Director of Public Prosecutions v Energy Australia Yallourn Pty Ltd
[2023] VCC 185
•13 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-00959
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ENERGY AUSTRALIA YALLOURN PTY LTD |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2022 | |
DATE OF SENTENCE: | 13 February 2023 | |
CASE MAY BE CITED AS: | DPP v Energy Australia Yallourn Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 185 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Defendant failed to provide and maintain a safe working environment - defendant failed to properly install and inspect an infill panel - defendant failed to properly instruct, train and inform employees about the proper method of connecting the control cable before the racking-in process occurred with the circuit breakers - defendant failed to provide and require employees to wear arc-rated PPE – breach of safety causing death
Legislation cited: Occupational Health and Safety Act 2004, s21(1); s21(2)(a); s21(2)(e)
Cases cited: DPP v FrewstalPty Ltd 47 VR 660 [2015] VSCA 266
Sentence: Convicted and fined; Charge (1): $700,000; Charge (2): $500,000 and Charge (3): $300,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Argiropoulos | Director of Public Prosecutions |
| For the Accused | Mr A. Palmer KC with Ms S. Keating | Lander & Rogers |
HIS HONOUR:
1 On 14 December 2022 the plea hearing in this matter was heard at the Latrobe Valley County Court. The matter was adjourned for further plea and sentence to the agreed date of today, 13 February 2023. The further plea arose because I had asked the prosecutor to enquire with the family of the deceased, if there was an appropriate local charity with which Graeme Edwards was connected to, that could be a beneficiary of one of the court orders made in respect of this prosecution.
2
I have received further prosecution submissions on the sentence dated
8 February 2023 and is Exhibit “Q”. Contained in those further submissions is a section headed “Views Of The Family Of Graeme Edwards”. Whilst the opinions of the victims, and family members of the victim, can be taken into account in the sentencing process, it is ultimately for the court to impose the appropriate sentence. I thank Mr Edwards' mother and siblings who have been clear and unequivocal about their views and how the deceased, Graeme Edwards, would see this prosecution. This court will be imposing substantial fines in respect of the three charges according to law.
Background
3 The deceased, Graeme Edwards, was a unit controller at the Yallourn power plant at Eastern Road in Yallourn. He had worked there for some 30 years. The owners and operators of the Yallourn power plant have changed over the years, but Graeme Edwards was always working at that plant.
4
On 12 November 2018, he went to work as usual. He was a unit controller in Stage 2, Unit 3 of the Yallourn power plant. Graeme Edwards died on
13 November 2018 as a result of the injuries received at his place of work on 12 November 2018.
5 As counsel for the defendant, Energy Australia Yallourn Pty Ltd, said at the plea hearing on 14 December 2022:
'There is absolutely no excuse for it. Was this death avoidable or preventable? The answer is yes it was. It was avoidable and it was preventable and he shouldn't have died. And the reason why he died is due to the failings on the part of Energy Australia.'
6 In the course of this plea hearing the court heard victim impact statements read by or for members of Graeme Edwards' family, his mother Elizabeth and his sisters Joanne, Andrea and Catherine, and his only brother Luke. The grief and pain experienced by each member of his family cannot properly be put into words by this court. The grief and loss is permanent, the pain is numbing and disabling, and the question of “why” remains for each of them.
7 Whilst it’s not a matter for consideration in sentencing the defendant, each of the family members have expressed dismay, anger and surprise at the initial notification from WorkSafe that there would be no prosecution of the defendant arising from Mr Edwards' death. The notification has increased the emotional impact of Mr Edwards' death on his family. I note here that the defendant Energy Australia has always indicated an acknowledgement of its responsibility for Mr Edwards' death and has pleaded guilty to the charges before this court at the earliest time.
The Charges
8 The defendant pleaded guilty to three charges under s21 of the Occupational Health and Safety Act 2004 (“the Act”). Each of the three charges has a maximum penalty equating to, in dollar terms, of $1,450,710 per offence.
Charge 1
9 This charge, in summary, was the defendant failed to properly install and inspect an infill panel above a 6.6-kilovolt (“kV”) circuit breaker at the workplace. The risk was of serious injuries or death to a worker if the panel moved or swung during the racking process.
Charge 2
10 This charge, in summary, is that the defendant failed to properly instruct, train and inform employees about the proper method of connecting the control cable before the racking-in process occurred with the circuit breakers. The control measure was not implemented prior to 12 November 2018.
