Inspector Barry Sutcliffe v T & F All States Pty Ltd [2009] NSWIRComm 19 (27 February 2009)

Last Updated: 6 March 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Barry Sutcliffe v T & F All States Pty Ltd [2009] NSWIRComm 19



FILE NUMBER(S):
IRC 528

HEARING DATE(S):
20 February 2009

DATE OF JUDGMENT:
27 February 2009

PARTIES:
PROSECUTOR:
Inspector Barry Sutcliffe

DEFENDANT:
T & F All States Pty Ltd

CORAM:
Haylen J


CATCHWORDS: Occupational Health & Safety Act 2000 - s 8(1) - plea of guilty entered to amended application for order - potato peeling machine - new employee not fully inducted - deep cleaning process conducted by experienced employee - cleaning involving unguarded moving rollers and operating machine while cleaning with pressurised hose - new employee comes into contact with moving rollers - three fingers amputated and ongoing scarring and pain suffered - lengthy time off work - rehabilitation of injured employee assisted by defendant - serious breach - foreseeability of risk where moving rollers not guarded - simple steps required to eliminate risks - general and specific deterrence - defendant has otherwise significant system of safety - no prior convictions - early plea - good safety record and good corporate citizenship - substantial subjective considerations operate to mitigate penalty - victim's impact statement considered - penalty imposed

LEGAL REPRESENTATIVES
PROSECUTOR:
Mr M Scott of counsel
SOLICTIORS:
Ms Fiona Miller
WorkCover Authority Legal Group


DEFENDANT:
Mr M Shume of counsel
SOLICITORS:
Ms Joanne Flitcroft
SPARKE HELMORE


CASES CITED:


LEGISLATION CITED:
Occupational Health and Safety Act 2000


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J

27 February 2009

Matter No IRC 528 of 2008
INSPECTOR BARRY SUTCLIFFE v T & F ALL STATES PTY LTD
Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT
[2009] NSWIRComm 19

1 The defendant, T & F All States Pty Ltd ("T & F"), supplies whole and processed vegetables to the hospitality and catering industry in New South Wales. In April 2006, one of the defendant's employees was Ms Thi Trang Nguyen who had only recently commenced full-time employment at the Marrickville premises operated by the defendant. While performing her work in the potato peeling section of the premises, Ms Nguyen stumbled and came to insert her hands into a potato peeling machine being cleaned by another employee of the defendant. As a result of this accident Ms Nguyen was seriously injured, ultimately having three fingers amputated from her right hand and suffering scarring to her left hand.

2 This accident was investigated by the WorkCover Authority and in April 2008 Inspector Sutcliffe commenced proceedings in the Court claiming that the defendant was in breach of s 8(1) of the Occupational Health and Safety Act 2000. In October 2008 the prosecutor filed an Amended Application for Order particularising the breach so as to claim that the defendant failed to ensure the health, safety and welfare at work of all its employees and in particular Ms Thi Trang Nguyen and Ms Grace Gunawan contrary to s 8(1) of the Occupational Health and Safety Act. The particulars of the charge were:

(a) the defendant failed to provide and maintain a safe system of work for the cleaning of the abrasive potato peeler machine at the premises;

(b) the defendant failed to securely fence all dangerous parts of the abrasive potato peeler machine whilst the machine was in motion;

(c) the defendant failed to carry out an adequate risk assessment in relation to the deep clean process;

(d) the defendant failed to ensure that Thi Trang Nguyen was adequately inducted into the premises;

(e) the defendant failed to provide adequate training, instruction or information to employees and in particular, Thi Thang Nguyen in relation to cleaning of the potato processing line.

It was alleged that as a result of these failures, employees of the defendant and in particular, Ms Nguyen and Ms Gunawan, were placed at risk of injury. On the filing of that Amended Application for Order in Court, the defendant entered a plea of guilty to the charge as amended.

3 This judgment deals with the evidence and submissions on sentence. In these proceedings it was common ground that the defendant had no prior convictions and that the maximum penalty that could be imposed was $550,000.

4 The evidence for the prosecutor was constituted by the following documents:

(a) an Agreed Statement of Facts (which appears as an annexure to this judgment);

(b) three WorkCover factual inspection reports;

(c) a number of photographs depicting the premises, the area surrounding the potato peeling machine and also showing the area being cleaned at the time of the accident;

(d) the defendant's safe operating procedure concerning the potato preparation line dated 16 October 2004;

(e) a hazard identification and risk assessment sheet for an Agware abrasive peeler produced by the manufacturer;

(f) the manufacturer's abrasive peeler handbook;

(g) the defendant's interim risk assessment on abrasive rollers on the Agware potato peeler dated 22 April 2006;

(h) the defendant's safe work procedure for the cleaning of abrasive rollers on the Agware potato peeler dated 24 April 2006;

(i) the defendant's interim training procedure for the safe cleaning of abrasive rollers on the Agware potato peeler dated 28 April 2006;

(j) the defendant's final risk assessment on abrasive rollers on the Agware potato peeler dated 5 May 2006; and

(k) a prior convictions certificate indicating that the defendant had no prior convictions,

5 For the defendant, the affidavit of Mr Rohan Benn together with a large number of annexed documents was formally read. Mr Benn was a director of the defendant and was aware of the incident at the premises at Marrickville that had previously been occupied by the defendant. He stated that, in these proceedings, he was authorised to speak on behalf of the defendant. Mr Benn had been a director of the defendant since June 1997 when the business was acquired and had been actively involved in the day-to-day operations of the business. He spoke of being intimately involved in the business, including attending the markets, loading and driving of trucks and, from time to time, assisting on the various process lines. With his brother Randal Benn (also a director and operations manager of the defendant), they prided themselves on working with the employees of the business and the fact that anyone could speak to them and raise issues with them about the business.

