SafeWork NSW v Jungheinrich Australia Pty Ltd

[2025] NSWDC 85

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Jungheinrich Australia Pty Ltd [2025] NSWDC 85

Hearing dates:

18 March 2025

Date of orders:

26 March 2025

Decision date:

26 March 2025

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Jungheinrich Australia Pty Ltd is convicted.

(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Jungheinrich Australia Pty Ltd to pay a fine of $150,000.

(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 pursuant to Section 238 of the Work Health and Safety Act 2011 (NSW):

(a)   Within eight months of the date of these Orders, Jungheinrich Australia Pty Ltd is to fund, to a limit of $30,000, the development and production of a de-identified educative animated video (the project) by a suitable external provider that addresses, but is not necessarily limited to:

(i)   the risk to which the worker was exposed on the material date;

(ii)   the importance of service technicians ensuring forklifts are returned to service with all safety switches, sensors and systems operational;

(iii)   other guidance material applicable to maintenance and inspections of forklifts, as deemed appropriate by SafeWork NSW;

(b)   The management of the project and the provider will be undertaken by SafeWork NSW;

(c)   The content of the project and the provider of the project are to be approved by SafeWork NSW;

(d)   The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW;

(e)   The video is to bear the logo of SafeWork NSW and the Waratah Emblem of the State of New South Wales;

(f)   Jungheinrich Australia Pty Ltd is to notify the Prosecutor, and the Registrar of the NSW District Court at the Downing Centre of any change of address for service;

(6)   In addition to order (5)(a), Jungheinrich Australia Pty Ltd will also bear the reasonable cost to a limit of $3,500.00 for the development and implementation of any promotional strategy.

(7)   Order Jungheinrich Australia Pty Ltd to pay the prosecutor’s costs.

Catchwords:

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

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

COSTS – prosecution costs

OTHER – forklift servicing and maintenance – forklift fitted with a device bypassing seat safety system – gear lever able to be engaged without driver being seated in driver’s seat – hydraulic functions able to be operated without driver being seated in driver’s seat – risk of being hit or struck or crushed or otherwise come into contact with a driverless forklift

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

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 Code of Practice, Managing the risks of plant in the workplace, August 2019

Safe Work Australia, Forklifts: Information Sheet for Owners and Operators, July 2014

Safe Work Australia, General Guide for Industrial Lift Trucks, July 2014

SafeWork NSW, Forklift Truck Safety Information Sheet, undated

SafeWork NSW, Forklift Safety Starts with You: Guide for Forklift Operators, undated

Australian Standard AS 2359.1:2019 – Powered industrial trucks – Part 1: General Requirements, 28 August 2019

Category:

Sentence

Parties:

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

Representation:

Counsel:
D Jordan (Prosecutor)
B Hodgkinson Sc with M Shume (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Clayton Utz (Defendant)

File Number(s):

2023/432563

JUDGMENT

Introduction

1. Jungheinrich Australia Pty Ltd (Jungheinrich Australia) was engaged in the repair, service and maintenance of forklifts used by Prysmian Australia Pty Ltd (Prysmian). On 2 December 2021 a forklift was used that had been fitted with a device which had the effect of bypassing the forklift’s seat safety system. The bypass allowed the forklift to be operated without a driver being seated in the driver’s seat.

2. Jungheinrich Australia has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(2) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed persons to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,782,579.

The Risk

4. The risk described in par 15 of Annexure A to the Further Amended Summons is as follows:

“The risk was the risk of other persons suffering serious injury or death as a result of being hit or struck or crushed or otherwise coming in contact with a driverless forklift.”

Reasonably Practicable Measures

5. Paragraph 16 of Annexure A to the Further Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) [sic] of the WHS Act. I will read the reference to s 19(1) as a reference to s 19(2), which is clearly the foundation of the charge. The particulars are:

“JAPL [Jungheinrich Australia] failed to ensure so far as is reasonably practicable the health and safety of other persons in that it failed to take one or more of the following reasonably practicable measures to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk:

(a) Removing the bypasses from forklifts following completion of servicing, maintenance or repairs prior to returning the forklifts to service;

(b) Developing, implementing and enforcing a system of work and/or procedures to ensure that the seat safety system was operational following completion of servicing, maintenance or repairs prior to returning the forklifts to service.”

Background

6. The parties presented an Agreed Statement of Facts (PX1 Tab 2) which is summarised below.

7. Prysmian conducted a business or undertaking at 1 Heathcote Road, Liverpool (the site) that involved the design, manufacturing and supplying of cables to energy, telecom and industrial industries in Australia.

