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District Court 23 April 2018

Safe Work NSW v EC Throsby Pty Ltd; Safe Work v Mondex Group Pty Ltd

[2018] NSWDC 102

Other
CRIMINAL LAW WORK HEALTH AND SAFETY OFFENCE PLEA OF GUILTY STATEMENT OF AGREED FACTS APPROPRIATE PENALTY APPLICABLE DISCOUNT FOR PLEA OF GUILTY

Citation: Safe Work NSW v EC Throsby Pty Ltd; Safe Work NSW v Mondex Group Pty Ltd [2018] NSWDC 102
Court: District Court of NSW
Date: 23 April 2018
Judge: Judge AC Scotting

Background

A meat processing facility operator and a labour-hire company each pleaded guilty to a category 2 offence under the Work Health and Safety Act 2011, following an incident in which a young worker suffered serious injuries to his left arm. The operator, EC Throsby Pty Ltd (ECT), ran a large hot-boning facility in Whittingham, NSW, employing directly and through labour-hire approximately 238 workers. The labour-hire company, Mondex Group Pty Ltd, supplied approximately 22 workers to the facility, including the injured worker.

The injured worker was a 22-year-old Hong Kong student on a working holiday visa, engaged by Mondex to work as a night cleaner at the facility. Part of his duties involved cleaning a large commercial mincer approximately twice per week. The mincer was fitted with a proximity switch that prevented it from operating when its lid was open, a basic safety feature designed to protect workers from the rotating paddle inside.

In October 2014, ECT directed a qualified electrician to disable the proximity switch in order to increase production efficiency. The electrician expressed concern about bypassing the safety feature but was overruled. ECT did not consult Mondex about the modification. After the switch was disabled, the worker's cleaning supervisor (an ECT employee) gave him revised verbal instructions but no formal updated training. On 6 November 2014, while cleaning the mincer with the lid open and the paddle rotating, the worker's left arm came into contact with the paddle. He suffered a laceration, a severed tendon, and a compound fracture to his left forearm and wrist.

  • Whether each defendant's failure to comply with its health and safety duty under section 19(1) of the Work Health and Safety Act 2011 exposed the worker to a risk of death or serious injury, contrary to section 32 of that Act
  • The objective seriousness of each offence and the appropriate penalty within the statutory maximum of $1.5 million per offence
  • The application of sentencing principles including parity (where two co-offenders receive different penalties), totality, mitigating and aggravating factors, remorse, and the appropriate discount for a guilty plea
  • The difference in culpability between ECT and Mondex, and how that difference should be reflected in the respective penalties

Decision

Both companies pleaded guilty, and the court proceeded to sentence. Judge Scotting assessed the objective seriousness of ECT's offending as above the low range. ECT had made a deliberate decision to disable a mechanical safety feature, had not consulted the mincer's operation manual, had not considered the risk to cleaners, and had failed to inform Mondex of the change. The inadequate verbal instruction given to the worker after the modification fell well short of the training and risk assessment that the circumstances required.

The court found Mondex's culpability to be substantially lower. Mondex had no knowledge that the proximity switch had been disabled, no control over ECT's decision-making, and was not involved in the modification. However, Mondex had no system in place to require ECT to notify it of changes to machinery that could affect the safety of its workers, which was itself a failure of its health and safety duty.

Both companies had no prior convictions, cooperated with the Safe Work NSW investigation, and demonstrated genuine remorse. The court accepted that each had since taken meaningful steps to improve work health and safety practices. A 25% discount applied to both penalties, reflecting the utilitarian value of the early guilty pleas and the remorse they indicated, consistent with the principles in R v Thomson and Houlton and R v Borkowski.

The court imposed a fine of $90,000 on ECT (down from a pre-discount figure of $120,000) and a fine of $15,000 on Mondex (down from $20,000). The significant disparity between the two fines reflected the substantially greater culpability of ECT as the party that made and implemented the decision to disable the safety switch. Pursuant to section 122(2) of the Fines Act 1996, 50% of each fine was ordered to be paid to the prosecutor.

Orders Made

  • ECT convicted and fined $90,000 (reduced from $120,000 by a 25% guilty plea discount)
  • 50% of ECT's fine to be paid to the prosecutor (Safe Work NSW) under section 122(2) of the Fines Act 1996
  • ECT to pay the prosecutor's agreed costs of $35,000
  • Mondex convicted and fined $15,000 (reduced from $20,000 by a 25% guilty plea discount)
  • 50% of Mondex's fine to be paid to the prosecutor under section 122(2) of the Fines Act 1996
  • Mondex to pay the prosecutor's agreed costs of $33,800

Key Takeaways

  • A deliberate decision to disable a mechanical safety device, without reference to the manufacturer's operation manual and without assessing the risk to all classes of workers who used the machine, was treated as a significant aggravating feature in assessing the objective seriousness of a WHS offence.
  • The parity principle in sentencing requires that co-offenders with materially different levels of culpability receive correspondingly different penalties. The District Court's fines reflected ECT's direct responsibility for the unsafe modification and Mondex's more limited, but still real, failure to have systems in place to monitor changes affecting its workers' safety.
  • Labour-hire companies that supply workers to third-party sites retain their own independent health and safety duties under section 19(1) of the Work Health and Safety Act 2011, even where they exercise no control over the host facility's processes or machinery.
  • A 25% discount for a guilty plea was applied consistently with the principle that the earlier the plea, the greater the discount, as confirmed in R v Borkowski.
  • Failing to translate a written work instruction for workers from non-English speaking backgrounds, and relying solely on informal verbal retraining after a significant change to machinery, were identified as shortcomings relevant to the overall assessment of each offender's conduct.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m)
- Fines Act 1996 (NSW), s 122(2)

Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- R v Youkhana [2004] NSWCCA 412