Prosecution Details

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, contrary to sections 19(1) and 19A(3) of the Occupational Safety and Health Act 1984.

The Accused's Operations

The Accused is a corporation that carries on a number of businesses, including, under the trading name J & P Metals, the receipt, processing and export of scrap metal.

The Accused operates from locations including a main office and yard in Short Street, Picton (Picton  Yard),  and  from  a  metal  processing  yard,  or  scrap  yard,  not  far  away  at  Lot  50, Copplestone Road, Paradise (Paradise Yard).

At the Paradise Yard the Accused employs plant operators, who operate plant (such as cranes and excavators) to transport scrap metal, and oxy-cutters, who are required to cut up large pieces of scrap metal into smaller pieces so they can be more easily handled, transported and exported.

Oxy-cutting involves the cutting of metal using a mix of oxygen and LPG gas, which is sent down a hose to an oxy-torch. Once lit, the mixture of gases produces a concentrated flame that is used to heat and ultimately melt the metal. By slowly depressing a lever on the handpiece of the torch, further oxygen is supplied, which blows away the molten metal and effectively cuts through the item.

At the Paradise Yard, some of the larger items of scrap metal to be cut stood above head height (Oversize Items). These items would present a risk of pieces falling when oxy-cut, and therefore a risk of an oxy-cutter being crushed and thereby injured or killed.

Usually, these Oversize Items would be only partly oxy-cut, leaving uncut sections known as ‘tags' which would then be broken by other employees operating plant at a distance.

Alternatively, Oversize Items would be laid down at a safe angle to cut, eliminating the risk of pieces falling.

The leading hand or supervisor at the Paradise Yard was a plant operator. The supervisor was responsible for general day-to-day operations, including safety compliance, in addition to his duties as a plant operator loading, unloading and stacking scrap.

However, oxy-cutters were not specifically instructed by the supervisor or otherwise as to what work to do on any particular day. Items of scrap metal would simply be left in oxy-cutting areas by plant operators, and the oxy-cutters would cut them. Oxy-cutters were instructed to raise any queries or doubts that they had with their supervisor.

Chinese employees

The Accused employed a number of Chinese nationals.  At the Paradise Yard, the Accused employed two Chinese nationals as oxy-cutters, (the deceased and oxy-cutter 1), and two others as plant operators (plant operator 1 and plant operator 2).

The supervisor and other native English speakers found it particularly difficult relaying instructions to, and understanding, the deceased and oxy-cutter 1, who spoke very little English. As a result, communication would often be by hand signals.

Even  in  the  case  of  the  plant operators 1 and 2,  detailed  communication  with  English-speaking employees was fraught with difficulty.

The Accused had been aware of these communication problems and, as a result, had enrolled these four Chinese employees in English classes at Bunbury TAFE.

The Accused also employed a Chinese national as a plant operator (plant operator 3) at the Picton Yard.

J & P Deconstruction Pty Ltd (a related corporation of the Accused) employed a Chinese national as a plant operator (plant operator 4). Although he was based at the Picton Yard, he would sometimes work on Saturdays at the Paradise Yard.

Plant operator 4 spoke English better than the other Chinese employees at the Paradise Yard and so, on the occasions that he worked there, he would act, when required, as an ad hoc interpreter between them and the English-speaking workers.

The Accused also employed a financial controller, based at the Picton Yard. The financial controller was born in China but spoke good English. Where necessary, the financial controller was involved in communicating  with  the  Accused's  Chinese  employees,  although  he  had  no  formal  role  in operations on the ground at the Paradise Yard.

Events of 5 November 2011

On 5 November 2011, the Deceased commenced work at the Paradise Yard at around 7 a.m. His task was the oxy-cutting of a bucket from an excavator. That bucket stood above head height. The upper part of the bucket had a ‘double skin' (i.e., two metal layers separated by a cavity).

The Deceased was not given any instruction in respect of this task on 5 November 2011. According to usual practice, the bucket was simply left in his cutting area.

Plant operators 1, 2 and 4, fellow oxy-cutter 1 and the supervisor were also at the Paradise Yard on 5 November 2011. However, the Deceased was working alone, largely out of sight of the other workers, and without any direct supervision. This was the norm for oxy-cutters at the Paradise Yard, once they had completed approximately three months of working with another oxy-cutter, after which they would usually be allocated their own working station.

At some time between around 8 and 9 a.m., the Deceased was crushed when an approximately 800-kilogram piece of the upper part of the bucket that he was cutting broke away from the main structure and fell on top of him. As the Accused was working alone, there were no eye witnesses.

Other pieces of the upper part of the bucket had already been cut away. 

The position of the Deceased's body showed that, immediately prior to being crushed, the Deceased had been positioned in the likely fall path of the curved upper bucket piece. It is unknown exactly why the Deceased was cutting the bucket from this location.

