Mr Fuller was fatally injured when he was crushed between two hydraulic rams while working at the factory on September 13, 2009.

The NSW Industrial Relations Commission found that CA Kandos and its parent company, CAPL, had breached the Occupational Health and Safety Act 2000, by failing to install fixed guarding along the entire length of a feeder and conveyor system as required by Australian safety standards and failing to provide adequate supervision and instruction to Mr Fuller. 

On the night of September 13, 2009, Mr Fuller was on duty as a central control assistant in the raw materials preparation area, a role which included pre-start checks of plant and equipment, monitoring and maintaining plant, equipment and systems and monitoring product quality.

Mr Fuller was working alone, without direct supervision. 

Mr Fuller went to inspect feed lines in the C2 feeder in the Stone Tunnels after another worker reported that numerous hoppers were not feeding.  

He was found by a co-worker after the system showed the feeder had shut down and Mr Fuller had failed to respond to attempts to contact him.

Although it is not known how Mr Fuller came to be crushed, the court was told that he might have been attempting to remove a blockage manually while the system was still operating.

Edward Norris, a fitter employed by CA Kandos, stated that it was common practice to stand on the hydraulic lines of the C2 feeder to check that the feeders and conveyor system were still operating.

CAPL was charged with failing to ensure the plant was safe and without risks, by failing to install fixed guarding which complied with Australian Standards, and with failing to undertake an audit of the guarding of the plant between September 2007 and September 2009. 

CA Kandos was additionally charged with failing to provide a safe system of work and working environment; failing to provide an adequate system to control and record access to the Stone Tunnels; failing to provide a system of locked gates and an entry procedure for access to the Stone Tunnels; and failing to provide a task-specific Safe Work Method Statement or Job Safety and Environment Analysis for work undertaken in the Stone Tunnels.

CA Kandos was also charged with failing to provide adequate supervision to Mr Fuller and with failing to instruct him not to stand or climb onto the structure of the plant while the plant was operating to clear blockages in the plant. 

In the judgement, released on Friday, Commissioner J Backman found that the systems in place at the time of Mr Fuller’s death were comprehensive but defective in a number of respects. 

Safety measures in place included a procedure which required workers to isolate machinery that could endanger safety before any work was undertaken. 

Mr Fuller had been trained in the isolation and lock-out procedure, and the defence for CA Kandos and CAPL argued that his actions in failing to isolate the machinery, contrary to existing practices, mitigated the seriousness of the companies’ offences. 

The Industrial Relations Commission found that at the time of Mr Fuller’s death, the C2 feeder did not comply with Australians standards because the movement of the feeders resulted in gaps which were not fully guarded. 

Commissioner Backman noted that after Mr Fuller’s death, the Cement Australia Group upgraded the guarding along the full length of the C2 and C3 feeders and implemented measures for accessing the feeders in the Stone Tunnels, including requirements that all work undertaken in the area must be in teams of two or more.

The Commission agreed that implementing these measures before the incident would have reduced or eliminated the risk to the safety of those working in the tunnels on the C2 feeder. 

“At the time of the accident, Mr Fuller was working alone and unsupervised on a piece of machinery which was unguarded, thereby facilitating access to its dangerous moving parts,” Mr Backman said. 

Although the Commission found that the offences of both defendants constituted serious breaches of the Act, it also found that as first-time offenders, both defendants were entitled to leniency. 

The Commission found that CAPL was less culpable than CA Kandos in the circumstances that led to Mr Fuller’s death, since CAPL’s role was limited to manager of the Cement Australia Group and CA Kandos, as the employer of Mr Fuller, had direct responsibility for its safety. 

CA Kandos was fined $100,000 and ordered to pay costs and disbursements of $100,000.    Cement Australia was fined $90,000 and ordered to pay costs and disbursements of $100,000. 

The maximum penalty under the Act is $550,000.