Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Frank Glass v BNG Battery Technologies Pty Limited [2002] NSWIRComm 346 Prosecution: PARTIES : Inspector Frank Glass Defendant: BNG Battery Technologies Pty Limited FILE NUMBER: IRC7460 of 2001 CORAM: Kavanagh J CATCHWORDS : Prosecution under s15(1) of the Occupational Health and Safety Act 1983 - unguarded moving part of machine - prior identification as to risk to safety - failure after two notifications from risk assessment to address and redress risk - industrial practice of prioritising identified risks to safety a matter of industrial concern - expenditure to right the wrong de minimus - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Lawrenson Diecasting Pty Limited v WorkCover Authority (1999) 90 IR 464 Fletcher Constructions Australia v WorkCover Authority (1999) 91 IR 66 Batty v Graincorp Operations Limited [2002] NSWIRComm 49 Inspector Louise May v McDonalds Australia Limited [2002] NSWIRComm 179 CASES CITED : Tyler v Sydney Electricity (1993) 47 IR 1 Ferguson v Nelmac (1999) 92 IR 188 Capral Aluminium Pty Limited v WorkCover of New South Wales (Inspector Mayo Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 R v Thomson, R v Houlton (1999-2000) 49 NSWLR 383, and (2000) 115 A Crim R 104 Rv Sharma [2000] NSW CCA 142 HEARING DATES: 11/25/2002 DATE OF JUDGMENT: 12/20/2002 Prosecutor: Mr R. Reitano of counsel Solicitors: Mr A. McColm WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr J.J.E. Fernon of counsel Solicitors: Mr M. Bastick/Ms K. Morris Freehills JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Fri 20 December 2002 IRC7460 of 2001 INSPECTOR FRANK GLASS v BNG BATTERY TECHNOLOGIES PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm346 1 This prosecution is brought by the WorkCover Authority of New South Wales through Inspector Frank Glass under the provisions of s15(1) of the Occupational Health and Safety Act 1983. 2 It is alleged the defendant corporation: On 10 April 2000 at 55 Bryant Street, Padstow in the State of New South Wales . . . being an employer, failed to ensure the health, safety and welfare at work of all its employees, and in particular William Andrianopoulos, contrary to s15(1) of the Occupational Health and Safety Act 1983 in that it: (g) failed to provide or maintain plant, to wit, a "TBS Casting Machine", that was safe and without risks to health. In particular, the defendant failed to provide or maintain plant to ensure: (i) employees could not gain access to the moulds (dies) of the said plant whilst the said moulds (dies) were in motion; and (ii) the moulds (dies) of the said plant were securely guarded whilst the said moulds (dies) were in motion. . . . (h) failed to provide or maintain a system of work, to wit, a system of work for the removal of a drip tray, in which residual lead alloy collected, from a "TBS Casting Machine" that was safe and without risks to health. In particular, the defendant failed to provide or maintain a system of work to ensure: (i) employees did not gain access to the said drip tray of the said machine whilst the machine was in operation; (ii) the said machine was isolated from its power source whilst employees gained access to the drip tray of the said machine. (i) At all material times the defendant failed to provide such instruction, training and supervision as may be necessary to ensure the health and safety at work of employees engaged in the operation of a "TBS Casting Machine". In particular, the defendant failed to provide adequate instruction, training and supervision to ensure a safe method or procedure was implemented by William Andrianopoulos when in the process of removing a drip tray, in which residual lead alloy collected, from the "TBS Casting Machine". 3 The defendant pleads guilty to the charge. 4 An agreed statement of facts was tendered which relevantly reads as follows: 4. At all material times the defendant carried on the business of manufacturing lead acid industrial batteries trading as "GNB Technologies". 5. At all material times the defendant operated a lead alloy casting machine referred to as the "TBS Casting Machine" ( the " said machine ") in the conduct of its business. 6. At all material times the defendant employed William Andrianopoulos as a factory hand and labourer responsible, inter alia, for the operation of the said machine. 7. At approximately 10.15 am on 10 April 2000 Andrianopoulos sustained crush injuries and burns to his right hand and forearm when his gloved right hand was caught between a moving mould (or die) and the body of the said machine. As a result of the incident all four fingers of Andrianopoulos' right hand were amputated. Immediately preceding the incident Andrianopoulos placed his right hand into the machine, between the body and two stationary moulds of the said machine, in an attempt to remove a drip tray. The machine indexed and the moulds moved from their stationery position and, whilst in motion, one of the moving moulds caught the glove of Andrianopoulos's right hand and dragged it further into the said machine where it was caught between the moving mould and the body of the said machine and caused to come into contact with both the molten lead alloy bath and the hot mould (or die). 