24021254.1 MIM KIM 1 Gadens Work Health and Safety Briefing Q4 SUMMARY OF KEY LEGISLATIVE UPDATES AND SIGNIFICANT CASES 4th issue 2015 (1 October 2015 to 31 December 2015) Welcome to the 4th issue of the WHS briefing for 2015. This briefing tracks significant legislative and case law changes which have occurred between 1 October 2015 to 31 December 2015 which may affect your business. SUMMARY ACROSS AUSTRALIA KEY LEGISLATIVE UPDATES Safe Work Australia guidance on assessing and managing workplace vibrations Safe Work Australia guidance on managing carcinogenic diesel fumes and the risks of diesel exhaust exposure Safe Work Australia to amend model WHS laws Chain of responsibility laws to be aligned with safety laws Safe Work Australia guides replace Code of Practice for cranes National Transport Commission released new Code for dangerous goods transport COMMONWEALTH KEY LEGISLATIVE UPDATES Employers given time to comply with drug and alcohol rules SIGNIFICANT CASES Union blocked from photographing OHS issues NEW SOUTH WALES KEY LEGISLATIVE UPDATE NSW completes harmonisation of WHS laws for resources sector SIGNIFICANT CASES Caltex commits $1.2M to safety app and other initiatives Mining company fined after truck driver killed at mine site Employers fined after failing to update safe work procedure Engineering Firm fined $150,000 for safety breaches 24021254.1 MIM KIM 2 QUEENSLAND KEY LEGISLATIVE UPDATES FIFO inquiry calls for improved accommodation standards Expiry date for Queensland mine safety regulations postponed SIGNIFICANT CASES WHS entry and HSR powers restored in Queensland WHS charge quashed by Kirk test Carbon-monoxide death likely caused by lack of maintenance VICTORIA KEY LEGISLATIVE UPDATES Report finds community deaths linked to mine fire WorkSafe Victoria issued new safety alerts on batteries, entanglement, asbestos and elevating work platforms SIGNIFICANT CASES Company fined after overloaded barge capsizes Defect reporting failures caused fatal crash OHS charge upheld in Kirk ruling Company fined $75,000 for safety breaches Company fined for fatal gas explosion incident SOUTH AUSTRALIA SIGNIFICANT CASES Employer defeated two OHS charges because worker disobeyed directions and charge incorrectly framed WESTERN AUSTRALIA KEY LEGISLATIVE UPDATE WA reveals January 2017 plan for WHS Act and GHS Possible changes forthcoming to mirror WHS Bill in WA WorkSafe WA announces inspection program Commencement of the Rail Safety National Law Act and Regulations SIGNIFICANT CASES Employer fined $90,000 for preventable fall Rio subsidiary fined over death High fine and costs forem labour-hire worker’s death 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. 24021254.1 MIM KIM 3 KEY LEGISLATIVE UPDATES ACROSS AUSTRALIA Safe Work Australia guidance on assessing and managing workplace vibrations Safe Work Australia has published the following guidance material (dated October 2015) to assist a person conducting a business or undertaking (PCBU) to manage the risks of vibrating machinery and tools, and to assist safety professionals to measure and assess workplace vibration, as required by work health and safety (WHS) laws: Guide to managing risks of hand-arm vibration; Guide to managing risks of whole-body vibration; Guide to measuring and assessing hand-arm vibration; Guide to measuring and assessing whole-body vibration; Hand-arm vibration information sheet; and Whole-body vibration information sheet. Safe Work Australia guidance on managing carcinogenic diesel fumes and the risks of diesel exhaust exposure Safe Work Australia has released a Guide to managing risks of exposure to diesel exhaust in the workplace (dated October 2015), to help employers protect the 1.2 million Australian workers exposed to the carcinogenic emissions. Such workers include miners, construction workers, oil and gas workers, forklift drivers, loading dock workers, truck drivers, farm workers, stevedores, vehicle maintenance workers and drive-in booth operators. Safe Work Australia has also published the following guidance material (dated October 2015) for workers and managers on addressing risks of exposure to diesel exhaust in the workplace: Guide to Managing Risks of Exposure to Diesel Exhaust in the Workplace; and Information Sheet - Managing Risks of Diesel Exhaust Exposure in the Workplace. Safe Work Australia to amend model WHS laws Safe Work Australia is amending the national model work health and safety (WHS) laws following the May 2014 COAG plan to reduce ‘red tape’ in the model WHS laws. The amendments clarify the reach of provisional improvement notices (PINs), increase penalties for WHS entry breaches and reduce ‘unnecessary regulatory burden’ without compromising safety outcomes. While the amendments are still going through an approval process through Parliament and are not yet publically available, they include: clarifying the role of officer and providing further guidance on meeting due diligence standards; increasing the maximum penalty for breaching the conditions of