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Prosecution Details

Offender Tox Free (Kwinana) Pty Ltd (ACN 071 329 765)


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Charge Charge Number Offence Date Date Convicted Regulation Section Penalty Provision Penalty Imposed Date Sentenced
1 RO7436/12 10 March 2010 10th January 2013 3A(2)(b)(i) $45,000.00 13th February 2013
2 RO7437/12 Between approximately 18 March 2010 & 2 August 2010 inclusive 10th January 2013 3A(1)(b)(ii)(I) $5,000.00 13th February 2013
Description of Breach(es)

Charge 1 - 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.

Charge 2- Being an employer, of an employee, who at a workplace, incurred an injury which, in the opinion of a medical practitioner, was likely to prevent the employee from being able to work within 10 days of the date on which the injury occurred, failed to notify the WorkSafe Western Australia Commissioner of the injury forthwith, and by that failure contravened sections 23I(3) and 23J(1) of the Occupational Safety and Health Act 1984.

Background Details


The Accused is a corporation that operates a waste management facility at Lot 4, Mason Road, Kwinana Beach (Workplace). The Accused is a wholly-owned subsidiary of Tox Free Solutions Ltd.

Industrial waste is collected from clients and delivered to the Workplace for treatment or transfer. Some of that waste is in the form of 205-litre (44-gallon) metal drums. Some of those drums are enclosed, with caps or bungs in the lids, and others have lids that can be opened. Some of the delivered drums have contained flammable, combustible or explosive substances.

As at 10 March 2010 it was a regular practice at the Workplace to decant any free liquids from drums. The drums that had lids that could be opened were used as ‘bins' by filling them with smaller items of scrap metal. The metal-filled drums were then crushed as part of the metal recycling process.

Events of 10 March 2010

As at 10 March 2010, the Accused employed a Level 2 Plant Operator at the Workplace. His duties included the filling with scrap metal and crushing of drums.

On 10 March 2010, the Accused's site manager at the Workplace instructed a Level 4 Plant Operator to have a number of metal drums filled with scrap metal for crushing. However, because there were no drums with removable lids available, the site manager instructed the Level 4 Plant Operator to cut holes in the lids of drums that did not have removable lids.

The Level 2 Plant Operator saw the Level 4 Plant Operator undertaking this task and asked if he could perform the work. He was then instructed by the Level 4 Plant Operator to use an angle grinder to do so, by cutting triangular holes in the drum lids, and to remove the bungs from the lids prior to using the angle grinder.

The Level 2 Plant Operator had cut open four such drums and started on a fifth drum. That drum was labelled as having previously contained the substance 3,4-Dicholorophenyl isocyanate.  As he cut into the drum lid, the content of the drum, and consequently the drum itself exploded, injuring the Level 2 Plant Operator.

The Level 2 Plant Operator was taken to Royal Perth Hospital and discharged the same day with superficial burns to both forearms. He was diagnosed by a medical practitioner as being unfit for work for 12 days, from 10 March 2010 to 22 March 2010, when he was diagnosed as fit for return to restricted duties.

Failure to notify WorkSafe

In respect of Charge 2, although the Accused was made aware of a medical practitioner having diagnosed the Level 2 Plant Operator as unfit for work for over 10 days via a progress medical certificate issued on or about 18 March 2010, the Accused did not notify the WorkSafe WA Commissioner as required by section 23I(3) of the Occupational Safety and Health Act 1982 (The Act) when read with regulation 2.4(1)(e) of the Occupational Safety and Health Regulations 1996 (Regulations).

Instead, WorkSafe learnt of the incident in which the Level 2 Plant Operator was injured much later, through an email from the Level 2 Plant Operator himself on 15 July 2010.

Extent of injuries

The Level 2 Plant Operator's superficial burns have now healed. However, due to pain in his left wrist he underwent an MRI, which revealed a tear to his left triangular fibrocartilage complex (TFCC, which connects the ulnar wrist to the hand at the little finger). This tear was caused by the Level 2 Plant Operator wrenching away his hand when the drum exploded.

The Level 2 Plant Operator underwent surgery on his torn TFCC in September 2010. However, he continues to suffer from a disorder of neural control mechanisms causing pain manifested in predominant neuropathic or neural sensitisation symptoms, with some features suggestive of complex regional pain syndrome. His surgeon has been unable to further address this surgically.

