25806776.2 LUM KIM 1 Gadens Work Health and Safety Briefing Q1 2016 SUMMARY OF KEY LEGISLATIVE UPDATES AND SIGNIFICANT CASES Quarter 1 issue 2016 (for the period 1 January 2016 to 31 March 2016) Welcome to the 1st issue of the WHS briefing for 2016. This briefing tracks significant legislative and case law changes which have occurred between 1 January 2016 to 31 March 2016 which may affect your business. SUMMARY ACROSS AUSTRALIA KEY LEGISLATIVE UPDATES Safe Work Australia releases guidance on hazardous substances, steel erection, rural workplaces and roofs COMMONWEALTH KEY LEGISLATIVE UPDATES Proposed reforms to executive officers’ obligations under HVNL 23 WHS Codes of Practice revoked and remade Proposed HVNL reform Extension for work diary exemptions Rejection of ABBC Bills NOPSEMA Publications New Code for the transport of dangerous goods by road and rail SIGNIFICANT CASES Application regarding improvement notice rejected by the Fair Work Commission NEW SOUTH WALES KEY LEGISLATIVE UPDATES New safety regulations for mining and petroleum industries Incident-prevention strategy Amendment to Dangerous Goods (Road and Rail Transport) Regulation SIGNIFICANT CASES NSW employer commits $200K to overhaul safety management system after breaches Court finds worker’s negligence, not OHS breach, contributed to workplace fire Two employer have committed to spending $350,000 to change safety and culture Appeal dismissed and fine doubled for employer who did not eliminate injury risk VICTORIA KEY LEGISLATIVE UPDATES Review of OHS standards Maximum OHS penalty to significantly increase New agency to tackle asbestos 25806776.2 LUM KIM 2 Risk of bullying and harassment in the health sector SIGNIFICANT CASES Essendon football club fined $200,000 for failing to provide safe workplace More fines and charges for second employer in Melbourne fatalities Construction company commits $100k to safety and other initiatives Fines for two breaches of OHS Act tripled to $1.5m on appeal Developments in relation to the Hazelwood Mine Fire AUSTRALIAN CAPITAL TERRITORY KEY LEGISLATIVE UPDATES Red Tape Reduction legislation commence Amendments to Workplace Privacy legislation QUEENSLAND KEY LEGISLATIVE UPDATES Heavy Vehicle Safety Action Plan introduced New WHS Code for formwork Water Risk Management amendments to Public Health Act SIGNIFICANT CASES Coronial non-inquest finds double fatality caused by 12 factors Fatality related OHS charges upheld in relation to company and three officers SOUTH AUSTRALIA SIGNIFICANT CASES Fatality could have been prevented by basic risk controls SA Industrial Relations Court hands out fines for breaches of WHS Act WESTERN AUSTRALIA KEY LEGISLATIVE UPDATES Amendments to dangerous goods regulations Resources safety publications New psychosocial risk audit and guide NORTHERN TERRITORY KEY LEGISLATIVE UPDATES Amendments to WHS Regulations SIGNIFICANT CASES Supreme Court considers limitation periods and upholds fatality charge Enforceable undertaking of almost $1millin entered into by Rio subsidiary after fatality Enforceable undertaking entered into for alleged asbestos exposure TASMANIA No key developments to report Would you like to discuss any of these matters or do you have any comments about the Briefing Update? We welcome your feedback and involvement in the development of this Briefing Update – please contact us if you have any additional matters you would like to be covered. 25806776.2 LUM KIM 3 KEY LEGISLATIVE UPDATES ACROSS AUSTRALIA Safe Work Australia releases guidance on hazardous substances, steel erection, rural workplaces and roofs Safe Work Australia released a series of information sheets in January and February 2016: Managing risks of hazardous chemical exposure when unpacking shipping containers; Managing risks of methyl bromide exposure when unpacking shipping containers; Managing risks when unpacking shipping containers; Construction Work - Steel Erection; General Guide for Managing the Risks of Machinery in Rural Workplaces; Quad Bikes in Rural Workplaces; and Safe Work on Roofs. COMMONWEALTH Proposed reforms to executive officers’ obligations under HVNL The National Transport Commission (NTC) has released a Draft Regulatory Impact Statement (March 2016) setting out four options to reform designed executive officers’ obligations under the Heavy Vehicle National Law (HVNL). According to the NTC, the options are intended to encourage a proactive approach to safety in the heavy vehicle industry without unnecessary red tape. 23 WHS Codes of Practice revoked and remade The Commonwealth previously adopted the model codes of practice under the Commonwealth’s mirror Work Health and Safety Act 2011 (Cth) (WHS Act) in two compilations: the Work Health and Safety Codes of Practice 2011 and Work Health and Safety Codes of Practice 2012. An explanatory statement issued by Employment Minister Michaelia Cash explains that