SafeWork NSW v Multiquip Poultry Pty Ltd

[2025] NSWDC 15

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Multiquip Poultry Pty Ltd [2025] NSWDC 15

Hearing dates:

16 December 2024

Date of orders:

12 February 2025

Decision date:

12 February 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Penalty – Multiquip Poultry Pty Ltd

1   Multiquip Poultry Pty Ltd is convicted.

2   I impose a fine of $300,000.

Penalty – Poultry Enterprises NSW Pty Ltd

3   Poultry Enterprises NSW Pty Ltd is convicted.

4   I impose a fine of $300,000.

5   The offenders are to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

6 I order that pursuant to s 122(2) Fines Act 1996 that 50% of each 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 – death of worker

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

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

R v Youkhana [2004] NSWCCA 412

Texts Cited:

Australian Standard AS 4602 High Visibility Safety Garments – Class Day/Night

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Multiquip Poultry Pty Ltd (Defendant)
Poultry Enterprises Pty Ltd (Defendant)

Representation:

Counsel:
N Read with T Woods (Prosecutor)
P Barry (Defendants)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
K & L Gates (Defendants)

File Number(s):

2023/255594
2023/255576

Publication restriction:

None

JUDGMENT

Introduction

1. Multiquip Poultry Pty Ltd (Multiquip) and Poultry Enterprises NSW Pty Ltd (Poultry Enterprises) appear for sentence after pleading guilty to offences under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act) in that they failed to ensure the health and safety of workers while at work in the business or undertaking, pursuant to s 19(1) of the Act and thereby exposed Nathan Gutterson to a risk of death or serious injury.

2. The maximum penalty for each of these offences is a fine of 17,315 penalty units ($1,782,579).

Facts

3. The parties presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offenders to permit an understanding of the sentenced imposed.

Background

4. Multiquip and Poultry Enterprises (the offenders) are a part of a group of companies (the Group) which conducted a business or undertaking of poultry collection services, including live bird catching and transportation.

5. Multiquip dealt with customers, owned plant and equipment used in the business’ operations and provided safety resources and guidance material to the Group.

6. Poultry Enterprises provided labour for the business’ operations in Tamworth, Beresfield and Sydney.

7. The offenders shared a common management structure. Jason Mikosic was the General Manager and Shane Ravenscroft was the Work Health and Safety Officer/Human Resources officer of the Group.

8. Baiada Poultry Pty Ltd (Baiada) engaged Multiquip to provide catching and transportation services at broiler and breeder farms in the Tamworth region. The terms of the contract between Baiada and Multiquip provided:

1. Multiquip was to catch, handle and move broilers and hens (chickens) from farms in the Tamworth region to Baiada’s processing plant in Tamworth;

2. Multiquip was to provide forklifts, specialist catching equipment and suitable prime mover vehicles;

3. Baiada were to provide modules and drawers, which were used for the harvesting and transportation process;

4. Multiquip was to ensure that employees, agents and sub-contractors strictly complied with best practice work, health and safety policy and procedure, including a work, health and safety management system and the conducting of risk assessments to effectively eliminate or control all risks.

9. The services required employees of Poultry Enterprises to attend a number of farms in the Tamworth region, including farms owned by ProTen Tamworth Pty Ltd (ProTen). The offenders provided bird collection services at ProTen farms in NSW since August 2015.

10. On or around 22 December 2020, Multiquip provided ProTen with documents relevant to its systems of work for catching and transportation to be used at the ProTen farms.

Relevant plant and equipment

11. At the time of the incident, Multiquip owned approximately 80 industry specific forklifts.

12. Multiquip also provided high visibility clothing for use by the workers employed by Poultry Enterprises.

13. On 16 August 2021, the relevant plant in use was:

1. Apollo Generation 2 Chicken Harvesting Machine (the harvester). The harvester was designed to collect chickens off the floor of the barn and to transfer them to the modules. The harvester had two gathering arms, each fitted with a conveyer system, approximately 9.5m wide. At the rear of the harvester was a carousel mounted onto a trailer which could hold three modules at once. The harvester was operated from a control panel behind the gathering arms on the left-hand side. The length of the harvester was approximately 6.7m. The harvester was fitted with a red light at the front and a white light on the back of the carousel.

2. Combilift Combi-TT forklift truck (the forklift). The forklift was a three-wheeled forklift and had an unladen weight of 4,450kg. The forklift had an overall length of 4.6m and a width of 2m. These forklifts are specifically designed to meeting the demands of a poultry industry. The operator of the forklift fits in an offset position on the left-hand side, facing forwards. Prior to the incident, the speed limit on the forklifts was set to the factory default setting of 18km/h. There were red lights and one white light fitted on the front of the forklift above the driver’s cabin. When the forklift was carrying a module, the operator’s visibility was partially restricted due to the width and height of the load.

Relevant workers

14. Multiquip employed Alan Aitken as the Tamworth Area Manager. Mr Aitken had worked in the poultry industry since 2006 and commenced employment with Multiquip on 7 August 2015.

