Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover v Australian Refined Alloys Pty Ltd [2000] NSWIRComm 224 PROSECUTOR WorkCover Authority of NSW (Inspector James) PARTIES : DEFENDANT Australian Refined Alloys Pty Limited FILE NUMBER: IRC2221 of 1999 CORAM: Peterson J CATCHWORDS : Occupational health and safety - prosecution under s15(1) - plea of guilty - large lead moulding bumped by forklift and tipped onto leg of employee, causing injury - method of storage found unsafe aspects of case affecting penalty - penalty assessed and imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 s15(1) CASES CITED : Ridge Consolidated Pty Limited v WorkCover Authority of New South Wales [2000] NSW IRComm 151 R v Thompson, R v Houlton [2000] NSWCCA 309 HEARING DATES: 05/16/2000 DATE OF JUDGMENT: 11/09/2000 PROSECUTOR Mr P M Skinner of counsel SOLICITOR WorkCover Authority of NSW SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson of counsel SOLICITOR Sparke Helmore SYDNEY. JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 9 NOVEMBER 2000 Matter No.IRC 2221 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR JAMES) v AUSTRALIAN REFINED ALLOYS PTY LIMITED. Prosecution under s15(1) of the Occupational Health and Safety Act 1983. JUDGMENT 1 The WorkCover Authority, through Inspector James, has prosecuted the defendant, Australian Refined Alloys Pty Limited, under s15(1) of the Occupational Health and Safety Act 1983 ('the Act') in relation to an incident in which a forklift struck a large lead moulding, causing it to topple on to an employee standing nearby and causing him leg injuries. This matter is one of seven summonses which were issued by the prosecutor arising out of this incident in respect of all of which the defendant initially pleaded not guilty. Three days were fixed for the hearing of all matters but subsequently the court was informed that the defendant would plead guilty to the charge the subject of this judgment and the prosecutor would seek leave to withdraw the remaining charges. Leave to withdraw those charges was given, it being a significant factor in the matter that the pleading difficulties provoked by the imposition of an absolute liability regime would seem to be an undesirable, however seemingly necessary, proliferation of charges arising from the same facts. 2 In these circumstances both Mr Skinner of counsel for the prosecutor and Mr Hodgkinson of counsel for the defendant submitted that the matter does not require to be considered with respect to penalty on the basis that an early plea was not entered. I accept that proposition particularly in a context where in reality no court time has been lost as a result thereof. 3 An agreed statement of facts was tendered in the proceedings. From that statement I extract, in a paraphrased form, the following essential facts. 4 The defendant employs 28 operational staff in its Sydney plant on a 24-hour shift cycle, 7 days per week. Pasminco Ltd is a 50 per cent shareholder and Simsmetal is another major shareholder. The defendant recycles 4,000,000 batteries per annum, about 94% of the used batteries in the Australian market. 5 The defendant has for 21 years conducted the business of manufacturing lead and lead alloys. This has involved the production of butts of lead of varying sizes and weights which are of a certain shape, which may be described as though the butt forms the bottom half or so of a pyramid. The butts are moulded when the production of lead ingots is interrupted for any reason. After storage they are resubmitted to the furnace for the resumption of the ingot moulding process. The butts are of up to 4 tonnes in weight. 6 Prior to the incident causing injury the subject of this case on 13 June 1997 the defendant's practice was to store butts of lead on their smaller surface (that is the top surface) to enable them to be transported between the tines of a squeeze forklift. In that inverted position each side face of a butt was slanted outwards towards the larger base (and now the top) surface of the butt. 7 On 13 June 1997 approximately six butts of lead was stored in an area of approximately 15 x 20m set aside for that purpose. The butts varied in weight between about 2.5 and 4 tonnes. 8 On that date Mr Vakacequ Bese Pawa was instructed to clean the cooling rack access area, which was adjacent to the butt storage area, of batteries which had dislodged from the stack and fallen on to the floor. These were then stacked on a pallet, after which he requested a forklift driver, Mr Udin Aodinin, to move the pallet of batteries to the battery breaker. Mr Aodinin, a qualified and experienced forklift driver employed by the defendant since 1979, then utilised a forklift truck to move the pallet. When he returned to the butt storage area in his forklift, Mr Pawa moved between two butts of lead to stand out of the way of the forklift. 9 Mr Pawa was standing next to a butt measuring 1.2m by 1.2m on its large surface and 300mm by 300mm on its small surface, which was standing on the smaller surface. It stood approximately 900mm in height. Mr Aodinin was aware of where Mr Pawa was standing. Whilst passing the butt of lead, he inadvertently caused the rear right-hand side of the forklift's counterweight to strike the corner of the butt of lead, with sufficient force to topple it over onto Mr Pawa's left leg. 10 Subsequent to the accident the defendant investigated the matter and altered its system of work by firstly, casting a large round eyebolt hook into the larger surface of each butt and, secondly, storing them on their maximum surface face, that is, lying down on one side of the butt. Thereafter butts were to be transported by the lifting hook using a heavy duty jib fitted on a forklift. 