Charge 3
11 This charge, in summary, is that the defendant failed to provide and require employees to wear appropriate arc-rated personal protective equipment whilst working on circuit breakers on live high voltage switchboards.
12 The full particulars of the offences are set out in the indictment and are known to both the prosecution and the defendant.
The Offending
13 The prosecution filed a document entitled Summary of Prosecution Opening for Plea Hearing dated 9 December 2022. It was Exhibit “A” and is attached to these reasons for sentence.
14 A summary of the offending is that in 2004 to 2006 as part of a safety upgrade to the plant, the Magrini air-brake circuit breakers were replaced by Siemens 6.6 kV circuit breakers at the Yallourn power plant. The Siemens circuit breakers were shorter than the Magrini circuit breakers and an infill panel was installed for each of the circuit breaker cabinets to protect the employees during the racking process.
15 On 12 November 2018, Mr Edwards volunteered to rack in a 6.6 kV high voltage circuit breaker in Stage 2, Unit 3 at the defendant's workplace. The cabinet Mr Edwards was working on was Unit 3A. The procedure known as ‘racking’ involves mechanically placing a high voltage circuit breaker into position within a switchboard cabinet to enable the circuit breaker to be operated. Racking is a high risk, but commonly performed task in high voltage electrical installations. It is usually undertaken while the system is live or energised. The procedure can only be performed by workers who have been appropriately trained and receive refresher training every three years. In this case Mr Edwards had been trained to undertake this work and had completed a refresher training in September 2018.
16 It was not suggested there is any evidence that Mr Edwards was carrying out his duties in a careless manner. Mr Edwards is described by his fellow workers in their victim impact statements as helpful, always follows procedures and a respected work colleague.
17 The infill panel for Unit 3A cabinet was not properly fixed or securely fixed. The video shown in court, which was part of Exhibit “B”, showed how easily the infill panel for cabinet Unit 3A and the one beside it, Unit 3B, moved inwards at the touch of a finger. This defect allowed for the arc flash and the explosion to occur during the racking in process. Mr Edwards was inflicted with burns to 90 per cent of his body as a result. The evidence from the investigation suggests the arc flash occurred when the control cable made contact with live components of the circuit breaker due to the defective installation of the infill panel.
18 The defect in the infill panel is described as:
“Investigations conducted after the fatal incident revealed that the infill panel on the cubicle that Mr Edwards was working at was affixed in such a way that it did not prevent inadvertent access to the live parts of the circuit breaker during the racking process. Instead, there was a 3‑millimetre gap along the top of the infill panel between the panel and the cubicle edge. In addition, the infill panel was attached by nylon screws only on top of the cubicle and not the sides. The gap and the lack of the screws affixing the side of the panel onto the cubicle created an inward swing and hinge effect when slight force was applied to the panel and meant that access could be going to the live parts of the circuit breaker while racked in position”.
19 Further, the defendant's inspection or maintenance regime at the plant at the workplace failed to identify the obvious risk of the infill panels in Units 3A and 3B. In 2018, prior to Mr Edwards' death, there were three separate inspections and maintenance procedures at the Yallourn power plant, and they failed to identify the risk of the defective infill panels. I find the cost of fixing or replacing appropriate infill panels was minimal. That is a summary of Charge 1.
Charge 2
20 This is the charge relating to training and procedure as I have described it. In the defendant's Operation Manual, the instruction is the control cable (referred to as the elephant's trunk) is to be attached before racking in of the circuit breaker. However, the training and practice of the employees in respect of the connection of the elephant's trunk to the circuit breakers differed. Two employees that were interviewed stated their training was to connect the elephant's trunk before the racking in. Four employees said that they attached the elephant's trunk after racking in, with two of those four saying that they were trained to do it that way.
21 Employees were not provided with information, instruction or training that it was safer to attach the elephant's trunk before racking in because the top busbar of the Siemen circuit breakers only became live once it was racked in. The experts in this case; Steven Boyd and Brett Cleaves, agreed the safest process was connecting the elephant's trunk prior to the racking in of the circuit breakers. The inconsistency between the manual training and instruction, and the procedure about the method of the racking in process, is the breach of the Act.
