Industrial Court of New South Wales CITATION: Inspector Michael Salmon v Provimi Australia Pty Ltd [2008] NSWIRComm 182 PROSECUTOR: Inspector Michael Salmon PARTIES: DEFENDANT: Provimi Australia Pty Ltd FILE NUMBER(S): IRC 1026 of 2008 CORAM: Haylen J Occupational Health and Safety Act 2000 - s 8(1) - guilty plea CATCHWORDS: entered - defendant notified Court of intention to sell business and liquidate assets - new employee engaged as stock feed milling operator - duties included operating large `mixer plant and clearing the plant when feed mix changed - cleaning of mixer involved operator climbing into mixer - ineffective system of isolation of power to mixer - mixer turned on while operator inside plant - fatal injuries received - failure to guard plant - failure to ensure safe system for operation and cleaning of plant - failure to conduct adequate risk assessment - failure to provide adequate information, instruction and training - failure to provide supervision of operation cleaning and maintenance of plant - failure to comply with relevant Australian Standards for guarding and locking out plant - serious breach established - general deterrence considered - limited role for specific deterrence - early plea entered by defendant - first offence - existing system of safety in place but inadequate in relation to guarding and isolating mixer during cleaning function - contrition - co-operation with WorkCover investigation - steps taken quickly to address risks in system - victims' impact statement from five members of deceased family handed up by prosecution - penalty imposed HEARING DATES: 22 September 2008 DATE OF JUDGMENT: 2 October 2008 PROSECUTOR: Mr C Magee of counsel SOLICITORS WorkCover Authority Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr B Belling, solicitor SOLICITORS: HWL Ebsworth Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 2 October 2008 Matter No IRC 1026 of 2008 INSPECTOR MICHAEL SALMON v PROVIMI AUSTRALIA PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 182 1 Provimi Australia Pty Ltd ("Provimi") is a subsidiary of the Provimi Corporation based in the Netherlands. In 2006 the company operated at workplaces in New South Wales, Victoria, Queensland and South Australia. One such workplace was located in the New South Wales town of Forbes where the company manufactured animal food stock. 2 On 3 July 2006 an employee of the company, Mr Lionel ("Joey") Gray, was engaged in cleaning the number one mixer of its current product as there was to be a change of product and thus a need to clean the mixer of any residue. This was a task regularly performed by those involved with the product mixer. There were power circuits that could be isolated while this task was performed, especially since it involved employees entering the large mixer to perform the cleaning work. On this particular day, however, the mixer was not effectively isolated and the machine was turned on by another employee while Mr Gray was inside the machine. Mr Gray was seriously injured and later in the morning passed away. 3 Following an investigation by the WorkCover Authority in July 2008, Inspector Michael Salmon commenced prosecution proceedings against Provimi alleging the company had breached the provisions of s 8(1) of the Occupational Health and Safety Act 2000. The principal particulars of the charge were as follows: · the defendant failed to ensure that the moving parts of plant known as No 1 mixer hopper ("plant"), provided for use by employees (sic) work at the premises, were adequately guarded or had other appropriate controls in place to prevent the mixing blades of the plant coming into contact with employees during the operation, cleaning and maintenance of the plant; · the defendant failed to ensure that there was a safe system of work for the operation, cleaning and maintenance of the plant, in that the defendant - (i) failed to ensure that employees were not at risk of coming into contact with the mixing blades of the plant; (ii) failed to ensure that employees could only enter into the hopper of the plant once the plant had been isolated from the electrical supply and "locked out"; · the defendant failed to ensure that an adequate risk assessment was undertaken in relation to: (i) working near the moving parts of the plant; (ii) the operation, cleaning and maintenance of the plant; (iii) the system of electrical isolation of the plant; · the defendant failed to ensure that employees were provided with adequate information, instruction and training in relation to: (i) the risks of moving parts of the plant during the operation, cleaning and maintenance of the plant; (ii) system for the electrical isolation and "lock out" of the plant during the cleaning and maintenance of the plant; · the defendant failed to ensure that employees were provided with such supervision to ensure the safety of employees in the operation, cleaning and maintenance of the plant. It was alleged that, as a result of the defendant's failures, Lionel Allen Gray was placed at risk of injury and sustained fatal injuries. 4 The prosecution was initially to return to the Court on 8 September 2008 for plea and directions as necessary, but on 15 August 2008 solicitors acting for the defendant company contacted the Court indicating that they had instructions to enter a plea of guilty to the offence as charged. The defendant requested the Court to list the matter for an early plea in mitigation in view of the fact that it was in the process of selling its business and liquidating its assets in Australia and was likely to be voluntarily wound up and deregistered. As a result of this correspondence, the matter was listed for plea and directions on 5 September 2008 at which time the defendant formally entered a plea of guilty and the matter was then listed for hearing on 22 September 2008 to receive the evidence and submissions on penalty. 5 At the sentencing hearing, the prosecutor tendered a bundle of documents containing the following material: · an Agreed Statement of Facts; · a prior convictions report indicating that the defendant had no prior convictions; · an ASIC company search for the defendant; · a statement of Inspector Clothier; · a statement of Inspector Salmon; · a factual inspection report by Inspector Clothier; · six colour photographs taken by Inspector Clothier on 10 July 2006 depicting the incident scene; · eleven colour photographs taken by Inspector Clothier showing post-incident improvements; · Australian Standards AS 4024, Safeguarding of Machinery; · victim impact statements from Mr Gray's father, mother and three sisters. The prosecutor also tendered a statement made to Inspector Salmon by Mr Adrian Howarth, a mill worker employed by the defendant, a statement made to Inspector Salmon by Mr Benn Gunn who was employed by the defendant as a general labourer (with some portions not read) and a further statement made by Mr Benn Gunn (with certain questions and answers not read). The Agreed Statement of Facts appears as an annexure to this judgment. 6 Mr Howarth had been employed by the defendant for approximately twelve months at the date of the accident. While he had not operated the mixer for approximately nine months. he said he was familiar with its operation. He said that entering the mixer was a normal part of the mill operator's duties and occurred after every change in the mix. The new employees were not aware of the system to isolate the mixer prior to entering it that involved a switch on the power board and an isolating switch upstairs behind the mixer. After speaking to a number of new employees after the incident, he was able to ascertain that they were unaware of the isolating switch upstairs behind the mixer. When asked if there was an isolating switch in the power board and how could the mixer have started, Mr Howarth expressed the view that the wrong switch had been turned off. After the accident, when he and others opened the power board, Mr Howarth said the wrong switch had been turned down on the left hand side of the box. He did not know if the switch that had been turned down isolated other equipment and he did not know what was operated by the other switches. The method of correctly isolating the mixer prior to entering it for cleaning was to turn the switch off at the power box, lock the power box and turn the isolating switch off and then to get into the mixer. The isolating switch was the one behind the mixer and was located upstairs. During normal operation the mixer was turned on and off from a set of switches alongside the power board - those switches controlled the mixer, the Floveyor and the hopper. There were three sets of buttons with on and off settings. To start the mixer all three buttons had to be pressed but to stop the equipment, just hitting the mixer button stopped the other pieces of equipment. When the mixer was stopped, an employee could then go to the power board and isolate the power. Once the mixer was isolated from inside the power board and the power board was locked, the employee would keep the key in their pocket to prevent anyone else from having access to the power board. 