|Defendant||Moscou Holdings Pty Ltd (ACN083 102 872)|
|Trading Name||Penguin International|
|Section||19(1), 19A(2) and 3A(3)(b)(i)|
|Offence Date||4 February 2013|
|Description of Breach(es)||
The Accused, 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 contravention caused serious harm to an employee, contrary to section 19(1) and 19A(2) of the Occupational Safety and Health Act 1984.
Together Moscou Holdings Pty Ltd and Rite Angles Pty Ltd formed a partnership named Penguin International. Employees of the partnership were employees of each partner and the actions of each partner bound the other.
The Accused imported sheets of glass from China, for use in architectural and structural applications. Trucks delivered shipping containers holding the glass sheets of various sizes, to the accused's premises at 9 Collingwood Street, Osborne Park.
The Accused employed approximately 15 workers.
The glass sheets were packed in wooden crates, which were strapped to a side of the container. Crates were unpacked between one and three times each month.
The smallest crates were unpacked from the container, by workers manually lifting the crates out of the container.
Heavier and larger crates were unpacked from the container with the assistance of a forklift that was able to drive inside the container.
The largest crates could not be manually unpacked by workers or by driving a forklift into the container. The crates were too large for workers to unpack manually, and the forklift mast could not extend high enough inside the container because the roof of the container was too low. For this reason, a forklift dragged the crates to the front of the container whilst workers inside the container assisted.
To do this, workers used a sling to connect the crate to the rear of the forklift and both guided and supported the crates inside the container whilst the forklift dragged the crate to the front of the container.
The accused instructed its employees that if a crate began to fall, they should let go of the crate and move out of its way.
On 4 February 2013 three employees were unpacking a sea container when a crate of glass fell onto one of the employees (the victim) and killed him.
The first employee cut the straps that held the crate to the wall of the container. The victim used a crow bar to separate the crates from each other. The crates were then free standing. As a forklift, driven by second employee pulled the first crate to the front of the container, the victim supported its weight and guided it forward whilst the first employee stopped another crate falling by supporting its weight.
The crate the victim was supporting fell onto his face, smashed his glasses, pushed into his neck area and then skidded away from him. The top of the crate pulled him down to a sitting position against the side of the container and it landed on top of him.
The crate, which fell onto the victim, was approximately 2.4 meters long, 1.95 meters high, 25 cm thick, and weighed approximately 1.2 tonnes.
The victim later died in hospital. The cause of his death was neck injury with damage to his spinal column and spinal cord, complete transection of the windpipe, and injury to the surrounding soft tissues. The victim was a 26-year-old glazier.
On 26 May 2011, a crate weighing approximately 1 tonne fell whilst two employees were inside the container.
The crate fell toward one of the employees, grazed his chest, and crushed his right arm and hand against the side of the container. He wriggled free and got out of the container before the crate fell on top of him. The crate landed flat on the floor of the container. The crate also cut the other employee's hand.
Despite this accident, the way containers were unpacked was not changed.
In 2012, one of the Accused's employees identified the hazard created by unsecure crates. He searched the internet for heavy glass handling equipment and came up with several solutions. He printed some information from the internet and discussed it with a fellow employee. After this discussion nothing more was said about it. The employee did not discuss these options with the Accused's directors.
After the accident, the accused developed a system to unpack the crates without the need for a worker to be inside the container and exposed to the risk of a crate falling onto him or her. The accused documented the safe system in its Safe Work Method Statement/Job Safety Analysis that has a print date on it of 4 October 2014.
The safe system includes eliminating the need to drag crates to the front of the container before a forklift can pick them up, by arranging for the delivery of the containers with the large crates packed at the front and using a forklift that could reach the crates inside the container and pick them up.
The Accused entered a guilty plea on the 18 September 2015 and was convicted. On the 30 November 2015 the Magistrate fined the Accused $45,000. As the Accused was one of two partners, the fine and costs were reduced by half. If the Accused was not a partner the fine would have been $90,000.00 after mitigating factors considered.
|Conviction Date||18 Sep 2015|
|Court||Magistrates Court of Western Australia - Perth|