Ins John Mulder v Rorato Nominees Pty Ltd. Prosecution pursuant to s 8(2) of the OH&S Act 2000; Ins Stephen Jones v Sergio Rorato. Prosecution under s 8(2) by virtue of s 26(1) of the OH&S Act 2000 [2008] NSWIRComm 13 (6 February 2008)

New South Wales Industrial Relations Commission

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Ins John Mulder v Rorato Nominees Pty Ltd. Prosecution pursuant to s 8(2) of the OH&S Act 2000; Ins Stephen Jones v Sergio Rorato. Prosecution under s 8(2) by virtue of s 26(1) of the OH&S Act 2000 [2008] NSWIRComm 13 (6 February 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Ins John Mulder v Rorato Nominees Pty Ltd. Prosecution pursuant to s 8(2) of the OH&S Act 2000; Ins Stephen Jones v Sergio Rorato. Prosecution under s 8(2) by virtue of s 26(1) of the OH&S Act 2000 [2008] NSWIRComm 13



FILE NUMBER(S):
IRC 243 and 471

HEARING DATE(S):
31 January 2008

DATE OF JUDGMENT:
6 February 2008

PARTIES:
PROSECUTORS:
Inspector John Mulder
and
Inspector Stephen Jones

DEFENDANTS:
Rorato Nominees Pty Ltd
and
Sergio Rorato

CORAM:
Haylen J


CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(2) and s 26(1) -
corporation and sole director plead guilty to breach - tomato
processing plant -use of contract labour - contract required
defendants to provide a safe work place - contractor working in
loading area hit by forklift truck - absence of specific training and
direction prohibiting or restricting pedestrians entering loading area - contractor suffers multiple injuries and unable to resume pre-injury employment - contest as to some relevant facts but facts substantially agreed - serious breach established - general and specific deterrence considered - early plea and clean record operate to mitigate penalty - penalty imposed


LEGAL REPRESENTATIVES
PROSECUTOR:
Mr R Reitano of counsel
SOLICITORS:
WorkCover Authority

DEFENDANTS:
Mr R Warren of counsel
SOLICITORS:
Toomey Pegg Drevikovsky


CASES CITED:
Primary Contracting Services Pty Ltd and Narelle Pamela Davies [2008] NSWIRComm 12
Workcover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No.2) (1999) 101 IR 261

LEGISLATION CITED:
Factories Shops & Industries Act


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J
6 February 2008

Matter No IRC 243 of 2007
INSPECTOR JOHN MULDER v RORATO NOMINEES PTY LTD
Prosecution pursuant to s 8(2) of the Occupational Health and Safety Act 2000

Matter No IRC 471 of 2007
INSPECTOR STEPHEN JONES v SERGIO RORATO
Prosecution under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000

JUDGMENT
[2008] NSWIRComm 13

1 In April 2005, Rorato Nominees Pty Ltd ("Rorato") owned and operated a tomato-processing factory located at Jerilderie. Mr Sergio Rorato ("Mr Rorato") was the sole director of the company. The company had a contract with Primary Contracting Services Pty Ltd t/as as Australian Contracting Solutions ("PCS") to provide workers at the company's premises. One such worker was Mr Mahesh Prajapati. Mr Prajapati had been employed as a factory hand in March 2003 and performed other functions: from June 2004, he had entered a contract with PCS but had continued to undertake work at Rorato's premises under that arrangement.

2 On 24 April 2005, Mr Prajapati was working in the loading dock area of the premises when he was hit by a forklift truck engaged in the task of unloading tomato bins from a truck. Mr Prajapati sustained severe injuries, including bi-lateral broken ankles, a crush fracture of his left arm, a crushed forefinger, fractures to the bones of his left hand and severe lacerations to his arm, lower legs and torso. He was treated at the Goulburn Valley Hospital and was not discharged until 8 June 2005. When prosecution proceedings were commenced in February 2007 against the company, Mr Prajapati was unfit for his pre-injury employment and that condition has remained unaltered until the present time.

3 Following an investigation of this workplace accident by the WorkCover Authority, proceedings were commenced alleging a breach of s 8(2) of the Occupational Health and Safety Act 2000 by Rorato Nominees Pty Ltd and by operation of s 26(1) of the Act, proceedings were later taken for a breach of s 8(2) of the Act against the sole director, Mr Sergio Rorato. Proceedings were also commenced, ultimately alleging a breach of s 10(1) of the Act, by PCS and its director Ms Narelle Davies, arising from the same incident. The inter-relationship of those matters and the subsequent proceedings commenced against the directors of each of the corporations resulted in the matters coming before the Court on four occasions before a plea of guilty was entered in the present matters. This judgment deals with the evidence and submissions on sentence and should be read in conjunction with the judgment dealing with Primary Contracting Services Pty Ltd and Narelle Pamela Davies [2008] NSWIRComm 12.