8. Jungheinrich Australia conducted a business or undertaking that involved the provision of repair, servicing and maintenance services of forklifts.

9. Jungheinrich Fleet Services Pty Ltd (Jungheinrich Fleet Services) and Jungheinrich Australia were wholly owned subsidiaries of an Australian parent company, Jungheinrich Australia Holdings Pty Ltd.

Hire Agreement between Prysmian and Jungheinrich Fleet Services

10. On 20 July 2016, Prysmian entered into a Long Term Hire Agreement (the Agreement) with NTP Fleet Management Pty Ltd (NTP) for the lease of equipment at the site.

11. Following the acquisition of NTP by Jungheinrich Fleet Services, the Agreement remained in effect between Jungheinrich Fleet Services and Prysmian.

12. The conditions of the Agreement included:

1. An agreed hire term of 60 months of various equipment listed in Schedule A, including four Manitou Model MI70-G forklifts (Manitou forklifts), to Prysmian for a monthly hire fee of $50,426.67 and a default daily rate of $2,347.56.

2. A requirement that Prysmian carry out daily maintenance checks on the equipment and immediately advise Jungheinrich Fleet Services of any equipment requiring repair or servicing to maintain it in good operating condition.

3. A requirement that Prysmian check the condition and proper operation of equipment in accordance with the User Instructions at least once a day.

4. Prysmian was required to notify Jungheinrich Fleet Services immediately if equipment did not operate or ceased to operate properly or was otherwise defective.

5. Jungheinrich Fleet Services had an obligation to carry out adjustments, maintenance, repairs and replacements of equipment as was reasonably necessary as a result of fair wear and tear during ordinary use of the equipment in accordance with the manufacturer's instructions.

13. Jungheinrich Fleet Services allocated responsibility for repair, servicing and maintenance of the Prysmian forklifts to Jungheinrich Australia.

14. Jungheinrich Australia employed technicians on a full-time basis to provide repair, service and maintenance to Prysmian at the site.

Forklift work undertaken by Final Test Operators

15. At all material times, Prysmian employed Final Test Operators at the site.

16. Final Test Operators had three designated roles:

1. Forklift operator.

2. Testing low voltage cables.

3. Testing medium voltage cables.

17. These roles were rotated on a weekly basis among Final Test Operators so that each Final Test Operator was assigned one of the three roles for a particular week.

18. When conducting work as a forklift operator, Final Test Operators used forklifts to load cable drums from an area known as the Factory 8 Test Kanban Area (test area) and transport them to the required test cage.

19. Each cable drum had a paper journey card attached which included information about the cable, how the cable is manufactured and constructed, the standard of testing required, and whether the cable is low or medium voltage. The journey card was rolled and placed in the hole in the drum or was sometimes stapled to it.

20. In order to ascertain the test cage to which a cable drum was to be transported, and prior to collecting it using a forklift, Final Test Operators were required to alight from their forklift and walk to the cable drum in order to read the information on the journey card. Low voltage cable drums were to be moved to Cage B while medium voltage cable drums were to be placed in Cage A in the test area. The cable drum was then transported to the relevant test cage using a forklift.

21. The cables were then tested in accordance with the requirements on the journey card. Upon completion of cable testing the drum was then transported with the use of a forklift to the dispatch warehouse for delivery to the customer.

The incident

22. On 2 December 2021, a forklift operator was using a 7-tonne Manitou forklift (Serial Number 871188, Model MI70-G) (the Forklift) to carry out this task.

Seat safety system on the Manitou forklifts

23. At the time of delivery, the Forklift was fitted with a seat switch (seat safety system) which was used to determine the presence and seating of the driver inside the cab. The seat safety system included the following safety functions (the safety functions):

1. The seat switch was activated if the driver was present and seated in a normal driving position.

2. Once the seat switch was activated, the system would allow the forklift to be turned on and the hydraulic movements of the forklift to operate.

24. During the investigation, a modification to the seat safety system was identified on the Forklift. A bypass plug (also known as a special service tool or SST) was fitted to the seat safety system. This had the effect of preventing the seat safety system from functioning as intended.

25. The bypass was intended to be used only by Jungheinrich Australia technicians to bypass the seat safety system on the Manitou forklifts for the purpose of undertaking repairs, maintenance and/or servicing, where it was necessary for them to run the engine with the engine cover raised or without them sitting on the seat. The designed use of the bypass did not include standard forklift operations such as those being engaged in by Final Test Operators on 2 December 2023.

26. Following the incident, Prysmian undertook inspections of the three other Manitou forklifts not involved in the incident and found that bypasses were fitted on all three forklifts.