right of entry permits; amending section 93 of the model WHS Act to state that PINs issued by health and safety representatives can ‘include recommendations’ rather than ‘include directions’; making training for health and safety representatives ‘more flexible’; providing information to duty holders to help them understand which WHS Regulations apply to their business or undertaking; and 24021254.1 MIM KIM 4 making guides and model Codes of Practice more concise, hazard-specific and easier to understand. The finalised amendments will be considered by state and territory ministers and adopted in their own jurisdictions in the ‘not-too-distant future’. Chain of responsibility laws to be aligned with safety laws Australia’s transport ministers have agreed that the Chain of Responsibility (CoR) obligations in the Heavy Vehicle National Law (HVNL) should be reformed to better align with the model Work Health and Safety Act and the Rail Safety National Law, encourage a proactive culture of compliance and simplify enforcement. In particular, existing obligations will be reformulated as primary duties for each participant in the CoR, executive offers will be held appropriately accountable and maximum penalties will be significantly increased. A draft bill will be developed to implement the 26 recommendations in the National Transport Commission’s policy paper of November 2015, and provided to ministers for consideration at their May 2016 meeting. Safe Work Australia guides replace Code of Practice for cranes Safe Work Australia has published 10 guides and information sheets on managing the risks associated with the inspection, maintenance and operation of cranes, as well as plant that can be used as a crane and quick hitches for earthmoving machinery. This guidance material replaces the draft model WHS Code of Practice for cranes. The new documents are: 1. General guide for cranes; 2. Guide to mobile cranes; 3. Guide to tower cranes; 4. Guide to inspecting and maintaining cranes; 5. Bridge and gantry cranes information sheet; 6. Vehicle loading cranes information sheet; 7. Vessel-mounted cranes information sheet; 8. Crane-lifted work boxes information sheet; 9. Using other powered mobile plant as a crane information sheet; and 10. Quick-hitches for earthmoving machinery information sheet National Transport Commission released new Code for dangerous goods transport The National Transport Commission has released a new edition of the Australian Code for the Transport of Dangerous Goods by Road and Rail. The new edition aims to improve consistency with national and international air and sea requirements. The new version of the Code can be found here. COMMONWEALTH Employers given time to comply with drug and alcohol rules Fair Work Building and Construction (FWBC) will give building contractors until February 2016 to put in place the amended Building Code 2013 ‘fitness for work’ arrangements. Under the amendments, all building contractors covered by the Building Code have a general duty to ensure that their work health and safety management system reflects their management of drugs and 24021254.1 MIM KIM 5 alcohol in the workplace. In addition, contractors on taxpayer-funded construction sites that meet the financial threshold are required to have a comprehensive fitness for work policy for mandatory drug and alcohol testing. From February, FWBC Inspectors can audit building contractors and exercise compliance powers such as commencing litigation or imposing sanctions under the Fair Work Act 2009. Sanctions for breaching the Building Code may include a formal warning, or an exclusion or reduction of tendering opportunities for a fixed period of time. NEW SOUTH WALES NSW completes harmonisation of WHS laws for resources sector The Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Bill 2015 (NSW) was passed on 21 October 2015 and assented to on 2 November 2015, extending harmonised WHS laws to the onshore petroleum sector. The Bill amends the newly named Work Health and Safety (Mines and Petroleum) Act and will commence on a date to be fixed by proclamation. VICTORIA Report finds community deaths linked to mine fire The Victorian Hazelwood Mine Fire Inquiry has found that the 2014 coal mine fire, which burned for 45 days and sent smoke and ash into nearby towns, probably caused an increase in the number of deaths in the Latrobe Valley. The Inquiry report was tabled in Parliament on 9 December 2015. It found that the deaths in the Latrobe Valley increased in the period during and after the fires, as compared to the same period in 2009-2013, and that the Hazelwood Mine Fire likely contributed to this increase to some extent. The Report recommends the Victorian Government engage independent experts to review the State Smoke Framework and the Community Smoke Air Quality and Health Protocol. The Inquiry will provide further recommendations as well as findings into coal mine rehabilitation in February and March 2016. WorkSafe Victoria issued new safety alerts on batteries, entanglement, asbestos