Citation: SafeWork NSW v Jungheinrich Australia Pty Ltd [2025] NSWDC 85
Court: District Court of New South Wales
Date: 26 March 2025
Judge: Russell SC DCJ
Background
Jungheinrich Australia Pty Ltd provided repair, servicing and maintenance of forklifts used by a cable manufacturing company at a Liverpool site. The forklifts in question were 7-tonne Manitou units, and Jungheinrich Australia's technicians used a bypass plug (also called a special service tool) during maintenance work to override the seat safety system. That system was designed to prevent the forklift from operating unless a driver was seated in the cab.
The bypass plug was intended solely for use during servicing and was not to remain fitted once a forklift returned to ordinary operation. On 2 December 2021, a forklift operator was using one of the Manitou forklifts and the bypass plug had been left in place. Inspections following the incident revealed that all four Manitou forklifts on site had bypasses fitted. Jungheinrich Australia had been made aware as early as May 2019 that operators were leaving bypass plugs in place after servicing.
Jungheinrich Australia pleaded guilty to failing to comply with its work health and safety duty under s 19(2) of the Work Health and Safety Act 2011 (NSW), thereby exposing other persons to a risk of death or serious injury contrary to s 32 of that Act. The maximum penalty for the offence was a fine of $1,782,579.
Legal Issues
- What was the appropriate fine, having regard to the objective seriousness of the offence and relevant mitigating and aggravating factors?
- What discount, if any, should be applied to reflect the early guilty plea?
- Whether an order under s 238 of the WHS Act (a work health and safety undertaking or project) should be imposed in addition to the fine.
- How prosecution costs should be dealt with.
Decision
The court assessed the objective seriousness of the offence as sitting in the low-to-mid range. The risk created by a driverless forklift in an active workplace was real and serious, capable of causing death or grievous injury. The failure to remove bypass plugs before returning forklifts to service was not a momentary lapse: Jungheinrich Australia had been on notice since May 2019 that bypasses were being left in place, yet failed to implement or enforce an adequate system to prevent it.
The court identified the lack of a system to check that bypass plugs had been removed before forklifts returned to service as a significant failing. That absence was aggravated by the fact the company had known of the risk for over two years before the December 2021 incident. However, the court noted mitigating factors including the guilty plea, the absence of prior convictions, the company's cooperation with the investigation, and remediation steps taken after the incident.
An appropriate fine before discounting was assessed at $200,000. The court applied a 25% reduction for the early guilty plea, bringing the final fine to $150,000. In addition, the court made an order under s 238 of the WHS Act requiring Jungheinrich Australia to fund the production of an educational animated video (capped at $30,000) addressing the risks involved, with SafeWork NSW to manage, approve content, and hold copyright. The parties had agreed to a costs order in favour of the prosecutor.
Orders Made
- Jungheinrich Australia Pty Ltd convicted.
- Fine of $150,000 imposed (reduced from $200,000 by 25% to reflect early guilty plea).
- 50% of the fine to be paid to the prosecutor, pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Order under s 238 of the WHS Act: Jungheinrich Australia to fund (up to $30,000) the development of a de-identified educative animated video addressing the relevant risks, managed and approved by SafeWork NSW, with copyright vested in SafeWork NSW.
- Jungheinrich Australia to bear reasonable costs (up to $3,500) for any promotional strategy related to the video.
- Jungheinrich Australia to pay the prosecutor's costs.
- Jungheinrich Australia to notify the prosecutor and the District Court Registrar of any change of address for service.
Key Takeaways
- A conviction under s 32 of the Work Health and Safety Act 2011 (NSW) can arise from a failure to maintain adequate systems to ensure safety devices are operational when equipment is returned to service, even where no physical injury ultimately resulted from the specific incident charged.
- Prior knowledge of a risk is a significant aggravating factor: the District Court emphasised that Jungheinrich Australia had been on notice since 2019 that bypass plugs were being left in place, which weighed against the company at sentence.
- An early guilty plea attracted a 25% discount on the fine, consistent with the approach to discounting for utilitarian value in the sentencing of corporate defendants.
- Under s 238 of the WHS Act, courts may order a convicted defendant to fund the development of educational or safety materials, in addition to imposing a monetary penalty. Here, this produced a separate obligation worth up to $30,000, with SafeWork NSW retaining full control and copyright over the resulting video.
- Where the maximum penalty for a WHS offence is set at a level that accounts for large corporate defendants, courts retain flexibility to calibrate the actual fine to reflect the specific circumstances and financial capacity of the offender, though no capacity-to-pay submission was made in this case.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 238
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- 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
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432