the 23 codes of practice underpinning the Commonwealth WHS Act have been revoked and remade as separate instruments (with a range of technical amendments) in order to ‘improve accessibility of the codes’ and ‘streamline the process for making future updates’. See Attachment B of the explanatory statement for details of the amendments. Proposed HVNL reform The National Transport Commission has made available the following discussion papers (both dated March 2016) which propose reforms to the Heavy Vehicle National Law that would allow for increases to the payloads of certain heavy vehicle combinations on some routes: Discussion Paper: Twinsteer and Tri Drive Mass Limits; and Discussion Paper: Review of quad-axle groups. The final proposals are now being considered by the Transport and Infrastructure Senior Officials Committee. 25806776.2 LUM KIM 4 Rejection of ABBC Bills On 18 April 2016, the Senate rejected the proposed legislation concerning the Australian Building and Construction Commission. NOPSEMA Publications The National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) has made available the following publications (both dated March 2016): The Regulator: Issue No. 1; and Guidance note - Vessels subject to the Australian Offshore Petroleum Safety Legislation. New Code for the transport of dangerous goods by road and rail The National Transport Commission has made available the Australian Code for the Transport of Dangerous Goods by Road & Rail (Edition 7.4) (December 2015) (ADG Code (Edition 7.4)) which sets out the requirements for transporting dangerous goods by road and rail. The ADG Code (Edition 7.4) will supersede the Australian Code for the Transport of Dangerous Goods by Road & Rail (Edition 7.3) (August 2014) (ADG Code (Edition 7.3)) on 1 January 2017. Until then, either the ADG Code (Edition 7.4) or the ADG Code (Edition 7.3) can be used. NEW SOUTH WALES New safety regulations for mining and petroleum industries New safety legislation for the NSW mining and petroleum industries has commenced on 1 February 2016, completing the harmonisation of work health and safety laws for the NSW resources sector. The Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) and Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) apply to all mines and petroleum sites in NSW. Incident-prevention strategy NSW Mine Safety has developed a 43-page incident-prevention strategy underpinned by three key foundations: 1. Risk-based intervention – developing a framework for the ongoing identification and verification of risk profiles and control measures, and targeting areas of risk priority; 2. Human and organisational factors – researching and considering the impact of human and organisational factors on risk management and reporting; and 3. Quality data – collecting, analysing and using robust data to support the risk-based intervention strategy. Amendment to Dangerous Goods (Road and Rail Transport) Regulation Amendments to the Dangerous Goods (Road and Rail Transport) Regulation 2014 (NSW) commenced on 1 January 2016. According to the explanatory note, the object of the amendments is to reflect amendments made to the Model Subordinate Law on the Transport of Dangerous Goods by Road or Rail 2007. 25806776.2 LUM KIM 5 Among other matters, the amendments relate to duties concerning the placarding of loads and compliance with certain provisions of the Australian Code for the Transport of Dangerous Goods by Road and Rail. VICTORIA Review of OHS standards The Andrews Labor Government has appointed an expert panel to review and strengthen occupational health and safety (OHS) standards across the state. The panel will undertake extensive stakeholder consultation and make recommendations to improve OHS outcomes for Victorian workers. The panel will report on WorkSafe Victoria’s compliance and enforcement policy and activities, its provision of OHS compliance information and the promotion of OHS awareness, education and training. The panel is expected to report back to the Minister by the end of the year. Maximum OHS penalty to significantly increase The Treasury and Finance Legislation Amendment Bill 2016 (Vic) has been introduced, which proposes to increase the maximum penalty for a body corporate that recklessly endangers a person at a workplace – in breach of section 32 of the Occupational Health and Safety Act 2004 (Vic) – from 9,000 penalty units (currently $1,365,030) to 20,000 units (currently $3,033,400). This is higher than the maximum $3 million fine under the model Work Health and Safety legislation in the harmonised States. New agency to tackle asbestos The Victorian Government will establish a dedicated agency to target and prioritise the removal of asbestos in Government buildings across Victoria. The Victorian Asbestos Eradication Agency (VAEA) is expected to be established by the end of 2016. Risk of bullying and