and elevating work platforms WorkSafe Victoria has issued safety alerts on: the dangers of jump-starting batteries of powered mobile plants, after a worker suffered fatal crush injuries while jump-starting a tractor; controlling entanglement risks of powered plant, after a farm employee sustained life threatening injuries when their hair became caught in a conveyor. measures that should be taken to avoid importing asbestos-containing building goods into Victoria, after WorkCover NSW issued a prohibition notice to a residential building site following the discovery of asbestos in fibrous building panels imported from China. the danger to workers of being crushed against fixed structures while operating elevating work platforms in or around fixed structures. 24021254.1 MIM KIM 6 QUEENSLAND FIFO inquiry calls for improved accommodation standards The Infrastructure, Planning and Natural Resources Committee inquiry into fly-in, fly-out (FIFO) work practices has made a number of recommendations to the Queensland Government to establish minimum accommodation standards for FIFO workers and other long distance commuting workers in regional Queensland. The final report recommends minimum standards for temporary and permanent FIFO accommodation that include: room design that provides adequate noise and light protection to help fatigue management; permanent private spaces for each employee and storage facilities; reliable access to communication services in a private space; access to health services, including social activities and gyms; recreational areas to encourage socialising; a variety of health food options; and advising against the practice of ‘motelling’ (where a worker is assigned a different room for each work cycle) or ‘hot-bedding’ (where employees on alternating shifts share a room) to improve the sense of community, security and privacy for workers. Expiry date for Queensland mine safety regulations postponed Queensland’s Coal Mining Safety and Health Regulation 2001 and Mining and Quarrying Safety and Health Regulation 2001 will operate until 31 August 2016 as their principal acts are under ongoing review as part of the National Mine Safety Framework. The extended expiry date gives the Queensland Government additional time to finalise a decision regulatory impact statement and other proposed legislative amendments to the framework. WESTERN AUSTRALIA WA reveals January 2017 plan for WHS Act and GHS Western Australia is aiming to introduce the WHS (Resources) Bill to Parliament in early 2016 and for it to take effect on 1 January 2017, to ensure that the laws can commence on the same day as the Globally Harmonised System of Classification and Labelling of Chemicals (GHS). The national implementation of the GHS, which focuses on the storage and handling of hazardous chemicals, is also scheduled to be completed by 1 January 2017 and will be referenced by Western Australia’s WHS Act. Possible changes forthcoming to mirror WHS Bill in WA WorkSafe WA are aiming to review and put forward modifications of the green Work Health and Safety Bill 2014 and model WHS Regulations to Cabinet, after receiving 50 submissions in the public comment process. 24021254.1 MIM KIM 7 Once the review is finished, a public consultation process will allow all WA workplace participants to comment on the new legal framework before the laws are introduced into Parliament. Given that the final laws have yet to be settled, employers should not rush into training for the new WHS Act. For more information, see the list of changes previously made to the model Bill by Western Australia. WorkSafe WA announces inspection program WorkSafe WA will be conducting an inspection program throughout 2015-16 to increase awareness of safety issues within the road freight transport industry. A Checklist for Road freight transport industry has been made available to assist industry members with implementing appropriate work and safety management systems. The checklist covers risks such as working from heights, mobile plants and emergency procedures. Commencement of the Rail Safety National Law Act and Regulations The following legislation commenced on 2 November 2015: the Rail Safety National Law (WA) Act 2015 No. 21 (WA) which replicates the nationally consistent rail safety law. This Act affects the Mines Safety and Inspection Act 1994 No. 62 (WA) and Rail Safety Act 2010 No. 18 (WA). the Rail Safety National Law (WA) Regulations 2015 which have been made under the authority of the Rail Safety National Law (WA) Act 2015 No. 21 (WA). the Rail Safety National Law (WA) (Alcohol and Drug Testing) Regulations 2015 (WA) which have been made under the authority of the Rail Safety National Law (WA) Act 2015 No. 21 (WA). The Regulations prescribe matters relating to breath, blood and drug screening testing, and breath, urine and oral fluid analysis, among other matters. 