Employer "failed miserably" to protect migrant worker

A labour hire company that ‘failed miserably’ to comply with its WHS duty to a young migrant worker, who fell into a chemical bath the host business used to dissolve animal tissue, has received a record fine.  

In mid-2013, Mr H, a temporary migrant from Taiwan, was assigned by labour hire firm Big Mars Pty Ltd to work at an abattoir run by Thomas Foods International. Big Mars was under contract to provide temporary workers from Taiwan and China to work at the abattoir.  

On 6 November 2013, Mr H, then 21 years old, was performing his contractual duties in the abattoir’s hook room. This involved sterilising used meat hooks in a floor-level bath containing heated water and sodium hydroxide (caustic soda), a chemical that dissolves animal tissue.

While performing this work, Mr H fell into the bath and suffered chemical burns to his lower body, including full thickness burns to 32 per cent of his total body surface area. He was hospitalised for three months, during which time he required numerous skin grafts, and his recovery was complicated by infection.

Big Mars was charged with – and pleaded guilty to – contravening the Work Health and Safety Act 2012 (SA), in that it exposed Mr H to a risk of death or serious injury by failing to comply with its health and safety duty as a person conducting a business or undertaking (PCBU).   

Employer left safety considerations to host

Industrial Magistrate Michael Lieschke heard Big Mars did not provide Mr H with information and training when he started work at the abattoir, that supervision of Mr H was sporadic and that he had to perform work on his own.

While Big Mars had a supervisor at the abattoir, Magistrate Lieschke heard he had never entered the hook room, was not familiar with how workers cleaned used meat hooks, and had no assigned safety responsibilities such as checking safety procedures or the work areas where temporary migrants worked.

Big Mars admitted it did not have WHS policies regarding risk management and that it left safety considerations to Thomas Foods. It further admitted to not taking steps to address the communication issues faced by employees who did not read or speak English and who worked alone in the abattoir.

Thomas Foods had provided Mr H with a written work instruction in English and some on-the-job training but, as Big Mars knew, Mr H did not read or understand English.

Magistrate Lieschke heard that when Mr H asked a Thomas Food supervisor, who spoke Mandarin, to interpret the document for him, he was told to interpret it himself, in his own time with an online translation dictionary.

Magistrate Lieschke noted that in addition to not being translated into a language Big Mars’ workers could understand, the written work instruction had limited value because it failed to mention two one-metre-high gates, which were installed around the bath after the instruction was written.

Relevantly, Mr H was not advised, through his on-the-job-training, to keep the gates shut while sterilising used meat hooks. Instead, he had learned to secure the gates in an open position during the sterilisation process by overriding their spring closers. Critically, while being readily observable by supervisors, Mr H was never told to perform the job differently.

Further, Mr H was not told the bath contained a dangerous chemical and he was not given any instructions of what to do if he came into contact with the liquid in the bath.

Fundamental responsibilities not carried out

Magistrate Lieschke said Big Mars had a duty to assess the abattoir, including the hook room, before Mr H joined the host business, and to take all reasonable practicable steps control risks to its workers’ safety.

“Big Mars was well placed to do this due to its familiarity with the abattoir from having about 40 employees placed there,” he noted.

Magistrate Lieschke said Big Mars’ duties also included providing Mr H with an appropriate safety induction in his language and regularly monitoring and reviewing the workplace’s safety standards. In addition, it was obliged to consider the safety aspects of Mr H’s youth and language barrier.

Magistrate lieschke said that while Big Mars was not the host business, there were many reasonably available and inexpensive steps it could have taken, such as:

  • making enquiries about tasks its workers would be required to carry out at the abattoir, including specific foreseeable hazards and resulting risks of injury, together with the adequacy of hazard control measures.
  • ensuring Thomas Food provided and maintained appropriate written safe operating procedures for the hook room that referred to the appropriate use of the gates
  • providing Mr H with a written translation of all relevant safety and work instructions, and ensuring he was told of the dangerous chemicals he was to work with and appropriate first aid measures
  • had a system to assess the effectiveness of the training and supervision provided by Thomas Foods to Mr H.

“Big Mars took none of these straightforward steps", Magistrate Lieschke said.

“It failed miserably to carry out any of its fundamental safety responsibilities. If it had done so, Mr [H] is highly unlikely to have been injured.”

Severe penalty warranted

In determining penalty, Magistrate Lieschke considered the incident’s profoundly adverse effect on Mr H’s mental and physical wellbeing and that fact that the risk to which he was unreasonably exposed could have resulted in worse burns and organ damage or death.  He also noted the company’s only indication of contrition was its guilty plea.

In addition, Big Mars’ submissions in mitigation of penalty left Magistrate Lieschke with little confidence it would comply with its WHS obligations in the future.

Noting there had been an extremely serious breach of Big Mars’ obligations to Mr H, Magistrate Lieschke said a severe penalty was warranted.  He commenced with a fine of $300,000, being 20 per cent of the maximum for an offence under s32 of the Act.

Following a 20 per cent reduction for Big Mars’s guilty plea, Magistrate Lieschke imposed a fine of $240,000 and recorded a conviction against the company.

According to SafeWork, this is the highest penalty recorded against a company since South Australia adopted nationally harmonised WHS laws in January 2013.

Thomas Foods International will appear in court in June.

Boland v Big Mars Pty Ltd [2016] SAIRC 11 (27 April 2016)

By James Harkness on 4 May 2016