SafeWork NSW v Dial-A-Dump (EC) Pty Ltd

[2023] NSWDC 260

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Dial-A-Dump (EC) Pty Ltd [2023] NSWDC 260

Hearing dates:

06 July 2023

Date of orders:

18 July 2023

Decision date:

18 July 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Dial-A-Dump (EC) Pty Ltd is convicted.

2   I impose a fine of $255,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Protection of the Environment Operations Act 1997 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Dial-A-Dump (EC) Pty Ltd (Defendant)

Representation:

Counsel:
D Jordan (Prosecutor)
C Magee (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (Prosecutor)
Holding Redlich (Defendant)

File Number(s):

2021/148173

Publication restriction:

None

JUDGMENT

1. Dial-A-Dump (EC) Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW), in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Kurt Wilson and Daniel Swain to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of $1.5 million.

Facts

3. The parties tendered an Agreed Statement of Facts that can be summarised as follows.

Background

4. At all material times, the offender managed and operated a waste management facility in Eastern Creek, NSW (the site). The site was an integrated recycling and landfill facility. It had a Materials Processing Plant (MPC) where loads of waste are unloaded, sorted and classified into various materials that can be recycled or reprocessed for further re-use. Residue waste that cannot be recycled is transferred to an area at the site known as the “landfill area” or “pit” by a series of conveyors and a chute.

5. The offender had an Environment Protection Authority Licence (EPA Licence) granted under the Protection of the Environment Operations Act 1997 (NSW) and was required to conduct its operations at the site in accordance with its Licence. Under its EPA Licence, the offender was required to identify and prevent the disposal of waste that did not comply with the EPA Licence at the site.

6. The landfill area was a deep quarry 150 metres deep and approximately 300 metres by 200 metres wide. Non-recyclable waste that arrived at the site was disposed of in the landfill area.

7. The offender accepted waste directly from the offender’s customers, including unwanted household waste from residential Council clean-up collections delivered by Council trucks. Trucks carrying non-recyclable waste would travel down a roadway into the landfill area. Various mobile plant and machinery operated in the landfill area and tip face, including compactors, loaders, excavators, and heavy vehicle trucks. A 2016 Caterpillar 836K Landfill Compactor (the compactor) would move, level and compact waste that had been unloaded at the tip face. The compactor weighed 55 tonnes and was approximately 10 metres long, 5.2 metres wide and 4.6 metres in height. It was fitted with a blade attachment at the front, which was used to move waste and was approximately 5.2 metres wide and 2.4 metres in height.

Workers

8. Mr Wilson had been employed by the offender since November 2018 as a “spotter”.

9. Mr Swain commenced employment with the offender in August 2018 and was also a “spotter”.

10. Joshua Carter was employed by the offender as a machine operator at the site. Mr Carter commenced employment in October 2018. He was a machine operator in the landfill area.

11. At all material times, Mr Carter operated the compactor in the landfill area.

The incident

12. On 27 May 2019, Mr Carter was operating the compactor in and around the tip face. Mr Wilson and Mr Swain were spotters in the landfill area.

13. During the course of the morning, several Council trucks entered the landfill area and unloaded their waste at the tip face. On those occasions, spotters, including Mr Wilson and Mr Swain, performed secondary inspections of the waste tipped by the Council trucks on foot.

14. The landfill area was monitored by CCTV.

15. There was no radio communication between Mr Carter and the spotters in relation to the Council truck loads that been unloaded at the tip face.

16. At 12:25pm, the Weighbridge area advised the spotters via two-way radio that there was a Council truck approaching the landfill area and that photographs were required to be taken of any non-conforming waste in the tipped load.

17. At 12:27pm, Mr Wilson and Mr Swain drove in the spotters’ utility vehicle towards the tipping area and parked approximately 10-20 metres from the edge of the tip face.

18. At 12:32pm, the Council truck arrived at the landfill area and reversed to the tip face to unload. Mr Wilson and Mr Swain alighted from their utility vehicle and respectively stood beside the cabin and the rear side of the Council truck as it began to unload. At this time, Mr Wilson and Mr Swain were on foot in the landfill area, and in and around the tip face.

19. At approximately 12:35pm, whilst the Council truck was still unloading, a Western Star Prime Mover being driven by Scott Cassell arrived at the tipping area and reversed to the tip face to unload.

20. Over the radio, Mr Carter instructed Mr Cassell to reverse the truck alongside the passenger side of the Council truck at the tip face. Mr Cassell began to unload his truck at the tip face.