24021254.1 MIM KIM 8 SIGNIFICANT CASES COMMONWEALTH Union barred from photographing OHS breaches under right-of-entry provisions The Federal Court has disallowed a union from taking photos of suspected contraventions at its member’s workplace during right-of-entry inspections. In Kirby v JKC Australia LNG Pty Ltd  FCA 1070, the Communications, Electricians and Plumbers Union (CEPU) sought an injunction against the principal contractor at a Northern Territory construction project to restrain it from refusing officials’ entry onto the site and prohibiting their use of a camera to document the suspected contraventions at the premises. The Federal Court held that the right-of-entry provisions did not expressly provide the right to use a camera to take photographs of the evidence, and accordingly only granted the right-of-entry injunction to CEPU. While the right-of-entry injunction was granted, a question was raised as to whether or not it was sufficient for an entry notice to specify simply the overall premises to be entered or whether it must specify the particular part of those premises which the permit holder proposes to visit. NEW SOUTH WALES Caltex commits $1.2m to safety app and other initiatives Caltex Australia Petroleum Pty Ltd entered into an enforceable undertaking with SafeWork NSW in October 2015, in lieu of prosecution, after it was accused of WHS breaches for accidentally releasing 157,205 litres of petrol from a storage tank during a transfer at Banksmeadow Terminal in 2013. The employer has committed to spending over $800,000 on initiatives such as developing an allindustry mobile app for managing and monitoring industry contractors for WHS issues, after having already spent $400,000 on improving workplace safety. The app will be able to be used on hand held devices (android and IOS compatible) and/or smart watch devices and will allow business to create Safe Work Procedures (SWP) for specific tasks/jobs performed by contractors. Mining company fined after truck driver killed at mine site The NSW Industrial Court has fined Daracon Mining Pty Ltd (Daracon) $80,000 for health and safety breaches arising from an incident where one of its contract truck drivers was killed in 2009 when nearly 10 tonnes of reject material was released onto the cabin of his truck instead of in its tray. The Court heard that there was no overhead fall protection in the rigid on-road trucks being used. Further, there was a flaw in the sensor system when it was amended in 2007, where the sensors did not have to be simultaneously interrupted for the bin gates to open. As a result, the system failed to detect that the contract driver’s vehicle was not in the correct position when it released the material onto his cabin. In fining the company, the Court determined that the fine for a fatality-causing OHS breach should include a component for general deterrence to alert the mining industry to adopt adequate OHS systems, saying the that there is an ‘uncompromising responsibility’ on employers to take every reasonably practicable precaution to ensure any WHS risk did not materialise in dangerous workplaces. 24021254.1 MIM KIM 9 Employers fined after failing to update safe work procedure Two coal companies have been fined nearly $400,000 after they failed to amend a safe work procedure after updating instructions about isolating plant. The companies pled guilty to charges of failing to ensure the health, safety and welfare of their employees after a maingate boot-end operator sustained fatal injuries to his head in 2009 when a shear shaft propelled from a coal shearer during a maintenance task. The Court found that the employers failed to: provide a safe system for repairing the broken shear shaft; provide workers with proper instructions or training on repairing the shear shaft; and prohibit workers from repairing the shear shaft while the shearer was not isolated from its power source. The Court found that the employers foresaw the risks but failed to update the safe work procedure, and accordingly did not take adequate steps to ensure their workers’ safety. Engineering firm fined $150,000 for safety breaches Engineering firm Allmen Engineering Projects (AEP) has been fined $150,000 following an incident where half-a-tonne of steel fell on one of its employees in 2013, resulting in part of his foot being amputated. AEP was charged with breaching sections 19(1) and 32 of the Work Health and Safety Act 2011 (NSW) for failing to take any simple or straightforward measures to minimise the foreseeable risks associated with unloading and unpacking steel beams (such as developing a safe work system for unloading steel beams and using ‘u frames’ to prevent the beams from slipping). QUEENSLAND WHS entry and HSR powers restored in Qld The Work Health and Safety and Other Legislation Amendment Act 2015 (Qld) commenced in Queensland on 22 October 2015 and restores certain powers of health and safety representatives (HSRs) and right of entry powers. The Act reverses the changes made by the previous LNP Government to Queensland’s mirror WHS Act in 2014, which included: revoking the right of HSRs to direct workers to cease unsafe work; requiring HSRs to give 24 hours’ notice before another person can enter the workplace and provide assistance; and requiring WHS entry permit holders to give 24 hours’ notice before entering a site for safety investigations. The Act also restores the Electrical Safety Commissioner, the Electrical Education Committee and the Electrical Equipment Committee. Proposed changes to impose additional injury-notification requirements on employers were not passed. 