The Deceased likely died immediately as a result of severe chest, abdominal and pelvic crush injuries, including complete tearing of the thoracic aorta in the vicinity of the heart.

At the time that the Deceased's body was found, the oxy-torch that he had been using to cut the bucket remained in the on position, directed back at his face and upper body, which were consequently also badly burnt. These burns were likely incurred post-mortem.

The torch was switched off and the fallen piece of the excavator bucket removed using a crane by co-workers. Police, ambulance and WorkSafe officers were notified by the Accused and attended the scene.

Training

When the Deceased commenced employment with the Accused in February 2011, he was given a general induction by financial controller at the Picton Yard. The financial controller explained the Accused's policies and procedures to the Deceased in Chinese, but they were not provided in written Chinese and did not touch on content specific to the Deceased's tasks as an oxy-cutter.

Plant operator 4, from the Picton Yard, had originally been employed by the Accused as an oxy-cutter at the Paradise Yard. He was a qualified boilermaker in China but had been given further instruction on how to oxy-cut by the supervisor's predecessor as supervisor. The predecessor was himself an experienced oxy-cutter.

Plant operator 4 did not train either the Deceased or oxy-cutter 1 in oxy-cutting, although he did assess and verify them both for competency after they had initially been trained. This assessment, however, did not cover the cutting of Oversize Items.

The initial oxy-cutter training of the Deceased, oxy-cutter 1 and (previously) plant operator 2 was carried out by plan operator 3, the plant operator at the Picton Yard, who had also originally been employed by the Accused as an oxy-cutter at the Paradise Yard. Like plant operator 4, plant operator 3 had experience oxy-cutting in China and had been given further instruction on how to oxy-cut by the then supervisor.

Oxy-cutter 1 commenced working for the Accused a few months prior to the Deceased, in approximately October 2010. When plant operator 3 trained oxy-cutter 1  (and plant operator 2) they were both employed at the Paradise Yard.  Plant operator 3 spent around a week working closely with oxy-cutter 1. This training included assessing the risk of being crushed by a falling piece of an Oversize Item and work practices to mitigate that risk, including identifying safe cutting sequences, leaving ‘tags', and positioning oneself out of the way of the potential fall path of an Oversize Item. Oxy-cutter 1 then worked under the supervision of plant operator 3 for around 3 months.

When the Deceased commenced at the Paradise Yard, however, plant operator 3 had already moved to the Picton Yard.  Plant operator 3 was instructed by the financial controller to show the Deceased how to use the oxy- cutting equipment and visited the Paradise Yard to do so. However, this training was only for a few hours one morning.

After this initial training, the Deceased worked under the supervision of oxy-cutter 1 for around 3 months.

During this time, oxy-cutter 1 and the Deceased together oxy-cut Oversize Items similar to that was being worked on by the Deceased on 5 November 2011. Oxy-cutter 1 showed the Deceased how to assess the risk of being crushed by a falling piece of an Oversize Item and work practices to mitigate that risk, including identifying safe cutting sequences, leaving ‘tags', and positioning oneself out of the way of the potential fall path of an Oversize Item.

After these approximately 3 months, the Deceased commenced working alone at his own cutting station.

Other than the above, the Deceased and oxy-cutter 1 had no formal training or experience in oxy-cutting or metalwork generally. Prior to being employed by the Accused, the Deceased had worked as a chef in a Chinese restaurant in Bunbury.

Systems as at 5 November 2011

The Accused had carried out and documented a general risk assessment for operations at the Paradise Yard in February 2011, albeit in English only. However, the supervisor was unaware of the risk assessment. Further, as at 5 November 2011 the Accused had not documented the identification of any risk of injury due to falling material involved in the oxy-cutting of Oversize items.

As at 5 November 2011, the Accused had some safety documents available at the Paradise Yard in both English and Chinese, including the Accused's Oxy-Cutting Procedure. However, the Accused had no written safe work procedures for oxy-cutting Oversize Items in place and communicated to employees at the Paradise Yard, whether in English or Chinese.

As at 5 November 2011, formal job safety analyses (JSAs; also known as job hazard analyses, or JHAs) for oxy-cutting were not carried out at the Paradise Yard either in English or Chinese. Risk assessments for individual items were generally left to individual oxy-cutters, based on their training and experience, and subject to any queries or doubts that the oxy-cutter may express to their supervisor or another more experienced worker about the task. Formal JSAs for oxy-cutting were carried out at the Picton Yard, where larger or otherwise more complex items were more commonly oxy-cut.

No formal JSA/JHA was carried out in respect of the oxy-cutting of the excavator bucket on which the Deceased had been working on 5 November 2011, despite it standing above head height and so presenting a risk of pieces falling when oxy-cut. It is unknown whether, or to what extent, the Deceased conducted his own risk assessment of the bucket.

When the previous supervisor was the supervisor at the Paradise Yard, if asked to by an oxy-cutter or if he otherwise considered it necessary to do so, he would mark Oversize Items with a ‘cut plan' using spray paint or a rock, or otherwise identify a ‘cut plan'. A ‘cut plan' indicated the order in which an Oversize Item should be cut to minimise the risk of an oxy-cutter being crushed by a falling piece of the item.

The Accused was aware of the risk of injury due to falling material involved in the oxy-cutting of Oversize Items. The Accused was also aware of the previous supervisor's practice of marking out ‘cut plans'. A director and the general manager of the Accused, visited the Paradise Yard regularly and had marked out ‘cut plans' himself in the past.

When the supervisor replaced the previous supervisor in 2009, he was not given any further formal training in his new role. In particular, he was not given any further training in oxy-cutting or in the supervision of oxy-cutting, including in the identification of ‘cut plans'. The supervisor asserts that he was not expressly instructed by the Accused to mark out or otherwise identify ‘cut plans' for Oversize Items. He would, however, provide advice on cutting sequences when requested by individual oxy-cutters. The supervisor worked at the Paradise Yard during the period that the previous supervisor was the supervisor, and when the previous supervisor used to mark up ‘cut plans' as required for the oxy-cutters.

The marking or formal identification of ‘cut plans' for Oversize Items was not common practice at the Paradise Yard as at 5 November 2011. Neither the supervisor nor any other employee of the Accused marked out or formally identified any ‘cut plan' for the Deceased's task on 5 November 2011.

If the oxy-cutters felt that they needed instruction in respect of any particular item, it was left to them to get the attention of their supervisor, or another worker more experienced than themselves.

Systems subsequent to 5 November 2011

Subsequent to 5 November 2011, the Accused has reassessed the risks at the Paradise Yard. The risk assessment, now documented in both English and Chinese, now provides as follows as a control method in respect of risks involved in oxy-cutting.

Where there is the potential of the item that is being processed of falling or rolling during the process of size reduction, a separate risk assessment, methodology and JHA must be completed prior to the work commencing. As well as a full and detailed cut plan.

Subsequent to 5 November 2011, the Accused has employed another supervisor at the Paradise Yard, who carries out risk assessments and JSAs/JHAs as necessary. These JSAs/JHAs are communicated to employees in English and Chinese.

Whenever an Oversize Item is to be oxy-cut, the supervisor now first instructs the oxy-cutter in how to do so safely.

WorkSafe publications prior to 5 November 2011

In May 2000, WorkSafe WA published the following recommendations in relation to an incident in which a worker received serious injuries to both legs when he oxy-cut a roll of high-tensile steel, thereby releasing the energy stored in the steel like a spring.

1. Persons at workplaces should identify and determine if metal cutting tasks are undertaken at their workplace during which stored energy may be released.
2. Employers at workplaces where oxy-cutting of metal is carried out should review safe work procedures and conduct hazard identification refresher training in light of this incident.
3. This SIS should be communicated to all Safety &  Health  Representatives at relevant workplaces.

Practicable measures that could have been taken prior to 5 November 2011

Prior to and as at 5 November 2011, it was reasonably practicable for the Accused to have:

1.   ensured that the Deceased was adequately trained in:

      a) the oxy-cutting of Oversize Items generally; and/or

      b) the risk of being crushed by a falling piece of an Oversize Item; and/or

      c) work practices to mitigate that risk, namely:

                (i) identifying and/or marking out safe cutting sequences; and/or

               (ii) where to position oneself when cutting

               (iii) (together, Safe Cutting Plan); and/or

2.   ensured that it provided and maintained consistent procedures for safely carrying out oxy-cutting of Oversize Items at the   Paradise Yard, in particular addressing:

      a) the oxy-cutting of Oversize Items generally; and/or

      b) the risk of being crushed by a falling piece of an Oversize Item; and/or

      c) work practices to mitigate that risk, namely Safe Cutting Plans; and/or

3.   ensured that the content of the training and procedures referred to in items 1-2 above was available  to  and/or  communicated to the Deceased, in a language readily and clearly understood by him; and/or

4.   ensured that the Deceased was sufficiently supervised, when oxy-cutting the Oversize Item on 5 November 2011, such that the Accused's procedures described at above paragraphs were consistently enforced and applied.

Taking any or all of these measures would have mitigated the risk of the Deceased being crushed by the piece of excavator bucket, and consequently killed, on 5 November 2011.

The Accused entered a guilty plea and was convicted.  The Magistrate gave an initial fine of $120,000 which was reduced by 25% for a guilty plea and then reduced again for other mitigating factors to $80,000.