A cement manufacturing company was found to have breached its primary duties under the Work Health and Safety Act 2011 (NSW) when an explosion occurred under the watch of specialist contractors. The NSW District Court noted that the incident happened after a work method was altered, and held that the company should have, but failed to follow its own documented safety processes to address the changes in the hazard profile of its operations.
Boral Cement Limited (Boral) has been found guilty of breaching its primary duty under the Work Health and Safety Act 2011 (NSW) (WHS Act) by failing to take reasonably practicable steps to manage operational changes to its work processes. This decision highlights several practical lessons for duty holders under the WHS Act. In particular, the case reinforces:
- as part of strong change management, changes to operational methods should result in a review of controls to ensure that existing safety systems remain effective;
- engaging specialist contractors does not detract from the principal’s own safety responsibilities under the WHS Act, including the obligation to ensure that its safety systems are followed and remain fit for purpose when circumstances change; and
- the importance of consulting with other duty holders about changes in work processes to manage foreseeable risk and maintain safe systems of work.
Factual Background
Boral manufactures cement and cement-related products at the Boral Cement Facility at New Berrima (Site). At the Site, there was a bucket elevator called the EL13, which comprised a continuous conveyor belt running in a loop from a top pulley at level 7 to a tail pulley at ground level. Attached to the conveyor belt were 244 buckets, which weighed 29 kilograms each.
In early 2022, Boral scheduled a maintenance shutdown to replace the EL13 conveyor belt. To carry out the work, Boral engaged several contractors, namely:
- Nepean Engineering and Innovation Pty Ltd (Nepean) to perform and supervise the work of removing the existing belt and installing a new belt;
- Fenner Dunlop Australia Pty Ltd (Fenner) to join the belt ends as part of the maintenance work; and
- Beumer Group Australia Pty Ltd (Beumer), the OEM of EL13, to remotely supervise and provide specialist advice regarding the installation methodology.
Initially, the maintenance works involved using a crane to lift the old belt with every bucket attached out of the chute, and replacing it with a new belt, again with every bucket attached. This procedure had been reviewed and approved by Beumer as consistent with its installation manual. However, after an attempted lift on 9 February 2022, it became apparent that the crane could not safely lift the belt with all the buckets attached. Accordingly, an alternative method was adopted on 12 February 2022, which involved removing approximately half of the buckets before lifting the belt and reinstalling them after placement within the chute. This revised method was not discussed with Beumer.
During this period, a WhatsApp group was created by Boral for the purpose of communicating with Beumer, who was unable to attend the Site due to COVID restrictions. Boral, Nepean, Fenner and Beumer were members of the WhatsApp group chat. Throughout the duration of the work being conducted, technical drawings, instructions and photographs were exchanged to demonstrate how the work was to be done, in particular, the method of mounting the buckets to the new belt.
On 13 February 2022, work began using the alternative method. One hour before the lift, Beumer requested photographs of the new belt with the buckets to spot any issues. Boral sent several photographs to Beumer, in particular, a photograph showing part of the belt, with buckets attached, partly lowered into the chute by the crane. While the photograph appeared to show that the buckets were uniformly attached to the belt, this was not the case since the ends of the belt, which were not shown in the photograph, had no buckets attached. This misled Beumer to believe that the lift was being done in accordance with the photographs originally sent by them, which required the belt to have all the buckets attached when being placed into the chute.
As the new belt was being installed, the remaining buckets were clustered near the head pulley rather than evenly distributed along the belt. This created a weight imbalance, causing the belt to run uncontrollably when the auxiliary motor was used to move it. A Fenner employee, Mr Douglas Bennett (Mr Bennett), was working near the conveyor when the belt entered an uncontrolled “free run”. The free run caused the fluid coupling, which remained attached to the belt mechanism, which was designed to run at 1500 rpm, to speed up to approximately 13,000 rpm, which is about eight times its normal operational speed.
Workers described the sound of the coupling as “like a jet engine” and reported that as soon as the coupling started screaming, those nearby were shouting “run” to get away from it. Mr Bennett sustained serious injuries after being struck by metal debris from the explosion of the fluid coupling (Incident).
