Category: law

Foster’s Brewing has received one of the largest fines for a health and safety infringement in Victoria’s history, $1.125 million.  In 2006 Cuu Huynh was jammed by the neck between the doors of a de-palletiser and a handrail and died as a consequence. The same circumstances injured another worker in 2002.

A major reason for the large fine is because, as WorkSafe’s John Merritt put it

“The problem had been identified, someone had been hurt previously, the solution was known and it wasn’t fixed until after a man had died. The opportunities to make improvements were repeatedly deferred.”

Foster’s chose to upgrade the de-palletiser involved in the 2002 incident but neglected the other de-palletisers in the same plant.  This is where stupidity or laziness enters the equation.  The OHS Plant Regulations allow for the risk assessment and findings on one type of machine to be applied to the same machines without revisiting the assessment process.  Foster’s chose not to learn from a mistake.

It seems what is “reasonably practicable” for one machine is not so for another.

Readers would be aware that I support companies who choose to keep with the status quo through a risk assessment process, as long as they own up to when that decision may be proven wrong; in the case of Foster’s fatally wrong.

There is no indication that Foster’s will appeal the fine.  This is to be applauded as, on top of the fine, the company has had to spend almost $4 million in plant safety upgrades.  This is a substantial cost that probably would have been cheaper in 2002, or even earlier, but it remains little comfort to Cuu Huynh’s family.

Below are some of the points that WorkSafe is making in relation to Foster’s handling of safety on their depalletisers.

• An employee was hurt in similar circumstances on another machine in 2002. While safety was improved on that machine, improvements were not made to the machine which killed the man in 2006.  
• Operators were required to enter the operating area of their machines to remove broken bottles and plastic binding tape and ensure sensor lights worked. Workers estimated they would do this up to 20 times per shift.
• There was no adequate visual and no audible warning of the opening of the pneumatic doors, unguarded chain sprockets created hazards, while safety devices were easily over-ridden to prevent sudden stoppage of the machine which caused bottles to fall over and break;.
• Written standard operating procedures (SOP’s) for operating the depalletisers and cleaning them during breaks in production had been produced, but they did not deal with clearing jams during production. A specific SOP covering this was produced after the workers’ death.
• Various operators told WorkSafe they were unfamiliar with the SOP’s and did not have sufficient English to read them. Much training was done ‘on the job’.
• Workers were allowed to leave work an hour earlier on the last shift of the week if they had completed cleaning the machine. As a result they would clean the machine while production continued. The man who died was on this position.

This is a litany of poor safety management that any company should be ashamed of.  Of particular concern, and should be noted by other companies and OHS regulators, is that written instructions for the machine were inadequate and in a format that could not be easily understood by the machine operators. 

One of my safety colleagues has mentioned to me the absurdity that the first of WorkSafe’s new Compliance Codes is expected to be on workplace amenities.  This workplace element rarely leads to death or injury and the release of a “minor” code does not auger well for the rest of the codes.  It is understandable that Amenities may be one of the easier-to-produce codes but, to my mind, the most neglected guidance material in the last 20 years has been the provision of safety information in languages other than English – a workplace issue that WorkSafe has indicated was directly relevant to the death of Cuu Huynh.

For all of those corporations that say that safety is the first priority and that production will be suspended if a safety hazard is identified, Foster’s did not follow its own policies.  According to its own HSE Policy

“We will work towards our goals through a process of continuous improvement and, in particular, fulfil these commitments by:

1. Meeting or exceeding all health, safety and environment regulations in each of our workplaces around the globe.”

Cuu Huynh’s death has shown, as mentioned by WorkSafe above and mentioned in media reports

“…the workplace culture encouraged the machine operators to maintain production by not stopping depalletisers when they were clearing jams or cleaning the machine.” 

Production, at Foster’s, was more important than safety.