21. There was also other plant operating in the landfill area near to the locations of Mr Wilson and Mr Swain, including a compactor that was approximately 30 metres away and an excavator that was approximately 50 metres away. From the compactor, Mr Carter’s view of the unloading Council truck and the waste it was unloading was obscured by the Western Star truck.

22. At 12:35pm, Mr Carter instructed the spotters by radio to move their utility vehicle away from the tip face area. Mr Swain left the side of the Council truck, entered the utility vehicle and moved it so that it was around 50–100 metres away from the other side of the landfill area. Mr Wilson took photographs of the waste discharged by the Council truck.

23. At 12:37pm, Mr Swain emerged from the utility vehicle and walked towards the tipping area to meet Mr Wilson near the edge of the tip face. From this time, both men were on foot in and around the tip face.

24. The Council truck departed the tip face. Mr Wilson and Mr Swain remained on foot where it had tipped its waste. Around 90 seconds after its departure, Mr Carter began operating the compactor and drove it around the front of the unloading Western Star truck, towards the Council waste that had just been unloaded at the tip face. Mr Carter did not announce this, or that he intended to use the compactor over the two-way radio that he intended to use the compactor, prior to doing so. Mr Carter conducted operations whilst Mr Wilson and Mr Swain were still on foot in or around the tip face. As a result, Mr Wilson and Mr Swain were placed at risk of suffering death or serious injury as a result of being impacted by mobile plant and machinery, including the compactor.

Procedures at the site as at the date of the incident

25. Upon arrival at the site, a provisional assessment of each load was conducted at the Weighbridge at the top of the site and vehicles would be given a docket by a spotter which stated the type of material the customer was disposing of at the site. Depending on the material, vehicles would be directed to the appropriate tipping location at the site.

26. A primary inspection of the loads then occurred at the “Spotter’s Station” at the appropriate tipping location. The purpose of the inspection was to verify that the material that the customer indicated was being brought onto the site was in fact what was being brought in, and to ensure the materials did not contain waste that was not permitted to be tipped at the site. A primary inspection was a thorough visual inspection of the loads by one spotter on foot and another on the viewing deck.

27. Vehicles and trucks disposing of non-recyclable waste were directed to the landfill area. There was a Spotter’s Station at the bottom of the roadway near the entrance to the landfill area. Spotters based at this Station had access to two-way radios to communicate with machine operators, other spotters and truck drivers. They also had access to a light utility vehicle to travel to various locations around the landfill area. Spotters were required to communicate with all customer trucks as they approached the foot of the landfill area. This was generally done by two-way radios.

28. Once customer trucks reached the Spotter’s Station, spotters reviewed the customer’s docket and conducted a visual inspection of the load in the trucks to identify the material in the load and any unacceptable materials prior to tipping. Council trucks were not subject to primary inspection at the Weighbridge or Spotters station due to the design of those vehicles which did not allow for a primary inspection to be conducted. Following review of the docket and primary inspection, the spotter directed the customer truck into the tipping area and into the unloading position.

29. As Council trucks could not undergo a primary inspection, spotters observed the Council truck during the tipping process from a safe distance to ensure that the material being tipped did not become stuck and no other danger arose in the tipping area. Vehicles unloaded their loads on the dirt at the edge of previously dumped mounds of rubbish within the landfill area. The tip face was elevated above the surrounding area, approximately 2 metres in height.

30. A secondary inspection was conducted once the load had been tipped and spread out, to identify any unacceptable materials in contravention of the offender’s EPA Licence and the commercial terms on which it was agreed that the customer could dispose of the waste at the site. Secondary inspections were to be conducted by plant operators where there were safety risks to the spotter in conducting the inspection on foot. The secondary inspection of Council trucks at the tip face was generally performed by spotters on foot. Spotters were not to sign or hand over the customer’s docket, and customers and vehicles could not leave, until a thorough secondary inspection had been completed.

31. Once the customer had tipped their load and the secondary inspection was completed, they had to return their docket, which was signed by a spotter at the Weighbridge.

32. On occasion, workers other than spotters were on foot in the landfill area, for example when operators of mobile plant and machinery went to and from that plant and machinery.

33. Procedures in place at the landfill area as at 27 May 2019 meant that from time spotters and other workers were on foot and at risk of being impacted by mobile plant and machinery, and waste being moved.