Known use of bypasses at the site

27. On 2 May 2019, Prysmian’s Occupational Heath Safety and Environment Committee held a meeting. Mr Jamie Dipietro, a machine operator employed by Prysmian, raised an issue with a forklift in Factory 5. The forklift was suddenly stopping and the operator had to bypass the system to get it working. Sometime between 2 and 9 May 2019 this issue was communicated by Mr Rodney Kingston, a Prysmian Site Services Manager, to Mr Don Mackay, a Jungheinrich Australia technician at the site.

28. On 9 May 2019, Mr Mackay sent an email to Mr Kingston in which he said:

“Thank you for bringing to our attention your concerns regarding the above machine. Our understanding of the critical safety issue is as follows:

Some machine operators are using a supplied special service tool (SST) to bypass the seatbelt lock out safety system BUT leaving it in place which we agree is not acceptable.

In certain situations the use of this SST is temporarily necessary. For example if machine engine fuel system floods when attempting to start, the bonnet with seat attached needs to be lifted to access engine to perform a flooded start technique. To enable this, the use of this SST is ideal, but once machine has been started the SST needs to be removed.

As you may be aware the Manitou 7tonne machines have a slightly different starting technique than most of the other machines onsite at Prysmian. However on inspection of this particular machine we found an underlying issue causing a regular engine misfire/stall situation. This has probably increased the frequency for the need of the SST.

On this occasion we believe we have rectified the cause of the engine misfire and therefore addressed the safety issue by decreasing the need for SST use. We have also begun to inspect other machines of the same model and conduct similar repairs as necessary.”

(emphasis added)

29. Jungheinrich Australia employees were aware of bypasses being used to bypass the seatbelt lock out safety system and those bypasses being left in place post-servicing.

30. Mr Kingston subsequently advised other Prysmian employees of Mr Mackay's email at the next site management meeting.

31. No further action was undertaken by Prysmian or Jungheinrich Australia to ensure that the bypasses were removed from forklifts and the seat safety system was operational prior to them being returned to service.

32. From as early as January 2020, bypasses continued to be left in the forklifts by Jungheinrich Australia technicians. Training was provided by Jungheinrich Australia to its technicians with respect to the requirement to remove the bypass following the completion of repairs, maintenance or service of the forklifts and prior to returning them to service, however technicians interviewed by SafeWork were not able to recall receiving any instructions to this effect.

Guidance materials

33. At the time of and prior to the incident, the SafeWork NSW Code of Practice: Managing the Risks of Plant in the Workplace dated August 2019 (PX1 Tab 8) was published and publicly available. The Code provided, among other things:

“1.1 What is ‘plant’?

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

- being crushed by mobile plant

2.1 Identifying the hazards

Typical hazards found in managing risks of plant in the workplace can include:

Traffic movements in the workplace. For example, vehicles including powered mobile plant moving in and around a workplace, reversing, loading and unloading are frequently linked with death and injuries to workers and members of the public

Review safety information

Information about hazards, risks and control measures relating to plant in your workplace can be obtained from:

- manufacturers, importers or suppliers of the plant

- maintenance technicians or specialists, for example engineers

- your workers

- regulators, unions and other organisations

- businesses or undertakings similar to your own, and

- Australian, International or other technical standards.

Workers who operate plant should be competent or suitably supervised during training so they do not put themselves or others at risk. It is important to retain all operating manuals and instructional material provided by the manufacturer in order to correctly operate and maintain the plant once it is in the workplace.

3.5 Inspecting plant

The maintenance, inspection and testing must be carried out:

- in accordance with the manufacturer's recommendations, if any

- if there are no manufacturer's recommendations, in accordance with the recommendations of a competent person, or

- in relation to inspection, if it is not reasonably practicable to comply with the above, annually.

Plant inspection should be conducted in accordance with a regular maintenance system to identify:

- potential problems not anticipated during plant design or task analysis

- deficiencies in plant or the equipment associated with use of the plant, for example wear and tear, corrosion and damaged plant parts

- adverse effects of changes in processes or materials associated with plant, and

- inadequacies in control measures that have been previously implemented.

Inspecting associated work processes should be conducted regularly to identify:

- unsafe work practices associated with the use of plant

- negative effects of changes in processes or materials associated with plant, and

- inadequacies in control measures that have been previously implemented.

Control measures implemented, for example guards and warning devices, must be regularly inspected and tested to ensure they remain effective.

