Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Jurmann v Metal Manufactures [2004] NSWIRComm 47 PROSECUTOR Inspector Brett Jurmann PARTIES : DEFENDANT Metal Manufactures Limited FILE NUMBER: IRC 827 of 2003 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 15 (1) of the Occupational Health and Safety Act - Manufacturing industry - Employees injured when spattered by molten copper - Foreseeability - Plea of guilty - Remedial measures taken - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, 30 June 1992) CASES CITED : Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 HEARING DATES: 03/02/2004 DATE OF JUDGMENT: 03/12/2004 PROSECUTOR Ms L M McManus of counsel Solicitor: Mr G Spain WorkCover Legal Group LEGAL REPRESENTATIVES: DEFENDANT Ms W G Thompson of counsel Solicitor: Mr N McEwan Heard McEwan Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 12 March 2004 Matter No IRC 827 of 2003 INSPECTOR BRETT JURMANN v METAL MANUFACTURES LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 47 1 Metal Manufactures Limited ("the defendant") through its Mt Kembla Products Division is involved in the manufacture of copper tube, wire and rod products and operates a billet caster at Gloucester Boulevard, Port Kembla. The Defendant employed Keith Mercer as a level three Operator and Donald McAlister as a level four Operator. On 19 February 2001 an incident occurred where molten copper came into contact with water, creating a steam explosion. The explosion caused molten copper to project out of a mould and hit Mr Mercer and Mr McAlister and two other employees. Both Mr Mercer and Mr McAlister received burns to their neck, face, arms and abdomen. Mr Mercer was able to return to work the next day on light duties. He resumed pre-injury duties on 2 March 2001. Mr McAlister returned to light duties on 3 April 2001 and returned to his pre-injury duties on 27 May 2001. 2 The defendant was prosecuted by Inspector Brett Jurmann ("the prosecutor") of the WorkCover Authority of New South Wales for an offence under s 15(1) of the Occupational Health and Safety Act 1983. The section provides: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. 3 It was charged that the defendant failed to: ensure the health, safety and welfare at work of all its employees, in particular Keith Mercer and Donald McAlister, contrary to s 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: (a) At all material times the Defendant employed a number of persons including Mr Keith Mercer and Mr Donald McAlister. (b) The Defendant failed to provide and maintain systems of work for employees in relation to the operation of the Billet Caster and in particular in relation to "freeze-ups" that were safe and without risks to health; (c) The Defendant failed to provide such supervision as may be necessary to ensure the health and safety at work of its employees whilst the employees were working at the Billet Caster, and in particular on the casting floor. (d) The Defendant failed to identify and eliminate or control risks in the event of a freeze-up of the Billet Caster. 4 The defendant pleaded guilty to the charge against it. 5 An agreed statement of facts was tendered. Relevantly, the statement provided the following information: 7. On 19 February 2001, the day shift at the foundry known as The Billet Caster started work at 6.30am. The purpose of the Billet Caster is to cast copper billets, which is part of the process of copper tube manufacturing. 8. At 7:00 am, after a meeting to discuss work issues, the team prepared to do a casting run. 9. The team consisted of a Furnace man, Sampler, Caster, Utility, Billet Inspector (Saw/Inspector 1) and Charge Floor Operator. 10. The Furnace man, Mr Jimmy Trpevski fired up the furnace around 7.00am. On that day they were pouring HC which is a High Conductivity copper. Copper cathodes were put into the furnace at the charge floor level for melting by Mr Paul Phillips, Charge Floor Operator. 11. Mr Phillips then returned to the casting floor around 7.30am to assist with the start up. He was in the Control Room with Mr Gary Chaseling, who was Caster. 12. Mr Mercer and Mr McAlister were on the casting floor. Mr Mercer was working as the Sampler. Mr McAlister was working as the Utility. They waited until the copper flowed from the Shaft Furnace to the Pouring Furnace. 13. At about 8.30am, when it was hot enough the pour started, pouring copper into the moulds. Mr Mercer was looking after the South Mould and Mr McAlister looked after the North Mould. They used oxy acetylene torches to heat the shrouds. The shrouds transfer the copper from the Pouring Pan to the moulds. When the Pouring Pan is full Caster will open the Fast Open and copper will come into the moulds. When the copper is an inch below the gas rings, the Control Room, turns on the Pincher Rollers. 14. On the day there was an overflow from the pouring pan. 15. Some of the copper was too high in the North Mould and solidified around the outside. It stuck to the North Mould, an event know as "freeze-up". Mr McAlister used the oxy torch to try and lift it off, a procedure known as "burn-off". During this time Mr McAlister was directing Mr Gary Chaseling in the Control Room in the flow of copper and movement of the copperlog to juggle the level of copper in the mould. This is a method that can be used to dislodge the freeze-up. 16. Mr Mercer put the gas cover on the South Mould. He got a thumbs up signal from the Control Room. He then put charcoal into the Pouring Pan and went to do his sampling job out of the Pan. Mercer went to the bottom of the steps. He took a sample and had the sample pot in his hand. He turned around and saw Mr McAlister take steps backward from the North Mould. He could see a bubble in the North Mould. 