34. Communication between the spotters and machine operators in the landfill area was conducted through visual contact, hand gestures and two-way radio. Channel 20 was the designated landfill area channel and was accessible by spotters, landfill machine operators, and landfill supervisors. Radio communication failures between spotters and landfill machine operators were frequent and occurred several times per day.

Systems of work in the landfill area as at the breach date

35. The following documents detailed the systems of works in respect of the disposal of waste in the landfill area:

1. ‘Spotters Training Manual’ dated December 2016 (Spotters Manual);

2. a Safe Work Method Statement (SWMS) for ‘Compactor Operations – Compacting Landfill’ dated 17 July 2018 (Compactor SWMS);

3. a Safe Work Method Statement for ‘Quality Control – Spotting Loads’ dated 17 July 2018 (Spotting SWMS);

4. a ‘Genesis Landfill – Daily Procedures’ dated February 2019 (Landfill Procedures);

5. Operation and Maintenance Manual SEBU8778 for 836K Landfill Compactor dated March 2016 (Compactor Manual);

6. a Safe Work Method Statement for ‘Asbestos Found in Loads’;

7. a Safe Work Method Statement for ‘Asbestos Soil Disposal in Landfill’.

Role of spotters in the landfill area

36. Spotters in the landfill area were primarily responsible for the following tasks:

1. receiving trucks from the Weighbridge area at the Spotter’s Station;

2. checking dockets generated by the Weighbridge at the Spotter’s Station;

3. conducting primary inspections of the loads at the Spotter’s Station prior to tipping;

4. directing trucks to the tip face;

5. accompanying trucks to the tip face;

6. conducting inspections of tipped loads for unacceptable material from trucks, in particular Council trucks;

7. informing the Weighbridge of any unacceptable materials or notifiable items identified in the loads; and

8. taking photographs of tipped waste, in particular waste tipped by Council trucks.

The Spotters Manual

37. The Spotters Manual provided instructions for the safe performance of spotters’ duties at the site. It outlined spotters’ roles and responsibilities, how to direct traffic around the site, and procedures relevant to interaction of pedestrians and mobile plant on site, including in the landfill area.

38. The Spotters Manual provided that the role of the spotter included ensuring waste is acceptable to be tipped and processed, ensuring safe delivery of loads to the relevant area, preventing contamination from unsuitable materials, and sorting and recovering materials for recycling. It provided the following precautions to be taken by spotters when a load was being tipped:

1. use of PPE;

2. keeping “a safe distance” from where the load was tipped and to “maintain a constant visual on the unloading process to ensure [they could] get the driver to terminate the unloading process should the material become stuck or…believe there may be a danger to others/other vehicles/plant”;

3. ensuring all mobile equipment and machinery was clear from the tipping area; and

4. spotters were to “walk the pathway to the tailgate/rear door of unloading vehicle ahead of the driver and establish visual contact with other spotters/vehicles/plant operators working adjacent to the unloading area”.

39. Spotters were to conduct primary and secondary inspections. In relation to secondary inspections, inspections had to be “detailed and thorough” and carried out once the load had been tipped and spread out. Once the load was tipped safety in the correct area, the spotter was to ask an operator via two-way radio to spread the load. The Spotters Manual acknowledged that not all loads require secondary inspection due to inherent safety risks and allowed inspections in these cases to be done by plant operators. If unacceptable materials were found, the spotter had to redirect the vehicle to the Weighbridge. Spotters could not sign or hand over the dockets to the customers until the inspection was “thoroughly completed”.

40. In relation to traffic management, the Spotters Manual required spotters to direct traffic as per the Site Traffic Management Plans. The Traffic Management Plan for the landfill area contained an image of Traffic Flow for waste disposal. In relation to traffic management between pedestrians and mobile plant, the Spotters Manual provided that pedestrians were not to cross the path of, or stand behind operating machinery, to “be aware at all times” of operating machinery and equipment, and to use two-way communication when working around machinery.

41. Mr Swain received a copy of the Spotters Manual on 19 September 2018 and Mr Wilson on 26 February 2019.

The Spotting SWMS

42. At the time of the breach, the offender had in place various SWMS which recognised the risk of impact with plant and material in the landfill area.