11 At all material times the defendant has had procedures for: 1. occupational health and safety induction training for employees, including Mr Pawa; and 2. training, testing and licensing of forklift drivers, including Mr Aodinin. A new work system for the handling and storage of furnace butts of lead was published by the defendant, subsequent to the accident. The defendant has no prior convictions. 12 Subsequent to the hearing of the matter on 16 May 1999 an issue arose concerning the validity of the proceedings in this and other matters. As a result I notified the parties to the matter that it would be listed for mention on 11 July 2000. On 7 July 2000 Sparke Helmore, solicitors for the defendant, wrote to the Registrar adverting to the issue and requesting that the proceedings be adjourned until the procedural issue had been determined. On 11 July 2000 the matter was mentioned and was adjourned, without objection from the prosecutor, to be dealt with in due course as the situation would require in the light of developments. On 13 October 2000 Sparke Helmore wrote in terms which included the following: We confirm that the matter was listed for directions before the Commission on 11 July 2000. On this occasion, at the request of the Defendant the matter was adjourned indefinitely for conviction and sentencing pending judgment in a variety of cases relating to validity of originating proceedings. In view of the recent decision of the Full Bench in WorkCover Authority v Profab Industries Pty Ltd the Defendant no longer wishes to argue that the originating proceedings in IRC2221 of 1999 are invalid. We would seek to have the matter relisted, by consent for conviction and sentencing at the convenience of the Commission. I would add a reference to the decision of the Full Bench of the Commission in Court Session in Ridge Consolidated Pty Limited v WorkCover Authority of New South Wales (Inspector Mauger) [2000] NSWIRComm 151, the effect of which is to cause the dissipation of any jurisdiction or validity point in the present matter. I therefore proceed to judgment and sentence. 13 It appears that for many years the defendant has undertaken a work practice which involves the storage of butts of lead in the way described above, without incident. The written evidence of the Plant Manager noted that although the butts were stored on their smaller end their size and weight created a stability which in the experience of (the defendant) had not previously been upset or caused any injury. The butts were stored on their narrow end to allow safe lifting and moving of them. 14 The defendant had engaged, prior to the incident and subsequently, safety auditors for the purposes of annually preparing an audit of the company's procedures and work practices to ensure those practices were safe. There is no evidence before me that the instability involved with the storage of butts was discovered in those safety audits. I would infer that they had not. 15 Mr Pawa was rehabilitated under a rehabilitation programme operated by the defendant, whose policy is to pay full wages for a two year period so as to ensure proper opportunity to introduce a complete rehabilitation programme for any employee. This ensures that any injured worker is not exposed to financial detriment. In Mr Pawa's case he chose to settle his workers' compensation claim, resign from his employment with the defendant and return to Fiji, where it is understood he has remained. 16 This matter raises the difficulty of dealing with a work situation which has prevailed for many years without incident and which is found, upon the occurrence of a fortuitous event, to be unsafe. The question arises in matters of this kind whether the facts should be treated as illustrating a persistent failure over many years to remedy an unsafe system of work or rather one which has not exposed itself, on any reasonable view of the circumstances, over that period of years. Taking into account: · the nature of the incident here; · the perception, not entirely without warrant, of the defendant that the mass of the butts of lead gave them an inherent stability; · the fact that the system had worked in these circumstances without injury although with latent risk for 20 years; · the fact that safety audits undertaken prior to the accident did not reveal any weakness in the system; and · the submission of WorkCover that this incident is one which should be viewed towards the lower end of the scale, I consider that the matter should not be viewed as having the serious elements inherent in an obviously unsafe system of work which has operated successfully without injury over many years. 17 Treating the matter as though it involved an early plea and taking into account the objective relative lack of seriousness of the event, the subjective elements of contrition evidenced by the plea, and the generous approach of the defendant to rehabilitation, together with a lack of antecedents and an approach to safety which is otherwise laudable, I consider that an appropriate penalty in this case would be $24,375.00. I have arrived at that amount by means of an assessment of penalty at $37,500.00 and have reduced by a discount of 35 per cent, the maximum reasonably allowable therefor (See R v Thompson; R v Houlton [2000] NSWCCA 309). I consider the circumstances of this case as I have summarised them entitle the defendant to a maximum discount in that regard. 18 The defendant is convicted and a penalty imposed of $24,375.00. The WorkCover Authority is to have a moiety of penalty and its costs of the proceedings as agreed or as assessed. 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.