SafeWork NSW v Fumigate All Hours (NSW) Pty Ltd

[2021] NSWDC 694

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Fumigate All Hours (NSW) Pty Ltd [2021] NSWDC 694

Hearing dates:

10 December 2021

Decision date:

17 December 2021

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Fumigate All Hours Pty Ltd is convicted.

2 I impose a fine of $75,000.

3 The offender is to pay the prosecutor’s costs of the proceedings as agreed in the sum of $65,000.

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 – worker injured

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

Fines Act 1996

Work Health and Safety Act 2011

Work Health and Safety Regulations 2017

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37R v Youkhana [2004] NSWCCA 412

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

Texts Cited:

AS/NZS 1716:2012: Respiratory Protective Devices” (published 13 February 2012)

Australian/New Zealand Standards 1715:2009: Selection, Use and Maintenance of Respiratory Protective Equipment” (published 6 February 2009)

SafeWork Australia Information Sheet: Managing Risks of Hazardous Chemical Exposure When Unpacking Shipping Containers” (published 19 February 2016)

SafeWork Australia: Managing Risks of Hazardous Chemicals in the Workplace” (published July 2012)

The AFAS MB Fumigation Standard (published August 2015),

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Fumigate All Hours (NSW) Pty Ltd (Defendant)

Representation:

Counsel:
P McEniery (Prosecutor)
P Barry (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Kingston Reid (Defendant)

File Number(s):

2020/151666

Publication restriction:

None

Judgment

Introduction

1. Fumigate All Hours Pty Ltd (the offender) appears for sentence after it pleaded guilty to an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) 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 Tristan Case to a risk of death or serious injury.

Facts

2. The parties tendered an Agreed Statement of Facts which can be summarised as follows.

Background

3. The offender is an accredited fumigation company contracted to the Australian Quarantine Inspection Service (AQIS) to fumigate shipping containers and loose cargo on third party sites.

4. Between about 27 November 2017 and 17 May 2018 (the relevant period), Fumigate employed Mr Case as a trainee fumigator. Mr Case was 20 years of age at that time.

5. Mr Case had the following qualifications:

1. A Statement of Attainment issued by Protrain Training & Consulting Services dated 7 May 2018, attesting that he had fulfilled the requirements of courses CPPPMT3006 and CPPPMT3011; and

2. A Statement of Accreditation issued by Fumigation Training & Consulting Services dated May 2018, attesting that he had demonstrated competency as against the requirements of the Australian Fumigation Accreditation Scheme Methyl Bromide Fumigation Standard (AFAS MB Fumigation Standard).

Methyl bromide

6. Methyl bromide (MB) is a colourless, odourless, non-flammable, neurotoxic gas and a fast-acting fumigant. It is classified as a hazardous chemical under the Work Health and Safety Regulations 2017.

7. MB is used as a fumigant to prevent unwanted pests, such as insects and rodents, from being imported into Australia. It was used by Fumigate as a fast-acting fumigant including for quarantine and pre-shipment treatment of imported and exported goods.

8. Depending on exposure levels, MB can cause headaches, dizziness, vomiting, nausea, tremors, slurred speech and irritation to the eyes, respiratory system, and skin. Exposure to high concentrations of MB can cause pulmonary oedema (fluid in the lungs) or death.

9. The effects of exposure to MB can be delayed from 48 hours to several months after initial exposure, meaning that workers may not realise that they have been harmfully exposed to MB because it is colourless and odourless and the onset of symptoms is delayed.

Fumigation process adopted by Fumigate

10. Fumigate, as a contractor of AQIS, was contractually obliged to comply with the AFAS MB Fumigation Standard that was in force from time to time.

11. During the relevant period, Fumigate used MB as a fumigant for shipping containers and loose cargo at approximately 18 client sites. MB was the only fumigant used by Fumigate during this period.

12. The fumigation process used by Fumigate for a shipping container involved the release of MB in gaseous form into a shipping container by inserting a tube into the container. The container is then leak tested.

13. After 24 hours the container is degassed by opening the container door slightly and checking the concentration of MB.