Charge 3
22 This charge is the failure to provide appropriate personal protective equipment (“PPE”). The defendant provided employees with arc-rated face shields. At the time of this incident no other PPE was provided to employees when racking in high voltage circuit breakers. In the defendant's own manual it states the employers are to wear:
“(b) electrically, that is intrinsically safe full body overalls and/or uniform, fully buttoned up.”
23 The overalls worn by Mr Edwards on 12 November 2018 were cotton and not arc-rated. The expert, Brett Cleaves, says that Mr Edwards' clothing did not meet minimum standards. Mr Stephen Boyd went further, stating that the cotton clothing was manifestly inadequate.
24
Arc-rated PPE provides thermal protection to the wearer and is self‑extinguishing. Arc-rated PPE protects the wearer from severity of burns in the event of an arc fault. There are four levels of arc-rated PPE from
four calories per square centimetre to 40 calories per square centimetre.
25 The Newport power station was operated by Energy Australia Ecogen, a related corporate entity of Energy Australia Yallourn Pty Ltd. In May 2018, Ecogen purchased arc-rated equipment between eight calories per square centimetre and 20 calories per square centimetre for its employees. It is not explained why a similar provision of PPE was not made by the defendant to the Yallourn power station, given what Mr Fitzgerald says at page 176 of the depositions, prior to Mr Edwards' death.
Sentencing Considerations
26
I find that the plea of guilty by the defendant is an early one. There was more than a three-year gap between the date of the incident and the filing of charges against the defendant on 15 December 2021 by WorkSafe. On
25 May 2022 the defendant indicated the intention to plead guilty to all of the three charges after the brief of evidence was served on 24 February 2022. The plea has avoided the need for a trial and for all witnesses and family members to either give evidence or live the painful experience leading to the death of Graeme Edwards.
27
The guiding principles in relation to assessing the gravity of an offence in relation to occupational health and safety cases is set out in the
DPP v Frewstal(2015) 47 VR to 660 at paragraph 127, the following points arise:
'(1) The occurrence of a death or serious injury is not an element of the offence. The defendant is to be punished according to the gravity of the breach of the duty owed under the Occupational Health and Safety Act and not according to the result or consequences of the breach.
'(2) The gravity of the breach is measured or assessed by two factors:
(a), the seriousness of the breach itself, that is, the event that the defendant has departed from its statutory duty and;
(b), the extent of the risk of death or serious injury which might result from a breach.
'(3) The assessment of the extent of the risk itself involves consideration of two matters:
(a), the likelihood of the occurrence of an event as a result of the breach such as the event that occurred in this particular case, endangering the safety of employees or others and;
(b), the potential gravity of the consequences of such an event, in particular where there is a risk of death or serious injury.
'(4) The fact that the breach in a particular case resulted in the death of an employee is relevant only in the sense that it might manifest or demonstrates the degree of seriousness of the relevant threat to health and safety resulting from that breach.'
28 Mr Winneke KC prosecuting submitted that each of the three charges were serious breaches of the Act. The first factor to consider in respect of each charge is the gravity of the breach of the duty. In Charge 1, the gravity of the breach is that an infill panel was not properly affixed above the circuit breaker. In fact, the same defect was in the circuit breaker next to the one concerned, that is, 3A, the one Mr Edwards was working on.
29 The inspections conducted by the defendant in September 2018, two months before the incident, did not discover the breach caused by the infill panels not being properly affixed. This failure to properly affix the infill panels and to maintain a workplace where the risk remains despite an inspection regime, represents a very serious breach of the duty owed by the defendant. The video of the defective infill panels clearly shows how easily the defect could have been uncovered or discovered. The employer, defendant, does not escape the gravity of the breach because it has subcontractors performing some of the work around the infill panels.
30 In Charge 2, the gravity of the breach is serious because the defendant's operating manual dictates connecting the elephant trunk to the circuit breaker prior to racking in, but the practice between the employees, both by training or practice, connected the elephant trunk after the racking in. This inconsistent practice and failure to enforce the manual directive which the experts state is the least dangerous method is a serious breach.
31 In Charge 3, the failure of the defendant to provide arc-rated PPE clothing to the workers employed at the Yallourn power plant when a sister company was supplying arc-rated PPE and clothing between 8 calories per square centimetre and 20 calories per square centimetre, since April/May of 2018, some six months before this incident, is a clear example of the gravity of the breach. In effect, there was a differentiation of PPE clothing for the same job which was known to the defendant because the parent company gave the direction about this equipment in early 2018.