harassment in the health sector The Auditor-General’s Report (March 2016) has found that workers in the health sector are at significant risk of being bullied and harassed because employers aren’t holding senior staff accountable for inappropriate behaviour, the leadership of health sector agencies are failing to treat bullying and harassment as a serious safety risk and do not understand the extent, causes and impact of bullying and harassment in their organisations. This is a long-term challenge and will require sustained leadership focus and commitment, and stronger sector-wide collaboration to develop evidence-based best practice guidance and programs tailored to the health sector. AUSTRALIAN CAPITAL TERRITORY Red Tape Reduction legislation commenced The Red Tape Reduction Legislation Amendment Act 2016 (ACT) has commenced. According to the explanatory statement, the objective of the Bill is to address regulatory requirements that add unnecessary administrative and compliance costs for business, the community and government. Amendments to Workplace Privacy legislation 25806776.2 LUM KIM 6 The Workplace Privacy Amendment Act 2016 (ACT) has been notified but not yet commenced. It is expected to commence on 14 October 2016. According to the explanatory statement, the objective of the Bill is to improve the operation of the Workplace Privacy Act 2011 (ACT) (WP Act), which recognises an employer’s need to take reasonable steps to protect their business and monitor their workplace without unreasonably impinging on a worker’s right to privacy. The WP Act will be amended to: transfer responsibility for enforcement of the WP Act from ACT Policing to the ACT Work Safety Commissioner; extend the powers of authorised inspectors appointed under the Work Health Safety Act 2011 (ACT) to offences under the WP Act; allow employers to apply to the Magistrates Court for an authority to conduct surveillance of employees outside the workplace; remove notice requirements for tracking devices where it would be unduly difficult to affix a notice to the device, and where the employer has taken appropriate action to notify workers of the device's tracking capability; and make other and related amendments. QUEENSLAND Heavy Vehicle Safety Action Plan introduced The Queensland Government has introduced a two-year plan to reduce the number of people killed or seriously injured in crashes involving heavy vehicles. The Heavy Vehicle Safety Action Plan 2016-18 involves 31 initiatives across six key action areas: safer roads; safer vehicles; fatigue management; seatbelts; safer speeds; and impaired driving and driver distraction. The Action Plan should be read in conjunction with Queensland’s Road Safety Strategy 2015–21 and Action Plan 2015–17. New WHS Code for formwork A new WHS Code of Practice for formwork commenced in Queensland on 31 March 2016, replacing the 2006 formwork Code and introducing a new risk-based approach to design, certification and inspection. See here for more information. Water Risk Management amendments to Public Health Act The Public Health (Water Risk Management) Amendment Bill 2016 (Qld), which was introduced into the Legislative Assembly on 17 March 2016, proposes to amend the Public Health Act 2005 (Qld). According to the explanatory notes, the objectives of the Bill are to: implement measures to improve the management and control of health risks associated with the supply and use of water in hospitals and residential aged care facilities, in particular the health risks associated with Legionella bacteria; and provide greater transparency of water testing activities being undertaken by these facilities. 25806776.2 LUM KIM 7 WESTERN AUSTRALIA Amendments to dangerous goods regulations A number of amendments have been made across a range of regulations made under the Dangerous Goods Safety Act 2004 (WA). See this Department of Mines and Petroleum information sheet for more information. Resources safety publications The Department of Mines and Petroleum has made available the following safety forms: Application and assessment for shaft sinking and winding installation, use, modification and repairs (17 March 2016); Application for registration of types of classified plant (17 March 2016); and Approval to use or repair a dredge (18 March 2016). New psychosocial risk audit and guide The Department of Mines and Petroleum (DMP) has made available a new audit (undated) and accompanying guide (March 2016) to help identify and manage psychosocial risks in Western Australia’s resources industry. See DMP’s media release (15 March 2016) for more information. Proposed WHS (Resources) Bill The Department of Mines and Petroleum has made available Decision Regulatory Impact Statement on the proposed Work Health and Safety (Resources) Bill, a report prepared by Marsden Jacob Associates following consultation on a proposal to consolidate the safety