14. During the fumigation process, the designated fumigation exclusion zone is isolated with bunting and signposted to warn that MB is being used. The boundary of the fumigation area is checked at the beginning and end of the fumigation and degassing process using a photoionisation detector that measures MB levels.

15. Fumigate’s system of work for gassing and degassing shipping containers during the relevant period dealt specifically with respiratory protection for workers. Fumigate’s Standard Work Procedure (SWP) required that workers wear gas masks as required by the regulator at all times whilst on job sites.

16. The wearing of personal protective equipment (PPE) was specifically addressed in Mr Case’s induction on 15 November 2017.

17. Fumigate’s Safety Checklist, which was to be completed in respect of individual jobs, also directed its users to ensure that their masks were fitted correctly prior to undertaking the relevant tasks. However, this Checklist was not completed by the offender during the relevant period.

Training of Mr Case

18. Prior to becoming a full time, permanent trainee fumigator on 27 November 2017, Mr Case worked as a labourer for Fumigate for a number of months.

19. Mr Case was provided with an induction by Lance Mladenovic and Fares Youssef (Senior Fumigators) on or about 17 November 2017. That induction covered issues such as exclusion zones, how to use gassing equipment and set up the container, and the Safety Data Sheet for MB. Mr Case was also provided with training on how to fit and wear a respirator/mask.

20. Mr Case was provided with ongoing training from Messrs Mladenovic and Youssef whenever he worked with them at various sites.

21. On 7 May 2018 Mr Case received a Certificate III in Urban Pest Management (CPP30115).

22. In May 2018 Mr Case received a Statement of Accreditation from the Department of Agriculture and Water Resources (a predecessor to the Department of Agriculture, Water and the Environment ) for demonstrating competency against the requirements of the AFAS MB Fumigation Standard. That course included how to fit a charcoal fitter to a mask and the importance of the wind and weather conditions when conducting fumigation.

23. The AFAS MB Fumigation Standard provided that:

1. The fumigation enclosure and surrounding area must be made safe for personnel and that personnel not wearing a respirator must not be permitted to enter the “risk area’’ surrounding the relevant fumigation enclosure; and

2. Full-face respirators or self-contained breathing apparatuses must be worn when releasing fumigant and whilst working within the risk area after the fumigant has been released.

Supervision of Mr Case

24. During his time as a trainee fumigator for the offender, Mr Case performed both the gassing and degassing of shipping containers.

25. In this period:

1. Mr Case was supervised by Messrs Mladenovic and Youssef from time to time;

2. Fumigate estimated that Mr Case spent 2 to 3 hours per day, 5 to 6 days per week inside a fumigation exclusion zone (depending on how many days Mr Case worked in a given week and the tasks that he was required to undertake);

3. Mr Case stated that he did not wear a respirator at all times whilst conducting fumigation of shipping containers and degassing of shipping containers;

4. Mr Case had a beard at times and was usually not clean shaven;

5. Fumigate and Protrain provided Mr Case with on-the-job training and instruction on fit-testing gas masks, although Mr Case was not issued with a specific written instruction by Fumigate that he must be clean shaven at all times when wearing a respirator;

6. Mr Mladenovic and/or Mr Youssef were not always physically present when Mr Case undertook the gassing of shipping containers;

7. The tasks performed by Mr Case were not documented by either Mr Case, his supervisors or Fumigate; and

8. The only records held by Fumigate documenting work performed by Mr Case during the relevant period are four Quarantine Fumigation Records for the dates 9 January 2018, 10 February 2018, 1 March 2018 and 3 April 2018 and a summary of client sites visited. None of those documents recorded the work performed by Mr Case or who was supervising him whilst that work was being performed.

Blood testing of Mr Youssef

26. Mr Youssef underwent a blood test on 7 March 2018. On 27 March 2018 the blood test results confirmed that the MB level in Mr Youssef’s blood was more than twice the advisory guideline level.

Notification of Mr Case’s ill health to Fumigate

27. In or about late March 2018 Mr Case advised both his supervisors Mr Mladenovic and Mr Youssef about numbness in his feet. No formal report of his health concerns was recorded.