You should keep an up-to-date register of the items of plant requiring regular inspection and maintenance. It should include information on:

- allocated responsibilities for people dealing with inspections

- standards against which plant should be inspected

- the frequency of inspections

- critical safety instructions to be followed during inspection. For example, the isolation procedure

- the procedures for particular types of inspections including:

- periodic inspections

- specific tests, and

- repaired or modified plant, and

- variations from normal operation or dangerous occurrences and trends that may be occurring.”

34. At the time of and prior to the incident, the Forklifts: Information Sheet For Owners and Operators (Safe Work Australia, July 2014) (Forklifts Information Sheet) (PX1 Tab 9) was published and publicly available. The Forklifts Information Sheet relevantly provided:

“Using seatbelts

Seatbelts and other restraint systems should be used when they are provided unless a risk assessment indicates it is not safe to do so and other risk controls are implemented. Seatbelts keep you in the cab during a tip over and prevent you from being thrown from your seat. Manufacturers' operating manuals include a warning to use seatbelts. You must be trained in the manual's instructions, warnings and precautions for restraint system use.”

35. At the time of and prior to the incident, the General Guide for Industrial Lift Trucks (Safe Work Australia, July 2014) (General Guide) (PX1 Tab 10) was also published and publicly available. The General Guide provided, among other things:

“If you hire or lease an industrial lift truck, you have management or control of that plant for the period you have hired it. Both you and the person you have hired or leased it from will have duties to eliminate or minimise the risks associated with the plant, so far as is reasonably practicable.

USING INDUSTRIAL LIFT TRUCKS

When using industrial lift trucks in the workplace you should:

- ensure the industrial lift truck is suitable for the work to be done and is in a safe condition

- check if work areas are designed, established and maintained for safe operation

- complete pre-start safety checks, and

- prepare and follow safe work procedures for operation, shut down and maintenance.

Information, training, instruction and supervision

Operators should have easy access to the manufacturer's instructions to operate industrial lift trucks safely. Specific training on how to operate industrial lift trucks should be provided by a competent person. The training should cover:

- information on the industrial lift trucks used including:

- position, function and operating sequence of controls and instruments including seat adjustment controls

- safety features e.g. guarding, emergency stop controls and warning devices

- procedures for reporting faults, unsafe practices, damage, incidents or near misses

- inspection, maintenance and repair responsibilities...

Out-of-service procedures

If an industrial lift truck is found to be unsafe for normal use, out-of-service procedures should be followed. These include:

- the operator reporting the matter to an appropriate person straight after an unserviceable condition is identified.

- identifying and isolating the industrial lift truck as being out-of-service, and

- making sure an out-of-service industrial lift truck is not operated until it is made safe by a competent person and the out-of-service identification is removed.

Where an industrial lift truck is damaged, a competent person should inspect and assess:

- the nature and cause of the damage

- whether the industrial lift truck can be safely used in its damaged condition-if not follow the out-of-service procedures, and

- whether or not the industrial lift truck can be repaired and if so, what repairs must be done to make it safe to operate.

A copy of this assessment should be included in the inspection and maintenance records.”

36. At the time of and prior to the incident, SafeWork NSW had published and made publicly available the following guidance material:

1. Forklift Truck Safety Information Sheet (PX1 Tab 11) which provided, among other things:

“Forklift Driver's Seat

- Must be replaced when it is damaged

- Seat belt must be worn at ALL times

- Consider fitting an interlock switch to the seat belt to prevent operation of the forklift when the seat belt is not worn.”

2. Forklift Safety Starts with You: Guide for Forklift Operators (PX1 Tab 12) similarly provided that operators must check the forklift daily before use and report any faults or damage, including ensuring the seat belt is in good working condition.

37. Australian Standard AS 2359.1:2019 Powered industrial trucks - Part 1: General Requirements (PX1 Tab 13) relevantly provided:

“7.4 Operator restraints

Where seatbelts are fitted they shall be interlocked to prevent the truck from travel motion (forward or reverse) until the seatbelt is buckled…In addition the seatbelt interlock shall include the sequencing/logic of the seatbelt switch with a seat pressure switch. The weight of the operator on the seat shall be detected prior to the seatbelt switch being engaged. The system shall not be readily overridden. Means shall be provided to discourage unbuckling of the seat belt while the truck is in motion. For example, activation of an audible alarm or switching to neutral.”

Systems of work prior to the incident

38. Prior to the incident, Jungheinrich Australia had the following in place:

1. PM Forklift Service Guide Version 2.0 dated April 2018 (Forklift Service Guide) (PX 1 Tab 14) which set out detailed servicing procedures for the Manitou forklifts including:

“Check the correct operation of safety devices - this includes seat belts, seat switch, height limit switches, brake switches, dead man switches etc. If any have been bypassed this needs to be rectified. Ensure that you inform the customer and write the details in your job description.”

