SafeWork NSW v Ampelite Australia Pty Ltd

[2022] NSWDC 22

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Ampelite Australia Pty Ltd [2022] NSWDC 22

Hearing dates:

11 February 2022

Date of orders:

22 February 2022

Decision date:

22 February 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In District Court Proceedings 2021/00141331:

(1)   Ampelite Australia Pty Ltd is convicted.

(2)   The appropriate fine is $180,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Ampelite Australia Pty Ltd to pay a fine of $135,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Ampelite Australia Pty Ltd to pay the prosecutor’s costs agreed in the amount of $46,000.

In District Court Proceedings 2021/00141316:

(1)   Ampelite Australia Pty Ltd is convicted.

(2)   The appropriate fine is $16,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Ampelite Australia Pty Ltd to pay a fine of $12,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   No order as to costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – failure to notify

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – defendant involved in manufacturing fibreglass and polycarbonate roof sheets, ventilators and skylights – worker used unguarded mechanical power press – mechanical power press crushed worker’s right hand - failure to conduct risk assessment - inadequate instructions and training – failure to guard mechanical power press

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, s 38

Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38, 203, 208

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

SafeWork NSW, Managing the Risks of Plant in the Workplace Code of Practice, (July 2014)

Australian Standard AS 4024.3001-2009, Safety of machinery materials Part 3001: Materials forming and shearing - Mechanical power presses, (June 2019)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Ampelite Australia Pty Ltd (Defendant)

Representation:

Counsel:
E Kerkysharian (Prosecutor)
P Barry (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
HR Legal (Defendant)

File Number(s):

2021/00141316; 2021/00141331

Judgment

1. On 12 April 2019 Mr Anitema Pasi was operating a John Heine 203A Series 3 mechanical power press (“the Press”). The chair he was sitting on slipped and his foot activated the Press which was unguarded. The Press crushed his right hand and fingers.

2. In District Court Proceedings 2021/00141331, Ampelite Australia Pty Ltd (“Ampelite”) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (“the Act”) it failed to comply with that duty and thereby exposed Mr Pasi to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

4. In District Court Proceedings 2021/00141316 Ampelite has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 38(1) of the Act it failed to comply with that duty.

5. The maximum penalty for the offence is a fine of $50,000.

6. Section 38(1) of the Act provides:

“38   Duty to notify of notifiable incidents

(1)   A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.”

The Risk

7. In District Court Proceedings 2021/00141331, the risk described in par 11 of the Amended Summons is as follows:

“11.   The risk was the risk of workers and in particular Mr Pasi, suffering serious injury as a result of coming into contact with the unguarded moving parts of the Press while undertaking the task of shaping metal.”

Failure to Comply with Duty: s 19(1) Offence

8. In District Court Proceedings 2021/00141331 par 12 of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“12.   The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Pasi in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

(a)   Undertaking a risk assessment of work being done, including the use of the Press for shaping metal when the moving parts were unguarded that identified the risk of a worker’s fingers and/or hand coming into contact with the unguarded moving parts of the Press and measures available to control the risk;

(b)   Adequately guarding the Press to ensure workers were unable to access the moving parts while the Press was in operation by either:

(i)   Maintaining the physical guards on the Press at all times when workers were operating it; or

(ii)   Having in place a lock-out mechanism such that the Press could not operate when the guards were removed from it;

(c)   Installing a shroud over the foot pedal of the Press to prevent inadvertent activation of the Press;

(d)   Developing, implementing and enforcing safe work procedures or a safe work method statement for using the Press which involved:

(i)   Prohibiting the operation of the Press when guarding or interlocking was not in place

(ii)   Requiring the Press to be isolated and locked out from the electricity supply when guarding was not in place

(iii)   Installing warning signage on or near the Press stating that the Press was not to be operated if guarding was not in place.

(e)   Developing, implementing and enforcing a lock out procedure and/or tag out procedure in relation to the Press to isolate energy sources to avoid inadvertent activation in the event safety guards were removed.

(f)   Providing workers with adequate instruction, information and training in the safe work procedure or safe work method statement of operating the Press;

(g)   Adequately supervising workers, in particular Mr Pasi, to ensure they followed the safe work procedures or safe work

method statement for operating the Press.”