8. On 10 April 2000 the Prosecutor attended the Padstow premises and made an inspection of the said machine. A series of coloured photographs were caused to be taken and an Inspection Report recording the Prosecutor's observations subsequently compiled (a copy of the Inspection Report and series of coloured photographs are attached hereto – attachment " A " & " B " respectively). 9. The Prosecutor's inspection revealed the following matters: (a) the said machine, a lead alloy casting machine, measured approximately 5 metres in length, 2.8 metres in width and 1.6 metres in height; (b) the said machine incorporated a steel conveyor belt to which 10 steel moulds were attached (collectively referred to as the "feed line"). The feed line was driven by a 3 phase 5 horsepower electrical motor; (c) the said machine incorporated a lead pot fitted with a heating element that operated to melt lead alloy ingots, a molten alloy feed pump and a molten alloy bath from which molten lead alloy was distributed to moulds. 2 square steel posts (approximately 0.03 metres) measuring approximately 0.15 metres in height supported the molten alloy bath by means of a horizontal bar; (d) a drip tray, measuring approximately 0.25 metres in length and 0.15 metres in width, was accessible through a gap formed between each mould when the conveyor belt and moulds were stationary; (e) a nip point was formed between each mould and the steel posts, horizontal bar and molten alloy bath when the moulds indexed and moved from one position to their next; and (f) there was no impediment by means of guarding or otherwise to prevent access to the nip points formed. 10. Solid lead alloy ingots were placed into the lead pot that was fitted with a heating element, heated to a temperature of between 430 and 450 degrees Celsius, and converted to their molten state. Thereafter, the molten lead alloy was pumped from the lead pot by a feed pump and deposited into the bath. One of a number of moulds attached to the steel conveyor belt was indexed to a position beneath the bath where it came to rest. The said machine moves slowly. It moves by indexing forward for a set period of time and stopping for a set period of time, rather than moving continuously. During the rest period between indexing, a predetermined quantity of molten lead alloy was delivered to the mould from the bath before the mould was indexed away from its rest position beneath the bath. Another mould was then indexed to a position beneath the bath where the process was repeated. By the time the conveyor completed a full revolution the molten lead alloy was cooled and the finished solid product ejected from the mould into trays (not being the drip tray) beneath the said machine. A drip tray was positioned directly beneath the bath and was designed to collect residual lead alloy that did not find its way into the mould. 11. The operator of the said machine was required to ensure the level of the lead pot was maintained, remove impurities (dross) from the lead bath and periodically remove the drip tray from its position in order to discard residual lead alloy. The drip tray had attached to it a handle that was used by the operator to remove the drip tray from its position. 12. On the date of the incident the defendant charged Andrianopoulos with the responsibility of operating the said machine. In the course of operating the machine Andrianopoulos noticed the drip tray was full of residual lead alloy. In an effort to remove the drip tray and discard the residual lead alloy he reached into the said machine between 2 moulds that were then stationery and took hold of the handle connected to the drip tray. His attempts to remove the drip tray were hampered as the build up of residual lead alloy was such that it caused the drip tray to be "stuck" to the body of the said machine upon which it rested. While Andrianopoulos was in the process of moving the drip tray the moulds of the said machine indexed and moved from their stationery position as Andrianopoulos failed to stop the operation of the machine prior to removing the drip tray. One of those moving moulds, filled with molten lead alloy, caught the glove of Andrianopoulos's right hand and dragged it further into the said machine. As a result Andrianopoulos's hand was caught between the moving mould and the body of the said machine and caused to come into contact with both the molten lead alloy bath and the hot mould (or die) resulting in the stated injuries. 13. The said machine incorporated a 'START button', a 'STOP button' and an 'EMERGENCY STOP button' which were located at the side of the machine. Andrianopoulos reached over to press the 'STOP button' to stop the operation of the machine after his right hand was caught between the moving mould and the body of the machine. 14. There was no guard to prevent Andrianopoulos placing his hand into the machine and, at the time he did so, Andrianopoulos had not isolated the machine from its power source. This was contrary to the standard operating practice for removing the drip tray, as described in paragraph 16 below. 15. In the course of operating the said machine the drip tray was required to be removed from its position, in order to discard residual lead alloy, approximately 3 times per day when the machine was operating efficiently and approximately 6 to 7 times per day when the machine was not operating so efficiently. 