Industrial Relations Commission of New South Wales in Court Session CITATION : WCA v Amcor Limited [2000] NSWIRComm 96 revised - 13/11/2000 PROSECUTION: WorkCover Authority of New South Wales (Insp Benbow) PARTIES : DEFENDANT: Amcor Limited FILE NUMBER: IRC1640, 1644 of 1999 CORAM: Maidment J Plea of guilty, failure to provide a safe system of work, failure to provide appropriate instruction. CATCHWORDS : Principle of totality LEGISLATION CITED : Occupational Health & Safety Act 1983: s15(1) CASES CITED : Department of Mineral Resources of NSW v Kembla Coal and Coke P/L unreported IRC 142 of 1998, 16 August 1999 HEARING DATES: 04/03/2000 DATE OF JUDGMENT: 10/19/2000 PROSECUTOR: Mr Milller of counsel SOLICITOR: Mr N Correy MORAY & AGNEW LEGAL REPRESENTATIVES: DEFENDANT: Mr Hodgkinson of counsel SOLICITOR: Mr N Prentice A O ELLISON & CO JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MAIDMENT J DATE: 19 OCTOBER 2000 Matter No. IRC1640 of 1999 WorkCover Authority of New South Wales (Insp Benbow) v Amcor Limited. Prosecution under s15(1) of the Occupational Health & Safety Act 1983. Matter No. IRC1644 of 1999 WorkCover Authority of New South Wales (Insp Benbow) v Amcor Limited. Prosecution under s15(1) of the Occupational Health & Safety Act 1983. JUDGMENT 1 On 6 May 1997 Rosario Sorbello attended his work as production line operator at the Steel Aerosols Division of Amcor Limited ("Amcor") at Hurstville. As part of his job he cut a metal strap which secured metal sheets to a stillage pallet. He then pulled the strap from the pallet and, during that process, one end of the strap flipped back and struck him in and around his right eye. The strap did not spring back, it had snagged, Mr Sorbello tugged it and it came free causing the end to strike him. He has lost most of his vision in that eye. 2 Amcor has entered a plea of guilty to two charges laid by WorkCover Authority of New South Wales ("WCA") under s.15(1) of the Occupational Health & Safety Act 1983, the first being that of failure to provide a system of work that was safe and without risk, the second being that of failing to provide appropriate instruction in each case as to how to cut and remove metal strapping from stillage pallets. 3 Subsequent to this decision being reserved the parties were provided with the opportunity of addressing as to any perceived defects in the initiation of the proceedings. The defendant chose to put no further submissions and in view of the full bench decision in Ridge Consolidated Pty Ltd v WorkCover Authority of NSW , [2000] NSWIRComm 142, it is appropriate to now issue judgment on the plea. 4 Metal strapping is used throughout industry as a means of securing material on pallets. Mr Sorbello had performed the function of removing such straps as an employee of Amcor for 38 years, the straps being required to be removed from pallets more than 20 times per day there being two straps per pallet. 5 A statement by Christopher Burgess, Manager of the Steel Aerosols Can Plant of Amcor, was tendered on behalf of Amcor, he was in attendance but was not required for cross examination. An indication of the seriousness with which Amcor takes this matter is that the General Manager of the Division also attended the hearing. 6 His statement disclosed that, in January 1997, J S Loss Control Services was engaged by Amcor to carry out a review of manual handling and machine guarding at the Hurstville site. The work systems and machinery in the Aerosols Components Department were reviewed, however, no hazard was identified by the risk management consultant. 7 This accident did not arise from the method of cutting the strap, nevertheless Amcor has introduced a requirement that safety glasses be worn during that process and whilst removing straps. A different type of tin snip has also been introduced. Instructions specific to the cutting and removal of straps are now provided. 8 Amcor employs some 10,150 people in Australia, 3,000 in NSW. The Hurstville plant employed some 150 persons on 24 production lines. 9 I do not propose setting out the detail of Mr Burgess's evidence. It is clear that Amcor had taken and continues to take employee safety seriously. This is evidenced by the engagement, in January 1997, of the risk management consultant. Its response to this accident was prompt and appropriate and it has and had on going safety and risk management procedures in place. 10 Mr Miller , counsel for WCA, submitted that the hazard was obvious and that it is a matter of concern that Mr Sorbello had been using the same methods for 38 years. He indicated that the maximum available penalty is $500,000. In response to a question from the bench he said that these proceedings were commenced in this Court rather than before the Chief Industrial Magistrate on account of the severity of the injury. 11 Mr Hodgkinson , counsel for Amcor, relied upon the seriousness with which Amcor took its safety responsibilities and takes these proceedings. He submitted that the hazard was not obvious and was immediately remedied, his client co-operated with WCA and entered an early plea of guilty and, bearing in mind its size, has a good record. He submitted that this is at the very lower level of the type of matters which come before this Court. 12 As Walton V-P , in Department of Mineral Resources of NSW v Kembla Coal and Coke P/L (unreported,IRC 142 of 1998, 16 August 1999); said: The proper test of foreseeability in these circumstances is not whether a lawyer or engineer could conceivably have foreseen the risk which existed but whether or not the ordinary jury person or reasonable observer could have done so: 13 The fact is that the function of removing straps after they had been cut has been carried out countless times by Amcor employees, apparently without problem, additionally, that function is performed throughout general industry and the parties could not draw my attention to any recorded difficulty in the process as manifested by court proceedings. I am unaware of any such matter. The risk assessment consultant did not perceive any problem in the handling of straps. 14 The view I take is that this hazard, as opposed to that which might arise from the cutting of a strap which is under tension, was not easily foreseen. Amcor's culpability must be assessed against that background. 15 Although the resultant injury was significant it does seem to me that the nature and quality of these offences is such that they are at the lowest level of those normally brought to this Court. Mr Sorbello was unlucky to have endured such an injury, its severity is a reminder that even minor incidents can have a dramatic outcome. 16 In my view the gravity of the matter when viewed objectively must be at the lowest level to be expected to be brought before this Court, it might readily have been dealt with in the Local Court. The accident occurred during the simple process of removing pallet straps after they had been snipped and the tension removed, a function performed countless times each day throughout industry without alarm bells signalling a potential for injury. The accident occurred a mere 4 months after a safety consultant engaged by Amcor had reviewed the systems without perceiving any hazard to employees. Amcor responded appropriately and has promptly pleaded guilty. Mr Sorbello has been rehabilitated within the workforce of Amcor which manifests corporate concern and contrition. 17 Amcor has been convicted in the Court of the Chief Industrial Magistrate of six offences against safety legislation, the first conviction being in April 1990, the date of the offences have not been disclosed. Additionally, as properly pointed out by Mr Hodgkinson , a further matter is outstanding, again before the Chief Industrial Magistrate, as to which a plea of guilty is entered. The penalties thus far imposed range from $3,000 to $15,000. 18 Taking all of the above matters into account I am of the view that a penalty of $12,000 is appropriate to each matter, however, applying the principle of totality which is clearly applicable to these matters. I consider the facts relative to each offence to be so similar as to warrant a total penalty of $12,000. 19 I convict Amcor of each offence and impose a penalty of $12,000 in total with a moiety to WCA. 20 In the event of disagreement I will hear the parties 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.