Failure to Comply with Duty: s 38 Offence

9. In District Court Proceedings 2021/00141316 pars 5-9 of the Amended Summons plead particulars of the defendant’s failure to comply with the duty under s 38(1) of the Act as follows:

“5.   The ‘notifiable incident’ was a serious injury and/or a dangerous incident arising out of the conduct of Amepite’s business or undertaking in that, on 12 April 2019:

(a)   The injured worker, Anitema Pasi (Mr Pasi) was employed by Ampelite as a machine operator in the conduct of the defendant's business or undertaking;

(b)   Pursuant to his employment, Mr Pasi was working at the site;

(c)   In the course of working in Ampelite's business or undertaking the defendant operated a John Heine Press 203A Series 3 mechanical power press (the Press) to press metal into shape;

(d)   In the course of performing his duties as a machine operator at the site on 12 April 2019, Mr Pasi activated the Press and the compressors of the Press crushed his right-hand fingers (the incident);

(e)   As a result of the incident, Mr Pasi suffered serious injuries, including complete amputation of his right index and middle fingers and partial amputation to his right ring finger.

6.   On 12 April 2019, Ampelite became aware of Mr Pasi's injuries arising out of the conduct of the defendant's business or undertaking when:

(a)   Mr Pasi informed Mr Andrew Penza (Mr Penza), process worker employed by Ampelite of the incident; and/or

(b)   Mr Siva Gunanayakam, production supervisor employed by Ampelite observed Mr Pasi bleeding; and/or

(c)   Mr Penza informed Mr Andrew McLean (Mr Mclean) of the incident, New South Wales Factory Manager employed by Ampelite and Mr McLean immediately took Mr Pasi to Mount Druitt Hospital for treatment; and/or

(d)   Mr McLean informed Mr Trevor Panozza (Mr Panozza), director of Ampelite of the incident; and/or:

(e)   Ampelite ordered an investigation into the incident.

7.   Ampelite did not immediately notify the Regulator of the injury to Mr Pasi or of the incident. Ampelite did not subsequently notify the Regulator.

8.   The Regulator became aware of the details of the incident and the failure to notify, for the first time on 21 May 2019 when its officers attended the site.

9. Ampelite failed to ensure that the Regulator was notified of the injury and/or the incident immediately after becoming aware of the injury and/or the incident pursuant to section 38 of the Act.”

Background

10. The parties presented an Agreed Statement of Facts which is summarised below.

11. The Ampelite business has been conducted since 1977. Melbourne Fibreglass Panels Pty Ltd was appointed trustee for Melbourne Fibreglass Panels Trust in 1977. Ampelite Fibreglass Pty Ltd replaced Melbourne Fibreglass Panels Pty Ltd as the new trustee for Melbourne Fibreglass Trust in 1991.

12. Ampelite Fibreglass Pty Ltd changed its name to Ampelite Australia Pty Ltd in April 2005.

13. Ampelite conducted the business or undertaking of manufacturing fibreglass and polycarbonate roof sheets, ventilators and skylights. Ampelite employed approximately 130 employees across Australia. Its principal place of business was located at Dandenong in Victoria.

14. Ampelite conducted its New South Wales operations at its manufacturing factory at 31 Sunblest Crescent, Mount Druitt NSW (“the site”). At the site roof sheets and ventilation products are manufactured. Assembly and distribution operations are also conducted at the site.

Relevant Individuals

15. Mr Hendrikus Verhagen, Mr Adrianus Verhagen and Mr Trevor Panozza were directors of Ampelite. Mr Adrianus Verhagen is retired and not involved in the day to day management of the business. Mr Hendrikus Verhagen was responsible for the fibreglass operations in Melbourne.

16. Mr Panozza was responsible for the day to day running of the business, national operations and steering the business. Mr Panozza also had authority to approve Ampelite’s WHS Management System. Mr Panozza attended the site for a couple of days each month to talk to staff, inspect the site and attend meetings. He also had discussions involving safety with Mr Andrew McLean, Ampelite’s New South Wales Factory Manager.

17. Mr McLean was employed by Ampelite as the New South Wales Factory Manager. He commenced employment with Ampelite in December 2015. His roles and responsibilities included day to day running of the factory, organising dispatches, making sure orders are processed, scheduling work, fibreglass production, ordering materials, providing instructions to team leaders in the vent and fibreglass production area and supervision of all factory staff. He reported to Mr Panozza.

18. Mr Siva Gunanayakam was employed by Ampelite as a production supervisor.

19. Mr Jimmy Brown was employed by Ampelite as a process worker. He was also the team leader for the vent area at the site. At the time of the incident, he had been employed by Ampelite for twelve years.