24021254.1 MIM KIM 10 WHS charge quashed by Kirk test The Queensland District Court has found a regulator’s WHS complaint against a transport employer to be invalid because it failed to meet the requirements of the High Court in Kirk v Industrial Court of NSW (2010) 239 CLR 531. The transport employer was charged with breaching its duty of care after an employee was injured while unloading a truck. The Court upheld the Magistrate’s Court to strike out the complaint on the basis that it failed to adequately set out the legal nature of the offence and its essential factual ingredients. While the complaint specified a number of alleged failures on the part of the employer (such as a failure to develop safe work procedures and undertake a risk assessment for unloading) processes, the Court determined that it was insufficient for the complaint to merely state that the employer had failed to do certain things. The Court found that there must be meaningful identification of how the work procedures or risk assessment or systems of work or safety standard fell short of what was alleged to have been reasonable practicable. This decision should be contrasted to the decision of the Court of Appeal in Victoria (see below) which upheld an OHS charge against a poultry company as being valid, despite the charge not specifying ‘detailed’ preventative actions. Carbon-monoxide death likely caused by lack of maintenance A coronial inquest has found that it was ‘reasonable to suspect’ that an employer breached the nowrepealed Workplace Health and Safety Act 1995, after an employee died from carbon monoxide poisoning whilst using PPE attached to an ill-maintained diesel air compressor. In 2011, a painter employee working in a mining and crushing operations company was found collapsed where he had been sandblasting machinery, and later pronounced dead. An autopsy found he died from carbon monoxide poisoning. A Fair and Safe Work Queensland investigation found that the compressor had a broken oil separator scavenger pipe, the high temperature protection switch was disconnected, and there was a minor leak from the engine’s exhaust system. The inquest found that it was more probable than not that these defects contaminated the breathing air supply. The inquest also found that while the employee was wearing a fully-enclosed protective helmet as required by the employer, the employer did not have any records of start-up procedures or regular maintenance of the compressor, nor conducted any independent risk assessment of the sandblasting task. Accordingly, the coroner found that it is reasonable to suspect that the employer breached s 28 of the Workplace Health and Safety Act 1995 by not taking a measure that would have prevented the worker from being exposed to excessive amounts of carbon monoxide, even though the employer had successfully defended the charge. VICTORIA Company fined after overloaded barge capsizes A company has been fined $600,000 for two breaches of the 2004 OHS Act, after an overloaded barge capsized on the Patterson River in 2012 and seriously injured one of the workers. 24021254.1 MIM KIM 11 The Victorian County Court fined Thiess Services Pty Ltd $250,000 and $350,000 for failing to ensure the health and safety of its workers and non-employees respectively. In the first incident on 19 April 2012, Thiess used the barge to move a 15-tonne excavator, even though the barge was only designed to hold five tonnes, causing it to tilt dangerously. The operator was asked to reposition the boom of the excavator to counteract the tilt. In the second incident on 27 April 2012, a 13-tonne excavator was loaded onto the barge after the operator was told that the barge could carry 15-tonnes. The operator was asked to move the boom of the excavator to counteract the barge’s lean, however the barge capsized and the excavator sank into the river. As a result, the operator suffered serious injuries, including three broken ribs, a smashed top dental plate and an enlarged heart. The incidents followed NSW Maritime concerns in 2010 that the barge was not stable enough to transport a 5.3-tonne excavator. Even though a Certificate of Survey was issued requiring that the barge had to operate with a stability book onboard, one was not obtained until after the two incidents in April 2012. WorkSafe Executive Director of Health and Safety said the fines reflected the poor safety attitude of the company for choosing to “play Russian roulette with the lives of its employees”. Defect-reporting failures caused fatal death A coroner has recommended that a