7 When Inspector Salmon attended the workplace in late July 2006, he was shown a sign that had been removed from the front of the power board and had been placed on top of the power board box. He had taken a photograph of that sign and Mr Howarth said that he was aware that sign was attached to the power board by sticky tape and he had seen it when it was first attached to the power board box. He said the sign later fell off the power board box. The sign was put on the door of the box when it was shut so that other employees would know that someone was inside the mixer. The sign carried the following words: "Mixer being swept. DO NOT USE". When the power board door was locked that also indicated to other employees that someone was in the mixer. 8 When asked who was teaching these employees involved in the incident, Mr Howarth said that he could not remember who was teaching at the time but there were no experienced workers and there were three "learners". Mr Benn Gunn had turned on the machine on the day of the accident and he was inexperienced and "he didn't look". He was to turn on another mixer and that was how the accident occurred. He thought Mr Gunn had been employed not quite a full month prior to the incident. Mr Howarth thought that it had not taken him too long to become competent and confident in operating the mixer but noted that he had two "good people" showing him what to do but they were no longer with the company. Those two people had kept on drumming the information into him every day. When asked why no experienced persons were operating the mixer at the time of the accident, Mr Howarth stated that there were only four experienced people in the shed and they were all on different jobs. 9 Mr Howarth proffered the view that more time was needed for the production work and that there was always a problem with time. Mr Gibbs and Mr Hemming from the production office were always coming out with production sheets and telling the employees the work had to be finished by tomorrow. They worked consistent overtime of at least one hour per day from 7.00 am to 5.00 pm or 7.00 am to 6.00 pm and they were expected to work every second Saturday from 7.00 am to 11.00 am. Overtime was a job requirement and that was explained prior to commencing employment. Mr Howarth regarded improvements made since the accident to the mixer to isolate the power were effective and safe. Mr Howarth was aware that Mr Gray had been employed by the defendant company for a week prior to the accident. He regarded this time as being insufficient to be both competent and confident in operating the mixers and operating the isolation techniques prior to entering the mixer for cleaning. 10 At the time of the accident, Mr Benn Gunn was aged 20 and had been employed by the defendant as a general labour for approximately two weeks. On the day of the accident he was working on No 2 mixer with Mr Taylor and Mr Rivers and everybody was working "flat out", productivity being the main part of the job. He stated he was "probably the most experienced on the floor" and that he had a sought a palette from No 1 mixer when he saw Mr Merritt. Mr Merritt was holding a bag underneath the auger and Mr Gunn asked him how much was in the bag and that the material would have to be run out. Mr Merritt shrugged his shoulders and so Mr Gunn went to the mixer to switch it on to run out the remaining product and he heard a loud noise from Joey Gray. As he switched it on and heard the noise from Mr Gray, Mr Merritt told him that Mr Gray was up in the mixer and so he switched the mixer off after approximately three seconds. A number of employees then ran upstairs and rendered assistance to Mr Gray. As they were trying to disentangle Mr Gray from the agitator blades in the mixer, Mr Jamie Hosler, a another employee, yelled out and told them to turn off the switch at the back of the mixer. Ultimately, it was Mr Hosler who performed that task. 11 When Mr Gunn started work with the defendant he worked in another location for two days and then was moved to the premises where the mixers were located. Mr Chris Shultz, the occupational health and safety officer showed him how the machines worked although he would not call it an induction. A few days before the incident, Mr Hosler had showed him that there was a backup switch behind the mixer but he had not previously been shown its location. He had been cleaning out the mixer for three days but without knowing about the isolation switch. When doing initial training with Mr Schultz he was not shown the isolating switch on the mezzanine floor beside the mixer. 12 In relation to the process of isolating the machinery prior to cleaning, Mr Gunn said that the key had to be taken out of the power board box, the box unlocked and the main power was to be turned off. The box was to be locked and then the operator would go to the mezzanine floor and open the lid of the mixer. The operator would then get into the mixer and sweep out as much as possible without moving the agitators. The operator had to push the agitator around with his legs, sweeping a bit and then pushing again. Both legs just fitted in between the two agitators. The operator would then have to jump back to get to the bigger agitators and then sweep out again. It was not necessary to get into the mixer except that an operator had to use his legs to turn the agitator blades. The mixer had a cover but only half of it lifted up - in order to clean the unopened end the operator had to reach in underneath the fixed cover to sweep the product back to the chute and then come back to the open part, move the agitator blades and go back in under the fixed cover to finish sweeping out. This operation occurred three or four times to make sure that all the product had been cleaned out. The cleaning out occurred on both machines at the end of every blend and up to 20 times per day. If the same blend was being produced the cleanout would not have to be performed after every mix. Some of the blends were quite dark and if there was not enough light and half the mixer was closed off, it was difficult for the operator to see exactly what he was doing. Mr Gunn described the task as "quite frightening" because it was dark and the operator did not actually know if the isolating system was working properly. There was a contest between workers not to do this task. 13 Mr Gunn was shown photographs of a sign on the power board door. He had not seen the sign attached to the door as shown in the photographs but when he commenced work at this location, there was a sign dangling from the bottom left hand corner of the power board but it was not taped onto the board. Mr Gunn said that the door was always closed and if the key was in the padlock that meant that the power supply was on. Sometimes, because there was a rush to perform the work, the person who had locked the power board box may have been re-assigned to other work and the remaining operators would have to find that person to retrieve the key to open the cabinet to switch the power back on. That had occurred twice in the two-week period he had been employed in this area. Inside the power board there were three switches but only one had to be switched off. Mr Gunn was of the opinion that an error in selecting the switch could easily be made. Mr Gunn had not seen a work method statement or similar document describing the system of work for the mixers. 14 A further statement was made by Mr Gunn in answer to questions asked of him by his father. In that statement, Mr Gunn said that, in relation to an induction, Mr Hemming had given him a piece of paper containing house rules but he was not shown anything about the machinery or taken through the factory and in any event, Mr Hemming was not the defendant's occupational health and safety person. There was a buddy system in operation and on the third day of his employment, he was working with the occupational health and safety officer, Mr Shultz. Mr Shultz showed him a few things while they worked but he was not shown anything in detail and they both kept working. Mr Shultz did not show Mr Gunn any dangers regarding the machinery, the chemicals, the congested floor area, the forklifts, the emergency procedures or the proper shutdown procedures for the mixers. 