Inspector Gary Bruce Mason v Auscott Limited [2010] NSWIRComm 102 (22 July 2010)

Last Updated: 2 August 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Gary Bruce Mason v Auscott Limited [2010] NSWIRComm 102



FILE NUMBER(S):
250

HEARING DATE(S):
11 and 12 November 2009

DATE OF JUDGMENT:
22 July 2010

PARTIES:
Inspector Gary Bruce Mason (Prosecutor)
Auscott Limited (Defendant)


CORAM:
Backman J


CATCHWORDS:

LEGAL REPRESENTATIVES
Mr P Ginters of counsel
WorkCover Authority of New South Wales
(Ms K Lockerby)
Mr B Hodgkinson SC with Mr M Shume of counsel
Kemp Strang Lawyers
(Ms L Berton)

CASES CITED:
Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146
Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143
WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329
WorkCover v Kevin R Sheather Services Pty Ltd [2001] NSWIRComm 74

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000


TEXTS CITED:




JUDGMENT:

- 13 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Backman J

Thursday, 22 July 2010

Matter No IRC 250 of 2009

Inspector Gary Bruce Mason v Auscott Limited

Prosecution pursuant to section 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT OF THE COURT
[2010] NSWIRComm 102

1 Auscott Limited pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000 (2000 Act). At the time of the offence, the defendant operated a cotton gin facility at Midkin near Moree (Midkin Gin). The Midkin Gin operates as a cotton processing plant between about April and July.

2 The charge against the defendant alleged that on 8 March 2007, it failed to ensure the safety of, "all its employees, and in particular, Ricky Lawrence Bella". The defendant's failure to ensure safety was further particularised under four separate heads of allegations. These were:

(a) The defendant failed to ensure that plant, known as an "IFP Cotton Banding Machine" or "Auto-Strapper", provided for use by its employees at work ("the Strapper"), was adequately guarded so that the Strapper could not move along the Strapper carriage track whilst Mr Bella was, or in the alternative, Mr Bella and Mr Sutherland were, undertaking maintenance work on the Strapper.

(b) The defendant failed to ensure that Mr Bella and Mr Sutherland were provided with such information and instruction in relation to the isolation of power and maintenance of the Strapper as was necessary to ensure the safety of Mr Bella, or in the alternative, Mr Bella and Mr Sutherland, whilst maintenance work was being undertaken on the Strapper.

(c) The defendant failed to ensure that the work procedure known as SWG190 was complied with.

(d) The defendant failed to ensure that Mr Bella and Mr Sutherland were provided with such supervision as was necessary to ensure Mr Bella's safety or, in the alternative, Mr Bella and Mr Sutherland's safety whilst maintenance work was being undertaken on the Strapper.

(e) The defendant failed to adequately maintain such measures, as were identified by a risk assessment, as were necessary to ensure the safety of Mr Bella, or in the alternative, Mr Bella and Mr Sutherland, whilst maintenance work was being undertaken on the Strapper.

3 Particulars (b) and (d) were disputed by the defendant. The prosecutor therefore was required to prove these two particulars beyond reasonable doubt. This matter will be dealt with in detail later in these sentencing reasons.

Agreed factual background

4 On 8 March 2007, Mr Bella was fatally injured after becoming trapped between the moving parts of the Strapper carriage and another item of machinery, "a Consolidated Up Stroking Cotton Bale Press (the Press).

5 Mr Bella had been employed by the defendant as a "ginner" since 1996. Craig Gaston, at the time of the accident, was the Gin Manager and supervisor of the defendant's employees at the Midkin Gin. Darren George Sutherland was employed at the Midkin Gin as an electrician.

6 The Press was used to compact cotton into bales. The Strapper fastened together the cotton bales. Wires were fed through "heads" of the Strapper under the compacted cotton bales to a component of the adjacent Press and then fed back into the Strapper to fasten the cotton bales. Power and operation of the Strapper was controlled by a Strapper Console. The main electrical source and isolator for the Strapper was housed inside the CP-100 Strapper Electrical Cabinet (Electrical Cabinet).

7 The Press extended to the ceiling and through the floor to a room below called the Press Pit. Adjacent to the Press were two operating consoles, the Strapper Console (mentioned above) and the Press Console. In the centre of the Strapper Console was an electronic touch screen with power control buttons located immediately below the screen. The left-hand button was an emergency stop control. On the floor in front of both Consoles was an electronic pressure mat (safety mat). Three more safety mats were adjacent to the Consoles on the same side. When activated (for example, by a worker standing on them), the safety mats deactivated electrical power to the moving parts of the Press and the Strapper.

8 The Strapper was attached to the Press by a cross beam on the eastern side of the Press and travelled laterally along the cross beam toward the Press. It had five electrical "servomotors" with individual controls that could be operated manually or remotely. The five servomotors, identified as A, B, C, D and E heads respectively (the Strapper heads) controlled individual drive wheels. Under the drive wheels, was a knotter box. Under it was an exit track for the wires that fed under a cotton bale then to the Press and back into an entry track on the Strapper, to fasten the cotton bales.

