|Auscon Metals Pty Ltd (ACN: 108 260 939)
|10th February 2021
|10th February 2021
|Between 5/07/2017 and 9/10/2017
|10th February 2021
|23I(3) 23J(1) 54
|10th February 2021
|Description of Breach(es)
Charge 1 – 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.
Charge 2 – Being an employer, failed to notify the Commissioner forthwith of an injury of a kind prescribed, incurred to its employee at a workplace.
On 5 July 2017, a worker suffered serious injuries when his right arm was pulled into a conveyor belt at his workplace, a scrap metal recycling premises operated by the Accused.
The victim was trying to clear a jam in the conveyor belt at the time. He was able to remove the guards preventing access to the conveyor belt using a screwdriver. He did not realise that the jammed conveyor belt had not tripped out and would therefore resume operating once the jam was cleared.
The Accused failed to notify the WorkSafe Commissioner of the victim’s injuries until 10 October 2017, following the intervention of a WorkSafe inspector.
The Accused's operations
The Accused is a scrap metal recycling business. The Accused has operated from their place of business at 26 Keates Road, Armadale 6112 since 2004,which includes an office, workshop, weighbridge, scrap metal stockpiles and machinery used to move this scrap metal (Workplace).
At all material times, the Accused employed approximately 25 - 30 employees at the Workplace, including the following employees in the following roles.
(a) Machine operator (the victim)
(b) Weighbridge operator / safety officer
(c) Supervisor / shredder operator / mill superintendent
(d) Machine operator / assistant supervisor
(e) Labourer / plant operator
(f) Picking shed labourer 1
(g) Picking shed labourer 2
(h) Picking shed labourer 3
(i) Service truck operator
(j) Business development manager
(k) Sales manager
The supervisor supervised several of the employees in the area of the shredder, which included a Sancon conveyor belt (Sancon 1) attached to an eddy current separator (ECS) machine. The victim reported to and was assigned his duties by either the managers of the Accused or the supervisor of the mill area surrounding the shredder and Sancon 1, the supervisor who reported to the managers of the Accused, being the two directors. The directors of the Accused have been associated with the recycling industry since 1993.
From time to time the company outsourced electrical and mechanical work. Two of those relevant contractors were an electrician, and a mechanic.
Scrap metal recycling process
A number of machines were used by the Accused in its scrap metal recycling business at the Workplace, including shredders, screening machines and conveyors that are used to carry out the work activities.
The Accused receives raw recyclable materials. After various sorting and screening processes, the product is then processed through an ECS machine. The product travels over the ECS, which throws the non-ferrous materials off the conveyor belt.
The Accused has three Sancon conveyor belts. Sancon 1 was used to move the waste product that falls from an ECS machine. Sancon 1 was powered by a nearby Cat diesel generator.
The Accused purchased Sancon 1 around 14 November 2014, but it was not made operational until 2016. The victim has operated Sancon 1 since around December 2016.
As at 5 July 2017:
(a) Sancon 1 was started up and shut off by a button at the control panel located up a set of stairs near the ECS above Sancon 1. When pressed, the buttons on the control panel would shut down (but not isolate) the machine;
(b) the handle on the door to the control panel was damaged, which made access to the control panel and thus any lock out attempt more difficult;
(c) Sancon 1 could only be isolated by unplugging its power source, which was not immediately accessible to an operator;
(d) Sancon 1 was fitted with an overload switch, which could cause the machine to trip out if it became jammed. This overload switch was located on the control panel;
(e) Sancon 1 did not have an emergency stop pull wire or other switch fitted to the conveyor belt. While a pull wire switch was an option featured in the operating manual for Sancon conveyor belts, the Accused had not purchased a pull wire switch for Sancon 1;
(f) Sancon 1 was not affixed with signage alerting employees to danger;
(g) Sancon 1 had yellow guards in place on the sides of the machine to prevent access to pinch points associated with the conveyor rollers;
(h) Sancon 1 had previously become jammed on several occasions;
(i) the Accused had a generic isolation procedure for plant and machinery.