28. On 9 April 2018 Mr Case notified Allison Skuthorpe, the Managing Director of Fumigate, that his feet had been numb for a couple of weeks.

29. Blood tests conducted by Mr Case’s general practitioner at that time recorded high levels of potassium. No tests for MB levels were conducted at that time.

30. Fumigate did not arrange for Mr Case’s blood to be tested for MB by a registered medical practitioner at any time during his employment.

Hospitalisation and illness of Mr Case

31. On 17 May 2018 Mr Case began to experience loss of vision. He was driven home from work by Mr Youssef.

32. On 21 May 2018 Mr Case was admitted to the Prince of Wales Hospital with a history of bilateral foot tingling, with subsequent weak knees, bilateral visual loss, central nervous system toxicity, peripheral neuropathy and other issues.

33. On 23 May 2018, whilst testing was not completed, Mr Case’s treating medical practitioners were suspicious that he had secondary chronic occupational exposure to MB and he was treated accordingly.

34. On 23 May 2018 SafeWork NSW was notified by NSW Health of Mr Case’s potential chronic occupational exposure to MB.

35. On 28 May 2018 the MB levels in Mr Case’s blood were three times the upper normal limit. As a result of this diagnosis, Mr Case received renal dialysis in an attempt to hasten the removal of MB from his blood.

36. On 28 May 2018 Mr Case was diagnosed with MB poisoning (chronic occupational exposure) causing central nervous system toxicity.

Guidance materials

37. Guidance materials on the use of and exposure to MB were available in the public domain.

38. These guidance materials included:

1. The AFAS MB Fumigation Standard (published August 2015), which was to be applied in the offender’s work for AQIS;

2. “SafeWork Australia Information Sheet: Managing Risks of Hazardous Chemical Exposure When Unpacking Shipping Containers” (published 19 February 2016). This Sheet provides guidance for workers and supervisors on managing risks of exposure to hazardous chemicals when unpacking shipping containers, and states that some hazardous chemicals like MB are also suspected of causing genetic defects, while others are known or suspected carcinogens;

3. “SafeWork Australia: Managing Risks of Hazardous Chemicals in the Workplace” (published July 2012). This Code of Practice provides practical guidance on how to manage health and safety risks associated with hazardous chemicals for persons conducting a business or undertaking who use chemicals in their workplace;

4. “Australian/New Zealand Standards 1715:2009: Selection, Use and Maintenance of Respiratory Protective Equipment” (published 6 February 2009) (AS/NZS 1715:2009). AS/NZS 1715:2009 offers information to employers and users on different types of respiratory protective equipment (RPE), how to select the right type of RPE for the job and how to correctly maintain it. AS/NZS 1715:2009 sets out requirements and guidelines for respiratory protection and includes a discussion of respiratory hazards, the assessment of associated risks and various methods of control including the use of RPE in the workplace. Specifically, Section 8 of AS/NZS 1715:2009 deals with typical RPE fit-tests and checks and provides, in summary, that:

Section 8.3 - individuals who have stubble/beard should not wear a respirator which requires a facial seal; and

Section 8.5.5 - fit checks - negative pressure check etc should be used only as a very gross determination of fit.

5. “AS/NZS 1716:2012: Respiratory Protective Devices” (published 13 February 2012), which provides that in order for a respirator to offer the maximum desired protection, it is essential that there is a correct facial fit – that is, a tight seal between the respirator and the wearer’s face.

Improvement Notices

39. SafeWork NSW issued a number of Improvement Notices during the course of its investigation of Fumigate. These Notices were subsequently complied with.

Offender’s Case on Sentence

40. The offender relied on an affidavit affirmed by Allison Skuthorpe on 26 November 2021. The content of Ms Skuthorpe’s affidavit can be summarised as follows. I will not repeat matters I have already referred to.

41. Ms Skuthorpe was the Managing Director of the offender and had occupied this position since June 2014.

Background

42. The offender is a family business founded by Ms Skuthorpe’s mother in June 2001. As at November 2021, the offender had four full-time employees and one part-time administrative assistant.

