Citation: SafeWork NSW v Il Pastaio Pty Ltd [2020] NSWDC 677
Court: District Court of New South Wales
Date: 9 November 2020
Judge: Russell SC DCJ
Background
Il Pastaio Pty Ltd operated a pasta manufacturing business at Strathfield South, employing 28 workers. The company used a Thompson Meat Machinery 900 Series Mixer Mincer, which was originally fitted with a magnetic interlock safety system that prevented the machine from operating when its lid was open.
At some point before the incident, the magnetic interlock was deliberately disabled. A proximity sensor was removed and an electrical bridge was installed in its place, allowing the machine to run with the lid open. Workers and the production floor manager knew of this change, yet no safety concerns were escalated to the company director and no remedial action was taken.
On 7 June 2017, a worker sustained a double fracture to his right forearm when his arm became entangled in the mixer's moving parts while the machine was running with the lid open. He required surgery and was unable to return to his pre-injury duties due to ongoing pain and restricted movement. Il Pastaio pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury contrary to section 32 of that Act.
Legal Issues
- What was the appropriate fine for a section 32 offence under the Work Health and Safety Act 2011 (NSW), having regard to objective seriousness?
- What mitigating and aggravating factors applied to the sentencing exercise?
- What discount, if any, should apply to reflect the guilty plea?
- What was Il Pastaio's capacity to pay, given its status as a small business?
- What costs orders should be made?
Decision
The court assessed the offence as falling in the low to mid range of objective seriousness. Multiple serious failings compounded the risk: the deliberate disabling of the interlock system, the absence of any risk assessment for the mixer, no safe system of work for its operation, failure to consult the manufacturer's manual (which expressly prohibited tampering with safety devices), failure to provide adequate information and training to workers, and insufficient supervision. The risk of entanglement was foreseeable and the consequences were serious.
Several mitigating factors reduced the penalty. Il Pastaio had no prior convictions, it cooperated with investigators, it pleaded guilty at an early stage, it had taken remedial steps after the incident, and there was evidence of remorse on the part of the director. The court accepted these as genuine and afforded them appropriate weight.
On capacity to pay, the court acknowledged Il Pastaio was a small business. Nonetheless, the company remained profitable, held retained earnings of over $1.8 million at the end of the 2019 financial year, and experienced increased sales in the first half of 2020 despite the COVID-19 pandemic. The court found no submission had been made that Il Pastaio lacked capacity to pay.
The court determined the appropriate fine before discount was $180,000. Applying a 25% reduction for the early guilty plea, the final fine was fixed at $135,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of that fine was directed to be paid to the prosecutor. The parties had agreed to a costs order in favour of the prosecutor.
Orders Made
- Il Pastaio Pty Limited convicted.
- Il Pastaio Pty Limited ordered to pay a fine of $135,000.
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Il Pastaio Pty Limited ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court confirmed that deliberately bypassing a machine's built-in safety interlock, even if originally done for repair purposes, constitutes a serious failure of the duty to ensure worker health and safety under section 19 of the Work Health and Safety Act 2011 (NSW).
- Normalisation of unsafe practices, such as workers routinely operating machinery with guards removed and supervisors adopting the same practices, does not diminish the employer's culpability; it is itself a marker of inadequate systems and supervision.
- An early guilty plea attracted a 25% discount on the fine, reflecting the sentencing court's application of established principles from the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Retained earnings and ongoing profitability, not merely current revenue or trading losses in a single year, are relevant to assessing a small business's capacity to pay a penalty in work health and safety prosecutions.
- Under section 122(2) of the Fines Act 1996 (NSW), a court may direct that a proportion of the fine imposed be paid to the prosecuting authority, a mechanism the District Court applied here by directing 50% to SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 191, 274
- Work Health and Safety Regulation 2011 (NSW), cll 34, 39, 203, 206, 208
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432