Welcome to the second issue of the WHS briefing for 2015. This briefing tracks significant legislative and case law changes which have occurred during 1 April 2015 – 30 June 2015 which may affect your business.
SUMMARY OF KEY LEGISLATIVE UPDATES AND SIGNIFICANT CASES
KEY LEGISLATIVE UPDATES
NEW SOUTH WALES
KEY LEGISLATIVE UPDATES
KEY LEGISLATIVE UPDATES
KEY LEGISLATIVE UPDATES
KEY LEGISLATIVE UPDATE
KEY LEGISLATIVE UPDATES
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KEY LEGISLATIVE UPDATES
Safe Work Australia has made available the following Model Codes of Practice (all dated March 2015):
- Demolition Work (accessible here), which provides practical guidance on all types of demolition work and is relevant to demolition contractors as well as persons conducting a business or undertaking (PCBUs) who have management or control of workplaces where demolition work is carried out, such as principal contractors.
- Excavation Work (accessible here), which provides practical guidance for PCBUs on how to manage the health and safety risks associated with all types of excavation work, including bulk excavations more than 1.5 metres deep, trenches, shafts and tunnels.
- First Aid in the Workplace (accessible here), which provides practical guidance for PCBUs on how to comply with statutory duties to provide adequate first aid facilities in the workplace. It includes information on first aid kits, procedures, facilities and training for first aiders.
- Labelling of Workplace Hazardous Chemicals (accessible here), which provides practical guidance to PCBUs involved in the manufacture, import, supply or use of hazardous chemicals on how to correctly label hazardous chemicals used in the workplace.
- Managing Electrical Risks in the Workplace (accessible here), which provides practical guidance on managing electrical risks in the workplace for PCBUs who have management or control of electrical equipment, including electrical installations, or who carry out electrical work on or near energised electrical equipment, including electrical installations.
- Managing the Risk of Falls at Workplaces (accessible here), which provides practical guidance to PCBUs, including those persons who design, construct, import, supply or install plant or structures, on how to manage health and safety risks arising from a fall by a person from one level to another. It includes information on a range of control measures to eliminate or minimise the risks.
- Spray Painting and Powder Coating (accessible here), which provides practical guidance for PCBUs on how to manage health and safety risks associated with spray painting or powder coating processes.
The International Organization for Standardization (ISO) is developing a new standard, ISO 45001 ‘Occupational health and safety management systems – Requirements’, to provide a framework on which organisations can base their safety management system in order to improve employee safety, reduce workplace risks and create better, safer working conditions, all over the world.
The voluntary standard is intended for use by any organisation, and aims to reduce the burden of over 6,300 people dying each day from work-related accidents or diseases (which is nearly 2.3 million people each year).
The new standard is expected to be published in October 2016.
A plan to implement all recommendations of the Hazelwood Coal Mine fire inquiry will see the strengthening of Victoria’s mine safety laws.
The fire, which was caused by embers from a nearby bushfire, burned for 45 days early last year, sending ash and smoke over the Latrobe Valley and causing numerous health problems to GDF Suez employees, emergency services workers and people in neighbouring communities.
The inquiry will be restarted next month to investigate an increase in illness-related deaths following the fire at the open cut mine, owned and operated by GDF Suez. State Environment Minister Lisa Neville said the health study would get to the bottom of concerns about recent illness-related deaths in Latrobe Valley communities.
The Hazelwood Coal Mine fire inquiry found fire services were inadequately prepared to respond to the hazardous conditions produced by the fire.
The inquiry made six recommendations to GDF Suez and 12 recommendations to the State Government, including that it fast-track proposed legislation requiring mining work plans to specifically address fire prevention, mitigation and suppression.
The State Government committed $25.4 million to adopting all of the enquiry’s recommendations.
The Parliament of Victoria has announced the commencement of the inquiry into the operation of the Country Fire Authority’s training centre at Fiskville.
The Parliament of Victoria has made publically available the submissions received on the inquiry (which are accessible here) and further details regarding hearing dates and transcripts.
In May 2015, the Work Health and Safety and Other Legislation Amendment Bill 2015 (Qld) (Bill) (accessible here) was introduced into the Queensland Parliament. The Bill was referred to the Finance and Administration Committee for detailed consideration. The Committee released a report on 6 July 2015 (accessible here), recommending changes to the Bill.
If the Bill is passed, the Work Health and Safety Act 2011 (Qld) will be amended and it may impact your business.