6 Mr Benn gave a history of the defendant noting that, prior to the Benn brothers' purchase in 1997, the business had traded for approximately 30 years. The company supplied whole and processed vegetables and fruit to the hospitality and catering industry and their clients included catering companies, hotels, production kitchens, food manufacturers, hospitals, restaurants, convention centres and airline catering. The preparation and processing of vegetables and fruit was broken into separate areas. Under this system there was a potato line, a carrot line, a pumpkin line, a fruit salad line and a general processing line. At the time of the accident the defendant employed approximately 40 people and that was when the company was located at Marrickville. In April 2007, the defendant moved to premises in Regents Park and as a result of an agreement with another company, a purpose-built facility was constructed for the defendant's operations. Mr Benn noted that Ms Nguyen remained an employee of the defendant.

7 The defendant had altered its method of engaging employees and now required them to be interviewed and engaged by the occupational health and safety co-ordinator and staff relations co-ordinator. Previously, the positions were advertised internally and current employees would refer suitable candidates for consideration and only after that process would external advertising be considered. An employee engaged by the defendant received a letter confirming a number of matters concerning the position but also setting out the company's policies including occupational health and safety obligations and identifying the employee's supervisor. Employees were required to acknowledge the contents of the letter containing these details. This process for new employees had commenced at the end of 2005 and had been applied to existing employees by way of confirmation of their position. Employees were provided with a position description with the manager and the employee being required to sign that document to confirm that they had both reviewed the requirements and satisfied themselves that it accurately reflected the requirements of the position. Once an employee had been engaged by the defendant they were required to complete an induction programme prior to commencing work in the process line on which they would be working.

8 New employees were required to undertake a two-hour induction programme prior to being inducted to their work area. During this time they were shown DVDs dealing with commencing work, slips and falls at work and manual handling. Employees were issued with the defendant's induction and safety manual and that document provided information to help employees understand and meet their safety obligations. Contact information and details for a first aid representative and safety representative and fire wardens were included. There was also information on the components of the company's occupational health and management system and the safety co-ordinator took employees through the safety manual and explained its contents. Employees were informed of the location of first aid rooms and the first aid representatives were identified as were others who could assist with first aid. There was an explanation of the incident reporting requirements of the operation. Employees were then taken on a site orientation tour through the warehouse and the office indicating access points, safety walk-ways, fire exits and fire excavation assembly points. Personal protective equipment relevant to an employee's role was then supplied to the employee and the correct use of that equipment explained. At the conclusion of this induction process an employee was required to sign a document acknowledging they had received the induction information. This process was in place prior to April 2006 and continued. Ms Nguyen had received the workplace induction information document when she returned to work.

9 Mr Benn explained the procedure at the conclusion of the orientation and induction process and how new employees were introduced to their working area, had their duties explained to them including their safety responsibilities. A "training buddy" was allocated to the new employee to support them during their on-the-job training. This person was an experienced employee who was to assist the new employee in learning the task required and answering questions. The defendant also engaged an external consultant who regularly attended the defendant's premises and conducted task specific training for all employees. Mr Benn noted that, at the time of the incident, all employees had been taken through this process with the exception of Ms Nguyen.

10 In relation to Ms Nguyen, the nightshift line manager for the potato line, Mr Zahr, provided orientation and line orientation. Ms Nguyen was informed about pedestrian safety zones, the requirement to walk between yellow markings to avoid moving plant, including forklifts. Other facilities, including fire exits, were identified by Mr Zahr. He then provided the necessary personal protection equipment consisting of hairnet, gloves, ear muffs, boots, plastic sleeves and a red waterproof apron. The colour of the apron identified Ms Nguyen as a member of the potato line team. Ms Gunawan, second in charge to Mr Zahr and a highly experienced worker, was paired with Ms Nguyen as a training buddy. Since the accident there had been changes to this process of induction. In August 2005, it was said that the induction programme became more structured and all line managers were advised of the induction requirements and received instruction in the induction programme. Initial training was the subject of a refresher on two days in October 2005.

11 The 1998 and the current occupational health and safety policy were before the Court and Mr Benn described how the occupational health and safety management system had developed since 1997 where there were no occupational health and safety systems and how the defendant had used an external consultant over a period of time, at significant cost, to develop the policy. There was extensive consultation between the consultant and line managers. Mr Benn explained the components of the occupational health and safety management system including such matters as hazard identification, safe operating procedures, training, safety inspections, supervision and audits. The training process included toolbox talks, information and instruction provided by line managers and other management members such as the occupational health and safety co-ordinator. Supervision was primarily provided by line managers. Mr Benn noted that, at the time of the accident, the defendant had 18 separate policies in operation, including policies dealing with personal protection equipment, manual handling, occupational health and safety and English language support. At the Marrickville premises in 2002, an encased occupational health and safety policy was displayed in such a position that employees had to pass it to bundy on and off and to attend the lunchroom. This approach was adopted to promote safety in the workplace. The cabinet was also used to display a number of documents besides policies, including photographs of safety representatives and first aiders, notices and minutes of safety representative meetings, and matters considered relevant to safety. This approach had been continued at the new premises at Regents Park.