32 Properly, Mr Palmer, senior counsel for the defendant, conceded that the gravity of the breach and the foreseeable potential consequences of the breach included death or serious injury. Tragically the breach in respect of Charges 1, 2 and 3 all contributed to the death of Mr Edwards.
33
An assessment of the extent of the risk involves an assessment of an event resulting which endangers the safety of employees with the consequence of death or serious injury. The risk is high in all three charges. The infill panel is above a 6.6 kV circuit breaker. The elephant trunk is to be connected to that circuit breaker before it is racked in and hence live to the extent of
6.6 kV. The lack of arc-related clothing means that any flash or explosion causing fire will burn the employee's clothing. The combination of all these breaches resulted in the incident which caused the death of
Graeme Edwards. That is a demonstration of the relevant threat to health and safety.
34 I accept that the defendant has made numerous and significant changes to the Yallourn power plant after the tragic death of Graeme Edwards. Many of those changes and improvements are directed at the causes of Mr Edwards' death. It raises the question, of course, why wasn't all this done before November 2018?
35 I also accept that the defendant has created a picnic area at the power plant in honour of Mr Edwards and a scholarship at the Federation University, which is local to the area, has been set up in his name.
36 I take into account the impact of the offences on the victims, especially his family members, but also his work colleagues and friends who submitted victim impact statements in this case. It is impossible to understand the extent of the impact these offences and the resulting death of Mr Edwards has had on his family. I am certain it is significant.
37 I take into account the defendant has no prior convictions. The defendant has also made significant community grants and engaged in environmental projects in the course of 2019, 2020 and 2021.
38 I also take into account the sentencing principles of totality when fixing the sentence for the three separate charges which are focused on this one particular incident.
39 I have also had regard to the current sentencing practices and the cases referred to me by both the prosecution and the defence in this case. Each case, of course, is different from one another and this case is certainly different from all of the cases to which I was referred. I find that the circumstances of the breaches of the Occupational Health and Safety Act are very serious and that the risk posed by the setting in which the breaches occurred dictates the financial penalty be significant to satisfy the primary sentencing consideration of general deterrence and to a lesser degree specific deterrence.
40 The predominant sentencing purpose is general deterrence. In accepting that many changes have been implemented by the defendant the specific deterrence has a lesser role to play in this sentencing process. A financial penalty is the only sentence available to the court in this case:
- on Charge 1 the defendant is convicted and fined $700,000;
- on Charge 2 the defendant is convicted and fined $300,000; and
- on Charge 3 the defendant is convicted and fined $500,000.
41 MR PALMER: Your Honour, sorry to - you may not have finished. Obviously again to express the company's regret - - -
42 HIS HONOUR: Yes.
43 MR PALMER: - - - but did Your Honour propose to give some 6AAA?
44 HIS HONOUR: Yes, I will. In terms of s6AAA, in terms of Charge 1 it is $1m, in terms of Charge 2 it's 500,000 and in terms of Charge 3 it's 700,000.
45 MR PALMER: Yes. Thank you, Your Honour.
46 HIS HONOUR: Thank you for reminding me. Members of Mr Edwards' family who are present here in court, I can see Mrs Edwards there. None of this process here will change anything in terms of the effect that your son and your brother's death has had, but that is the system we have. Thank you.
- - -
IN THE COUNTY COURT OF VICTORIA Indictment No. M12700508
AT LA TROBE VALLEY Case ID. CR 22-00959
CRIMINAL JURISDICTION
THE DIRECTOR OF PUBLIC PROSECUTIONS
v
ENERGY AUSTRALIA YALLOURN PTY LTD
(ACN 065 325 224)
SUMMARY OF PROSECUTION OPENING FOR PLEA HEARING
Date of document: 23 February 2023
Filed on behalf of: The Director of Public Prosecutions
Prepared by:
Abbey Hogan Solicitor’s code: 7539
Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne Vic 3000 Ref: H. Devanny
Factual background
Energy Australia Yallourn Pty Ltd, is an energy supplier and retailer. It owns and operates the Yallourn Power Plant at Eastern Road, Yallourn (the workplace).
Energy Australia Yallourn Pty Ltd is an employer for the purposes of the Occupational Health and Safety Act 2004 (the OHS Act).[1]
[1] Exhibit 13 – Payslips of employees including Graeme Edwards.
