|Defendant||John Bronislaw Roman|
|Section||55(1) and 55(1)(b)|
|Offence Date||8 January 2013|
|Description of Breach(es)||
The Accused was the director of a body corporate guilty of an offence under the Occupational Safety and Health Act 1984, where that offence:
Note: the Accused's company, Swiftstar Pty Ltd was also prosecuted and convicted. The prosecution is separately summarised.
Swiftstar Pty Ltd 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.
Swiftstar Pty Ltd had two directors. One of the directors had minimal involvement in the business and is no longer a director. John Roman (the Accused) is currently the only director and shareholder.
At its Kalgoorlie yard Swiftstar Pty Ltd 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 Accused, 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.
Swiftstar Pty Ltd 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.
Swiftstar Pty Ltd 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 Swiftstar Pty Ltd received the 44 gallon drums, the drums had sometimes been used to hold flammable chemicals.
Swiftstar Pty Ltd 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 Swiftstar Pty Ltd could only trust that this had been done.
Swiftstar Pty Ltd 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, Swiftstar Pty Ltd 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;
Swiftstar Pty Ltd had used this process since it bought the business in March 2003. The Accused and manager had used the process in previous businesses.
Swiftstar Pty Ltd's labourer was aware of and familiar with the Swiftstar Pty Ltd'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 Swiftstar Pty Ltd'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 Swiftstar Pty Ltd'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;
On 9 January 2013, Swiftstar Pty Ltd was issued with a Prohibition Notice from WorkSafe.
Swiftstar Pty Ltd 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.
The Accused entered a plea of guilty and was convicted on 1 October 2015. On the 4 December 2015 the Magistrate fined the Accused $17,500.00 and ordered costs of $2,000.00.
|Conviction Date||01 Oct 2015|
|Court||Magistrates Court of Western Australia - Kalgoorlie|