Charge
SafeWork NSW charged Boral with breaching its safety duty under section 19(1), contrary to section 32 of the WHS Act, for failing to take reasonably practicable steps to ensure workers were not exposed to the risk of being struck, hit, burnt or otherwise coming into contact with exploding components of the hydraulic coupling or hot hydraulic fluid.
Findings
Boral pleaded not guilty on the basis that the responsibility for managing the change in work process lay with Nepean since it had been engaged specifically to perform the work on EL13. The NSW District Court rejected this position, characterising Boral’s argument as “misconceived”. While the Court acknowledged that Boral lacked the expertise to safely manage the maintenance work on EL13, this did not relieve it of its Primary Duty under the WHS Act to do what was reasonably practicable to ensure the safety of workers at the Site.
The Court emphasised that Boral was not required to have formed its own independent judgement as to whether the new belt with the unbalanced buckets posed a hazard; however, it was required, at a minimum, to follow its own safety processes, the Codes of Practice (including the following: SafeWork NSW Code of Practice: How to manage work health and safety risks, August 2019; Managing the risks of plant in the workplace, August 2019; and Work Health and Safety Consultation, Cooperation and Coordination, August 2019) and the Work Health and Safety Regulation 2017 (NSW).
According to Boral’s own documented safety processes, work was required to stop, a risk assessment had to be conducted, and a new Safe Work Method Statement (SWMS) created when there was a change in work processes. None of this occurred when the new installation method was adopted.
Although Boral was not required to undertake those steps itself, it was required to confirm that those measures had been carried out by the contractors. The Court found, consistent with the Codes of Practice, a PCBU “cannot simply assume that someone else will take care of safety”.
Boral had a significant degree of control over how Nepean carried out the work. That is not to say that Boral had to stand over Nepean’s shoulder and watch everything that it did. However, the contract by which Boral engaged Nepean, and the Boral safety documentation, both said that the contractor (Nepean) had to follow the documented Boral safety procedures and any reasonable directions from Boral…
I find that the notion that once Nepean started its work, it should be left to be entirely responsible for safety issues and the management of risks is misconceived. I find that Boral continued to have a duty under the WHS Act to do what was reasonably practicable to ensure safety. Boral did not necessarily have to form its own judgment as to whether the new belt with the unbalanced buckets posed a hazard. All it had to do was follow its own documented processes, what was in the Codes of Practice and cl 38 of the Regulation, and which was known to several Boral employees who gave evidence – if there was a change in the work process, work had to stop, a risk assessment had to be performed and a new SWMS created if that was necessary.
Russell SC DCJ – [492] – [493]
The Court also noted that Boral did not issue a new Authority-to-Work permit following the change to the work process, despite this being required by its own system. Indeed, a Boral employee had signed on the existing permit that there had been no change in the hazards associated with the scope of the works in the four days preceding the Incident. The Court found that this was plainly wrong.
Ultimately, the Court held that had Boral taken steps to ensure that the contractors complied with its safety system and consulted with Beumer regarding the change in process, Boral would have been advised that the work should not have been done in that way and that a safer system of work would have been created.
On that basis, the Court was satisfied that Boral failed to comply with its Primary Duty and committed a Category 2 offence. Boral will be sentenced at a later date.
Key takeaways
- Effective change management: where changes in work operations occur, organisations must actively ensure that their safety systems are being followed and consider whether a formal reassessment is required.
- You cannot rely on experts blindly: the Court confirmed that an organisation cannot relieve itself from its own safety duties on the basis that it engaged specialist contractors to perform the work. Even where specialist expertise rests with others, organisations must still ensure that their own safety system is followed and remains effective when circumstances change. Where the company that engages the specialist contractor also possesses expertise, it may not be able to rely on the specialist contractor.
- Consultation is critical: where a work method departs from what was originally planned, from manufacturer guidance or from engineering assumptions, consultation with the designer or OEM, or any other relevant duty holder, may be necessary to ensure the revised method remains safe.
For more information, please contact Michael Tooma.
