|Defendant||North East Equity Pty Ltd (ACN 009 248 819)|
|Section||19(1),19A(2) & 3A(3)(b)(i)|
|Offence Date||6 May 2011|
|Description of Breach(es)||
Being an employer, failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards, and by that failure caused serious harm to an employee, contrary to sections 19(1) and 19A(2) of the Occupational Safety and Health Act 1984.
The Accused's operations
At all material times, the Accused has been a corporation that, trading as Sumich's, operated a carrot packing and exporting business from part of premises comprising a large shed located at 386 Mandogalup Road, Wattleup (Workplace).
At the Workplace the Accused graded carrots, with higher grades packed into 500g and 1kg bags in the pre-pack area, and lower grades packed into 20kg bags in the ‘reject' area.
As at 6 May 2011, the Accused was the employer of approximately 20 employees at the Workplace, including the workers employed in the following capacities.
As at 6 May 2011, one of the forklift operators had been employed by the Accused for approximately 20 years.
The bin tippers and hoppers
As at 6 May 2011, the forklift operator worked in the pre-pack area of the Workplace. In this area there were two carrot hoppers, each with an associated bin tipper.
The forklift operator's main tasks were to:
Water flowed into the hoppers to wet the carrots, which were then elevated onto conveyors for grading before packing.
The forklift operator was usually the only person who operated the bin tippers in the pre-pack area. Other employees would occasionally operate the bin tippers if the forklift operator was busy.
The forklift operator would operate each of the two bin tippers around 25 times a day.
As at 6 May 2011, the forklift operator had been operating the bin tippers for approximately 6 to 8 years.
The Workplace was essentially closed over the weekend. On Friday afternoons, the hoppers were emptied of water and cleaned out. This was done by pulling a lower lever on the hoppers to drain out the water, and a higher lever to shut off the inflow valve to stop more water coming in.
6 May 2011
On Friday 6 May 2011 in the afternoon, the forklift operator, the shed manager, the other forklift operator, the export supervisor and the shed supervisor were at work at the Workplace.
There was an empty bin in the bin tipper. The forklift operator intended to lower and remove the bin and then, because it was Friday, to drain the hopper. There was nobody else in the immediate area.
The forklift operator stood on the lower ledge of the bin tipper's frame to reach the bin tipper control in order to lower the empty carrot bin. This lower ledge was 19 cm above floor level.
As at 6 May 2011, the control box was located at a higher point. (It was subsequently lowered to its current position, with the controls approximately 1.54m above floor level.)
The forklift operator is 4'11" tall (approximately 150cm). She could not comfortably reach the controls from ground level, even when stretching. She then climbed further up the frame, onto the upper ledge, to reach the upper water lever in order to empty the water from the hopper.
This higher ledge was at least 61 cm above floor level. The water lever was approximately 2.5m above floor level.
The forklift operator found it easy to climb from the lower to the higher ledge. After pulling the water lever, the forklift operator descended back to the lower ledge. She had her right hand holding the upright of the bin tipper frame near the then location of the control box. She would sometimes, but not always, hold the frame with her right hand to steady herself while reaching up with her left to operate the control box or the water lever.
As the bin cradle came slowly back down to its lowered position, it crushed the forklift operator's right thumb against the bin tipper frame.
At about this time the forklift operator stepped down to floor level, meaning that she could no longer reach the controls to raise the bin tipper. She yelled out. The administration/ export supervisor heard her, rushed over to the bin tipper and raised the bin cradle using the control box. He administered first aid and took the forklift operator to the hospital.
As a result of the incident, the forklift operator suffered the following injuries.
The forklift operator underwent open surgery the following day to have her thumb bone set and fixed via an internal screw-plate. She also underwent a bone graft from her forearm to reconstruct parts of her thumb.
The forklift operator did not return to work for the Accused until February 2013, when she returned to full duties. She recovered relatively well, but has been left with a permanent loss of function and motion in her thumb.
(1) Administrative safety measures (i.e., procedures)
As noted, the forklift operator was usually the only person who operated the bin tippers in the pre-pack area.
The forklift operator (and very occasionally the other forklift operator and the shed supervisor) would also sometimes perform the shutdown process in the pre-pack area on Friday afternoons.
As at 6 May 2011 there was a wheeled ladder located between the two hoppers in the forklift operator's area, near the controls of the hopper not involved in her accident.
The ladder was located here so that it could be easily used to check the carrot levels and water levels in both hoppers, and to check that there were no carrots left in the bins.
These tasks could not be performed by any operator without using the ladder.
The forklift operator would use the ladder to check the carrot levels in the hoppers, and to operate the adjacent controls and the water lever of the hopper not involved in her accident.