major employer regularly review its vehicle defect-reporting procedures, after finding its failure to fix a fault contributed to a worker’s death. In July 2013, a rigid delivery truck owned by the employer, Star Track Express Pty Ltd, collided with an electricity pole in Geelong, killing the worker who was in the passenger seat. The driver, a subcontractor who was driving for the first time under the worker’s supervision, lost control of the vehicle when his seat dropped down on the left side and caused him to jerk on the steering wheel. The deceased worker had previously told the employer about the faulty driver’s seat, but there was no evidence that the employer ever ‘satisfactorily repaired or made safe’ the seat. A mechanical inspection of the truck found that a cracked driver’s seat and frayed seatbelt meant that the truck should have been classed as unroadworthy at the time of the incident. A forensic engineer also noted the employer’s ‘management shortcoming’ of not having a satisfactory and consistent work system, such as adopting an effective defect-reporting, inspection and maintenance arrangement. The Coroner’s findings come after the Geelong Magistrates Court’s decision in June 2015 to fine Star Track Express $70,000 plus costs for safety breaches, although WorkSafe Victoria had not alleged that the employer’s failures caused the incident. The Coroner also recommended WorkSafe, VicRoads, the National Heavy Vehicle Regulator and the Insurance Council of Australia review their publications to heavy vehicle operators to raise awareness of the importance of vehicle maintenance. OHS charge upheld in Kirk ruling A Court of Appeal majority has upheld an OHS charge against a poultry company, after finding the High Court’s decision in Kirk v Industrial Court of NSW (2010) 239 CLR 531 does not require charge sheets to specify ‘detailed’ preventative actions. In 2010, an employee of a Baiada Poultry Pty Ltd contractor was decapitated while cleaning a chicken processing chain line in a Victoria factory. WorkSafe Victoria filed four charges against Baiada, including a charge for the breach of s 26(1) of the OHS Act for failing to implement an ‘adequate’ system to prevent workers cleaning the chain line while it was operating, or prevent them from contacting the chain line’s sprockets, shackles and wash boxes. 24021254.1 MIM KIM 12 Baiada appealed the fourth charge based on the High Court’s Kirk decision, after it was held to be valid and effective by a trial judge. The employer argued that WorkSafe failed to address specific matters from the charge-sheet to ensure it had an ‘adequate system’, such as whether the machine needed to be locked down before cleaning. It also claimed that WorkSafe failed to inform what reasonably practicable steps should have been taken to prevent the employee’s death. The appeal was rejected by two of the three Justices, stating that while a charge under s 26 of the Victorian OHS Act must identify the act or omission constituting the alleged contravention, the Kirk decision does not support the need to include “specification of the detailed actions which it was reasonably practicable for the [employer] to take”. This decision should be contrasted to the decision of the Queensland District Court (see above) which found an OHS charge against a company to be invalid for failing to provide meaningful identification of how safety systems fell short of what was alleged to have been reasonable practicable. Company fined $75,000 for safety breaches A wool-processing employer has been fined $75,000, with costs of $17,000, for failing to provide a safe working environment to people other than employees, after a truck driver suffered significant spinal injuries at the employer’s premises. The truck driver was delivering and unloading hay bales at the premises in 2013 when he was struck by a 140kg bale that had been dislodged by a forklift driver on the other side of the truck. The court heard that the employer failed to provide adequate information and instruction on safe operating procedures for unloading, and to ensure compliance with such procedures. The employer also failed to provide a designated safe area for truck drivers to wait during unloading. The Court subsequently found that the employer breached the 2004 OHS Act. The case demonstrates the need for employers to be aware that they have a responsibility to assess and address health and safety risks at their workplaces, and to ensure their own employees and any other workers who come into contact with their workplaces are properly inducted and trained. Company fined for fatal gas explosion incident The Victorian County Court has fined a company $285,000 over three breaches of the 2004 OHS Act, after a young refrigeration mechanic died when his work van transporting dangerous gases exploded outside his home in 2011. The company, Cool Dynamics Refrigeration (CDR), was charged with: failing to maintain a safe system of work (fined $100,000); failing to provide information, instruction, training