Work Health and Safety Legislative and Case Law Update
WHS Briefing Q3 2014
3rd issue 2014 (for the period 1 July 2014 to 30 September 2014)
In this issue:
Welcome to the 3rd issue of the WHS briefing for 2014. This briefing tracks significant legislative and case law changes which have occurred between 1 July 2014 to 30 September 2014 which may affect your business.
KEY LEGISLATIVE UPDATES
COAG reviews the model WHS Act and Regulations
Improving the model WHS laws: Issues Paper and Consultation Regulation Impact Statement
On 4 July 2014, the Office of Best Practice Regulation released an issues paper and consultation regulation impact statement on improving the model WHS laws as part of the Council of Australian Governments’ (COAG) review. State and territory regulators were expected to use the paper to consult with local employers and workers, and submit their results by 1 August 2014. South Australia and the Northern Territory have also initiated their own reviews of their legislation.
Safe Work Australia Operational Plan released
Safe Work Australia Operational Plan 2014-2015
On 5 August 2014, Safe Work Australia released its operational plan for activities planned for the 2014/15 financial year. The planned activities include conducting reviews and developing policy proposals to improve:
the practical application of model Codes of Practice and guidance material; and
the consistency of legislation across jurisdictions relating to explosives and workers’ compensation.
National Heavy Vehicle Regulator issues first safety and compliance alert to industry
NHVR Safety and Compliance Alert 1/2014
On 19 August 2014, the National Heavy Vehicle Regulator (NHVR) issued a safety and compliance alert in response to the investigation of a fatal fuel tanker crash in Victoria on 7 August 2014. The alert provides timely safety advice to operators on inspection of couplings for dog trailers, pig trailers and road train dollies.
Heavy Vehicle National Law Interim Guidelines for Industry Codes of Practice released
Heavy Vehicle National Law Interim Guidelines for Industry Codes of Practice
In July 2014, the NHVR released the Heavy Vehicle National Law Interim Guidelines for Industry Codes of Practice (Guideline). The Guideline ensures that those jurisdictions that registered industry
codes of practice under their former laws, that is South Australia and Victoria, maintain their registration until the new national guidelines are developed.
Reminder issued for drivers and operators start using work diary
NHVR's media release dated 8 August 2014
From 11 August 2014, heavy vehicle drivers and operators are required to use the national driver work diary to record work and rest times in jurisdictions where the fatigue provisions of the Heavy Vehicle National Law apply, unless they have a work diary exemption.
Revised Australian Dangerous Goods Code released
Australian Code for the Transport of Dangerous Goods by Road & Rail, Edition 7.3
In August 2014, the National Transport Commission (NTC) released the Australian Code for the Transport of Dangerous Goods by Road & Rail, Edition 7.3 (Code).
It should be noted that this replaces the Code released on 16 June 2014 that has been withdrawn due to a production error.
GHS Hazardous Chemical Information List updated
GHS Hazardous Chemical Information List
The Globally Harmonised System of Classification and Labelling of Chemicals (GHD) Hazardous Chemical Information List (List) forms part of Safe Work Australia’s Hazardous Substance Information System (HSIS). Safe Work Australia has made technical changes to a number of chemicals on the List and it now includes a search function.
NEW SOUTH WALES
Mirror WHS Codes commence
On 18 July 2014, twelve WHS Codes of Practice mirroring Safe Work Australia’s model Codes of Practice came into force. WorkCover NSW has advised that although the changes affect all industries they are likely to have the greatest impact on the construction, electrical and manufacturing industries.