9 On 7 March 2007, the day before the fatal accident, Mr Gaston prepared to undertake maintenance work on the Press ram. In order to do this, it was necessary to move the Strapper away from the Press ram. Mr Sutherland deactivated the safety mats in front of the Press and the Strapper by using a "programmable logic control'. In an interview with WorkCover, Mr Sutherland said he disconnected (the power to) the safety mats at Mr Gaston's request so that Mr Gaston could gain access to the Press with a forklift. Mr Gaston, in an interview with WorkCover, said that he did not instruct Mr Sutherland to deactivate the safety mats. Whichever version is correct, it was an agreed fact that prior to the accident on 8 March 2007, the safety mats were not reactivated.

10 At about 12.00pm on 7 March 2007, Mr Gaston removed the captive key located at the top right-hand corner of the Press Console. The removal of the captive key isolated the electrical control power to the Press and to the Strapper Carriage. The effect of this was that all parts of the Strapper Carriage (with the exception of the Strapper heads) and the Press were isolated.

11 The captive key was removed by Mr Gaston from the Press Console so that he could carry out maintenance work in the Press pit. As at 8 March 2007, at the time of the accident, it had not been replaced.

12 At and prior to the offence, the defendant had a Standard Work Instruction (SWG173) for the isolation of machinery. SWG173 required that prior to the maintenance work being undertaken on plant, it is first "shut down" and a "padlock or danger tag [applied] to [the] local isolator". Mr Gaston complied with the first part of the instruction, that is, he removed the captive key from the local isolator (the Press Console) which "shut down" the Press and the Strapper carriage (but not the Strapper heads). He did not comply with the second part of the instruction. His reasons for not doing so were explained by him in his WorkCover interview:

"SWG 262 was not relevant to the task being performed. SWG 190 was followed to move the ram out of position. Not all steps of SWG173 were followed but this was because I had removed the captive key. I did not consider that it was necessary to apply [sic] additional padlock to the Estop, as the Press and strapping machine could not be operated with the captive key removed. The removal of the captive key isolates both the strapping machine & press from all control power, which disables both machines".

13 SWG173 also required that if a local isolator was not available then an "authorised person" was to isolate the main power supply in the switch room. The procedure to be followed when isolating the main power supply was set out in SWG173 as follows:

(a) Remove the control fuse first and then remove the three main fuses that supply the motor at the switchboard. Apply a danger tag to the top of the contractor. Ensure all fuses are identified as to where they were removed from.

(b) Turn the circuit breaker to the off position and install a lockout device. Apply a padlock or danger tag.

(c) Turn switch to the off position and apply padlock or danger tag."

14 SWG190, which was referred to by Mr Gaston in his WorkCover interview, was another safe work instruction in practice at the time of the offence. It set out the procedure to be followed when maintenance work was to be performed on an unguarded machine (that is, when the power supply had not been isolated). Two steps to be followed are set out in the agreed facts:

(a) "The Gin Manager or Supervisor is to be notified that a machine is to be run unguarded."

(b) "The unguarded machine must have an observer and/or a lookout man near its isolation switch at all times while the machine is running."

15 On the morning of 8 March 2007, Mr Gaston instructed Mr Bella to load spools of wire and bolt down the Strapper carrier of "Gin No 5". Mr Gaston then went down to the Press Pit to carry out the maintenance work, following the preparations he had made the day before.

16 Mr Bella completed the task assigned to him by Mr Gaston. He then commenced another task which involved feeding the wire through the Strapper heads. He encountered a difficulty feeding the wire through Strapper head A because the position of the Press Console was obstructing his access. It will be recalled that although the captive key had been removed from the Press Console by Mr Gaston the day before, electrical power was still being delivered to the Strapper heads via the electrical cabinet (the main power supply). The captive key had, however, isolated the power to the moving parts of the Strapper and Press which had been rendered immobile. As a result, Mr Bella could not reposition the Strapper so that he could gain access to Strapper head A. Mr Bella asked the electrician, Mr Sutherland, if he could "make the Strapper so he could move it". Neither Mr Bella, nor Mr Sutherland, discussed this step with Mr Gaston or with any other person.

17 Mr Sutherland, in compliance with Mr Bella's request, reconfigured the wiring (by changing two wires) in a coil control relay housed inside the main electrical cabinet. As a result, power was restored to the Strapper. His actions overrode the local isolation of the Press Console undertaken the previous day by Mr Gaston following the removal of the captive key. Mr Sutherland was able to restore power to the Strapper because the electrical cabinet had not been "locked out". Locking out the electrical cabinet (by way of a padlock for example), according to the agreed facts, prevents it from being "powered up".

18 According to the agreed facts:

Manual restoration of power to the Strapper by by-passing the local isolation could have been prevented if power had been isolated at the Electrical Cabinet and a padlock applied to the grey mains isolator level on the Electrical Cabinet.

