Prosecution Details

Being an employer, the accused did not, so far as practicable, provide and maintain a working environment in which its employee was not exposed to hazards, and by that contravention caused the death of its employee contrary to sections 19(1) and 19A(2) of the Occupational Safety and Health Act 1984.

The Accused operated a business powder coating metal products for a variety of clients including fencing, signage and racking manufacturers.  The business operated from a small workplace consisting of an office, a workshop area which housed powder coating booths, and an oven used for curing powder coated products.

At the relevant time the Accused employed six employees to conduct metal preparation and finishing work.  It also employed its sole director.  The number of employees at the workplace varied depending upon the amount of work on at the time.

The Powder Coating Process

Prior to the process of powder coating, the surface of the metal products was prepared.  This included wiping the metal with flammable solvents, so the powder coating would adhere correctly.

The Accused purchased the solvents in large metal drums.   

The solvents used at the workplace were highly flammable.  A large warning on the drums warned that the contents were highly flammable and should be kept away from ignition sources.  An ignition source may be a power tool such as an angle grinder. 

Once prepared the metal product was transferred to the spray booth and the powder coating applied.

The Cutting of Metal Drums

Each Monday morning cleaning duties and maintenance of the workplace were completed at the workplace.  It included "replacing scrap metal bin if full".  This referred to metal drums which contained the residue and/or fumes of the flammable content they had held, and were being reused to hold scrap metal. 

To create a scrap bin the top of the metal drum was cut off with an angle grinder.

The Accused's sole working director introduced the practice of removing the top of the drums which had contained flammable solvents with an angle grinder, so they could be reused as scrap metal bins.

At the date of the offence, the accused employed eight people.  Prior to the date of the offence the director and five of the employees including the victim had all cut metal drums with an angle grinder. Of the other two employees, one had not carried out this task and it was unknown whether the remaining employee, who could not speak English, had cut a drum with an angle grinder.

As the victim could speak only very little English, he learnt by mimicking other employees.  Mimicking other employees was general practice at the workplace.

Information on the risk and hazards associated with flammable substances, including Methylated Spirits was available in a Material Safety Data Sheet (MSDS) at the workplace.  It was also highlighted on a label on the metal drum. 

Employees were told where the folders containing the MSDS were located.  They were not given any information as to the contents of the MSDS.

The victim could not have understood a MSDS due to his limited English.  However even if aware of the MSDS, like other employees, the victim's task was still to use an angle grinder to cut metal drums which had contained or still contained the residue or fumes of highly flammable substances.

Prior to the date of the offence one of the employees had seen the victim cutting a metal drum with an angle grinder, and the director has seen that employee and the victim doing the job together.

29 November 2010 - Date of Offence

At approximately 7:45am on 29 November 2010 the employees were carrying out Monday morning cleaning duties and maintenance at the Accused's workplace. 

The victim used an angle grinder to cut a bin that had previously contained Methylated Spirits.  When the victim used the angle grinder to cut into the metal drum, a spark from the angle grinder ignited the residue or fumes in the metal bin causing a large explosion.

The force of the explosion caused the base of the metal drum to be propelled approximately 20 metres over a fence into a neighbouring property.

The victim sustained severe head injuries.  He was attended by his colleagues until St John Ambulance arrived.  He was transferred to Royal Perth Hospital where he was pronounced deceased at 10:55am.  Head injury was noted as the main cause of death on the Post Mortem Report.

On the day of the accident a WorkSafe Inspector issued the Accused with a notice prohibiting the further cutting of the bins.

Extensive amounts of information were publically available in regards to the hazards presented by cutting metal drums with angle grinders.  This included information on WorkSafe Western Australia's website.  It clearly stated that this practice should be not be conducted.

Examples are:  WorkSafe Document - Empty Drums, Potential bombs and

WorkSafe Safety and Health Alert 10/02 - Explosion danger in cutting drums

Drum laundering companies in Perth provided laundering/reconditioning facilities for metal drums which have contained flammable substances.

The cost of metal drum laundering available at the time of the accident was $15.50 per drum.  This service was readily available.

A wide range of alternate bins could have been used.

The cost of purchasing a reconditioned metal drum available for purchase was $22.00.  These drums were readily available.

After the accident the Accused-

1. Used wooden crates for scrap metal, removing the need to cut the drums.
2. Introduced a document, Standard Operating Procedure - Flammable Substance and Storage Containers.
3. Stopped using power tools such as an angle grinder near to or to cut a drum.

The Accused entered a guilty plea on 3 September 2012 and was convicted.  The matter was finalised on 15 April 2013 when the Magistrate imposed the penalty detailed as follows:

The fine imposed was approx. 60% of the maximum (the maximum being $400,000).  This amount was discounted by 20% for the early guilty plea and a further 15% for other mitigating factors which resulted in a penalty to $163,200.00.

Due to limited financial means of the accused the fine was further reduced also taking into account agreed costs.

Final Fine Imposed $85,000.00

Order to pay costs of $3521.70.