In April 2009, the SAIRC in Hillman v Paperlinx Australia Pty Ltd  SAIRC 31 convicted and fined an employer for failing to ensure that an employee was safe from injury and risks to health while at work, in breach of section 19(1) Occupational Health and Welfare Act 1986 (SA) (OHW Act). The defendant, Paperlinx Australia Pty Ltd (Paperlinx), carried on business as a stationery products manufacturer.
An employee of Paperlinx, Mark Barton (Barton), was injured when his right hand became trapped between two unguarded rollers in a printing machine which were 15 to 20mm apart. The injury occurred when Barton was attempting to remove twisted paper from the rollers while the machine continued to operate at normal running speed. Barton suffered a crush and degloving injury to his dominant right hand as a result of the incident. The charge was based upon two failures by Paperlinx: firstly, a failure to provide plant in a safe condition and secondly, a failure to provide and maintain reasonably practicable safe systems of work.
Failure to provide plant in a safe condition
In relation to the first failure, Paperlinx had failed to guard the rollers and failed to guard or regulate access to the top of the machine rollers and nip points. Furthermore, the access ladder and platform which allowed easy access to the top of the machine were not subject to any guarding or interlocking mechanisms. It was found that Paperlinx was aware that its employees were exposed to a risk of injury from the unguarded points and although engineering controls had been identified as the most appropriate method to reduce risk, repeated recommendations were not acted upon by Paperlinx. Paperlinx had administrative controls in the form of safe operating procedures in place; however, those procedures were not enforced.
Failure to maintain safe systems of work
The second failure was a failure by Paperlinx to provide and maintain reasonably practicable safe systems of work. In particular, Paperlinx failed to develop or implement adequate safe operating procedures for clearing paper from the printing machine before a jam had occurred. Paperlinx had posted a warning sign on the machine and told its employee not to remove paper from the machine while it was running. However, supervisors, managers and the site engineer at Paperlinx were aware that it was common practice to remove paper from the machine while it was still running.
When considering an appropriate penalty, the court took into consideration a similar incident that occurred at Paperlinx two and a half years prior to Barton's injury and in respect of which a conviction under section 19(1) OHW Act was recorded only two months prior to the second incident. The previous incident involved a similar machine and a hand injury which also involved fingers being drawn between unguarded rollers.
Magistrate Hardy noted his concern that Paperlinx had learned little or nothing from the previous incident and that Paperlinx had dealt with the risk by implementing safe operating procedures which were inadequately applied. Magistrate Hardy observed that even though the guarding and preventative measures were expensive, not simple to achieve and required some resources, they were actioned fairly quickly once the machine was subject to a prohibition notice and had to be guarded. Magistrate Hardy convicted Paperlinx and imposed a penalty of $35,000, reduced by 25% in respect of demonstrable contrition and an early guilty plea.
OHS legislation in Australian states and territories provides maximum fines for OHS offences. In South Australia the maximum penalty for a subsequent OHS offence by a company is $600,000 (although it was $200,000 at the time the incident occurred). The penalty range for OHS offences varies across jurisdictions, for example in Queensland the maximum penalty which may be imposed on a corporation for an incident which causes death or grievous bodily harm is $500,000 and in Tasmania the maximum penalty for an OHS offence by a corporation is $180,000.
Australian states and territories also have legislation which sets out sentencing principles which guide the courts in determining an appropriate sentence. For example, in Queensland, a court must have regard to sentences imposed on the offender in another State or Territory for an offence committed at, or about the same time, as the offence for which the court is considering an appropriate sentence. In South Australia, a court in determining a sentence for an offence may have regard to other offences (if any) that are to be taken into account.
In effect, where an obligation holder is found guilty of a subsequent offence, there is an increased likelihood that:
- a conviction will be recorded; and
- the fine imposed will be higher than for a similar offence which is a first offence.
In some states and territories such as South Australia and Western Australia, the OHS legislation expressly provides a higher maximum penalty for subsequent offences.
Lessons for employers
This decision demonstrates the importance of implementing more effective controls to address risks in the workplace where administrative controls are disregarded by employees and supervisors in practice. It is common across all jurisdictions that subsequent OHS offences are more likely to result in a conviction being recorded and higher fines being imposed against obligation holders. It is therefore important that obligation holders take positive steps to rectify inadequate procedures identified by the court in an OHS prosecution and further ensure that all safe work procedures are implemented, monitored and enforced in order to decrease the risk of further injury or death.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.