Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Batty v Australia Meat Holdings Pty Limited [2004] NSWIRComm 2 PROSECUTOR Inspector Ian Batty PARTIES : DEFENDANT Australia Meat Holdings Pty Limited FILE NUMBER: IRC 6214 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 - Meat processing industry - Fatality - Plea of guilty - Penalty imposed LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 1983 Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9) CASES CITED : Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4) Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Tyler v Sydney Electricity (1993) 47 IR 1 Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 HEARING DATES: 12/05/2003 DATE OF JUDGMENT: 01/27/2004 PROSECUTOR Mr D Jordan of counsel Solicitor: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT Mr D Officer, QC Solicitor: Mr C Zucker Lee & Lyons Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Tuesday 27 January 2004 Matter No IRC 6214 of 2002 Inspector Ian Batty v Australian Meat Holdings Pty Limited Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 2 1 Mark Greentree was employed by Australian Meat Holdings Pty Limited ("the defendant") as a maintenance foreman at its beef cattle fattening operation located at Caroona Feed Lot situated at Spring Ridge Road, Caroona in the State of New South Wales. On 3 December 2000 Mr Greentree was apparently trying to free a blocked auger. In order to do so Mr Greentree was required to work from a platform some 2.7 metres above the concrete floor of the factory. Mr Greentree fell from the platform and received severe head injuries. He died on 10 December 2000 as a result of those injuries. 2 The defendant was prosecuted by Inspector Ian Batty ("the prosecutor") of the WorkCover Authority of New South Wales under s 15(1) of the Occupational Health and Safety Act 1983. In an application for order the prosecutor alleged that the defendant failed to ensure the health, safety and welfare at work of all its employees, in particular, Mr Mark Greentree, in that: (a) It failed to provide or maintain a system of work which was safe and without risks to health for the process of maintenance work including clearing blockages on an auger at heights at the said site in that Mr Mark Greentree, was present on a raised work platform at the feed shed at the site without any fall protection; (b) It failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety at work of the Defendant's employees in that Mr Mark Greentree was not wearing any safety harness or lanyard whilst carrying out maintenance work approximately 2.7 metres above ground; (c) It failed to provide by fencing, scaffolding or other means of fall protection for securing the safety of any person working at a place, namely, the raised work platform of the mill at the said site from which persons, namely, Mr Mark Greentree, would be liable to fall a distance of more than 1.8 metres. 3 The defendant pleaded guilty to the charge. 4 The prosecutor tendered an agreed statement of facts. The statement provided details of the incident as follows: 8 At all material times the Defendant owned a machine called a Roto-mixer which had two augers feeding into the top of the Roto-mixer. The Roto-mixer was located in the feed mill at the site. Between the augers was a steel mesh work platform approximately two (2) metres in length, one and a half (1.5) metres wide and approximately 2.7 metres above ground level. The ground below consisted of a cement floor. There was a handrail around one side of the platform about 1.1 metres high and made from 40 mm round water pipe and a mid-rail approximately seven hundred (700) millimetres high made from thirty (30) millimetre round water pipe. On the other side of the work platform was an auger. Each auger was driven by an electric motor mounted at the back. 9 On 3 December 2000 there was a stoppage of an auger feeding into the Roto-mixer. Mr Griffiths, whose responsibility on that date was to supervise the feed mill, had instructed Mr Greentree to attend the site as Mr Griffiths suspected that the motor on the auger was burnt out and would need to be replaced. Whilst Mr Griffiths instructed Mr Greentree to carry out this work, he did not specifically instruct Mr Greentree as to how the work was to be performed. 10 Mr Mathers, who was ordinarily Mr Greentree's direct supervisor, saw Mr Greentree at approximately 9am on 3 December 2000. Mr Mathers was informed by Mr Greentree that he had replaced the electric motor on the auger and was returning to the workshop to obtain a set of tong testers. Mr Mathers was told by Mr Greentree that he believed the auger was blocked and he would unblock it. Mr Mathers assumed at the time that Mr Greentree was trying to free a blocked auger. 11 Whilst the Defendant had a lock-out procedure for all machinery, there were no specific systems in place regarding clearing blockages of machinery. It was part of Mr Greentree's normal duties for the Defendant to clear blockages in machinery such as the auger of the Roto-mixer. 12 Due to the nature of the product contained in the auger (urea), it was not uncommon for blockages to occur, especially during wet weather. 13 Mr Bruce Porter walked towards the mill in which Mr Greentree was working when he heard a thud from behind him. Mr Porter turned around and saw Mr Greentree lying on the ground on the cement floor below. Mr Porter ran to check on Mr Greentree, shook him and received no response. Mr Porter noticed a pool of blood under Mr Greentree's head. 14 Following the fall, Mr Griffiths returned to the mill and climbed up onto the raised work platform to investigate. Mr Griffiths found a pair of stillsons with a piece of rolled hollow section ("RHS") approximately two (2) metres in length on the auger leaning sideways towards the mill on the side of the auger trough. 15 It is assumed that Mr Greentree put the stillsons on the auger and used the RHS as an extension in an attempt to try and free the blocked auger. 16 Whilst it was not the Defendant's normal practice to use a stillson to free an auger, the Defendant had no documented system in place for the clearing of blockages of the auger. It was common practice for a screwdriver to be used to free the flutes of the auger. 17 It was common practice for Mr Greentree to carry out such maintenance work on his own, without any direct supervision because of his position as maintenance foreman. 