17. Mr McAlister saw the copper start to bubble and the "freeze up" did not drop. 18. At 8.40am the copper log stretched and cracked and water from the quench tank hit the molten copper creating a steam explosion. The explosion projected molten copper back out through the top of the North Mould and onto Mr Mercer and Mr McAlister. Molten copper hit the glass of the Control Room. Mr Christlo, Supervisor, who was approximately three metres away from the point of the explosion felt a burn on the left side of his buttock. A small spark hit Mr Brendan Schoupp on the back of the head as he was on the western stairway. Mr Christlo and Mr Schoupp did not need medical treatment or time off work. 19. Mr Mercer and Mr McAlister both went to the emergency shower and were assisted by their work mates. They were taken to the plant medical room and then they were taken to hospital. Both received burns to their neck, face, arms and abdomen. Mr Mercer was discharged from hospital the same day. 20. On 19 February 2001, Inspector Brett Jurmann and Inspector Tony Casse attended the Defendant's premises and observed the following: a. A large multi-level building described to them as the Continuous Billet Caster. They then proceeded to an upper level described to them as the Charging floor where there was scrap and cathode copper and an opening for feeding the furnace. b. They then proceeded down stairs to a control room containing video screens and a chair with levers and buttons. The room overlooked a furnace and casting equipment. On the clear screens of the control room were grey-coloured spots. c. They proceeded down some stairs to the casting floor where they observed a casting operation. d. A large canted cylindrical object described to them as the Pouring furnace supported on a curved rail mounted on a roller. From the furnace was a spout above a canted box described to them as the Pouring Pan. From the base of the Pouring Pan and pointing downwards were two parallel cylindrical tubes with cups over the ends. Each tube was positioned over the centre of two cylindrical tubes with cups over the ends. Each tube was positioned over the centre of two cylindrical pots positioned side by side, described to them as the North and South moulds. The area in the vicinity of these moulds was hot but approachable. e. The moulds had a 255mm internal diameter and were 365 mm deep including removable sleeves attached to the top that were 100mm high. f. The inside of the North Mould had a covering of what appeared to be solidified copper with a black scale covering the top of the mould and the gas ring but with a tapering void in the centre. The South Mould also contained solidified copper, finishing below the top of the mould and with a level surface. On the immediate floor area surrounding the north Mould were metallic splatters. g. In front of the moulds was a fabricated metal shield, yellow in colour. The shield had openings through which the moulds could be observed by camera. The sides of the shield had pivoting wings or doors. On the front of the shield was a blue and white sign indicating hearing and eye protection must be worn. Away from the moulds, towards the Pouring furnace, was another sign indicating face shields to be worn. h. In front of the shield was a clear level floor area for the operators with a fabricated metal shelf and rack with an oxy/gas torch and hoses. The torch had a large diameter nozzle at the end that they were told produced a broad flame, as opposed to a cutting tip. Approximately 4 metres away was a shower station. On the other side of the Pouring furnace was another shower station. i. They saw on the caster floor a plate metal disc which appeared to be of a similar diameter to the gas ring sleeves. The disc had an opening in it. They were informed that this was a gas cover. j. They were handed two halves of what appeared to be safety glasses. The nose bridge, lenses and side covers were missing. The metal frames were blackened and had splatters of what appeared to be copper on them. 21. The Defendant failed to adequately identify, assess and control the hazards arising from a "freeze-up" during the operation of the Billet Caster. 22. As at 19 February 2001 it was the employees' decision how long to spend working on the burn-off. 23. An Improvement Notice was issued to the Defendant on 19 February 2001 requiring the Defendant to identify risks associated with the task of burning off, assess the likelihood of consequences of risks, control risks as identified and introduce controls into standard operating procedures. 24. Following the accident, the Defendant took the following steps: a. conducted a risk analysis of the start up procedures; b. as a result of the risk analysis eliminated the practice of "burn-off" for an overflow. 25. On 19 February 2001 at Gloucester Boulevard, Port Kembla, in the State of New South Wales, the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Keith Mercer and Donald McAlister. 6 The prosecutor also tendered into evidence: 1. A three-page factual report into the incident prepared by Inspector Jurmann dated 21 February 2001; 2. A bundle of 16 colour photographs showing various aspects of the caster floor where the incident occurred; 3. A record of the defendant's prior convictions. 7 The evidence for the defendant consisted of an affidavit with annexures of Peter James Green, the defendant's manufacturing manager. The affidavit addressed: the deponent's employment history; the history of the defendant; the history of the billet caster; the billet caster's day to day operations; the treatment of the injured employees; the measures taken by the defendant to avoid a repetition of the incident; the defendant's occupational health and safety policy and practices; the procedure for upgrading the system of occupational health and safety; and, the defendant's remorse. Consideration 8 It is well settled that the penalty for breach of the Occupational Health and Safety Act must reflect the nature and quality of the particular offence: Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, 30 June 1992); Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339; Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81; Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at [28]. 