43. The Spotting SWMS was approved by Landfill Supervisor Trevor Hayes on 17 July 2018 and signed by all spotters. It recognised the hazards of “manual handling” and spotters being “impacted by” moving vehicles/plant and material. It provided the following:

1. a two-way radio, a handheld picking grab and a smart phone or tablet were required to spot loads;

2. if there was another vehicle or mobile plant operating in the adjacent area to where the unloading was to occur, the spotter was to make radio contact with the plant operator and inform them that another vehicle was being brought in and where the unloading was to occur. The spotter was to wait for confirmation from the operator/spotter;

3. the spotter was to stand in a “clear position on the floor” from which visual contact with the vehicle being directed, plant operators and other spotters could be maintained. It was common for numerous large mobile plant and vehicles to be operating within and around the tip face at the same time;

4. when inspecting the load on the ground after tipping, spotters were to “conduct [a] visual inspection from the tipping area floor” and were not permitted to climb or walk over discharged materials;

5. if a suspected hazardous material was identified, appropriate precautionary PPE and controls were required whilst a sample of the material was retrieved with a picking grab; and

6. PPE and high visibility vests and other clothing were to be worn.

44. The Spotting SWMS permitted the operation of another vehicle or mobile plant adjacent to the unloading area. It did not limit the use of spotters in and around the tip face while undertaking their work duties. It also permitted spotters to stand on the landfill area floor before, during and after vehicle unloading operations at the tip face, even in circumstances when machinery and mobile plant were operating in and around the tip face. It did not require that all mobile plant in and around the tip face cease operation when workers were on foot in that area while undertaking their duties.

45. Spotters were required to photograph some tipped loads on foot at the tip face, primarily for billing purposes. Landfill supervisors were aware that spotters had to take photos of tipped loads while conducting the secondary inspection.

Unacceptable waste

46. The offender was required to implement procedures to identify and prevent the disposal of waste that did not comply with the site’s EPA Licence. Under the EPA’s ‘Standards for managing construction waste in NSW’, a secondary inspection was to be conducted by spreading the entire load and inspecting the visible surface area for any unacceptable waste and then manually turn or direct a plant operator to turn the load to ensure the entire load is inspected.

47. If unacceptable waste was identified in the load, spotters were required to hand-sort and extract unacceptable materials from the load. To do this, spotters had to notify all operators around them via two-way radio that they were commencing hand-sorting and crossing over the tip face. Hand-sorting was the only procedure which permitted spotters to cross over the tip face and enter the waste area. The Manual required spotters to do the following when hand-sorting:

1. alert all operators in the vicinity prior to commencing hand-sorting;

2. request that operators spread the load before entering the area;

3. ensure that the area where the hand-sorting was occurring was closed off by witches hats;

1. exercise extreme caution when dealing with hazardous materials.

Compactor SWMS

48. The Compactor SWMS was approved by Mr Hayes on 17 July 2018 and signed by Mr Carter. It included a range of traffic management controls to minimise the risk of compactors impacting with personnel. The Compactor SWMS identified the hazard of “personnel strike” and sought to address this hazard through the following:

1. “Ensure correct operation of movement alarms on compactor, correct PPE to be worn by all staff, exclude personnel, vehicles and other plant from the turning/reversing & swing area of the machine, radio communication with Spotters.”

2. “Contain work area”

3. “Make operators aware, look up, around and live”

4. “All travel, reversing and turning of the compactor to be performed with blade in lowered position (200mm – 300mm from ground)”

5. “All operators to look up and around before and during operation”

49. The Compactor Manual was kept in the operator cabin of the compactor. The Compactor Manual warned that “the size and configuration of this machine may result in areas that cannot be seen when the operator is seated”. The Compactor Manual outlined that without the use of optional visual aids, there were areas of significant restricted visibility at ground level inside a radius of 12 metres from the operator of the compactor. The compactor was not fitted with optional visual aids, and these were not supplied as standard with the machine.

50. The compactor was fitted with one reversing camera at the rear of the compactor, which allowed the operator to see on a monitor in the cabin what was behind the compactor whilst it was reversing.

Inductions, Supervision and Toolbox Talks

51. All new workers were inducted into the system of work at the site prior to commencing work. During induction, a supervisor or manager stepped through the relevant safety documentation with each worker. Mr Wilson and Mr Swain were inducted and trained in the Spotters Manual and the Spotting SWMS. Mr Swain informed SafeWork inspectors that he did not recall receiving a copy of the Spotters Manual, although the offender’s records show that he received a copy on 19 September 2018. Mr Carter was inducted into the Spotters Manual, Spotting SWMS and Compactor SWMS.

52. The offender conducted pre-start meetings each morning. During the daily pre-start meetings, either Mr Hayes or the Supervisor, Rick Molnar, would discuss the work area for the day and identify any particular hazards or controls, and ask for input and questions from workers. Mr Hayes also conducted regular toolbox talks for workers in the landfill area dealing with safety and operational matters. Workers had the opportunity to raise and discuss particular hazards or controls at these meetings.