15 In relation to the procedure to ensure that the mixer could not be started, Mr Gunn said that a switch at the switchboard was to be turned off and the board locked and an operator would take the key with him so that no one would be able to start the mixer. Within the power board there was only one switch that shut down No 1 mixer and Mr Gunn said that an operator had to be careful to hit the right switch. There were three switches and they were all identical and there was no clear signage. The board was fairly old and black texta was used on a black board as identification. Mr Gunn was not certain whether Mr Gray had hit the wrong switch but said that the set up was confusing and he had wondered if he had performed a cleanout of the mixer with the wrong switch being turned off. The mixer was cleaned out approximately ten times per day and possibly more and he would probably do three cleaning tasks per day. Mr Shultz had once shown him the correct switch to hit before entering the mixer but some five days later, Mr Hosler showed him another cut out switch on the mezzanine floor next to the mixer. There were, therefore, two ways to isolate the mixer and Mr Gunn had heard that other workers did not trust the system and would remove a fuse before they entered the mixer. Mr Gunn was not shown the shutdown procedures during induction but it was shown to him at various times during the performance of work and it was "learn as you go". He had performed the cleaning tasks on approximately 18 occasions before being told of the second shutdown procedure. Cleaning the mixer was frightening because there was not much light and the task involved climbing into the mixer that was located upstairs and an operator would be in the mixer by himself. The operator had to be strong to push the agitators around with both legs while balancing on the broom handle. 16 For the defendant, a large folder of material was tendered. Included in that material were two statements given by Mr Allan MacGillivray to Inspector Salmon. Mr MacGillivray was the general manager of the defendant. A further statement made by Mr MacGillivray was relied upon and that statement elaborated on matters concerning the incident involving Mr Gray. In relation to training, a statement given by Mr Paul Hemming to Inspector Salmon was included in the material tendered. He was the production supervisor employed by the defendant. Mr Hemming also signed a separate statement in which he referred to part of his role as production supervisor as being involved in the induction of employees, including health and safety requirements. 17 Mr MacGillivray was the general manager of the defendant company and had acted in that capacity since 2004. He told Inspector Salmon that the defendant had induction training that covered health and safety procedures, including the use and maintenance of risk control measures. He had been informed by Mr Hemming that Mr Hemming had conducted a full induction process with Mr Gray at the time of his employment on 3 July 2006 and that had included a demonstration of how to safely operate the machinery he was required to use. The defendant company provided training, information and instruction to its employees in regard to safety issues. There was an occupational health and safety committee that operated in compliance with the Act and the 2001 Regulation. 18 In relation to this incident, Mr MacGillivray stated: With the benefit of hindsight, obviously, the procedures that were in place for the safe lock-out of the machinery that caused the accident or caused the injury, were not 100 per cent failsafe despite having been used safely for many years. This particular procedure had been part of the examination process in the internal and external audit process for all of these years and had not been found wanting. Since, at face value, the procedure seems to be failsafe. Unfortunately, as in any incident of this nature, the potential for human error within the operation was not foreseen. Mr MacGillivray said the defendant had conducted its own investigation of the incident and it had concluded that Mr Gray had not followed the procedure explained and demonstrated to him on induction. While he appeared to have locked the cabinet and removed the key, he had failed to turn off the power prior to locking the cabinet. In addition, he had not activated the safety switch at the mixer hopper before entering the hopper. Reactivation of the power switch that ultimately turned on the equipment was performed by an individual who was not part of the working party operating that particular machine at the time of the accident. The person who had turned on the equipment did so to help fellow workers and he appeared to have misunderstood why they were not operating the machine at the time. The procedure for the failsafe lock-out of the equipment therefore required amendment to ensure that, under no circumstances, was it possible for power to be available to any of the machinery during times of maintenance or cleaning. 19 A brief history of the defendant was provided by Mr MacGillivray. The previous owners of the premises had occupied the site since the mid-1960s and its land and buildings were purchased by Provimi Holding BV on 1 July 2001. Mr MacGillivray had joined the company as general manager on 1 August 2004 and until July 2005 the site was under the direct control of the operations manager. From August 2005, the site came under Mr MacGillivray's direct control pending the appointment of a new company production manager responsible for all three manufacturing sites in Australia. That appointment was made effective on 1 January 2006. From August 2005, Ms Tania Jackson was employed as a quality manager at the Forbes site to become directly involved in all aspects of quality and occupational health and safety. At the same time, Mr MacGillivray engaged a company called SGS as an external audit certification body for all quality, environmental, health, feed, safety and other certifications. The involvement of SGS commenced with a procedures audit of the company's system manuals. Another company, EQAS, was involved in supplying consultancy services to the defendant on all aspects of quality health and safety and environmental policies. The result of this was the development and existence of the company systems manual and in September 2005 SGS provided certification. Mr MacGillivray was appointed director of the defendant in 2004 and was still a director at the time of the accident. Mr MacGillivray stated that the board had taken steps to ensure the safety of its workers. Since being appointed a director, Mr MacGillivray said he was faced with the prospect of dealing with aging plant and equipment. There had been a significant commitment in the company's budgets since 2004 to allocate funds to remedy health and safety issues identified within the company, including the use of EQAS as a consultant to advise and guide the defendant in the comprehensive deployment of sound environmental quality and safety procedures across the whole company. He had instigated the closure of the manufacturing sites and the ongoing development of a new site to allow for more effective, efficient and less hazardous production methods. At the final commissioning of the new site it was intended to cease all production activities at the Union Street, Forbes plant. Mr MacGillivray also spoke of his active involvement in fostering a culture of safety and environmental responsibility. He spoke of the methods he had used in this task including formalising the operations and records of the occupational health and safety committee at the Union Street, Forbes site. Other methods to keep safety at the forefront had been the use of occupational health and safety inspections and checklists to highlight the potential problem areas. There was a formalisation of recording electrical testing and the inclusion of more detailed hazard identification checklists and examples were supplied. There was a more formal hazard/incident reporting procedure whereby staff members were encouraged to formally report any hazard or incident they may observe. He instituted electronic hazard control logs. He regarded himself as being passionate about occupational health and safety and that nothing in his working career had affected him more profoundly than the unfortunate death of Mr Gray. 20 In a separately prepared statement, Mr MacGillivray said that the defendant was a wholly owned subsidiary of a global company situated in the Netherlands being an expert in animal nutrition and in particular, nutritional and medical supplements to animal feed. There were in excess of 9000 people employed worldwide and in Australia there was an average of 63 employees. The company operated in Forbes and Tamworth in New South Wales, Macclesfield and Lameroo in South Australia, Victoria and Queensland. The Forbes operation had been acquired in July 2001 and the defendant had invested in the development of a new site approximately two kilometres out of Forbes. Its business operation would move from the Forbes site to Durham Street towards the end of 2006 and the Forbes site would be decommissioned. 