15. Poultry Enterprises employed approximately 80 people to carry out work at sites in the Tamworth region, including:

1. Terry Groth as Night Supervisor. He supervised all of the crews and was required to be contactable by phone at all times and respond to any issues of incident that arose. Mr Groth’s duties included checking that workers signed into farms and that they were wearing high visibility clothing. He also conducted Farm Safety Walks.

2. Joshua Booby as Crew Supervisor/Forklift Operator. He held a valid High-Risk Licence (Class LF) from 18 August 2011. As Crew Supervisor he was responsible for supervising the set-up of the shed and conducting toolbox talks. He was also responsible for supervising the activities in the shed, managing the progress of the catching, timing the breaks and driving the forklift.

3. Phethnikone Sayabath (also known as Mr Ott) for hand and machine catching.

4. Stephen Hudson for Hand and Machine Catching.

5. Ricky Follington for Hand and Machine Catching.

6. Nathan Gutterson for Hand and Machine Catching.

7. Nick O’Leary as Crew Supervisor/Leading Hand. Mr O’Leary was the supervisor of another crew operating in another shed on the same farm on the night of the incident.

The harvesting process

16. Chicken catching takes place in the early hours of the morning commencing around midnight to 1:00am. Catching takes place in an unlit or dimmed work environment to minimise fear and flight reactions and timing must be coordinated to minimise the time the chickens spend on the transport vehicle in accordance with RSPCA guidelines.

17. There are two methods of chicken catching: hand catching and machine catching.

18. Hand catching involves workers manually lunging with fingers spread to catch chickens by the legs and placing them into drawers of a module. A forklift places the modules within a shed; and later loads them onto a semi-trailer for delivery.

19. Machine catching involves using a harvester. The work method was as follows:

1. the harvester was delivered to the farm prior to commencement of the shift;

2. the farmer (ProTen), will prepare the shed for the catch by raising the feeders and drinkers to the roof of the shed;

3. a prime mover and trailer of empty modules is driven to the farm;

4. the catching crew is driven to the farm;

5. the forklift driver (crew supervisor) will place safety barriers and signage where applicable per the farm’s traffic management plan and unload the forklift;

6. the shed will be checked to ensure ventilation fans are on and lights are dimmed;

7. the workers will walk the walls of the shed to herd chickens towards one end to make room for the harvester;

8. the harvester is set up inside the shed. The forklift loads three empty modules into the carousel. The computer on the harvester is programmed with the chicken weights, number of drawers and number of chickens in each drawer;

9. the shed lights are turned off. Ground personnel herd the chickens towards the middle of the shed into a position where they can be collected by the harvester;

10. the harvester proceeds at a slow speed and the chickens are gently scooped onto the conveyor belt and conveyed through a filing/discharge chute to the module drawers on the carousel at the rear of the harvester;

11. two of the catching crew stand on the harvester platform (the platform workers). Those workers open the top two drawers on the module and count the chickens brought through the conveyer filing/discharge chute as they go into the drawers. They can stop and start the conveyor as necessary. When the drawers are full, the platform workers close the drawers and open the next two drawers;

12. the carousel holds three modules which are manually rotated by the platform workers as each becomes full, and the forklift drives to the rear of the carousel and removes modules as they fill, replacing them with empty modules from the semi-trailer;

13. two workers are assigned to walk along each side of the harvester and pick up chickens from the floor which have been missed and place them on the conveyer chute. The workers on the left-hand side drive the harvester by operating a hydraulic joystick, which control its speed and direction;

14. these two ground workers are also responsible for keeping the chickens inside the gathering arms of the harvester for collection. This involves hand catching chickens;

15. the workers assigned to operate the harvester turn the carousel when a module is full so that the next module on the carousel can be filled;

16. the forklift lifts full modules from the carousel, exits the shed and loads them onto a semi-trailer. The forklift brings empty modules to replenish the carousel and the process is repeated;

17. once the trailer is filled, the workers on the harvester and workers on the ground swap duties.

20. During this process, the forklift operator also places an empty module along the right-hand side wall of the shed. The ground worker on the right-hand side would hand catch chickens and place them in the drawers of the module.

21. When this hand caught module was full, the forklift would collect it and place it on the semi-trailer. The forklift would then deliver an empty module to the right-hand shed wall for further hand catching. This would occur approximately four times for a single trailer load and six times for a double load.

22. This method of work had been undertaken for at least seven years prior to the incident. Prior to the incident there was no adequate means of separation between the operating forklift and the ground personnel on the right-hand side of the harvester.

16 August 2021

23. On 16 August 2021, three crews were allocated to undertake harvesting work at a farm owned by ProTen in Bective (the farm).

24. Crew 2 which consisted of Mr Booby, Mr Ott, Mr Hudson, Mr Follington and Mr Gutterson, was to work from midnight to around 7:30am.

25. The workers arrived at the farm at around 12:20am. The harvester was transported to the farm via a semi-trailer prior to the catching scheduled start time.