12 Mr Benn also explained how hazard identification had been carried out since mid-2004 at the Marrickville premises and how that system of hazard identification had been developed. He referred to the development of safe operating processes which involved an inspection of premises, a review of existing work procedures, discussions with employees and line managers and observations of the process. Line managers were made responsible for employee compliance with safe operating processes. In relation to training, there was a documented system in place prior to the incident and a more comprehensive training register had been developed outlining the training undertaken by individual employees. The training needs of employees were discussed with the employees' line manager and with directly the employee. The employees were encouraged to discuss their training needs and interests.

13 Line managers and the occupational health and safety co-ordinator usually determined topics for toolbox meetings and an indication was given of the nature of topics dealt with at such meetings. Attendance at such discussions was compulsory and attendance was documented. Employees were encouraged to provide feedback and to suggest topics for future talks. There was on-the-job training which was deemed to be particularly suitable to the undertaking of the defendant, especially using the buddy system. It was noted that Ms Nguyen was injured during the shift while undergoing on-the-job training. First aid training was also provided and was conducted by Royal Life Saving. At the time of the incident and in the defendant's present operation there was at least one first aid officer on site during each shift. Although not required by law because of the number of employees, nevertheless, the defendant had provided and maintained a first aid room at Marrickville and that had continued at Regent's Park.

14 Employees who met the eligibility requirements were required by the defendant to undertake a TAFE Certificate 3 food-processing course that, in part, provided instruction in relation to occupational health and safety food processing principles. The core modules were explained by Mr Benn and he further noted that Ms Nguyen was presently in the process of completing the TAFE course. By arrangement with TAFE the course was conducted on the defendant's premises by TAFE teachers with students attending classes for up to half a day per week during working hours. The course took two years to complete.

15 The safety representative system was explained to the Court with each department forming a work group and the work group electing a safety representative. Safety representatives were identified to the workforce. Once elected, the representatives were provided with a copy of their duties and responsibilities. Representatives participated in a four-day occupational health and safety consultation-training course conducted off-site by a WorkCover approved training company. The safety representatives also undertook the role of fire warden. Interpreters, if required, were available for consultation meetings attended by the representatives. Safety representatives were free to directly approach senior management as often as required in order to raise and discuss safety issues.

16 The variety of workplace inspections undertaken by the defendant were explained and they included a weekly compliance inspection carried out by the occupational health and safety co-ordinator, regular inspections by safety representatives, daily maintenance inspections carried out by the maintenance department that also considered the guarding of machinery, line managers' daily inspection, a daily cool room safety inspection and a daily documented inspection of safety conducted by line managers. Inspections were also conducted by other companies, including inspection of the fire safety systems, electrical inspections, air compressors and forklifts.

17 Mr Benn stated that the safety co-ordinator and the operations manager met at the premises daily regarding safety and staffing issues. Instruction in safe work processors was provided to employees through line managers. This was done on a daily, informal basis and formally if required. Meetings were also held when necessary with specific groups of employees and safety representatives when safety issues needed to be explained or discussed. There were inter-office memoranda issued when necessary to remind employees of the need to abide by policies and procedures and a quarterly safety newsletter was distributed with employee payslips. In view of the fact that a number of the defendant's workforce came from non-English speaking backgrounds and, while able to communicate in English, had difficulty reading and writing English, the defendant found it more efficient and effective to verbally and through demonstrations to provide and enforce training and instruction rather than providing written training instructions. The defendant had an arrangement with an interpreter service that was frequently used to overcome any language barrier issues.

18 The defendant carried out two types of internal audits, a food safety system audit and an occupational health and safety audit. The internal audits were programmed to be conducted every six months but it was noted in the five months preceding the incident involving Ms Nguyen, there were four audits conducted.

19 In November 2004 and May 2005, external audits were conducted of the defendant to determine if it met the criteria for receiving a discount on its workers compensation premium. On each occasion it was concluded that the defendant did meet that criteria. Among the matters considered in the external audit was the existence of an occupational health and safety risk management programme incorporating hazard identification, risk assessment and risk control measures and consultation with employees.

20 As earlier indicated, direct supervision of employees was provided by line managers while senior management daily engaged with employees on an informal basis. Mr Benn noted that Ms Nguyen had not received a timely induction and that this had arisen through circumstances which had not previously been experienced. At that time his brother was on leave when there was also an Easter long weekend break. The role of operations manager had therefore been covered by others, including Mr Benn, the safety co-ordinator and line managers. Mr Zahr had been unexpectedly called to Lebanon because of the passing of a family member and was absent on the shift when Ms Nguyen was injured. Mr Zahr would have normally performed the induction process according to the defendant's procedures and those in turn would have led to the safety co-ordinator taking Ms Nguyen as a new employee through the formal induction process. Mr Zahra had not told the safety co-ordinator that Ms Nguyen had been employed and by this combination of factors, the management team failed to identify the fact that she was only partially inducted.

21 Apart from the photographs before the Court, Mr Benn described the composition of the potato line and the operation of the stainless steel Agware abrasive potato peeler. The manufacturer of this equipment had produced a maintenance document explaining the specifications and dangers associated with the operation and maintenance of the peeler. The defendant's maintenance manager had used this document in conjunction with the manufacturer's manual to conduct repairs and to maintain the machinery. The Agware operating manual also provided a hazard identification and risk assessment. These identifications and assessments were carried out on five occasions between September 1998 and October 1998. Mr Benn noted that the only cleaning information provided by the manual was for the machine to be washed down at the end of each day, giving particular attention to bars and the inside of the guards on the side of the machine.