The Yallourn Power Plant has been in operation since 1974. It uses brown coal from a nearby open cut mine to drive four turbine generators to produce energy for the national grid. It supplies approximately 22% of Victoria’s energy.[2]
[2] Statement of Stephen Dargan; Exhibit 296 – EnergySafe report of Sam Borazio dated 22 July 2019, p. 1282.
The deceased man, Graeme Edwards, was employed by Energy Australia Yallourn Pty Ltd as a Unit Controller. He had almost 30 years’ experience working at the Yallourn Power Plant and was very experienced working in Stage 2, Unit 3 where the fatal incident (described below) occurred.
The incident
On 12 November 2018, an electrical arc flash (or fault) event occurred at a 6.6kV high voltage circuit breaker in Stage 2, Unit 3 of the workplace. The unit was being returned to service after a planned major outage. Mr Graeme Edwards, who was employed by Energy Australia Yallourn Pty Ltd as a Unit Controller, volunteered to ‘rack in’ a 6.6kV circuit breaker in the Unit 3 high voltage switch room as part of the work being undertaken to return the unit to service. Mr Edwards had almost 30 years’ experience working at the Yallourn Power Plant and was very experienced working in Stage 2, Unit 3.
The procedure known as racking involves mechanically placing a high voltage circuit breaker into a position within a switchboard cabinet to enable the circuit breaker to be operated. Racking is a high risk, but commonly performed task in high voltage electrical installations. It is usually undertaken while the system is live or energised. The procedure can only be performed by workers who have been appropriately trained and receive refresher training every 3 years. Mr Edwards had been trained to undertake this work and completed refresher training in September 2018.[3]
[3] Exhibits 38-41 – Edwards training records; Exhibit 296 – EnergySafe report of Sam Borazio dated 22 July 2019, p. 1282.
While Mr Edwards was racking in the circuit breaker an arc flash and explosion occurred. As a result, Mr Edwards sustained serious burns to a large proportion of his body. He was conscious and breathing immediately after the incident but had sustained 90% body surface area burns, with the injuries being considered non-survivable. He was conveyed to hospital and treated palliatively, dying on 13 November 2018.[4]
[4] Exhibit 413 – VIFM Postmortem examination report of Dr Matthew Lynch dated 16/11/2018.
The evidence suggests that the arc flash occurred when the control cable (also known as the elephant’s trunk) that Mr Edwards was required to connect to the circuit breaker as part of the process of racking in, made contact with live components of the circuit breaker because of a defectively attached panel (described as an infill panel). The contact allowed electricity to pass through the control cable to earth, creating a short circuit which caused the electrical arcing fault and explosion. The energy dissipated by the electric arc explosion produced very high temperatures that ignited the clothing Mr Edwards was wearing.[5] There is no suggestion in the evidence that Mr Edwards was carrying out his duties in a careless manner.
[5] Exhibit 296 – EnergySafe report of Sam Borazio dated 22 July 2019, pp. 1279 & 1282.
Charge 1 - Unsafe circuit breakers in Unit 3, Stage 2 due to defective infill panel
During the racking in process, the relevant circuit breaker (which is known as an ‘incomer’) had energised components (‘busbar’) at its top. The protection of the worker from the live components was dependent upon the effectiveness of the infill panel.[6]
[6] Exhibit 430 – Expert report of Stephen Boyd at pp. 1493 & 1494.
The circuit breaker involved in this incident was one of a number of Siemens 6.6kV vacuum break circuit breakers at the Yallourn Power Plant that had been installed between 2004 and 2006 as part of a safety upgrade, to replace the pre-existing Magrini air-break circuit breakers. The Siemens circuit breakers were manufactured by Siemens and supplied and installed by Silcar (A.B.N. 19 839 038 068).
The Siemens circuit breakers were physically smaller in height than the original Magrini circuit breakers they replaced. Consequently, there was a gap in the cubicle immediately above the circuit breaker when in the racked position, which gave access to the energised components at the top of the cubicle. To cover the opening, the infill panel had been fixed to the cubicle, presumably when the circuit breakers were installed between 2004 and 2006, although there is no evidence as to who affixed the infill panels, when they were affixed, or any risk assessments that were conducted in relation to them.