legislation for mining, petroleum and major hazard facilities. See further information from Marsden Jacob Associates. NORTHERN TERRITORY Amendments to WHS Regulations Amendments to the Work Health and Safety (National Uniform Legislation) Regulations 2011 (NT) commenced on 4 April 2016. According to WorkSafe NT, the amendments: increase the trigger point value for a construction project under Chapter 6 (Construction work) from $250,000 to $500,000. However the amendments provide that Chapter 6 continues to apply to a construction project, the cost of which is less than $500,000 but not less than $250,000, if the construction phase of the project began before 4 April 2016; make the regulator the sole issuer of construction induction cards in the Northern Territory; and allow licence and permit holders to notify matters to the regulator via phone, email, mail or in person. 25806776.2 LUM KIM 8 SIGNIFICANT CASES COMMONWEALTH Application regarding improvement notice rejected by the Fair Work Commission Sedco Forex International Inc (Sedco) was issued with an improvement notice in 2014, after the company allegedly contravened safety duties in clause 9(2)(e) of Schedule 3 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). Sedco argued in Sedco Forex International Inc.v National Offshore Petroleum Safety and Environmental Safety Authority T/A NOPSEMA  FWC 761 that the inspector did not have the “requisite reasonable belief” to issue the notice, and requested that the improvement notice be revoked. The company applied to the Fair Work Commission, requesting that the dispute be elevated to a full Federal Court to clarify rules on revoking improvement notices. Sedco in its submissions suggested that a Federal Court determination would enable the swift determination of future applications and determine a critical question of law which would then reduce the disruptions to the workforce caused by improvement notices. The Commission disagreed with this submission, and instead agreed with the inspector’s submission that a referral would create a significant delay in the ongoing case. The Commission acknowledged that the question for referral contained “real issues of substance and complexity” but that neither party would be prejudiced by the question being determined by the Commission. The ongoing case is yet to be heard by the Commission. NEW SOUTH WALES NSW employer commits $200K to overhaul safety management system after breaches SafeWork NSW alleged a livestock company breached the WHS Act after a worker was injured by a drum explosion. The worker had been using a plasma cutting torch to cut a gallon drum, which previously contained highly flammable material, and sustained significant burns as a result of the incident. The company was issued with an improvement notice following the incident, and responded by developing improved safety measures, particularly fire safety and job analysis documents for worker’s performing unfamiliar tasks. The company provided an enforceable undertaking to SafeWork NSW, and included in this undertaking a commitment to establish a new accredited OHS management system, together with WHS training for all staff. The system cost the employer approximately $200,000 to put in place and included training sessions by internal and external providers both at a general level and at a role specific level. In addition to the changes the employer implemented to its WHS processes, the employer also made a $30,000 donation to support a Sydney University student studying burns research. Electric shock results in company officer conviction A company officer convicted over a near-fatal electric shock has unsuccessfully argued that he shouldn't be fined because the directors of two other culpable entities escaped prosecution. In April 2012, a bricklaying worker was standing on scaffolding and placing steel bars at a construction site when one of the bars came into contact with overhead power lines. The worker suffered a near fatal electric shock, leading to cardiac arrest and hospitalisation. Four parties, including the site head 25806776.2 LUM KIM 9 contractor, the company responsible for the scaffolding, the company and a company officer were charged in relation to breaches of the WHS Act. The NSW District Court in its decision found that the company and officer were guilty of breaching the WHS Act. The company officer argued he should not be fined as WorkCover (now SafeWork NSW) had not prosecuted the directors of the site head contractor or the scaffolding company. The director alleged that the regulator improperly threatened him with a conviction in the hopes of obtaining a guilty plea. The Court rejected this argument and imposed fines on both the company and director of $80,000 and $10,000 respectively and also made a costs order against the respondents. Court finds worker’s negligence, not OHS breach, contributed