19 When the Strapper was installed a Manual (IFP Ultra Twist Operator Manual) was supplied to the defendant which provided (on page 4):

It is mandatory for the main electrical service panel to be locked out/tagged out before performing any service or maintenance on the machine.

20 In oral examination, during the sentence proceedings Mr Sutherland's attention was directed to the procedure set out on page 4 of the Manual. He recognised the document but said that as at 8 March 2007 he could not "specifically" recall having received any instruction or training with regard to the procedure and did not recall having been shown page 4 of the Manual. Mr Sutherland, on 8 March 2007, however, was not intending to perform any service or maintenance work on the Strapper. He reconnected the power supply so that Mr Bella could gain access to the Strapper head in order to feed through the wire. Before Mr Bella could gain access he needed the power restored to the Strapper so it would move.

21 As a result of Mr Sutherland's actions, the Strapper was in an "unguarded" condition. This meant that the procedure set out in SWG190 should have been followed and Mr Bella (and/or Mr Sutherland) should have notified Mr Gaston, the Gin Manager, that the Strapper was to run "unguarded". Nor did Mr Bella (nor Mr Sutherland) arrange for an observer or a lookout man to be stationed near the Strapper's isolation switch while the machine was running. As events transpired, however, this last mentioned procedure would, in all probability, have been of little utility. The first mentioned procedure on the other hand would have alerted Mr Gaston to Mr Bella's intentions, and appropriate action may have been taken. Unfortunately, this did not occur.

22 Following the wiring by-pass, Mr Sutherland remained in the vicinity of the Strapper for a short while and observed Mr Bella move the Strapper and tie a knot using the Strapper "A" head in order to test the knotter box. Mr Sutherland also helped Mr Bella tie a knot by handing him the wire loop.

23 Mr Sutherland returned to his desk. Shortly after he heard a rapid movement followed by a heavy expulsion of air. He looked in the direction of the Strapper and saw that Mr Bella was trapped between the Strapper and a material column of the press. Mr Sutherland ran to the Electrical Cabinet and switched off the main electrical isolator. He then called for assistance. Mr Bella was taken to Moree Local Hospital and was pronounced dead as a result of crush injuries sustained to his head and chest.

24 An incident report generated by the defendant after the accident revealed a defect in the Strapper's "homing sequence" which meant that it had failed to return to its "home position" within the specified timeframe. Testing by Jamie Condon, an electrical manager employed by the defendant, identified that in 97 per cent of homing sequences, the Strapper Carriage would stop for variable periods of time at different locations along the Strapper track and then restart and complete the homing sequence. According to the prosecutor, who gave evidence during the sentence proceedings, Mr Condon discovered that one of the controller units (the Lexium Controller) for the Strapper had malfunctioned and that the LED screen on the unit had failed to display the error message once the fault occurred. In cross-examination, the prosecutor agreed that as a result of the malfunction the Strapper Carriage could move erratically along the track towards the "home position" and without warning. It appears to have been accepted by the parties that this is what occurred at the time of the accident.

25 Other evidence also established that the Lexium Controller was a sealed unit containing proprietary software which the defendant could not access for the purpose of carrying out internal repairs. After the Strapper was installed the manufacturer, IFP, had carried out annual maintenance on the machine and no issues had been identified by it as a result of this maintenance in relation to the Lexium Controller.

Disputed particulars

26 Disputed particular (b) alleges a failure to provide both Mr Bella and Mr Sutherland with information and instruction, "in relation to the isolation of power and maintenance of the Strapper" necessary to ensure Mr Bella's, and/or, Mr Sutherland's safety while maintenance was being undertaken on the Strapper. (The alternative proposition in particular (b) was said to arise because Mr Sutherland was in the vicinity of the Strapper when Mr Bella moved it.)

27 In oral submissions, the prosecutor relied on alleged failures of the defendant to ensure that Mr Bella and Mr Sutherland were adequately informed and instructed about the procedures outlined in SWI173, SWG190 and page 4 of the Manual.

28 According to the prosecutor, Mr Gaston only partly complied with SWI173, that is, he removed the captive key but did not apply a padlock or danger tag to the emergency stop button (ESB) on the press console. The relevance of Mr Gaston's failure to complete this second step was said to demonstrate that the defendant's "paper system" was not followed.

29 It is difficult to see what relevance Mr Gaston's actions with respect to the procedure outlined in SWI173 could have to particular (b). The particular is specifically directed to a failure on the part of the defendant to provide necessary instruction and information to Mr Bella and Mr Sutherland. It does not refer, either expressly or impliedly, to Mr Gaston, or to any other employee of the defendant.

30 The risk to safety was characterised by the prosecutor as the risk of being struck by the unguarded, moving Strapper once the captive key system had been bypassed (by Mr Sutherland). Mr Sutherland's actions had nothing to do with SWI173, which concerned the local isolation of machinery. Had Mr Gaston fully complied with SWI173 and applied a padlock or danger tag to the ESB on the Press Console, this would have had no impact at all on the risk to Mr Bella's (or Mr Sutherland's) safety. Mr Sutherland's actions in overriding the local isolator (the captive key) were accompanied by his reconfiguring of the wiring in the main electrical cabinet. He would have been able to accomplish this even if Mr Gaston had fully complied with SWI173.