20. Mr Brown reported to Mr McLean and Mr McLean provided instructions to Mr Brown on the tasks required. Mr McLean’s duties included setting and operating the Press, making parts, assembling the ventilators, working all presses at the site and allocating work to other workers. He was also responsible for supervising Mr Andrew Penza and Mr Pasi. Mr Brown’s role included training, instructing and supervising workers on the operation of the Press. He was also responsible for allocating workers to use the Press.

21. Mr Penza was employed by Ampelite as a Process Worker. He commenced employment with Ampelite in 2009. He reported to Mr McLean. Mr Brown instructed Mr Penza on the tasks required to be undertaken. Mr Penza also occasionally operated the Press.

22. Mr Atelea Filise was employed by Ampelite as machine operator doing fibreglass production. He commenced employment with Ampelite in 2016. He reported to Mr McLean.

23. Mr Pasi was employed by Ampelite as a machine operator. He commenced employment with Ampelite on 5 March 2019. His duties included manufacturing tasks, making fabricated fibreglass roofing, relieving workers to cut and pack orders, housekeeping and operating the Press. He reported to Mr McLean and Mr Brown. Mr Brown was responsible for allocating work to Mr Pasi, including directing Mr Pasi to operate the Press.

The Press

24. In March 2009 Ampelite acquired plant and equipment, including the Press, from a business that manufactured industrial ventilators at the site. After the acquisition Ampelite employed five of the employees from that business. They were experienced in operating plant, including the Press. Mr Brown was one of those employees.

25. Ampelite relied upon Mr Brown’s direction in relation to maintenance and set up of the Press. Prior to employees beginning work on the Press, it was Mr Brown’s responsibility to show the employees how to operate the Press and then to directly supervise them using the Press.

26. No risk assessment was conducted in relation to the use of the Press by Ampelite prior to the incident.

27. Ampelite used the Press to shape metal for use in its manufacturing processes. To operate the Press, workers followed the following steps:

1. Obtaining a pack of steel sheets the size of a wallet (20cm x 10cm) that are already cut to shape and placing them into the Press.

2. Pushing down on a foot lever that would activate two plates to compress together to form a shape on the plate.

3. Once the Press compressed the sheet, it would automatically release it and the worker would then reach into the Press to remove the sheet.

4. The sheet would be placed in front of the worker and stacked up before being placed onto a trolley.

28. There was a safety guard at the front of the machine that could be removed to enable access for the purpose of changing the dies. There was also a safety guard located at the side of the machine.

29. Mr Pasi initially operated the Press one week after he commenced working at the site in March 2019. Mr Pasi had no previous experience operating a press.

30. Mr Pasi was required to report to Mr Brown or Mr McLean each morning and they would inform him of his tasks for that day. Usually the tasks would involve use of the Press.

31. Mr Brown was the only worker at the site who knew how to change the die. The die changing would generally occur twice per day or once per week depending on the type of parts Ampelite was making at any given time.

32. To change the front die on the Press, Mr Brown pulled the two safety screens of the press fully down, then removed the bolts on the front guard and side guard. Once they were off the Press, he put the guards to one side.

The Incident

33. Mr Pasi had operated the Press for approximately 20 hours in total prior to the day of the incident. On the day of the incident, and on several previous occasions, Mr Pasi had been allowed to operate the Press when it did not have the interlocking front guard fitted to it. For this reason, Mr Pasi was exposed to the risk of injury due to the absence of the front guard on a number of occasions, including on the day of the incident.

34. On 12 April 2019 the Press was capable of being operated without the guards being refitted onto the Press.

35. At 6.00am Mr Pasi, Mr Brown and Mr McLean arrived at the site.

36. Mr Brown instructed Mr Pasi to work on the Press compressing steel. Whilst Mr Pasi worked on the Press, Mr Brown worked at another section at the site.

37. Mr Pasi started up the Press by pushing the start button. He walked back to the front of his work bench, sat down on an office-type chair with castors and started the process of taking the steel sheets from a pallet and putting them into his trolley, then individually putting each sheet into the Press for mould compression. After working for approximately 15-20 minutes and compressing approximately 60 sheets, Mr Pasi reached to grab a sheet from the Press after it had been moulded. At the time, the chair he was sitting on moved. Whilst grabbing the Press to steady himself at the same time, his foot stepped on the foot lever thereby activating the Press. The Press crushed the fingers of his right hand. He was wearing gloves.

