In a significant Victorian prosecution (WorkSafe Victoria v The Elastomers Pty Ltd [2024]), a rubber supplier was fined $450,000 after a worker was killed when a blockage on the rubber production line was being attended to.

The incident occurred at the supplier’s manufacturing facility, which uses two production lines (Line 1 and Line 2) to manufacture different rubber compounds. The Line 2 machine has two levels and was often operated by two workers. The finished rubber product was collected in large containers on the ground level. This was facilitated by two mechanised panels known as the ‘Wig Wag’. Three sides of the Wig Wag were enclosed by metal barriers. The remaining side was left open so workers could access the Wig Wag to untangle any blockages and load full containers onto the scissor lift. 

The fourth side was fitted with a motion senser safety device in the form of a light curtain. This device would detect any interruption to the light curtain and automatically switch-off the Line 2 machine. As Line 2 has dual-operator capabilities, an operator on the second level could override the safety stop and restart the machine while the other operator was still near the Wig Wag. This override was possible despite there being no line of sight between the two levels. 

On 26 May 2021, a worker accessed the Wig Wag in an effort to clear a blockage. This interrupted the light curtain, causing the Line 2 machine to stop. Another worker stationed on the second level of Line 2 restarted the machine, unaware that the other worker was near the Wig Wag. The worker on the ground floor was struck and killed by the Wig Wag.

The company was charged with, and pleaded guilty to, a breach of section 21 of the Occupational Health and Safety Act 2004 (Vic) for its failure to provide plant that was, so far as reasonably practicable, safe and without risks to health.

The Judge found that the company was highly culpable given it had failed to turn its mind to whether workers accessing the Wig Wag had been provided with the highest level of protection, particularly as there was an override of a safety device possible. The fact that there had been no near misses at the factory to alert the company to the risk did not excuse its offending.

In sentencing, the Judge considered that:

• the incident was entirely foreseeable;
• the risk of serious injury was very likely in the circumstances; and
• the gravity of the offending was mid-range.

But for the plea of guilty, the company would have been fined $620,000.