Existing Codes relating to Excavation Work, Safe Work on Roofs, Work in Hot and Cold Environments, Amenities for Construction Work and Prevention of Occupational Overuse Syndrome have been revoked to avoid duplication or conflict. The new Codes are:
1. First Aid in the Workplace;
2. Construction Work;
3. Preventing Falls in Housing Construction;
4. Managing Electrical Risks in the Workplace;
5. Managing Risks of Hazardous Chemicals in the Workplace;
6. Managing the Risks of Plant in the Workplace;
7. Safe Design of Structures;
8. Excavation Work;
9. Demolition Work;
10. Spray Painting and Powder Coating;
11. Abrasive Blasting; and
12. Welding Processes.
Submissions received on draft mirror WHS Mines Regulation
Public submissions on the draft WHS (Mines) Regulation
Public submissions on the draft codes of practice
NSW Mine Safety has published the submissions received in response to its release of the draft Work Health and Safety (Mines) Regulation 2014 and a number of draft codes of practice for consultation in May 2014.
Mine Safety expects to release draft codes on mechanical and electrical engineering control for consultation shortly.
Regulatory impact statement for draft mirror WHS Mines Regulation released for comment
Regulatory Impact Statement dated September 2014
On 5 September 2014, NSW Mine Safety released a regulatory impact statement on the draft Work Health and Safety (Mines) Regulation 2014. The statement concludes that the benefits of adopting the harmonised WHS Mine Regulations outweigh the costs.
Consultation on the regulatory impact statement closed on 23 September 2014.
Proposed Bill to introduce framework for three types of inquiries
Inquiries Act 2014 (Vic)
The Inquiries Act 2014 (Vic) came into force on 23 September 2014. The Act provides a framework for Royal Commissions, Boards of Inquiry and Formal Reviews including their establishment, conduct, powers and procedures and matters relating to privilege, secrecy and protection from liability and offences.
AUSTRALIAN CAPITAL TERRITORY
Amendment to Work Health and Safety Regulation
Work Health and Safety Amendment Regulation 2014 (No 2)
The Work Health and Safety Amendment Regulation 2014 (No 2) commenced on 2 September 2014 making numerous technical amendments (70 in total) to the Work Health and Safety Regulation 2011.
Some of the amendments include:
clarification that safety spotters for work on energised electrical equipment must be competent in rescuing and resuscitating workers;
removing the requirement to register altered plant designs for tower and gantry cranes in certain circumstances; and
allowing a person to carry out high risk work without a licence if they hold the necessary certification and have applied for a licence.
South Australians called to comment on COAG-review of model WHS laws
Improving the model WHS laws: Issues Paper and Consultation Regulation Impact Statement
SafeWork SA has asked employers to comment on the national issues paper relating to the COAG-initiated review of the model WHS Act and Regulations. The review is being conducted concurrently with the statutory review already underway in South Australia.
Western Australia criticised for delay in adopting model WHS laws
UnionsWA have criticised the Government for its overuse of consultation processes that has resulted in years of indecision and delay.
Western Australia has formally dropped the use of ‘harmonised’ in relation to their new WHS laws instead adopting the term ‘modernised’ to reflect the fact that they will differ considerably from the model WHS laws adopted in other jurisdictions.
Western Australia’s version of the model WHS laws is due to be tabled in State Parliament soon which will be followed by a three month consultation period.
Since the last WHS Briefing, Western Australian Department of Mines and Petroleum (DMP) have released:
the draft guideline for the effective safety and health supervision in Western Australian mining operations for a second round of consultation;
the draft guideline on working at height in underground mines for consultation (note, the draft guideline is no longer available on the DMP’s website);
five new incident alerts; and
the guideline on managing noise in mining operations which commenced in July 2014.
Northern Territory to review model WHS laws
Improving the model WHS laws: Issues Paper and Consultation Regulation Impact Statement
Following South Australia’s lead, NT WorkSafe is conducting a review of the Territory’s mirror WHS Act. The review is being conducted concurrently with the national COAG-initiated review with employers being asked to comment on the national issues paper.
Tasmania to strengthen mining laws and inspectorate
Tasmania's State Budget 2014-15
The State budget handed down on 28 August 2014, includes additional funding for the Office of the Chief Inspector of Mines to enable the employment of a sixth inspector.
The Treasurer has stated that WorkSafe have been instructed to establish a mine safety steering committee to review best practice mine safety laws, coronial report of previous mine fatalities in Tasmania and recommendations in an audit undertaken by a prominent OHS academic, Professor Quinlan. The committee is expected to hold its first meeting during September 2014 and will provide an initial report by the end of the year.