(j) the Accused did not have records of employee training with respect to this generic isolation procedure;
(k) the Accused had no written procedure to deal with jams of the Sancon conveyor belts;
(l) the Accused did not have records of employee training with respect to the Sancon conveyor belts;
(m) the Accused did not have any formal policy regarding the tools that an employee working with the Sancon conveyor belt could carry or obtain; and
(n) the Accused did not provide lock-out or tag-out equipment to its employees.
Regulatory and guidance material
As at 5 July 2017:
(a) the Occupational Safety and Health Regulations 1996 provided for:
(i) the display of warning signs for hazards that may not be readily apparent to persons working in the area (reg 3.11);
(ii) the identification of hazards associated with plant at the Workplace, assessment of risks resulting from those hazards, and consideration of whether the risks may be reduced (reg 4.28);
(iii) emergency stop devices on plant to be prominent, clearly and durably marked and immediately accessible to each operator of the plant (reg 4.29(m)(i));
(iv) every dangerous part of plant to be securely fenced or guarded (reg 4.37(1)(f));
(v) where neither a permanently fixed nor interlocked physical barrier was practicable, guarding for plant to comprise a physical barrier securely fixed in position by means of fasteners or other suitable devices sufficient to ensure that the guard could not be altered or removed without the aid of a tool or key (reg 4.29(i));
(vi) where guarding of any moving part of plant did not eliminate the risk of entanglement, persons not operating or passing in close proximity to the moving part unless a safe system of work was in place to reduce the risk as far as was practicable (reg 4.29(j));
(vii) inspection, repair, maintenance, alteration and cleaning of the plant at the workplace to be carried out having regard to procedures recommended by the designer or manufacturer or, if those recommendations are not available, procedures developed by a competent person (reg 4.37(1)(b));
(viii) guarding on a machine to be kept in position while the plant was operated (reg 4.37(1)(h));
(ix) the identification of hazards associated with energy sources if access to the plant was required (reg 4.37A(2));
(x) if access to the plant was required, authorised persons, if it was practicable to do so, to stop plant and reduce risks as far as was practicable (reg 4.37A(3)); and
(xi) if access to the plant was required, an authorised person, if it was practicable, to carry out and confirm de-energisation, lock-out and isolation procedures (reg 4.37A(4)).
(b) Standards Australia required machinery such as Sancon 1 to have accessible pull levers and emergency stops, including in the following standards:
(i) AS1755-2000: Conveyors-Safety requirements published on 6 November 2000, which sets out the minimum safety requirements for the design, installation and guarding of conveyor and conveyor systems, including that:
A. a pull wire was considered to be adequate for ensuring that they conveyor could be stopped in an emergency (at [2.7.7]); and
B. pull wires should be readily accessible from all areas of access to the conveyor (at [184.108.40.206]);
(ii) ASNZS 4024.1201-2014: Safety of machinery General principles for design - Risk assessment and risk reduction published on 30 June 2014, which specifies basic terminology, principles and a methodology for achieving safety in the design of machinery, including that:
A. pull wires shall be installed where readily removable guards are used without interlocks where reasonably practicable (at [220.127.116.11]); and
B. pull wires should be located in such a manner that they are readily accessible for a person potentially trapped in a danger area (at [18.104.22.168]).
In September 2010, a WorkSafe Inspector as part of an inspection of the Accused's Workplace, provided the Accused's director with the WorkSafe publication "The First Step: Managing Safety and Health Hazards in Your Workplace", which included guides and checklists for reviewing machinery and guards for hazards, including that:
(a) safe work procedures are provided and documented to use and maintain machinery;
(b) operators and maintenance personnel are properly trained, familiar with the operation and set up of machinery and able to demonstrate safety features ;
(c) guards are secured or otherwise prevented from opening while machinery is in operation;
(d) appropriate isolation procedures are provided for maintenance ;
(e) machine controls are protected to prevent unintentional operation, clearly marked and within easy reach of the operator ; and
(f) warning signs and decals are clearly visible .