Investigations conducted after the fatal incident revealed that the infill panel on the cubicle that Mr Edwards was working at was affixed in such a way that it did not prevent inadvertent access to the live parts of the circuit breaker during the racking process. Instead, there was a 3mm gap along the top of the infill panel, between the panel and the cubicle edge. In addition, the infill panel was attached by nylon screws only onto the top of the cubicle and not the sides. The gap and lack of screws affixing the side of the panel onto the cubicle created an inward swinging hinge effect when slight force was applied to the panel and meant that access could be gained to the live parts of the circuit breaker while in the racked in position.[7]
[7] Ibid, p. 1495.
The inadequacy of the infill panel is shown in photographs and in video footage[8] taken by WorkSafe investigators after the incident.
[8] See in particular the video footage included in Exhibit 393.
There is evidence that one other 6.6kV cubicle in Unit 3, Stage 2, had the same defective infill panel, namely the cubicle next to the one that Mr Edwards had been racking in (the cubicle involved in the incident was Unit 3A, and the adjacent cubicle was Unit 3B).[9]
[9] Statements of Mark Van der Muelen and WorkSafe inspector Daniel Fowler; Exhibit 296 – Technical Report of Sam Borazio, EnergySafe.
WorkSafe Inspectors attended the workplace following the incident and issued Energy Australia Yallourn Pty Ltd with improvement notices. In compliance with one improvement notice,[10] Energy Australia Yallourn Pty Ltd engaged a switchgear company (Powins Pty Ltd) to design and install new infill panels to the Unit 3 6.6kV cubicles which prevented access to the live parts during the racking process.[11]
[10] Exhibit 325 – Improvement Notice V01029700891L/111-03.
[11] See Exhibit 186 for a photograph of the new infill panel installed following the incident.
The following evidence demonstrates that it was reasonably practicable for Energy Australia Yallourn Pty Ltd to provide its employees with plant namely Siemens 6.6kV circuit breakers in Unit 3, Stage 2 with infill panels that were securely affixed to the cubicle and not able to move or swing.
First, Australia Standard AS 2067: 2016 Substations and high voltage installations exceeding 1kV a.c.[12] applied to high voltage installations at the workplace. Section 6.2.1 of AS 2067:2016 states the following:
[12] Exhibit 323.
6.2 Protection against direct contact
6.2.1 General
Installations shall be constructed so that unintentional touching of live parts or intentional reaching into a dangerous zone near live parts is prevented.
Protection shall be provided to prevent contact with live parts, parts with functional insulation only and parts that can be considered to carry a dangerous potential.
The circuit breaker involved in the fatal incident is an “existing installation” within the meaning of AS 2067: 2016, because it had already been installed when the Standard commenced in 2008. The Standard states that existing installations “should” be reviewed against the requirements of the Standard. It was therefore recommended by the Standard that existing installations be reviewed against the requirements of the Standard, although this was not mandated.[13]
[13] Exhibit 426 – Expert report of Brett Cleaves at p. 1661.
Secondly, the evidence indicates that Energy Australia Yallourn Pty Ltd conducted regular inspection and maintenance of all plant within its workplace, including the circuit breaker involved in the fatal incident. In particular:
a)A checklist for the circuit breaker dated 6 September 2018 shows that the circuit breaker was inspected on that date, with no issues identified.[14]
[14] Exhibit 81 – Circuit Breaker Maintenance Report dated 6 September 2018, p. 1489.
b)The Life Maintenance Plan 2018 shows that all electrical plant within the Yallourn Power Station was subjected to regular risk assessment, maintenance and review, including high voltage switchgear.[15]
[15] Exhibit 157 – Life Maintenance Plan, pp. 826-833.
c)On 20-21 September 2018, Energy Australia Yallourn Pty Ltd installed and tested latch switches on the Stage 2 6.6kV Siemens circuit breakers and undertook comprehensive risk assessment processes as part of the modification process.[16]
[16] Exhibits 117-127.
The defective infill panels ought to have been identified by Energy Australia Yallourn Pty Ltd during these inspection and maintenance processes.
Thirdly, as indicated above, after the fatal incident and in compliance with an improvement notice[17] issued by WorkSafe inspectors, Energy Australia Yallourn Pty Ltd were able to engage a switchgear company to design and install new infill panels to the Unit 3 6.6kV cubicles which prevented access to the live parts during the racking process. There is no evidence to suggest that this measure was not available or cost prohibitive.
[17] Exhibit 325 – Improvement Notice V01029700891L/111-03, p. 1888.