4 In relation to the defendant, Rorato, the crucial particulars of the charge were:
· the defendant failed to adequately restrict access to the loading/unloading area at the premises so as to ensure that people were not exposed to the risk of being struck by moving forklift trucks;
· the defendant failed to ensure that there were adequate control measures, including but not limited to adequate signage, in place at the premises so as to eliminate the risk at the premises of moving forklifts;
· the defendant failed to have a safe system of work relating to the use of forklifts and in particular failed to have in place a system requiring that forklifts were not driven when the driver/operator's vision was obstructed or impaired;
· the defendant failed to provide adequate instruction, information, training and supervision to forklift drivers and others working at the premises so as to ensure that people were not at risk of being struck by forklifts at the premises.

These particulars were also alleged against the director, Mr Rorato.

5 The evidence for the prosecutor comprised of an Agreed Statement of Facts together with annexures. The annexures were various photographs of the scene, a PCS investigation report, a factual inspection report by Inspector Jones, a hiring agreement with Australian Contracting Solutions and a record of prior convictions showing that the company had no prior convictions but that Mr Rorato had been found guilty of three breaches of the Factories Shops & Industries Act in 1985 where fines of $50 were imposed in relation to each breach. The prosecutor also handed up a victim's impact statement to be considered upon the conviction of the defendants. The Statement of Facts, in four places, stated matters that were not agreed and those matters appear in italics in the Statement of Facts. The Statement of Facts in that form appears as an annexure to this judgment.

6 In light of the disputed issues of fact, the prosecutor called oral evidence from Mr and Mrs Prajapati. Mr Prajapati said that on the day of the accident he was working close to the loading dock area and was cleaning that area. A truck then arrived in the loading area and he noticed that the truck driver, a forklift driver and also Mr Rorato were present. The ropes on the truck were being opened, meaning that they were being untied. Mr Rorato had asked him to help in the unloading task and he was untying the rope holding the tomato barrels on the truck and then winding the rope and placing it under the wheels of the truck. He said the loading dock area was noisy and he was not looking at the forklift but was looking at the bins on the truck and there were many sounds. He had seen other people walking in that area but had not received any training in relation to going into that area. He had no training in the use of forklifts in that area. He had not received any training when he commenced work with Rorato and he had not received any training from anyone from the company called Primary Contracting Services. Mr Prajapati gave his evidence with the assistance of an interpreter.

7 In cross-examination, Mr Prajapati denied being trained in the use of a forklift while being employed by Rorato or PCS. He said he had not been taught to wear a reflective jacket while using the forklift. Mr Prajapati was then shown a photograph of him wearing a reflective vest while operating a forklift, the photograph said to have been taken on 16 February 2005 at the factory premises. He said he remembered being taught something at that time by the supervisor who took the photograph. He continued to deny that he received training on the forklift and said that he was doing what the supervisor told him to do. The supervisor who was instructing at the time was Mr Peter Robinson. The reflective vest and gloves he was wearing in the photograph were totally new and he had worked on the forklifts in 2003 and 2004. He said he was not training on the forklift when he was working on the night shift. In 2003 and 2004, the supervisor was telling him to run the forklift and everybody was "running this forklift" and he too was doing that work. Mr Sam Prasad had given "training for giving me that paper" but it was not training. He denied that anybody gave him training in forklift operation. Mr Prasad had not given him any training but had only showed him a paper. He did not know on 15 February 2005 that he required a license to drive a forklift. He had been running the forklift from 11 February 2005 and had only worn the reflective vest on the day that the picture was taken. He did not know whether to wear it or not wear it but the vest was always hanging on the back of the seat.

8 In performing the work in the batching area, Mr Prajapati said he was assisted by Ms Sharita Patel and was also told what to do by Mr Peter Robinson. Mr Robinson gave instructions to him in English but he was also helped in what to do by Ms Patel. He said he did different jobs and followed what others did. He said he followed what Mr Robinson was doing by looking at the work rather than by understanding it. He had a number of conversations in English with Mr Robinson including conversations after work and he was "trying to understand" what he was saying and had started to understand what was being said during these discussions but did not fully understand what was being said. Mr Prajapati did not remember attending an induction course for employees at the factory site on 22 February 2004 and he denied that at that time Ms Patel read to him the safety book and the factory handbook in the Hindi language. Ms Patel was working day shifts and he was then working on the night shift. Ms Patel had not read out this material either in Hindi or in the Gujarati language. Mr Prajapati was shown a document dated 22 February 2004 bearing his name and his wife's name and accepted that he had signed that document but denied that document had anything in the column under the heading "Read safety handbook". The document now had as an entry the following words:

Food safety and hygiene handbook. Read by Ms Rita Patel. Also farm/factory induction and training manual.

