SafeWork NSW v MMP Industrial Pty Ltd [2019] NSWDC 854

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v MMP Industrial Pty Ltd [2019] NSWDC 854 Hearing dates: 4 November 2019 Date of orders: 22 November 2019 Decision date: 22 November 2019 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted of the s 32(1) offence. (2) The appropriate fine would be $100,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the defendant to pay a fine of $75,000.00. (4) The defendant is convicted of the s 38(1) offence. (5) The appropriate fine would be $1,000.00 and that will be reduced by 25% to reflect the guilty plea. (6) I accordingly order the defendant to pay a fine of $750.00. (7) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fines are to be paid to the prosecutor. (8) I impose a training order in accordance with paragraph 94(1) – (6) inclusive. (9) The matter is listed before me at 10:00 am on 20 November 2020 to check compliance with the training orders. (10) The defendant is to pay the prosecution's costs as agreed or assessed. (11) Pursuant to s 241 of the Act: (a) the defendant is to arrange that Nat Stewart (General Manager) and Amy Borgman (WHS Officer) are to undertake a course in due diligence training for senior managers and company directors, within six months of the date of these orders; and (b) The course in due diligence training for senior managers and company directors is to be provided by PeopleSafe Australia [ABN 55 125 740 730] and titled 'Due Diligence Training for Senior Managers and Company Directors'. (12) Pursuant to s 21 of the Act: (a) the defendant is to arrange that Nat Stewart (General Manager) and Amy Borgman (WHS Officer) are to undertake a course in hazardous substance training, within six months of the date of these orders; and (b) the course in hazardous substance training is to be provided by PeopleSafe Australia [ABN 55 125 740 730] and titled 'Hazardous Substance Training'. (13) Pursuant to s 241 of the Act: (a) the defendant is to arrange that Nat Stewart (General Manager) and Amy Borgman (WHS Officer) are to undertake a course in electrical compliance in hazardous areas, within six months of the date of these orders; and (b) the course in electrical compliance in hazardous areas is to be provided by Explosion Protection Technology Pty Limited [ACN 617 291 595] titled 'How to Apply Hazardous Area Australian Standards'. (14) Pursuant to s 238 of the Act, the defendant is to: (a) within three months of completion of the Training Orders stated above at paragraphs 4 to 6 (inclusive), prepare a work health and safety plan ('WHS Plan') that outlines how the lessons learned through the Training Orders have been (or will be) implemented in the workplace of the defendant, and in particular how the defendant will take steps to: (i) acquire and keep up-to-date knowledge of work health and safety matters; and (ii) gain an understanding of the nature of all operations of the business or undertaking of the defendant, and of the hazards and risks associated with those operations, with a specific focus on the risks of uncontrolled explosion and/or fire, risk of static discharge/charge, risks associated with flammable liquids, risks associated with the handling of dangerous goods/hazardous substances and the eliminating and/or minimisation of those risks by the safe storage and handling techniques of Dangerous Goods/Hazardous Substances; and (iii) ensure that the defendant has available for its use, and uses appropriate resources and processes to eliminate or minimise risks to health and safety form work carried out as part of the conduct of the business by undertaking a current staff skills audit (capability matrix), including the identification of the supervision arrangements; and (iv) ensure the defendant has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way of that information to works, directors, and SafeWork NSW, such as an incident and hazard system, risk register, WHS item on meeting agendas; and (v) comply with its duties or obligations under the Act with a specific focus on the risks and control measures of uncontrolled explosion and/or fire, risks and control measures of static discharge/charge, risks and control measures associated with flammable liquids, risks and control measures associated with the handling of dangerous goods/hazardous substances and the eliminating and/or minimisation of those risks by the safe storage and handling techniques of Dangerous Goods/Hazardous Substances. Such a safety management system should be in accordance with AS/NZS ISO 45001:2018: Requirements with guidance for use – Occupational health and safety management systems – Requirements with guidance for use. Within two months of the completion of the WHS Plan, arrange and attend a meeting with the SafeWork NSW Inspectorate, to review and finalise the WHS Plan. (15) Pursuant to s 239 of the Act, the defendant is to enter into a work health and safety undertaking on the condition that within two months of the completion of the WHS Plan, arrange and attend a meeting with the SafeWork NSW Inspectorate, to review and finalise the WHS Plan. (16) Pursuant to s 239 of the Act, the defendant is to enter into a work health and safety undertaking on the following conditions: (a) the matter is adjourned to 20 November 2020, and the defendant is to appear on that date; and (b) the defendant is to appear before the Court if called on to do so during the term of the adjournment; and (c) the defendant is not to commit any offence under the Act during the term of the adjournment; and (d) the defendant is to complete the Training Orders mentioned above in paragraph 4 to 6 (inclusive) and to provide evidence of their completion to the Court on the date specified by the Court; and (e) the defendant is to notify the Prosecutor and the Registrar of the NSW District Court at the Downing Centre of any change of address for service. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty – training orders – due diligence plan – work health and safety undertaking COSTS – prosecution costs OTHER – use of flammable liquids – risk of explosion or fire – inadequate training Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Capral Aluminimum Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; (1990) 90 IR 256 Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8; [1999] NSWIRComm 353 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver city Drilling (NSW) Pty Ltd [2017] NSWCCA 96 SafeWork NSW v Samuels [2019] NSWDC 111 SafeWork NSW v Yan Huai Wu and Zenger (Aust) Pty Ltd [2018] NSWDC 211 SafeWork (NSW) v Romanous Contractors [2016] NSWDC 48 WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108 WorkCover v Brandown Pty Ltd [2015] NSWDC 261 Texts Cited: Australian Standard AS/NZS 1020:1995 SafeWork Australia: Managing risks of hazardous chemicals in the workplace (July 2012) SafeWork Australia: Managing risks of hazardous chemicals in the workplace (July 2014) Category: Sentence Parties: SafeWork New South Wales (Prosecutor) MMP Industrial Pty Ltd (Defendant) Representation: Counsel: Mr C McGee appeared for the Prosecutor Ms E James appeared for the Defendant