38. Mr Filise and Mr Penza were not present at the time of the incident. Mr Penza was working at another section at the time of the incident.

39. Mr Pasi called out for help and went to the factory area of the site and informed Mr Penza that he was hurt. Mr Gunanayakam heard Mr Pasi’s cry and observed him bleeding. He assisted and wrapped Mr Pasi’s fingers.

40. Mr Penza took Mr Pasi to Mr McLean and informed him of the incident.

41. Mr McLean immediately drove Mr Pasi to Mount Druitt Hospital for treatment.

42. Following the incident, Mr McLean reported the incident to Mr Panozza.

Injuries

43. As a result of the incident, Mr Pasi's right index finger was amputated from the middle phalanx. His middle finger was amputated from the proximal phalanx.

44. There was also a significant crush injury to the distal phalanx on the fourth finger of his right hand.

45. His right hand was his dominant hand.

Failure to Notify

46. Ampelite reported the incident to the insurer, iCare, immediately. At the time Ampelite notified iCare it was under the mistaken impression that this met its obligation to notify SafeWork NSW of the incident. Ampelite now acknowledges that its impression in this regard was incorrect and that its obligation was to notify SafeWork NSW.

47. Ampelite did not notify SafeWork NSW of the incident.

48. SafeWork NSW received an anonymous telephone communication on 9 May 2019 in which the caller made reference to an incident four weeks previously and a possible failure to notify that incident. The caller also made reference to other work health and safety issues at the site including unauthorised high-risk work, absent first aid officers, lack of PPE and lack of ready access to fire hoses.

49. On 21 May 2019 when attending the site, in the course of following up on the anonymous telephone communication, SafeWork NSW first became aware of the offences arising from the incident on 12 April 2019.

Legislation and Guidance Material

Risk Assessment

50. Clause 203 of the Work Health and Safety Regulation 2017 (NSW) (“WHS Regulation”) provided that a person with management or control of plant at a workplace must manage risks to health and safety associated with the plant.

51. Management of the risk by a person conducting a business or undertaking in accordance with Part 3.1 of the WHS Regulation included requirements to:

1. Identify reasonably foreseeable hazards that could give rise to risks of health and safety (cl 34).

2. Eliminate the risk to health and safety so far as is reasonably practicable, and if not reasonably practicable to do so, minimise the risk so far as is reasonable practicable by implementing control measure in accordance with the hierarchy of risk control (cll 35-36).

1. Maintain the implemented control measure so that it remains effective (cl 37).

2. Review and, if necessary, revise all risk control measures (cl 38).

52. The SafeWork NSW Managing the Risks of Plant in the Workplace Code of Practice dated July 2014 (“Code of Practice”) was applicable at the time of the incident.

53. Sections 1 and 1.1 of the Code of Practice provided the following:

“1.   Introduction

Plant is a major cause of workplace death and injury in the Australian workplace. There are significant risks associated with using plant and severe injuries can result from the unsafe use of the plant, including:

•   limbs amputated by unguarded moving parts of machines

…

1.1   The meaning of key terms

Plant includes machinery, equipment, appliance, container, implement and tool and includes any component or anything fitted or connected to any of those things.”

54. Section 2.2 of the Code of Practice provided the following:

“2.2   Assessing the risks

…

To assess the risk associated with plant hazards you have identified, you should consider the following:

What is the potential impact of the hazard?

•   How severe could an injury or illness be? For example, lacerations, amputations, serious or fatal crushing injury, burns or loss of hearing.

•   What is the worst possible harm that plant hazard could cause?”

55. The Code of Practice also provided a Hazard Checklist in Appendix B. In relation to “Crushing” the Hazard Checklist provided the following:

“Can anyone be crushed due to:

•   Uncontrolled or unexpected movement of the plant?

•   Coming into contact with moving parts of the plant during testing, inspection, operation, maintenance, cleaning or repair?

•   Other factors not mentioned?”

56. The Australian Standard AS 4024.3001-2009 Safety of machinery materials Part 3001: Materials forming and shearing - Mechanical power presses dated June 2019 (“the Standard”) was also applicable at the time of the incident.

57. Section 2.2 of the Standard provided the following:

“2.2   RISK ASSESSMENT

A risk assessment in accordance with AS 4024.1301 shall be carried out. The risk assessment shall pay particular attention to–

(a)   the intended use of the press including maintenance, tool setting and cleaning;

(b)   foreseeable misuse of the press; and

(c)   whether the list of hazards given in Table 2.1 is both exhaustive and applicable to the press under consideration.”

