A NEW South Wales shearing contractor fined $16,500 after roustabout Casey Barnes was scalped by an overhead shearing gear shaft in 2017 wants mandatory use of safer equipment in wool sheds.
And the peak Shearing Contractors Association claims the state’s workplace regulator has failed in its responsibility to the industry and the community over the incident.
Dubbo contractor Steve Mudford’s business Muddy’s Quality Shearing was fined $16,500 by the Downing Centre Local Court in Sydney on Friday after pleading guilty on a charge of putting ‘other persons’ at risk of serious injury or death.
The shearing contractor’s fines and costs after the case concluded on Friday totalled $56,500, including a reduced fine of $16,500 after pleading guilty on the charge of putting ‘other persons’ at risk of serious injury or death, $20,000 in court costs to SafeWork NSW and his own legal costs of $20,000.
“I pleaded not guilty to the charge of placing a worker at risk because she was a visitor.
“But after the past 18 months all up it has cost me $164,000 in legal fees and everything.”
Casey Barnes had her scalp torn off while tramping a bale of wool when her hair caught in the overhead shaft driving the shed’s shearing machines. She underwent significant operations to try to save her scalp and then skin grafts.
How committed is SafeWork NSW to ‘shared obligation’ ?
However, despite SafeWork pursuing Mr Mudford in court and still claiming that farmers and contractors have a shared obligation to ensure workplaces are safe, the regulator has opted not to act against the owner of the shed where the accident happened.
Mr Mudford said shed safety is meant to be a shared responsibility “but they (SafeWork NSW) have put the blame 100 percent on me.”
A SafeWork document ‘Shared responsibilities in shearing’ refers to the Barnes accident in November 2017 and states:
“Farmers and contractors have a shared obligation to ensure the workplace is safe, so far as reasonably practicable, including a responsibility to communicate, consult and coordinate with each other.”
That document also states that the shared obligation of farmers and contractors to ensure the workplace is safe in practical terms means that a wool shed’s fixtures, fittings and plant are without risks to the health and safety of any person (including proper maintenance of plant) – for example:
“overhead gear is either guarded to comply with Australian Standards or decommissioned in lieu of electric plant, which preferably includes anti-lock technology.”
SafeWork NSW opted to not pursue action against farmer
Mr Mudford said SafeWork is not going to pursue the owners of the shed in which the accident occurred – Neil and Jennifer Anderson of ‘Avoca’, near Gulargambone in central west New South Wales.
“SafeWork NSW have a two-year period after an accident to say ‘either we will let you off or we will charge you.
“They issued the charge for me two days before that two-year period and then they also sent the Andersons a letter saying that they were ‘let off’,” Mr Mudford said.
“They said once that two-year period is up they won’t go back on their word.”
Sheep Central has seen the letter sent to the Andersons in October 2019 by SafeWork NSW’s executive director operations Anthony Williams. It said SafeWork NSW’s investigative role is to determine the cause of serious workplace incidents to assist in preventing death and injury, to assess compliance with the work health and safety legislation and to determine whether a breach of that legislation has occurred.
“SafeWork NSW has completed an investigation into the incident on 29 November 2017, in which Ms Casey Barnes was seriously injured when her hair was caught around, and she was dragged into, the rotating shaft of an overhead system, at ‘Avoca’ in Gulargambone.
“SafeWork NSW has carefully reviewed all the information and evidence available in relation to this incident, and has determined that no legal proceedings will be commenced against you. In coming to this conclusion, SafeWork NSW had regard to its Prosecution Guidelines (January 2018) which are accessible on SafeWork NSW’s website at www.safework.nsw.gov.au,” Mr Williams said in the letter.
SafeWork NSW decision has aided contractor safety efforts
Mr Mudford said SafeWork’s position on this issue did not seem fair, but it had aided contractors’ efforts to seek farmer co-operation making shearing sheds safer.
“No-one in the shearing industry can understand it, but it is what it is.
“The thing that it has done is put all the responsibility on the contractor, so therefore we’ve got a leg to stand one when we go into a workplace and say ‘ you need to do this or you need to do that.”
Mr Mudford said he now told farmers if they did not put up new safer shearing machines they could “go out of sheep or find someone else,” he said.