26. Crew 2 was allocated to undertake machine harvesting work in Shed 8. They were required to collect 166 modules (approximately 24,000 chickens) and the entire shed was to be harvested during the course of the shift.

27. Shed 8 was approximately 150m in length and 17m wide. The shed had large access doors on its northern side. The shed was fitted with large exhaust fans in and along its walls, and fluorescent lights. Feeders and drinkers used by the chickens were raised to the ceiling by the farmer to permit access to the catching crew and their equipment.

28. When the set up was completed, the lights were turned off for the catching process.

29. The floor of Shed 8 was concrete and covered in wood shavings. Each shed has up to 50,000 birds resident for up to five weeks, resulting in a build-up of feathers and chicken manure.

30. When he arrived at the shed, Mr Gutterson was observed by Mr Booby to be wearing a grey hoodie over a yellow and black high viz fluoro short-sleeved safety shirt, two pairs of grey tracksuit pants and brown boots. Mr Gutterson was wearing a high viz safety shirt when he entered the shed to herd the chicken away from the walls in preparation of machine catching. During the machine catching work, Mr Gutterson was initially observed by Mr Follington to be wearing a high visibility jumper. Mr Follington later observed Mr Gutterson to be undertaking work in the shed wearing a grey hoodie.

31. The first trailer load of chickens took approximately 1.5 hours to complete. Following this the workers had a five-minute break. The workers on the harvester and the ground workers then swapped roles.

32. The workers completed a second trailer load of chickens and had another five-minute break.

33. At about 3:40am the workers commenced the harvesting of the third trailer-load of chickens. Mr Hudson and Mr Follington were working on the harvester and Mr Ott and Mr Gutterson on the ground. Mr Gutterson was working on the right hand side.

34. Mr Booby picked up an empty module from the semi-trailer and brought it into the shed so that Mr Gutterson could continue hand catching, having previously filled another module.

35. As Mr Booby was driving the forklift forward to place the module against the right-hand wall, he felt a bump at the back of the forklift. The forklift struck and ran over Mr Gutterson. This occurred approximately halfway past the back of the carousel of the harvester and about 4.5m from the right-hand wall of the shed.

36. Mr Booby stopped the forklift and alighted from it. Mr Booby observed Mr Gutterson on the floor of the shed. He observed him sit up and then collapse. Mr Booby went to assist Mr Gutterson.

37. The other workers were alerted to the incident, came to assist, and attempted to revive Mr Gutterson, including Mr O’Leary. At 4:01am Mr O’Leary called an ambulance.

38. At 4:25am NSW Ambulance arrived at the farm, however, Mr Gutterson was deceased on examination.

39. Mr Gutterson died from blunt force trauma to the head.

Multiquip’s pre-incident systems of work

40. Prior to the incident the Group had a documented Multiquip Risk Assessment for chicken catching dated 3 November 2020.

41. The risk assessment broadly outlined the hand and machine catching process. Moving Plant was identified as a Potential Hazard and Control Measures included a “3 metre – 3 module exclusion zone near mobile plant” and “PPE to be worn at all times”. It also included that pedestrians are to be trained to comply with the exclusion zone and that there be “no entry between the harvester and carousel trailer when harvester is moving”.

42. Prior to the incident, the Group had developed “Multiquip Live Bird Catching Manual, 3^rd edition, 2019”. In respect of hand catching procedures, the Live Bird Catching Manual provided:

Forklift operator shall keep a 4-metre minimum safe work zone between ground personnel and the forklift at all times.

Both catchers and forklift operators give each other enough time to complete their task without placing themselves or others at risk.

4 metre rule applies whilst working inside sheds.

43. The Live Bird Catching Manual contained diagrams of the live bird pick-up procedure.

44. In respect of loading crates onto the carousel during the process of machine catching, the Live Bird Catching Manual stated, “when operating a forklift in sheds. A minimum 4 metre safe working distance from ground personnel applies”. It did not provide any further information.

45. The Manual did not provide any information about the need to wear high visibility clothing and contained images of workers without high visibility clothing.

46. Prior to the incident, the Group developed the “Multiquip Task Instruction for Bird Handling, 14 June 2020”. This Task Instruction included a requirement to wear high visibility clothing but did not provide information on how workers undertaking hand catching were to be separated from the operational forklift, other than stating, once the module was full, the catcher was to signal to the forklift driver when the module had been checked.

47. Prior to the incident, the Group developed the “Multiquip Task Instruction for Mechanical Chicken Harvesting, Revision 1, dated 3 July 2020”. In respect of working around the machine, this Task Instruction required workers to walk around the back of the trailer and not step over the centre of the belt or cut between the machine and trailer under the filing chute when changing sides. It did not provide information on how ground workers were to be separated from the operating forklift.

48. The Group had a document titled “MP/PE Assessment Preparation Checklist” which referred to the “4 metre rule” when discussing how much time both catchers and forklift drivers should give each other to complete their tasks. The checklist was completed by Mr Follington and Mr Sayabath in 2016 and Mr Booby on 17 February 2017.