In July 2012 and December 2012, two other WorkSafe Inspectors respectively, conducted inspections of the Accused's Workplace and also provided one of the directors with the "The First Step: Managing Safety and Health Hazards in Your Workplace" document to the Accused.
In July 2014, another WorkSafe Inspector conducted an inspection of the Accused's Workplace, discussed isolation procedures and provided the same director with a copies of the following WorkSafe publications:
(a) Guidance Note: Isolation of Plant 2010, which informed the Accused of its obligations to:
(i) develop written isolation procedures that must be followed to ensure that plant and related hazards cannot jeopardise the safety of those working on the plant ;
(ii) strictly adhere to any isolation system ; and
(iii) appoint an ‘authorised person’ who knows and understands the complexities of the plant ; and
(b) Code of Practice: Safeguarding of Machinery and Plant 2009, which was a code of practice pursuant to s 57 of the Occupational Safety & Health Act 1984 (WA), and required the Accused to, amongst other things, ensure that emergency stop devices, such as pull wires, were prominent, clearly and durably marked and immediately accessible to each operator of machinery and plant.
Following each of these workplace investigations between September 2010 and July 2014, the Accused was issued with multiple improvement notices, requiring it to take certain measures to minimise the risks of various hazards, including:
(a) on 24 September 2010, a WorkSafe Inspector issued an improvement notice (ref: 21201306) for a contravention of reg. 4.37(1)(f) arising from failure to have adequate guarding of dangerous moving parts on a baler used for baling vehicle radiators such that there was a risk of serious injury such as the crushing of body parts; and
(b) on 6 December 2012, a WorkSafe Inspector issued an improvement notice (ref: 64900247) for a contravention of reg. 4.37(1)(f) arising from a failure to ensure that the Hafco Metal HPM063 Press was securely fenced or guarded in accordance with regulation 4.29 such that there was a risk of serious injury including amputations/crush injuries.
Each of these notices were specifically addressed to the director of the Accused.
Training & instruction
The supervisor commenced working for the Accused in around May 2015. In July 2017, the supervisor had day to day responsibility for the shredder mill operations and supervised the work involved with the shredder mill area, including the work performed by the assistant supervisor, the plant operator, picking shed labourer 1 and the victim.
The Supervisor received a verbal explanation of certain hazards associated with the Sancon conveyor belts when he started using these machines. These hazards included the machine's pinch points and grab points.
The supervisor had not received formal training from the Accused in relation to isolation and tag out procedures but had some prior knowledge from his earlier work in the oil and gas industry.
The supervisor applied maintenance procedures from the Bonfiglioli shredder's technical manual to the Sancon conveyor. This technical manual for the Bonfiglioli shredder was written in Italian. The supervisor would provide new staff with informal training based on his knowledge of the machines.
The supervisor works primarily from the control room. From this room, he can stop the shredder feed if one of the machines down the line becomes jammed. The supervisor could not see Sancon 1 from his position in the control room.
The supervisor was aware that the Sancon conveyor belts could become jammed. He informed the victim that, in the event of a jam of Sancon 1, the victim should notify him of the jam so that he could switch off the shredder and other machines to stop the flow of material to Sancon 1.
The supervisor was not present at the Workplace at the time of the incident on 5 July 2017.
In July 2017, the assistant supervisor assisted the supervisor with operating the shredder mill. His duties included operating the shredder, forklift, excavator, and conveyor belts. If the assistant supervisor noticed machinery had jammed, he would inform the supervisor.
At the time of the incident on 5 July 2017, the assistant supervisor was in the shredder mill control room. He was not able to see Sancon 1 from his position in the control room. He first heard about the accident over his two-way radio when someone transmitted that the victim was trapped in Sancon 1.