58. Table 2.1 in Section 2.2 of the Standard further listed crushing as a mechanical hazard.

Guards

59. Clause 208 of the WHS Regulation provided the following:

“208   Guarding

…

(2)   The person with management or control of the plant must ensure that–

(a)   if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier, or

(b)   if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or

(c)   if it is not reasonably practicable to use guarding referred to in paragraph or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools, ....”

60. Prior to the incident, the Code of Practice provided practical guidance to persons who conduct a business or undertaking and have management or control of plant in the workplace, as well as to persons who install and commission plant. It includes information about specific control measures required under the WHS Regulation for plant generally. The Code of Practice deals with guarding of machinery. It includes guarding as a specific control measure for risks of plant, including permanently fixed physical barriers and interlocked physical barriers.

61. Section 4.1 of the Code of Practice provided the following:

“Removal of guarding

If any type of guarding is removed for the purposes of maintenance or cleaning, it must be replaced before the plant is put back into normal operation. The plant should not be able to restart unless the guarding is in place. When removing guard, eliminate the energy source by disconnecting the power supply or by locking out motive power sources.”

62. John Heine, the manufacturer of the Press, had an “OH&S Press Setting” on its website to provide a guide in preparing information and assessments that should be specifically tailored for each machine installation. It identified:

1. “Trapping of fingers in die area” as a hazard.

2. “Possible amputation of operator's fingers in die” as a risk.

3. “Should only use press when an interlocked die guard is fitted. Daily inspection of condition of safety items is required” as a control measure.

Isolation of Energy Sources

63. Section 4.5 of the Code of Practice provided the following:

“4.5   Isolation of energy sources

An isolation procedure is a set of predetermined steps that should be followed when workers are required to perform tasks such as maintenance, repair, installation and cleaning of plant.

Isolation procedures involve the isolation of all forms of potentially hazardous energy so that the plant does not move or start up accidentally. Isolation of plant also ensures that entry to a restricted area is controlled while the specific task is being carried out.

The lock out process is the most effective isolation procedure. The process is as follows:

•   Shut down the machinery and equipment

•   Identify all energy sources and other hazards

•   Identify all isolation points

•   Isolate all energy sources

•   Control or de-energise all stored energy

•   Lock out all isolation points

•   Tag machinery controls, energy sources and other hazards, and

•   Test by "trying to reactive the plant without exposing the tester or others to risk. Failure to reactivate the plant means that the isolation procedure is effective and that all stored energies have dissipated. This may require further measures to safety release these energies, for example hydraulic or pneumatic pressure, suspended weight or compressed springs.

In order for the isolation procedure to be effective, you should identify all energy sources likely to activate the plant or part being inadvertently powered. Energy sources include:

•   Electricity (mains)

…

•   Stored energy (e.g. compressed springs)

…

In order to isolate plant, you should use a device that effectively locks out the isolation points. These devices include switches with built-in lock and lock-out circuit breakers, fuses and values. Other devices include chains, safety lock out jaws (also known as hasps) and safety padlocks.

When isolating an energy source you should use a lock that allows one or more padlocks to be fitted.

…

Each worker involved in the maintenance, cleaning or repair of the plant should have a lock, tag and key for each isolation point.

…

Tags should only be used as means of providing information to others at the workplace. A tag should not be used on its own as an isolation device; only a lock is effective at isolating the energy source.”

Foot Shroud

64. Section 3.4.8.1 of the AS/NZ Standard provided the following:

“3.4.8.1   Shrouding

Push button, foot switch and start control devices shall be shrouded to prevent accidental operation. Foot switches shall permit access from one direction only and by one foot only.”

Instruction, Training and Supervision

65. Second 3.3 of the Code of Practice provided the following:

“3.3   Instruction, training and supervision

Before plant is used in your workplace, you must provide workers and other persons who are to use the plant with information, training, instruction or supervision that is necessary to protect them from the he risks arising from the use of the plant.

…

This information may be supported with safe work procedures that include instructions on:

•   The correct use of guarding and other control measures

•   How to safely access and operate the plan

•   Who may use an item of plant, for example only authorised or licenced operators

•   How to carry out inspections, shut-down, cleaning, repair and maintenance

•   Traffic rules, rights of way, clearances and no-go areas for mobile plant, and

•   Emergency procedures.