53. The workers in the landfill area were supervised on a daily basis by Mr Hayes and Mr Molnar. Mr Hayes would work from the site shed and frequently visit the landfill area to supervise the workers, sometimes for most of the day. Mr Molnar would work from the landfill area and Spotter’s Station and supervise the landfill area each day between his other duties. Mr Hayes and Mr Molnar communicated in the landfill area via two-way radio and directed the conduct of work in the landfill area.

Systems of work after the breach

54. After 27 May 2019, SafeWork NSW issued a Prohibition Notice and two Improvement Notices. In compliance with these notices, the offender introduced an additional Spotter Station at which spotters could safely direct traffic, which included a shipping container situated near the tip face. Spotters are now to remain in the Spotter Stations and communicate with truck drivers and plant operators via radio.

55. Spotters are no longer regularly permitted on foot at or on the tip face and are no longer primarily responsible for conducting the secondary inspection at the tip face. Instead, machine operators inspect the waste as they move it with their machinery. If unacceptable material is spotted in the load, operations on the tip floor are to cease whilst spotters organise for material to be removed. If a closer inspection is required, the operator exits the machine to inspect the load or calls the spotter into the tipping area once they have ceased operation. Where operators or drivers have to leave their machinery, this is communicated to spotters via radio and machine operation in that area is restricted.

56. Plant and machine operators must announce over the radio before they exit their vehicles at the tip face, and all other plant and machinery must acknowledge via radio that it is safe to do so. The operator must acknowledge over radio when they have re-entered the cabin of their vehicle.

57. All plant and machinery must stop operation when a pedestrian is at the tip face.

58. The offender has also prepared and implemented a Traffic Management Plan for the landfill area, that provides that there must be an exclusion zone of 20 metres around all mobile equipment and people on foot in the landfill area. Entry into the exclusion zones is only permitted following approval of the machine operator. Site Supervisors and Managers were trained on their responsibilities under this new Plan and specifically in respect of radio communications and exclusion zone procedures.

Offender’s Case on Sentence

59. The offender relied on the affidavit of Michael Wilson sworn on 30 June 2023. The following is a summary of this affidavit. I will not repeat matters referred to in the Agreed Statement of Facts.

60. Mr Wilson is the Head of Work Health and Safety for Bingo Pty Ltd (Bingo), which is the parent company of the offender (together, the Group). He has been in this position since January 2022. In this role, Mr Wilson manages the Safety Team and supports management and continual improvement of the Group’s health and safety performance.

61. Mr Wilson has a Bachelor of Applied Science and a Masters in Environmental Engineering Science, and has held a number of Work Health and Safety roles in large companies. Mr Wilson is also a Fellow of the Australian Institute of Health and Safety and a Member of the Institute of Occupational Health and Safety.

Background

62. The offender was established in 2005. At the time, the offender was a subsidiary of Dial-A-Dump Industries Pty Ltd (Dial-A-Dump Industries) which was founded in 1984. In 2005, Dial-A-Dump Industries acquired the site. In 2011, the offender commenced waste management operations at the site.

63. On or about March 2019, Bingo acquired the offender and bought the site from Dial-A-Dump Industries. At the time, Bingo undertook extensive due diligence in relation to the offender’s safety system. During the audit, Bingo’s Safety Team formed a favourable view of the risk controls set out in the safety documentation, worker induction, and worker compliance with safety procedures. However, it was also identified that processes of reviewing and auditing safety documentation required improvement.

64. After Bingo acquired the offender, the Safety Team’s strategy was to adopt the offender’s documented safe work procedures at the site, but to have the offender’s employees engaged in Bingo’s overarching Safety and Environmental Quality (SEQ) systems. On 9 May 2019, all individuals in managerial or supervisory positions were inducted on the Bingo SEQ Management System. On 24 May 2019, an induction took place in which the offender’s workers were inducted on Bingo’s SEQ Policy and Procedures. Mr Kurt Wilson and Mr Swain attended this induction.

65. In August 2021, Bingo was acquired by Macquarie Infrastructure and Real Assets Ltd (MIRA). MIRA has significant experience in investing in and operating recycling and waste management businesses globally. The offender continues to be a substantive entity in its own right.

66. The Group employs approximately 1286 employees across 10 sites in NSW, five sites in Queensland and four sites in Victoria. There are around 250 employees at the Eastern Creek site, with approximately 60 employed directly by Dial-A-Dump.