49. The Group had developed an induction video which identified the rear of the harvester’s trailer where the modules were loaded and unloaded as “high risk”.

50. The Group had a “Safe Operating Procedure for Harvesting Live Birds (MT/PEN-SWMS-017)” dated 7 August 2019 (the SOP). The SOP did not identify the risk of a collision between a ground worker and forklift during machine harvesting or contain any information on how ground workers were to be separated from the operating forklift.

51. Each of the workers, Mr Booby, Mr Hudson, Mr Follington and Mr Sayabath had a different understanding of the documented system for separating ground workers from the forklift, with only Mr Booby understanding that there was to be a 4m gap between pedestrians and the forklift.

52. At the commencement of his employment Mr Gutterson undertook the face-to-face induction, which included a video on hand catching techniques which informed workers to “always stay to the left as close as possible to the shed wall” when undertaking hand catching to avoid the forklift. The video also noted that all staff must wear mandatory safety equipment which “may include a high vis vest, dust respirator and gloves”. Mr Gutterson also undertook training on WHS Awareness and completed the ProTen Contractor SHEQ Induction Handbook Tamworth Farms on 14 January 2021 and the Traffic Management Plan and Procedure on 23 April 2021. Mr Gutterson also attended a toolbox talk on 30 March 2021 where Mr Groth and the WHS/HR Coordinator went through the bird handling task instruction. On 11 December 2020, Mr Gutterson had been provided with training in the Multiquip Bird Handling Task Instruction Issue No 2, 14 June 2020. Prior to the incident, Mr Gutterson had not received any formal training in machine catching with reference to a safe work procedure. Mr Gutterson had also not completed the MP/PE Preparation Assessment Checklist, the Multiquip Site Specific Induction or the Multiquip Chicken Catching Farm Induction.

43. Prior to the incident, Mr Hudson had not been inducted into all of Multiquip’s policies, in particular the Bird Handling Task Instruction or the Mechanical Chicken Harvesting Task Instruction. Mr Hudson had completed the Multiquip Chicken Catching Farm Induction and the Multiquip Site Specific Induction which noted that all persons in operational areas must adhere to the PPE requirement of wearing high visibility clothing and that all mobile plant and pedestrians are to keep a 3m exclusion zone when in the same area. Mr Hudson had also completed the Chicken Module Trailer Exclusion Zone.

44. Prior to the incident, the Group had a documented Tool Box Talk Sheet. The Tool Box Talk required the supervisor to confirm that all personnel were wearing PPE, Safety Vests, Safety foot wear, glasses etc. Mr Booby said that he completed the Tool Box Talk form prior to the shift, however the other workers state this was not done.

45. Prior to the incident, Multiquip made available to its workers t-shirts and jackets which complied with Australian Standard AS 4602 High Visibility Safety Garments – Class Day/Night. Multiquip did not make available high-visibility trousers or caps.

46. Mr Gutterson had been issued with two short sleeved high visibility shirts with retroreflective strips in February 2021 and on 6 July 2021. He had been issued a high visibility reflective jumper on 10 May 2021. Mr Gutterson had not been issued a high visibility jacket.

Systems of work after the incident

57. Multiquip revised its systems of work for both hand catching and machine harvesting.

58. The revised systems introduced designated forklift operating areas, restricted areas and safe pedestrian zones.

59. In respect of machine catching, the process of placing a module on the right-hand side wall of the shed for hand catching was prohibited. The forklift no longer travels to deliver and collect modules through an area where ground workers are required to work. The ground workers are no longer required to hand catch in an area where the forklift is operating. The forklift is not permitted to enter the area in front of the harvester’s carousel.

60. In respect of machine catching, the revised system of work involved:

1. all workers are to remain clear of the “forklift operating area”, the area behind the carousel, when the forklift is in use;

2. workers may only enter the “restricted zone”, around the carousel, after obtaining positive communication with the harvester operator and forklift driver;

3. the designated “safe zone” is between the arms of the harvester and the back of the carousel (other than the restricted zone). The forklift is prohibited from entering this area. All personnel are to remain in this area when the forklift is in operation.

61. On 29 September 2021, the forklift was fitted with SEEN sensors. The maximum speed of the forklifts was also reduced from the factory default setting of 18km/h to 14km/h.

62. The Group revised the “Live Bird Catching Manual (5^th Edition, August 2021) to:

1. contain prominent warnings and photographs regarding the requirement to wear the correct PPE high visibility clothing;

2. include information on the SEEN Proximity Detection System;

3. contain information on safe zones for pedestrians and exclusions zones for both hand catching and machine harvesting;

4. set out a “Hand Catch Procedure” which was consistent with the safe zones and forklift operating areas; and

5. include a safe work method statement for the chicken harvester operations.

63. The Multiquip “Bird Handling Task Instruction” was revised to incorporate the job step of setting up work areas and including a diagrammatic breakdown of the safe work zones for both hand and machine catching.

64. Toolbox talks were conducted on the revised systems of work.

65. The Group introduced a requirement for workers to wear headlamps during chicken catching in the shed to increase their visibility.