21 Mr MacGillivray's duties extended to ensure compliance with Australian law, including occupational health and safety laws in jurisdictions in which the defendant operated. He attested to the fact that the defendant had no occupational health and safety convictions in New South Wales or under equivalent statutes in any other jurisdiction in which it operated. The Forbes site employed between 24 and 28 productions workers depending upon demand and there were five administrative staff. The quality manager, Ms Jackson, regularly visited the site and visited Forbes approximately monthly or every six weeks. Ms Jackson also attended the meetings of the site occupational health and safety committee. The committee at Forbes had been active in exposing a series of hazards and matters requiring remedial attention. Review processes had not found any fault with the "lock-down" procedure operating at the No 1 and No 2 mixers. The accident showed that there was room for further improvement in the lock-down system, which, until the time of the accident, was thought to be safe. 22 The defendant's enquiries and the inability to interview Mr Gray made it difficult to explain the direct causes for the lock-down not isolating the electricity supply to the agitators and the No 1 mixer. The company had retained electricians to install further lock-down switching mechanisms on the power supplies to all mixers to ensure, as far as possible, a failsafe lock-out while the hoppers were being cleaned. Mr MacGillivray also authorised the retention of an engineering firm from Parkes to install under the mixer lids a lockable mesh mezzanine cover fitted with cut-out micro switches that, when opened, would activate the switching mechanism and cut the power supply to the entire mixer. 23 Mr MacGillivray described his prompt reaction to being notified of the accident and the steps he had taken to have the company respond and the employees counselled. He had authorised immediate contact with WorkCover and had arranged for Ms Jackson to fly from Adelaide to Forbes to take control of the investigation. Contact was made with industrial relations consultants to the company as well as local police and the secretary of the National Union of Workers. He directed that the site be shut down and had reported to superiors in the Netherlands when he learned of Mr Gray's death. On arriving at Forbes on 10 July 2006 in the late afternoon, Mr MacGillivray convened a conference with the management and commenced the process of investigating the accident and authorised the undertaking of such remedial work as required, including as directed by WorkCover. On the morning of the following day, Mr MacGillivray had contacted Inspector Clothier. 24 Mr MacGillivray addressed all the staff and one-on-one counselling was authorised. With other representatives, including legal representatives, he attended Mr Gunn's home to invite him to undertake counselling and to assure him that he had the full support of the company. Counselling for Mr Gunn was then organised as was his attendance at the factory to assist in the defendant's enquiries into the accident. By mid-morning, Mr MacGillivray had met with other managers and had spoken to Mr Gray's family members (namely his three sisters, their husbands and Mr Gray's father). The family was offered the company's condolences as well as counselling services and they were accepted by the family. Counselling was to be continued and extended to Mr Gray's ex-wife and his five children, his current partner and his mother and the counselling was to continue as long as required. While he had undertaken, on behalf of the defendant, to meet the funeral or associated costs together with travel costs for two family members to attend the funeral, it was clarified in evidence that the family had paid for the funeral although some ancillary costs had been paid for by the defendant. Mr MacGillivray also arranged legal representation for the Gray family and ensured that the defendant's insurer was notified to enable any benefits available to Mr Gray's family to be processed quickly under workers' compensation and related legislation as well as under the general law. Mr McGillivray also attended upon the general manager of the Forbes Shire Council to advise the Council of what had occurred and steps undertaken by the defendant. He also kept the relevant union, the National Union of Workers, advised of developments as they occurred. Paid leave was authorised for members of the staff to attend Mr Gray's funeral. A full investigation into the facts and circumstances surrounding the incident had been authorised thus ensuring that any issues identified or system improvements could be implemented. Mr McGillivray had authorised a review of the implementation of the occupational health and safety systems at the Durham Street Forbes site to ensure those improvements could be implemented before production started at that site. He welcomed the contribution of the WorkCover Authority in reviewing any improvements made and had authorised complete compliance with two prohibition notices issued to the defendant. Steps were taken to have various benefits paid out to the family under their entitlements. 25 In his interview with Inspector Salmon, Mr Paul Hemming stated that he was employed by the defendant as the production supervisor having commenced employment with the defendant in early 2002. He had been present when the accident occurred and described his involvement in the process of rendering assistance to Mr Gray. Mr Hemming observed that the power box was locked at the time of the incident and that meant to him that the power was cut off to the mixer. Mr Gray had previously been employed as a contractor and helped with some maintenance but in that position did not have experience of the mixer plant. 26 Mr Hemming said he had worked on every machine in the plant and was aware of the isolation procedure to enable the mixer to be cleaned. That procedure was to turn the mixer "off external to the power board" using the red button - that button switched off all the machinery. A switch inside the cabinet was then to be turned off, the cabinet door closed and locked and the operator was to keep possession of the key. The mixture was then isolated for cleaning purposes. The cleaning process would require the lid of the mixer to be opened and to push the beater with a foot to get the ribbon into an appropriate position to clean. It was necessary to stand on the shaft and with the other foot, apply pressure to the outer blade fixed to the shaft. It was generally necessary to enter the mixer to enable the sweeping process to be effectively carried out. A formal induction was carried out for employees and it was not limited to the sweeping procedures. All other aspects of occupational health and safety were covered such as the "safety board", what to do when injured, who to contact for assistance and other more minor matters. Mr Hemming said that the induction process was documented and after being shown induction and procedures, the company generally placed new employees with an experienced operator so that it worked like a buddy system until they gained experience. There was nothing in the induction that pinpointed the buddy but Mr Hemming said that he did not put individuals into a situation without having somebody experienced with them and he did not "throw them in to the system". He