31 SWG190 was the relevant procedure that should have been followed by Messrs Bella and Sutherland. The failure to follow a procedure formulated by the defendant does not equate, however, to a failure on the part of the defendant to provide the necessary, or adequate, information and instruction.

32 The effect of Mr Sutherland's actions in bypassing the captive key system was that the Strapper would run in an unguarded state. SWG190 therefore was the applicable procedure. The first step in the procedure required to be undertaken was that the Gin Manager or supervisor was to be notified that the Strapper was to be run unguarded. Mr Gaston was the Gin Manager. He was not notified by either of the two workers of their intentions. The work Mr Bella intended to perform following Mr Sutherland's bypass of the captive key system was not authorised work. As earlier mentioned, if Step 1 of SWG190 had been followed, Mr Gaston may have taken appropriate action to ensure both workers were not placed at risk.

33 The issue which arises here for consideration however is the adequacy of instruction and information, necessary to ensure the safety of Mr Bella and Mr Sutherland.

34 Both Mr Bella and Mr Sutherland were experienced, senior and well-regarded employees. Mr Sutherland trained apprentices in the SWG190 procedure. He was, therefore, well-aware of the procedure. Mr Bella who, as a Ginner, performed maintenance and supervision work, would, in my view, have also been aware of the procedure. The contrary position in any event was not relied upon by the prosecutor. In oral evidence, Mr Sutherland explained that SWG190 was used when the electrician needed to override interlock safety devices which were present on a number of machines. The procedure involved re-wiring the interlock so that the machine remained operational in order that testing and observation of the machine could be undertaken while the machine was operational.

35 These matters, in my view, suggest that Mr Bella and Mr Sutherland were in fact the recipients of adequate or necessary information and instruction with regard to SWG190. Both were experienced, senior employees. The evidence with regard to Mr Bella in particular suggests that he was very highly regarded. Both men were senior supervisors. Mr Sutherland instructed his apprentices in the SWG190 procedure. In these circumstances, the requisite causal connection between the failure of instructions, etc, with regard to SWG190, and the resultant risk is not made out.

36 This leaves page 4 of the Manual. Mr Sutherland, in his evidence, did not recall receiving any instruction (or training) about the matters identified on page 4 of the Manual. On the other hand, he displayed a detailed knowledge and understanding of lock out and tag out procedures, with which page 4 deals.

37 As with SWI173, however, it is difficult to see the relevance of the procedures on page 4 of the Manual to the risk to safety to which Mr Bella was exposed at the time of the incident. The risk to Mr Bella (and Mr Sutherland) arose after the Strapper was no longer isolated. The procedures at page 4 are directed to isolating the power to machinery.

38 In any event, even if Mr Sutherland's attention had not been directed to the relevant contents on page 4 of the Manual, I have no doubt that he was nevertheless aware of the procedures and well-versed in their implementation. He was, after all, a senior electrician who trained the defendant's apprentices. The procedure outlined on page 4 is directed to the isolation of the Strapper, "before any servicing can be performed". The defendant relied on the confining of the procedure to servicing, submitting that the work performed by Mr Bella at the time of the incident could not be characterised as "servicing work". Nevertheless, on the same page there appears a procedure for locking out or tagging out the "main electrical service panel" before performing any service or maintenance (my emphasis) on the Strapper. I have no doubt, given Mr Sutherland's experience and seniority that he was also aware of, and well capable of implementing, that procedure. It was not however his intention (or Mr Bella's) to lock out or tag out the main electrical service panel (which I take to be the same thing as the main electrical cabinet).

39 Mr Sutherland's actions therefore in returning power to the Strapper may be construed as a failure on his part to follow the procedures on page 4 of the Manual, but it does not follow from this that the defendant failed to provide adequate and necessary instruction to either Mr Bella or Mr Sutherland "in relation to the isolation of power and maintenance of the Strapper".

40 Again, given Mr Bella's experience in maintenance matters, and his seniority, there can be little or no doubt that he was also aware of the procedure at page 4 of the Manual. The work he was authorised or instructed to do by Mr Gaston, however, did not involve returning power to the Strapper. Nor could it be described as a logical next step in the work he was instructed to perform. There is no obvious connection between loading spools of wire and bolting down the Strapper head and then proceeding to feed the wire through the Strapper heads, which was work Mr Bella was not instructed to do and which could only be accomplished by overriding the captive key system earlier set up by his supervisor, Mr Gaston. According to Harvey John Gaynor, the defendant's General Manager (whose evidence was not challenged) Mr Bella was instructed by Mr Gaston to perform work on the battery condenser located elsewhere in the Gin after he had completed the two earlier tasks Mr Gaston had assigned to him.

41 The prosecutor has therefore failed to establish beyond reasonable doubt the requisite causal nexus between this failure as particularised and the resultant risk to safety.