The policy objectives of the Bill are to implement election commitments made by the State Government, including:
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On 19 May 2015, the Heavy Vehicle National Law Amendment Bill 2015 (Qld) (Bill) (accessible here) was introduced into the Legislative Assembly, and proposes to amend the Heavy Vehicle National Law Act 2012 (Qld) (HVNL) (accessible here).
According to the explanatory notes, the objective of the Bill is to implement key heavy vehicle policy initiatives endorsed by the Transport Infrastructure Council.
Specifically, the Bill amends the HVNL to:
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On 6 May 2015, the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2015 (SA) (Bill) was introduced into Parliament, seeking to amend the Work Health and Safety Act 2012 (SA) (Act) by inserting a new section 268A which is aimed at company officers who recklessly cause death while “acting within the scope of his or her actual or apparent authority”.
In particular, the new section 268A creates an offence where an officer of a body corporate or an employer breaches their duty of care where they ought reasonably to have known, or were recklessly indifferent to, whether an act or omission would create a substantial risk of serious harm and that breach causes death. The penalty for this offence is a maximum of 20 years imprisonment for a natural person or a $1 million fine in any other case.
Sponsors of the Bill argue that the existing Work Health and Safety laws are not effectively motivating employers to provide a safe workplace where they are able to insure themselves against potential fines. It remains to be seen whether this punitive approach will be effective in reducing the number of workplace deaths resulting from negligence.
A copy of the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2015 (SA) is accessible here.
On 18 June 2015, the Western Australian Legislative Assembly’s Inquiry into the mental health effects of FIFO (fly-in-fly-out) work arrangements was finalised with the release of the Final Report (accessible here).
This WA Parliamentary Inquiry was instigated due to growing concerns about the impact of FIFO work practices on mental health issues. The Final Report found about 30% of FIFO workers have mental health problems (compared to the national average of 20%), and that FIFO workers generally come from the highest-risk demographic for mental illness and suicide, being males aged between 18-44.
The Committee found that the Western Australia’s current safety laws (as well as the division of responsibility between WorkSafe and the Department of Mines and Petroleum) for FIFO accommodation facilities are confusing, creating the potential for sites, workers and safety issues to ‘drop between the cracks’.
The Committee recommended that the Minister for Mines and Petroleum ensure that clause 19(4) of the national WHS Model Act, dealing with duty of care at accommodation facilities, be included in the Work Health and Safety (Resources) Bill (WA), to ensure that a FIFO worker occupying or residing in FIFO accommodation is not exposed to risks to health and safety, including mental health and wellbeing. Also recommended was a special Code of Practice that addresses rosters, fatigue and bullying.
On 27 April 2015, new ‘chain of responsibility’ laws were incorporated into the Road Traffic (Administration) Act 2008 (WA) and Road Traffic (Vehicles) Act 2012 (WA). All parties involved in the transport of goods by road in Western Australia are now required to take all reasonable steps to prevent safety breaches.
There is no real change for drivers but there are now more people responsible along the ‘chain’. If you are a party involved in the transport and logistics chain, including packers, loaders and receivers, you may be deemed liable in the event of a breach of the road laws. The law also extends to company directors, employers, unincorporated associations and partners in a managed partnership.
The changes mean that anyone who has control in the transport chain can be held legally accountable if by action, inaction or demand, they cause or contribute to road safety breaches. All persons within the chain of responsibility need to be able to demonstrate (within their own roles):
- they had taken all reasonable steps to prevent a breach;
- there were no reasonable steps they could have taken to prevent the breach; or
- there was no way they could reasonably be expected to know about the breach. Responsible parties within the transport and logistics chain, must be satisfied their programs and
compliance systems for road transport are in place and adequately meet their obligations under the law.
Western Australia is the only Australian jurisdiction that is not a signatory of the inter-governmental agreement that established the Heavy Vehicle National Law (HVNL), which includes ‘Chain of Responsibility’ provisions which apply to vehicles exceeding 4.5 tonnes. However, Western Australian heavy vehicle businesses that operate beyond the State border need to comply with the HVNL and the National Heavy Vehicle Regulator.
As of 30 March 2015, the fatigue management provisions of the Heavy Vehicle National Law are operating in Tasmania. As such, all work performed in relation to a ‘fatigue-regulated heavy vehicle’ is subject to these provisions. The fatigue management provisions include provisions relating to:
- work and rest hours;
- flexible work arrangements such as Basic Fatigue Management and Advanced Fatigue Management;
- how to complete a work diary;
- how to keep records for drivers; and
- Chain of Responsibility.