22 The defendant, however, developed two cleaning processes for the peeler namely, a general daily clean and a weekly "deep clean". Soon after receiving the equipment it was recognised that the daily cleanse was inadequate and therefore the defendant developed its own "deep clean" process in recognition of the abrasive rollers requiring attention to meet food safety requirements. When the daily cleaning was performed at the end of each shift, employees cleaned up any material on the floor and at the end of each night shift either Mr Zahr or Ms Gunawan hosed the potato peeler with water and the peeler was switched off during the hosing operation. The deep clean was a thorough clean that occurred every Friday night and involved cleaning the hoppers, the dip tank and the potato peeler. Generally, Mr Zahr was the only person to perform this task. However, if he was absent Ms Gunawan had been trained to perform the deep clean task. When Mr Zahr was cleaning the potato peeler, no one, including Ms Gunawan, was to be in the vicinity of the potato peeler. The deep clean involved placing a cleaning liquid on the abrasive rollers before the night shift break. Mr Zahr turned the peeler off and removed the guards over the abrasive rollers, applied a cleaning liquid and then turned on the peeler. The peeler was operated at a very slow speed allowing the rollers to rotate slowly and allowing the cleaning liquid to clean all parts of those rollers. The abrasive rollers were located at the top of a short flight of stairs but while the cleaning process was undertaken, no one was permitted to obtain access to the platform. To ensure that this did not occur, Mr Zahr took all the potato line employees on a meal break. At the end of the cleaning process, Mr Zahr used a high-pressure hose to clean the abrasive rollers and this task was performed from the platform.

23 The other potato line employees cleaned the dip tank, the hopper and the floor and they were all instructed to stay away from the abrasive rollers during the deep clean. Mr Benn noted that Mr Zahr had 33 years' experience in the operation of an abrasive potato peeler and was considered one of the most experienced peelers in Sydney. Mr Zahr had used his experience in developing the deep clean process and recognised the risk of removing the guards and was therefore strict in ensuring the peeler area was vacant while undertaking the deep clean. The defendant was aware that Mr Zahr provided training and communication to Mr Gunawan in relation to cleaning the peeler and Ms Gunawan had been chosen to conduct the deep clean in Mr Zahr's absence because of his on-the-job training and her own experience on the potato line. Mr Benn made it clear that, on the night of the accident, Ms Nguyen did not have a role in the deep clean process and otherwise did not have a role in that process but was only required to assist in cleaning the floor.

24 The safe operating procedure for the operation of the potato line was developed in October 2004. There was consultation in that process and Mr Zahr was involved because of his experience. The investigation since carried out by the defendant indicated that the external consultant was not aware of the deep clean process. This safe operating procedure had since been revised and the task had been broken into specific steps. The line manager now takes each employee through each step of the procedure.

25 In relation to the accident that occurred in April 2006, it was thought that Ms Nguyen was cleaning potatoes with Ms Gunawan prior to the night shift break. Ms Gunawan then undertook the deep clean process and Ms Nguyen was cleaning the floor. There were no witnesses to the incident as it occurred but immediately after the accident first aid was provided and an ambulance was called. Mr Benn noted that the defendant had concerns for Ms Nguyen regarding the treatment being provided because she appeared to be suffering from infection while receiving treatment and that was affecting her prognosis and recovery. The safety co-ordinator attended Ms Nguyen's medical appointments with her and so requested a higher level of attention for her care and treatment and these concerns were raised with the insurer. The co-ordinator continued to maintain contact with Ms Nguyen and her family and it was stated that Ms Nguyen was always treated as a "top priority". Ms Nguyen has since returned to work and the defendant provided her with a rehabilitation officer. This officer assisted Ms Nguyen each week, assessing and identifying her treatment, establishing her capabilities, assessing her home and supplying any aids required. As Ms Nguyen progressed in her skill level and experience, the defendant was able to progress the type of work to be performed by her. Ms Nguyen was described as a "valued employee" and was considered a competent process operator who should have no concern in relation to her future employment.

26 On the day of the accident, the defendant undertook a risk assessment and issued an interim risk assessment for the abrasive rollers on the potato peeler. There was consultation in relation to this interim risk assessment and employees were trained as to its requirements and were required to sign off in recognition of their understanding of the new requirements. The interim control measures required the machine to be turned off at the control box, the control cabinet to be locked before removing the shrouds guarding the rollers and also required the key to the control box to remain with the person designated to clean the rollers until the cleaning was completed and the shrouds were replaced. An interim safe work procedure for cleaning the rollers was also prepared and employees were instructed in its provisions. By May 2006, there was a final risk assessment and that had been carried out with the assistance of the WorkCover Inspector. The control measures specified in this assessment required nets to be permanently attached as a safety guard specifying the mesh size and the mesh was installed over the side panels underneath the shrouds, eliminating bodily access to the abrasive rollers by fingers or hands. A training procedure was developed that required the mesh to be removed during the cleaning process and when this occurred, the peeler had to be completely turned off and the switchboard locked prior to cleaning with a person supervising the cleaning process holding the key.

27 Since then the defendant had developed a procedure for the deep clean process which did not require the mesh guards to be removed. The new procedure specifically stated that the mesh guarding was never to be removed and that all other personnel, apart from the person authorised to clean the peeler, were to be removed from the immediate area, including the platform. Changes were also made to training with all potato line employees being re-trained in the practices of the operation of the line and the peeler. The re-training was explained to the supervisors and managers and re-trained employees had to give written acknowledgement of their re-training and understanding of their re-training. In July 2006, the defendant also provided refresher training for supervisors and managers. Following the accident, the changes made to the potato peeler involved mesh being installed to cover the abrasive roller in circumstances where there had not been any prior risk assessment of this particular task. Guarding was also installed on the shaft to ensure people working in the area would not be in contact with the rotating shaft and additional emergency stops were added to the peeler to minimise risk to injury while working on the sorting line. Improvements in safety procedures had continued with the design and construction of the new premises at Regents Park.