42 A similar conclusion follows for the same reasons with regard to particular (d) which alleges a failure to supervise Mr Bella and Mr Sutherland while maintenance work was being undertaken on the Strapper.

43 The work being undertaken (which resulted in the relevant risk to safety) was unauthorised and against all available and known procedures (in particular SWG190). In addition, (although more a pertinent consideration in relation to the defence provisions under s 28) it cannot have been contemplated by the defendant that two such experienced and senior workers would fail to follow documented procedures, of which both were aware, to conduct work that neither was authorised to do and which exposed them both to serious risk to their safety. The principle of pro-activity which requires a defendant to factor into a safety regime circumstances where employees are careless, negligent, inattentive, or even disobedient should not be relied upon in circumstances where the employees in question were experienced, senior, highly regarded and whose job descriptions included supervisory responsibilities at a relatively senior level, and who had been trained and instructed in the relevant procedures.

44 The prosecutor also sought to place reliance on a decision of Peterson J in WorkCover v Kevin R Sheather Services Pty Ltd [2001] NSWIRComm 74 for the proposition that even if there were no specific instructions to an experienced employee not to do something there would still be a failure to supervise in circumstances where the work was capable of being performed and the provision of equipment enabled. The decision, in my view, does not assist the prosecutor. It is readily distinguishable. In Sheather, the defendant was found guilty of a failure to supervise. One factor persuasive of the finding was that the supervisor of workers who were performing work on a live switchboard box was aware of the work being performed and of the fact that the switchboard box was live while the work was being performed.

Systems of work prior to offence

45 I return now to consider the charge to which the defendant has pleaded guilty by reference to particulars (a), (c) and (e).

46 Mr Gaynor, the defendant's General Manager, has set out in an affidavit the defendant's safety systems in place at the Midkin Gin prior to the offence. The affidavit evidences a wide-ranging and comprehensive safety regime. In summary, that regime included the following safe work systems in force prior to the incident:

(a) Occupational Health and Safety Policy;

(b) Adoption of National Safety Council of Australia Five Star rating system;

(c) Adoption of Industry Codes of Practice;

(d) External and internal occupational health and safety training;

(e) Systematic hazard identification, risk assessment and control;

(f) Induction programmes;

(g) Continuous Improvement Action Plan ("CIAP");

(h) Competency Assessments;

(i) JSA and SWI procedures;

(j) Development and implementation of Workplace Policies including but not limited to:

(i) Equipment Isolation and Energy Dissipation Policy;

(ii) Hazardous Substances Polices;

(iii) New or Modified Plant, Equipment, materials or Work Methods Policy;

(iv) Physical Hazard Identification Survey Policy;

(v) Standard Work Instructions Policy;

(vi) Sun Safety at Work Policy;

(k) Safety (CIAP) meetings;

(l) Tool box talks;

(m) Permit systems for specific hazard situations;

(n) Checklists for new or modified machinery;

(o) Workplace signage;

(p) Disciplinary procedures for non-compliance;

(q) New machinery training procedures;

(r) Emergency procedures;

(s) Ongoing training;

(t) Physical and electrical safety systems (such as physical guards, interlocks including captive key systems, and presence-sensing safety mats and laser scanner systems);

(u) Workplace inspection checklists scheduled on recurrent activities calendar;

(v) Hazard/Near miss reporting;

(w) Incident investigation and analysis;

(x) Employee health assessments; and

(y) Internal and external auditing.

47 The Strapper was assessed at the time of its installation on 30 March 2005. According to Mr Gaynor:

As a consequence of the assessment, additional Safety Mats were installed in the areas along the front and side of the Strapper and Press. Some existing Safety Mats and a presence-sensing laser scanner were also reconfigured to cater for the Strapper. As recorded in the Auscott Risk Register, Mr Sutherland oversaw this work. Mr Gaston, Ben Pollard and Mr Bella oversaw the introduction of other measures arising from the same assessment.

48 In addition, following the initial assessment the defendant has kept a Midkin Risk Safety Calculator Evaluation and Risk Register with entries showing safety measures that were implemented for the Strapper.

49 Mr Bella is described by Mr Gaynor as a very experienced ginner, who had developed a broad knowledge of the ginning process, production methods and gin machinery. In particular, he had extensive knowledge of the Strapper and of the Press having worked on and been involved with the maintenance of both items of machinery since installation. Mr Bella had also completed numerous training courses and other courses involving the development of supervisory and management skills.

50 Mr Sutherland, according to Mr Gaynor, is a licensed electrician who has also completed numerous courses run by TAFE and NSCA involving matters such as, "OH&S for Frontline Supervisors and Managers" and "Operational Management". Mr Sutherland had also completed, prior to the offence, an in-house training session which included "team building".

51 Standard work instructions were developed by the defendant prior to the offence. They include SWI173 and SWG190 which have been earlier dealt with in these sentencing reasons and need no repetition.