Union seeks orders following fuel tanker crash
TWU's media release dated 11 August 2014
On 7 August 2014, three people were killed on a road near Wodonga, when a BP tanker lost its trailer and it collided with other vehicles.
The Transport Workers’ Union has advised that it will be seeking orders in the Road Safety Remuneration Tribunal regarding driver pay rates, vehicle maintenance and supply chain accountability where safety checks were skipped.
NEW SOUTH WALES
TAFE fined $300,000 for a student’s death
WorkCover (Inspector Calvez) v TAFE Commission  NSWDC 108 (14 July 2014)
In March 2009, an 18-year old student of the Technical and Further Education Commission (TAFE) was killed after being thrown from a horse during a horse riding lesson that was part of a jillaroo/jackaroo training course.
The District Court fined the TAFE $300,000 for a breach of the now-repealed Occupational Health and Safety Act 2000 (NSW) (OHS Act), for failing to ensure the safety of a non-employee. The Court found that the horse was not suitable for beginner riders as an ex-racehorse.
Employer enters enforceable undertaking expected to cost $427,000
Terex Australia Pty Ltd enforceable undertaking
In July 2012, a service technician employed by Terex Australia Pty Ltd (Terex) had been inspecting a sensor on the boom of a crane when he fell three metres from the crane’s plate platform suffering head and wrist injuries.
WorkCover NSW alleged that Terex had breached section 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) in failing to ensure the worker’s health and safety as there was no fall protection on or around the crane’s plate platform at the time of the incident.
Terex entered into an enforceable undertaking to undertake numerous activities and improvements that will cost the company $427,000, including the installation of handrails and equipment to reduce fall risks and a review of its certified OHS management system and integrated environmental system.
Terex has also spent an additional $270,434 on other initiatives since the incident including purchasing elevated work platforms and ladders for its NSW, Victoria, Western Australia and Queensland operations and engaging external consultants to run safety workshops and training.
First court-ordered WHS undertaking in NSW
In 2012, a bricklaying company was constructing two walls at a site in Sydney’s south-west. The walls were over 1.8 metres high without adequate bracing and as a result of strong winds the walls collapsed seriously injuring two workers.
WorkCover NSW prosecuted the manager alleging a breach of section 28 of the WHS Act in failing to instruct workers not to work near the inadequately braced walls.
The manager entered an early guilty plea and cooperated with WorkCover throughout its investigation.
The Court took into account the manager’s prior WHS performance, risk management and good character in ordering that the manager enter into an undertaking to undertake safety training and to pay $3000 of WorkCover’s costs. The decision reflects the first non-pecuniary orders made under the NSW WHS Act. The decision has not been published.
WorkCover NSW prosecutes for inadequate guarding
WorkCover NSW has recently prosecuted a juice company for inadequate guarding. La-Juice and one of its directors were fined $75,000 and $6,750 respectively after one of its workers had their fingers amputated by the internal moving parts of a juicing machine with insufficient guarding. The decision has not been published.
Employer enters enforceable undertaking to make improvements and contribute to charity
DTC Pty Ltd enforceable undertaking
In May 2012, a workshop manager and trades assistant employed by DTC Pty Ltd (DTC) were inflating a tyre on a damaged wheel rim when the tyre came off, striking and injuring the workers.
Workplace Health and Safety Queensland alleged that DTC had breached section 19 of the Work Health and Safety Act 2011 (Qld) (WHS Act) by failing to provide workers with safe plant, failing to develop adequate risk assessments or safe systems of work and failing to instruct workers.
DTC entered into an enforceable undertaking to buy a new vehicle and driver tracking program focusing on fatigue management and maintenance of vehicles and mass. DTC will also update its training and induction programs, conduct external OHS audits, and make $15,000 of charitable donations. The enforceable undertaking is estimated to cost DTC more than $200,000.