A major construction company has been found to have breached its obligations under the Occupational Health and Safety Act 1991 (now replaced by the Work Health and Safety Act) to take all reasonably practicable steps to protect the health and safety of its employees during the construction of the Brisbane Airport Link.
In an agreed statement of facts tendered in Court, the company admitted that it did not conduct a risk assessment on a bridge before installing and using it, and did not provide workers with any information or training on the safe use or removal of the structure.
On 1 December 2011, a worker was moving two structures in a tunnel when an unsecured metal bridge fell on him from above, causing a laceration to his head.
The Court found that the employer had failed to take all reasonably practicable steps to protect the health and safety of its employees and was fined $110,000.
A copy of the case, Comcare  FCA 388, is accessible here.
Meanwhile, Comcare is pursuing a separate claim against the same construction company over the death of a worker also in relation to the Brisbane Airport Link project which occurred in September 2011. The employee suffered severe head injuries and later died after he was struck by part of a steel structure.
Transpacific Industries has received a record fine under the Occupational Health and Safety Act 1991 (now replaced by the Work Health and Safety Act) for an incident where the brakes failed on a garbage collection and disposal truck causing it to hit a moving car and a stationary van resulting in the death of the driver of the car and injuries to the driver of the van.
Transpacific has been fined $363,000 in relation to the death of the 71 year old woman driving the car for multiple breaches of the OHS laws both before and after the fatal incident.
Comcare argued that Transpacific lacked systems for overseeing, supervising or auditing vehicle services and had no formal systems for monitoring the mechanical inspections undertaken before, or in the weeks following the accident.
The Court found that Transpacific’s contravention should attract a pecuniary penalty toward the higher end of the scale and fined it $181,500 for breaching the OHS laws at the time of the fatality and an additional penalty of $181,500 for the three contraventions following the crash.
A copy of the case, Comcare v Transpacific Industries Pty Ltd  FCA 500, is accessible here.
The Supreme Court has clarified that the power of a regulator to obtain information under section 155 of the Work Health and Safety Act 2011 (NSW) (WHS Act) is not limited to documents or information that relate only to New South Wales, or relate only to work health and safety matters.
In June 2012, an employee of Perilya Broken Hill Limited fell approximately 14 metres down a mine shaft in Broken Hill, NSW, and was seriously injured. The regulator commenced an investigation into the incident, during which it issued a section 155 notice to Perilya Limited (the Western Australia- based holding company of Perilya Broken Hill Limited) requiring production of:
- minutes of Board meetings that were convened between 24 May 2008 and 30 December 2012; and
- reports or other documents that were prepared between 24 May 2008 and 30 December 2012 for the purpose of advising the Board about safety matters relevant to the Broken Hill mine.
These documents were provided by Perilya Limited but they contained a number of redactions. Perilya Limited failed to comply with subsequent requests by the regulator to provide unredacted copies of the documents, arguing on appeal that the documents were not confined to New South Wales and were not confined to work health and safety matters.
The Local Court, in the first instance, and the Supreme Court, on appeal, held that in order for the regulator to properly perform and discharge his responsibilities in respect of his statutory functions specified in the WHS Act (including the function of monitoring and enforcing compliance with the WHS Act):
- information relevant to mine safety at the Broken Hill Mine (in NSW) held by the WA-based holding company of the group, Perilya Limited, was plainly within the coercive power conferred in broad terms upon the regulator under s 155 to acquire ‘information’; and
- the fact that particular documents, such as minutes of board meetings of Perilya Limited, may contain information relevant to matters other than mine safety does not result in the invalidity of the notices issued by the regulator.
As such, the notices were validly issued by the regulator under s 155(1) and Perilya Limited had failed to comply with them. Perilya Limited’s appeal was dismissed. Perilya Limited was fined $40,000 and ordered to pay $74,281 in costs.
A copy of the case, Perilya Limited v Nash  NSWSC 706, is accessible here.
In recent years there has been controversy around whether urine sampling or saliva sampling is the most appropriate method of workplace drug testing. The Fair Work Commission has held that dual testing is appropriate.
An employer recently sought to implement a new workplace drug testing regime involving urine sampling in addition to the existing practice of saliva sampling, on the basis that dual testing providing significant workplace safety benefits.
The CFMEU opposed the urine sampling on the basis that it represented an unreasonable intrusion upon the privacy of employees, in circumstances where the existing alternative saliva sampling
provided a viable and appropriate method of workplace drug testing which achieved workplace safety objectives which underpinned the drug testing regime.
The Fair Work Commission (FWC) assessed the benefits that may be obtained from the adoption of both methods of sampling in random combination, balanced against the privacy detriments that would be experienced by employees who were required to undertake urine sampling.