66. The Group introduced the “Multiquip 4” or H.E.R.D system for safe catching, which consisted of: head lamp, exclusion zone, reflective high visibility clothing, and dusk mask.

67. The Group introduced requirements to wear additional high visibility clothing, specifically long pants or shorts and high visibility boot covers and beanies or caps.

The Offender’s Case on Sentence

68. The offenders read and relied upon the affidavit of Shane Ravenscroft affirmed on 9 December 2024. The following is a summary of his evidence. I will try not to repeat matters set out in the Agreed Statement of Facts.

69. Mr Ravenscroft was initially engaged on 29 August 2016 as a Human Resources/WHS Officer for the Group. In about September 2021, he was appointed and is currently engaged as a Special Project Manager.

70. Prior to commencing this role Mr Ravenscroft held a variety of roles in safety management including as:

1. National WHS, HR Manager, Multiquip Group;

2. HSE Co-Ordinator NSW/ACT – MSS Security; and

3. Senior OHS Advisor – Toll Liquids – NSW, QLD, NT.

71. He holds multiple formal qualifications in work health and safety and management.

Remorse and contrition

72. Mr Ravenscroft stated in his affidavit that Multiquip and Poultry Enterprises regret and accept responsibility for their actions in relation to the incident and the fatal injuries suffered by Mr Gutterson and the trauma it caused to his work colleagues, family and friends.

73. He further stated that the offenders’ primary focus and response to the incident has been providing every possible form of support to the family of Mr Gutterson and the work crew involved and has sought to make all reasonable reparations to Mr Gutterson’s family.

74. The offenders are committed to ensuring no similar incident occurs in the future in connection with any of each company’s operations.

The Multiquip story

75. In his affidavit Mr Ravenscroft set out a detailed history of the offenders and the Multiquip group more generally. The business was created by Steve and Lucy Mikosic when they purchased a chicken broiler farm in 1981.

76. In 1983, the family business was incorporated as Multiquip Pty Ltd and purchased an engineering premises site at Austral, New South Wales. Mr Steve Mikosic was a qualified engineer and used these skills to develop and implement a granulated feed discharge system used to pump stock feed and other innovations such as Multiquip brand incubators. The incubation technology and quality has resulted in Multiquip Pty Ltd exporting products to overseas markets.

77. On 1 February 1999, Mr Steve Mikosic and Ms Mikosic incorporated Mikosic Transport Pty Ltd (Mikosic Transport) primarily as an adjunct to the poultry and engineering business. On 25 June 2008, Mikosic Transport was rebadged as Multiquip Transport Pty Ltd (Multiquip Transport) which took over the feed transport business.

78. Between 2008 and 2015, Multiquip Transport expanded and acquired a live chicken pick up and transport business. Multiquip Aggregates Pty Ltd which was incorporated and took over all quarrying and construction material operations and established a commercial chicken hatchery.

79. The Multiquip group retains its original family orientation with Mr Steve Mikosic and Ms Mikosic’s three children working in various roles in the business which has grown and developed into a more mature corporate structure.

Multiquip

80. In about February 2021, Multiquip Transport was rebadged as Multiquip Poultry Pty Ltd to create better efficiencies and to highlight the company’s stature in the poultry industry.

Poultry Enterprises

81. In about December 2014, Poultry Enterprises NSW Pty Ltd was incorporated as a resource to provide staff, specifically for chicken catching, for the Multiquip group.

82. A key objective for Poultry Enterprises is to provide a pathway for advancement and progression for all staff positions.

83. At the date of the incident, Poultry Enterprises had 53 employees in Tamworth and 73 employees elsewhere in New South Wales. Poultry Enterprises, at the date of Mr Ravenscroft’s affidavit, had 127 employees.

Integrated management system

84. Each of the Multiquip group companies work under the umbrella of a fully integrated safety management system (SMS) with Multiquip acting as the repository for documents and information. The SMS provides a platform for active sharing of related documents, tools and processes being utilised across the Multiquip group to accomplish goals consistent with and to achieve good safety management.

85. In response to an email from Mr Mikosic, General Manager, on 16 March 2021 a working document known as the HR/Safety/Return to Work/Compliance/Training Goals – “What Needs to be Done” actions for 2021-2022 was created outlining areas of improvement and goals relating to safety matters. The document was reviewed throughout 2021 and a number of the goals had been achieved during that year.

86. A similar document was created for the years 2022/2023. Relevantly, 18 of the 49 action goals in this document were noted as ready, in progress or ongoing and two were completed.

The offenders’ values

87. The offenders have a Health and Safety Policy endorsed by the General Manager, which aspires to promote a positive safety culture for the entire business based on positive leadership and effective communication.

88. The offenders’ organisational values which underpin the approach to safety are integrity, challenge, collaboration and ingenuity.

89. In about October 2019, the Group engaged with an independent third party, iCare Insurance (iCare) to participate in the iCare Protect Together P2 Program (P2 Program), an initiative to assist New South Wales businesses to improve safety systems and prevent injuries which went for two years.