Employer enters into second enforceable undertaking
J Hutchison Pty Ltd enforceable undertaking
In November 2011, employees of J Hutchison Pty Ltd (J Hutchison) removed three building awnings which were later found to be asbestos-containing materials.
Workplace Health and Safety Queensland alleged that J Hutchison had breached the now-repealed Workplace Health and Safety Act 1995 (repealed WHS Act) by failing to implement proper controls while potentially exposing its employees to chrysotile and amosite fibres.
J Hutchison entered into an enforceable undertaking to develop an asbestos learning guide, to revise its internal training modules relating to asbestos and demolition to include an identification management procedure and to make a $5000 donation to the Asbestos Related Disease Support Society Qld Inc. The enforceable undertaking is estimated to cost J Hutchison $87,925.
J Hutchison entered into a $134,000 enforceable undertaking in April 2013 for an unrelated incident involving a worker falling through a skylight.
Owner and witnesses fail to cooperate with safety investigation
Inquest into the death of Wai Kim Lam
The Coroner has found that the coronial inquest into the death of Wai Kim Lam, who drowned during a recreational diving trip on the Great Barrier Reef in May 2010, would not have been required if the owner of the company and two crew members had cooperated with the Office of Fair and Safe Work Queensland during its safety investigation.
Emergency-response plans require more than ‘hoping for the best’
Hazelwood Mine Fire Inquiry
On 9 February 2014, a fire started and continued to burn for 45 days at the open cut brown coal mine, owned and operated by GDF Suez SA (GDF), causing injury to numerous GDF employees and emergency service fire-fighters. Twelve GDF employees and fourteen fire fighters were treated for carbon monoxide exposure.
The independent inquiry, making recommendations to both GDF and the Victorian Government for improvement, found that GDF’s ‘carbon monoxide procedure’ was inadequate and that fire services were not prepared to respond to the conditions produced by the fire.
The inquiry recommends, among other things that GDF revise its emergency-response plan to include specific provisions relating to days on which there is a fire ban and conduct risk assessments of the likelihood and consequences of fire.
Ignoring the VWA won’t make them go away
In October 2013, Davcom Communications Pty Ltd (Davcom) was served with a notice to produce
documents relating to its storage and handling of asbestos-containing materials.
The Victorian WorkCover Authority (VWA) issued the notice under section 9(1) of the Occupational
Health and Safety Act 2004 (Vic) (OHS Act), as part of its investigation into suspected contraventions
of the Act.
Davcom did not provide the documents and failed to appear in Court.
The Court found that there had been two breaches of section 9 of the OHS Act and fined Davcom
$20,000, plus costs, in their absence. The decision has not been published.
Traffic management prosecutions
There have been three recent forklift-related prosecutions in Victoria in the last quarter suggesting
that traffic management is one area that the VWA is currently focussing on. The decisions have not
1 Qube Logistics (Vic) Pty Ltd
An employee of Qube Logisitics (Vic) Pty Ltd (Qube) was making a delivery to a Pack Tainers Pty Ltd premises when he was struck by a forklift.
Qube was fined $3000 (plus costs), without conviction, for failing to provide employees with sufficient
instruction, training or supervision to perform their work safely.
2 Nightingale Electrics Pty Ltd
In February and April 2013, a VWA inspector observed employees of Nightingale Electrics Pty Ltd (Nightingale) using the same area of the warehouse for receiving and dispatching stock by forklift.
VWA’s investigation found that Nightingale did not have a traffic management plan and did not
otherwise control the risk of mobile plant colliding with pedestrians.
Nightingale pleaded guilty to traffic management breaches and was placed on an adjourned 12-month
undertaking requiring it to donate $20,000 to charity.
During the last quarter, there have also been a number of prosecutions relating to inadequate guarding suggesting that this is another area of VWA’s current focus. The decisions have not been published.
1 Dotmar EPP Pty Ltd
In the course of a year, three employees of Dotmar EPP Pty Ltd (Dotmar) sustained injuries, two had their fingers crushed in a lathe and the third injured him leg when he was trapped between a table and the frame of a router.
