WorkCover v Ecowize Specialised Hygiene Services P/L [2014] NSWDC 313

District Court New South Wales

Medium Neutral Citation: WorkCover v Ecowize Specialised Hygiene Services P/L [2014] NSWDC 313 Hearing dates: 9 September 2014 Decision date: 09 September 2014 Jurisdiction: Criminal Before: Curtis J Decision: The defendant is convicted and fined Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Ecowize Specialised Hygiene Services Pty Ltd (Defendant) Representation: Counsel: M P Chaill appeared for the Prosecutor J Phillips SC with P M Perry appeared for the Defendant

Solicitors: DLA Piper Australia (Prosecutor) Andrew J Kemp & Co Lawyers (Defendant) File Number(s): 2013/89963; 2013/89979

Judgment 1. HIS HONOUR: The defendant, Ecowize Specialised Hygiene Services Pty Ltd, pleads guilty to the charge that on 25 March 2011 at Tamworth it failed to ensure that Mr Sean Sheridan, a person not in its employ, was not exposed to risks to his health and safety arising from the conduct of the defendant's undertaking. The charge is brought pursuant to s 82 of the Occupational Health and Safety Act 2000. 2. On that day Mr Sheridan was engaged as a cleaner to clean a large spin chiller located in the premises of Baiada Poultry. The chiller constituted a large trough several metres long, through which slaughtered chickens were passed in order to cool them for hygienic reasons. At the end of the trough was a rotating paddle which, after the chickens had been cooled, lifted them from the chiller and placed them on some conveyor line. 3. On the day of his injury Mr Sheridan was standing on a green plastic bucket on a slippery floor, using a hose to wash the internal components of the machine. For some reason, which he cannot entirely explain, his right arm, hand or clothing became entangled into the rotating paddle blade at the end of the spin chiller, drawing him head first into the machine. He suffered a dislocation of his right shoulder, a fracture of his right humerus and lacerations and associated nerve damage to his right upper arm. 4. Mr Sheridan was employed by a company, Ecowize City Pty Ltd, and was loaned to the defendant, Ecowize Specialised Hygiene Services Pty Ltd, an associated company, the latter company having a contract to clean the premises of Baiada. Many particulars of the omissions giving rise to the risks to Mr Sheridan are pleaded, but the salient features are these. 5. First, the spin chiller was not isolated so as to preclude the paddles turning at the time of cleaning. Secondly, there was no emergency stop lanyard or pull wire that could be engaged by Mr Sheridan in the event that he fell. Thirdly, he was not provided with a safe or stable working platform upon which he may work. 6. The most relevant fact in relation to the criminality of the defendant is that a similar injury on a similar machine occurred on 19 September 2003 at Baiada Poultry premises at Pendle Hill in Sydney. The company was prosecuted in relation to that event. The particulars of the charges were that the company had failed to ensure the spin chiller was not operating prior to the commencement of the cleaning, that the defendant failed to ensure that its workers had access to it and an adequate platform upon which to stand, and the failure to ensure adequate information, instruction and training to the worker. 7. In the course of those proceedings the defendant assured the Court that the risk would be obviated by the provision of a safe cleaning mode in‑switch, that is a cut‑out switch on all spin chillers, and that the spin chillers would only operate in a jolt fashion, that is with the operator only able to rotate the panels one‑third of a revolution on each press of a button. It undertook also that platforms would be installed to provide safe access to cleaners and that additional emergency stop lanyards would be provided. 8. On the face of it because of the repetition of the three matters, isolation switches, lanyards and safe work platforms, it might be thought that the defendant did nothing in response to the first injury. The evidence does however establish that the cabinets which contained the electrical switches permitting the machine to operate had been provided with locks. It also appears that lanyards had been installed and that provision had been made for the provision of moveable platforms. 9. The problems were that although lockable cabinets had been provided, no system had been instituted to ensure that those cabinets were locked at the time Mr Sheridan suffered his injury, the lanyard which had been installed upon the chiller at Tamworth had become disabled, the ladder provided was found to be unsafe and not used, and Mr Sheridan was not properly trained in the cleaning process. 