|Offender||Salvatore Tomo MANGIONE|
|Charge||Charge Number||Offence Date||Date Convicted||Regulation||Section||Penalty Provision||Penalty Imposed||Date Sentenced|
|1||PE39880/2018||28 January 2016||27th June 2022||19(1) 19A(2) 55(1)||3A(3)(a)(i)||$70,000.00||27th June 2022|
|Description of Breach(es)||
The Accused was the director of a body corporate guilty of an offence under the Occupational Safety and Health Act 1984, where that offence occurred with the consent of the Accused; or was attributable to neglect on the part of the Accused
The Offender was the Managing Director of Resource Recovery Solutions Pty Ltd (Resource Recovery).
Resource Recovery is a company that specialises in recycling waste from construction and demolition sites. Its primary place of business is at 50 Clune Street, Bayswater (Workplace), which comprises a small office building attached to a waste processing plant (Plant)
The Plant contains a complex automated recycling system that involves the waste material being moved through various screening stations by a series of conveyor belts.
The Offender has an office at the Workplace, and that was his usual place of work. He was usually at the Workplace five days a week. The Offender had the requisite level of control to implement changes at the workplace.
The Plant operated two daily shifts, each of which was managed by a Plant Manager who had responsibility for the operations of the Plant during their shift and who reported directly to The Offender. The purpose of the Plant is to separate the waste material into various products that can be on-sold by Resource Recovery. To do this, the conveyor belts take the waste material through a series of automated stations where different machines remove different types of material. Once the material has passed through those stations, it reaches a small pre-fabricated hut called the picking station (Picking Station).
In the Picking Station, several workers (Pickers) manually remove items from ‘picking' conveyor belts that have been designed to be used safely for this purpose. The Pickers remove things such as plastic, food scraps and paper and leave other items such as bricks, stones and timber to be processed by other machinery downstream. After the waste material passes through the Picking Station, it is taken to further automated stations.
One area of the plant that masonry and rocks travelled to was called Area 5 (Area 5). In this part was a conveyor belt known as the Diversion Belt.
The Diversion Belt was only required when the crusher was in operation. The crusher (and hence the Diversion Belt) was generally operated about half the time when the Plant was in operation.
Blockages & the Diversion Belt
In addition to sorting materials inside the Picking Station, the Pickers’ job included assisting in clearing blockages of the Diversion Belt. The Diversion Belt became blocked frequently while in operation and there was pressure on the Pickers to clear blockages to get the system working again.
The only way to clear a blockage was manually. There was no automatic system that could clear blockages. After the Diversion Belt had been cleared of a blockage, it needed to be visually monitored to ensure the entire blockage had been cleared and the belt was running properly.
Resource Recovery had a verbal procedure for clearing blockages of the Diversion Belt, however, the procedure was not implemented consistently or was so inadequate as to amount to no procedure at all. As such the Pickers regularly removed stones and obstructions from the Diversion Belt with their hands while the belt was operating.
Most of the Pickers were supplied to Resource Recovery by another company, Mode 2 Group Pty Ltd (Mode 2), under a labour hire agreement.
The Pickers supplied by Mode 2 were essentially unskilled and unsophisticated workers from Sri Lanka, with different backgrounds and no previous experience working in a recycling facility. They had limited understanding of English.
Before starting work, the Pickers were given an induction at Mode 2’s premises by a representative of Mode 2 and then on-site induction and training by a Plant Manager employed by Resource Recovery. The on-site induction and training was done in English and was limited in nature. The Pickers were then trained under a buddy system, which involved the new Pickers learning the job by watching other more experienced Pickers before performing any work themselves.
The victim was one of the Pickers supplied to Resource Recovery by Mode 2. He started working at Resource Recovery in about May 2015 and had been through the buddy system.
Accident involving the victim
On 28 January 2016, an accident occurred where the victim was seriously injured (Incident). The Incident occurred as follows:
The workers had accessed Area 5 from the Picking Station via a walkway and had passed through a gate just prior to the Diversion Belt. While the gate had a bolt lock fitted, the gate was open when the Pickers arrived. The gate was not, at the time of the Incident, part of an interlock system that stopped the conveyor belts.
At the time of the Incident, no lock out, tag out procedure was followed to isolate the moving parts of the Diversion Belt.
Resource Recovery’s conviction
Resource Recovery was (following a trial and appeal) convicted of an offence under sections 19(1) and 19A(2) read with section 23F of the Occupational Safety & Health Act 1984 (WA) arising out of the Incident. It was fined $230,000 from a maximum fine of $400,000. No costs were ordered as agreed between the parties.
It was found that it was practicable for Resource Recovery to have:
It was found that Resource Recovery’s failure to implement those practicable measures caused the victim’s injury. Resource Recovery’s offence occurred due to The Offender’s neglect.
Timeline of Relevant Events
On 19 December 2013 The Offender was advised by Worksafe Inspectors that numerous conveyor belts at the Workplace were not adequately guarded;
The Offender was aware that on 23 February 2015 a worker suffered a broken arm when his arm was dragged into an inadequately guarded moving conveyor at the Workplace;
The Offender was aware that on 4 March 2015 a WorkSafe Inspector issued Resource Recovery with an Improvement Notice 61500197 with a compliance date of 30 June 2015, requiring it to ensure that all dangerous moving parts of plant at the Workplace were adequately guarded in accordance with regulation 4.29 of the Occupational Safety and Health Regulations 1996;
On 4 March 2015 copies of two publications about machinery guarding, ‘Machinery and Equipment Safety – an Introduction’, and ‘Code of Practice – Safeguarding of Machinery and Plant (2009)’ were provided to Resource Recovery’s Plant Manager.
WorkSafe Inspectors visited the premises in August and October of 2015 and informed the Plant Manager that the level of guarding put in place to that date did not amount to compliance with the Improvement Notice.
On 18 January 2016 the WorkSafe inspector sent a letter (by email) to The Offender seeking an update. On 25 January 2016 The Offender replied to the WorkSafe inspector’s email by attaching the compliance slip to the Improvement Notice, signed by The Offender, and indicating that all dangerous moving parts of plant at the Workplace were now adequately guarded.
The Improvement Notice was subsequently found to be invalid by the Supreme Court on the basis that the inspector failed to state in the notice the reasonable grounds for forming his opinion that a contravention had occurred.
The offender entered a guilty plea on 27 June 2022 and was convicted. The Magistrate fined the Offender $70,000. No order for costs as agreed.
|Court||Magistrates Court of Western Australia - Perth|
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