In the course of VWA’s investigation they found that the interlock on the lathe had been bypassed to allow the machine to be operated while the guard doors were open.
The Court fined Dotmar at total of $375,000 for the two incidents.
2 SPC Ardmona Operations Ltd
In April 2013, an employee of SPC Ardmona Operations Ltd was removing loose packs from a fruit and vegetable packaging machine when her arm became trapped, which resulted in a later amputation above the elbow.
The perspex guard covering the chain and sprocket of the machine was in place at the time of the incident, but the guard below it had been removed.
SPC pleaded guilty and was placed on an adjourned undertaking for 12 months with a condition to pay $45,000 (plus costs) into a court fund with no conviction being recorded.
3 Yahl Skin & Hide Pty Ltd
In October 2013, a VWA inspector observed inadequate perimeter guarding around the tumblers, allowing workers to access the machines’ chain drives, belts and pulleys during a visit at Yahl Skin & Hide Pty Ltd (Yahl Skin & Hide)’s workplace.
VWA alleged that Yahl Skin & Hide had breached sections 21(1) and 21(2)(a) of the OHS Act.
Yahl Skin & Hide pleaded guilty and was ordered to pay $10,000 in fines and costs without conviction.
4 Pasta Al Dente (Aust) Pty Ltd
In January 2014, an employee of Pasta Al Dente (Aust) Pty Ltd (Pasta Al Dente) was injured after his hand became caught while scraping the side of a hopper on a cannelloni machine.
In the course of VWA’s investigation they found that Pasta Al Dente had disconnected the interlock on the lid of the hopper.
Pasta Al Dente pleaded guilty to failing so far as was reasonably practicable, to provide and maintain plant that was safe and without risks to health and was fined $50,000.
Unsafe systems of work prosecutions
Prosecutions for unsafe systems of work appears to be another theme of recent prosecutions by the VWA. The decisions have not been published.
1 BVCI Pty Ltd
In May 2013, an employee of BVCI Pty Ltd (BVCI) was injured while removing a newly-completed three-tonne concrete pit from a mould when it fell on his legs.
VWA alleged that BVCI had breached the OHS Act by failing to provide safe plant or provide and maintain a safe system of work, in so far as was reasonably practicable.
BVCI pleaded guilty and was fined $62,000 (plus costs) without conviction.
2 Inmode Constructions Pty Ltd
Inmode Constructions Pty Ltd (Inmode) was the principal contractor of a multi-storey construction project.
In March 2013, a VWA inspector observed two employees of a subcontractor standing two metres from the 10-metre high live edge of the building without harnesses or guardrails.
Inmode was convicted and fined $35,000.
3 Andre Stevens
In May 2012, a self-employed bricklayer constructed a free-standing brick wall that collapsed due to inadequate bracing.
The construction company, Eye Q Constructions Pty Ltd was charged and fined $40,000 for the same incident earlier this year.
Pleading guilty the bricklayer was fined $3000 without conviction for breaching section 24(1) of the OHS Act.
AUSTRALIAN CAPITAL TERRITORY
Employer and worker charged with reckless conduct
In July 2012, the boom of a concrete pouring machine collapsed on a construction site in Kingston killing a worker after it had recently undergone a full six-year inspection.
The Director of Public Prosecutions (DPP) followed WorkSafe ACT’s recommendation to charge the employer and a worker with reckless conduct under the Work Health and Safety Act 2011 (ACT) (WHS Act). If found guilty there are serious consequences with a maximum fine of $3 million ($300,000 for the worker) and/or five years imprisonment.
The DPP have also laid alternative charges on the employer and worker for failing to comply with a health and safety duty and exposing an individual to a risk of death or serious injury or illness.
This is the first reckless conduct charge to be made under the model WHS laws. The matter is listed in the Magistrates Court on 26 August 2014.
Coroner’s inquest postponed to allow prosecution to proceed
In 2011, a construction worker was killed when he was hit by a reversing heavy grader.
Canberra Contractors have been charged with failing to comply with a safety duty and recklessly causing serious harm.