Any emergency instructions relating to an item of plan should be displayed on or near it.

…

Supervisors should take action to correct any unsafe work practices associated with the plant as soon as possible otherwise workers may think that unsafe work practices are acceptable.”

Systems of Work Before the Incident

66. Prior to the incident:

1. Ampelite relied on PPE and the presence of the safety guards to minimise or eliminate risks and hazards associated with the Press.

2. Ampelite did not conduct a risk assessment in relation to the operation of the Press and was reliant on Mr Brown’s experience and expertise in managing the risks and hazards associated with the Press.

3. Ampelite did not maintain the guarding on the Press or verify that guards were in place before directing Mr Pasi to operate the Press while the guards had been removed.

4. Ampelite had not installed a shroud guard over the operational foot lever of the Press so as to prevent inadvertent activation of the Press.

5. Ampelite did not develop and implement a lock out and tag out procedure to isolate energy sources to avoid inadvertent activation.

6. Mr Pasi, Mr Brown and Mr McLean did not see any warning signs near or on the Press to the effect that a Safety Guard must be applied before commencing the use of the Press.

7. Ampelite did not develop and implement a safe work operating procedure for the use of the Press.

8. Ampelite did not provide Mr Pasi with a Safe Work Method Statement, safe work procedure, standard operating procedure or other documented guidance setting out the steps he was to follow.

Instruction, Training and Supervision

67. Prior to the incident, Ampelite did not provide Mr Pasi with adequate instruction and training on the risks and hazards associated with the Press. There were only informal processes for assessing job competence and supervision of workers, relying on observation by Mr Brown.

68. Mr Pasi was only provided with informal on-the-job training on the operation of the Press by Mr Brown. This was provided at the commencement of Mr Pasi's employment and involved Mr Brown demonstrating the use of the Press to Mr Pasi, then observing Mr Pasi using it until Mr Brown was confident that he could operate the Press on his own. However, this training was not sufficient to prevent Mr Pasi from being exposed to the risk which manifested on the day of the incident.

Systems of Work Following the Incident

69. Following the incident:

1. Mr Brown replaced the missing guards back onto the Press.

2. Ampelite:

1. Introduced a formal lockout procedure for the Press when maintenance is being performed.

2. Introduced, in response to an Improvement Notice, a safe work procedure which was documented and made known to all staff, including a pre-operational safety check to ensure all guards are in place and operational.

3. Installed a new shroud over the foot lever of the Press.

4. Employed a Manager for the NSW office to ensure safety of all personnel at the site.

5. Instituted, in response to an Improvement Notice, a process for notification to SafeWork NSW of incidents involving a serious injury to an employee.

Evidence for the Defendant

70. Mr Trevor Panozza swore an affidavit on 28 January 2022 (DX 1) which is summarised below.

Background to Ampelite

71. Ampelite has always operated as a family-run business. Ampelite, at that time under the name Melbourne Fibreglass Panels Pty Ltd, was founded and began operating in 1969.

72. Mr Panozza, Mr Adrianus Verhagen and Mr Hendrikus Verhagen are directors of Ampelite.

73. Ampelite presently employs 110 employees.

74. Ampelite’s expertise is in industrial manufacturing, specifically with respect to fibreglass, polycarbonate and vents. It is an IS09001:2015 SAi Quality Endorsed Company.

75. In its over 50 years in operation in Australia, Ampelite has not been subject to any other investigations for breaches of the Act and has not been convicted of breaching any work health and safety laws.

Remorse

76. Ampelite deeply regrets the incident involving Mr Pasi at the site on 12 April 2019 and the injury that Mr Pasi suffered as a result.

77. Following the incident, Mr Andrew McClean, the factory manager for the site, took Mr Pasi to the hospital himself and maintained contact on behalf of Ampelite to keep up to date with Mr Pasi's injury and recovery.

78. Ampelite was willing to provide Mr Pasi with the support he would have required to return to work. However, Mr Panozza understands that Mr Pasi chose not to return to work with Ampelite for personal reasons.

Pre-incident Measures

79. While Ampelite accepts that its safety systems in place prior to the incident were not sufficient in meeting its duty under the Act, it nevertheless had a system in place and Ampelite did have a focus on safety.

80. New employees of Ampelite were trained by more senior employees or managers who were very experienced with the relevant plant or equipment. They were first shown proper operating procedure and were then observed until the trainer was satisfied that the new employee could manage the work safely. This training was not formally recorded.