2. Technicians were provided with a copy of the operator's manual (PX1 Tab 15) and the Forklift Service Guide.

3. Technicians at the site were given verbal instructions from time to time to check that all systems on the forklifts, including safety systems, were operational.

4. An internal training program which consisted of a series of modules dealing with both generic matters and model-specific training. During the basic preventative maintenance training module, technicians were specifically instructed that they should "Never return a truck to service with a safety circuit or safety component which has been by-passed or bridged".

5. Prysmian was provided with a Vehicle Pre-Operation Checklist in the form of a carbon copy logbook.

39. Jungheinrich Australia did not have a dedicated supervisor at the site to ensure that its employees followed training and completed repairs, maintenance or servicing in accordance with the manufacturer's operator manual and the Forklift Service Guide.

40. Jungheinrich Australia had no systems of work in place to verify that technicians removed bypasses from the forklifts and that the seat safety system was operational following completion of repairs, maintenance or servicing and prior to returning forklifts to service.

Steps taken after the incident

41. Following the incident, Jungheinrich Australia took the following steps:

1. Service technicians were directed to remove the bypass plugs from the forklifts.

2. Mr Joshua Bootsma, a field service supervisor employed by Jungheinrich Australia, became more involved in supervising technicians at the site. As at June 2022, Mr Bootsma had attended the site 2-3 times per week.

3. Mr Bootsma provided verbal instructions to service technicians that every safety system on the forklifts must be operational, and that this must be checked prior to forklifts being returned to service.

Project Order

42. The prosecutor sought the following orders (PX2):

1. “WHS Project Order - Pursuant to section 238 of the Work Health and Safety Act 2011:

1. Within eight months of the date of these Orders, the Defendant is to fund, to a limit of $30,000, the development and production of a de-identified educative animated video (the project) by a suitable external provider that addresses, but is not necessarily limited to:

1. the risk to which the worker was exposed on the material date;

2. the importance of service technicians ensuring forklifts are returned to service with all safety switches, sensors and systems operational;

3. other guidance material applicable to maintenance and inspections of forklifts, as deemed appropriate by SafeWork NSW;

2. The management of the project and the provider will be undertaken by SafeWork NSW;

3. The content of the project and the provider of the project are to be approved by SafeWork NSW;

4. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW;

5. The video is to bear the logo of SafeWork NSW and the Waratah Emblem of the State of New South Wales;

6. The Defendant is to notify the Prosecutor, and the Registrar of the NSW District Court at the Downing Centre of any change of address for service;

2. In addition to order (1)(a), the defendant will also bear the reasonable cost to a limit of $3,500.00 for the development and implementation of any promotional strategy.”

43. Jungheinrich Australia consents to this order being made.

Evidence for the Defendant

Affidavit of Rachelle Virginia Edwards

44. Ms Rachelle Virginia Edwards affirmed an affidavit on 14 March 2025 (DX1). Ms Edwards is the Company Secretary of Jungheinrich Australia.

45. Jungheinrich Australia Pty Ltd is a wholly owned subsidiary of Jungheinrich Australia Holdings Pty Ltd. They are part of the Germany based Jungheinrich Group, which supplies repair and maintenance services for industrial forklifts.

46. In 2015, the Jungheinrich Group acquired a majority share in NTP Forklifts Australia. At this point in time, and up until 2020, the entity continued to trade as NTP Forklifts Australia.

47. Jungheinrich Australia employs over 250 employees. Jungheinrich Australia is headquartered in Adelaide, South Australia and has six Australian offices.

Safety commitment

48. Jungheinrich Australia's Quality, Safety and Environment Policy (QSE Policy) stated that:

1. "Our company is committed to... [c]omplying with, or exceeding, the requirements of all relevant national, state and local Work Health & Safety and Environment legislation as well as other legal requirements";

2. "Our company is committed to... [i]mplementing a proactive risk management approach to Quality, Safety & Environment through identification of hazards, risk assessment and implementation of measures to eliminate or control risks"; and

3. "all employees, visitors and contractors must:

1. Abide by all relevant Work Health & Safety and Environment Legislation, regulations and Jungheinrich Australia requirements...

2. Identify and report any Quality, Safety or Environment hazards or incidents in the workplace.”

49. The QSE Policy was communicated to all employees during their induction and was displayed at all sites.

Safety management system on 2 December 2021

50. Jungheinrich Australia had a safety management system in place as at 2 December 2021. At the relevant time, the system was independently audited by TQCS International (Group) Pty Ltd, a fully accredited, third-party certification body providing auditing and certification of international management system standards, for compliance with the international standard for safety management systems ISO 45001:2018.