Charge 2 - Inadequate information, instruction and training regarding connection of the control cable (elephant’s trunk) during racking
During the racking process, the elephant’s trunk is inserted into the socket of the circuit breaker. Energy Australia Yallourn Pty Ltd’s Operation Manual instructed that the elephant trunk be attached before racking in the circuit breaker.[18] However, workers were not consistently trained to do this and as a consequence, their practices varied, with WorkSafe’s investigation revealing that some workers connected the elephant trunk after racking in. Of the relevant employees who made statements as part of WorkSafe’s investigation, two employees stated that their training and practice was to attach the elephant trunk before racking in,[19] while four employees stated that their practice was to attach the elephant trunk afterwards. Significantly, two of these employees indicated that this is what they were trained to do.[20]
[18] Exhibit 28 – Operating Manual Station Electrical System Instructions DCS 1-4 B3-P3, dated October 2017 & statement of Justin Felsbourg at p. 68.
[19] Statements of Justin Felsbourg and Mark Van der Muelen.
[20] Statements of Gregory Stafford, Bernard Nieuwehuys, Peter Broeren and Nicole Doupain. See also statement of WorkSafe inspector Daniel Fowler.
In addition, employees were not provided with information, instruction or training that it was safer to attach the elephant’s trunk before racking in because the top busbar of the Siemens circuit breakers only became live once racked in.
WorkSafe’s expert, Stephen Boyd, explains that the top busbar only becomes live once the circuit breaker is racked in.[21]
[21] Exhibit 431 - Supplementary Questions to Stephen Boyd at p. 1514.
Mr Boyd opines that attachment of the control cable after racking in presents significantly greater risk that doing so prior to racking in due to the following:
a)The cubicle door must be open to connect the elephant’s trunk;
b)At least some of the breaker becomes energised after racking in and attachment of the control cable forces the operator into closer proximity of the risk; and
c)At this location, the operator will be in close proximity to an energised risk.
26.Mr Boyd concluded that, at this location, “attaching the control cable prior to racking in would reduce the risk to the health of operators”.[22]
[22] Exhibit 430 – Expert report of Stephen Boyd at pp. 1494 & 1500 and Exhibit 431 - Supplementary Questions to Stephen Boyd at pp. 1514-1515.
27.Electrical Engineer, Brett Cleaves opined that attaching the control cable prior to racking in would not alone (i.e. without other control measures being implemented) constitute a safe system of work, but would reduce the risk because it “but would enable the task to be completed on a disconnected circuit breaker while the nearest high powered bushings are at the very back of the cubicle behind earthed metal shutters”.[23]
[23] Exhibit 427 - Supplementary Questions to Brett Cleaves at p. 1380.
Charge 3 - Failure to provide and require the wearing of Arc rated PPE
At the time of the incident, Energy Australia Yallourn Pty Ltd did not provide arc rated overalls to its employees, nor require them to wear arc rated personal protective equipment (PPE) other than arc rated face shields.[24]
[24] Exhibit 28 – Operating Manual Station Electrical System Instructions DCS 1-4 B3-P3, dated October 2017 (Duplicate at Exhibit 78), pp. 633, 658 & 659.
Energy Australia’s Operating Manual required employees to use the following PPE when racking high voltage circuit breakers (emphasis added):
a)Approved safety helmet;
b)Electrically (intrinsically) safe full body overalls/uniform fully buttoned up;
c)Safety shoes or boots;
d)Approved rubber gloves;
e)Approved arc face shield; and
f)Operator to stand on an approved insulting medium.
In addition, the wearing of a fire resistant balaclava was recommended although not mandatory. [25]
[25] Ibid.
The overalls worn by Mr Edwards at the time of the incident were cotton and not arc rated.[26]
[26] Statement of Bernard Nieuwenhuys, pp. 84 & 86, Statement of Mark van der Meulen, p. 117, Exhibit 130 – Team Baseline Risk Assessment Form at p. 385, Exhibit 432 – Further supplementary report of Stephen Boyd at question 10, p. 1519.
Arc rated PPE provides thermal protection to the wearer and is self-extinguishing. Therefore arc rated PPE is designed to protect the wearer from the severity of burn injuries in the event of an arc fault. It is rated in units of calories per centimetre squared (cal/cm2),[27] with four levels of PPE available:
[27] Exhibit 426 – Expert report of Brett Cleaves at p. 1370.
a)Level 1 – minimum arc rating of 4 cal/cm2;
b)Level 2 – minimum arc rating of 8 cal/cm2;
c)Level 3 – minimum arc rating of 25 cal/cm2; and
d)Level 4 – minimum arc rating of 40 cal/cm2.[28]
[28] Exhibit 430 – Expert report of Stephen Boyd at p. 1495.