did not identify a buddy assigned to Mr Gray. Mr Hemming regarded Mr Hosler as having experience and Mr Merritt, who had not worked there as long as Mr Hosler, was quickly gaining experience. Mr Hosler had been employed for a few months and Mr Merritt had been employed for six weeks. Mr Hemming thought that this was sufficient experience to operate the plant because it was a basic operation that even an inexperienced employee would pick up quickly. The significant changes to the guarding system had dramatically improved the safety of the cleaning operation. Prior to the accident, Mr Hemming regarded the isolation procedure as appropriate. There was pressure to maximise productivity in order to meet transport needs and customer requirements. As soon as the workforce finished one mix, they were told to get on to the next one. 27 In a separately prepared statement, Mr Hemming spoke of the method of operation and the batching of mixtures describing the work as involving a significant amount of manual handling. He described the induction process as explaining to employees the nature of their duties and they would usually be manual or semi-skilled in nature. The work was demonstrated, including using a buddy system, and he regarded the work as not being complex and that experienced employees were able to pick it up quickly. A checklist was used to guide new employees through the various aspects of the operation and involved demonstrating to the employees the health and safety precautions relating to the work they would be undertaking. The company's rules in relation to lifting and using lifting equipment were explained, while in relation to electrically operated equipment the electrical switching arrangements were described and demonstrated to employees. The use of the mixers for different batches meant regular cleaning was necessary and also required the mixers being shut down. Within the defendant company this was described as a lockout to enable the equipment to be thoroughly cleaned manually. 28 Mr Hemming was involved in the induction process for Mr Gray who was 42 years old and was regarded as experienced in relation to the type of duties to be undertaken at the defendant's location, including manual handling and general duties. Mr Hemming had know Mr Gray for more than 30 years and he was known for his mechanical skills in general maintenance, plant and equipment, as well as a diverse range of farming skills and skills associated with maintenance of plant and equipment in the agricultural industry. Mr Hemming had demonstrated to Mr Gray the manner in which the No 1 mixer was locked-out for the purposes of cleaning and this occurred on 3 July 2006. Mr Hemming described the lock-down process for the No 1 mixer. In this statement, Mr Hemming referred to a further precaution namely, the switch close to the top of the mixer hopper at the mezzanine level. He described this switch as being inactive in circumstances where the power supply had been cut off by the lockdown operation conducted at the switchboard but said it would operate to cut the power supply to the mixer when the power supply was otherwise live. Mr Gray had been shown both the process at ground level and the further isolation process at the mezzanine level. 29 Besides these statements relied upon by the defendant, there were also summaries of the thrust of his evidence and a description given of the company structure, including the management structure at the time of the incident. Figures provided for the financial years between 2003 and 2007 showed consistent net losses ranging from over $1.5 million in 2003 to over $3 million in 2007. Other documents portrayed the effect of the worsening drought from 2001 that was said to have adversely affected the defendant's profitability. It was immediately made clear that the financial losses and the drought were not raised to support a submission about the defendant's incapacity to pay a fine but merely to put in context the company's operation at the time of the accident. Reference was made to the corporate management systems prior to the accident, the management review meetings that had been undertaken and minutes were provided of the occupational health and safety committee indicating the matters that had been identified and had ultimately been addressed as part of the defendant's system. A number of matters had been identified, including the isolation of motors and the use of lockouts, especially in relation to the ribbon blenders. While these matters had been addressed, at no stage had it been suggested that the isolation procedures for the large mixers were inadequate or ineffective. An occupational health and safety checklist provided by a consultant to the defendants was accurately completed on behalf of the defendant but in the light of this accident, did not appear to ask the questions necessary to cause any investigation of the isolation procedures. Consultants had largely approved of the systems adopted by the defendant. DELIBERATION 30 In addressing the objective seriousness of the offence, the defendant readily accepted that there was a clear systems failure. That failure was placed in the context of the defendant purchasing the business in deteriorating economic times and inheriting aging machinery. The defendant had determined to commission a new plant and machinery and had engaged consultants to review the safety system of the business and those reviews were largely favourable. It was frankly accepted that there were risks in the operation of the plant and many of them were identified, including by the occupational health and safety committee, and they were addressed. These matters can be accepted and it can also be accepted that this was not a case where there was a lack of safety systems but a particular failure relating to the isolation procedures for the mixers. 31 There was some considerable debate concerning the prosecutor's submission that the risks in the operation of the mixers were foreseeable and that those risks could be simply addressed, leading to the conclusion that the gravity of the offence was thereby increased. While accepting that the nature of the machinery and the operation requiring the isolation of power and also requiring an operator to physically enter the machine in order to clean it presented foreseeable risks, it was submitted those risks were identified and addressed by the defendant's systems of isolating the power. It was said to be significant that the defendant had recognised these risks and had addressed them, and that it could not be concluded that the defendant knew about the precise risk that lead to Mr Gray's death and did nothing about addressing that risk. 32 There is much to be said for the defendant's submission in relation to foreseeability, as far as it goes, but the essential feature of this breach was the fact that, although the defendant had policies about guarding dangerous machinery and having lockout devices, the isolation of the mixers was a manual operation in three undocumented steps. There was no cover over the entrance to the mixer whereupon removal, the power would be isolated. The very concept of employees having to enter this machine in order to clean it, and to do so at least several times a day, must have alerted the defendant that something more was required than the system that had been adopted. In the course of submissions, it was again readily conceded by the defendant that an employee who opened the power board box to operate the appropriate switch to isolate one of the mixers was faced with a "panoply" of switches from which to choose. This may have led to some of the confusion referred to in the evidence, especially amongst the new employees, as to precisely which switch needed to be turned off. 33 To the extent that the defendant relied upon the fact that, since approximately the 1960s, this system had worked without difficulty and that the accident would not have occurred if the system had been followed by Mr Gray, there are well settled principles that are against those propositions. As an employer the defendant's obligation was not only to be reactive to situations that arose in the day-to-day operation, but to also be energetic and active in seeking out and identifying potential risks before they occurred. Over a long period of time the apparent success of the system may be a question of luck, or may be due to a system of work where only experienced employees isolated this machinery and were well instructed in