90. In December 2021, iCare issued the Multiquip Safety Culture Survey Report (Safety Culture Report). The Safety Culture Report used seven dimensions of safety culture. The survey conducted determined that the average score across the seven dimensions was 5.8 out of 7. It was recommended by iCare that corrective actions should be focused on management support, guidelines and procedures and job demands by:

1. improving communications and adherence to guidelines and procedures;

2. providing further opportunities for development and consulting with more staff on matters that could impact on safety and wellbeing; and

3. increasing management support particularly in relation to mental health and psychological safety.

Mr Gutterson

91. Mr Ravenscroft on behalf of the offenders and the Group stated in his affidavit that the loss felt upon Mr Gutterson’s death, as a company and as work colleagues, has been immense. He stated the offenders wish to express in the strongest terms possible, sincere contrition, repentance and regret that the incident occurred and has taken steps to ensure such an incident does not recur.

92. Mr Gutterson was highly regarded by Poultry Enterprises and had worked his way up from hand catching to be recognised as a competent worker to undertake machine harvesting. He was always held in very high esteem by his peers and work colleagues as reliable and always put in one hundred percent effort to his work.

WHS strategies

93. As part of an integrated SMS, the offenders have in place a safety system which reflects their organisational commitments and strategies to mitigate risks associated with operations. The offenders’ focus on strategy includes:

1. establishing a culture of genuine and accountable WHS leadership;

2. building improved competency around the management of WHS risks;

3. engaging further with their workers and subcontractors on safety matters;

4. utilising fit for purpose WHS systems that are resilient and able to adapt in response to changing situations and business growth; and

5. promoting a culture of visible performance via inspection, auditing and incident reporting.

94. The offenders undertook a new pilot program under the auspices of iCare on its Transformational Leadership for Safety Program in May 2022 (TL Program). The TL Program required various teams of employees to identify different, real-life problems that needed to be solved throughout the business.

95. Between May 2022 and October 2022, 13 employees invested approximately 34 hours each in the TL Program and a further day presenting their results to an audience of directors, executives and senior staff. The three groups had identified communication, accountability and learning and development as problems needing improvement. As a result, the Group initiated an electronic communication program, trialled learning development programs and arranged training in Leadership and Chain of Responsibility programs.

96. In about October 2024, the Group engaged the Institute of Managers and Leaders to run a Management Essentials course. 58 employees attended this course.

97. The offenders continue to refresh and improve the approach to safety through initiatives such as WHS Accountabilities and Performance, WHS Training, Competency and Consultative Arrangements, Monitoring and Reviewing WHS Performance, and internal and external audits.

The offenders’ safety system for chicken catching prior to the date of incident

98. Prior to the incident, the offenders had in place a number of safety processes in place for manual catching and machine harvesting of chickens. These systems are set out in greater detail above, however included:

1. a risk assessment for both manual catching and mechanical harvesting;

2. a comprehensive induction process;

3. workers were provided information, instruction and training through a number of measures in both manual catching and mechanical harvesting;

4. toolbox meetings were undertaken between the crew supervisor and the respective crew at the beginning of each work shift;

5. on the job training and mentoring was provided by experienced workers;

6. the shift supervisor made unannounced inspections and site observations and also provided mentoring to crew supervisors and workers;

7. ensuring workers obtain and have verified the appropriate level of competency prior to undertaking mechanical harvesting;

8. policies and procedures were displayed in the workers’ depot meal rooms; and

9. forklift operators were accredited and licenced.

99. The offenders maintain a training and competency matrix that identifies the training and competency requirements for each role. There is also a training and induction register to record all completed requirements.

100. The offenders concede that a high standard of safety was not achieved in respect of Mr Gutterson. However, Poultry Enterprises did employ the following layers of supervision on farm sites:

1. the work being performed by the crew was being supervised by a highly experienced crew supervisor who had undertaken extensive training and had been assessed as competent to act in that role and was an accredited and licenced forklift operator;

2. the shift supervisor was responsible for making site observations on the farm including inside and outside chicken sheds and assessing workers for competency to undertake mechanical harvesting;

3. Poultry Enterprises assigned experienced workers to act as a buddy for a period of time to new starters to provide on the job training and mentoring.

101. Poultry Enterprises, in consultation with supervisors and workers, introduced a site Condition Report Book which provides an opportunity for the crew supervisor and workers to consult and report on site conditions, including safety matters requiring attention.

SEEN proximity detection system

102. In about October 2020, Multiquip undertook comprehensive research into the availability of senor detection technology for the poultry industry for use with the Combilift forklift as part of its ongoing strategy to improve safety. This culminated in discussions with Alderson Poultry New Zealand who had confirmed that it had installed the SEEN IRIS 860 Sensors to forklifts (SEEN system) due to its enhanced capability and easy operating system.

103. The SEEN system detects reflective high visibility tape on clothing worn by workers near the forklift and alerting the driver when they get too close.