The coronial inquest into the death has been postponed to 2015, but had previously heard that the grader driver, his employer and supervisors on the site may be criminally responsible.
First conviction under ACT’s mirror WHS laws
Alan Chipperfield v Mashera Pty Ltd trading as Barlens Event Hire (19 August 2014)
On 11 March 2012, a number of panels displaying artworks collapsed injuring a number of people at the Canberra Times Art Show.
The panels were provided by Mashera Pty Ltd (trading as Barlens Event Hire) (Mashera) who had engaged a structural engineer to install them.
WorkSafe ACT’s investigation found that the panel system was inadequate in light of the loads and impacts required for the event.
The Court found that Mashera failed to conduct a risk assessment or to check the stability of the panels after they had been installed noting that a principal contractor “cannot simply delegate all their safety duties to a subcontractor”. Mashera was convicted and fined $37,500, significantly lower than the maximum penalty of $500,000, in recognition of their early guilty plea and cooperation with WorkSafe ACT.
The importance of a written site-specific hazard identification and risk assessment
Perry v Bellard Pty Ltd  SAIRC 23 (16 July 2014)
In September 2011, a 17-year-old employee of Elite Concrete Pumping SA Pty Ltd (Elite) was walking backwards while handling a line pump used to pour concrete when he tripped and fell eight metres down a lift shaft on a Bellard Pty Ltd (Bellard) building site. The worker was seriously injured.
The void was only covered loosely by three structural planks which separated when the worker had fallen backwards.
Bellard pleaded guilty to breaching the now-repealed Occupational Health Safety and Welfare Act 1986 (SA) (OHSW Act). The Court found that workers were not warned of the presence of lift shafts or stairwells and that Bellard had not conducted site-specific written hazard identification or risk assessment. Bellard was fined $100,000, the Court taking into account their relatively early guilty plea, cooperation and contrition.
Employer fined for fall incident
Perry v Kyren Pty Ltd  SAIRC 22 (17 July 2014)
In December 2011, an experienced contractor who was engaged by Kyren Pty Ltd (Kyren) to lay formwork at a construction site suffered severe injuries when he fell 3.8 metres through a void to the basement.
Kyren’s project manager had previously observed workers not wearing fall protection and had issued a warning to the workers and faxed a memo to the site supervisor instructing him to ensure that the workers wore a harness.
The Court found that Kyren failed to formally induct the injured workers and failed to ensure that he sign job safety analyses. The Industrial Magistrate did find however that harnesses were available at the site and that Kyren had a policy requiring them to be worn. Kyren was fined $91,000, after a 30 per cent reduction was applied for their early guilty plea, cooperation and contrition.
Court takes into account a related company’s safety procedures
Perry v Tru-Coat Pty Ltd  SAIRC 24 (28 July 2014)
In July 2012, a dogman employed by Tru-Coat Pty Ltd (Tru-Coat) suffered crush injuries when a 10-metre, 720kg beam became dislodged from the flat arm of a trestle and fell on him. He had been working alone, using an overhead crane to turn a steel beam that was sitting on trestles when the beam’s end plate caught and dislodged the beam.
Manuele Engineers Pty Ltd (Manuele), a company with the same directors as Tru-Coat, was prosecuted for a similar incident in 2006.
Tru-Coat was charged with failing to ensure a minimum of two people moved large steel beams and failing to prohibit crane operators from standing adjacent to the end of the trestles when beams were being turned.
Tru-Coat had manual handling and overhead crane safe operating procedures requiring that two people two people operate the crane if the beam was longer than 12 metres. Manuele’s safe operating procedures at the time of the 2006 incident only required the beam to be 8 metres to require two workers.
The Court questioned why the control measure of 8 metres in the related company’s safe operating procedures was significantly weakened to 12 metres and stated that the 10-metre beam was unlikely to have fallen if the original 8-metre policy was adopted. Tru-Coat was fined $80,000, the Court taking into account its early guilty plea, cooperation and contrition.