The Accused's failure to address the explosion hazard

When an angle grinder is used to cut metal, it gives off heat and sparks. It is common knowledge in industry that using an angle grinder to cut a metal drum that contains a flammable, combustible or explosive substance (including the residue or vapours of such a substance) can cause an explosion (Hazard). Whether or not any such substance or its residue remains in a drum cannot be determined without chemical testing.

Further, as at 10 March 2010, WorkSafe WA had published, in print and online, a document entitled Empty drums: potential bombs. This publication advised that, if a drum has contained a flammable liquid or gas, or a chemical, or has a hazard diamond on the label, the drum should be kept away from heat, sparks and grinding equipment.

WorkSafe had also published an alert on an incident in 2002 in which a worker was killed when a similar metal drum exploded when he attempted to cut it open with an angle grinder. A similar death also occurred in November 2010 (subsequent to the incident over which this Accused was charged).

The Accused was aware of the Hazard. However, it had not ensured that the Level 2 Plant Operator or the other Plant Operators employed at the Workplace were aware of the Hazard.

The Accused had created a Risk Management Control document for handling packaged waste that identified the need to develop a safe work practice (SWP) for the handling of drums, covering the potential for ignition sources for flammable or combustible wastes, including from hand tools. However, neither an SWP nor a job safety assessment (JSA) for any particular task was promulgated prior to 10 March 2010.

The drum that exploded had not been tested to determine its content prior to cutting. However, the Material Safety Data Sheet (MSDS) for the form of the substance previously contained in the drum that exploded (3,4-Dicholorophenyl isocyanate) relevantly advised:

In a fire or if heated, a pressure increase will occur and the container may burst.

Do not pressurise, cut, weld, braze, solder, drill, grind or expose containers to heat or sources of ignition.

The MSDS also indicated that the substance is accompanied by a small proportion of chlorobenzene, itself a flammable substance.

The Accused had not ensured that the Level 2 Plant Operator or the other Plant Operators employed at the Workplace were aware of the content of this MSDS. Further, the Accused had not conducted a risk assessment for 3,4-Dicholorophenyl isocyanate, as required by regulation 5.15 of the Regulations.

Fundamentally, there should not have been any need to cut open the enclosed drums of the type that exploded. As noted, the Workplace also accepted open-top drums, which could have been filled with any scrap metal that it was necessary to crush and recycle.

Other instances of using an angle grinder to cut metal drums

The Level 2 Plant Operator had first been instructed to use an angle grinder to cut open similar drums by the site manager on 9 March 2010, the day before the incident. Other Plant Operators had also performed this task on previous occasions.

The site manager's instructions to the workers to undertake this task were contrary to the Tox Free safety policy (QUEST System).  The Tox Free safety policy required a work method statement to be developed and a job safety analysis to be undertaken before any non-standard procedure was performed.

Subsequent to the incident, and contrary to the verbal directive issued to Tox Free employees, the site manager gave instructions for Plant Operators to use angle grinders to cut open metal drums, who did so. Although some Plant Operators were aware of the incident in which the Level 2 Plant Operator was injured, they were afraid to refuse in case they lost their jobs at the Workplace.

Measures subsequent to the incident

The Accused has now communicated relevant JSAs and SWPs to the Plant Operators employed at the Workplace and has trained them in the use of angle grinders.

The Accused has also implemented a system whereby specific authorisation must be obtained for any ‘hot work' at the Workplace, including the use of an angle grinder.

The Accused has further banned the cutting or grinding of all metal drums at the Workplace. Only open-top drums are now used as scrap metal ‘bins'.

A site supervisor has now been appointed at the Workplace.

At all material times it was reasonably practicable for the Accused to have provided instruction, training and/or supervision to:

a) ensure that tools (such as angle grinders) capable of giving rise to the Hazard were not used on metal drums at the Workplace; and/or

b) ensure that all metal drums that potentially contained combustible, flammable or explosive substances (including the residue or vapours of such substances) had been cleaned and purged of such substances before tools (such as angle grinders) capable of giving rise to the Hazard were used on the drums at the Workplace; and/or

c) ensure that its employees were aware of the Hazard.



Outcome Summary

The Accused entered guilty pleas to both charges on 10 January 2013 and was convicted.  Penalties imposed on 13 February 2013.

Court Magistrates Court of Western Australia - Rockingham
Costs $2031.30

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