The forklift operator would not consistently use the ladder to operate the controls or the water lever of the hopper involved in her accident, because they were located on the other side of the hopper from the ladder. Instead, she would at least occasionally climb on the frame, as she did when she was injured on 6 May 2011.
The forklift operator would sometimes climb onto the lower ledge on the tipper frame to raise and lower the bin cradle. This might be about every 15 minutes, depending on how often the hopper was emptied.
This had been her practice for some years. It is unclear whether any other employee of the Accused was actually aware of this practice.
The forklift operator had been shown how to do the Friday shut down by the shed manager some years before 6 May 2011. Neither the forklift operator nor the shed manager can recall the shed manager specifically instructing the forklift operator to use the ladder to do so.
The shed manager, the other forklift operator and the shed supervisor would not use the ladder to operate the tipper controls, as they were tall enough to comfortably reach them unassisted.
The shed manager, the shed supervisor and the other forklift operator would use the ladder to perform the shut down, because the inflow lever was too high to reach otherwise. Because the ladder was on wheels, it was simple to move it to the hopper on which the forklift operator was injured and back again.
The forklift operator cannot recall whether anybody ever told her to use the ladder. However, she states that she would have kept climbing on the frame anyway, as she considered it quicker that way.
Otherwise, unlike the other, taller, operators, the forklift operator would have had to move the ladder each of the 50 times that she operated the bin tippers each day.
Although, as at 6 May 2011, the Accused had undocumented on-the-job induction procedures for the hoppers and tippers for new employees, the forklift operator had not been put through those procedures. She had started her employment prior to their introduction.
Although since 2002 the forklift operator had annually signed off on ‘training records' in relation to various matters, those records were only oral confirmation of her general capabilities. They were not accompanied by any actual training as such, and did not include the operation of the bin tipper or the Friday shut down process.
In April 2010, a WorkSafe inspector visited the Workplace and issued several Improvement Notices, including a Notice (#36700143) requiring the Accused to remedy its failure to have provided its employees with a safe working method for the operation of the pre-packing machines at the Workplace.
The Accused subsequently complied with that Notice by developing a job safety analysis (JSA) for those machines.
In April 2010 the inspector did not issue any Notice in specific relation to the hoppers or tippers.
As at 6 May 2011, the Accused had not carried out a risk assessment in relation to the operation of the hopper or bin tipper. The Accused considered such an assessment unnecessary, as there had been no previous incidents involving those machines.
As at 6 May 2011, the Accused did not have any written safe work procedure or any other similar document in relation to the operation of the hopper or bin tipper.
As at 6 May 2011, the Accused did not have an operating manual for the bin tippers at the Workplace.
Shortly after 6 May 2011, the Accused:
(2) Physical safety measures
The bin tippers were installed at the Workplace some time between 2001 and 2003. When initially supplied, and as at 6 May 2011, the pinch point between the tipper frame and bin cradle was not guarded. At first, remote controls were used to raise and lower the bin cradle.
The bin tippers (along with the Accused's entire operations) were subsequently relocated at the Workplace.
At this time, the Accused engaged an engineering company, a fitter contractor that had been regularly performing maintenance and repair work for the Accused for many years, to manufacture legs to raise the hopper and tipper off the ground to fit in with a new alignment for the tipper, hopper, conveyor and grading table.
These modifications effectively created the ledges that the forklift operator used to climb the tipper frame on 6 May 2011.
No formal risk assessment was conducted by the Accused to accompany these modifications.
When the tippers were relocated, the remote controls were no longer available, for some unexplained reason. The tippers had to be operated manually via the control panel.
When the forklift operator started operating the forklift and the bin tippers, she copied the method used by the previous forklift operator, which was to manually raise and lower the bin cradle at the control box.
Other than the remote controls no longer being used, there was no particular significant change to the operation of the hoppers or tippers when they were relocated.
Subsequent to the relocation, the Accused installed rails alongside the bin tipper to prevent employees from going under it.
Shortly after 6 May 2011, the Accused:
In total, the changes to the tippers after 6 May 2011 cost the Accused a few thousand dollars and the changes did not adversely affect the operation of the bin tipper or hopper.
Prior to and as at 6 May 2011, it was reasonably practicable for the Accused to have:
Taking any or all of these measures would have mitigated the risk of the forklift operator having her hand in the Tipper Pinch Point, and consequently suffering the injuries referred to in paragraphs above, on 6 May 2011.
The Accused fully cooperated with WorkSafe's investigation into the incident resulting in the forklift operator's injuries, including through the participation by its managing director in a voluntary record of interview.
The Accused entered a guilty plea and was convicted. The Magistrate fined the Accused $33,000.00 from a starting point of $50,000, reduced by 25% for early plea and a further reduction for other mitigating factors.
|Conviction Date||15 Apr 2014|
|Court||Magistrates Court of Western Australia - Fremantle|