28 Mr Benn spoke of the defendant's commitment to the community in which it conducted its business and gave evidence of providing support to that community in the form of cash and food donations. He listed some 19 bodies that had been in receipt of such support and there were also copies of certificates of appreciation that had been conferred upon the defendant. In relation to prior convictions, it was noted that the defendant had no prior convictions and that the business bought by the defendant had traded for 30 years without a conviction. The defendant had co-operated with the WorkCover Authority throughout its investigation. Mr Benn stated that the management of the defendant had a "deep and painful regret" for any wrongdoing concerning the incident and the fact that Ms Nguyen had been injured and that the defendant had been in breach of the Occupational Health and Safety Act. He re-asserted that the defendant was committed to occupational health and safety and the welfare of all its employees and others at its workplace. The defendant strove to provide an accident-free workplace and was committed to the process of continual improvement as demonstrated by the actions already taken. Mr Benn was not required for cross-examination.

29 Having concluded that the plea of guilty had been properly entered and that a conviction for the offence as particularised was to be entered, the Court formally received a Victim's Impact Statement provided by Ms Nguyen. In that statement Ms Nguyen confirmed that, following the accident, she had lost three fingers from her right hand and that she had scars on her left hand. One finger had to be amputated after a week because of infection. Ms Nguyen stated that she was right handed and therefore all activities in her life were more difficult, including getting dressed, cooking and housekeeping. She had trouble opening doors with a key. After the accident Ms Nguyen had trouble looking after her daughter who was one year old at the time. She had to rely on her ex-partner much more and so her daughter now lived more with her ex-partner than with Ms Nguyen. Her 13 year old son was now helping a lot more around the house and that had been very hard for her as a mother. Following the accident she was off work for eight months and was required to attend regular hospital appointments for the changing of the dressings and for physiotherapy. At the time of the accident, Ms Nguyen suffered a great deal of pain and found it very hard to sleep and was taking "a lot of medication". She now took painkillers from time-to-time but still suffered nerve and phantom pains where her fingers once were. She stated that, although she had a job with the defendant, it was always on her mind and she worried that they might terminate her. She stated that working was good for her as it allowed her to escape from the house - she preferred to work rather than stay at home. Ms Nguyen said that, for the most part, the defendant had been good to her and that the managers tried to look after her and she tried to do her best while she was at work. She said that sometimes she got upset with people on the street, people she did not know who stared at her hand without knowing what had happened.

30 The Victim's Impact Statement allows the Court to be informed of the effect of a workplace accident on a victim. It brings home to the Court, the defendant and the public who read these reports, firstly, the regrettably widespread incidence of such accidents and also the ongoing disabilities suffered by the victims. The Court expresses its deep regret for the accident that caused Ms Nguyen such pain, disfigurement and the loss of three fingers. She can be assured that, as a result of undertakings by the defendant given in these proceedings, her employment is secure and that she is regarded as a good employee.

DELIBERATION
31 In relation to the objective seriousness of the offence, the prosecutor submitted that the level of risk to employees of the defendant was high arising from the removal of the guards from the abrasive potato peeler machine and exposing abrasive rollers while in motion. The level of risk was typified by the injuries suffered by Ms Nguyen. The creation of the risk was said to be foreseeable once the guards were removed - there was no constraint or barrier restricting access by employees to the point of risk nor where there any warning signs placed on the machine. The manufacturer's operations manual stated that the peeler was an extremely dangerous machine that needed to be treated with respect and noted that it was important that all guards and shields to be in place before and during operation of the machine. The manual also advised that the user was to ensure that all people were clear of the machine before starting it and that they should not put their hands into the feed peeler or discharge sections of the auger and peeler bars. The manufacturer advised that the user should always turn the machine off and pull the fuses before working on the peeler or any machine. It was submitted that, in those circumstances, it was foreseeable that an employee who came into contact with the rollers would probably, because of the nature of the operation, suffer significant and serious injury. Here, Ms Nguyen was a particularly vulnerable employee having a restricted ability to understand English and had only been employed for a few days, had not received adequate induction training nor provided with a copy of the defendant's induction and safety manual.

32 The objective seriousness of the offence was accepted by the defendant but the accident and the particularised risk needed to be put into proper context. The gravamen of the charge was the failure to properly fence this part of the machine and all the other failures directly flowed from this central omission. It was to be noted that there was no running nip point as found by the WorkCover Inspector, that the auger fitted just above the rollers had a photo-electronic device such that, if it was lifted, the machine ceased to operate and that included the abrasive rollers. There was no suggestion that the same type of device was necessary in relation to the rollers. There were a number of other relevant factors. The deep clean process was intended to be undertaken only by the two most experienced employees and was a one-person job, with all other employees to remain clear of the area while it was performed. It appeared that in the risk assessments undertaken, the consultant had not been informed of this deep clean task and therefore this small part of the operation had not been considered. It was also relevant that Ms Nguyen was not required to be in the area and the circumstances were out of the ordinary that led to her being in the area. The company thought that the method of deep cleaning was safe and had experienced no previous problems.

33 The injuries received by Ms Nguyen involving the loss of three fingers, considerable scarring and ongoing pain is evidence of the seriousness of the risk presented by operating this peeler without the guards in place. There is considerable merit in the submissions of both the prosecutor and the defendant, especially in relation to the context in which this accident occurred but the incident returns to the simple fact that the deep cleaning system adopted by the defendant required the rollers to be in operation while the guarding was removed. The failure to guard moving machinery and the risks it posed was a risk as old as machinery itself. While there are a number of factors that place this accident and the risk demonstrated to exist in a particular context, nevertheless, this was a serious breach of the Act. In was foreseeable that unguarded rollers could lead to injury and there were simple remedial steps available to eliminate that risk.