18 When Mr Mathers returned to the mill following the accident, the auger tops were off and Mr Greentree had removed the side plate off the macro bin and let some of the material contained within fall to the cement floor to try and free up the macro drive. 19 To gain access to the raised work platform, Mr Greentree would have climbed to the steel mesh platform by means of a steel ladder. The work platform was approximately 2.7 metres about the cement floor. 20 Whilst Mr Greentree had received induction training on commencement of his employment with the Defendant, the induction training was based on an induction booklet called "The Employee Induction Booklet – Mill Employees, Maintenance Employees". That booklet contained no reference to the hazards associated with working at heights and the necessity to have appropriate fall protection for work at heights over two (2) metres. 21 Mr Greentree had completed confined spaces training which involved the use of harnesses, however, the Defendant had not provided Mr Greentree with any information, instruction or training regarding the use of harnesses whilst working at heights. 22 Following the accident, an ambulance was called to the site and Mr Greentree was transported by ambulance to the Defendant's private airstrip and then flown to Tamworth Base Hospital. Mr Greentree was later transferred by Westpac rescue helicopter to John Hunter Hospital in Newcastle. Mr Greentree suffered severe head injuries in the fall and died on 10 December 2000 as a result of those injuries. 23 The Defendant had no system in place which was safe and without risks to health for the carrying out of maintenance work on the Roto-mixer to clear blockages on that machine. 24 At the time of the accident, Mr Greentree was working at heights with no fall protection (other than as described above at paragraph 8). 25 At the time of the accident, Mr Greentree was working without any supervision to ensure that he implemented a safe system of work for the clearing of blockages. 26 Following the accident the Defendant commissioned Quirindi Engineering Pty Ltd to replace and extend the existing safety platform around the Roto-mixer and macro bin in the mill. A mesh catwalk, handrails and an access ladder were installed at the cost to the Defendant of $9,790.00. 5 In addition to the agreed statement of facts, tendered into evidence were bundles of colour photographs showing various aspects of the incident scene, various training qualifications and statements of attainment of Mr Greentree, sketches of the incident scene, graphs relating to the defendant's workers' compensations claims history and a record of the defendant's prior convictions that revealed six such convictions under ss 15(1) and 16(1) of the Occupational Health and Safety Act since 1993 and up to and including 2002. 6 Oral evidence was adduced by the defendant from Geoffrey Thayne Yarham, the defendant's manager, special projects. Mr Yarham's evidence addressed the following matters: · The nature of the defendant's operations. The defendant is the largest meat processor in Australia and employs approximately 12,000 employees. In its feedlots the defendant employs 155 personnel with 44 being employed at Caroona. · His responsibilities within the defendant's operations. These responsibilities include occupational health and safety. · The development of the defendant's occupational health and safety policies and practices and a description of those policies and practices. The defendant operated a standard occupational health and safety programme across all sites in Queensland and New South Wales. The programme includes: vaccination of all employees against Q Fever; induction training relating to safety and ongoing training carried out by certified trainers; occupational health and safety committees; instructions and policies relating to working in confined spaces; continuous improvement philosophy relating to occupational health and safety; structured reporting on occupational health and safety matters; and, regular auditing. · The high-risk nature of the meat processing industry. · The defendant's performance relating to workers' compensation claims. · The defendant's involvement in industry advisory groups relating to occupational health and safety. · The incident leading to Mr Greentree's death. · The step's taken by the defendant at Caroona and other locations to avoid a recurrence of the incident. · The background to the defendant's prior convictions. 7 The defendant also called evidence from Neville Bernard Tame, the defendant's Group Manager Human Resources. Mr Tame expressed the defendant's regret at the death of Mr Greentree. He described the counselling made available for employees following the incident. Mr Tame also indicated that the defendant had erected a memorial to Mr Greentree. Submissions of the parties 8 Section 21A of the Crimes (Sentencing Procedure) Act 1999 identifies the aggravating, mitigating and other factors to be taken into account by a court in determining the appropriate sentence for an offence. Mr D Jordan of counsel for the prosecutor identified the following aggravating factors: (i) The defendant's record of previous convictions noting that each of the convictions were recorded in the Chief Industrial Magistrate's Court and that the offences occurred in the context of a very large employer in a high-risk industry; (ii) The death of Mr Greentree; (iii) The consideration of public safety. 9 The mitigating factors identified by Mr Jordan were as follows: (i) That given the defendant's commitment to occupational heath and safety and given the measures taken by the defendant to avoid a recurrence of the incident it may be said that the defendant would be unlikely to re-offend; (ii) The defendant's contrition and remorse; (iii) The defendant's early plea of guilty. 10 Nevertheless, Mr Jordan submitted that there was an obvious risk that had tragic consequences. Mr Jordan also referred to s 3A of the Crimes (Sentencing Procedure) Act and the requirement to take into account the need for general and specific deterrence in determining an appropriate sentence. 