The FWC held that the benefits that would be obtained by the adoption of both methods of sampling in random combination (ie the use of both methods overcomes the scientific and technological deficiencies that each method cannot avoid if one method is used in isolation, and provides significantly enhanced deterrent properties) significantly outweigh any privacy detriments that could be identified.
A copy of the case, Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited  FWC 2384, is accessible here.
On 9 June 2015, Eastern Basin Pty Ltd was acquitted of fatality-related WHS breaches.
Eastern Basin assembled stacks of gauchi packs (weighing up to 24 tonnes each) and provided them to Newcastle Stevedores Pty Ltd. In September 2012, an employee of Newcastle Stevedores was climbing down packs stacked in the hold of a cargo ship when the packs collapsed and fatally crushed him.
WorkCover NSW alleged that Eastern Basin had breached section 19(2) of the WHS Act, in relation to a failure to ensure the gauchi packs had the appropriate height-to-width ratio to ensure stability, as well as failing to apply additional straps to them.
However, Judge James Curtis found that WorkCover didn’t identify a reasonably practicable height-to- width ratio necessary to eliminate or reduce the risk of the packs falling, and he was not persuaded that extra strapping would have mitigated the risk. Further, Judge Curtis found that Eastern Basin was diligent in its attempts to ensure that employees of Newcastle Stevedores were not exposed to risks arising out of its activities (eg by requiring Newcastle Stevedores employees to undertake inductions, and to provide safe work method statements, procedures, and job safety analysis), and it was not unreasonable for Eastern Basin to rely on the skill and expertise of Newcastle Stevedores to ensure the gauchi packs were safely loaded.
An Australian Transport Safety Bureau (ATSB) investigation into the worker's death found that climbing on the packs was common practice and that Newcastle Stevedores failed to adequately address the risk of cargo toppling over.
A copy of the case, WorkCover Authority of NSW v Eastern Basin Pty Ltd  NSWDC 92, is accessible here.
A Victorian employer has entered a $100,000 enforceable undertaking, in lieu of prosecution, after a worker bypassed a light curtain and was injured on a tray unloader, while another employer has been convicted and fined $20,000 for a similar guarding breach.
The first case involved a Nature’s Gift Australia Pty Ltd employee, who injured her arm in November 2012 when she reached into the tray unloader – which transferred cooked trays of pet food to a labelling machine – to clear a blockage.
Following an investigation, WorkSafe Victoria alleged that Nature’s Gift breached the State OHS Act in failing to provide a safe system of work, risk assess the machine or properly train and supervise employees.
Nature’s Gift committed to spending $100,000 on an enforceable undertaking (a copy of which is accessible here), including a $58,000 donation to the Institute for Safety, Compensation and Recovery Research, as well as committing to maintaining a safe and healthy environment at all of its workplaces, and to engage an independent consultant to review its compliance with the OHS Act.
In another case, Victorian employer Rosalino’s Food Manufacturing Pty Ltd was fined $20,000, plus
$3,235 in costs, after a worker was seriously injured when he put his hand in a pasta laminating machine.
The Magistrates Court heard that, in May 2014, the worker was reaching into a mixing bowl on the machine when his jacket sleeve made contact with the mixing blades, causing his arm to become trapped and entangled in the blades. He sustained fractures, tendon damage, a torn shoulder muscle and serious lacerations.
The employer pleaded guilty to breaching the State OHS Act in failing to maintain the pasta laminating machine in a safe condition.
Two Victorian employers in the construction sector have each entered into an enforceable undertaking to spend a total of $571,000 on developing detailed safety guidance for the construction industry, funding safety research and other initiatives.
On 15 March 2015, Geotech Pty Ltd entered into an enforceable undertaking which requires it to contribute $370,000 to the development of guidance material and training programs addressing the safe construction of shotcrete retaining walls. The enforceable undertaking was entered into with WorkSafe Victoria after a shotcreter was injured when an earth and rock wall collapsed and landed on him in January 2013. A copy of the enforceable undertaking is accessible here.
On 23 April 2015, a major construction company entered into an enforceable undertaking which requires it to spend $201,000 on a new guidance note in relation to working from heights and the prevention of falling objects following an incident in 2013 in which a metal rod fell into an exclusion zone where workers were operating. A copy of the enforceable undertaking is accessible here.
On 15 May 2015, Frewstal Pty Ltd was convicted and fined $250,000 in the County Court over the death of an employee at an abattoir due to a collapsed loading ramp.