The name "Rita" appeared immediately under that entry in the column as a handwritten signature. Mr Prajapati denied that any of those entries were on the document when he signed his name: he signed the document with everyone else working on the night shift and the supervisor had told him to sign it. He denied that any training was actually given. He had signed it while working on the night shift.

9 On the day of the accident, there was no production work available and everybody was cleaning and so Mr Prajapati also performed cleaning work with other people. There were no tomatoes available at that time for the factory process. He denied that he was told by Mr Robinson to clean up outside the yard in front of the factory and said he was doing that cleaning work because everybody else was cleaning. Mr Robinson was the day shift supervisor but he was not there at the time. Everybody, including the forklift driver, was doing the same cleaning job. Mr Rorato had come to the factory with the truck but had travelled in his own car and arrived at the same time. Mr Rorato commenced work on a forklift truck and there were two forklifts working. Mr Rorato had told Mr Prajapati to help him. Mr Prajapati rejected the proposition that Mr Rorato did not tell him to help and stated that he would not do this job himself unless he was given a direction to do so because he was not "a boss". He would do things when he was told to do so. He said he was told to help tie the ropes on the truck although he understood that it was being unloaded: he was taking out the ropes and putting them under the truck. In December 2005, he told the Inspector that he was "securing ropes on the truck in the loading area". He said he was trying to take out the rope from the other side of the truck. When the truck arrived Mr Robinson was not there. Mr Robinson had not told him to clean up and pick up accumulated rubbish at the site but he had performed that work himself - when there was no work, he did cleaning and on that day he was doing the work himself. He denied that he was working approximately 100 metres from where Mr Robinson had directed him to work and said that he was cleaning up rubbish in front of the factory near the loading dock area where the accident occurred. He was cleaning that area when the truck arrived. Trucks were going to keep on coming and he was told to do the work as fast as he could.

10 Mrs Ramilaben Prajapati had worked at the company's Jerilderie factory with her husband and had also signed the document dated 22 February 2004 where there was an entry about the reading of the safety handbook and the factory handbook. Mrs Prajapati had signed the document but before signing it, the safety handbook and the farm factory induction and training manual was not read to her. The words appearing in the third column of the document concerning the reading of the handbooks were not in the document when she signed it. While working at the factory she had received no induction training at all and she had been told that if she wanted to work in the future, she had to sign the document and that is why she signed it.

11 For the defendant, Mr Glenn Rorato, the farm manager for the defendant company, swore an affidavit and referred to a number of annexures dealing particularly with actions taken by the defendant since the accident. Those changes and measures included the following: the company had painted the floor of the loading area with bright markings indicating restricted areas and indicating that no unauthorised personnel should be present; more warning signs had been placed indicating the potential dangers of forklift operations; a sign stating, "No unauthorised personnel past this point" had been posted at the entrance to the loading area; and; the company had implemented a policy of disciplining any worker who ignored safety requirements. The company had also revised its induction and training manual and a document that contained the occupational safety issues handbook to include more details in relation to forklift safety. The company's most recent manual had a specific safe work practices section dealing with forklift safe work procedures. Those procedures included: a requirement that drivers were to ensure that they were never to drive forward with a load that in any way impeded their vision and where that occurred, the forklift was to be reversed; other people and workers were to keep clear when the forklift was operating and workers were not to seek to obtain access to restricted areas and were to walk in the walkways provided; and, operators were to sound the horn to warn workers of an oncoming forklift when entering the factory. The company had revised its induction and training manual to contain maps of the plant, clearly indicating restricted areas such as the loading area. In addition, the training manual had been translated into the Hindi language. The company had all managers and supervisors undertake occupational health and safety training, receiving certificate levels 1, 2 & 3, while closed circuit video cameras had been installed to enable monitoring of restricted areas. The company no longer handled small bins in the unloading area and had purchased and installed a bulk handling system eliminating the usage of small forklifts in the area where the accident occurred. A palletiser had been purchased which eliminated all of the hand stacking and so had considerably reduced forklift traffic. Extra lighting had been installed in the loading area and an additional person had been employed in the office to assist in monitoring and enforcing occupational health and safety policies while the factory was in operation during the processing season. Mr Glenn Rorato was not required for cross-examination.

12 In oral evidence, Mr Sergio Rorato stated that he arrived in Australia in 1961 and at that time had commenced farming in the Riverina area. In 1966 he bought a farm in Jerilderie and from 1961 commenced employing people. He was now 69 years of age and was the sole director of the defendant company. The company grew tomatoes, wheat, and barley and processed product from its Jerilderie factory.