51. Jungheinrich Australia's integrated management system (IMS) included its safety system. The IMS manual set out:

1. Organisational roles, responsibilities and authorities with defined and documented responsibilities.

2. Actions to address risks including risk management procedures.

3. Monitoring and measuring resources.

4. Employee competence and training requirements.

5. Communication, consultation and participation processes.

6. Processes in place to reduce safety risks through the application of the hierarchy of controls.

7. Performance evaluation.

Safe systems of work on 2 December 2021

52. Jungheinrich Australia had in place safe systems of work relating to the repair, servicing and maintenance of the Manitou Forklifts leased to Prysmian.

53. Technicians were required to perform maintenance work on the Manitou Forklifts in accordance with the Manitou Operator Manual (Operator's manual) and the procedure set out in the Preventative Maintenance Training (also called the PM Forklift Service Guide Version 2.0 dated April 2018) (Forklift Service Guide).

54. The Forklift Service Guide set out detailed servicing procedures and instructions for the Manitou Forklifts including:

1. “Check the correct operation of safety devices - this includes seat belts, seat switch, height limit switches, brake switches, dead man switches etc. If any have been bypassed this needs to be rectified. Ensure that you inform the customer and write the details in your job description;” (see page 20 of the Forklift Service Guide); and

2. "Never return a truck to service with a safety circuit or safety component which has been by-passed or bridged" (see page 4 of the Forklift Service Guide).

55. Technicians were provided with a copy of the Operator's manual and the Forklift Service Guide and were provided with training on these documents.

56. Training was provided during the course of technicians' employment with Jungheinrich Australia through an internal training program, which consisted of a series of modules dealing with both general matters and model-specific training. General introductory training titled Modules 1 and 2 were completed face to face and online when necessary. These modules provided a general overview of service, repairs and maintenance. New technicians also spend several days travelling with experienced technicians who conduct "on-the-ground" training and instruction.

57. Service technicians were also instructed during Jungheinrich Australia's internal training program:

1. To ensure that forklifts are returned to their operators in a safe operating condition in accordance with clause 6.5 "Operating Condition" of Australian Standard 2359.2.

2. About the responsibility of a service technician to carry out a full function test of a forklift unit and to document any non-compliance, as part of "Methodical Fault Finding". This was covered in Jungheinrich's Module 1 Blended Learning course, which has been running since July 2021.

58. All forklift technicians were required to hold a licence to perform high risk work.

59. Servicing checklists included instructions that technicians should check safety systems, which included operator presence systems.

60. Jungheinrich Australia provided Prysmian with the Operator's manual.

61. As part of the Agreement, Prysmian's obligation, as set out in clause 12.6, was to check the condition and proper operation of the Equipment in accordance with the User Instructions at least once on each day that the Equipment is used.

62. The User Instructions are defined in the Hire Agreement to mean:

"any manufacturer's instructions or instructions provided by the Company [Jungheinrich Australia] (and where appropriate includes the Company's oral instructions), in respect of the use, operation and proper cleaning, maintenance and repair of the Equipment."

63. In Chapter 1, page 12, the Operator's manual provided the following instructions to ensure safe operation of the Manitou Forklift:

"Never leave the ignition key in the lift truck during the operator's absence;

When the lift truck is stationary, or if the operator has to leave his cab (even for a moment), place the forks or attachment on the ground, apply the parking brake and place the forward/reverse selector in neutral”

64. In addition, the Operator's manual provides the following instructions on the same page that must be followed when stopping the Manitou Forklift:

“Park the lift truck on flat ground or on an incline lower than 15%

Engage the parking brake

For lift trucks with gearboxes, place the gear lever in neutral

Lower forks or attachment to the ground

…

Stop the engine with the ignition switch

Remove the ignition key”

65. A Manitou Forklift operator should not get out of the Manitou Forklift without engaging the parking brake, which would prevent any unintended movement of the Manitou Forklift irrespective of the operation of the seat interlock. Removal of the ignition key would also ensure powered movement of the mast or tines cannot occur.

66. Prysmian had a pre-start checklist which required checking the "seat condition and adjustment".

Seat safety systems on the Manitou Forklifts

67. The Manitou Forklifts were fitted with a seat interlock (seat safety system) to determine the presence and seating of the driver inside the cab.

