The New South Wales District Court (NSWDC) have imposed heavy penalties on both H & F Mechanical Pty Ltd (the Company) and business partners Max Hoffman and Laurence Hoffman (the Partnership) for modifying a timber cutting machine and knowingly allowing an employee to use the modified machine. The Partnership was found to have a Primary duty of care under s 19(1) of the Work Health and Safety Act 2011 (Cth) (the Act) and that contrary to s 32, the Partnership breached that duty.
The decision acts as a timely reminder that employers must be aware of obligations not only to WHS legislation, but how such obligations intersect with Australian Safety Standards, codes and manufacturers’ directions.
Mr Coster (the Worker) was engaged as a labourer for the Company. During the period of 1 February 2014 to 16 May 2014 the Worker used a machine called ‘the Rex’ (the Machine) whilst at work. The Machine is designed to be towed onto site for the sawing and splitting of timber.
Prior to the commencement of the Worker’s employment, the Machine was modified by a mechanic under instruction of an employee of the Company. The mechanic was instructed to remove the left handle of the Machine and re-weld it closer to the right handle. A rope was then tied between the handles allowing the user to operate the Machine with one hand. This modification placed the operator at risk as the hand that was free could now come into contact with the blade of the Machine. Crucially, the Partnership were aware of this modification to the Machine.
The NSWDC held that the offence was not related to the manifestation of the risk (the Worker was not injured by the Machine), but rather the foreseeable risk of serious injury that the Worker was exposed to for an extended period. As the main operator of the Machine on most days, the Worker was exposed to a continual risk as a result of the modifications made to the Machine.
The NSWDC identified a number of aggravating factors in sentencing the Company and the Partnership:
- The offence was committed over a period of time;
- The alteration to the Machine breached the manufacturers specific instructions;
- The Operators Manual (the Manual) imposed a duty on the owners of the Machine to provide new operators with training and an opportunity to read the Manual. This was not done;
- The Manual requires that the hand lever operation should be checked daily. This was not done or the problem was ignored;
- The modification failed to comply with Australian Safety Standard rules regarding the safe operation of machinery;
- The modification was easily carried out and could have easily been reversed; and
- The timber and wood industry is inherently dangerous.
With consideration of the above factors, the NSWDC held that the offence was in the mid-range level of objective seriousness. The Court imposed a fine of $160,000 on the Company and $64,000 fine on the Partnership. These amounts take into account a 20% discount which was awarded for a late guilty plea. Each Defendant was instructed to pay $10,000 each for the prosecution’s legal costs in addition to their individual penalties.
Read the full decision here: SafeWork NSW v H&F Mechanical Pty Ltd, Max Alfred Hoffman and Laurence James Hoffman 
If you require any advice or assistance to ensure your firm is implementing effective and compliant workplace safety procedures please do not hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.