16. Andrianopoulos had operated the said machine for a period of approximately 6 months leading up to the date of the incident and Andrianopoulos had operated the said machine during that period without incident. Andrianopoulos had worked for the defendant at the Padstow factory premises for a period of over two years prior to the incident. In accordance with the procedures adopted by the defendant, Andrianopoulos received "on the job training" in relation to the operation of the said machine. In this regard the operator of the said machine before him provided Andrianopoulos with verbal instruction concerning the standard operating practice in relation to the said machine, including removing the drip tray in order to discard residual lead alloy. The standard operating practice required stopping the operation of the said machine prior to placing one's hand between the stationery moulds and into the machine to remove the drip tray. On the date of the incident Andrianopoulos acted contrary to that instruction and, in his words, "neglected to stop the machine". He had adopted such a practice "on many other occasions" as he considered that in the ordinary course of events there was sufficient time in which to remove the drip tray before the moulds indexed and moved from their stationary positions. On the date of the incident, however, his attempts to remove the drip tray were hampered as the build up of residual lead alloy was such that it caused the drip tray to be "stuck" to the body of the said machine upon which it rested. 17. Prior to the occurrence of the incident the defendant retained Be Safe Resources Pty Limited, an Occupational Health and Safety consultant, to conduct audits of the Padstow premises. Audits of the Padstow premises conducted in late March and early April 1996 identified the need to investigate the suitability of a light beam guard for the top of the said machine. Audits conducted in September 1997 and on 03 & 04 April 2000 identified the need to guard the moving moulds of the said machine. The defendant was furnished with written reports compiled by Be Safe Resources Pty Limited subsequent to the conduct of the audits. 18. The 1996 and 1997 written reports were furnished to the defendant prior to the date of the incident involving Andrianopoulos. The absence of fixed guarding on the sides of the Machine and the suitability (after investigation) of a light beam guard for the top of the Machine were identified in the 1996 report. The report suggested as follows: " Provide fixed guarding to the sides of the machine and investigate the suitability of a light beam guard for the top of the machine" . The 1997 report identified the absence of a top guard on the Machine. The 1997 report stated as follows: " This machine was observed operating with all guards in place. Platform was clean and tidy. Despite the above, the moulder machine still requires a top guard to prevent access to the moving moulds ." As at that date of the incident the suggestions made in the reports had not been implemented on the Machine. 19. A written summary sheet compiled by Be Safe Resources Pty Limited subsequent to the audit conducted in 2000 identified various risks at the Padstow premises. The written summary sheet recommended a guarding assessment of the said machine be conducted. Whilst the 2000 audit was conducted prior to the occurrence of the incident the defendant was not furnished with the written summary sheet or the written report until subsequent to the date of the incident. 20. Subsequent to the incident the defendant caused an investigation to be conducted culminating in a written report. In accordance with recommendations of that report fixed guards were fitted to parts of the said machine not requiring regular access and an electrically interlocked guard was fitted to the machine in the vicinity of the moulds where regular access was required. The electrically interlocked guard operates such that in the event the said machine is in operation and the guard raised the machine immediately ceased operation and, as a consequence, access cannot be gained to the moulds whilst they are in motion (a series of coloured photographs depicting guards subsequently fitted to the said machine are attached hereto – attachment " C "). 5 Mr R. Reitano appeared for the prosecution and Mr J.J.E. Fernon appeared for the defendant. The prosecution tendered an agreed statement of facts; a WorkCover Inspector's Report of the incident; photographs of the machine both before and after the incident and the industrial record of the company. The defendant relied on an affidavit of John Stuart Hawkins, currently Exide's General Manager, Logistics and Planning, Australia, and at the time of the incident, he was Operations Manager of Exide's Padstow facility. He gave evidence and was cross examined. 6 The court must first consider the objective seriousness of the offence (see Lawrenson Diecasting Pty Limited v WorkCover Authority (1999) 90 IR 464 at 474; Fletcher Constructions Australia v WorkCover Authority (1999) 91 IR 66 at 77-81). 7 Mr Andrianopoulos was employed by the defendant as a factory hand and labourer. His duties included the operation of a casting machine. Whilst operating the machine on 10 April 2000, his right hand was crushed when it was caught between a mould and the body of the machine. The machine had no guard that prevented the employee from placing his hand in it while it was operating. He was attempting to remove a drip tray which had filled with residual lead alloy. 