The plant operator commenced working for the Accused in around August 2016. The plant operator received induction training from the Weighbridge & Safety Officer and the supervisor around this time.
The plant operator’s regular duties were generally clearing up around the Workplace. He would assist with operating the machines around Sancon 1 if the victim was absent. The plant operator had not received formal instruction on how to deal with such a jam other than to notify the supervisor if Sancon 1 jammed and turn off the machine.
The plant operator wore ear plugs and ear muffs whilst working.
In the event of a jam in Sancon 1, the plant operator knew to notify the supervisor of the jam and shut down the machine. The plant operator cleared jams from Sancon 1 on two occasions. The victim cleared these jams on the other occasions. The plant operator would use a screw driver or other tool to remove the material causing the jam.
The victim commenced working for the Accused in around August 2013. He received induction training from the Weighbridge & Safety Officer around this time. Around this time, he was given an induction handbook by the Weighbridge & Safety Officer that included instructions:
(a) not to use machines that were locked out or tagged out; and
(b) that machinery with guards was only permitted to be used by authorised personnel that had been fully trained in the use of the machines.
Prior to around December 2016, the victim operated the granulator and stripped car bodies at the Workplace. In around December 2016, he was assigned to the area around Sancon 1. The victim monitored the machines in the area surrounding Sancon 1, cleaning the surrounding area and replacing full bins.
The victim did not have access to isolation devices and had not seen people use isolation devices to service machinery. He had not been instructed to lock out and tag machinery to service it. He did not have access to a two-way radio in July 2017.
The victim regularly carried tools, including a screwdriver, with him in the course of his duties.
The victim had not received formal instruction on how to deal with a jam of Sancon 1 other than to notify the supervisor if Sancon 1 jammed and turn off the machine. He often cleared the jam in Sancon 1 himself. This involved removing the guards on the sides of the machine. This was contrary to the Accused's procedures in its induction handbook. The victim did not always report this to the supervisor. In most cases, it would take the victim only a few minutes to clear a jam.
Incident on 5 July 2017
At around 9:00am on 5 July 2017, following the victim’s pre-start procedure, the victim noticed that Sancon 1 had jammed. Sancon 1 could become jammed if metal became trapped in a roller behind the guard. He assumed that Sancon 1 had tripped out when it jammed. The circuit breaker that would trip was located inside the control panel up the stairs from Sancon 1. Sancon 1 had on previous occasions tripped this circuit breaker when it became jammed.
In fact, however, Sancon 1 had not tripped out; it was still powered, but not moving and not loud enough to be heard by the victim. The victim was unable to hear whether the machine was still operating as he was wearing ear plugs at the time due to the noise of the machines.
The rollers within Sancon 1 could be accessed by removing the yellow guard on the sides of the machine. The victim used the screwdriver that he regularly carried with him to remove the guard near the lower roller of Sancon 1.
Without switching off the machine, the victim reached into the machine with his right hand to flick out the metal jammed against the roller. When he did so, the roller caught his glove and drew his arm up to the elbow under the roller. He shouted for help.
The service truck operator saw the victim trapped with his arm in Sancon 1 and went to assist him. Around the same time, the picking shed labourer 3 and the plant operator, nearby employees working in the picking shed, heard him and ran across to assist.
The service truck operator and the picking shed labourer 3 noticed that Sancon 1 had stopped, was not making any noise, and was not moving. The service truck operator had a two-way radio and signalled for help. Sancon 1's belt was cut to remove the victim’s arm. One of the Accused’s managers then brought the victim to Armadale Hospital for treatment.
The victim’s injuries
As a result of being drawn into Sancon 1, the victim suffered extensive injuries, including:
(a) fractured radius and ulna; and
(b) ruptured flexor tendons.
Following the incident, the victim underwent multiple procedures on his injured right forearm, including:
(a) a split thickness skin graft on 14 July 2017;
(b) nerve transplant surgery along with a further skin graft; and
(c) bone graft surgery on both bones.
