Citation: WorkCover Authority of NSW v Bakers Maison Australia Pty Ltd [2014] NSWDC 281
Court: District Court of NSW
Date: 25 September 2014
Judge(s): Curtis J
Background
The defendant was a medium-sized food manufacturing business operating at Revesby, employing approximately 72 people. One of its employees was injured on 25 June 2010 while operating a commercial pastry mixer. The mixer consisted of a large revolving bowl into which a rotating mixing fork protruded, and it was partially guarded by a manufacturer-supplied guard that still permitted a worker to insert a hand.
The employee had been instructed to test pastry during mixing by inserting his hand into the dough, and to stand 180 degrees away from the mixing fork when doing so. On the occasion of his injury, he stood closer to the fork than instructed. His hand was drawn into the fork, causing fractures to his forearm, shoulder, and lacerations to his upper arm and ear.
WorkCover prosecuted the defendant under section 8(1) of the Occupational Health and Safety Act 2000, alleging that the employer failed to protect the health, safety and welfare of its employee. The defendant pleaded guilty.
Legal Issues
- Whether the defendant's guard on the pastry mixer was adequate
- Whether the defendant had adequately trained its employee in the safe operation of the mixer
- The appropriate penalty, including the weight to be given to the early guilty plea, remorse, and the objective seriousness of the offence
Decision
Issue 1: Adequacy of the Guard
The court found that neither the founding director nor the managing director had turned their minds adequately to the inadequacies of the manufacturer-supplied guard (at [17]). The guard's design was known to be insufficient to prevent the type of accident that occurred, which was precisely why workers had been instructed to stand away from the fork (at [13]). That instruction was the only safeguard in place against a clearly recognised risk (at [12]).
Issue 2: Adequacy of Training
The court found the training given to the injured employee was entirely inadequate (at [19]). Instruction consisted only of on-the-job demonstrations, with no written work method statement and no supervision of the sampling task (at [9], [12]). There was no evidence that the employee was even told the reason why he needed to stand at a specific position (at [12]). The court held that the failure to prepare a written work method statement was a primary safeguard against misplaced confidence in informal measures, and its absence significantly contributed to the injury (at [15]-[16]).
Issue 3: Penalty and Mitigating Factors
The court accepted that the defendant had no prior convictions, had operated since 2005, cooperated with WorkCover following the incident, and pleaded guilty at the first available opportunity, warranting a 20 percent discount on the fine (at [23], [25]). However, the court declined to apply a further discount for remorse. The managing director visited the injured employee once in hospital and made no subsequent enquiry into his welfare or expressed any regret to him (at [24]). The court also found the defendant had not adequately recognised the gravity of its failures in its submissions and evidence, which undermined any claim to the remorse mitigating factor under section 21A(3)(i) of the relevant legislation (at [18]-[19]).
The court identified a need for both specific and general deterrence, noting that the risk which materialised here may have been only one of many unaddressed hazards in the defendant's operations (at [21]-[22]).
Orders Made
- The defendant was convicted and fined $80,000 (reflecting a 20% early plea discount from the maximum penalty of $550,000)
- WorkCover Authority to receive a moiety (half) of the fine
- The defendant to pay prosecution costs in the agreed sum of $14,000
Key Takeaways
- Under section 8(1) of the Occupational Health and Safety Act 2000, an employer's reliance on verbal on-the-job instruction, without a written work method statement or supervision, can constitute a significant failure to protect employee health and safety, even where a training practice had been in place for years (at [15]-[16]).
- The District Court confirmed that where a risk is known and the only safeguard is a verbal instruction to workers, the absence of formal written risk assessment processes is itself a contributing failure, not merely a technical omission (at [12], [16]).
- A manufacturer-supplied guard does not automatically satisfy an employer's safety obligations where the employer has recognised, or ought to have recognised, that the guard does not adequately prevent the known risk (at [13], [17]).
- Remorse as a mitigating factor under section 21A(3)(i) requires genuine acknowledgment of responsibility and causation. Minimal personal contact with the injured worker after the incident, combined with a failure in proceedings to acknowledge the inadequacy of the employer's safety systems, can preclude that mitigating factor entirely (at [18]-[19], [24]).
- Specific deterrence remained relevant even after remediation steps were taken post-incident, because the court considered that the same absence of formal safety processes could expose employees to other unaddressed risks across the defendant's manufacturing operations (at [21]).
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
Cases
- Not stated