10. The problem with the lanyard had been identified by the defendant's staff some months before the event, but work was permitted to continue without that being repaired. The practice of cleaning the chiller while it was in use had come to the attention of the defendant's safety auditor in October 2008, who wrote to the head office to the effect that cleaning was being performed while the spin chiller was running and that a drum was being used to stand on. This report apparently found its way to the desk of Mr Clarke, the responsible manager, but there is no evidence that anything was done. 11. In April 2009 a further report was created by Ms Yee, pointing out that upside down chemical drums were still being used and that this was an unsafe practice. 12. Of particular concern is that the defendant employed Mr Thompson, who commenced supervisory duties in February 2009. He was responsible for safe practices. He knew that equipment and machinery should not be worked on while moving and unguarded. Nevertheless he was aware that the control panel for the spin chillers made no provision for isolation in accordance with previous instruction; that is because there was no control of the keys. He had himself cleaned and sanitised the spin chillers himself while the spin chillers were energised and the paddles were rotating and was aware though that Ecowize workers did it in this manner, nevertheless he did nothing to prevent the practice. 13. The criminality of the defendant is to be assessed focussing upon the minds of those persons employed by the defendant whose responsibility it was to discharge the defendant's duty towards Mr Sheridan. Those two persons were Mr Thompson and Mr Clarke. 14. Mr Thompson acted in blatant disregard of the instructions that he was given by the defendant, but nevertheless it was his action and his conduct which for the purpose of the legislation was the conduct of the company. Mr Clarke was informed of the unsafe practices at Tamworth, but produced no document in which that practice was to be prevented. 15. The objective seriousness of the offence is reflected in the circumstance that the risks to which Mr Sheridan were exposed were not only foreseeable but known and foreseen. They had been convicted in relation to a matter in 2003. They been alerted by memorandums in October and April 2008 that the practice continued, yet nothing was done. These circumstances reflect a high degree of criminality. 16. It is obvious that general deterrence is of particular significance, given that these events occurred in an abattoir, and is renown for the high degree of risk generated by knives and slaughtering machines. It is also apparent that this defendant was not sufficiently deterred by the penalty imposed in relation to the earlier matter. Individual deterrence ranks highly as a matter of consideration. 17. Subjectively I recognise that the company was not indifferent to safety. It created systems designed to protect the safety of persons in the workplace. To some extent those systems were effective. Ironically that is demonstrated by the memorandums of Ms Yee, who responsibly detected and reported risks to safety which should have been addressed. The company published manuals and inducted persons into the workplace. Unfortunately the company's efforts in this regard were negated by the conduct of Mr Thompson. 18. I accept that the company has good character reflected in its industrial record. It has operated for 13 years since 2001, engaging 258 employees in, as I say, dangerous premises. At the Tamworth site there were 100 items of equipment, many of which created dangers in the workplace. To have operated for 13 years with only the one conviction is, while not perfect, a commendable record. 19. Mr Clarke has given evidence of his concern for the welfare of Mr Sheridan. He visited him in hospital and in his home, and assisted in the provision of rehabilitation services. He says he has expressed his regret to Mr Sheridan. I accept from the evidence of Mr Clarke that he has, for the company, accepted responsibility and acknowledged the fault. 20. The maximum penalty is $825,000. Bearing in mind the extent of the criminality and the obvious need for deterrence, I find that the appropriate penalty is $150,000. The defendant entered a guilty plea at the earliest opportunity and cooperated with the prosecution, entitling the company to a discount of 25%, to $112,500. The defendant has agreed to pay the prosecutor's costs in the sum of $25,000. This financial imposition itself constitutes a penalty. The defendant is convicted and fined $87,500. 21. In the matter of Ecowize City Pty Ltd, I note that this company was the actual employer of Mr Sheridan and was charged with the duties imposed under s 81 of the Act. Nevertheless the correlation between the companies and the particulars are such as to indicate that no further penalty is necessary. I convict Ecowize City Pty Ltd, but enter no further penalty and make no order for costs.