81. Prior to the incident, the management of the site held bi-annual work health and safety meetings with a rotation of employees, colloquially referred to as the “safety committee”, during which safety issues were discussed, including identification of concerns and proposals for solutions.

82. Management also held semi-regular informal meetings with employees, during which safety issues could be discussed. Although safety was not always a subject of these meetings, Ampelite employees were aware that there were forums where safety matters could, and should, be raised.

83. Ampelite accepts, however, that it can always do better with respect to its focus on safety.

Post-incident Measures

84. Following the incident, Ampelite has taken a comprehensive review of its work health and safety systems, making significant changes where opportunities for improvement were found, and formalising previously informal safety systems.

85. With respect to the Press, Ampelite installed a foot shroud, replaced the chair for the operator, reinstated the relevant guarding and put stricter systems of work in place prohibiting the use of the Press if the guards are not present.

Systems of Work

86. Ampelite has implemented the following new formal safety policies:

1. Safety and Health Policy, July 2020.

2. PPE Policy, July 2020.

3. Fit for Work Policy, August 2020.

4. Noise Control Policy, August 2020.

5. Smoking Drug and Alcohol Policy, August 2020.

6. Traffic Policy, August 2020.

87. Ampelite has implemented the following formal safety documentation across all of its sites:

1. SWMS: John Hein Press Machine Model 206A, June 2019.

2. SWMS: Press Machine, June 2019.

3. Fibreglass Manufacturing Line Risk Assessment, August 2020.

4. Vent Manufacturing Risk Assessment, August 2020.

5. Forklift Pedestrian Risk Assessment, September 2020.

6. SWMS: Mobile Plant Operation, October 2020.

7. SWMS: Pedestrian Traffic in Workplace, October 2020.

8. SWMS: Vent Manufacturing, October 2020.

9. SWMS: Cutting Saw Operation, October 2020.

88. In January 2021, Ampelite distributed additional safety documentation across relevant sites. Mr Panozza set out the additional safety documentation in his affidavit.

89. On 26 July 2021 Ampelite upgraded all of its safety signage at each of its factories and warehouse sites.

90. The total cost of the overhaul of Ampelite’s safety systems between the 2019-2020 and 2020-2021 financial years was comprised of the following costs:

1. Additional protective clothing: $46,554.

2. Additional training: $11,473.

3. First aid supplies: $4,084.

4. Defibrillators: $3,832.

5. State Manager: a portion of $195,000. The State Manager has a wide range of duties, one of which is work safety.

91. The total cost does not take into account the costs spent on the development of SWMSs, policies and other safety documentation as Mr Panozza was not in a position to estimate those costs.

Instruction, Information and Training

92. Mr Pasi was trained in the use of the Press by Mr Brown, his direct supervisor, who had extensive experience with the safe use of the Press.

93. Since the incident, in addition to its on-site training, Ampelite has held safety training events for its staff and Directors. Mr Panozza set out the safety training events in his affidavit.

94. In August 2021, Ampelite developed and implemented a series of safety induction videos and provided them to all employees.

Supervision

95. On 9 March 2020 Ampelite hired a State Manager to oversee the NSW factory.

96. The State Manager’s role involves a primary function of ensuring safety at the site. This function includes holding regular toolbox meetings during which safety matters can be raised, conducting regular walk-throughs of the site and overseeing the induction and training of new employees, both in their specific roles and the safe handling and operation of any plant and equipment required. Each facet of the inductions is checked and signed off once it has been completed.

Failure to Notify

97. Ampelite is very sorry that it failed to notify SafeWork NSW of the incident.

98. Ampelite had never before been required to notify SafeWork NSW of any incident at the site.

99. Ampelite genuinely believed that it had satisfied its obligations with respect to the notifiable incident by contacting its insurer, iCare, immediately following the incident.

100. On 24 May 2019 Ampelite circulated an email to all employees at the site, which was subsequently physically posted around the site, informing employees to notify SafeWork NSW in the event of an injury, and the relevant contact number and subsequent steps required.

Other Outcomes of SafeWork NSW’s Investigations

101. While Mr Panozza is grateful for the SafeWork NSW investigator’s assistance in the course of their investigation, he is relieved to say that the other allegations concerning safety in Ampelite’s workplace, originally raised by the anonymous caller to SafeWork NSW, were not substantiated.