to workplace fire The NSW District Court has dismissed a company director’s occupational health and safety charge, after finding that a workplace fire was caused by a casual act of negligence that was not condoned by any systems that the director had put in place. The Court found in its decision that the systems were devised on consultation with industry experts to control risks, including the risk that caused the workplace fire. Whilst the company was found vicariously liable for the worker’s failure to follow instructions and fined $40,000, the company officer escaped conviction on the basis that the failure was not of a systemic nature, and that the company, Omega International and Shetty, had also provided intensive training for all workers in the years leading up to the incident. Two employers have committed to spending $350,000 to change safety and culture In these two cases, the employers have committed to enhancing their work health and safety systems, and replacing unsafe equipment, in an effort to improve safety and change the workplace culture. The first employer, BC Sands Pty Ltd (BC Sands), entered into a $294,000 enforceable undertaking following an injury to a contractor sustained in a forklift incident. The company was issued with five improvement notices following the incident. In response, BC Sands has committed to purchasing five upgraded forklifts, implementing a maintenance program and conducting induction sessions for all new and existing staff on the forklift safety features. The company has also agreed to spend almost $90,000 on rectification work including the recruitment of a HR coordinator to manage its existing health and safety systems and ensure ongoing compliance within the company. The second employer, Shamrock Electrical Pty Ltd, exposed six workers to asbestos when they were working in the subfloor of a Sydney hospital. Following the incident, the company was served with three improvement notices relating to asbestos, including failing to train their workers to identify asbestos. The employer agreed to enter into an enforceable undertaking which involved the company putting workers through asbestos awareness courses. The company also agreed to a number of rectifications following the incident, including implementing hazard identification and reporting systems. Appeal dismissed and fine doubled for employer who did not eliminate injury risk In a case examining the difference between managing and eliminating safety risks, the NSW Court of Criminal Appeal has dismissed an employer’s appeal against an occupational health and safety conviction, and doubled its fine. In April 2010, a Bulga Underground Operations Pty Ltd long wall miner fell to the ground and became incapacitated, before being crushed between automatic machinery and sustaining serious injuries. The employer appealed against its conviction, arguing that it would not be possible for it to eliminate the risk for a range of reasons, including reaction time and carelessness. On appeal, the court disagreed. Chief Justice Bathurst and Justices Hidden and Davies agreed that in many cases, it will be difficult to identify measures that totally eliminate risk. The court concluded that 25806776.2 LUM KIM 10 a failure to take necessary but insufficient steps to ensure safety was a breach of the WHS Act. The judges also concluded that, contrary to the primary judge’s decision, the employer had a high level of moral culpability and increased the fine from $50,000 to $100,000 and also imposed a costs order. Chief Justice Tom Bathurst and Justices Peter Hidden and David Davies rejected the employer's claim that its conviction should be quashed because a control measure identified by the prosecutor would not have eliminated the risk that caused an injury. VICTORIA Essendon football club fined $200,000 for failing to provide safe workplace Melbourne Magistrates Court has hit Essendon Football Club (Essendon) with two criminal convictions and a $200,000 fine for failing to provide players with a safe working environment during its 2011/2012 supplements program. Essendon were charged with breaching sections 21(1) and (2) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act), which provide that an employer must, so far is reasonably practicable, provide employees with a safe working environment without risks to their health. Essendon plead guilty to the two charges. The Magistrate found that although there was no evidence to suggest the players were injected without anything harmful, members of the club had failed to keep track of what the players were given. One of the offences was also found to be aggravated as Essendon had persevered with its supplements program and failed to follow existing protocols after players had raised concerns. WorkSafe Victoria issued a statement accompanying the decision, saying that the sentence imposed ‘a warning to