13 On the day of the accident, he was told by the forklift driver that Mr Prajapati had been hurt. He had not seen Mr Prajapati earlier that day and had not given him any instructions on the work he was to perform that day. Mr Prajapati did not report to him but reported to other members of the team including Mr Rorato's son and daughter and Mr Robinson. From time to time, Mr Rorato had spoken to Mr Prajapati while working at the factory and Mr Prajapati had prepared some signs for him. On those occasions when they had discussions, Mr Rorato had no difficulty understanding Mr Prajapati and they both spoke English although he referred to Mr Prajapati as "trying to respond" in English.

14 In relation to the accident, Mr Rorato's said that he felt very sorry because he hated to see people being hurt in his factory and he felt very, very sorry for Mr Prajapati although accidents did sometimes happen, including on the roads at Christmas time, but he nevertheless felt sorry for the accident.

15 In cross-examination, Mr Rorato said that, at the time of the accident, he was unloading the truck but was working by himself on the other side to where the forklift driver involved in the accident was working. He did not see the truck driver. Normally, while unloading, the ropes would be undone from the load and then they would be wound up and put under the wheel of the truck. When Mr Rorato arrived the truck was already there and unloading had started. There was another forklift there that Mr Rorato picked up and he started to unload the truck "as everything was clear". Mr Rorato said that he was not untying the truck because when he arrived there were no ropes and so he immediately started to unload the truck. He had not untied any ropes and he did not speak to the other forklift driver nor did he see him because he was working on the other side of the truck. He did not see Mr Prajapati or the driver of the truck or anybody else.

16 Mr Peter Robinson was employed by the defendant company as a supervisor/production manager at the Jerliderie factory. On the day of the accident he saw Mr Prajapati at 7.00 am when they both arrived at work. At that time there were approximately eight people for the shift present at the factory and Mr Robinson said that he told Mr Prajapati to pick up trash at the front of the plant because there was no fruit for production and they were awaiting the arrival of a truck. The area where this cleaning work was to be performed was not near the loading dock but was at the rear of the plant, approximately 100 metres from where the accident occurred. After giving Mr Prajapati that direction, Mr Robinson proceeded to another job in the opposite direction and did not see him go to the area where the cleaning work was to be performed. Mr Robinson did not give any instructions to Mr Prajapati in relation to what he was to do if and when he finished the cleaning up or what he should do if the truck arrived.

17 Mr Robinson had numerous discussions in English with Mr Prajapati outside of work, described as "chit chat". They spoke to each other in English and Mr Prajapati appeared to understand him. Mr Robinson had provided forklift training to Mr Prajapati and had recorded that training in a log book. The forklift training was not completed because it was decided to bring Mr Prajapati into the mixing area to help Mr Robinson with the batch mixing of pasta sauces. That work involved using labelled bags of ingredients and selecting the appropriate ingredients which were all labelled in English. Mr Robinson constantly supervised Mr Prajapati and they worked side by side.

18 In cross-examination, Mr Robinson accepted that he could not recall the exact words he used when telling Mr Prajapati to clean up nor could he remember what instructions he gave to other workers in the morning. He remembered what he said to Mr Prajapati because he could not understand why he was working in the unloading bay. Mr Robinson accepted that he had told the Inspector that he had instructed Mr Prajapati to clean up outside the factory but he could not now recall what was said. It was possible that he had told Mr Prajapati to clean up outside and that he had understood that to mean somewhere other than the front of the factory. Mr Prajapati had not been told that under no circumstances was he to enter the unloading area that morning. The training that had been given in relation to the forklift was how to rotate the bin tipping apparatus, carrying the bins, transporting the bins and moving the forklift around. Mr Robinson did not recall providing specific information about working in the area of the forklift.

19 Ms Sandra Robinson was the office manager for the defendant company and stated that she had been involved in organising training sessions for employees. On 22 February 2004, she had been involved in organising a training session by assembling tables, chairs and pens and printing out the induction manuals for ACS. The training manual was given to "Pat" and Mr Nardy from ACS. Ms Robinson left when the training session started and Pat began speaking. There were approximately 20 - 25 people attending the training session. When the session began, she returned to the office.