the method to be adopted. The defendant had recently come into ownership of this longstanding plant and on the day of this accident, the employees performing the work in relation to the mixers had very little experience with that plant: Mr Gray had one weeks' experience. He was the person who was isolating the power and was doing so without the assistance of the "buddy" system otherwise adopted by the defendant. Mr Gunn activated the mixer although the power board was locked, indicating that someone was working in or on the mixer. There was no evidence of anybody being actually allocated to Mr Gray as a "buddy". Further, it is not a satisfactory explanation in mitigation that the work was relatively simple and did not take much by way of training and that it simply did not require documentation. True it is that documentation can be over emphasised, but documentation is not required to be complex or lengthy. A simple step-by-step instruction, even posted in the power box, identifying the switches to be operated in order to isolate No 1 mixer or No 2 mixer would have been more effective, although the ultimate system adopted by the defendant after the accident is much more effective with its use of cut out devices. The sign fixed to the power board by tape also identified the fact that someone was working on or in the mixer - this was not part of the formal induction nor was it continued as a safety measure. 34 The defendant also accepted that the switch at the side or rear of the mixer that was capable of isolating each mixer was at a location not well known amongst the workforce, especially the newer members of the workforce. It was also frankly accepted that there was no assessment of the performance of the newer members of the workforce to see if they understood what was required of them when operating and attempting to isolate the mixer. 35 Unfortunately, the longstanding use of this system of isolation may have lulled the defendant into a false sense of security and a belief that the system was "fail proof" as submitted on their behalf but as earlier stated, their duty was to be active and diligent in seeking out risks and ensuring they did not occur. If there was a sense of complacency about this aspect of the operation, the evidence also suggests that there was pressure to meet production targets that affected the workforce and had the capacity to affect the way in which they performed their work. Under the system operating at the time of the accident an employee, under pressure of work and making choices from a "panoply" of switches in order to isolate the power to a mixer, was at risk of making a poor or inaccurate selection and this possibility was not adequately addressed by the defendant's system. The defendant accepted that its induction system, while it covered aspects of isolation, was inadequate. Importantly, the prosecutor points to the fact that there was no verification procedure in place to indicate that the item of plant could or could not be started once the isolation procedure was completed. Other matters of relevance going to the seriousness of the offence are: the necessity for an informal system of lockout using the sign as a warning and the removal of a fuse to affect isolation; the failure to comply with Australian Standards for guarding and locking out the machinery; the fact that the switches set up was confusing; that not all employees were shown the isolation switch behind the mixer; the lack of compliance with the "buddy" system; and the concentration in the evidence of the induction given to Mr Gray when it was evident that the induction given to Mr Gunn was seriously inadequate. 36 The charge to which the defendant has entered a plea of guilty details the comprehensive nature of the company's failure to ensure the safety of its employees in the operation of this machinery. The defendant has pleaded guilty to: improperly guarding the machinery; failing to have appropriate controls in place to prevent the mixing blades coming into contact with employees during the cleaning and maintenance operation of the plant; failing to ensure that there was a safety system of work to prevent employees from coming into contact with the mixing blades and the failure to ensure that employees could only enter the hopper of the plant once the plant had been isolated and locked-out; a failure to ensure an adequate risk assessment was undertaken in relation to working near the moving parts of the plant, the operation, cleaning and maintenance of the plant and the system of electric isolation of plant; the failure to ensure that employees were provided with adequate information, instruction and training in relation to the risks of moving parts of the plant during the cleaning, operation and maintenance of the plant, the system of electric isolation and lock-out of plant during the cleaning and maintenance of the plant; and, the failure as to ensure that the employees were provided with such supervision as to ensure their safety in the operation, cleaning and maintenance of the plant. Bearing in mind that it was an essential step in the defendant's system of work for an employee to climb into a mixer in circumstances where workers could be operating the adjacent mixer and were able to work at another level without necessarily knowing that a person was inside the mixer, it can be readily concluded that this was a serious breach of the Act. 37 In relation to deterrence, the defendant accepted that the primary consideration in this case was general deterrence. General deterrence is an important element of the sentencing process and in particular in relation to occupational health and safety laws. In this case, the defendant operated a business where the predominant class of labour was engaged in manual work. The operation required the utilisation of machinery such as the mixers and the moving and handling of bulk material by forklift and other devices. In such an operation, there are inherent dangers that need to be addressed. This case provides another example of a gap being exposed in an otherwise extensive system of safety in circumstances where a level of complacency may have crept into the procedures because of a lack of prior accidents. The case emphasises the need for employers to be alert and diligent in seeking out potential risks rather than simply reacting to accidents. 38 The issue of specific deterrence raises other considerations. The evidence is that the defendant has sold this plant and is in the process of realising its other assets in Australia. Its plan is to complete that task by the end of the calendar year and it is likely that the defendant will then be deregistered. On one view, if that plan is adhered to, there is little likelihood of the defendant offending again, at least in relation to this type of operation, while on another view, offending at all. The defendant did not give an undertaking that it would not, at some future time, seek to operate in a similar or in a different field but there is no evidence of a present intention to do so. In all the circumstances, while specific deterrence will be taken into account in setting an appropriate penalty, that element will represent a comparatively minor component of the ultimate penalty. 39 In relation to subjective features, it is apparent that the defendant moved the Court to initially list this matter earlier than otherwise proposed in order that it could enter a plea of guilty. While that plea was entered in circumstances, primarily to permit an early closure of the business, it nevertheless represents an early plea for which the defendant should be granted a discount of 25 per cent. There is an undoubted utilitarian benefit arising from that plea and the Court could well have been occupied for some time in a close consideration of the system of work and in particular, the isolation system and the actions of individual employees in the absence of such a plea. 40 The defendant has a recent history of operation and has engaged a medium sized workforce in a business that has inherent dangers in its daily processes. The defendant therefore comes before the Court as a first offender with a good industrial record and it is entitled to a measure of leniency on that account. The defendant by its early plea of guilty, the assistance provided to Mr Gray's family and the counselling made available to its other employees has exhibited a level of contrition. Importantly, the defendant worked closely with and co-operated with the WorkCover Authority during its investigation of this accident and promptly responded to notices issued by the Inspector. Following the accident, the defendant acted quickly to have guarding and interlocking devices fitted to the machinery to produce what appears to be a "failsafe" system and was able to do so at what was conceded to be a modest level of expenditure. This protective step was implemented very quickly, but is also indicative of the simple and effective steps to protect the workforce that could have been taken at a much earlier time. It is also a relevant consideration that the defendant had an established system of safety, although this accident demonstrated unsatisfactory aspects of that system. It had engaged consultants to assist in bringing about an effective system of safety. All of these matters will be taken into account in mitigating the ultimate penalty to be imposed. 