Prosecution Details

Being an employer at a workplace, failed to ensure that dangerous parts of a machine were securely fenced or guarded in accordance with regulation 4.29 of the Occupational Safety and Health Regulations 1996 (WA).

Background

Ellement Bros Pty Ltd trading as Ellement Produce (the Accused) is an Australian Company, Australian Company number 166 932 216. The offender has two company Directors, who were appointed on 25 November 2013 after taking over their parents established leek farm business. The offender is an operational vegetable farm and packing facility located at 70 Mandogalup Road, Mandogalup WA 6167 (Workplace).

Employment

The offender’s employees included a supervisor, contractor for maintenance and a number of employees working at the workplace. They also employed the injured person on a casual basis as a farm labourer and he commenced employment on or around 5 March 2019.

Workplace

The offender grows and processes leeks, radishes and carrots for retail to supermarkets. The workplace consists of the farm and paddocks, as well as several processing buildings. The incident on 31 May 2019 occurred within the leek processing area of the workplace which consists of a large shed which incorporates conveyors and a Briand leek processing machine. An external conveyor, upon which the leeks are placed, feeds directly into the leek machine. The work process being undertaken at the time of the incident was the offloading and placing of leeks onto the conveyor in preparation for processing. The leek machine is a contained blade cutter which washes and trims the leek ends to a specific size. In order for the leek trimming operation to be successful, the leeks must be lined up at a specific point on the conveyor belt to ensure that the leek is trimmed optimally.

Within the shed there are several workers on the other side of the leek processing machine who will peel and trim any excess from the product and pack it in readiness for transport. However, processing of the leeks begins outside of the shed, on the external conveyor belts system. The leeks are delivered in a wheel like device used in the paddocks for harvesting. The conveyor has a specially adapted holder that permits these wheels to fit onto the back of them and place the leeks onto the conveyor individually.

Hazard

In this matter, the hazard at the workplace was the moving parts of the lower conveyor belt attached to the Briand leek processing machine at the workplace, where a body part could be drawn in and crushed or entangled (Hazard).

The Code of Practice titled “Safeguarding of machinery and plant” (Code of Practice) outlines the hazards associated with machinery including unguarded conveyors. The main hazards of a conveyor are the numerous in-running nip points, which present a risk of entanglement, crushing and abrasion. The drive system itself may also pose risks of entanglement or abrasion. It describes the most effective way of controlling this measure by using fixed guards or other controls including electrical isolation, start and stop controls and training.

The Code of Practice also describes the process for evaluating the risk involved in the normal work practices in relation to working around unguarded machinery. This would include assessment of areas of the machine which is not within their normal operational area where there is a possibility of interaction with the hazard. It outlines the requirements as prescribed in the Occupational Safety and Health Regulations 1996 (WA) (Regulations), in particular Regulation 4.29 which requires the hierarchical approach to guarding. If it is practicable to eliminate the risk of a hazard via guarding, then the employer must ensure that the dangerous part is securely fenced or guarded.

Description of the incident

On 31 May 2019, the workplace and the employees of the offender were performing their usual work. The victim observed that there was ‘gunk’ in the lower conveyor (the detritus and waste from the washing and processing procedure) and began looking around the work area. The other employee observed the victim on the ground next to the conveyor holding a leek in his hand and pushing the leek into the roller in order to clear the waste. The other employee states that as this method was not working, the victim began to flick the conveyor with his fingers to dislodge the waste.

Shortly after, the other employee heard a loud shout and witnessed the victim’s right arm caught in the conveyor.

The victim was later taken to hospital by St John Ambulance and was treated for a fracture, broken forearm bones on his right arm and open puncture wound. He received surgery on 1 June 2019 for an open reduction and internal fixation of his forearm bones.

The broken arm was a direct result of the incident and evidences the potential serious consequences of the Hazard. However, it is not alleged that the offender caused the resulting serious harm of the amputation to Mr Annakin.

Safety systems on and prior to incident

The offender had not installed any physical guarding over dangerous parts of the lower conveyor of the Briand Leek processing machine, including pinch points, that prevented a person’s body from coming into contact with moving parts whilst the conveyor was operating, and which could not be removed without the use of a tool.

Subsequent to the incident

Subsequent to the incident, WorkSafe visited the workplace on 17 June 2019 and issued five Improvement Notices as follows:

(a)     146700957 Improvement Notice- (Regulation 4.37) - to ensure that dangerous parts of the machinery (the conveyor area where the incident occurred) are appropriately fenced or guarded.

(b)     146700958 Improvement Notice- (Regulation 4.37) - to guard other areas of leek processing machine conveyor system not adequately guarded.

(c)     146700959 Improvement Notice- (Regulation 4.37) - to adequately guard underside of blade cutter and belt drive on leek processing machine.

(d)     142800155 Improvement Notice- (Regulation 4.37A) - to implement a lock out tag out system for general maintenance such as cleaning out the rollers and conveyors during the work activity.

(e)     142800156 Improvement Notice for failing to have a system in place to ensure Notifiable injuries are reported to WorkSafe.

As a result of the notices issued, the offender directed their mechanical maintenance contractor to fabricate appropriate guarding for the conveyors and leek cutting machine. The offender installed temporary guarding on the machine on 20 June 2019 and permanent guarding was installed on 26 July 2019.

The offender nominated an employee as the authorised person to oversee the lock out tag out (LOTO) process for cleaning the lower conveyor belt. This procedure involves switching off the machine, removing the key for the on controls and physically checking that persons were clear of the machine before reactivating it.

The offender also provided employees with additional health and safety training post the incident. Further, the offender created a written procedure titled “Work, Health and Safety Management System” (WHSMS) which explains that effective guarding is critical in protecting workers while using machinery and the steps to take when guarding is required.

Prior Improvement Notices

WorkSafe attended the offender’s previous workplace on 10 October 2014 located on 456 Wattleup road, Hammond Park. In that inspection, the offender was issued with five Improvement Notices with one relevantly in relation to the drive chain on the spreader attached to a Fendt tractor not being appropriately guarded. The Accused complied with this guarding Improvement Notice on 12 February 2015.

The offender entered a guilty plea and was convicted on 19 July 2023. Sentencing occurred on 30 October 2023 where the Magistrate issued a fine of $15,000 and no order for costs.