43. The offender provides fumigation services to the shipping container industry.

The offender’s approach to safety

Requiring fumigators to wear respirators when conducting fumigation work

44. The offender procured training for its workers on the proper use of respirators when conducting fumigation work. Mr Case received this training and obtained the following Statements of Attainment prior to his diagnosis:

1. CPPPMT3006 (“Manage Pests by Applying Pesticides”); and

2. CPPPMT3011 (“Manage Organisms by Applying Fumigants to Commodities and Environments”).

45. In order to obtain those Statements of Attainment, Mr Case had to demonstrate competence against the knowledge and performance requirements of the courses. That included competence in selecting, employing and fit-testing appropriate PPE for fumigation tasks and knowledge of RPE used when applying fumigants.

46. Mr Case also held a Statement of Accreditation issued by Protrain Training & Consulting Services for demonstrated competence against the requirements of the AFAS MB Fumigation Standard. Clause 4.5.2 of that Standard provides that full-face respirators must be worn when releasing fumigant and when working within the risk area after the fumigant has been released. Mr Case’s supervisors were also accredited against that Standard.

47. Ms Skuthorpe provided Mr Case’s induction training on 15 November 2017. During that induction training, Ms Skuthorpe conveyed to Mr Case that he needed to wear PPE including a mask when conducting fumigation work and needed to conduct a safety check to ensure that the mask was fitted correctly.

48. Following Mr Case’s diagnosis, the offender now enforces the requirement that its fumigators use respirators when conducting fumigation work that involves the use of MB by:

1. conducting unannounced spot checks;

2. ensuring that all employees who undertake fumigation work are appropriately licenced and trained;

3. conducting toolbox talks and issuing reminders about the importance of wearing masks and being clean shaven;

4. enforcing disciplinary procedures against any employees who are found to have breached the requirement; and

5. directing staff to review and be familiar with the procedures relating to the use of respirators and proper fit-testing developed by the Department of Agriculture, Water and the Environment.

Requiring fumigators to undergo regular blood testing

49. Prior to Mr Case’s diagnosis, the offender paid for its fumigators to undergo blood testing to monitor levels of MB in their blood. Following Mr Case’s diagnosis, the offender has required its fumigators to undergo blood testing at least once per year.

50. The offender also pays for its fumigators to undergo blood testing at more frequent intervals where a worker wishes to do so and has disciplinary procedures in place for fumigators who refuse to undergo blood testing.

51. Results from blood tests undertaken by certain fumigators employed by the offender in recent years were all within the normal range and did not reveal any elevated levels of MB in their blood.

Requiring fumigators to be clean shaven and to wear a respirator

52. As part of his employment with the offender and prior to his diagnosis, Mr Case had received training on the importance of wearing gas masks when undertaking fumigation activities and ways of fit-testing gas masks.

53. Ms Skuthorpe was present when Mr Case was undertaking training for course CPPPMT3006 and estimated that the trainer spent approximately half a day explaining the importance of PPE and ways of fit-testing PPE.

54. Prior to Mr Case’s diagnosis, the offender did not have a safe work procedure that specifically stated in writing that its fumigators needed to be clean shaven.

55. Following Mr Case’s diagnosis, the offender specifically introduced this requirement in its Safe Operating Procedure for Fumigation Using Methyl Bromide.

56. The offender’s SWP dated 24 September 2018 also contained a requirement that fumigators wear gas masks.

57. The offender’s Health and Safety Manual and Health and Safety Handbook each dated 8 June 2018 also require workers to use PPE. All staff are required to sign a declaration stating that they have read and understood the Health and Safety Handbook.

58. The relevant Safe Work Procedure and the Health and Safety Handbook were developed by external consultants that were engaged by the offender following Mr Case’s diagnosis.

59. Since Mr Case’s diagnosis, Ms Skuthorpe has also sought to reinforce and remind staff of the requirements that fumigators be clean shaven and wear a respirator by holding teleconferences and toolbox talks, sending out SMS alerts, through observations by the offender’s Fumigation Manager, and by conducting unannounced spot checks at fumigation sites.