After his accident, the victim was diagnosed as totally unfit for work until at least December 2017, after which he was variously diagnosed as either totally unfit for work, or fit for restricted duties only, until around August 2018.
The victim returned to work for the Accused at the Workplace sometime around October 2018.
Control measures implemented subsequent to 5 July 2017
On around 7 July 2017, a red emergency stop pull wire lanyard was fitted to Sancon 1. The pull wire was immediately accessible by a person working on or in the vicinity of the conveyor belt.
In October 2017, the weighbridge / safety officer developed the Safe Work Procedures Conveyors document.
This new procedure provided that:
(a) employees working in areas where conveyors will be operating must be instructed in the safety precautions to be observed when working with or near conveyors. Instruction must also include prohibited actions and access and the location and operation of safety devices (including emergency stops);
(b) employees should always isolate and lockout operating controls and power sources, and place DANGER Out of service tags or similar controls before working on conveyors ; and
(c) conveyors should be stopped and isolated before cleaning except where sweeping of belt surface can be carried out using a tool with handle fitted.
At some point between 13 October 2017 and 23 January 2018, the Accused repaired the door of the control panel from which Sancon 1 was operated, and installed a latch on the door to enable a lock out device to be applied.
On or around, 21 November 2017, the weighbridge/safety officer developed a more comprehensive isolation procedure. This new isolation procedure provided that:
i) lock out and isolation procedures should only be performed by an authorised person;
ii) an energy isolating device, which is defined as a device that physically prevents the transmission or release of energy such as a manually operated circuit breaker, should be used to prevent the release of energy;
iii) a lock out device, which is defined as a device that prevents the inadvertent energising of an energy source on plant or equipment, should be used to prevent the inadvertent energising of the machine;
iv) a supervisor/ manager must ensure that plant or equipment was to be fully isolated prior to cleaning, servicing, repairing or alteration ; and
v) a supervisor/manager must ensure that authorised persons were competent to carry out lock-out, tagging and isolation procedures.
At some point after the incident on 5 July 2017, the Accused:
(a) installed safety signage on Sancon 1, including "KEEP HAND CLEAR" and "EMERGENCY STOP CABLE"; and
(b) increased the number of two-way radios available to employees.
Practicable measures that could have been taken prior to 5 July 2017
Prior to and as at 5 July 2017, it was reasonably practicable for the Accused to have required that Sancon 1 was not operated at the Workplace unless and until:
(a) Sancon 1 had been fitted with a pull wire switch, lanyard or other emergency stop mechanism in a position immediately accessible by a person working on or in the vicinity of the conveyor belt; and/or
(b) Sancon 1 had been fitted with a physical guard that was removable only with the aid of a tool not normally available to the operator; and/or
(c) any person operating Sancon 1 had been trained and demonstrated competence in:
(i) identifying whether the machine was unpowered or tripped out; and/or
(ii) switching off the entire machine; and/or
(iii) isolating, locking out and/or tagging out the entire machine, before removing the guards (Safety Procedures); and/or
(d) compliance with the Safety Procedures was enforced, via supervision or otherwise.
Taking any or all of these measures would have mitigated the risk of the victim suffering his injuries in the Sancon conveyor belt on 5 July 2017.
Notification of the victim’s injuries
Between 5 July 2017 and 10 October 2017, the Accused did not notify WorkSafe of the victim’s injuries.
Following an investigation into the Accused, a WorkSafe Investigator issued a notice to report the accident to WorkSafe on 9 October 2017.
WorkSafe was notified of the victim’s injury on 10 October 2017.
The accused plead guilty and was convicted on 10 February 2021.
Charge 1 - The Magistrate imposed a principal penalty of $60,000 which was reduced by 25% for early plea and further $5000 for other mitigating circumstances to $40,000.
Charge 2 – The Magistrate imposed a principal penalty of $12,500 which was reduced by 25% for early plea to $9,300.
Costs of $6,200 were ordered.
|Magistrates Court of Western Australia - Armadale
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