9 The pouring of molten metal is an inherently dangerous task to be carried out with the greatest regard for safety. In the present case the risks arose from the failure to provide and maintain a safe system of work in relation to freeze-ups, the failure to provide adequate supervision on the casting floor and the failure to identify and eliminate or control risks in the event of a freeze-up. The risks were readily foreseeable and appropriate measures were available and feasible to prevent such risks. These measures included banning any burn-off procedure for a mould overflow and requiring the cast to be stopped and "scrapped", which in fact was the course taken after the incident. Because of the obvious nature of the risk of employees being spattered with molten metal and the failure to take adequate and relatively straightforward measures to avoid the risk, the offence must be regarded as serious. 10 Another factor that is relevant in determining the objective seriousness of the offence is the maximum penalty prescribed by Parliament. In this case it is $825,000. In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185-186: The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408. 11 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. Mr McAlister was not able to return to his normal duties for over three months because of his injuries, thereby reflecting the seriousness of the risk to which he was exposed. 12 A Full Bench of the Commission in Court Session has recognised that in the industrial context, it will be rare that a sentencing court need not impose a sentence that includes an element of general deterrence: See Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71]. It is important, in my view, that employers engaged in the heavy manufacturing industries understand the need to ensure that employees are not placed at risk of injury or death and that any failure to do so will attract a significant penalty. Consistent with the decision in Capral Aluminium it is appropriate for the penalty to include an element for general deterrence. 13 As to specific deterrence, I note the defendant continues to be an employer conducting an undertaking in an inherently dangerous industry. However, I also consider that the employer is commendably safety conscious and has taken all the necessary steps to avoid any recurrence of the incident that occurred on 19 February 2001. The defendant does have prior convictions but given the size of the employer and the nature of its industry it has a relatively good record. Whilst it is appropriate to have some regard for the need for specific deterrence in fixing penalty, it will not be a factor that carries great weight. 14 There are a number of subjective factors to be taken into account in mitigation. Firstly, there was an early plea of guilty and the defendant is entitled to a discount for the utilitarian value of that early plea. Secondly, the defendant has taken a range of measures to avoid a recurrence of the incident and at the same time has taken steps to improve overall its policies and practices relating to occupational health and safety. I accept Mr Green's evidence that the defendant has taken every opportunity and incurred every expense to ensure the incident does not occur again. The remedial measures taken by the defendant were referred to in Mr Green's affidavit and included: · A full risk assessment with each continuous billet caster crew resulting in the total elimination of any mould overflow burn-offs as a work practice. · Installation of a series of new warning signage alerting all employees in relation to personal protective equipment and other safety requirements. There were also safety alert notifications issued across the site in reference to the incident which occurred on 19 February 2001. · In March 2001 an internal audit was completed to assess and confirm the effectiveness of the changes to the SOP for the type of incidents that arose on 19 February 2001. · Pinch roll indication lights were installed on the casting floor so that each of the operators know what the situation is if they are required to approach the casting area. · Another operator's cabin was installed on the charge floor to provide a safe and clean environment for those working in and around that area. · An area was designated around the furnace known as the "red zone" where nobody is entitled to walk through without authorisation and without wearing the appropriate personal protective equipment. · Employees are required to always wear personal protective equipment. · An ongoing focus by management upon risk assessment, which resulted in improving launder operation, the launder access platform, the shaft furnace de-slagging procedures and the ground floor pit cleaning procedures. · Toolbox meetings and employee consultation as measures by which to maintain a safe working environment. 15 The defendant has expressed genuine remorse for the incident and cooperated with the WorkCover Authority in its investigation of the incident. 16 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 $160,000. 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 $104,000. Orders 23 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 $104,000 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.