41 Having reached the view that the plea of guilty was properly entered and that a conviction should be recorded against the defendant for a breach of s 8(1) of the Occupational Health and Safety Act¸ the Court turns to the victim's impact statements handed up by the prosecutor from five members of Mr Gray's family. Those statements demonstrate the sense of distress and loss suffered by the members of Mr Gray's family and their continued grieving for his loss. Those statements bring home to the Court some of the devastating consequences of workplace accidents and fatalities and remind the Court of the much wider consequences of workplace accidents. The sympathy of the Court is extended to the family for their tragic loss. ORDERS 42 (1) The defendant, Provimi Australia Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 1026 of 2008, to which it entered a plea of guilty. (2) The defendant is fined the sum of $150,000 with half that sum to be paid to the prosecutor by way of moiety. (3) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as determined by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1. At all material times, the prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (Act) and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter. 2. At all material times, Provimi Australia Pty Limited ('Provimi') was a corporation (ACN: 097 211 302), with its registered office situated at Davis Road, Macclesfield, 5153 in the State of South Australia.The Company 3. At all material times, Provimi was an employer. 4. At all material times, Provimi conducted its business at premises at the corner of Union and Farrand Streets, Forbes in the State of New South Wales ('the premises'). 5. At all material times, Provimi was a subsidiary of the Provimi Corporation based in The Netherlands, which employs 9000 people worldwide, and approximately 63 staff at its workplaces in New South Wales, Victoria, Queensland and South Australia. The Forbes premises 6. At all material times, Provimi manufactured animal food stock which involved processing orders for agricultural food products, mixing ingredients into batches for packaging and distribution to agricultural industries including dairy, beef, poultry, horses, pork and smaller livestock. The work involved significant manual handling. 7. At the premises, there were two larger ribbon blenders or "mixers" described as the "No 1 Mixer" and the "No 2 Mixer" which were used for mixing products prior to packaging. In addition, there were three smaller mixers. The mixer involved in the incident was the No 1 Mixer. 8. Both the mixer units (No.1 and No.2) were essentially identical in that both contained an in-floor screw conveyor (auger) that fed raw stock food product to a 'Floveyor' (a vertical conveyor system) and into a ribbon blender (the mixer) located on the mezzanine floor above the auger. 9. Mixer No. 1 and Mixer No.2 each had a switch on the ground floor blending area, which could be used to cut power to that Mixer. However, the switches were not adequately labelled in relation to which switch controlled which mixer. (Refer to photograph "LG2" for an illustration of the switches as they existed up to and including the day of the incident). The workforce 10. At all material times, Lionel ("Joe") Gray was an employee of Provimi. Mr Gray was engaged by Provimi on 3 July 2006 (i.e. one week before the incident). 11. At all material times, Mr Gray's job title was a "Stock Feed Milling" Operator. The duties undertaken by Mr Gray in the course of his employment included: (1) Forklift driving; (2) Operating the mixers known as "No 1 Mixer" and "No 2 Mixer"; (3) Preparing orders of products and mixers; and (4) General cleaning duties including specifically in relation to the mixers. 12. At all material times, Mr Gray was assigned by Provimi to work at the Forbes premises. 13. At all material times, the Defendant had an Induction process for new employees. The induction process was undertaken by Paul Edward Hemming, the Production Supervisor, at the premises. Mr Hemming held that position since early 2005. The induction process involved: (1) Mr Hemming reviewing the applications for employment including each employees' relevant work history and experience; (2) Mr Hemming explaining to employees the nature of their work duties. Their duties were demonstrated to them; (3) the employees being guided through the various facets of the Provimi operations by reference to a check list which had been created for that purpose; and (4) a "buddy" system where an 'experienced' operator was to oversee the new employee for an indefinite amount of time and until such time as the employee 'gained more experience'. 14. Mr Hemming, in accordance with his role as Production Supervisor, was involved in the induction process, including in respect of occupational health and safety requirements for Mr Gray. Mr Hemming states that he demonstrated the way that the Mixer No. 1 was "locked down" for the purpose of cleaning to Mr Gray on 3 July 2006. 15. At all material times, William Merritt, Benn Gunn and Jamie Hosler were employed as mill workers by Provimi at the Forbes premises. As at the date of the incident (10 July 2006), Mr Merritt had been employed by Provimi for a period of 6 days; Mr Gunn had been employed for approximately 3 weeks; and Mr Hosler had been employed for approximately 4 weeks. The Incident 16. On 10 July 2006, Mr Gray commenced work at 7:00 a.m. and undertook his usual duties within the premises in an area known as 'Plant Area One'. 17. Mr Gray, Mr Merritt and Mr Hosler were instructed by Mr Hemming - by way of whiteboard roster system - to prepare a mix of 522 kilogram feed mixture using No 1 Mixer, which was to have been emptied into a 'bulk bag' prior to cleaning the mixer for another product run. Mr Gray was working with William James Merritt. 18. Mr Gray and Mr Merritt were in the process of finishing a mix. Mr Gray told Mr Merritt that he would go up to the hopper of the No 1 Mixer and clean it. It was the normal procedure to clean the hopper of the mixer after every mixture. This was because some of the mixtures were medicinal and therefore it was essential that the mixer was not contaminated with other ingredients. 19. Mr Gray told Mr Merritt that he had switched off the power to the No 1 Mixer and locked the related electricity circuit box located on the ground floor blending area. Mr Gray left Mr Merritt on the ground floor blending area to clean the hopper of No 1 Mixer located on the mezzanine level of the premises. 20. Mr Gunn, who had been working on No.2 Mixer approached Mr Merritt and asked him about the quantity of the product in the bag as he had observed that the bag was not receiving product. Mr Gunn then walked over to the wall and activated the unlabelled 'on-button' for a mixer (which was actually for No 1 Mixer) located near the blending area on the ground floor without realising that Mr Gray was inside the mixer on the mezzanine level. Shortly afterwards Mr Merritt, who was aware that Mr Gray was in the mixer, hit the stop button. 21. The action of Mr Gunn activating the on-button for No 1 Mixer caused the mixer to commence operation and the internal spiral mixer blades or 'beaters' and outer sweeper paddles in the hopper to commence to operate whilst Mr Gray was inside the hopper performing the task of cleaning the residual product from the hopper. 