On 10 March 2022, a steel fabrication company and worker were sentenced in the Ipswich Magistrates Court by his Honour Magistrate Kinsella for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with their duties under sections 19 and 28 of the Act, respectively. The company was fined $45,000 and the worker fined $3,500. No conviction was recorded against either defendant.

The defendant company was engaged by an abattoir to undertake fabrication work which involved welding. The defendant worker, a tradesman with 26 years of experience, was tasked with completing the work, alongside a third-year apprentice.

At approximately 1:00am on 7 August 2020, the defendant worker and apprentice were undertaking the fabrication work in the boning room of the abattoir. The two workers were welding pin stops and gate protectors to a static rail. They were undertaking the work approximately 50cm from a moving conveyor chain which ran along the static rail. The chain was used to carry carcasses around the boning room, but was not carrying any carcasses at the time. The chain was programmed to run continuously unless locked out or disabled by a computer. There were metal fingers protruding from the chain which were approximately 5cm in length.

After completing the task of welding the pin stops to the static rail, the defendant worker connected one end of an airline (tubing) to a pin stop on one side of the static rail. He then threw the airline over the rail in preparation for it to be connected to the other side of the rail.

The apprentice copied the actions of the defendant worker in connecting an airline to a pin stop on one side of the rail and throwing the airline over the rail. The apprentice then reached across the path of the moving chain (running along the rail) in an attempt to pull his airline further down on the other side. As the apprentice reached across, his jacket caught on one of the fingers protruding from the chain. His shoulder or armpit caught on the static rail while his arm was pulled along by the chain, causing his arm to move into a small gap in the plant machinery. As a result, the apprentice’s arm was fractured and he also sustained nerve damage.

The apprentice’s injuries required immediate surgery and a further four surgeries, as well as physiotherapy. He had continued to suffer physically and mentally in the two years since the incident. It is possible that he will never regain complete functionality of his arm, and it remained unclear whether he would be able to complete his apprenticeship.

The defendant company had a Safe Work Method Statement in place for the work to be conducted at the abattoir, whereby the defendant worker was required to identify risks and isolate machinery where necessary. The defendant worker was trained in Lock Out Tag Out (‘LOTO’) procedures and had been provided with padlocks to allow him to isolate machinery as required. The apprentice had received theoretical but not practical training in LOTO procedures, and was not required to lock out machinery.

His Honour was satisfied that the defendant worker had a duty to ensure the moving chain was locked out, especially given its clear proximity to the work being undertaken. His Honour found that the risk was abundantly clear and foreseeable and further noted that the risk could have been addressed by simple means. His Honour acknowledged that the abattoir was not the usual place of work for the apprentice and defendant worker, and that the abattoir did not identify the area as one of particular risk. Ultimately, his Honour accepted that the failure could be characterised as one of inadvertence.

In determining an appropriate penalty, Magistrate Kinsella was guided by the principles outlined in section 9 of the Penalties and Sentences Act and the legislative framework and objectives of the Work Health and Safety Act 2011, and the maximum penalty for the offence. His Honour considered general deterrence loomed large, but that specific deterrence was not a significant factor in the exercise of the sentencing discretion. His Honour regarded community denunciation as particularly relevant, and identified the need for protection of the community to also be reflected in the sentence imposed.

In mitigation, the learned Magistrate had regard to the guilty pleas of both defendants, considering their pleas to be demonstrative of insight into their conduct. He accepted both defendants to be remorseful for what happened. His Honour also considered the corporate defendant’s post-offence conduct in implementing new guides, testing and practical demonstrations, retraining of existing employees and engaging a new WHS officer and acknowledged the assistance the company had provided to the injured apprentice, including his continued employment.

His Honour further took into account that the defendants had been cooperative with the relevant authority, with no history of prior adverse contact, and were otherwise citizens of good standing and good character. Accordingly his Honour determined not to record a conviction against either defendant.

OWHSP contact: enquiries@owhsp.qld.gov.au