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Prosecution Details

Defendant Swiftstar Pty Ltd (ACN 056 477 359)
Section 19(1), 19A(3) and 3A(2)(b)(i)
Offence Date 8 January 2013
Description of Breach(es)

Being an employer, failed to, so far as was practicable, provide and maintain a working environment in which its employees were not exposed to hazards, contrary to sections 19(1) and 19A(3) of the Occupational Safety and Health Act 1984.

Background Details

Note: the Accused's director, John Bronislaw Roman, was also prosecuted and convicted. The prosecution is separately summarised.

The Accused owned several businesses. One business was a scrap metal recycling business in Kalgoorlie. The Kalgoorlie business operated from 24 Cunningham Road in West Kalgoorlie which was an industrial site approximately 2 acres in size with a yard, workshop and office.

The Accused had two directors. One of the directors had minimal involvement in the business and is no longer a director. John Roman is currently the only director and shareholder.

At its Kalgoorlie yard the Accused employed casual staff and five permanent staff. The permanent staff included a manager, an office manager, a leading hand labourer, a truck driver and labourer.

The Kalgoorlie yard manager had over 20 years' experience in the scrap metal industry. The manager reported directly to the director, who was based in Perth where he also ran another scrap metal recycling company. This company processed and exported scrap metal including scrap metal from the Kalgoorlie yard. Its export markets included South East Asia.

The Accused used second hand 44 gallon drums to carry smaller pieces of scrap metal on a truck driven from its yard in Kalgoorlie to the company in Perth.

The Accused collected the drums from automotive companies in Kalgoorlie, took them out of skip bins that were delivered to it with scrap metal in them, and in some instances found drums left at the yard anonymously.

Before the Accused received the 44 gallon drums, the drums had sometimes been used to hold flammable chemicals.

The Accused had a ‘squeaky clean' policy in regards to the drums it received from customers. This policy required that the drums not have any residual chemicals in them. However the Accused could only trust that this had been done.

The Accused used two types of 44 gallon drums to transport the smaller scrap metal to Perth. One type of drum had a removable lid and the other type was a sealed drum which usually had two removable bungs in the top.

To use a sealed drum, the Accused's employees had to remove the lid from the drum. The process used by the Accused to remove the lids from the sealed drums was for its employees to:

a) Remove the two bungs in the top of the drum and spike holes in the bottom of the drum or the side of the drum near the bottom;
b) Allow the drum to vent or drain for a period of time;
c) Sniff the drum to see if any vapours were present; and
d) Use an oxy torch to cut off the top of the drum.

The Accused used this process since it bought the business in March 2003. The Accused's director and manager had used the process in previous businesses.

The Accused's labourer was aware of and familiar with the Accused's procedure for cutting the lids off sealed drums and had been oxy cutting 44 gallon drums for 2 years.

On the morning of 8 January 2013, the labourer was asked to get some drums to put scrap metal into. When he put the lit oxy cutting torch to the lid of the drum, the drum exploded knocking him to the ground. The top of the drum which blew off during the explosion landed across the road 50 - 60 metres away.

For an unknown reason on the 8 January 2013, the labourer did not follow the Accused's procedure for cutting the lid off the drums, as set out above. However, it is the Accused's process that constituted the contravention. That is, even if the labourer had followed the Accused's process, the Accused would have committed the offence.

The drum was marked with flammable liquids stickers and labelled as methylated spirits.

The manager heard the explosion and found the labourer lying on the ground and saw a fire burning inside the drum. Emergency services were called and the labourer was transported to Kalgoorlie Hospital. He was then transferred to Royal Perth Hospital Intensive Care Unit. He had 2 fractures to the left side of his skull, bleeding on the left side of his brain and a ruptured left ear membrane.

Cutting sealed drums with an oxy torch is a hazard. That hazard is common knowledge in the scrap metal industry. Employees exposed to the hazard were at risk of suffering serious or fatal injuries.

The employees that were exposed to the hazard at the depot in Kalgoorlie included the labourer, the leading hand labourer, the truck driver and the manager. Employees cut between 2 and 12 sealed drums per week.

The Accused could have taken many practical measures such as:

a) Using drums with removable lids;
b) Filling the drums with water before using an oxy torch;
c) Using a chisel and hammer to remove the lids rather than an oxy torch;
d) Testing the drums before using the oxy torch to ensure no flammable fumes or liquids remained in the drums; or
e) Using an air chisel to remove the lids rather than an oxy torch.


The Accused also received free drums with removable lids from its customers. These drums could have been transported to Perth full and returned empty to Kalgoorlie for re-use.

On 9 January 2013, the Accused was issued with a Prohibition Notice from WorkSafe.

The Accused subsequently purchased 64 drums with removable lids. This eliminated the hazard. The drums with removable lids cost $211.10 for 64 drums, so each drum cost $3.30.

 




Outcome Summary

The Accused entered a plea of guilty and was convicted on 1 October 2015. On the 4 December 2015 the Magistrate fined the Accused $35,000.00 and ordered costs of $2,000.00.

Conviction Date 01 Oct 2015
Court Magistrates Court of Western Australia - Kalgoorlie
Fine $35,000.00
Costs $2,000.00
Charge Number KA1809/15