104. The Original Equipment Manufacturer (OEM) documentation discloses the SEEN system attached only to the rear of the forklift and the detection range of that set up. In order to achieve a greater range of detection, Multiquip also installed the SEEN system on the front of the Combilift forklift.

105. On about 20 November 2020, Multiquip began an operational trial of the SEEN system at its depot in Griffith. Multiquip subsequently trialled the SEEN system on multiple ProTen farms for a periods of four weeks during the entire shifts.

106. At the time of the trial, the SEEN system was not an industry standard and was a ground breaking development in the poultry industry.

107. As a result of the trial’s success, Multiquip directors supported and approved the company pioneering the introduction of the SEEN system. Eighty units were purchased at an initial cost of approximately $130,000 including installation. As at 30 September 2024, Multiquip has expended $420,000 on additional SEEN system units and subsequent instalment costs.

108. A progressive rollout of the SEEN system started in late 2020. However, despite best intentions, six of the eight Combilift forklifts at Tamworth were not fitted with the SEEN system due to the impact of the NSW Government Covid-19 Public Health Orders.

109. One of the forklifts without the SEEN system was involved in the incident involving Mr Gutterson. On about September 2021, after the NSW Government lifted some of the Covid-19 restrictions, this forklift and the remaining forklift were fitted with the SEEN system.

Specialised PPE

110. The provision of free reflective high visibility clothing had been in place and assessed over numerous years prior to the date of incident as discussed in the Agreed Statement of Facts above.

111. The dissemination of information, instruction and training, highlighting the mandatory wearing of high visibility PPE and reinforcement was subject to a number of initiatives including:

1. on 30 March 2021, a dedicated chicken catchers and crew supervisor toolbox talk was conducted by the safety coordinator and shift supervisor at Poultry Enterprises;

2. on 8 December 2020, a memo from Alan Aitken, Manager of Poultry Enterprises at Tamworth, was given to all employees, noting a breach of the requirements could lead to termination of employment; and

3. nightly toolbox talk between the crew supervisor and the catching crew addressed the requirement to confirm all crew members were hearing high visibility PPE upper garments before entering the farm.

Changes made following the incident

112. In response to the incident the offenders made a number of improvements to the safety systems which are set out above in the Agreed Statement of Facts.

113. The offenders’ worksites have been visited by SafeWork Inspectors since the date of incident and neither offender has received a regulatory notice, penalty or breach relating to operations.

114. Since the incident, the Group has and continues to expand significant financial resources on safety including engaging professionals to provide leadership, advice and specialised competencies in safety including the following:

1. appointment of a National WHS Manager;

2. contracted a Senior WHS Advisor in Tamworth, who has completed the TAFE Certificate IV in Work Health and Safety;

3. at the time of the incident the Group employed eight WHS officers. At the date of Mr Ravenscroft’s affidavit, there were 13 full time WHS officers; and

4. the spend on safety resources for the financial year 2023/2024 across the Group was approximately $6,136,064 which is attributed to training programs, software and support staff, WHS staff and PPE.

Safety leadership

115. Supervisors and managers of the offenders undertake specialised training courses and attend safety briefings to ensure they understand their role in the Safety Chain and how to fulfil their safety duties. There are a number of designated meetings and other activities including weekly Management Meetings and WHS Meetings, Farm Safety Talks and Toolbox talks. Such forums provide opportunities for consultation between managers and employees on safety.

115. On 18 September 2024, Multiquip Poultry applied for the Safety in Broiler Chicken Farming Award, citing the implementation of the H.E.R.D and SEEN systems. Multiquip Poultry was awarded with a Highly Commended Certificate for Excellence in Workplace Health and Safety.

System compliance

117. Compliance is both monitored and evaluated through internal and external audits in order to provide a holistic overview of safety performance. In addition, all sites and tasks performed are captured in risk registers. The register lists inherent risks and control measures which reflect the recognised hierarchy of controls.

The offenders’ pre-incident safety record

118. Neither company has been prosecuted or issued a penalty infringement notice, nor received any prohibition, improvement, or any other regulatory notice prior to 16 August 2021.

Co-operation with SafeWork

119. The offenders have co-operated with the Regulator from the date of incident and throughout its investigation. Both companies played an active role in consulting with the Regulator and its experts in the implementation of safe systems in preventing further hazards and risks during mechanical chicken harvesting operations.

Corporate citizenship

120. The offenders take pride in being good corporate citizens and are widely recognised for their corporate social responsibility.

121. The offenders support organisations such as the Wollondilly Festival of Art and Light, the Tamworth Harness Racing Organisation, the Rotary Club of Narellan and the Camden Show Society. The offenders also regulatory support local junior sporting groups and medical research organisations.

122. The offenders have a generous culture of giving back to the community. Both companies regulatory donate to Camp Quality and are supporters of the Student Incentive Program.

123. Since May 2021, the Group has been the major sponsor of the Western Sydney Wanderers Youth Academy teams, which provides a no fee structure to its players.