68. Under normal operation (that is, without a bypass fitted, and after the Manitou Forklift has been started, which can only be achieved if the operator is seated):

1. If the operator removes their physical weight from the seat, the Manitou Forklift cannot drive forward or backwards. The forward and backward tilt of the mast and the tines (hydraulic controls) cannot be operated. The operator can move the gear stick but it will not activate the transmission (i.e. it is effectively in neutral). The engine will however continue to run. While the Manitou Forklift cannot be driven forward or backwards, it could however roll forward or backwards if there is sufficient slope. The operator must physically put the hand brake on to stop it moving or prevent it rolling if there is sufficient slope.

2. If the operator removes their physical weight from the seat while moving, the seat interlock will operate so that all power will cease to be transmitted with the same consequences as described in (1) above.

3. If the Manitou Forklift comes to a stop and the operator gets off the forklift, all power will cease to be transmitted with the same consequences as described in (1) above.

69. The operation of the seat safety system only cuts power to the transmission; it does not automatically put the park brake on or turn the engine off.

70. The impact of the bypass being fitted is that:

1. It is possible to put the Manitou Forklift into forward or reverse without an operator being seated.

2. The hydraulic controls (which operate the mast and tines) can be operated from outside the cabin of the Manitou Forklift without the operator being seated.

Expression of remorse

71. Jungheinrich Australia acknowledges that returning a Manitou Forklift into service with the bypass plugs placed persons at the Prysmian site at risk.

72. The events leading up to the exposure of persons at Prysmian to risk fell short of Jungheinrich Australia's standards of safety.

73. Jungheinrich Australia acknowledges and regrets this failure.

74. Jungheinrich Australia is determined to ensure that lessons are learned and that there will be a positive impact on safety at Jungheinrich Australia.

Measures taken by Jungheinrich since 2 December 2021

Added supervision on site

75. Immediately following the incident, Jungheinrich Australia placed Mr Bootsma at the Prysmian site. Mr Bootsma spoke to the service technicians to reinforce Jungheinrich's direction that a forklift should never be returned to service with a safety system bypassed.

Company-Wide Alert

76. As a refresher and to reinforce the importance of the removal of bypasses to service technicians, Jungheinrich Australia issued a company-wide alert on 17 November 2022 which was sent to all service technicians. It was a requirement that this alert be the subject of toolbox meetings for all technicians. This alert said:

"Technicians must return all equipment back to the customer with all safety features fully operational. This will be monitored regularly by way of spot checks by TRBs, Service Supervisors and Service Managers. Any breach of this requirement will be subject to disciplinary action which may include termination of employment."

Material Handling Equipment Checklist

77. To ensure that the products and repairs which Jungheinrich Australia supplies comply with the relevant sections of Australian Standards and other regulations before they are made available for customer use, Jungheinrich Australia developed the Material Handling Equipment Safety Compliance Checklist F351 (MHE Checklist).

78. It is a requirement that all trucks are assessed against the MHE Checklist at each and every service, repair or programmed maintenance, including pre delivery checks by technicians. The MHE Checklist specifically requires service technicians to "confirm safety systems are not bypassed or malfunctioning".

79. Training on the MHE Checklist and the requirement to complete the assessment is undertaken for technicians with a presentation at toolbox meetings at regular intervals.

Forklift checks

80. The Manitou rental fleet consisted of 22 Manitou Forklifts throughout Australia. All Manitou Forklifts were checked against the MHE Checklist and where there was any issue, that particular forklift was made compliant.

Training and safety awareness

81. Jungheinrich Australia conducted refresher training for all technicians and service personnel reiterating the instruction given during basic preventative maintenance training that a unit with a safety circuit or safety component which has been bypassed for maintenance purposes should never be returned to service.

82. This training occurred in the early part of 2023. It was a requirement that refresher training was undertaken on a regular basis.

83. Technicians were required to undertake refresher training, to ensure that safety systems are not bypassed when forklifts are returned to service.

84. In November 2024 Jungheinrich Australia introduced mandatory duty of care, incident and hazard reporting training for all employees. A 12 monthly refresher training will be required for all employees. All new starters receive this training.

81. On 13 June 2024, Jungheinrich Australia held a National Forklift Safety Day to promote awareness of the importance of forklift safety.

82. In October 2024, Jungheinrich Australia held a National Safety month and ran weekly events across Jungheinrich Australia.

83. At the start of each week of that month, an email was sent to all Jungheinrich Australia employees about the event, linked to SafeWork Australia topics.

84. As at 2 December 2021, Jungheinrich Australia had a National Quality Safety and Environment Manager who reported to the Managing Director. Jungheinrich Australia has since elevated this role and has a dedicated Director of Quality, Safety and Environment based in Adelaide, South Australia. This role is at the Executive Leadership team level, recognising the importance and critical role of safety to the whole organisation.

