OHS COURT RULINGS

Inspector McDonald v Solo Waste Aust Pty Ltd

In Inspector McDonald v Solo Waste Australia Pty Ltd (2004) the Industrial Relations Commission of New South Wales Court considered what an appropriate penalty would be for breaching the Occupational Health and Safety Act 1983.

In 2001 Robert Hughes and Jason King were employed by the defendant at its waste recycling plant at 27 Oakdale Road Gateshead. On 15 February 2001 Mr King entered a large metal hopper (‘the 50mm hopper’) in order to move recyclable material towards a screw conveyor or auger located at the bottom of the 50mm hopper. The auger delivered the material onto a conveyor belt.

Mr King got out of the hopper and Mr Hughes got in and commenced cleaning material from the sides of the 50mm hopper with his boots. The auger was running when Mr Hughes entered the hopper. It was stopped for a short period then restarted. Mr Hughes continued to clean the sides of the 50mm hopper with his boots. While doing so, his left foot became caught in the auger and dragged into it. Mr Hughes suffered an amputation of his lower left leg.

The obligation upon an employer under s15(1) is to ensure the health, safety and welfare at work of all its employees. The risk to safety in this case was that arising from the operations of the 50mm hopper and the auger.

The defendant pleaded guilty to multiple failures to ensure safety as particularised in this charge.

The failures were:

• a failure to provide and maintain a safe system of work;
• a failure to make arrangement for ensuring safety in connection with the use of the plant;
• a failure to provide such training as was necessary to ensure the health and safety of work of its employees;
• a failure to provide such instructions as were necessary to ensure the health and safety of work of its employees;
• a failure to provide such information as was necessary to ensure the health and safety at work of its employees; and
• a failure to provide such supervision as was necessary to ensure the health and safety of its employees.

What makes this offence particularly serious is the multiple failures on the part of the defendant. Further, the fact that the supervisor was aware that employees entered 50mm hopper underlines the grievous failure to provide the necessary supervision and the failure to instruct and train.

The risk to safety could easily have been avoided as demonstrated by the installation after the incident of a mesh screen across the side of the 50mm hopper, over which employees had previously gained access. Moreover, there was nothing difficult about providing to employees proper training in relation to isolation or lock out procedures and ensuring such procedures were followed.

The defendant was entitled to a discount on sentence for the plea of guilty, although in light of the motion seeking to withdraw its guilty plea the defendant could not have the full benefit of the discount. A discount of 17.5 percent was decided. The motion seeking to withdraw the guilty plea also reduced the value the Court might have otherwise placed on the defendant’s expressions of contrition.

It was decided an appropriate penalty would be $400,000, which was reduced by 17.5 percent for the utilitarian value of the guilty plea and a further 10 percent for other subjective factors, which resulted in a fine of $290,000.

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