and supervision (fined $55,000); and failing to ensure people other than employees were not exposed to health and safety risks (fined $130,000). CDR provides work vans for their refrigeration mechanics to complete installation and maintenance jobs at customer sites. Equipment in the vans includes cylinders of flammable gases, such as acetylene. Such gases, when mixed with air, can ignite very easily. The court heard that the most likely ignition source in the present scenario was a door-activated light switch, which would have generated an electrical arc when the door was opened. The company was found to have failed to implement the required transport and storage measures to handle the volatile nature of the gases. In particular, the company did not build appropriately vented cabinets in the vans, nor did it train its employees on how to safely store and transport the cylinders. 24021254.1 MIM KIM 13 SOUTH AUSTRALIA Employer defeated two OHS charges because worker disobeyed directions and charge incorrectly framed An employee of a dry cleaning company was injured at work when she was using a curtain press to press curtain and fabric items and was injured by the head of the curtain press closing unexpectedly on her hand and arm. After the incident, the employer replaced the curtain press without the permission of a SafeWork SA inspector. The employer was charged with breaching: section 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA) by failing to ensure, so far as was reasonably practicable, that the employee was, while at work, safe from injury and risks to health; and regulation 418(2) of the Occupational Health, Safety and Welfare Regulation 2010 (SA) by reusing, repairing or removing plant connected with the occurrence of a notifiable injury, without the permission of a SafeWork SA inspector. The employer defeated the first charge because the South Australian Industrial Magistrates Court found that the worker was injured while ‘acting contrary to clear, repeated and well-known directives’. As such, the employee was not in the course of performing work that was required of her by the terms of her employment. The employer defeated the second charge because it was incorrectly framed. It was not a breach of the Regulations to replace plant, as opposed to reuse, repair or remove. The definition of ‘repair’ in the Regulations is ‘to restore plant to an operating condition, but does not include routine maintenance, replacement or alteration’. A copy of this case, Symons v Karl Chehade Dry Cleaning Pty Ltd  SAIRC 32 (5 November 2015), is accessible here. 24021254.1 MIM KIM 14 WESTERN AUSTRALIA Employer fined $90,000 for preventable fall Western Australian employer Process Minerals International Pty Ltd has been fined $90,000 after it pleaded guilty to two charges of failing to provide a safe working environment after a worker was seriously injured in 2012. The worker was standing on a stack of the 20-metre-long pipes when one of them, being lifted by a crane, struck him and caused him to fall four metres. Department of Mines and Petroleum mines safety director, Andrew Chaplyn, said falls from height were a major cause of fatalities on mine sites despite being easily preventable. “It is incidents such as this that provide a stark reminder for industry to take the risk of fall from height seriously.” “This decision sends an important message about ensuring safety is given the highest priority on WA mine sites.” FIFO codes to be reviewed following parliamentary inquiry Western Australia will amend existing fly-in, fly-out (FIFO) safety Codes of Practice, rather than implement a new mental health code for the mining industry, to improve workers’ mental health. Rio Tinto subsidiary fined over death Rio Tinto subsidiary Pilbara Iron Company Pty Ltd has been fined $70,000 for failing to provide a safe working environment, after one of its workers was fatally struck by a 1400kg tilt cylinder at a Western Australia iron ore mine. The worker, who did not hold the required high-risk rigging licence, was using a crane to remove the cylinder from a front end loader in 2011 when it slipped from the crane and struck the worker. The employer, who pleaded guilty to the safety breaches, has since introduced a number of additional safety measures. High fine and costs for labour-hire worker's death A Western Australia employer has been fined $195,000 with an additional $100,000 in costs, for failing to provide a safe work environment, after a labour-hire fitter suffered fatal injuries whilst doing maintenance work on a haul truck in December 2010. The employee was working on the truck’s suspension cylinder unit at an iron ore mine, when the end plug ejected under pressure from the strut and hit him. The strut had not been depressurised as required by the manufacturer’s safety procedure, and the end plug also became unstable after it became jammed as a result of additional work on the strut. The employer pleaded guilty to breaching the State Mines and Safety Inspection Act 1994.