Ensuring that a record is kept of trainee fumigator’s details

60. Prior to Mr Case’s diagnosis, the offender did not have a system in place for recording the personal details of trainee fumigators and the specifics of the fumigation activities undertaken by them in the course of their employment.

61. Since Mr Case’s diagnosis, the offender has maintained records of these matters, which are electronically generated and entered into the “BIERS” (Biosecurity Import/Export Reporting System) application. Amongst other things, the information recorded in this application includes: the name and address of sites where fumigators are carrying out fumigation work; the dates and times at which fumigation work is undertaken; a brief description of the fumigation work; and the supervisor(s) responsible for the trainee fumigator.

62. The offender now also uses the “Life360” application, which is another location identification tool for workers.

Other matters

Prospects of re-offending

63. Ms Skuthorpe deposed that the prospects of re-offending were low, especially given the systemic safety-related changes introduced by the offender following Mr Case’s diagnosis.

Corporate citizenship

64. Ms Skuthorpe deposed that the offender was consistent and committed in its financial donations to community organisations and provided a table outlining donations made by the offender between 25 May 2018 and 22 November 2021 to organisations such as The Cancer Council, The Salvation Army, Everyday Hero, The World Wide Fund for Nature, the NSW Rural Fire Service and a number of schools and children’s foundations. These donations totalled $8,049.48.

Support for Mr Case

65. Following Mr Case’s admission to hospital, Ms Skuthorpe contacted Mr Case and his family to check on his wellbeing.

Co-operation with SafeWork NSW

66. The offender co-operated with SafeWork NSW throughout the course of its investigation by providing information, documents and interviews.

Timing of plea

67. The offender pleaded guilty at the first available opportunity after it had made all appropriate submissions to the prosecutor and reached agreement on the Statement of Facts to be tendered.

Remorse and contrition

68. Ms Skuthorpe apologised on behalf of the offender and expressed her deep regret and remorse in relation to the injuries that Mr Case sustained.

Consideration

69. 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

70. The offence is one of some objective gravity.

71. The risk posed by the use of MB to its workers was well known to the offender. The offender had put in place systems to deal with the risk.

72. The likelihood of the risk materialising was high if adequate precautions were not taken.

73. The potential consequences of the risk materialising included a risk of death.

74. The offender accepted by its plea of guilty that it failed to enforce the wearing of masks, failed to provide regular monitoring of workers’ health and failed to adequately train Mr Case. In the circumstances, these steps were inexpensive and easy to implement.

75. Mr Case was vulnerable because he was an inexperienced worker with inadequate training who was regularly exposed to a particularly hazardous substance.

76. The injuries sustained by Mr Case were significant and caused him considerable disability and concern.

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

Deterrence

78. 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].

79. The penalty imposed must also provide for specific deterrence. The offender continues to operate a business that poses a significant risk of harm to its workers, from its use of hazardous substances. However, that must be tempered by reference to the offender’s safety system that it had in place prior to the incident and the steps it has subsequently taken to improve that system, together with its prior good record.

Aggravating Factors

80. The injury, harm and loss caused by the s 32 offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the injuries sustained by Mr Case are sufficient to establish the aggravating factor.

Mitigating Factors

81. The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been in operation for 20 years.

82. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated this through its commitment to improving its safety systems since the incident.

83. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Ms Skuthorpe, on behalf of the offender, accepted responsibility for its contravention of the Act and has expressed remorse. I am satisfied that the offender has expressed genuine remorse and contrition.

84. 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 appropriate discount is 25%.

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

86. The offender has shown itself to be a good corporate citizen through its support of charitable causes.

Other matters

87. I have also taken into account the relative size of the offender’s business and the amount of the prosecutor’s costs it is required to pay.

Penalty

88. Fumigate All Hours Pty Ltd is convicted.

89. I have taken into account the Victim Impact Statement of Mr Case. The impact on him was physical and emotional and resulted in him changing jobs.

90. The appropriate fine is one of $100,000 that will be reduced by 25% to give effect to the plea of guilty.

91. I impose a fine of $75,000.

92. The offender is to pay the prosecutor’s costs of the proceedings as agreed in the sum of $65,000.

93. 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: 17 December 2021