Non-pecuniary penalty quashed on appeal
Badge Constructions (SA) Pty Ltd v Perry  SAIRC 25 (6 August 2014)
Badge Contructions (SA) Pty Ltd (Badge) was prosecuted in December 2013 in relation to an incident
involving the collapse of a concrete staircase during the construction of a police academy. A worker was struck by the staircase sustaining minor injuries and another worker narrowly avoided being struck.
At first instance the Industrial Magistrate cited a number of aggravating factors and found that Badge’s safety procedure was “alarmingly informal and complacent” and ordered a fine of $100,000 and a non-pecuniary penalty of placing a notice about the offence and penalty on its website.
Badge appealed the sentence.
On appeal, the fine was reduced to $71,250 and the non-pecuniary penalty was quashed. The Industrial Relations Court found that the Industrial Magistrate had erred in applying aggravating factors that were either not factually correct or related to an offence that the employer had not been charged or convicted of, that is, putting other workers and end users at risk of serious injury.
Employers have a duty to warn night shift workers of associated risks
Fraser v Burswood Resort (Management) Ltd  WASCA 130 (15 July 2014)
In December 2001, an employee of Burswood Resort (Management) Ltd (Casino) had a car accident on the way home from her eight hour shift that finished at 4am.
The employee sued the Casino for $1 million in damages for failing to warn her of the increased risk of falling asleep while driving in the dark after night shift.
At first instance the District Court found that a 24-hour employer like the Casino had a duty to take reasonable care to mitigate the risks associated with night shift work and that it had breached its duty by failing to warn the worker of the risks.
However, the District Court concluded that he was not persuaded that the employee had had a ‘micro-sleep’ at the time of the accident and that it was more likely to have been the result of inattention and that therefore the employer’s breach did not cause or materially contribute to the incident.
The injured worker appealed.
The Supreme Court of Appeal dismissed the worker’s appeal on causative grounds, affirming the District Court judge’s decision. The Chief Justice did state however, that the risks associated with night shift work are not “blindingly obvious” and that employers do have a duty to notify their workers of such risks.
BHP’s breach was not the operative cause of death
BHP Billiton Iron Ore Pty Ltd v Capon  WASC 267 (28 July 2014)
In July 2008, an experienced mechanical fitter employed by BHP Billiton Iron Ore Pty Ltd (BHP) was fatally crushed while conducting remedial work on two scissor lifts. The worker had placed his body in the descent path of one of the lifts while its safety bar was not in place.
In March 2013, at first instance, BHP was fined $130,000 and ordered to pay $300,000 in costs, for breaching section 9 of the Mines Safety and Inspection Act 1994 (WA) (Mines Safety Act) by failing to ensure workers were not exposed to hazards.
The Magistrates Court stated that the safety bar was not the only reasonably practicable control and that there were other controls available to minimise the hazard, for example a second person, or chains or chocks.
BHP appealed the decision submitting that the only reasonably practicable safe system of work was the use of the safety bar and that the worker was aware of this.
The Supreme Court found that BHP had breached its safety duties but not to the threshold of ‘beyond a reasonable doubt’ required by section 9A(2) of the Mines Safety Act, finding that the operative cause of the death was the platform descending on him while he was underneath the scissor lift platform and that this occurred because the safety bar was not in place, which was a safety measure that the worker had demonstrated knowledge of.
The Supreme Court has found that it is liable to receive a penalty under section 9A(3) of the Mines Safety Act and will hear submissions regarding a suitable fine.
Public bystander killed in incident
On 25 November 2013, a contractor of Total Landscape Redevelopment Service Pty Ltd (Total Landscape) was reversing a bobcat on a landscaping site when he hit and killed a member of the public who was moving material to a skip bin.
The City of Stirling had engaged Total Landscape to undertake landscaping work at Innaloo.
The Magistrates Court fined the City of Stirling $20,000 (plus costs) for failing to ensure a contractor provided and maintained a safe workplace. The Court found that the City of Stirling had not required Total Landscape to complete a hazard identification process nor had it ensured that they had adequately addressed identified risks. The decision has not been published.