Orica cops $1.2m fine for exposing Kooragang workers to deadly cobalt dust

Despite knowing one of its Kooragang Island workers was being exposed to extremely high levels of the deadly cobalt dust - between 24 and 56 times the level which "should have rung alarm bells", nothing was done for years, court documents say.

It took a visit from a SafeWork inspector to stir Orica into action, despite evidence of the risk being present "day after day, year after year", District Court Judge David Russell said today, Wednesday, May 1.

"It is a sorry chapter in Orica's history," Judge Russell said.

While Orica eventually pleaded guilty to the offence, it should have pleaded guilty sooner, he said, citing the organisation's "significant" history of convictions.

One of the two affected workers exposed to the dust, started working at the cobalt shed in 2011 until June, 2019, when he reported a dry cough and was soon after diagnosed with occupational asthma.

As early as July, 2014, Orica knew that the ventilation system in the shed was not working properly but took no steps to address it, Judge Russell said in his written decision.

While personal protection equipment was provided to workers, it was inadequate, due to factors including that there was no policy requiring workers to be clean shaven to use the face masks provided, and during 2014-2016 that worker had a goatee beard.

There was no evidence to explain why nothing was done to protect the workers, even when air monitoring conducted by Orica revealed "alarmingly high" levels of cobalt dust.

For example in May, 2014, air monitoring of the cobalt dust he was exposed to was 12 times the occupational exposure standard, and less than a year later it was higher, at 28 times the standard.

A witness for Orica said the occupational exposure standard itself was not a "bright line" between safe and unsafe levels, and good safety practice involved better protection when the readings were at just half that, meaning the worker's readings were 24 times and then 56 times the 50 per cent level which should have rung alarm bells.

Biological monitoring of the worker in 2017 and 2018 also exceeded acceptable levels, as well as hygiene reports which, other than repeating those tests, also did not prompt Orica to review its controls before August, 2019.

An 'Occupational Exposure to Cobalt' report from August, 2019, included photos of cobalt dust on surfaces including a sink, taps, toilets, concrete floor, lunchroom floor, windowsill, and blinds.

"The likelihood of the risk occurring was certain, given that Orica took few steps to guard against the risk, and those steps which it did take were poorly implemented and inadequate," Judge Russell said.

"The potential consequences of the risk were death or serious injury. These consequences were known to Orica and were the subject of Orica documentation."

The conditions in the shed were filthy, the judge said. While Orica submitted that it should be sentenced on the basis that it only exposed the workers to cobalt dust on the dates proven by the evidence - the days on which air monitoring and biological testing showed increased levels of cobalt, that was a furphy.

"It would be deserting reality to think that the only dangerous dusty days in the Cobalt Shed were those proved by direct evidence," the judge said.

They were clearly exposed to the dangerous dust on a regular basis, many times a week, for many years, while working across a variety of dusty processes within the shed, and while there were many red flags, nothing was done.

"Even a cursory inspection of the Dickensian state of the Cobalt Shed, with dust visible on most surfaces, would have alerted Orica to the risk which it had created, basically through ignorance and neglect," he said.

"This is a serious instance of an offender being reckless as to the risk to an individual of death or serious injury."

In a statement issued in response to the decision, Orica's Kooragang Island manufacturing centre manager Viney Kumar said Orica acknowledged their conduct "fell below what was acceptable".

"We sincerely apologise to the impacted workers and their families and continue to provide them with the support required," Mr Kumar said.

"Orica takes the safety of its workers and the communities in which we operate seriously, and we have implemented numerous improvements to the cobalt manufacturing process to ensure this type of incident will not happen again."

The statement said that key improvements at the site included:

A statement issued by SafeWork NSW said the prosecution was for a Category 1 offence, the highest category under the law.

"The Court found the likelihood of risk of exposure was certain and few steps were taken by Orica to guard against the risk, and those steps were poorly implemented and inadequate," Head of SafeWork NSW Trent Curtin said.

"This ... prosecution ... sends a clear message to industry - if you put people at risk we will prosecute you to the full extent of the laws."