22. Employees of Provimi heard cries from Mr Gray and proceeded upstairs to attempt to free Mr Gray who was trapped in the hopper of No 1 Mixer. In order to free Mr Gray a number of employees including Mr Merritt got in the mixer with Mr Gray to try and free him by manually moving the blades. Whilst initially in the hopper trying to assist, the other employees had not electrically isolated the hopper - by switching off the isolation switch located at the rear of the mixer. It was only later during the attempt to extricate Mr Gray from the hopper that Mr Merritt realised that the power to the No 1 Mixer was still possibly on and the switch was then deactivated. 23. Mr Gray was then removed from the No 1 Mixer. Police and ambulance officers arrived at the scene. Mr Gray was then conveyed by ambulance to Forbes Hospital and was subsequently pronounced dead at approximately 10:20 a.m. on 10 July 2006. The system for isolating and cleaning No 1 Mixer 24. The system to be followed in respect of cleaning the mixer was not documented. 25. The system was shown to new employees either as part of the Induction process or as part of 'on the job training' by other employees. 26. The system was reliant on the employee being adequately and correctly shown each step in the process which was required to effectively electrically isolate and 'lock-out' the plant. 27. The first step entailed switching off the mixer using the red 'off' button located in a bank of six switches on the ground floor blending area. These included 3 green start buttons – one each for the floor level auger (screw conveyor), the floveyor and the mixer unit, with 3 red off buttons for the same devices. Pressing the red off button for the mixer switched off the other 2 plant items. 28. The next step required the deactivation of a main switch located in the electrical switchboard. The electrical switch board contained a number of switches and fuses relating to various pieces of plant. 29. It appears that some employees adopted a practice of removing a fuse from the switchboard at this point however this was not documented and often not performed. 30. The person performing the 'lock out' task was then required to lock the switchboard with a padlock and was required to take the key with them so that no one else could access the switchboard to turn on the plant. 31. The employee engaged in the task would go up to the mezzanine level and switch off another isolating switch located at the rear of the mixer unit before entering the hopper to clean it. 32. This later step – of switching off another isolating switch located at the rear of the mixer - was not known to all employees and consequently some employees did not perform that step. The isolating switch located at the rear of the mixer's function was to cut power to No.1 Mixer when the power was otherwise active or 'live'. 33. It appears that Mr Gray had attempted to isolate the electrical supply to the No 1 Mixer by taking the first two steps and had a lock on the electrical box. It is not known if Mr Gray knew about the isolation switch at the rear of the mixer. It would appear that he did not undertake that step as employees during the attempt to extricate Mr Gray noted that this switch had not been isolated. 34. The cleaning process for the hopper required the lid of the mixer located on the mezzanine level to be opened. The worker was then required to climb inside the mixer to manually turn the internal spiral mixer blades or 'beaters' and outer sweeper paddles so that the product could be swept into the out chute. 35. Turning the beaters required the operator to stand on a beater blade where the operator could and holding onto the sides, push down to enable the beaters to turn slowly. Once the beaters had turned the operator had to get into the mixer and bend over the shaft and stretch to get to the other end of the mixer to sweep the product out. Instruction, Training and Supervision 36. According to Mr Paul Hemming, Production Supervisor, Mr Gray received on 3 July 2006 (his first day), a standard "new employee induction check list" and was shown around the premises and provided with a verbal explanation of the mixing processes and mixing plant. 37. The bulk of training and instruction provided by Provimi to its employees was in the form of "on the job" training and instruction provided and supervised by Mr Hemming. 38. At the time of the incident Mr Gray had been employed by Provimi for 7 days. Systems of Work – Practices and Procedures on the Premises 39. It is apparent from the WorkCover investigation that there was a system of work in place on the premises but that this system was unsafe, particularly in respect of the procedure for the electrical isolation and "locking out" of the mixer. The system was not documented and was largely reliant on the employee correctly following the steps required to effectively electrically isolate and lock out the plant in order to perform the cleaning task. 40. It is apparent that different employees adopted various versions of the isolation procedure. 41. No verification procedure was in place to indicate that this item of plant could or could not start once the isolation procedure was completed. Some employees "generally" checked that power was off before proceeding to undertake the task of cleaning the hopper, although this step was not undertaken by all employees. 42. The "lock down" ("cut out systems") and cleaning process did not meet the applicable Australian Standard, namely AS 4024 "Safeguarding of Machinery". 43. The instruction and training provided to Provimi's employees was inadequate, particularly in relation to the system for electrical isolation and "lock out" of the No 1 Mixer. 44. There was no documented system to ensure competence and ability to perform the work safely. 45. The procedure depended upon a "buddy" system. There was a reliance on experienced employees working with new employees and showing them how to perform the tasks safely. Although nothing in the induction procedure indicated this. 46. Apart from being initially shown the procedure during the initial induction the employees relied on being shown the correct procedure by other employees, who had themselves often only been employed for a short period of time by Provimi. 47. At the time of the incident, none of the operators working on No.1 Mixer had been employed for longer than 4 weeks. Changes to Systems of Work since the Incident 48. On 10 July 2006, WorkCover Inspector Helen Clothier issued a Prohibition Notices (Nos. 14975-1 and 14975-2) to Provimi that required the company to cease the activity of "cleaning out Mixer 1 and 2 by entering the mixer without adequate cut out systems". 49. On 13 July 2006, Mr Van der Zwaag, the defendant's Production Manager notified Inspector Clothier by email that the following improvements had been made to No 1 Mixer: (1) We have put a mezz in all man entries on top of the mixer … Each of the mezzes is locked by a padlock. The key of the padlock is on the same key ring as the key to the isolation switch … The keys can only be taken out of the isolation switch if the switch is on the OFF position. One needs a key in the isolation switch to turn it back on. (2) On top of that all mezzes have a limit switch … which kills the power to the motor if you lift the mess from the mixer. (3) Shead and Nicholson (electricians) have just tested the system and it does that it is supposed to do: · You cannot turn on the mixer when the isolation switch is in the OFF position; · The limit switches kill the power to the mixer (mixer stops) as soon as you take one of the mezzes out. 50. Provimi also implemented additional occupational health and safety measures subsequent to the incident as follows: (1) The company retained Shead and Nicholson (Electricians) to install further "lock down" switching mechanisms on the power suppliers to all the mixers to ensure as far as possible, the fail safe "lock out" of the mixers when the mixing hoppers are being cleaned; (2) The company retained Bosmac (an engineering firm from Parkes) to install, under the mixer lid, a lockable mesh mezzanine cover fitted with cut-out micro-switches which, when opened, activate the switching mechanism and cut the power supply to the entire mixer. Co-operation 51. Provimi has co-operated with WorkCover throughout its investigations into this matter. No Prior convictions 52. Provimi does not have any prior convictions under NSW occupational health and safety legislation. Early Plea of guilty 53. Provimi entered a plea of guilty to the charge at the earliest opportunity, namely the first directions hearing on 5 September 2008. oo00oo 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.