All of his farmer clients now have electric shearing machines and most of them have the new models with a safety cut-out switch that stops the machine to avoid dangerous ‘lock-ups,’ he said.
Mr Mudford said the best outcome from the situation would be for SafeWork to make it mandatory for all shearing sheds to have latest shearing plants with a cut-out switch.
“Making that mandatory will just take shaft gear out of the picture.”
He believed SafeWork also was not coming down hard enough on the continued use of shaft-driven shearing gear, apart from recommending farmers upgrade their systems.
“They don’t do anything about it – we’ve come to them heaps of times and the Shearing Contractors Association of Australia have pleaded with them to ban shaft gear because they are the only one who can do it.
“SafeWork just said we are not here to set the rules, we are here to prosecute,” he said.
Mr Mudford believes there are still a significant number of sheds in New South Wales using shaft-driven overhead shearing gear.
“As we speak there would be people working under that equipment.”
He believed probably 50 percent of the shearing sheds in Australia were still using older electric shearing machines that did not have a safety cut-out feature, but relied on clutches in downtubes to avoid ‘lock-up.’
“Those clutches wear out and they are still not 100pc safe, whereas the machines with the cut-out switch are.”
SafeWork NSW has failed its industry responsibility – SCAA
SCAA secretary Jason Letchford said the association is very disappointed in the overall outcome for Steven Mudford and for the industry in general.
“Firstly, we need to acknowledge the near tragic and horrific event for Casey Barnes and her family and that the most important outcome is for this event or similar to not happen again.
“Unfortunately, the regulator has failed in their responsibility to the industry, the community and the individuals that this event has affected,” he said.
Mr Letchford said the fines, legal and court costs will not fix the impact the incident has had on Casey Barnes or her family.
“The fines to the contractor, will have no impact on ‘behavioural change’ for the industry.
“The news of the accident was enough for anyone even half-interested in doing the right thing, to make the necessary upgrades to the new equipment,” he said.
“The ‘no-action’ by SafeWork NSW has allowed many farmers to continue to leverage off the competitive nature of the industry and to ‘corner’ contractors and workers into using this outdated and dangerous equipment.
“This is why the regulator needs to ‘step-up’ and regulate the situation – ban the use of any shearing equipment that does not contain the latest ‘anti-lock’ technology,” he said.
“All of this new equipment is fully guarded, very quiet, with less vibration – all issues that affect the health of the worker.
“For the regulator to continue to hide behind, the ‘non-prescriptive, risk-assessment’ argument, is a failed experiment and needs to be fixed,” Mr Letchford said.
“For the regulator to pursue one employer, who did not even own the equipment that injured Casey, who was there to provide a service and did so on equipment that has been used to shear billions of sheep prior to this event, is a travesty of ‘fairness’.
“For SafeWork NSW to argue that it was ‘foreseeable’ and ‘reasonable’, that an uninvited visitor would come into a workplace and take actions of their own accord, and leave the employer nearly $200,000 out of pocket beggars belief,” Mr Letchford said.
“But the even greater ‘underperformance’ by SafeWork NSW is to not take the opportunity to completely eliminate this type of injury or ‘lock-up’ injuries in the future.
“‘Lock-ups’ occur almost weekly and killed a shearer in 2011, and to leave the door open to these accidents is potentially an even greater tragedy, from this whole event.”
Sheep Central asked SafeWork NSW why it chose not to pursue the owners of the wool shed in which Casey Barnes was scalped, whether the regulator supported a ban on the use of overhead shearing gear shafts or whether it had considered making it mandatory that all shearing machines used in the state have a safety cut-out switch.
A SafeWork NSW spokesperson said SafeWork supports the use of technological advancements in shearing equipment that improve safety for shearing workers.
“WHS legislation requires machinery-related risks be managed in accordance with the hierarchy of controls to ensure the safety of workers and others.
“Elimination of risks is the most effective response, but where this is not reasonably practicable, risks must be controlled,” the spokesperson said.
“There are a variety of ways that risks can be controlled including replacement with alternate equipment that removes the risk, machine guarding, fitment of safety devices, safe work practices, appropriate instruction, training and ongoing monitoring and supervision.”
Click here to read the SafeWork NSW shared responsibilities document.