every Victorian employer that they must provide a healthy and safe workplace for their employees’. A number of media and news outlet provided commentary on the decision, as the decision indicates that all employees regardless of their employment context have the right to expect their employer will provide a healthy and safe workplace. More fines and charges for second employer in Melbourne fatalities In March 2013, three pedestrians were killed on a footpath in Swanston St, Melbourne when high winds caused a construction wall to collapse onto them. The owners of the construction site were separately charged in relation to the incident in 2014, and these current proceedings were brought against Aussie Signs Pty Ltd (Aussie Signs) alleging that the way the sign was attached to the wall increased the risk of it collapsing. Aussie Signs pleaded guilty to breaching section 23 of the OHS Act for exposing persons other than employees to health and safety risks. The County Court convicted and fined Aussie Signs $250,000 over the triple fatality. The case is a reminder that employers are responsible not just employees but the health and safety of everyone that could be affected by their conduct. The case previously attracted attention in 2014 when the construction site owner Grocon was also only fined $250,000 in relation to the three fatalities. Construction company commits $100k to safety and other initiatives A Victorian construction company, DiMac Constructions Pty Ltd, has entered into a $100,000 enforceable undertaking after a contractor fell 3.3 metres from a scaffold into an internal part of the building in June 2015. 25806776.2 LUM KIM 11 The company had been “injury-free” in the 10 years leading up to the incident, however in this instance breached the OHS Act in failing to provide fall protection on the internal part of the building and exposing workers to the risk of falling. The employer has committed to improving safety by paying for nearly 170 employees to complete high risk work training. The employer has also committed to donating $20,000 to fund a drug and alcohol awareness program, as well as engaging and independent OHS consultant to review its OHS management system. If the full $100,000 of the undertaking is not spent, the company has agreed to donate the balance to a nominated safety research organisation. Fines for two breaches of OHS Act tripled to $1.5m on appeal In May 2011, a worker was killed on a piling rig after he fell 40 metres to his death despite being attached by fall protection. Two related companies were prosecuted for the OHS breach and the primary judge imposed a $450,000 fine. In the decision of the primary judge, the County Court found the two companies involved in the incident guilty of two breaches of the OHS Act by failing to ensure the safety of the deceased worker, operator and others, and imposed aggregate penalties of $350,000 and $100,000. On appeal, the Victorian Court of Appeal in DPP v Vibro-Pile (Aust) Pty Ltd  VSCA 55 increased the fine to approximately $1.5 million. The Court of Appeal stressed that prosecutors aren’t required to prove that a safety breach caused an incident. They noted that occurrence of death or injury is of ‘evidentiary significance only’ and is not an element of the offence. In reviewing the initial decision, the Court of Appeal found it was wrong to aggregate the initial penalties. The bench also found: the employer’s training defects were partially serious; both employer’s failed to supervise the operator during the erection of the section, in contravention of the instruction manual; the supervision of the operator was completely inadequate, with the direct supervisor only visiting the site twice in two days; and the supervisor failed to act on the operator’s complaints about lack competence. On that basis, the Court concluded it was a real and serious risk the rig would not be erected correctly, and imposed fine of $750,000 on each employer. Developments in relation to the Hazelwood Mine Fire There have been a number of developments in relation to Hazelwood Mine Fire that occurred in 2014. The fire, which burned for 45 days, occurred in February and March 2014 at the Hazelwood open cut brown coal mine and caused health problems to workers and local community members. There is currently an inquiry into the Hazelwood Mine Fire and volumes 1 and 2 of the inquiry’s findings were handed down in 2015. On 29 January 2016, the third volume of the inquiries 2015/2016 report was handed down. The report responded to terms of reference 7 of the inquiry, which relates to measure to improve the health of the Latrobe Valley communities, which is the surrounding area. The third volume of the report brought together the comments of a number of stakeholders, namely the health services, the council and community. The report identified short, medium and long term opportunities to improve the health of Latrobe Valley communities, having regard to any health impacts identified as being associated with the Hazelwood Coal Mine Fire. The full version of the report can be found here. The fourth volume of the report, relating to mine rehabilitation, was handed down on 9 April 2016 and will be discussed in our next quarterly update. 