85. In addition to the dedicated Director of Quality, Safety and Environment, Jungheinrich Australia has appointed a National Quality, Safety and Environment Advisor who oversees Australia. Quality Safety and Environment Board reports are prepared by the Director of Quality, Safety and Environment and presented at the monthly Board meetings.

Community and industry contribution

90. Jungheinrich Australia undertakes a number of activities to support and sponsor local communities.

Cooperation with SafeWork NSW

91. At all times during the investigation process, Jungheinrich Australia has cooperated with SafeWork NSW and complied with all requests for documents, responses and interviews.

Consideration

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

Objective Seriousness of the Offence

93. 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].

94. 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].

95. 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.”

96. 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].

97. 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.

98. 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.

99. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS 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.”

100. 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.”

101. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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.”

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

1. The risk was actually known to Jungheinrich Australia. Further, the offender should have known of the risk by reason of the guidance material.

2. The risk was recognised by Mr Mackay of Jungheinrich Australia as a “critical safety issue” which was “not acceptable”.

3. Bypassing the seat safety system went on for some time at the site – this was not a one-off event (see PX1 Tab 2 pars 28 and 29). That having been said, this was the only site in the Australia-wide operation of Jungheinrich Australia where the risk existed.

4. The risk was present whenever a forklift was returned to service with the seat safety system bypassed. There is no evidence that a forklift operator ever attempted to operate a forklift or its hydraulics, while out of the seat.

5. It was the primary responsibility of Jungheinrich Australia to hand the machine back after servicing with all safety features operating.

6. The potential consequences of a 7-tonne forklift colliding with a worker are very serious.

7. There were simple and effective steps available to guard against the risk.

8. There was no particular burden or inconvenience of implementing these steps.

9. Fortunately there was no harm done to any worker. However the offence is based upon risk not harm.

10. The maximum penalty for the offence is a fine of $1,782,579, which reflects the legislature’s view of the seriousness of the offence.

11. Prysmian also had duties in relation to the forklifts. However Jungheinrich Australia had superior expertise in relation to the equipment. Had Jungheinrich Australia technicians removed the bypass after servicing each Forklift, there would have been no opportunity for operators to use the forklifts in their unsafe state.

103. I find that the level of culpability of Jungheinrich Australia is in the lower end of the mid-range.

Deterrence

104. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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].

105. The penalty must reflect the need for specific deterrence. Jungheinrich Australia is still conducting a business. Its operations involve repairing, maintaining and servicing forklifts, and the continuing engagement of workers.

Mitigating Factors

106. Jungheinrich Australia has no previous convictions: s 21A(3)(e) CSP Act.

107. Jungheinrich Australia is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this.

108. Jungheinrich Australia is unlikely to re-offend: s 21A(3)(g) CSP Act.

109. Jungheinrich Australia has good prospects of rehabilitation: s 21A(3)(h) CSP Act. 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 incident occurred.

110. Jungheinrich Australia has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions.

111. Jungheinrich Australia entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. It is appropriate to give Jungheinrich Australia a 25% discount for an early plea.

112. Jungheinrich Australia gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

113. 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.

114. 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.”

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

Costs

116. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

117. My orders are:

1. Jungheinrich Australia Pty Ltd is convicted.

2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Jungheinrich Australia Pty Ltd to pay a fine of $150,000.

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 pursuant to Section 238 of the Work Health and Safety Act 2011 (NSW):

1. Within eight months of the date of these Orders, Jungheinrich Australia Pty Ltd is to fund, to a limit of $30,000, the development and production of a de-identified educative animated video (the project) by a suitable external provider that addresses, but is not necessarily limited to:

1. the risk to which the worker was exposed on the material date;

2. the importance of service technicians ensuring forklifts are returned to service with all safety switches, sensors and systems operational;

3. other guidance material applicable to maintenance and inspections of forklifts, as deemed appropriate by SafeWork NSW;

2. The management of the project and the provider will be undertaken by SafeWork NSW;

3. The content of the project and the provider of the project are to be approved by SafeWork NSW;

4. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW;

5. The video is to bear the logo of SafeWork NSW and the Waratah Emblem of the State of New South Wales;

6. Jungheinrich Australia Pty Ltd is to notify the Prosecutor, and the Registrar of the NSW District Court at the Downing Centre of any change of address for service;

6. In addition to order (5)(a), Jungheinrich Australia Pty Ltd will also bear the reasonable cost to a limit of $3,500.00 for the development and implementation of any promotional strategy.

7. Order Jungheinrich Australia Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 26 March 2025