34 In this case both general deterrence and specific deterrence will play a role in the setting of the penalty. In relation to general deterrence, this case presents an example of the continuing need to examine machinery to ensure that people are not required to work in circumstances where, during its operation, the machine is unguarded. Having regard to the factors identified by the defendant and referred to above, while there is a role for specific deterrence it should play a reduced role in the setting of the penalty. There is no doubt that the defendant had operated this business for a significant period of time, employing on average approximately 40 persons in the use of a variety of machinery but has not come into breach of the Act. The defendant has been diligent in pursuing safety in its workplace and certainly had substantial safety systems in operation. It may well have been that, if the deep cleaning process had been disclosed to the external consultant, some steps may have been taken to eliminate the risk. It is clear that the meshing of this area and the instructions since promulgated that deal with the deep cleaning process have eliminated the risk and these matters are appropriate to take into account.

35 In relation to subjective factors, the defendant entered its guilty plea immediately following the filing in Court of an Amended Application for Order. The Court is satisfied that the Amended Application was significant in its effect and that, in the circumstances, the defendant should receive a 25 per cent discount in the penalty to be imposed. The defendant is a first offender who has operated with approximately 40 employees over a number of years in an industry that utilises a variety of machinery. Its safety record is to be regarded as a good record in those circumstances and it is entitled to the benefit of leniency afforded to a first offender. The defendant's evidence has demonstrated a comprehensive safety system otherwise in operation at its workplaces and has also demonstrated a commitment to safety. Prompt steps were taken after the accident to address its causes and to develop processes to immediately eliminate the risk exposed by the accident. The evidence shows it to be a good corporate citizen contributing significantly to the community with which it engages and it has co-operated with the investigation of the WorkCover Authority, including requesting the assistance of the Inspector in developing its processes to address the risks surrounding the deep cleaning process. The defendant's contrition is shown, not only by its early plea, the evidence of Mr Benn and the views he expressed on behalf of the directors but it is also shown by the defendant's ongoing assistance to Ms Nguyen during the period that she was receiving treatment and the eight months she was off work. The defendant has played a role in her rehabilitation and provided her with ongoing employment and she was able to take up additional tasks during the course of her rehabilitation. All of these matters will be taken into account in mitigation of the penalty.

ORDERS
36 The Court makes the following orders:

(i) the defendant is found guilty of a breach of s 8(1) of the Occupational

Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 528 of 2008;

(ii) the defendant is fined the sum of $97,500 with half that sum to be paid to the prosector by way of moiety;

(iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered 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 (“the Act”) and empowered under Section 106 of the Act to institute proceedings in the within matter.

2. At all material times T & F All States Pty Ltd (ACN 072 527 989) was a corporation whose registered office is situated at 7-9 George Young Street, Auburn, in the State of New South Wales (“the defendant”).

3. At all material times, T & F All States Pty Ltd (“T & F”) was a company which undertook the business of a wholesaler and processor of fresh fruit and vegetables to the food service sector. T & F All States was registered with ASIC on 19 January 1996.
4. At all material times T & F conducted its business at premises located at 1 5 to 21 Chapel Street, Marrickville, New South Wales.

5. At all material times T & F was an employer of approximately 40 persons.

6. In the week commencing 17 April 2006 Ms Thi Trang Nguyen commenced full time employment with T & F at the premises as a vegetable process worker on the potato processing line. Ms Nguyen commenced duties on the Tuesday/Wednesday night shift. Ms Nguyen was 29 years old and had not previously undertaken employment prior to commencing with T & F. Ms Nguyen’s first language is Vietnamese and she has a limited understanding of English. An interpreter was required for her interviews with WorkCover. Ms Nguyen was recommended to T & F by a friend who also worked at the premises and essentially commenced employment when she was brought in by her friend and after being interviewed by Mr Zahr.

7. The main task of Ms Nguyen’s position with T & F was peeling potatoes and using a knife to cut off the black parts. Ms Nguyen usual working hours were 10pm to 6am. When Ms Nguyen commenced employment at T & F Mr Hussien Zahr (known as Micki) was her supervisor. On the day she commenced duties Ms Nguyen was shown by Mr Zahr and Ms Grace Gunawan how to peel potatoes and the potato peeling machine. Ms Nguyen’s duties also involved cleaning up the floor in the potato processing line area.

8. The potato processing line where Ms Nguyen worked consisted of a brush potato hopper, conveyor, potato augur, abrasive potato peeler, cleaning table, potato dip tank, conveyor and potato packing unit. This plant and equipment was owned by T & F. The abrasive potato peeler machine (“abrasive peeler”) on the potato processing line was located on a metal platform approximately 1.5 metres from the north eastern wall of the production area of the premises.

9. The abrasive peeler was manufactured by Agware. The abrasive peeler had no model or serial number upon it. The abrasive peeler was approximately 3.2 metres in length. The potato processing line, of which it was a part, was approximately 20.3 metres in length.

10. The abrasive peeler contains an auger and abrasive peelers. The auger is on top of the machine and immediately below the auger there are eight (8) abrasive rollers, four (4) on each side. The abrasive rollers are protected by two (2) metal shrouds on each side. Each abrasive roller is approximately 110mm in diameter and 2.25 m in length.