DELIBERATION
20 Firstly, it is appropriate to deal with the facts in dispute. In paragraph 9 of the Statement of Facts the prosecutor asserts that, on 24 April 2005, Mr Prajapati went to the loading dock area of Rorato's premises to assist securing the load on the back of a truck. The prosecutor accepts that the evidence does not establish that fact, especially having regard to the evidence that the truck was being unloaded. On the evidence there is no doubt that Mr Prajapati was in this area and the use of the word "securing" may have been imprecisely used by Mr Prajapati because in his evidence he described the task of removing the ropes from the load, twisting them and placing them under the wheel of the truck (as also described by Mr Sergio Rorato). It is perhaps, in this sense, that he was securing the ropes but on the evidence the Court is satisfied that he was in the loading area assisting with a load that was on the back of a truck. In relation to paragraph 13, the Statement of Facts refers to Mr Prajapati going to the loading area, at the direction of Mr Sergio Rorato, to help untie the ropes of the truck. It is noted that Mr Rorato denies giving such a direction in his oral evidence. In those circumstances, the prosecutor accepted that it could not establish, to the criminal standard, that Mr Rorato gave such a direction. That concession was properly made.

21 In relation to paragraph 14 of the Statement of Facts, it was contested that Mr Prajapati had previously seen workers walk through the loading area to undertake cleaning or on their way to the toilet at the back of the building and it was also contested that Mr Prajapati had not received any training regarding accessing the loading area or in the use of forklifts in the loading area. In his oral evidence, Mr Prajapati said that he had received no training although that he accepted from time to time that, when he was working on the forklifts, he had been told what to do (including by Mr Robinson) although he seemed to maintain that this was not "training." Again it may be a problem of language and Mr Prajapati's understanding of what was involved in "training" but the evidence is that Mr Robinson gave some instruction on the operation of the forklift but that evidence was not detailed and did not specify with precision the type of instruction being given nor the time spent in providing that instruction. The prosecutor accepted that Mr Prajapati was shown some things about the operation of the forklift but the evidence did not show that he was instructed in the obligation of wearing a safety vest, nor that he should ensure that others working in the unloading area wore such a vest or that he was to stop working or direct others to leave the area if they were walking through the loading dock while the forklift was in operation. There was no evidence that Mr Prajapati himself was instructed not to walk in that area while a forklift was in operation or that he should not work in that area unless wearing a protective vest. Mr Prajapati's evidence was that he had seen other people working and walking in this area and he was not cross-examined on that evidence. The prosecutor's contentions regarding these matters is established. Paragraph 16 of the Statement of Facts referred to the loading dock area as being very noisy and that Mr Prajapati did not hear the approaching forklift. I accept Mr Prajapati's evidence was to this effect and there was no evidence to the contrary. In Paragraph 17 of the Statement of Facts it was asserted that Mr Prajapati was not provided with an induction training session when he commenced with Rorato's . There was quite some evidence about this point but both Mr Prajapati and Mrs Prajapati gave evidence that when they signed the document it contained nothing about having the manuals read to them and that they had signed this document because they were asked to. Mrs Prajapati's evidence went further; it was her understanding that she would have to sign the document or she would not continue in her work and although no induction was provided she signed the document because she wished to continue her employment. A number of people had signed the document on that day but none of them were called nor was Miss Rita Patel called to give evidence as to the circumstances in which an entry was made in that signed document about the reading of the manuals to the workers. The Court accepts that the manuals were not read to Mr Prajapati and that he had not been given induction training when he commenced at Rorato. This finding, however, has limited significance having regard to the particulars of the offence.

22 I accept the prosecutor's submission that this was a reasonably obvious risk involving forklift driving potentially among people either walking or working in the loading area although there were present relatively small warning signs. They were not exactly conspicuous signs and the defendant company has accepted by its plea that it failed to adequately restrict access to this area so as to ensure that people were not exposed to the risk of being struck by moving forklift trucks. The defendant has also accepted by its plea that it failed to ensure that there were adequate control measures, (including but not limited to adequate signage), in place at the premises to eliminate the risk of moving forklifts in this area, that here was a failure to have a safe system of work relating to the use of forklifts and in particular there was a failure to have in place a system requiring that forklifts were not driven when the operators vision was obscured or impaired. The defendant has also accepted by its plea that it failed to provide adequate instruction information training and supervision to forklift drivers and others working at the premises so as to ensure that people were not at risk of being struck by moving forklifts at the factory. The risk of using a forklift in this area had been identified in an earlier risk assessment and the steps taken after this incident to address the risk showed that there was nothing complicated or prohibitively expensive about the necessary measures that could have been easily put in place prior to the accident to address the risk of working in the loading area when forklifts were in operation. Those matters establish this particular case as a serious breach of the act. A number of cases have come before the Court involving forklift trucks and similar equipment where severe and even fatal injuries have occurred. The injuries actually received by Mr Prajapati are indicative of the level of risk involved in using this equipment.

