A transport company director has been convicted and fined $90,000 after the 2016 death of a worker at a client site.
Richard Wayne Simmons is co-owner of RW & LM Simmons, which provides bulk transport services to Bloomfield Collieries, owner and mine operator of Rix’s Creek Mine, near Singleton. An RW & LM Simmons worker, Stephen Norman, was fatally injured when he and two other workers were manually cleaning a coal haulage trailer.
The NSW District Court heard Simmons had a partnership with Bloomfield in some capacity for 30 years and had day-to-day responsibility for operational decisions. The partnership developed a safety management system (SMS) in 2005 but did not implement it or “any safe work procedures”. The court also heard the SMS was not updated to reflect legislative changes, and while Bloomfield reviewed the SMS in 2010 as part of an audit, it did not retain a copy of it.
Further, workers did not attend pre-shift meetings at the mine, were not usually included in Bloomfield’s safety meetings, and were not trained on how or when to conduct a risk assessment or job safety analysis, “apart from being given a 20 minute toolbox talk on those matters” as part of a contractor induction delivered by Bloomfield.
The trailers were usually washed out to remove the build-up of coal at the mine’s wash bay. There, “the usual method for washing the trailers did not require any worker to get into the trailer because when the trailer was raised, the tailgate swung open”, the court heard.
However, at the time of the incident, some Bloomfield employees believed that contractors were not permitted to use the wash bay on Saturdays except in exceptional circumstances, believing it was to be left for the washing of Bloomfield trucks and loaders. Another worker noted Simmons said they were not to use the wash bay, and that they needed to “get in the back and dig it out”.
The method involved three workers to access the trailer – one would pry open the tailgate at the rear of the trailer while the other two workers lifted the tailgate up. On the day of the incident, the tailgate fell and struck Norman.
“The tailgate on the trailer weighed approximately 322.2kg and the force required to open the tailgate was beyond the manual capability of the workers,” Judge Scotting says.
He convicted Simmons for failing to comply with a health and safety duty under the Work Health and Safety Act 2011 that exposed a worker to a risk of death or serious injury contrary to s32 of the WHS Act. The maximum penalty for an offence contrary to s32 of the WHS Act is $300,000.
The Court took $120,000 as the starting point of any fine, which was reduced by 25 per cent with an early guilty plea. Simmons demonstrated remorse and “accepted that he should have communicated with Bloomfield to determine if the Partnership was in fact prohibited from using the wash bay”.
“He should have directed the workers not to clean the trailers until that had been clarified,” Judge Scotting says. “If the Partnership was prohibited from using the wash bay, the offender should have conducted a risk assessment of alternate methods for cleaning the trailers, developed a safe work procedure for doing so and provided adequate supervision of the workers.”
Simmons’ wife, company co-director Lisa Maree Simmons, gave evidence that he “still feels guilty about Norman’s death and that he gets depressed thinking about it”.
Since the incident the Partnership has implemented a number of safety controls and new documented procedures.
The NSW Resources Regulator, which prosecuted the case, welcomed the decision. “Work Health and Safety legislation provides important information on minimum standards for equipment and effective safe work systems and practices for preventing workplace injuries and fatalities,” Resources Regulator executive director Anthony Keon says.
“Companies cannot become complacent with these obligations and must continually review their operations to ensure robust safe work systems are in place. “The Resources Regulator will continue to actively prosecute work, health and safety breaches to ensure the mining sector, which has one of the state’s largest work forces, continues to be safe and productive.”
Bloomfield entered a $500,000 enforceable undertaking with the Resources Regulator over the incident.