The Group’s work health and safety systems

67. The Group aims to cause “Zero Harm” and be incident-free across all parts of its operations. The following “Zero Harm Rules” apply to all workers across all sites:

1. place and equipment must be fit for use;

2. workers must be inducted and trained;

3. always wear correct PPE;

4. work to rules and conditions;

5. use positive communication;

6. obey exclusion zones;

7. inspect all loads;

8. always lock out, tag out;

9. always protect against falls;

10. always identify and control hazards;

11. always be fit for work; and

12. place people first.

68. These rules are regularly raised in communications to workers, including toolbox talks and email communications. The rules are also displayed at various sites on posters. There is a QR code on these posters which takes workers to a website with further information about the rules, including a four minute video which describes each of the rules and provides examples.

69. The Group has a Zero Harm Committee. The purpose of this Committee is to assist the Board in its oversight of the Company’s health, safety, environment, quality and sustainability commitments. The Committee is responsible for overseeing development of WHS strategy and effective implementation of systems, policies and procedures, ensuring the Group is compliant with its SEQ and sustainability commitments, monitoring performance in relation to SEQ and sustainability. The Committee meets quarterly.

70. Further, Mr Wilson, Amanda McMillan (Chair of the Zero Harm Committee, Non-Executive Director of the Group and Executive Director at MIRA), and Jo Cairns (the Group’s Chief People and Safety Officer) meet monthly for safety review meetings.

71. The Safety Team is responsible for supporting WHS improvements across the business, including at the site, and is comprised of the following members:

1. Mr Wilson;

2. Nirven Pathak (National SEQ Administrator);

3. Arvind Kumar (National Quality and Health Manager);

4. Tom Davison (NSW Safety Manager);

5. Cardin Flaherty (Victoria Safety Manager);

6. Phil Lockington (Queensland Safety Manager);

7. Steve Galinaitis (National Safety Officer – Collections);

8. Keegan Bush (NSW Safety Officer); and

9. Rajeesh Viswanathan (National Critical Risk Manager).

72. The Safety Team audits work processes across the Group, seeks to ensure improvement and training, participates in annual WHS planning activities and review meetings, identifies key areas for safety improvement, undertakes strategic risk review and implements and maintains the Group’s WHS systems.

73. At the site, the following safety processes have been adopted:

1. written procedures and documented systems of work that address identified risks;

2. workers are inducted and trained into the systems of work prior to commencement of work duties;

3. SWMS is reviewed and signed off by workers;

4. there are start of shift safety briefings, which are attended by all workers. During these meetings, the Manager or Supervisor discusses the work area for the shift, identifies relevant hazards and controls and seeks input and questions from workers on the work to be performed during the shift. It also provides the Manager or Supervisor the opportunity to perform an informal pre-work fitness check of the workers;

5. regular toolbox talks which typically occur on a monthly basis. At these talks, safety and operational matters are discussed and the “Zero Harm Rules” are featured;

6. supervision of work by Supervisors and Managers;

7. daily critical control checks on particular plant or activities conducted at the site by a Departmental Manager or their delegate. At the site, there are approximately 190 critical control checks conducted each day;

8. monthly health and safety reviews conducted by a member of the Safety Team;

9. drug and alcohol monitoring; and

10. continuing review and updating of policies.

74. In August 2022, the Group established an Exclusion Zone Task Force to run initiatives to reduce risk of mobile plant interactions with pedestrians. The Task Force identified 27 improvements that could be implemented. As at 30 June 2023, 23 of these improvements have been actioned. The remaining actions are longer-term and continue to be progressed. The Task Force completed its work in April 2023.

75. Bingo has also implemented a Critical Risk Management program called the “Controlled Focused Approach” (CFA Program). The CFA Program was implemented across all of Bingo’s sites through a series of workshops delivered by expert consultants to site employees in 2022. As part of this Program, Control Activity Datasheets were developed for each critical control or set of controls and identify the responsible person for that hazard or control. The final stage of the process involved the introduction of Critical Control Checks.

76. The Group holds the following certifications for all its operations and sites:

1. ISO 90001:2015 Quality Management Systems Requirements;

2. ISO 14001:2015 Environmental Management Systems Requirements; and

3. ISO 45001: 2018 OH&S Management Systems Requirement.

77. In January 2022, the Group secured certification for another three years. The Group’s certifier conducts on-site surveillance audits on a quarterly basis.