52 These safety systems attest to a genuine commitment on the part of the defendant to safety matters in the workplace. As such, their existence and implementation prior to the offence operate to reduce the objective seriousness of the offence.

Reasonably foreseeability of the risk

53 The risk to safety has been earlier described. According to the prosecutor, prior to the incident, the defendant was on notice of the importance of isolating all power services before maintenance work was performed on the Strapper. Page 4 of the Manual was relied upon by the prosecutor as demonstrating the defendant's prior knowledge in this regard.

54 The risk to safety arose, however, when the machine was in an unguarded state. Page 4 of the Manual, as previously noted, deals with a procedure for isolating the machine. Nevertheless, the defendant was on notice of the importance of safety measures when machinery was operated in an unguarded state. SWG190 is an example of a procedure formulated by the defendant in the event such tasks were to be undertaken. The incident demonstrates that SWG190 was not followed, and as a result, gave rise to the risk to the safety of Mr Bella in particular.

55 The issue of foreseeability of the risk arises in circumstances where Mr Bella and Mr Sutherland performed work they were not authorised to do and failed to follow procedures in relation to which they had received previous instruction and training. There may be an element of foreseeability of risk in circumstances where the Strapper was not adequately guarded and where the defendant failed to adequately assess the risks, both of which constitute particulars of the offence to which the defendant has pleaded guilty. Other than this, I fail to see that the risk to safety was reasonably foreseeable in the way characterised by the prosecutor. The defendant contended that the foreseeability of the risk was at the "lowest end". Given these matters, I am prepared to find that the foreseeability of the risk to safety was at the low end of the spectrum.

Conduct of the employees

56 The conduct of Mr Bella and Mr Sutherland, in my view, is also relevant to an assessment of the objective seriousness of the offence. Both employees performed work they were not authorised to perform. This factor alone carries little weight, however, given their respective experience and expertise. It would be expected that persons of their skill and experience were more than capable of showing initiative in the performance of tasks outside their immediate set of instructions. It is another matter entirely, however, when the work being undertaken without authorisation exposes both men to serious danger, largely of their own making. The conduct therefore operates to reduce the culpability of the defendant, ultimately responsible for their safety: see Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 145; Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 at [15]- [16].

Availability of remedial measures prior to the offence

57 A factor which adds to the objective seriousness of the offence was that relatively simple steps could have been implemented in order to avert the risk. The agreed facts set out an example of one such step:

Following the incident on 8 February 2007, Auscott modified its electrical isolation procedures for work on machines involving the motor/actuator or electrical componentry so as to require, amongst other things, removal and isolation of the machine's control and main fuses.

Consequences of the breach

58 The consequence of the defendant's breach of the Act carried with it the risk of significant injury. The tragic death of Mr Bella manifests the degree of seriousness of the risk to safety.

Deterrence

59 General deterrence also falls for application. Working on machinery that has not been isolated carries with it obvious dangers in relation to which the importance of implementing and promulgating appropriate safety regimes must be emphasised.

60 Specific deterrence also arises for application. The defendant continues in business at the Midkin Gin. Its comprehensive safety regime which has been implemented at the Midkin Gin reduces to some extent the overall component of penalty otherwise attributable by reason of the application of specific deterrence.

Maximum penalty

61 The defendant has prior convictions and therefore faces a maximum penalty of $825,000.

Subjective factors

62 The defendant entered a plea of guilty to the charge at the earliest or first reasonable opportunity. I propose, in these circumstances, to assess an appropriate penalty for the utilitarian value of the plea at 25 per cent.

63 As a separate consideration from the utilitarian value of the plea, the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty.

64 The defendant has prior convictions. This disentitles it to leniency otherwise available to offenders not adversely recorded.

65 The defendant also co-operated with WorkCover during the investigation and prosecution of the offence.

66 Mr Gaynor said that the defendant's management was "personally devastated" by the accident which he acknowledged had a wide reaching impact on the defendant, its employees and their families. In his affidavit, Mr Gaynor expressed contrition and remorse for the tragic death of Mr Bella on behalf of the defendant, his co-workers and their families. He explained:

As part of a small rural community we knew Mr Balla and his family well outside of the workplace which only adds to the grief we feel.

The manner of Mr Bella's death at work has had a traumatic and continuing effect on his co-workers including senior management and, in particular, on the co-workers who rendered such assistance as they could immediately following the accident. The physical and emotional toll on me and my family has been huge and I know the same is true for other Auscott Managers at Midkin and in Sydney.

I and other managers are sincerely regretful that an accident such as this has occurred on our premises.

Much as we wish that we could, we cannot undo what has occurred, but have worked constantly since the accident to improve our standards above and beyond what we had in place at that time. Our fervent aim is to avoid any repeat of this type of tragedy or indeed any lesser injury. At present we have not suffered any lost time injury at Midkin since May 2007 (over 800 days).

67 These matters provide evidence upon which the Court may take into account the defendant's remorse in mitigation of the penalty to be imposed. As required under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (CSPA), the defendant by its expressions of remorse and its conduct following the offence has provided evidence upon which it may be concluded that it has accepted responsibility for its actions and has acknowledged the loss caused by those actions.

