13 Prior Convictions and a 15% Discount: What This Week's Sentences Say About Penalties

On 26 October the Industrial Court of NSW fined Toll Transport $807,500. On 20 December 2022 at Toll's Banksmeadow plastics packaging operation, a packline operator stood on a wrapper turntable and used a crowbar to free a pallet jammed on an energised conveyor. His left ankle was crushed. There was no jam-clearing procedure, no lock-out step and no isolation training. Justice Chin set a $950,000 starting point. Toll's late guilty plea earned only a 15% discount. Its 13 WHS convictions since 1999 across five jurisdictions weighed heavily against it.

Three days later the same court fined AAA Trailers $225,000 after a mechanic lay under a 350kg trailer axle to cut a tensioned ratchet strap. The strap tore and the axle fell on him. Together with two other decisions this week, these sentences say a lot about what courts weigh when they set a penalty.

Four Things the Courts Weighed This Week

• History follows you. The court treated Toll's 13 earlier convictions as a recurring failure to implement safe systems. Each prior conviction makes the next one more expensive.
• Timing of the plea. Toll's late plea earned 15%. AAA Trailers pleaded early and earned 25%, bringing Justice Babb's $300,000 assessment down to $225,000 plus $35,000 in agreed costs.
• Capacity to pay is tested. AAA Trailers argued it could not afford a large fine. The argument failed because the company held unappropriated profits of about $8.95 million.
• Obvious risks with simple controls. The AAA judgment turned on how obvious the crush risk was and how simple the controls were. There were no serviceable jack stands or hoists, no risk assessment and no real training.

The Paperwork Trap

Two of this week's cases are really about the gap between paper and practice.

In the Toll decision the court rejected the argument that relying on administrative controls is inherently less serious. In other words, the type of control you choose does not lower the stakes if it is missing on the day. A procedure that does not exist, or is not trained, is no control at all.

In Western Australia Mr Palmer WA Pty Ltd was fined $170,000 in the Armadale Magistrates Court on 28 October. In July 2024 at Maida Vale a pruner climbed a eucalypt to remove shoots about 2.5 to 3 metres from 22,000 volt conductors. He asked for an uninsulated pole saw labelled not for use within 15 metres of conductors. The director advised against it but handed it over. The worker died in the tree. There was no dedicated safety observer as the code of practice requires, because the director was writing a job safety analysis while the work was under way. The prosecution did not allege the breach caused the death. Even so, the picture of a JSA being written while the risk played out is hard to forget.

The Detail That Defines the Charge

A fourth decision is a reminder of how prosecutions work. In SafeWork NSW v Chess Engineering, an interlocutory ruling before a December trial, the regulator tried to add two control measures to its charge based on an expert report served in August. The court refused. Pleaded control measures are essential elements of the charge, so adding them after the limitation period would change the offence. For duty holders the lesson is that a prosecution is built around specific reasonably practicable controls you allegedly did not have. Knowing what those would be for your own high-risk tasks is good preparation for never needing to argue about them.

What This Means for Your Business

Ask yourself:

• Do you know your organisation's WHS conviction history across every state you operate in?
• Does every jam-clearing or under-load task have a written isolation or support procedure that workers have actually been trained in?
• When a JSA or SWMS is written, is it finished before the work starts?
• Would your controls look obvious and simple to a judge reading the facts afterwards?

If a court looked at your last five years tomorrow, would it see a business that learns from incidents, or one that keeps having the same one?