25806776.2 LUM KIM 12 Additionally, following a comprehensive investigation into the mine fire, WorkSafe Victoria has charged the Hazelwood Power Corporation with five breaches of failing to maintain a healthy and safe workplace, and fives breaches of failing to ensure the safety of non-employees. WorkSafe Victoria has also confirmed in its media release that will not take further action against the relevant fire authorities after finding that each party took reasonably practicable steps to protect the health and safety of their employees. QUEENSLAND Coronial non-inquest finds double fatality caused by 12 factors A coronial non-inquest into a double fatality, which resulted in a record $650,000 OHS fine, has identified a range of factors that contributed to the fatalities. In December 2007, two Queensland Rail systems maintenance workers were struck by a 96-tonne trucking machine and killed as a result of the incident. The workers were working alongside another Queensland Rail division in charge of operating the vehicle, and the crew was ordered to move the vehicle to let an empty coal train pass. The driver did not realise the two workers remained on the tracks, and reverse into them. Queensland Rail was subsequently fined $650,000 in the Industrial Magistrates Court in 2009, and at the time the decision attracted attention as the penalty was more than five times higher than the previous highest fine for an OHS offence involving multiple deaths in Queensland. The decision of the coronial non-inquest was handed down on 19 January 2016, and Coroner Hutton found the following factors contributed to the incident: poor communication between working groups; mechanical defects, include defective lighting items, reduced visibility as a result of empty windscreen washers, rear facing camera lens mounted in an unsuitable location, and a damaged headlight; failure to conduct a proper Daily Service Check and a Worksite Safety Brief; noise occurring from passing coal trains; failure to regularly scan the rear vision camera monitor; absence of a person on the ground to maintain visibility; and speed of the reversing movement. In handing down his decision, Coroner Hutton was also critical of the lack of vigilance displayed by the two deceased, and that those involved in the incident were also likely fatigued as workers had worked significant hours in the lead up to the incident with limited days of rest. Despite these conclusions about the roles of a number of individuals in the incident, the Coroner noted that the police decided in 2014 not to charge any individuals because the negligence did not amount to criminal negligence. Fatality related OHS charges upheld in relation to company and three officers The Queensland Industrial Court has rejected claims by an employer and three company officers that the OHS charges against them were unintelligible and didn’t disclose offences known to law. In June 2012, an MCG Quarries Pty Ltd worker was investigating a noise on a conveyor at a fixed crushing plant when he was dragged into the conveyor and sustained fatal injuries. Following the fatality, Queensland Department of Natural Resources Mines issued a safety alert and charged the 25806776.2 LUM KIM 13 company together with three senior executives, including an executive whose tenure ended four months prior to the fatality. On appeal, the company and executives argued that an obligation could only be found in breach of the Act if the relevant regulation prescribed a way of achieving an acceptable level of risk. They argued the regulations were generic and no identifiable risk was particularised. Justice Martin disagreed, noting the regulations were designed to assist an obligation holder to satisfy the requirements of the Act, and it would be impossible to identify all possible risks and the means by which each of those risks might be dealt with. SOUTH AUSTRALIA Fatality could have been prevented by basic risk controls In Kay v Inco Ships Pty Ltd  SAIRC 37 the South Australian IRC found that introducing a formal hazard identification and risk assessment process would have prevented a worker being crushed to death in a plant. In September 2012, a deck mechanic was cleaning a shuttle tail pulley of a conveyor on an out loading boom when the conveyor retracted into the boom and fatally crushed the worker. Inco Ships Pty Ltd pleaded not guilty in relation to a number of breaches of the now repealed State OHSW Act, including failing to undertake adequate hazard identification and risk assessment. Inco