11. On Friday night, 21 April 2006 and early Saturday morning, 22 April 2006 Ms Nguyen undertook her nightshift on the potato processing line. Mr Zahr was not present as he had to fly to Lebanon due to a family matter at short notice. Ms Grace Gunawan was appointed acting supervisor for the shift due to Mr Zahr’s absence. There were two other staff also in the potato processing line area performing duties under Ms Gunawan’s supervision, these persons were Mr Natarajan Sivakumar and Mr Mohamad Rafiq Mydar

12. Once a week on the Friday night shift the abrasive peeler was given an intensive clean, commonly referred to by staff as the “deep clean”.

13. At approximately 1:00am on 22 April 2006 the night shift crew took a mid shift break for approximately 30 minutes. Prior to the break Ms Gunawan removed the shrouds/guards on both sides of the abrasive rollers of the abrasive peeler and coated the abrasive rollers with a cleaning fluid. To access the abrasive rollers on each side of the abrasive peeler workers were required to ascend four metal steps to a metal platform. The system of work for conducting the deep clean did not require staff, other than the person performing the clean to ascend the metal stairs.

14. As part of her duties Ms Nguyen was required to clean the area surrounding the potato processing line including under the processing area. On returning from the break, Ms Nguyen was tasked, by Ms Gunawan, with cleaning under the potato processing line, using a hose and rake-like squeegee on the north eastern side of the potato processing line (near the north eastern wall).

15. Ms Nguyen stated that she was cleaning the floor with Ms Gunawan and Mr Sivakumar. There was a water container (the potato washing tank) with a hole that was normally blocked in the vicinity. Ms Nguyen stated that Mr Sivakumar unscrewed the handle of the container and the water spilled on the floor, she was scared by the water and ran away to avoid the flooding. She ran up the metal stairs to the platform of abrasive peeler, on the north eastern side. At this time the abrasive rollers were slowly turning, with the shrouds removed, waiting to be cleaned by Ms Gunawan. As she reached the top of the metal stairs, she tripped over and fell towards the platform. To regain her balance, she put out both arms to catch the metal bars of the machine and right hand fingers went into the slowly turning abrasive rollers which were exposed without the guards on.

16. Ms Nguyen provided two statements to WorkCover in relation to this incident. In her initial statement dated 8 September 2006 Ms Nguyen advised that at the time of the incident “I was using a thing for water to clean the machine. I slipped and I try to get up by holding the machine. My right hand went into the machine”. In her second statement dated 18 December 2006 Ms Nguyen advised the incident occurred as described in paragraphs 15.

17. Ms Gunawan advised that prior to the incident she had instructed Ms Nguyen to clean the floor. Ms Gunawan stated at the time of the incident she was in the process of using a water gurney to clean the cleaning fluid from the abrasive rollers of the abrasive peeler (on the north western side of the machine). Ms Gunawan was working upon the platform on the north western side of the machine, the opposite side of the machine to where Ms Nguyen was working, and from her position her view of the staff she was supervising was obstructed. When she last saw Ms Nguyen prior to the incident Ms Nguyen was cleaning under a table on the other side of the machine.

18. Mr Sivakumar stated at the time of the incident he was spraying down the potato-packing conveyor using the small hoses at the front side. He stated that as part of the cleaning of the conveyor he had opened the hole of the dip tank using a spanner and the water was draining out. He stated he started to empty the dip tank prior to going for the break and the tank had been emptying for about one hour before the incident involving Ms Nguyen. He advised he could not see Ms Gunawan whilst he was spraying down the conveyor as she was cleaning up the machine with a pressure machine and was on the backside of the machine. He did not see Ms Nguyen at the time of the incident and when he had last observed her she was cleaning up the floor.

19. Mr Mydar was performing washing duties in the potato packing area at the time of the incident. He did not witness the incident. He observed Mr Sivakumar cleaning the dip tank around the time of the incident.

20. There are no eyewitnesses to the actual sequence of events resulting in the injury. Ms Gunawan, Mr Mydar and Mr Sivakumar all advised they became aware of the incident when they heard Ms Nguyen screaming and observed her injured right hand.

21. At the time of the incident Ms Nguyen’s right hand fingers were degloved, fractured and lacerated. Ms Nguyen also suffered lacerations to her left hand as a result of the incident. Subsequent to the incident Ms Nguyen’s right hand ring, index and middle fingers were required to be amputated.

22. Ms Nguyen was unfit for duties for approximately eight (8) months, then she returned to suitable duties for a further month, after which she returned to slightly modified pre-injury duties.

23. The potato processing line was purchased by T & F sometime in October 1998. It was supplied with a manufacturers handbook which contained a section on the abrasive peeler and some information on general maintenance but did not cover T & F ‘s deep clean procedure. It is noted in the handbook “The abrasive peeler is extremely dangerous machine if not treated with respect” and “Always turn off machine and pull fuses before working on peeler or any machine”. Mr Zahr, Ms Gunawan and Ms Nguyen had not seen the handbook for the potato processing line plant and equipment prior to the incident. Mr Zahr advised he was unaware of the requirement to not work on the machine while the machine was turned on.

24. The potato processing line was also supplied with a general plant and equipment hazard identification and risk assessment. There was no specific risk assessment for the cleaning and maintenance of the plant and equipment. In relation to the abrasive peeler it was noted “it is highly recommended that all guards are in place before starting and working on peeler. Never free blocked produce without turning off the machine.”
25. T & F had a documented Occupational Health and Safety system which commenced in 1998.

