WHS Act breached through a company’s reliance on an experience worker

Ampeltite Australia Pty Ltd’s reliance on an expert employee to manage machine hazards, and an unstable chair, created a "trap for inexperienced workers", a court has found in fining it $147,000 over an amputation incident and notification failures.

After acquiring a mechanical press from another business, Ampelite hired a worker from the business and then relied on that person to maintain and train workers on operating the machine without ensuring it was safely guarded or implementing a safe work method statement, NSW District Court Judge David Russell found.

In April 2019, an inexperienced machine operator was pressing steel sheets in the press when his chair slipped and caused his foot to activate the press, which crushed his right hand and fingers.

The press's front safety guard, which could be removed when changing its dies, was not fitted to the machine on the day of the incident, Judge Russell heard. It was also missing on several previous occasions that the operator used it, he heard.

The operator suffered serious injuries, including the complete amputation of his right index and middle fingers and the partial amputation of his right ring finger.

Ampelite pleaded guilty to breaching sections 19(1) and 32 of the NSW WHS Act, in exposing the operator to the risk of serious injury from coming into contact with the press's unguarded moving parts.

It also pleaded guilty to breaching its section-38 duty to ensure SafeWork NSW was notified of the incident because it mistakenly believed its obligations were met by reporting the matter to the insurer.

SafeWork only became aware of the incident after receiving an anonymous phone call in May 2019 relating to the incident and other health and safety issues, Judge Russell heard. These included allegations around unauthorised high-risk work, a lack of personal protective equipment and absent first-aid officers at the PCBU's Mount Druitt site, he heard.

The Judge heard Ampelite acquired the press and other plant from another business in 2009 and employed five workers from that business who were experienced in operating the machines.

It placed responsibility on one of these employees to informally train other workers on how to operate the press and to supervise them using it.

It was reasonably practicable for Ampelite to undertake a risk assessment of using the press, provide adequate guarding that ensured workers were unable to access the moving parts during operation, and install a shroud over its foot pedal to prevent inadvertent activation, but it didn't do so, the Judge found.

It should have developed safe work procedures for the machine and a system of locking or tagging out to isolate its energy source in the event the guards were removed, he said.

The employer told the Court that in response to an improvement notice it put in place a process for notifying SafeWork of incidents.

It added that the other safety allegations raised by the anonymous caller were not substantiated and the notices it was issued related only to the press and the notification failures.

Judge Russell found Ampelite's level of culpability for the section-19 breach was in the upper half of the mid range and warranted a $180,000 fine, before applying a 25 per cent discount for its guilty plea.

The likelihood of the risk it created occurring was "high", he said. "The unguarded press was a trap for inexperienced employees, particularly when they had to sit on an unstable chair while operating the machine," he added.

He accepted the employer did not deliberately evade its reporting obligations and found the appropriate fine for the notification breach was $16,000, before applying the discount. He ordered the employer to pay $46,000 in costs.