Citation: SafeWork NSW v JBS Australia Pty Ltd (No 4) [2023] NSWDC 473
Court: District Court of New South Wales
Date: 8 November 2023
Judge: Scotting DCJ
Background
JBS Australia Pty Ltd operates a large cattle feedlot at Caroona, New South Wales. On 19 February 2020, an administrative employee was struck by two hay bales, each weighing approximately 700 kilograms, that fell from a partially constructed stack six bales high. She suffered serious physical and psychological injuries and had not returned to work at the time of sentencing.
The incident occurred while the worker was conducting moisture testing of hay bales, a task that required her to approach bales on foot. A relief front-end loader (FEL) operator, unaware she was nearby, placed two bales close to an unstable partially constructed stack without considering how those bales would need to be tested. The top two bales of the existing stack fell and trapped her underneath.
SafeWork NSW prosecuted JBS Australia under section 32 of the Work Health and Safety Act 2011 (WHS Act). The company was found guilty after a trial, with the verdict judgment delivered earlier in 2023. This sentencing decision determines the appropriate penalty.
Legal Issues
- What fine was appropriate for the offence under section 32 of the WHS Act, given the maximum penalty of $1.5 million?
- What were the objective and subjective factors relevant to sentence, including the seriousness of the offence, mitigating factors, and the offender's prospects of rehabilitation?
- Whether 50% of the fine (a "moiety") should be paid to SafeWork NSW as prosecutor, under section 122(2) of the Fines Act 1996.
- How costs should be apportioned given the prosecutor's overall success at trial but mixed results on interlocutory applications and some failed particulars.
Decision
The court identified serious failings in JBS Australia's approach to worker safety. The company had no written safe work procedure for moisture testing, had not conducted a required risk assessment for the task, and had not provided the injured worker with adequate training. She was excluded from toolbox talks run by the Mill Department, including one in August 2019 specifically addressing the death of a farm worker caused by a falling bale. The risk of injury from unstable stacks was well known at the site.
Within one month of the incident, JBS Australia introduced comprehensive written manuals and training courses for hay testing and stacking. The court acknowledged this swift remediation, along with the company's cooperation, contrition, size and resources, prior safety record, and good prospects of rehabilitation, as mitigating factors. These were weighed against the objective seriousness of the breach and the significant, lasting harm suffered by the victim.
Having regard to all sentencing factors, including general and specific deterrence, the court imposed a fine of $300,000, well below the $1.5 million maximum. The court found the preconditions under section 122(1) of the Fines Act 1996 were satisfied and ordered that 50% of the fine be paid to SafeWork NSW. Courts have consistently applied this practice of paying a moiety to the informer, absent disentitling conduct, and no such conduct was found here.
On costs, the court rejected the offender's submission that costs should be reduced to 70%. The two particulars of breach the prosecutor failed to establish were dealt with briefly at trial and did not add significant hearing time. The rejection of one prosecution witness's evidence was an unavoidable factual determination. The court made a costs order reflecting the prosecutor's overall success, with specific carve-outs for the interlocutory applications on which the offender succeeded or where success was shared.
Orders Made
- JBS Australia Pty Ltd is convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- A fine of $300,000 is imposed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
- The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed, except for the costs of the Notices of Motion filed on 30 November 2022 and 28 February 2023.
- The prosecutor is to pay the offender's costs of the Notice of Motion filed on 30 November 2022.
- Each party is to pay its own costs of the Notice of Motion filed on 28 February 2023.
Key Takeaways
- A conviction under section 32 of the WHS Act was upheld where an employer failed to conduct a risk assessment, implement written safe work procedures, and provide adequate training for a task known to carry a risk of death or serious injury.
- The District Court assessed the fine at $300,000 out of a $1.5 million maximum, treating the offence as moderately serious in objective terms and giving significant weight to swift post-incident remediation, genuine contrition, and strong rehabilitation prospects.
- Under section 122(2) of the Fines Act 1996, courts have consistently ordered that a moiety (50%) of a WHS fine be paid to the informer absent disentitling conduct; this practice applied equally where the informer is a government regulator.
- Excluding a worker from safety toolbox talks, including one addressing a fatality involving the same type of hazard, was a significant factor in the court's assessment of training deficiencies.
- Where a prosecutor fails to establish some particulars of breach but those particulars occupied minimal hearing time, a court may decline to reduce the costs order in the prosecutor's favour.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 32, 152
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122
- Fines and Penalties Act 1901 (NSW), s 5
Cases:
- SafeWork NSW v JBS Australia Pty Ltd [2020] NSWDC 678
- SafeWork NSW v JBS Australia Pty Ltd (No 2) [2023] NSWDC 116
- SafeWork NSW v JBS Australia Pty Ltd (No 3) [2023] NSWDC 382
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Secretary Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154
- Secretary Department of Planning and Environment v AGL Energy Ltd and AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2
- NSW Food Authority v Fernbrew Pty Ltd trading as D'Aquino Bond Wholesalers [2007] NSWSC 531
- Chant v The Nuance Group (Australia) Pty Ltd [2012] NSWSC 399
- Geoff Derrick v ANZ Group Ltd (No 2) [2005] NSWIRComm 145
- Coombes v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56
- O'Sullivan v New South Wales (2003) 128 IR 158
- R v Youkhana [2004] NSWCCA 412
- Workcover Authority of New South Wales v Warrah Ridge Pastoral Co Pty Ltd (unreported, 23 September 1994, Bauer J)