68 The defendant, following the accident, also provided assistance to Mr Bella's family and to employees, the latter group receiving ongoing counselling assistance. The extent of the assistance rendered is set out in Mr Gaynor's affidavit:

Auscott's employees at Midkin and senior management knew Mr Bella and his family well so were determined to do whatever could be done to help his family at this tragic time.

On the day of the accident several members of the Midkin management team and gin team (including myself) visited Mr Bella's family to offer our condolences and whatever comfort and assistance we could. I personally maintained regular contact with Mr Bella's partner Melissa Pollard and his brother David between the accident and Mr Bella's funeral and for some time beyond that.

An early issue for Melissa was access to cash for day to day expenses as Mr Bella's accounts were "frozen" and Auscott provided her with $1000 cash to assist.

Auscott also provided a rental car at its own expense for the use of Mr Bella's family members who had travelled from interstate. Auscott also provided a rented minibus and driver to transport mourners to and from the funeral. Auscott printed over 300 colour booklets for the service, which included some photos drawn from our archives. The funeral costs were paid by Auscott.

Auscott's Midkin site was shut down for a day to allow all employees to attend the funeral, and senior employees from the head office and other operational sites also attended.

At the request of Mr Bella's family, Auscott made the arrangements for a "wake" held at the Moree Services Club, and paid all costs.

In August 2007, when payment to Melissa Pollard from the Workers' Compensation insurer (QBE) was delayed, Auscott provided her with $6,000 on an interest-free basis.

The tragic death of Mr Bella has been heartfelt through the whole Auscott organisation. It has had significant and profound impact on management and our employees in general.

All of the employees at Midkin were offered counselling and any other assistance that could be provided. A number of employees made good use of that counselling. This offer of assistance remains open to employees to this day.

All work at the Midkin Gin was halted immediately and gin employees left the site as soon as investigating authorities allowed. The employees were allowed to set their own timetable for returning to work, and chose to do so the following day, but at a measured pace, their first work being re-induction and safety auditing of the machinery. I was careful not to apply any pressure to resume normal operations, preferring to allow the employees to reach emotional preparedness at their own pace.

69 The defendant has also exhibited good corporate citizenship through its many community activities and assistance programmes, particularly in relation to its support for the indigenous community. These matters are also set out in Mr Gaynor's affidavit:

Throughout the 46 years that Auscott has been a part of the NSW rural community and Australian Cotton Industry it has placed high priority on supporting both. Numerous community organisations and charities are sponsored each year in all three rural areas where the company operates.

Auscott provides three tertiary education scholarships each year. These scholarships, awarded to students who complete their schooling in the Gwydir, Namoi and Macquarie Valleys provide financial support for the duration of a tertiary degree. The scholars are free to choose their own courses and there are no obligations on them other than to pass. 120 students have been awarded scholarships since the program's inception, and the annual contributions by Auscott are in excess of $100,000 (2008 calendar year $101,178).

Auscott contributed $225,000 to establish a telehealth centre at Warren Multi-Purpose Health Centre. This contribution, along with the Auscott Education Scholarship demonstrate Auscott's genuine understanding of the particular challenges and needs faced by rural communities in which it operates, and its commitment to playing its part in meeting those needs.

Within the cotton industry Auscott is well known as a stable employer, strong supporter of research and development, an innovative and high-quality farmer and ginner and a contributor to many industry bodies. As well as conducting internal research trials Auscott has provided sites and cooperation for many industry researchers in both farming and ginning. The company's average annual expenditure on Research and Development is in excess of $1,250,000.

Moree, Narrabri and Warren, like many western NSW communities, have significant indigenous populations who suffer economic and social disadvantage. In 1997 the Gwydir Valley Cotton Growers' Association commenced the Aboriginal Employment Strategy ("AES"), of which I was a committee member during its early development. AES, which now has offices in three states and the Northern Territory, has helped Moree change from a being a town with a reputation for racism to being recognised nationally as a leader in reconciliation.

Auscott has employed indigenous people through AES and provided equipment, staff and facilities for training programs run by the AES.

70 Following the accident the defendant took extensive remedial measures. These have been set out in Mr Gaynor's affidavit as follows:

Management Action

Immediately after the accident, Auscott's Chief Executive Officer, Dave Anthony, ordered safety audits across the whole of Auscott's ginning operations to ensure that all safety systems were working as intended. The audit process delayed the start of ginning by several weeks and created significant commercial issues however Auscott management considered it was imperative that the audit was not compromised. Accordingly, no gin could start operation until the valley General Manager of the site was satisfied with the audit results.

In addition, at the Midkin site an external auditor was engaged to check the rigour of this internal audit process, with the aim of assuring Auscott Management, employees and their families that the audit process was sound.

The internal audit of safety systems of all gin machinery has now become a standard annual pre-ginning process.

