability are based upon the following: 1. The risk of a collision between a forklift and a worker was foreseeable; 2. The offender failed to develop and implement a traffic management plan and train all workers on its contents; 3. The offender failed to provide adequate information and training to workers concerning the risks of working in areas where forklifts were operating; 4. The offender failed to ensure that workers were appropriately supervised; 5. The offender failed to consult with Phong in relation to training and supervision of its workers; 6. Ms Ta began working at the premises only the day before the incident, and had clearly not been properly trained. She was a vulnerable new worker at the factory; 7. There was a significant amount of guidance material which the offender could have consulted in order to minimise the risk of injury from a forklift; 8. The offender did have a safety system in place in relation to the movement of forklifts, but it was undocumented, and was not adequately conveyed to new workers in the factory such as Ms Ta; 9. The offender was the entity with the ultimate control over movements within the factory and the interaction between forklifts and workers.
I find that the offender's level of culpability is in the low end of the mid-range.

[27]

Parity

Phong was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Ms Ta was injured. Phong appeared before Strathdee DCJ on 11 September 2018. On 14 September 2018 Phong was convicted and her Honour imposed a fine of $30,000 plus costs of $18,000 - SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253. The submission was made in that case that if the offender was given a fine that it was unable to pay, the company would become insolvent, cease trading and dismiss its 15 workers. Having reviewed the evidence her Honour said at [47]: "But for the mitigating factors, the financial position of the offender and the costs for which it has agreed it is liable to pay, a higher penalty than that which I propose would be appropriate. In all the circumstances, taking into account the discount for the early plea of guilty, the appropriate penalty in this matter is $40,000, to be discounted by 25% for the early plea."
Counsel for the prosecutor in the present case submitted that Williams was more culpable than Phong. Counsel for Williams submitted to the opposite effect.
Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v R [2011] HCA 49 at [30].
The principle operates in the nature of a "check" required of the sentencing Court: DPP v Gregory [2011] VSCA 145 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v R (2010) 77 NSWLR 540 Justice Campbell said: "An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence."
The court should not use a co-offender's sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v R at [32]; Markarian v R (2005) 228 CLR 357.
It is appropriate for the court to consider the respective contributions of Phong and the offender. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125 at [241].
I find that Williams was more culpable than Phong. Williams controlled and ran its business from the factory where the injury occurred. Williams owned the forklift involved in the accident and employed its driver. Williams engaged Phong to supply workers to work in the factory in the business of Williams. It was for Williams to ensure that not only its employees, but also Phong employees, were safe within the factory in relation to the possibility of collisions between forklifts and pedestrians. Williams had control over every factor which affected the risk.
Having said that, it is difficult to apply the traditional principles in relation to parity of sentencing, where the other offender has received a reduced sentence because of impecuniosity. I determine that the appropriate sentence for Williams is a fine of $80,000 which will be reduced by 25% for the early guilty plea. I see no need to alter that sentence, taking into account the parity principle and the sentence imposed upon Phong by Strathdee DCJ.

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