Details of successful prosecution against E170273

Incident description

The defendant's company was a business that recycled metal products.

The company used a C4 conveyor to transport unprocessed scrap metal to another machine for processing. The guarding on the machine had been removed so that the machine could be temporarily repaired until a replacement belt arrived. The guarding had not been replaced.

While undertaking pre-start checks, a maintenance supervisor noted the conveyor belt tracking to one side and catching, which impeded its operation. The maintenance supervisor was in the process of switching off the plant to adjust the conveyor belt when another worker observed the problem. He crouched down and used his right index finger to feel where the belt was grabbing at the tail drum of the conveyor. The employee turned to talk to his co-worker and his right arm was drawn in to the moving component of the conveyor.

As a result he sustained multiple fractures, soft tissue damage and required a metal plate and screws to fix broken bones, and procedures to reattach his bicep.

Court result

The defendant pleaded guilty in the Holland Park Magistrates Court on 23 January 2015 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.

Magistrate Strofield fined the defendant $35 000 and ordered professional and court costs totaling $1082.50. No conviction was recorded.

In reaching a decision the magistrate noted the breach was the failure to exclude the workers from the unguarded conveyor system and took into account the defendant had not been prosecuted previously for any work health and safety breach, cooperated with the investigation and had taken steps to ensure there would not be a reoccurrence.

When considering the defence submission that the injured worker inserted his finger into 'an obvious hazard', Mr Strofield opined that the purpose of the Work Health and Safety Act 2011 is to protect all workers by imposing a duty on employers to ensure workers safety by identifying risks and implementing controls.

On the issue of penalty, the prosecution provided the court with three comparable cases involving unguarded plant (E178667, E188116 and E164134) with penalties from $35 000 to $40 000 and Magistrate Strofield accepted this matter fell within that range.

Considerations for prevention

(Commentary under this heading is not part of the Court's decision)

When deciding on control measures to manage the risk of injury associated with plant, persons conducting a business or undertaking should refer to the Managing risks of plant in the workplace Code of Practice for guidance.

Where guarding is used to prevent workers being injured from moving parts, the risks associated with maintenance and repair of the plant should be considered:

• If plant or equipment is out of service due to maintenance or cleaning activities, ensure appropriate lockout and tag out processes are in place and have been communicated to staff.
• Isolate plant before maintenance and repair commences. Where a machine cannot be adequately guarded due to maintenance issues, consider decommissioning the plant until the necessary repairs have been made and the guarding replaced.

Details