26. In 2004 T & F engaged an external consultant, Mr Ray Schaffer and undertook risk assessments on plant and equipment on the potato processing line. As part of this process a Standard Operating Procedure (“SOP”) for the potato processing line was developed. The SOP developed did not document, assess or evaluate the risks associated with the “deep cleaning” process for the abrasive peeler. Mr Zahr at the time of his interview with WorkCover (12 December 2006) in relation to the incident was unable to recall if he had seen the SOP previously. By letter dated 22 December 2006 from the defendant it was confirmed Mr Zahr had previously viewed this document. Prior to and including 22 April 2006 there was no documented cleaning procedure for the potato processing line in general or the abrasive peeler machine.

27. Whilst there was no documented procedure prior to 22 April 2006 the usual procedure for cleaning of the abrasive peeler was that it underwent two types of cleaning. A daily clean to reduce debris build-up and a “deep clean” which occurred once a week on the Friday night shift. For the deep clean the usual procedure was for the machine to be turned off and the roller guards on both sides of the abrasive peeler to be removed. The machine would then be turned on again and a cleaning fluid would then be applied to the rollers and left on for a period of time whilst the staff on the potato processing line had their break. Following the break the supervisor would then clean the rollers on each side of the machine using a high-pressure gurney to remove imbedded potato from the fabric of the peeler with the machine turned on and the rollers on rotating. The guards rollers on both sides of the machine were removed and the rollers on both sides of the machine were in operation whilst each side was individually cleaned by the supervisor. Whilst the supervisor was cleaning the rollers on one side of the machine their view of the other side of the machine was obstructed by the machine. The other potato processing line staff would undertake other cleaning duties during the deep clean. At the time of the incident Ms Gunawan understood this to be usual procedure and it was the procedure she followed.

28. Prior to the incident, management did not adequately assess the risks of deep cleaning procedure or implement adequate control measures to remove or alleviate the risks with the procedure, in particular the risks to safety by removing the shrouds/guards and exposing the turning abrasive peeler rollers to employees in the vicinity. Management did not undertake any direct inspection of the “deep clean” procedure during the night shift. The “deep clean” process was not reviewed or audited prior to the incident.

29. There were no barriers or other means in place to prevent access to the steps and platforms on each side of the abrasive peeler machine during the cleaning process. There were no emergency stop buttons or controls on the abrasive peeler within reach of a person working in the vicinity of the abrasive peeler rollers.

30. Prior to 22 April 2006 Mr Zahr usually supervised and carried out the deep cleaning of the abrasive peeler. Mr Zahr had been employed by T & F as a supervisor for approximately 9 years at the time of the incident. He commenced employment with T & F when the current owners of the business bought the business. He had previously been employed by the previous owners of business, as had his wife and their employment was essentially transferred to T & F with the purchase of the business. Mrs Zahr generally supervised the day shift.

31. The cleaning process for the abrasive peeler machine was implemented and usually supervised by Mr Zahr or the staff whom he had given authority to conduct the cleaning process.

32. Ms Gunawan the supervisor on the night of the incident had been employed by T & F for a few years at the time of the incident and had been trained in the deep clean process by Mr Zahr. There were no documented training records of training received by staff for the operation or cleaning or the abrasive potato peeler.

33. At the time of the incident Ms Nguyen had not completed formal induction training and had not been provided with a copy of T & F’s induction and safety manual, nor was the manual discussed with her. She was given verbal instructions on company operations and emergency procedures, on her first night at work. Mr Sivakumar, Mr Rafir and Ms Gunawan had all completed a formal induction and were provided with an induction manual.

34. Ms Nguyen was not provided with safety training or information, aside from general emergency procedures, when she commenced with T & F. Nor was she provided with any safety training or information in relation to the task of cleaning the abrasive peeler and the risks associated with this task.

35. Following the incident, T & F completed an interim risk assessment, an interim safe work procedure and an interim training procedure on the operation and cleaning of the abrasive peeler. The abrasive peeler was modified by installing a mesh cover over the access to the abrasive rollers to prevent accidental contact with the rollers whilst they are rotating during the cleaning process.
36. The following supporting documentation is annexed:

a) Factual Inspection Report of Inspector John Lennon dated 28 April 2006.

b) Supplementary Factual Report of Inspector John Lennon dated 1 June 2006.

c) Factual Inspection Report of Inspector Barry Sutcliffe dated 1 May 2007.

d) 13 Colour photographs taken by Inspector John Lennon on 22 April 2006.

e) 30 Colour photographs taken by Inspector Barry Sutcliffe on 9 May 2006, 27 July 2006, 28 November 2006 and 7 February 2007 and

f) 8 colour photographs taken by Sylvia Raymond on 5, 18 and 19 May 2006

g) T & F All States Pty Ltd OH&S Safe Operating Procedure dated 16 October 2004.

h) Hazard Identification & Risk Assessment Sheet for Agware Abrasive Peeler conducted by Manufacturer.

i) Abrasive Peeler Manufacturers Handbook.

j) T & F All States Pty Ltd Interim Risk Assessment on abrasive rollers on Agware potato peeler dated 22 April 2006.

k) T & F All States Pty Ltd Interim Safe Work Procedure for the Cleaning of Abrasive Rollers on the Agware Potato Peeler dated 24 April 2006.

l) T & F All States Pty Ltd Interim Training Procedure for the Safe Cleaning of Abrasive Rollers on the Agware Potato Peeler dated 28 April 2006.

m) T & F All States Pty Ltd Final Risk Assessment on abrasive rollers on Agware potato peeler dated 5 May 2006.

n) Prior convictions Certificate.






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LAST UPDATED:
27 February 2009