78. The Group is also involved in the following industry groups and associations:

1. Australian Council of Recycling;

2. Waste Management & Resource Recovery Association Australia;

3. NSW Government’s Waste Advisory Group;

4. National Road Safety Partnership program;

5. Infrastructure Sustainability Council (Member); and

6. Business Council for Sustainable Development (Member).

WHS Systems on the site as at 27 May 2019

79. In addition to the safety policies and procedures outlined at [35], the offender had the following safety documentation on the date of the incident:

1. SWMS for ‘Dozer Operations – Pushing Material’;

2. SWMS for ‘Ripping Material from Ground’, ‘Stockpiling Material’, ‘Removing Material from Trucks & Trailers’ and ‘Loading Trucks with Grabs’;

3. SWMS for ‘Wheel Loader Operations – Loading Trucks & Bins’, ‘Wheel Loader Operations – Removing Waste from Chute Base and Unloading at Tip Face’, ‘Wheel Loader Operations – Pushing Up Stockpiles’, and ‘Wheel Loader Operations – Covering Contaminated Material’; and

4. ‘Dial-A-Dump Alcohol and Other Drugs – Policy & Procedures.

80. On 27 May 2019, all vehicle operators and ground staff, including supervisors and spotters, had been inducted and trained into their applicable SWMS.

81. Pre-start meetings were conducted each morning, at which Mr Hayes or Mr Molner would discuss the work area for the day and identify any particular hazards or controls. Regular toolbox talks were also conducted, including the following:

1. ‘Pre-Starts’ (9 January 2019);

2. ‘Workplace Behaviour’ (16 January 2019);

3. ‘Gas Cylinders’ (16 January 2019);

4. ‘PPE Requirements Onsite’ (16 January 2019); and

5. ‘Drug and Alcohol Testing Onsite’ (6 May 2019).

Action taken since 27 May 2019

82. The following actions were taken by the Group immediately after the incident:

1. a review of policies and procedures was conducted;

2. interim measures with respect to the role of spotters was implemented and incorporated into an interim Traffic Management Plan;

3. extensive consultation and education, including regarding exclusion zones and positive communication; and

4. engagement of external security experts to provide advice on proposed changes to process on site.

83. Under the interim Traffic Management Plan, the following changes were made:

1. spotters were to use the two-way radio from the Spotter Station at the tip face;

2. personnel working at the tip face were also directed to stay within their vehicles or plant;

3. spotters were directed to work from the Spotters station or, if they were required to be in the landfill area, then they would do so from mobile plant or other vehicles; and

4. if a spotter was required to leave the Spotter Station and go to the tip face, all mobile plant were to be notified by radio to cease activity until the Spotter concluded their work and were notified by radio that the area was all-clear.

84. A toolbox talk was provided to ground staff regarding exclusion zones and positive communication were conducted on 29 May 2019. On 7 June 2019, there was a toolbox talk for review and feedback of the interim system.

Current systems in place at the site

85. The Group implemented the following changes to its systems after the incident:

1. removal of the spotter role in the landfill area;

2. introduction of the ‘Landfill Route and Traffic Controls’ Plan in April 2023;

3. introduction of the ‘Ground Staff’ SWMS in April 2023. All employees required to work on foot have been inducted onto this document, which sets out the hazards and risks and control methods for workers on foot;

4. introduction of ‘Exclusion Zones Procedure in April 2022. This applies to all workers and sets out the pedestrian exclusion zones around each type of vehicle which operates on site;

5. monthly health, safety and environment reviews on site;

6. Council waste is no longer reviewed at the landfill area;

7. a landfill manager’s office which has greater visibility of all operations within the landfill area was built, to increase supervision of operations;

8. customers are now required to use UHF radios to communicate on site;

9. the Group has trialled proximity detection and collision avoidance technologies but is yet to have any success.

86. Representatives from the EPA have expressed concern that the offender cannot adhere to its obligations under its EPA Licence under the new system, specifically the new method of secondary inspections, but formal action is yet to be taken. The position of the Group is that the new method has not reduced the effectiveness of waste inspection outcomes.

Compliance history

87. The offender does not have a prior history of offending other than the current matter. The Group cooperated with SafeWork NSW in its investigations.

