A recent NSW case has highlighted the significant penalties that will be imposed by a court if a business modifies equipment to purposely remove in-built safety features.
In the case of SafeWork NSW v H&F Mechanical Pty Ltd, Hoffman and Hoffman  NSWDC 6, H&F Mechanical (the Company) was fined $160,000 and the two owners each fined $32,000 personally, as a result of the removal of a two-hand operating system for a split timber-cutting machine.
The Company provided mechanical services and labour contracting to local industry. Their labourer Mr Coster began employment in 2014 and worked daily on a machine known as the Rex. The Rex was a self-contained wood-processing unit designed to be towed onto site for the sawing and splitting of timber for the purpose of supply as firewood. At the splitting area a hydraulic ram exerting 26 tonnes of force would cause a splitting blade to split the timber.
The blade and hydraulic ram were operated by a person pushing down on two separate handles, a system commonly referred to as 'hold-to-run'. The operator would need two hands to push the handles down and pull them back up. This system eliminated the possibility of the operator placing limbs under the splitting blade whilst in operation.
A conscious decision was made by the owners of the business to ignore the warning in the operator manual that no one should tamper with or modify any part of the machine. The left hand handle was removed and re-welded closer to the right handle. Prior to that, the handles were far enough apart that it required two hands to operate. With the addition of a rope, and then later a stick, between the two handles, it was possible to operate the two handed system with just one hand. Now there was the potential for a worker to come into contact with the splitting blade whilst operating the machine with one hand only as the other hand was now free. The Rex remained in this unsafe state for nearly three months and, although Mr Coster did not suffer any injury while using the machine, he was constantly at risk of injury as a result of the modifications.
In sentencing the Company and the two owners, the court took into account a number of aggravating features, including:
- the fact that the owners were aware of the modification and it was intentionally done by their engineer to overcome the safety feature
- the Company ignored the warning in the operators manual as well as the Australian Standard
- there was a foreseeable risk of a serious injury
- the worker was exposed to risk of injury over a long period of time
- the risk could have been easily controlled, as it was later, by correctly installing the handle in its original location
- the timber industry is notoriously dangerous and this conduct made it more so.
These factors meant that the breach was a mid-range offence. It did not matter that no injury has been sustained.
Even with a 20 per cent discount applied for a plea of guilty, the fines imposed were still significant with $160,000 for the Company and $32,000 for each owner. The prosecutor’s costs of $30,000 were also ordered to be paid by the defendants.
Lessons for employers
There is no excuse for the removal or tampering of in-built safety features in circumstances where it results in a significant and ongoing risk of serious injury. The court in this case was at pains to state that any conduct which intentionally seeks to undermine safety features of a machine will result in high penalties being imposed. Importantly, even if no injury in fact results, where there has been a period of time where a worker could have sustained serious injuries as a result of such conduct, the court will take a dim view and look to impose significant monetary penalties.
Author: Michael Selinger
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
Michael Selinger, Partner
T: +61 2 8083 0430
Charles Power, Partner
T: +61 3 9321 9942
Benjamin Marshall, Partner
T: +61 3 9321 9864
Rachel Drew, Partner
T: +61 7 3135 0617
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