SafeWork NSW v Macquarie Milling Co Pty Limited ; SafeWork NSW v Samuels [2019] NSWDC 111

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Macquarie Milling Co Pty Limited ; SafeWork NSW v Samuels [2019] NSWDC 111 Hearing dates: 1 April 2019 Date of orders: 10 April 2019 Decision date: 10 April 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In respect of Macquarie Milling Co Pty Limited:

(1) The offender is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $180,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender to pay the prosecutor's costs in the amount of $37,500.

In respect of Roland Albert Samuels:

(1) The offender is convicted. (2) The appropriate fine is $30,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $22,500. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender to pay the prosecutor's costs in the amount of $37,500. (6) Order pursuant to s 241 of the Work Health and Safety Act 2011 that: (a) Mr Samuels is to undertake a course in due diligence training for senior managers and company directors, within six months of the date of these orders; (b) Mr Samuels is to undertake a course in work health and safety risk management for supervisors and managers, within six months of the date of these orders; (c) The courses referred to in (6)(a) and (6)(b) above are to be conducted by a provider that is a Registered Training Organisation; and (d) The courses referred to in (6)(a) and (6)(b) above are to be conducted on site at the premises of Macquarie Milling, if such on-site courses are available. (7) Order pursuant to s 238 of the Work Health and Safety Act 2011 that: (a) within two months of completion of the Training Order set out in paragraph 6 above, Mr Samuels is to prepare a work health and safety due diligence plan (Due Diligence Plan) for the officers of Macquarie Milling Co Pty Limited, in particular himself, which outlines how the lessons learned through the Training Order in paragraph 6 above have been (or will be) implemented in the workplace, and in particular how the officers of Macquarie Milling Co Pty Limited will take steps to: (i) acquire and keep up-to-date knowledge of work health and safety matters; (ii) gain an understanding of the nature of the operations of the business or undertaking of Macquarie Milling Co Pty Limited, and generally of the hazards and risk associated with those operations; (iii) ensure that Macquarie Milling Co Pty Limited has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business; (iv) ensure that Macquarie Milling Co Pty Limited has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and (v) ensure that Macquarie Milling Co Pty Limited has, and implements, processes for complying with its duties or obligations under the Act. (b) within two months of the completion of the Due Diligence Plan, arrange and attend a meeting with the SafeWork NSW Inspectorate, to review and finalise the Due Diligence Plan. (8) Pursuant to s 239 of the Work Health and Safety Act 2011, Mr Samuels is to enter into a work health and safety undertaking on the following conditions: (a) The matter is adjourned to Friday, 3 April 2020 and Mr Samuels is to appear on that date; (b) Mr Samuels is to appear before the court if called on to do so during the term of the adjournment; (c) Mr Samuels is not to commit any offence under the Act during the term of the adjournment; (d) Mr Samuels is to complete the Training Order in Order (6) above, and is to provide evidence of its completion to the court on the next occasion; (e) Mr Samuels is to complete the WHS project order in paragraph (7) above, and is to provide evidence of its completion to the court on the next occasion; (f) Mr Samuels is to notify the SafeWork NSW Inspectorate when he has completed the Training Order and the WHS Project Order to give the Inspectorate sufficient time to attend the premises of Macquarie Milling Co Pty Limited and satisfy itself that the orders have been completed, and the operation being conducted at the premises complies with the Act; (g) Mr Samuels is to notify the Prosecutor, and the Registrar of the District Court at the Downing Centre of any change of address for service. (9) Liberty to apply if there is any difficulty in the performance of these orders or if the parties wish to change the date in 8(a) above. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury