Prosecution Details

Being a principal who in the course of trade or business engaged a contractor, namely METECNO PTY LTD (ACN 096 402 934) t/as BONDOR, to carry out work for it, the Accused failed to, so far as practicable, provide and maintain a working environment in which persons employed or engaged by the contractor to carry out or assist in carrying out work for the Accused, were not exposed to hazards, being matters over which the Accused had the capacity to exercise control; contrary to sections 19(1), 19A(3) and 23D(2) of the Occupational Safety and Health Act 1984.

The Accused is a company which provides a cold storage and distribution service, which it operates from a workplace at Perth Airport (Workplace), where refrigerated and frozen food products (product) are received and stored, and from which product is dispatched. The Accused caused the refrigerated facility at the Workplace to be constructed in 2013.

The Workplace incorporates a large refrigerated room (transit dock), with truck loading and unloading bays attached on the western and eastern sides, and a number of large freezer rooms and a chiller room (chiller), which are attached to the northern side of the transit dock, with administration offices attached to the southern side.

In the chiller, there are rows of metal racks (racks), in which the product is stored, and which extend from the floor almost to the ceiling.

In early 2014 at the request of one its major clients, the Accused decided to divide the chiller in half and convert one part of the chiller into a blast freezer, in which product could be rapidly cooled, giving it an extended shelf life. 

In about September 2014, the General Manager of the Accused, on behalf of the Accused, retained a project management company, to select and engage a specialist contractor to create the blast freezer by erecting and installing a wall of large insulated panels (wall) in the middle of the chiller (work), and to project manage the work on behalf of the Accused.  The principal and sole director of Spargo Property was Mr Spargo (Spargo), who, in the period of 5 years prior to 5 January 2014, had been employed as a project manager by the parent company of the Accused, Automotive Holdings Group Limited, and, in that capacity, had previously assisted the Accused in the construction of a number of refrigerated facilities, including the construction in 2013 of the refrigerated facility at the Workplace.

Pursuant to its agreement with the Accused, Spargo Property retained Oomiak Industrial Refrigeration (Oomiak), which had been the refrigeration contractor when the refrigerated facility at the Workplace had been constructed, and requested Oomiak to draw plans for the creation of the blast freezer, and to carry out all the refrigeration work necessary for the blast freezer.

Oomiak drew plans for the creation of the blast freezer (plans), and submitted the plans to Spargo Property on 3 October 2014. 

In the plans, it was shown that the wall was to be in that part of the chiller where the top of the wall would be between two large forced draft coolers (FDCs) which hung from the ceiling of the chiller.

The FDCs were the equipment which provided the refrigeration for the chiller, and comprised two large metal boxes with fans on their sides. Each of the FDCs contained coils, and, when the FDCs were operating, ammonia refrigerant (liquid and gas) passed through the coils.  The fans blew air past the coils, which reduced the temperature of the air inside the chiller.

Each of the FDCs was also fitted with a purge valve (purge valve) which was attached to the side of and protruded from a pipe on the FDC, and was used to “bleed” ammonia refrigerant from the pipe when the pressure in the pipe became too great.

Pursuant to its agreement with the Accused, Spargo Property called for tenders to perform the work and, on 10 November 2014, accepted, on behalf of the Accused, a quotation from Metecno Pty Ltd trading as Bondor, a leading Australian manufacturer, supplier and installer of insulated panels (Bondor).  Bondor had supplied and installed all the insulated panels when the refrigerated facility was constructed at the Workplace in 2013. 

It was subsequently agreed between Spargo Property and Bondor that the work would commence at the Workplace on 10 December 2014.

In mid-November 2014, approximately three weeks prior to the work commencing, there was a meeting in the boardroom at the Workplace, which was attended by Spargo, the Major Accounts Manager of Bondor, a representative of Oomiak, and the State Manager of the Accused.

At the meeting:

a)       Spargo told the Bondor Major Accounts Manager that, when Bondor was performing the work, the refrigeration facility at the Workplace would remain active, in that the refrigeration in the facility would continue to operate;

b)       Spargo told  the Bondor Major Accounts Manager that the row of racks which was standing in that part of the chiller where the wall was to be erected, would be removed, to enable the wall to be erected, but that the remainder of the racks, which would be filled with product, would remain in place; and

c)       The Bondor Major Accounts Manager raised no objection to either the refrigeration continuing to operate while the work was being performed or the removal of only one row of racks.

Subsequent to that meeting, the Accused engaged a contractor which removed the row of racks which was standing in that part of the chiller where the wall was to be erected.

On 8 December 2014, two days before the work was due to commence, there was another meeting at the Workplace between the Bondor Major Accounts Manager, the State Manager of the Accused and Bondor’s Construction Manager, who was to supervise the work for Bondor. 

At that meeting, the three men inspected the chiller and saw where the wall was to be erected.

Also during that meeting:

a)       Bondor’s Construction Manager said that there was insufficient space between the racks in the chiller to allow Bondor’s contractors to erect the wall racks by using a scissor lift (scissor lift), which was an elevated work platform which Bondor’s contractors generally used to construct a wall of that type;

b)       Bondor’s Construction Manager asked the State Manager if the Accused could remove more racks from the chiller to provide Bondor’s contractors with more space in which to work when erecting the wall;

c)       The State Manager of the Accused said that he would have to ask Spargo about that, and suggested that the Bondor Major Accounts Manager and Construction Manager go with him to his office at the Workplace, and he would telephone Spargo at his office in Sydney;

d)       The three men then went to the State Managers office;

e)       from his office, the State Manager telephoned Spargo and, when he answered, put him on speaker so that he could also speak to all three men.

f)        Bondor’s Construction Manager  then said to Spargo that, because only one row of racks had been removed in the chiller, there was insufficient space in the chiller for Bondor’s contractors to erect the wall using the scissor lift;

g)       Bondor’s Construction Manager asked Spargo if it would be possible for more racks to be removed before the work commenced.

h)       Spargo told Bondor’s Construction Manager that, because it was almost Christmas, all of the remaining racks in the chiller were fully stocked with product, and, if any of them were removed, there would be nowhere else for the Accused to store the product;

i)         Spargo told Bondor’s Construction Manager that, accordingly, it would not be possible to have any more racks removed; and

j)         Spargo suggested to Bondor’s Construction Manager that Bondor’s contractors might be able to overcome the lack of space by using a different elevated work platform called a boom lift, instead of the scissor lift, because the boom on the boom lift could be extended through the racks.

As previously arranged, on 10 December 2014, Bondor’s Construction Manager and Bondor’s contractors went to the Workplace to commence the work.  One of Bondor’s contractors was Bondor’s Construction Manager’s son (the victim).  Spargo was also at the Workplace on that day.

As at 10 December 2014, the Accused had an online Work Health and Safety Induction Procedure (contractor induction procedure) which it usually required any contractor who was to do work at the Workplace to complete.

Prior to Bondor’s Construction Manager and Bondor’s contractors commencing the work at the Workplace on 10 December 2014, neither the Accused nor Spargo Property ensured that Bondor’s Construction Manager, the victim or any of the other Bondor contractors completed the contractor induction procedure.

In order to fix the wall to the ceiling of the chiller, it was necessary for one of the Bondor contractors to stand on the platform of the scissor lift near to the ceiling, and between and in close proximity to the FDCs. 

Accordingly, there was a risk that, while the Bondor contractor was doing that, or as he was raising or lowering the scissor lift, the scissor lift could come into contact with and damage the FDCs, or one of them, and cause ammonia gas to be released into the Workplace, where it could cause injury to people if inhaled or if it came into contact with their skin (hazard).

On 10 December 2014 Bondor’s Construction Manager and the Bondor contractors commenced the work by using a laser line to determine the precise location for the wall within the chiller.

After Bondor’s Construction Manager and Bondor’s contractors had determined the precise location for the wall, Bondor’s contractors performed the conduction cuts which were required to separate the chiller from the new blast freezer, and installed the receiving angles on the walls and across the ceiling of the chiller, in preparation for the erection and installation of the insulated panels.

On the morning of 11 December 2014:

a)       Bondor’s Construction Manager  approached Spargo and asked to speak to him about the work;

b)       Bondor’s Construction Manager said to Spargo that there was insufficient space in the chiller for the Bondor contractors to erect the wall and asked Spargo to cause more racks to be removed to create more space; and

c)       Spargo said that he was not prepared to remove more racks because there was nowhere else for the Accused to store product which was kept on those racks.

Bondor’s contractors then proceeded to erect the wall.

In the course of installing one of the insulated panels, the victim stood on the platform of the scissor lift, which he caused to be elevated to about 11.5 metres, and positioned it just below the ceiling, in the middle of the chiller, between the two FDCs, and in close proximity to one of the FDCs.

After having installed the panel, the victim moved the scissor lift from its elevated position.   As he did so, the scissor lift swayed, and the top rail of the platform of the scissor lift struck the purge valve on one of the FDCs, causing it to break off from the FDC and release ammonia gas and liquid into the air and into the victim’s face (accident).

Following the accident, the victim experienced a burning sensation in his eyes and throat and his vision became blurred.  He also experienced difficulty in breathing.  He was provided with first aid at the Workplace. A short time later he was assessed by paramedics and transported to Royal Perth Hospital (RPH).

Upon arrival at RPH the victim was found to have burns to his face and throat and was in respiratory distress.  Subsequent medical assessment revealed that he had suffered ammonia burns to his upper airways, and chemical injury to the cornea of one of his eyes and upper airway oedema.  He was intubated and sedated and placed in the Intensive Care Unit at RPH. Gastroscopy investigation revealed that he had an ulcerated palate and an oedematous hypopharynx.

On 15 December 2014, four days after the accident, the victim was extubated (had his intubation removed). Examination revealed no airway issues and good respiratory function.

Following the accident, the scissor lift was examined and no defects or mechanical problems were identified. There was also evidence that the scissor lift had been regularly maintained and inspected prior to the accident.

Also following the accident, the Accused:

a)       amended its ‘Contractor Management Standard’ to add a more detailed explanation of the roles and responsibilities of its management in relation to engaging and supervising contractors;

b)       amended its ‘Visitor / Contractor Induction  Brochure’ to add information on the presence of anhydrous ammonia at the Workplace and to include an induction checklist,  the completion of which by maintenance and construction contractors would ensure that they were made aware of ammonia hazards and controls at the Workplace;

c)       reviewed and improved its existing contractor approval process;

d)       reviewed and improved its contractor risk management training program;

e)       re-trained over 70 managers/supervisors in the contractor risk management training program;

f)        reviewed and amended the contractor induction procedure to include ammonia awareness points;

g)       undertook a due diligence and legal obligations inspection to update its risk assessment (ammonia and diesel tank) documentation;

h)       reviewed and updated its generic company-wide safety risk profile;

i)         enhanced its systems by ordering a portable ammonia detector for the Workplace;

j)         employed a new facilities manager, who was required to take charge of contractors’ work process and to whom any contract project manager, such as Spargo Property, was required to report before work was commenced;

k)       conducted a safety brief on ammonia which was shared with co-workers and was co-presented with a refrigeration engineer from Oomiak;

l)         consulted with Oomiak, and arranged for refrigeration engineers employed by Oomiak to undertake risk assessment reviews to seek out further elimination, substitution or engineering control measures that could be made to the FDCs; and

m)     reviewed and improved safety leadership training for its staff

Also following the accident, the Accused made physical modifications to the Workplace in that it:

a)       caused labels to be placed on ammonia pipework and the FDCs (as required by WorkSafe Improvement Notice 68900427);

b)       caused labels to be placed on all pipes containing ammonia which were located inside the chiller and the blast freezer ;

c)       caused warning signs to be placed on the FDCs, indicating that they were charged with ammonia;

d)       caused protective structures to be installed around all protruding purge valves on the FDCs;

e)       caused high visibility markings to be placed on the FDCs; and

f)        caused reflective strips of tape to be placed on the underside of the ceiling around the FDCs, to provide an ‘exclusion zone’ for maintenance and service work being undertaken around the FDCs.

Prior to the accident, the Accused had not:

a)       provided the victim with, or ensured the victim was provided with, such information, induction and training as was necessary to enable him to perform his work in such a manner that his exposure to the hazard was minimized; or

b)       installed labelling or signage on the FDCs to warn of the presence of ammonia.

Prior to the accident, the Accused had had the capacity to implement each of those measures.

The Accused entered a guilty plea and was convicted on 16 May 2018.  On 20 May 2018 the Magistrate fined the Accused $45,000 and ordered costs of $2900.00.