Timing of plea

124. The offenders pleaded guilty at the first available opportunity.

Actions following the incident

125. Poultry Enterprises took a number of genuine steps to mitigate the impact of the incident on Mr Gutterson’s family and work colleagues. In relation to Mr Gutterson’s family, the offenders:

1. immediately after the incident reached out expressing their condolences;

2. following the incident remained in contact with members of Mr Gutterson’s family and assisted with issues;

3. defrayed the costs of the funeral and ambulance service;

4. due to Covid-19 restrictions, the funeral service held for Mr Gutterson was live streamed and was viewed by a number of senior managers, staff and co-workers;

5. held a memorial service for Mr Gutterson at the workplace which enabled all staff and co-workers to attend throughout the day;

6. sent a large bouquet of flowers and a hamper to Mr Gutterson’s mother and family at Christmas time in 2021 and 2022; and

7. representatives of Poultry Enterprises maintained regular phone contact with Mr Gutterson’s mother for approximately 18 months and remain available to her should she so require.

126. In relation to the workplace, Poultry Enterprises:

1. immediately arranged and made counselling support available for all workers for as long as they felt necessary;

2. permitted workers to take a period off work (where required);

3. supported workers to recommence work when they were ready; and

4. company representatives undertook regular check-ins with affected workers.

Consideration

127. 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 of the Crimes (Sentencing Procedure) Act 1999.

Objective seriousness

128. The offences are objectively serious.

129. Multiquip and Poultry Enterprises are related companies within the same Group. Poultry Enterprises employed Mr Gutterson and Multiquip was responsible for the system of work and provided the mobile plant used for harvesting the chickens. By their pleas of guilty, the offenders admitted that they failed to take the same reasonably practicable steps. Accordingly, it is appropriate to assess the objective seriousness of the offences committed by the offenders collectively.

130. The risk to a worker of being struck by mobile plant while harvesting chickens was known to the offenders. The need for an exclusion zone between workers performing hand catching and the mobile plant was also known, but poorly communicated. Only one of the interviewed workers understood that he needed to keep 3m away from the forklift. Having workers performing hand catching in the vicinity of operating plant in dimly lit conditions was an inherently dangerous and completely unnecessary process. The poorly implemented exclusion zone was only a low level administrative control. The offenders could have provided further PPE to increase the visibility of workers to the mobile plant operators. The control measures introduced after the incident involved some research and ingenuity and were not straight forward. However, workers hand catching chickens on foot in close proximity to mobile plant should not have been permitted.

131. The likelihood of the risk coming home was low. The methodology had been used without incident over an extended period.

132. The risk included a risk of death.

133. The death of Mr Gutterson is an aggravating feature.

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

Deterrence

135. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses 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].

136. There is some need for specific deterrence in this case because the offenders still operate a business that potentially exposes workers to risks as a result of its operation. Conversely, the offenders have taken comprehensive and timely steps to improve its processes and safety systems as a result of the incident.

Aggravating factors

137. The injury, harm and loss caused by the 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 merely the creation of a risk of death or serious injury. The death of Mr Gutterson is sufficient to establish this aggravating factor.

Mitigating factors

138. The offenders do not have any previous convictions: ss 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The Group has been operating its business since 1983 with Multiquip being incorporated in February 2021 and Poultry Enterprises in December 2014.

139. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offenders have taken steps to respond to the incident and have demonstrated that they have goods prospects of rehabilitation.

140. The offenders have demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Ravenscroft, on behalf of the offenders, has accepted responsibility for its failings and expressed remorse for the incident. Representatives of the Group also offered assistance to Mr Gutterson’s family for an extended period following the incident. I accept this to be a genuine expression of contrition. The plea of guilty also indicates remorse.

141. The offenders were good corporate citizens. The offenders have supported community groups and initiatives and provided donations.

142. The offenders entered pleas of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. The offenders are 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%.

143. The offenders co-operated with the investigation conducted by SafeWork NSW: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to pay a fine

144. The offenders did not contend that they had a limited capacity to pay a fine.

Penalty – Multiquip Poultry Pty Ltd

145. Multiquip Poultry Pty Ltd is convicted.

146. I have taken into account the Victim Impact Statements of Narelle Webb, Tyler Webb and Blake Webb. Pursuant to s 30E Crimes Sentencing Procedure Act 1999, I have taken into account that the harmful impacts of Mr Gutterson’s death endured by his family is evidence of harm to the community.

147. The appropriate fine is one of $400,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

148. I impose a fine of $300,000.

Penalty – Poultry Enterprises NSW Pty Ltd

149. Poultry Enterprises NSW Pty Ltd is convicted.

150. I have taken into account the Victim Impact Statements of Narelle Webb, Tyler Webb and Blake Webb. Pursuant to s 30E Crimes Sentencing Procedure Act 1999, I have taken into account that the harmful impacts of Mr Gutterson’s death endured by his family is evidence of harm to the community.

151. The appropriate fine is one of $400,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

152. I impose a fine of $300,000.

153. The offenders are to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

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Amendments

13 February 2025 - Inclusion of counsel for Prosecutor

13 February 2025 - Date of hearing amended

Decision last updated: 13 February 2025