23 Although the defendant accepted that the forklift driver had seen Mr Prajapati working in this area and that he was not wearing a reflective vest, the system of work did not require the forklift driver to stop working or to direct Mr Prajapati to leave or to wear a reflective vest if he was to stay in that area. The workplace safety rules did not require the forklift driver to take care in those circumstances when his vision was obstructed by the tomato bins being carried by the forklift. The defendant does submit that the nature and quality of the offence is reduced once the prosecutor is unable to establish that Mr Prajapati was not required to work in this area on the day of the accident and where there was no reason for him to work in this area. Mr Rorato gave no instruction to Mr Prajapati to assist in removing the ropes from the load and his evidence was that all those ropes had been removed by the time he had arrived. The result of that evidence was that Mr Prajapati had not been given any direction to work in that area and was not working where his normal duties were performed. Given the fact that there were some warning signs and reflective vests available, these factors should result in the court finding a lower level of culpability.

24 While the prosecutor accepted, as has the Court, that the evidence did not establish to the criminal standard that Mr Rorato had given a direction to Mr Prajapati to assist in the unloading of the truck there is a good deal of uncertainty as to where he had been directed to work by Mr Robinson. Mr Robinson could not, understandably, recall exactly what he said in a relatively unimportant conversation in April 2005 when giving some direction to Mr Prajapati to clean an area in front of the factory and although Mr Robinson had a very different area in mind that he wished to be cleaned by Mr Prajapati, it is possible that Mr Prajapati simply misunderstood what area was being referred to by Mr Robinson and ended up cleaning in the area near the factory and close to the loading zone. There was a definite ring of truth about Mr Prajapati's evidence that he was not a boss and that he simply performed the work that he was instructed to undertake. All of these considerations, nevertheless, fall short of establishing that Mr Prajapati was directed to perform work in this area when it was known that the forklift trucks would be operating such as to present a risk to those who were present in the area. The seriousness of the breach is to be considered in the light of this conclusion and the other relatively minor measures taken to address this risk. I am unable, however, to accept the defendants submission that Mr Prajapati's evidence, especially about the absence of training (and especially in relation to forklift training) was given deliberately to place his contentions in the best light and to avoid directly answering the questions asked of him. I am unable to form the conclusion that Mr Prajapati was deliberately trying to misrepresent the situation as to training although there was a good deal of confusion about the extent to which he had been trained in forklift driving as opposed to being trained as to what to do in the forklift area when others were operating the forklift. As indicated earlier the difficulties with this evidence are to be attributed to Mr Prajapati's poor standard of English and the requirement that his evidence be given with the assistance of an interpreter: on occasions, these circumstances led to the giving of answers that were not understandable and which frequently required further clarification in what sometimes became a difficult exercise. The most significant issue about training is the defendants' acceptance of the particulars of the charge in relation to this subject.

25 The defendants did not contest that both general and specific deterrence had a significant role to play in the setting of an appropriate penalty and that is the course that will be adopted. It was accepted that in the absence of previous relevant offences the defendant company was to be treated as a first offender. Mr Sergio Rorato, on the other hand, had three offences under the Factory Shops and Industries Act 1962 incurring penalties of $50 each which were imposed in 1985 and related to an unguarded machine in an unregistered factory. While those offences occurred long ago and were relatively minor, the prosecutor accepted that those offences were not to be taken to constitute a prior record for the purposes of imposing penalties under the Occupational Health and Safety Act 2000. Following a consideration of the relevant statutory provisions all parties agreed that Mr Sergio Rorato was to be treated as a first offender and I am satisfied as to the correctness of that position. (see, Workcover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No.2) (1999) 101 IR 261).

26 In setting a penalty in each matter it is of significance that the company has been in operation for some 14 or 15 years in this industry without being in breach of the 1983 or 2000 Act. The company has engaged a number of people, particularly in seasonal work, and I accept the defendants submission that this is to be regarded as a good industrial record. Mr Sergio Rorato has been employing people in the farming industry since 1961 and his record is also to be considered as a good industrial record. Both defendants will have the benefit of those findings. I also accept that the offence is to be considered in the context of the defendant corporation having safety manuals and arrangements with other corporations for the training and induction of persons working at the factory. There were signs and safety requirements in relation to the operation of the loading area, even though they were significantly deficient, yet those measures demonstrated an awareness of the need to have safety rules. The defendant corporation has taken a number of steps that have been outlined in the evidence to address the risk in the loading area following the accident and they are entitled to credit for taking those measures although the simple nature of those measures also operates to demonstrate how simple it was to implement effective safety rules. The defendants co-operated with the WorkCover investigator and that is an important mitigating factor. The Court also accepts the defendants' submission that the evidence of Mr Rorato expressed in simple but emphatic terms his own contrition and that of the company. The entry of the guilty plea by both defendants, at a relatively early stage of the proceedings, is also evidence of contrition. The entry of those early pleas of guilty, considering the circumstances of the related matters, should result in both defendants receiving a discount of 25 per cent.