8 The evidence further revealed that the company had advance warning of the very risk to which Mr Andrianopoulos was exposed. The company, indicating it did have a culture of safety awareness, commissioned safety audits each year. Unfortunately it determined to prioritise the recommendations of the "Be Safe" audits. In 1996 and 1997 both audits recommended the guarding of the moving moulds of these machines. 9 Mr Hawkins revealed on receipt of the "Be Safe" audits, the recommendations were assessed each year by management and priority given to those matters in the audited report that were considered to be areas of higher risk. Unfortunately the guarding of this machine never reached the top of the priority list, and the 1998 "Be Safe" audit did not raise the issue again. There was no documentary record kept by management of this priority listing of identified risks to safety. There was not, therefore, when the 1998 audit did not identify the need to guard this machine, any awareness or recollection by management of the pre-existing identified risk. 10 The prosecution submits as to the nature and quality of the offence, from the facts, the view of the Full Bench in Batty v Graincorp Operations Limited [2002] NSWIRComm 49 (published 15 February 2002) is apposite: . . . in assessing the objective seriousness of the offence, due weight had to be given to the fact that the risk to safety was very clear . . . The submission of the prosecutor is the standard to apply to this set of facts is a more severe test than that applied to a risk found reasonably foreseeable. This risk, the prosecution submits, was identified and over a period the defendant company failed to take the appropriate remedial action to alleviate this known risk. The defendant had forewarning as to this risk to safety. Photographs reveal it was an obvious risk to anyone aware of occupational health and safety standards, if one sighted the machine. The machine had moving parts with no guard over such parts. 11 Further, Mr Hawkins agreed after the incident it took only a few weeks to design and place a guard over the machine at a cost of approximately $5000. Simple, remedial steps were available to make this machine free from the risk it posed to the health and safety of the employees who were to operate it (see WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, CT1025 of 1993, 25 February 1994 at 12). The facts further reveal the machine at the time of the offence often operated less efficiently than it should have and in those circumstances employees were required to remove the drip tray in order to discard the residual lead alloy. When in default, while it normally required clearing three times a day it required clearing approximately six or seven times a day. 12 Mr Andrianopoulos was performing the clearing task when he lost four fingers of his right dominant hand as he put his hand into the machine in an attempt to remove the tray without turning the machine off. While the seriousness of an injury does not dictate the level of penalty it does demonstrate the seriousness of the detriment to safety occasioned by the offence (see Inspector Louise May v McDonalds Australia Limited [2002] NSWIRComm 179 [at 45]; Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Ferguson v Nelmac (1999) 92 IR 188 at 204). 13 The obvious and simple steps that were available to the defendant to avert this risk to safety as well as the clear identification to the company of the perceived risk prior to the incident on a number of occasions ensures a finding this was a most serious breach of the Occupational Health and Safety Act 1983. 14 A number of subjective features to the offence are relevant in consideration as to penalty, although they are to be viewed in context as secondary to a consideration of the objective seriousness of the offence (see Lawrenson Diecasting at 474). 15 The company operated from 1959 up to the year 2000. It has now been on-sold but the machine is still in operation in the hands of the company which brought the operation, Exide. Mr Hawkins is now employed as a general manager to the new company. The defendant company had a steady history until the year 2000 when its holding company, Pacific Dunlop was broken apart and one part became the Ansell group of companies. The company that now operates this machine is Exide Australia Pty Limited for which Mr Hawkins is the General Manager Logistics and Planning Australasia. This company is English owned and is not the defendant before the court, but I accept the assurances of Mr Hawkins as to any penalty being met by the defendant company. 16 The defendant company formerly traded as GNB Battery Technologies Limited and became BNG Battery Technologies Pty Limited at the time of the sale of some assets to Exide. The status of the defendant company is that it is still listed on the record and while not trading, there is no issue between the parties as to it being financially able to meet any penalty imposed. 