11 Mr D Officer QC for the defendant referred to the defendant's contrition and remorse; the fact that Mr Greentree was not an inexperienced employee but a well trained tradesperson who sat on the defendant's occupational health and safety committee; that Mr Greentree was performing work that was a part of his normal duties; that the risk to safety in attempting to free the auger using a stillson wrench was not obvious; that it was unknown for someone to place a length of pipe over the handle of a stillson in order to gain extra leverage; that the defendant had a longstanding and dedicated commitment to occupational health and safety thereby limiting the need for any penalty to have regard to the need for specific deterrence; that the defendant entered a plea of guilty at the earliest available opportunity; that the defendant took appropriate steps to ensure there would be no repeat of the incident involving Mr Greentree; and, that in considering the prior convictions the Court should have regard to the large nature of the defendant's enterprise, its high risk nature and that in relation to the defendant's feedlot operations this was the first offence. Consideration 12 It is not altogether apparent how Mr Greentree came to fall but it would seem that in the process of attempting to free the clogged auger using the stillson wrench with its extended handle he somehow slipped or overbalanced and fell off the steel platform onto the concrete floor below. 13 The particulars of the charge refer to the defendant's failure to provide or maintain a safe system of work in allowing Mr Greentree to work at heights without fall protection; a failure to provide information, training and supervision in that Mr Greentree was not wearing any safety harness as he should have been; and, the failure to provide fencing, scaffolding or other means of fall protection where Mr Greentree was liable to fall a distance of more than 1.8 metres. 14 Whilst these failures may be regarded as serious and that is the case here, I do not consider the defendant here is guilty of ignoring a known or obvious danger. As I have already remarked, it is difficult to see how Mr Greentree came to fall given the reasonably confined area in which he was working and given the distance from that location to the edge of the steel platform over which he apparently fell. There is also the consideration that Mr Greentree was an experienced tradesperson who had undertaken the work of freeing the auger on previous occasions using a stillson. It is not known whether he had previously used a length of pipe to place over the handle of the stillson. It seems to me the use of the pipe in the awkward space in which he was working may have had the effect of causing him to lose his footing, or caused him to overbalance, in trying to gain extra leverage. If the defendant had been aware of this practice and had taken no steps to prevent it in circumstances where there was inadequate fall protection, I would have considered this to be a significant aggravating factor. As the evidence stands, however, the benefit of the doubt must go to the defendant. 15 Nevertheless, in my opinion, it was reasonably foreseeable that in the absence of adequate fall protection in the form of a safety harness or appropriate fencing or railing or adequate supervision and instruction, a person working on the steel platform would be at risk of falling onto the concrete floor below. The height of the fall was 2.7 metres and obviously any person falling such a distance would be at grave risk of serious injury or death. 16 The consequence of an accident will not, of itself, dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. 17 The occurrence of death in this case highlights the serious risk involved in failing to ensure that a safe system is in place in carrying out maintenance work and that it is not left up to individual employees to devise their own system. Further, it emphasises the importance of persons being supervised or instructed in the need for adequate fall protection when they are working at heights and that such fall protection is provided or is in place. 18 The failures by the defendant were easily remedied. This is evident from the steps taken by the defendant following the incident including the installation of a larger electric motor to reduce the incidence of blockages and the replacement and extension of the steel platform from which Mr Greentree fell, involving the installation of a new mesh catwalk, handrails and an access ladder. 19 In accordance with s 3A of the Crimes (Sentencing Procedure) Act and the Full Bench judgment in Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, in assessing penalty, it is necessary that the Court have regard to the need for general deterrence. As the Full Bench observed at [75]: The need for general deterrence in relation to serious offences under the Act is undeniable. 20 In relation to specific deterrence the Full Bench in Capral Aluminium said at [77]: 77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 21 The defendant conducts a very large operation involving inherent risks to safety. However, the defendant has a strong commitment to occupational health and safety and following the incident involving Mr Greentree the defendant took comprehensive measures to avoid a recurrence of the risk. I am entitled to take this into account in determining what weight I should give to the need for specific deterrence in assessing penalty. 22 There are a number of subjective factors to be taken into account. Firstly, the defendant is entitled to have taken into account its plea of guilty, as mitigating the objective seriousness of the offence. In this case, as the prosecutor conceded, the plea of guilty was entered at an early stage. Secondly, the defendant is also entitled to have taken into account in mitigation those preventative measures implemented by it since the incident. Thirdly, the defendant has demonstrated a strong commitment to occupational health and safety. Fourthly, the defendant has expressed remorse and contrition and, fifthly, the prosecutor agrees that the defendant cooperated with WorkCover's investigations into the incident. 23 The maximum penalty in this case is $825,000. In light of the objective seriousness of the offence I consider that the appropriate penalty is $260,000. However, this should be discounted by 25 per cent to take into account the utilitarian value of the early guilty plea and a further 10 per cent for the other subjective factors. This results in a penalty of $169,000. Orders 24 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $169,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.