By Lea Fox

It is the kind of tragic incident you hope will never happen in your workplace – especially because responding to safety concerns raised by workplace health and safety checks could have prevented it.

20-year-old Dillon Wu died while working at Melbourne transport company Marshall Lethlean Industries. Wu was two weeks into the job, undertaking a metal engineering apprenticeship with the training arm of The Australian Industry Group (Ai Group).

In June 2022, Marshall Lethlean Industries was fined $600,000 over the death and while the company appears likely to improve its safety procedures going forward, responding to workplace health and safety concerns might have prevented the death, a court has heard.

Workplace death tragically occurred not long after a WorkSafe visit

The road to Wu’s sad death and the massive WorkSafe fine began when Wu went to work in October 2018. Just ten days into his role, the apprentice was given the job of cleaning out a tanker.

Court documents revealed the job was passed onto him from another apprentice, who had not properly carried out his duties the night before. The other apprentice had failed to turn off the supply of argon gas (argon gas is used during welding as a displacement/shielding gas to push reactive oxygen away from molten metal).

Around 9.30am, smoko time, a worker noticed Wu had ‘gone down’ in the tank. Staff strapped Wu into a harness, removed him from the tank and tried to perform CPR but the young man died at the scene.

WorkSafe investigators later determined that a gas valve fitted to a wire feeder had become jammed in the open position, letting argon gas flow into the tank/atmosphere through the welding torch.

Colourless and odorless, argon is easily inhaled and is a major suffocation risk because it displaces oxygen. Tragically Wu’s death occurred only 40 minutes after a WorkSafe inspector, attending on another matter, had left the premises.

Safety defects highlighted in WHS audits need to be fixed

The company had, at the time, been considering new safety proposals after a WHS inspection – though court evidence suggests the company did not act swiftly enough on reported safety defects.

Judge Douglas Trapnell denounced the company at sentencing in June 2022 after accepting Marshall Lethlean Industries’ guilty charge of failing to ensure a safe workplace.

The County Court of Victoria in Melbourne found it was reasonably practicable for the company to have:

  • Provided and maintained a system of work that required a qualified welding inspector to routinely inspect and maintain equipment;
  • Required workers to store the welder and wire feeder outside the tanker when not in use; and
  • Require workers to turn off the argon gas main at the end of use.

Acting WorkSafe Executive Director of Health and Safety Adam Watson said the incident highlights how important simple measures such as maintenance and storage procedures are to keeping workers and workplaces safe.

Judge Trapnell said, in this case, there was a “total failure” by the company to establish and maintain a system of work to eliminate or reduce the risk that eventuated.

Three separate process failures contributed to the incident – any one of which, had it been followed correctly, would likely have prevented Wu’s death.

  • Inspection and servicing of the welder;
  • Removal of the welder from the tank overnight; and
  • Turning off the argon gas flow at the end of the shift.

While Marshall Lethlean Industries has, since the death, made what the judge called “significant changes” including more staff training, supervision and the hiring of external safety consultants, there is a fresh legal penalty looming over the case.

Flow-on effects of WorkSafe penalties for employers

Ai Group – which was Wu’s direct employer – has been accused of sending Wu to work in a factory it knew was riddled with deadly workplace safety hazards.

In June 2022, ABC Investigations reported that a safety audit Ai Group carried out at Marshall Lethlean’s factory as part of a WorkSafe Victoria initiative in August 2018 catalogued a litany of serious hazards. The Australian Manufacturing Workers’ Union backed this up, telling ABC Investigations that Marshall Lethlean made no changes to its safety procedures after the Ai Group audit.

A proper safety check should help identify:

  • Ventilation requirements for argon.
  • Whether the current existing ventilation system is working correctly.
  • Storage, leaks and processes around handling argon.
  • Setting systems for turning dangerous gas off after it has been used.

HR Assured is part of the solution

There are prescribed safety procedures for handling dangerous gases as well as dealing with confined spaces, which can be discussed during an HR Assured Workplace Health & Safety audit.

To make sure you’re complying with all your WHS obligations, HR Assured would like to offer you:

Lea Fox is a Senior Workplace Relations and WHS Consultant at FCB Workplace Law. With over 15 years’ background in the industry, Lea is an experienced Industrial Relations/Employment Relations (ER) specialist and Work Health Safety professional. A diverse working career, in both the public and private sector, paved the way to becoming a proficient consultant, technical advisor and people manager. As a more recent addition to the FCB team, Lea continues to work as a member of the Health and Safety department, in ER advisory through the TAS team, as well as contributing to the ongoing growth of HR Assured.