Dave Anthony visited each of the Auscott operational sites and held meetings with all employees. The meetings focused on the tragedy at Midkin and the sense of loss, the importance of occupational health and safety in the workplace and restating Auscott's occupational health and safety policy.

On 27 March 2007, 1-2 August 2007, 22 November 2007 Auscott's senior management held three further meetings with employees to further reinforce the company's safety philosophy. The first meeting was with senior management. The second meeting involved all line managers. The third meeting involved all Auscott employees (excepting some administrative employees based in Sydney) and involved a full day' workshop at Narrabri.

Another meeting of all line managers was held on 24 June 2008. This meeting focussed on the importance of "interdependence" in safety throughout the company, and also included a final sign-off on a new "Take 5" system to be implemented company-wide.

Several of these meetings have included an external Human Resources consultant as well as speakers from other businesses (Rio Tinto, Fletchers International).

Re-induction of Gin Employees

All of the employees working in the Midkin Gin underwent a re-induction and training program. As part of the re-induction, the gin employees were required to successfully complete a competency assessment in the use and application of SWG173.

Revised Standard Work Instructions

SWG 173

Auscott undertook a comprehensive review of SWG 173 in conjunction with WorkCover. The changes to SWG173 were in compliance with the WorkCover Improvement Notice (7-128442).

Corporate Standard Work Instructions - CSWI 001 and CSWI 002

In October 2007, SWG173 was upgraded to Corporate Standard Work Instruction ("CSWI 001") which applies to the "Isolation of Fixed Wired Electrically Powered Plant".

CSWI 001 (as was also the case with SWG 173) cannot apply when tying test knots with the Strapper as power is required for the wire feed and knotters.

In May 2007, SWG 190 was revised and upgraded to a permit based system which is now known as CSWI 002 ("CSWI 002") and which applies to "Running a Machine Unguarded or Without Safety Devices". CSWI 002 requires an employee to step through a permit form and obtain approval from the Gin Manager/Shift Supervisor and in some cases Electrician as well, prior to running any machine in an unguarded state.

Training in CSWI 001 and CSWI 002

The new corporate procedures were implemented at training sessions for Permanent Employees firstly by reading the documents, secondly - having the terms of the documents explained to them using a PowerPoint presentation, thirdly - physical demonstration of the SWI procedures and fourthly - by performing the SWI procedures under supervision.

Changes to Strapper

Further changes were made to the electrical and physical components on the Strapper. For example, the wiring of the Safety Mats on the Strapper was incorporated into a circuit which, when interrupted, stops all control power to the Strapper.

In addition to the electrical changes, a fixed Perspex guard has been installed which prevents access from of the front of the Press area across the Press console which prevents access to the Press console from the front area of the Strapper and Press - which is the area where Mr Bella was trapped.

Review of Policies, Procedures and Equipment

Various policies and procedures were reviewed and several site specific policies were standardised as corporate policies applying across all sites. This process is ongoing.

A corporate Equipment Isolation and Energy Policy, and associated procedures (including CSWI 001) was introduced to implement consistent standards across the company.

Auscott has spent $127,108 since the accident on installation of additional lockable local isolators at the Company's gin sites. The program of installing safety systems such as interlocked guards, safety mats and captive key systems has also continued, with expenditure since the accident on this program amounting to $75,061.

Changes to OH&S Coordination

On 30/3/2007 Chris Hogendyk, General Manager of Auscott's Macquarie Valley Operations, was appointed as Chair of a committee of Auscott's occupational health and safety coordinators at each site. The appointment was made so as to strengthen the communication between the various farming and ginning operations.

71 All of these matters will be taken into account by the Court in mitigation of the penalty to be imposed.

Victim Impact Statements

72 The Court also received statements from Mr Bella's mother, Marcia Livermore, and his two brothers, Kelvin Bella and David Bella. I have read those statements which attest to very close family bonds, and, a sense of deep loss and grief. The Court expresses its profound sympathies to Mrs Livermore, Mr Bella's mother, and to his two brothers, Kelvin and David Bella, for the loss of a son and a brother in such tragic circumstances.

Penalty

73 In determining penalty, the Court has taken into account the objective factors and the subjective factors, including the absence of prior convictions. Factors, both in mitigation and aggravation of the offence, have also been considered by reference to the CSPA, in particular, s 21A.

Costs

74 The defendant submitted that findings that particulars (b) and (d) have not been made out, "may sound to some extent in costs". No authority was relied upon in support of the submission. It seems to me that where a defendant has pleaded guilty to a charge, as here, but has successfully disputed two of five particulars, it is not thereby entitled to an apportionment of its costs: see for example, WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329 at [12] per Walton J, Acting President, and Staff J.


Orders

75 In Matter No. IRC 250 of 2009, I make the following orders:

(1) The defendant, Auscott Limited, is convicted of the offence and fined $90,000 with a moiety to the prosecutor.

(2) Auscott Limited is to pay the reasonable costs of the prosecutor as agreed, or in the absence of agreement, as assessed.

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LAST UPDATED:
22 July 2010