In April 2018, a New South Wales Court fined two companies for WHS offences after a worker sustained serious injuries because they weren't provided work instructions in their native language.

Facts

Mr Pang was provided by labour-hire company Mondex Group Pty Ltd (Mondex) to meat processor EC Throsby Pty Ltd (ECT) to work as a cleaner. The 22 year old student from Hong Kong suffered lacerations, a severed tendon and compound fracture of his left arm when he was cleaning a meat mincer and his arm contacted a rotating paddle. Mr Pang had been trained in the procedure to clean the mincer. He was required to open the lid and scrub the mixing bowl and paddle.

Two weeks prior to the incident, ECT disabled the proximity switch on the mincer, in order to increase production. The switch stopped the mincer operating when the lid was open. An electrician employed by ECT expressed concerns to his supervisor about bypassing this safety feature. ECT believed disabling the proximity switch posed a minimal risk to workers during production because they did not need to access the top of the machine. ECT conducted a risk assessment, but did not consider the operation manual for the mincer, or the risk posed to cleaners.

The instructions given to Mr Pang following the modification were inadequate. He was verbally advised the mincer would operate with the lid open and that he needed to exercise caution and keep his arms clear whilst cleaning. He was told to stop the paddle by using the emergency stop button near the chute of the mincer, then scrub the mixing bowl and paddle with a stick with a scrubbing pad attached to the end. ECT didn't consult with or notify Mondex about the modifications.

Charges

Mondex and ECT pleaded guilty to failing to uphold their primary duty of care to ensure, so far as reasonably practicable, the health and safety of workers.

Findings

Judge Scotting of the NSW District Court found ECT usually translated its protocols and work instructions into all languages of its 417-visa workers, and provided these to Mondex. As the result of an oversight, this hadn't occurred here. Mr Pang was given an induction manual in English and Mandarin, but the standard operating procedures only in English (although Mr Pang's English had been assessed by Mondex as 'competent').

ECT did not notify Mondex of the mincer modifications. Mondex did not have a procedure requiring ECT to notify it of proposed changes which might necessitate risk assessments. If it had, Mondex could have required a detailed work instruction be translated into native languages. ECT created an 'obvious' risk of workers trapping their hand or arm by disabling the proximity switch. ECT failed to have this risk properly assessed.

Judge Scotting held 'the culpability of ECT [was] substantially greater than that of Mondex'. However, it was reasonably practicable for Mondex to require ECT to consult with it before making decisions that could impact the health and safety of its workers.

ECT was fined $90,000 plus $35,000 in costs. Mondex was fined $15,000 plus $33,000 in costs. This was after both received 25% discounts for early guilty pleas.

Lessons

The case is a reminder that health and safety obligations extend beyond immediately engaged workers, to others on the premises. There is a need to assess risks to these persons as well. ECT considered the risk to its staff but not to the cleaners who accessed the equipment. The case also highlights the need to have systems in place to communicate any changes which might pose a health and safety risk, in order to fulfil work health and safety obligations. Mondex fell short of its obligations in failing to do this.