17 The defendant tendered, through Mr Hawkins, a significant amount of documentation. It was agreed that the priority listing arising out of the audit reports was never put on any company record and therefore could not be produced. However, placed before the court was a copy of the GNB Technologies Company policy and procedures which formed a part of an induction program. Included was an induction check list which had been completed for Mr Andrianopoulos. He had attended a four hour induction training and also had attended monthly training programmes which addressed different aspects such as machine safety, machine guarding, machine lock-out procedures and other occupational, health, safety and environmental issues. No employee was advanced to permanent employment until fundamental competency, including safety awareness, was assessed. 18 Mr Andrianopoulos had operated machine for six months and worked in the Padstow facility for two and a half years. I accept there was always an instruction given "Do not operate or clean the machine while the machine is in operation." Photographic evidence shows the stop switch was close to where the operator stood. There was a further specific instruction given to employees to isolate the machine from the power source prior to removing the drip tray. As the evidence revealed, employees were provided with thick cotton interlock gloves for protection against hot surfaces as well as safety glasses, protective overalls and safety boots. The evidence persuades me there was a pre-existing occupational health and safety procedure in place at this worksite. The audits themselves are reflective of this. 19 After the incident the machine was immediately guarded before re-use. Mr Andrianopoulos was given psychological and physical rehabilitation and returned to restricted duties nine months after the incident. Unfortunately he has been made redundant due to the change in the nature of the business. The assistance provided by the defendant corporation to the injured employee is however to be commended. 20 The question of deterrence must also be considered in the assessment of penalty. As an element of general deterrence it must also be ensured that the penalty is proportionate to the offence (see Capral Aluminium Pty Limited v WorkCover of New South Wales (Inspector Mayo Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 at 74). 21 It is relevant however to the consideration as to specific deterrence that the company no longer operates and straight after the incident the appropriate safety procedures were installed. 22 I am persuaded, before the company stopped operating it had in place a comprehensive work safe system which was intended to upgrade their plant to recognise this State's rigorous health and safety standards. The exposure to risk however arose in circumstances where it was revealed the company did not immediately react over a considerable period of time to an identified risk. The deterrent factor must emphasise that an identified risk should be attended to. The practice of "Prioritising" identified risks to safety is an industrial practice where great care must be taken by employers. A risk assessment of a worksite is to be encouraged. Industrial experience reveals some worksites may need significant expenditure to bring equipment up to the rigorous safety standard now required of employers at their worksite in New South Wales. Once a risk to safety is identified, particularly one so basic as the identification of an unguarded moving part on a machine, it must be addressed. If there is to be "prioritising" of an identified risk to safety there must be an economic and rational basis for any explanation as to delay in the removal from a worksite of a recognised detriment to safety. 23 In the matter before me, there was no evidence offered as to any significant expenditure incurred over the two years to right other identified "risks" such as to warrant the refusal to expend the minimum amount of money and time required to cover a moving part of a machine that was the identified risk at this worksite. 24 The Act reflects the increasing concern within the community for industrial safety and a failure to act on an identified risk to safety is a serious offence under the Act particularly when the risk is so basic as to be an unguarded moving part of a machine. 25 The industrial record of the company is relevant. Since 1959, the company has had recorded 11 breaches of the Factories and Shops Act 1912 most when it traded as Chloride Batteries Limited. From 1986 when this defendant company came into existence to the year 2000 there is no reported breach of the Act. As the company has no recorded convictions against it, the maximum penalty for the offence is $550,000. 26 I accept the defendant company co-operated with the WorkCover Authority and in the circumstances an early plea of guilty was entered. The prosecution supports the defendant's submission as to the early plea. In the circumstances I find the plea had a utilitarian value. There was some short delay between the filing of the summons and the entering of the plea. Accordingly, I allow a discount of twenty per cent (see R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and (2000) 115 A Crim R 104 and R v Sharma [2000] NSW CCA 142). 27 I take into account the gravity of this offence and the relative subjective features placed before the court and the discount allowed for the utilitarian value of the plea. 28 I find the defendant guilty. 29 The defendant is fined in the sum of $160,000.00. There shall be a moiety to the prosecutor. 30 The defendant should meet the prosecutor's costs in a sum as might be agreed. Should there be no agreement, I grant liberty to apply. 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.