In September 2013, a truck driver had delivered a shipment of lambs to a Frewstal abattoir and was standing on the loading ramp when the hoist lug failed, causing the hoist to break apart and the ramp to collapse. The man was airlifted to hospital with severe head injuries and died several weeks later.
Frewstal Pty Ltd pleaded guilty to three breaches of the Occupational Health & Safety Act 2004 (Vic) relating to failing to seek expert opinion before modifying the loading ramp.
In April 2015, the County Court increased a recycling company’s OHS fine from $225,000 to $425,000 for failing to take basic precautions to protect pedestrian workers from mobile plant, resulting in a fatality.
In September 2014, City Circle was originally convicted and fined $225,000 in Melbourne Magistrates’ Court over the death of a worker who was run over by a front end loader at the company’s recycling depot in Melbourne. The employer pleaded guilty to failing to provide a safe system of work and failing to provide appropriate information, instruction, training or supervision under the Occupational Health and Safety Act 2004 (Vic).
The Director of Public Prosecutions lodged an appeal in the County Court arguing the sentence was inadequate, and the fine was increased to $425,000.
A copy of the case, WorkSafe Victoria v City Circle Recycling Pty Ltd  VCC 480, is accessible
On 31 March 2015, Resource Recovery Victoria Pty Ltd (RRV) pleaded guilty to two offences under the Occupational Health and Safety Act 2004 (Vic) for failing to provide a safe system of work and failing to provide information, instruction or training.
The incident related to a RRV employee who died after being struck by a 20-tonne front end loader. The County Court fined RRV $450,000 in relation to the incident.
The Court heard that:
Instead, employees relied on common sense;
WorkSafe’s Executive Director of Health and Safety, Len Neist, said the incident highlights that it is critical to develop, and communicate, a comprehensive traffic management plan in workplaces where employees are required to work in close proximity to heavy machinery and vehicles. “Simply hoping workers will stay away from heavy machinery is just not good enough.”
A copy of the case, DPP v Resource Recovery Victoria Pty Ltd  VCC 472, is accessible here.
Bridgestone Australia Ltd was found not guilty of OHS breaches, recently winning a four year battle for its costs in relation to those proceedings.
Bridgestone was charged under the old OHS Act after an employee climbed into a machine to clear a jam and his foot became trapped in a conveyor. Bridgestone was acquitted in January 2011.
Safework SA argued that the employer unnecessarily engaged both senior and junior lawyers to defend the claim. Safework SA also disputed the costs associated with the expert engaged by Bridgestone to examine the operation of the conveyors and the application of the Australian Standards that govern their use.
The Court found that it was reasonable and necessary for Bridgestone to engage both the expert and senior counsel, ordering Safework SA to pay Bridgestone $81,289 for costs in the proceedings.
A copy of the case, Hillman v Bridgestone Australia Ltd  SAIRC 18, is accessible here.
Bellard Pty Ltd has successfully appealed the severity of an OHS fine as well as an order requiring it to advertise its breach.
In September 2011, a 17 year old Elite Concrete Plumbing Pty Ltd worker fell eight metres down a shaft at a Bellard building site and severely injured his back, leg, head and mouth. Bellard pleaded guilty to failing to ensure there was a secure cover over, or fences around, the shaft.
Bellard appealed a fine of $125,000 and an order to advertise its breach, arguing that there was no reason to not allow a greater discount or consideration the implications of the non-pecuniary penalty.
The Court found that there was no proper evidentiary basis to reject Bellard’s submission of genuine contrition, and increased the discount applicable to the fine as a result of an early guilty plea.
A copy of the case, Bellard Pty Ltd v Perry  SAIRC 7, is accessible here.
On 29 April 2015, a Bayswater manufacturer and installer of stone benchtops, Australian Countertop Pty Ltd, was fined $120,000 over the death of a worker, despite the company being in liquidation.
In December 2011, a stonemason worker died when he was crushed by several 235kg stone slabs that were being unloaded from a truck and stacked.
The court heard that falling slabs was a commonly-known hazard in the industry (this was the fourth worker killed in similar circumstances in this industry within a four year period) and that it would have been practicable for the company to have stored stone slabs in post-and-rail racking and to have trained and instructed employees to load and unload the slabs safely.
WorkSafe WA commissioner Lex McCulloch stated that "although the company is in liquidation and could not pay the $120,000 fine imposed, we considered it important to prosecute the company and have a conviction recorded as a deterrent to others in the industry".
A copy of the case, Worksafe Western Australia Commissioner v Australian Countertop Pty Ltd (in liq)
 WASC 413, is accessible here.