Contribution to the community

88. The offender contributes to a number of organisations which seek to support Australia’s move towards a decarbonised and circular economy, including the following:

1. Planet Ark, which helps communities, businesses, governments and individuals to reduce their impact on the planet through positive environmental actions and education. The Group has worked with Planet Ark for over a decade;

2. Australian Circular Economy Hub, a nationally coordinated circular economy platform which seeks to assist the transition to a circular economy;

3. Green Building Council of Australia, a not-for-profit organisation encourages adoption of green building practices. Bingo is a member of the Council;

4. Infrastructure Sustainability Council of Australia, a member-based, not-for-profit body operating in Australia and New Zealand which aims to make infrastructure more sustainable;

5. Waste Contractors and Recyclers Association of NSW, which addresses business issues relating to waste and recycling on behalf of its members;

6. RE100, which is a global initiative by businesses that want to achieve 100% renewable electricity. The Group is a member and is aiming to achieve 100% renewable electricity by 2025.

89. In 2021, the Group and Aboriginal enterprise Yalagan Group, created Djurwa Waste Management, a majority First Nations owned and led recycling and waste management service provider. Djurwa Waste Management is a “profit-for-purpose” enterprise which provides employment, training, development and procurement opportunities for Aboriginal and Torres Strait Islander peoples and businesses.

90. The Group is also involved in a number of charities, including the McGrath Foundation and the Cancer Council. Since 2014, the Group has raised $1.7 million for these charities.

Remorse

91. Mr Wilson expressed remorse on behalf of the Group for exposing its workers to a risk of death or serious injury. The Group also acknowledged that there were steps that it could have taken to prevent exposure of workers to the risk.

Consideration

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

Objective seriousness

93. The risk posed to the spotters by the movement of trucks and mobile plant was obvious and well known to the offender. It had taken steps to control the risks by developing and implementing documented procedures that the relevant workers were adequately trained in. The obligations imposed by its EPA licence, required the offender to conduct secondary inspections of the waste, which to some extent required workers to carefully scrutinise the content of loads dumped at the tip face. The steps taken after the breach indicate that the process could have been made safer through the implementation of further steps.

94. The likelihood of the risk coming home was low to moderate. I note that the systems had been in place for some time prior to the breach date without incident. The CCTV footage demonstrated on the breach date that there were multiple occasions when the spotters were on foot in the vicinity of large trucks and mobile plant, that each had a limited visibility.

95. The consequences of the risk coming home included a risk of death to the spotters, of which there was usually more than one on duty at the tip face.

96. By its plea of guilty, the offender accepts that it failed to develop, implement and enforce a system of work for the landfill area and document a system of work which:

1. limited the use of spotters in and around the tip face while undertaking their work duties by requiring that machine operators primarily performed the secondary visual inspections of the waste in the tip face area from within the cabin of their machine, and that spotters primarily remain in designated Spotter’s Stations in the landfill area whilst directing mobile plant and machinery via radio;

2. prohibited workers from being on foot in and around the tip face when undertaking their work duties whilst mobile plant and machinery were operating in and around the tip face; and

3. required that all mobile plant and machinery in and around the tip face cease operation when workers, including spotters, were on foot in and around the tip face while undertaking their work duties.

97. Each of the steps identified were relatively inexpensive and could have been implemented with minimal inconvenience to the offender. I note that the EPA has expressed concerns as to the efficacy of the secondary inspection system that the offender has implemented after the breach date, to comply with its safety obligations under the Act.

98. I have taken into account the maximum penalty for the offence.

Deterrence

99. The penalty imposed in relation to this 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 Ltd v Nash [2016] NSWCCA 37 at [180].

100. There is a need for specific deterrence. The offender continues to conduct a business that involves significant risks to workers. However, its excellent safety record combined with the steps it has taken in response to the incident, reduce the need for specific deterrence.

Aggravating factors

101. There are no relevant aggravating factors.

Mitigating factors

102. The offender did not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been operating in Australia for a considerable period and at the site from 2011, without incident.

103. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by reference to the steps it took in response to the incident, that it has good prospects of rehabilitation.

104. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Wilson, on behalf of the offender, accepted responsibility for its actions and expressed remorse for its failings.

105. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The case was listed for a two week hearing to commence on 19 June 2023. The plea was formally entered on that day. The parties had been in discussions and the offender indicated that it would enter a plea in about March 2023. There have been significant changes to the particulars of the charge. Whilst the plea was late, there was still considerable utility in it. The appropriate discount is 15%.

106. The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Penalty

107. Dial-A-Dump (EC) Pty Ltd is convicted.

108. The appropriate fine is one of $300,000 which will be reduced by 15% to reflect the plea of guilty.

109. I impose a fine of $255,000.

110. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

111. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 18 July 2023