By contrast, cotton PPE burns, and can be ignited even during low level arcing fault. Mr Cleaves states that burning cotton increases the area, depth and severity of burn injuries and reduces the likelihood of survival, especially when compared to readily available arc rated PPE.[29]
[29] Exhibit 426 – Expert report of Brett Cleaves at p. 1372.
Since 2014 there has been Australian industry guidance in place regarding arc rated PPE. Energy Networks Association NENS 09-2014, National Guideline for the Selection, Use and Maintenance of Personal Protective Equipment for Electrical Arc Hazards (ENA NENS 09-2014)[30] was published by the Energy Networks Association in 2014. The guideline states that it applies to workers within the electrical supply industry who are required to work on or near low and high voltage electrical apparatus. Accordingly, ENA NENS 09-2014 applies to Energy Australia Yallourn Pty Ltd’s workplace.
[30] Exhibit 436.
ENA NENS 09-2014 recommends that, as part of their risk assessment processes, organisations estimate the incident energy associated with its apparatus and select the appropriate PPE. It recommends:
a)Base garments (e.g. overalls/coveralls) manufactured from arc rated materials should be worn where there is a possibility of exposure to incident energy of 1.2cal/cm2 or above;
b)The recommended minimum arc rating of such clothing is 4 cal/cm2 where there is a risk of arc flash incident energy of at least 1.2 cal/cm2; and
c)For situations assessed as having a greater risk, additional garments and PPE with higher arc ratings may be required.[31]
[31] Exhibit 436 – ENA NENS 09-2014 at p. 1852 & Exhibit 426 – Expert report of Brett Cleaves at p. 1370.
The operators of the Newport Power Station, which had been owned by Energy Australia Ecogen (an associated entity of Energy Australia Yallourn Pty Ltd) since April 2018, had since 2000 required its employees performing 6.6kV switching operations to wear arc rated PPE. Energy Australia Ecogen had purchased new arc rated PPE for its workers in May of 2018.[32]
[32] Statement of Peter Fitzgerald at pp. 170, 175 & 176.
According to Mr Cleave, the clothing worn by the deceased at the time of the fatal incident did not meet even the minimum requirements recommended by ENA NENS 09-2014.[33] Mr Boyd described the clothing worn by Mr Edwards as “manifestly inadequate”.[34]
[33] Exhibit 426 – Expert report of Brett Cleaves at p. 1372.
[34] Exhibit 432 – Further supplementary report of Stephen Boyd, p. 1519.
Following the incident Energy Australia Yallourn Pty Ltd purchased arc rated clothing for its employees. The clothing purchased included clothing at each of the available arc rating levels 1-4 (with a minimum arc rating of between 4 cal/cm2 up to 40 cal/cm2).[35]
[35] See invoices at Exhibits 203-222.
Subsequently, after completion of an arc flash study (conducted by Elical) and risk assessments on circuit breaker racking and earthing practices at the workplace (conducted by GHD Pty Ltd), Energy Australia Yallourn Pty Ltd were able to calculate the level of arc flash risk at each of its electrical annexes, and require operators to wear appropriately rated arc flash PPE depending on the level of risk. Where the risk level was too high, work was prohibited from being undertaken while the switchboards were live, pending further engineering improvements to reduce the level of risk.
By March 2019, further improvements had been made and a new system of work introduced whereby employees may only enter an arc flash boundary when wearing category 2 arc-rated PPE (8 cal/cm2). Additional engineering changes were made at the workplace to reduce the energy risk rating associated with work on live high voltage switchboards.
Other changes introduced at the workplace following the incident included the introduction of remote racking, which removes the operator from the potential blast zone during racking.
Maximum penalties
The maximum penalty for each offence contrary to s 21(1) of the OHS Act is 9,000 penalty units for a body corporate. This equates to a maximum fine of $1,450,710 per offence.[36]
[36] As of 18 November 2018 the value of a penalty unit was $161.19.
C. J. Winneke KC
K. Argiropoulos
Counsel for the Director of Public Prosecutions
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