Ships alleged that its informal risk assessment and work instructions were so well known that nothing formal was required, and no additional steps could have been taken to reduce the risk of injury. However the Industrial Magistrate disagreed, and found that there was a foreseeable risk of injury or death that was far more than ‘far-fetched or fanciful’. The magistrate found there was no well-known or clearly understood informal hazard awareness, and that basic risk control steps could have prevented the risk of injury. SA Industrial Relations Court hands out fines for breaches of WHS Act The South Australian Industrial Relations Court in Soulio v Gambier Earth Movers Pty Ltd  SAIRC 6 has imposed a significant fine on the company for exposing an individual to a risk of serious death or serious injury or illness. The worker was operating a soil loading machine in October 2013 when his hand was amputated by the machine following a fall. The employer pleaded guilty to the offence and was fined $185,000, however received a 40% discount resulting in a fine of $110,000. NORTHERN TERRITORY Supreme Court considers limitation periods and upholds fatality charge The Northern Territory Supreme Court has handed down its decision in S.Kidman & Co v Lowndes CM and the Director of Public Prosecutions  NTSC 3, finding that work health and safety charges laid three years after a fatality were valid and can be amended to include the particulars of the alleged offence The decision examines coronial rules, and distinguished the case from the High Court decision of Kirk v Industrial Relations Commission  HCA 1, where the High Court quashed two convictions because the charges didn’t particularise unsafe acts. 25806776.2 LUM KIM 14 In February 2012, a cattle station diesel mechanic was killed when a 350kg pole fell on his abdomen and fatally crushed him. The worker had only commenced employment the previous day and was unfamiliar with the equipment. Following the incident, the employer immediately notified NT WorkSafe and the Deputy Coroner investigated the death and determined not to hold an inquest in its February 2014 report. The employer, in its appeal, argued that the complaint wasn’t made within the limitation periods set out in section 232 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). The section requires offences to be brought within 2 years of the regulator being notified, or one year after a coronial inquiry has ended. The complaint was made nearly three years after the fatality, however Justice Southwood rejected the appeal and found the word inquiry covered a wide field, and that the Deputy COrnoer’s investigation was a form of coronial inquiry. Enforceable undertaking of almost $1 million entered into by Rio subsidiary after fatality In February 2014, an Alcan Gove Pty Ltd (Alcan) worker was killed while he was examining a faulty reverse closing trap. He was fatally crushed between the counterweight and the service hopper chute. Northern Territory WorkSafe (NT WorkSafe) alleged Alcan committed an offence under section 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). Alcon elected to accept an enforceable undertaking in lieu of prosecution under the WHS Act. The enforceable undertaking commits Alcan to a minimum spend of almost $1 million, which is significantly higher than other enforceable undertakings entered into in the Northern Territory and discussed further below. Alcan has committed to a number of activities to improve health and safety, including: introducing a human performance safety program; producing a training video based on the fatality; delivering presentations on the incident at relevant industry forums; funding a subsided first aid course for local residents; and providing resources to develop and conduct mining safety courses. These activities will result in Alcan spending a minimum of $644,560 on workplace activities, $83,000 on industry initiatives and close to $220,000 on the initiatives benefiting the local community. Enforceable undertaking entered into for alleged asbestos exposure A further enforceable undertaking has been entered into in the Northern Territory, with NT WorkSafe successfully obtaining an enforceable undertaking from Kalidonis Pty Ltd after its employees were allegedly exposed to asbestos in March 2014 during office renovations. NT WorkSafe has issued a media release, commenting that the undertaking delivered maximum benefit for employees, the industry and the wider community. The company has committed to the following activities which will have a minimum expenditure of $77,000: engagement of an independent WHS consultant to develop and audit safety systems; ongoing consultation with workers to discuss WHS obligations in the construction industry; translation of safety information into Greek for use within the wider construction industry; and a donation to the local surf club.