102. Mr Panozza stated that he knows this because the Improvement Notices issued following SafeWork NSW’s investigation related only to the Press and to Ampelite’s systems to notify following a notifiable incident.

Good Corporate Citizenship

103. Ampelite and its Directors have a strong view of good corporate citizenship and have made significant charitable and community contributions in the course of Ampelite’s operations.

104. Over the 2019-2020 and 2020-2021 financial years, Ampelite and its Directors have made charitable contributions and sponsored community events, totalling the following values:

1. Ampelite: $15,474.

2. Mr Adrianus Verhagen: $251,008.

3. Mr Hendrikus Verhagen: $2,517,200.

105. The Directors made their charitable contributions through their corporate addresses and identified themselves as Directors of Ampelite, or through Ms Lyn Pitman, the accountant employed by Ampelite.

106. Ampelite accepts that a fine with conviction is the appropriate penalty in this matter.

107. Mr Panozza does not believe that specific deterrence is necessary, as Ampelite has taken significant and varied steps to redress any discovered or suspected safety issues in its organisation to prevent anything like the incident from happening again.

108. Since the implementation of these measures, there have been no further incidents relating to the risk at Ampelite’s sites.

109. This outcome, together with its enhanced commitment to safety, is something Ampelite remains very proud of.

Consideration

110. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness of the Offence

111. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

111. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

112. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

114. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

115. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

116. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

117. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

118. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

119. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

120. My findings about the defendant’s level of culpability are based upon the following:

1. Ampelite knew of the risk. It created the risk. In any event the risk was foreseeable as there was guidance material directed to the particular risk.

2. The likelihood of the risk occurring was high. The unguarded Press was a trap for inexperienced employees, particularly when they had to sit on an unstable chair while operating the machine.

3. Mr Pasi was subjected to the risk on prior occasions when he had operated the Press without guarding, and not just on the day of the incident.

4. The potential consequences of the risk were death or serious injury.

5. Simple and well-known steps were readily available to eliminate or minimise the risk.

6. There was no great burden or inconvenience in these steps being implemented. Ampelite took remedial measures quickly after the incident.

7. Mr Pasi sustained a serious crushing injury to his right hand requiring amputation of two fingers.

8. The maximum penalty for the s 32 offence is a fine of $1,500,000 which reflects the legislature’s view of the seriousness of the offence.

9. The maximum penalty for the s 38 offence is a fine of $50,000 which reflects the legislature’s view of the seriousness of the offence.

121. I find that the level of culpability of Ampelite for the s 19(1) offence is in the upper half of the mid range.

122. I find that the level of culpability of Ampelite for the s 38 offence is in the low range. Ampelite did report the event to iCare but not to Safework NSW. It did not deliberately evade its reporting obligation.

Deterrence

123. The penalty imposed in relation to the s 19(1) offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

124. The penalty must reflect the need for specific deterrence. Ampelite is still conducting a business. Its operations involve manufacturing fibreglass and polycarbonate roof sheets, ventilators and skylights, the continuing engagement of workers and the use of potentially dangerous heavy machinery.

Aggravating Factors

125. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

126. Ampelite does not have a prior record of convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Ampelite has a clean record in operating the business, which employees a large number of workers operating heavy and potentially dangerous machinery, for a long time. This factor alone will result in a lower penalty than would otherwise be imposed.

127. Ampelite is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. The business conducted by Ampelite has been in operation for 53 years. Ampelite and its directors have made very generous charitable donations.

128. Ampelite is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

129. Ampelite has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

130. Ampelite has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Pasi was caused by its actions.

131. Ampelite entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Ampelite a 25% discount for an early plea.

132. Ampelite gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

133. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

134. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

135. There was no submission about capacity to pay, so this issue does not arise.

Costs

136. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs agreed in the amount of $46,000.

Penalty

137. My orders are:

In District Court Proceedings 2021/00141331:

1. Ampelite Australia Pty Ltd is convicted.

2. The appropriate fine is $180,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Ampelite Australia Pty Ltd to pay a fine of $135,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Ampelite Australia Pty Ltd to pay the prosecutor’s costs agreed in the amount of $46,000.

In District Court Proceedings 2021/00141316:

1. Ampelite Australia Pty Ltd is convicted.

2. The appropriate fine is $16,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Ampelite Australia Pty Ltd to pay a fine of $12,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. No order as to costs.

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Decision last updated: 22 February 2022