27 In relation to the principle of parity, both the prosecutor and the defendants submitted that, broadly, there was little difference in the culpability of these defendants and the defendants in proceedings, namely, Primary Contracting Services Pty Ltd and Narelle Pamela Davies. While there is force in this analysis, it is, nevertheless, appropriate to recognise the nature of the limited degree of control able to be exercised by PCS (although not as limited as pressed by PCS). Rorato had complete control of the site and had contracted with PCS to provide a safe workplace, an undertaking that was met in part by engaging PCS to perform induction training and risk assessments. Ultimately, only Rorato could place signs in this dangerous area, paint safety zones on the ground and install barriers to prevent forklift trucks coming into contact with other people using this area. This higher level of culpability, however, should be recognised by a modestly higher penalty.

28 Mr Prajapati prepared a Victim's Impact Statement that was provided to the Court by the prosecutor. That statement spelt out the serious injuries he suffered and how his everyday life has been affected. There was already before the Court sufficient information to make it aware of the extensive nature of those injuries and the Court was also able to observe Mr Prajapati while he gave evidence. The Court extends its sympathy to Mr Prajapati and his family for the suffering and pain he has endured as a result this simple and avoidable workplace accident.

ORDERS
29 A. In Matter No IRC 243 of 2007: Inspector John Mulder v Rorato

Nominees Pty Ltd:
(i) The defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in matter number IRC 243 of 2007, to which it entered a plea of guilty.

(ii) The defendant is fined the sum of $75,000.00 with half that amount to be paid to the prosecutor by way of moiety.

(iii) The defendant is to pay the cost of the prosecutor in a sum agreed or, in absence of agreement, as ordered by the court.

B. In Matter No IRC 471 of 2007: Inspector Stephen Jones v Sergio Rorato:

(i) The defendant is found guilty of a breach of s 8(2) by operation of s 26 (1) of the Occupational Health and Safety Act 2000, as particularised in matter number IRC 471 of 2007, to which he entered a plea of guilty.

(ii) The defendant is fined the sum of $7,500.00 with half that amount to be paid to the prosecutor by way of moiety.

(iii) the defendant is to pay the cost of the prosecutor in a sum agreed or in the absence of agreement as ordered by the Court.

ANNEXURE

STATEMENT OF FACTS

1. At all material times the Prosecutors were inspectors duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the said Act to institute proceedings in the within matter.

2. At all material times Rorato Nominees Pty Ltd (ACN 003 720 198) was a corporation whose registered office is situated at 1 Cape Road, Jerilderie, in the State of New South Wales (“Rorato”).

3. At all material times Sergio Rorato of 1 Cape Road, Jerilderie, in the State of New South Wales was the sole director of Rorato.

4. At all material times Rorato was a corporation trading under the name Billabong Produce and managed the primary production of produce, harvest transport, tomato processing factory and produce delivery.
5. At all material times Rorato was an employer.

6. Rorato owned and operated a tomato processing factory located at the corner of Oaklands and Cape Roads, Jerilderie (“the premises”).

7. At all material times there was a written contract between PCS and Rorato dated 18 June 2004 (“the contract”). Under the terms of that contract PCS was required to provide to Rorato workers who were to perform work at the premises.

8. Mr Mahesh Prajapati, undertook work at the premises. Mr Prajapati commenced employment with Rorato in March 2003 as a factory hand. Mr Prajapati also worked as a farm hand, machinery operator and conducted maintenance of factory equipment. After June 2004 Mr Prajapati ceased employment with Rorato and signed a contract with PCS trading as Australian Contracting Solutions (“ACS”). He continued to undertake work at Rorato’s premises. Mr Prajapati arrived in Australia from Northern India in December 2002 on a temporary working visa.

9. On 24 April 2005 Mr Prajapati went to the loading dock area of Rorato’s premises to assist securing a load on the back of a truck. Mr John Ventrella, another person engaged in the same way as Mr Prajapati, was operating a forklift in the loading dock area. Mr Ventrella was undertaking the task of unloading bins full of tomatoes from a truck parked in the loading dock. With the use of the forklift he was putting the bins on the ground in a line about three metres away from the truck. Mr Prajapati was standing in the loading dock with his back to the forklift. He heard the truck driver yell “stop”. Mr Prajapati turned around and the forklift was driving straight at him. Mr Ventrella was unable to stop the forklift in time and the forklift, which was carrying two wooden tomato bins on its tynes, struck Mr Prajapati. Mr Prajapati had walked in between the bins that were stacked on the ground and the spot where Mr Ventrella was taking the load he was carrying.

10. Mr Prajapati sustained severe injuries as a result of the incident. He suffered bilateral broken ankles, a crush fracture to the left arm, crushed forefinger, fractures to bones of the left hand, and severe lacerations to his arms, lower legs and torso. Mr Prajapati was treated for his injuries at Goulburn Valley Hospital and was not discharged until 8 June 2005. Mr Prajapati remains unfit for his pre-injury employment.

11. Mr Ventrella was a licensed forklift driver. The forklift Mr Ventrella was driving at the time of the incident was a hired forklift which had a rotation attachment. The clamps for the rotation attachment are attached to the front of the fork on the tynes. The tynes are then able to rotate so that the tomato bins which are carried can be turned and emptied into a hopper that is then conveyered into the plant for processing.

12. Mr Ventrella had no vision directly in front of him whilst going forward as the bins he was carrying obstructed his vision. He could not see Mr Prajapati who was directly in front of the forklift. Mr Ventrella considered that pedestrians were not meant to be in the loading/unloading area and only the forklift and truck drivers should be in the area. Mr Ventrella saw Mr Prajapati prior to the incident on 24 April 2005 in the loading/unloading area standing near the truck with the truck driver. Mr Ventrella did not ask Mr Prajapati to leave the area. Mr Ventrella said that Mr Prajapati “was a little bit further away from me and it is hard when people don’t understand English very well. You can scream at them and tell them to go and they just look at you. I had trouble understanding him sometimes.” Other people were in the loading/unloading area on other occasions when forklifts were in operation.

13. Mr Prajapati stated he had gone to the loading/unloading area on 24 April 2005 as he had been directed by Mr Sergio Rorato, the managing director of Rorato, to help tie the ropes on the truck. Mr Rorato denies directing Mr Prajapati to undertake work in the loading/unloading area. Mr Peter Robinson, plant manager and Mr Prajapati’s supervisor advised WorkCover that on the morning of the incident he had directed Mr Prajapati to clean up outside the yard in the front part of the factory. He stated that he did not know why Mr Prajapati was in the loading/unloading area as he was never told to go and work in that area.

14. Mr Prajapati was not wearing a high visibility vest whilst in the loading/unloading area. Mr Prajapati had previously walked through this area on other occasions to check on equipment and the hopper. Mr Prajapati had never received instructions not to walk through this area. Mr Prajapati had previously seen other workers walk through this area to undertake cleaning or on their way to the toilet at the back of the building. Mr Prajapati had not received any training regarding accessing the loading/unloading area or the use of forklifts in the loading/unloading area. Mr Prajapati had driven forklifts at the premises, however does not hold a certificate of competency.

15. At the time of the incident there were no physical barriers in place to prevent pedestrian access to the loading/unloading area. There were no documented procedures advising workers that they were not allowed in this area. There were two signs in English in the loading/unloading area. One sign adjacent to the shed entry door stated “forklifts in use” and another sign on the outer shed wall stated “Caution loading/unloading zone. Authorised personnel only.” This sign was not easily seen by persons entering the area from the side entrance.

16. The loading dock area of the premises is a very noisy area. Mr Prajapati did not hear the approaching forklift.

17. The normal practice in place at the premises was for PCS workers at the premises to be inducted by a PCS representative and on the job training to be provided by Rorato. Mr Prajapati was not provided with an induction training session when he commenced with Rorato. Mr Prajapati signed a document dated 11 January 2005 confirming that he had been provided with a Occupational Health and Safety Induction Handbook and a Farm/Factory Induction and Training Manual. When shown an updated version of Rorato’s training manual, Mr Prajapati advised WorkCover he would not be able to easily read the document.

18. A representative of PCS conducted a risk assessment of the premises and the loading/unloading area on 3 January 2005 and identified the risk of a worker being struck by a forklift. No adequate control measures were put in place by PCS or Rorato following the identification of the relevant risks. PCS were able to withhold the provision of workers to the premises so as to ensure the risk was obviated. PCS was also able to advise and recommend to Rorato what steps it should take in order to eliminate those risks. PCS was able to visit the premises and inspect them.

19. Following the incident PCS conducted an investigation into the incident. They recommended that the following actions be taken to prevent further incidents:

(a) Further information regarding safety around forklifts and the safe operation of forklifts be added to the induction manual. The induction manual to also include restricted areas and dangers of entering the areas.

(b) Ensure that the loading area is clearly marked as a “Restricted Area”, limit access of workers and inform them of dangers in the area.

(c) Workers are to wear reflective highly visibility clothing at all times when working near machinery.

(d) Disciplinary action taken against workers who ignore reasonable instruction that puts themselves or others at risk to safety.

20. Subsequent to the incident an Improvement Notice was issued upon Rorato. In response to this notice Rorato put barriers in place, conducted further training in forklift operation and safety and put signage in place in the loading dock area stating and illustrating “Restricted area - Keep out”.

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LAST UPDATED:
30 May 2008