Welcome to the first issue of the WHS briefing for 2015. This briefing tracks significant legislative and case law changes which have occurred in the first quarter of 2015 which may affect your business.
SUMMARY OF KEY LEGISLATIVE UPDATES AND SIGNIFICANT CASES
Please contact us if you would like to discuss any of these matters or if 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.
KEY LEGISLATIVE UPDATES
The progress of the Health and Safety at Work Bill has been delayed, and the first tranche of the final regulations has not yet been released.
The Bill is currently before parliament. The new select committee has a report back of 30 March 2015 and then the Bill will continue its progression through the parliamentary process. It is likely that the Bill will come into force in the second half of 2015.
More information is available here.
Safe Work Australia has published the following new information sheets relevant to the construction sector:
- Construction work of a minor nature;
- Workplace induction for construction workplaces; and
- Safe work method statement for high-risk construction work.
Copies of the information sheets are available at the links above.
Safe Work Australia has made available the following Model Codes of Practice (all dated March 2015):
- Demolition Work;
- Excavation Work;
- First Aid in the Workplace;
- Labelling of Workplace Hazardous Chemicals;
- Managing Electrical Risks in the Workplace;
- Managing the Risk of Falls at Workplaces; and,
- Spray Painting and Powder Coating.
Copies of the Model Codes of Practice are available here.
As of 1 January 2015, employers are no longer required to obtain AS/NZS 4801:2001 certification before tendering for Commonwealth construction projects under the Australian Government Building and Construction OHS Accreditation Scheme.
NEW SOUTH WALES
On 15 February 2015, the Work Health and Safety Amendment (Miscellaneous) Regulation 2015 came into effect making 97 changes to the Work Health and Safety Regulation 2011 (NSW WHS Regulation) (the exception being Schedule 1 which will take effect on 1 July 2015).
Many of the changes were made to incorporate the technical amendments made to the model WHS Regulations last year, to make the NSW WHS Regulation consistent with the latest version of the model WHS legislation.
Some of the key amendments include:
- giving WorkCover the power to issue on-the-spot fines for certain asbestos-related offences, and to increase prescribed fees;
- amending the definitions of ‘amusement device’, ‘boiler’, ‘combustible dust’, ‘competent person’, ‘gantry crane’, ‘hazardous area’, ‘incidental diving work’ and ‘specified VET course’;
- removing the definitions of ‘appropriate training in underwater medicine’ and ‘concrete placement unit with delivery boom’; and
- exempting tower or gantry cranes from the requirement in clause 244 relating to alteration of plant design registration, where they are "relocated for use in a different workplace", and their
supporting structures or foundations are "altered in accordance with a site-specific design
prepared for the purpose of the safe operation of the crane at the new location".
A copy of the Work Health and Safety Amendment (Miscellaneous) Regulation 2015 is accessible
From 1 January 2015, NSW employers that store or handle dangerous goods are no longer required to provide annual notification to WorkCover.
Changes to the NSW WHS Regulation provide that once employers have made an initial notification to WorkCover about the dangerous goods they store or handle, further notification is only required for changes to contact details or the way the dangerous goods are used, stored or handled.
The new process also simplifies the preparation of mandatory onsite WHS manifests.
A copy of WorkCover’s guidance note on notification of hazardous chemicals and abandoned tanks is accessible here.
On 1 February 2015, the Work Health and Safety (Mines) Act 2013 (NSW) (NSW WHS (Mines) Act) commenced, repealing and replacing the Coal Mine Health and Safety Act 2002 (NSW) and the Mine Health and Safety Act 2004 (NSW).
The NSW WHS (Mines) Act and associated regulation are based on the model WHS legislation developed by NSW, Queensland and Western Australia.
The Work Health and Safety (Mines) Amendment Act 2014 (NSW) has clarified that the NSW WHS (Mines) Act and regulation from part of NSW’s mirror WHS Act and regulations for general industry.
A major area of change is in relation to obligations imposed on contractors to mine operators.
On 1 February 2015, five new WHS Codes underpinning the NSW WHS (Mines) legislation that apply to all NSW mines came into effect:
- Safety Management Systems in Mines;
- Emergency Planning for Mines;
- Inundation and Inrush Hazard Management;
- Roadway Dust Analysis in Underground Coal Mines; and
- Strata Control in Underground Coal Mines.
Copies of the WHS Codes are accessible in the links above.
NSW Mine Safety has released a draft work health and safety code, the Electrical Engineering Control Plan (draft WHS Code). The draft WHS Code provides guidance for mine operators to comply with the requirements in the NSW WHS (Mines) Regulation requiring the preparation, implementation and review of a plan to control electricity associated health and safety risks at mines.
A copy of the Electrical Engineering Control Plan is accessible here.
The Rail Safety (Adoption of National Law) Amendment (Drug and Alcohol Testing) Regulation 2014
(NSW) amends the Rail Safety (Adoption of National Law) Regulation 2012 (NSW). According to the explanatory note, the objects of the amending Regulation are to:
- adopt and apply the term "authorised sample taker", as defined in the Road Transport Act 2013 (NSW) (Road Transport Act);
- standardise references to an authority required from the Commissioner of Police under the Road Transport Act to carry out a breath analysis;
- reframe the matters in relation to which certificate evidence may be given by analysts to accommodate the performance of their duties by persons acting under their authority;
- make it clear that certificate evidence concerning sample taking or analysis that is performed in another jurisdiction may be given not only by persons who personally perform the analysis
or sample taking but also by persons who supervise or direct those procedures;
- remove a requirement for registered nurses to be accredited by a hospital to perform sampling procedures; and
- insert savings and transitional provisions relating to certain evidence certificates.
The amending Regulation will commence on 1 February 2015. (Source: Lawlex)
The new Queensland Labor cabinet has been sworn in. Prior to winning the January State election, Labor announced that it planned to reverse the impact of changes made to work health and safety (WHS) laws by the Liberal National Party of Queensland. Among its plans to improve work health and safety in Queensland, Labor announced that it planned to restore the powers of a WHS permit holder to immediately access a workplace that is potentially unsafe or where suspected safety contraventions are occurring, and to restore the powers of health and safety representatives to cease unsafe work.
A copy of Labor’s 2014 campaign promises for improving WHS is accessible here.
Various transitional provisions in the general WHS laws commenced. Further information can be obtained here.
The Petroleum and Gas (Production and Safety) Amendment Regulation (No. 3) 2014 (Qld) amends the Petroleum and Gas (Production and Safety) Regulation 2004 (Qld).
According to the explanatory note, the objectives of the amending Regulation are to:
- provide that a "distilled petroleum substance", such as diesel, may be transported by a pipeline authorised to be constructed or operated under a pipeline licence under the Petroleum and Gas (Production and Safety) Act 2004 No. 25 (Qld) (the governing Act);
- amend s. 54AA (Operator to ensure drilling rig workers meet competency requirements) to provide that where operators under the governing Act are carrying out well servicing activities, workers will be required to meet well servicing competencies; and
- prescribe an exemption to s. 54AA where a worker is undergoing training for the competencies and is supervised by a competent person for well servicing activities.
On 18 January 2015, the ALP abolished the Victorian Code (as made in October 2014), and its monitoring body, the Construction Code Compliance Unit. Contractors who are bidding for Victorian Government work and applying for pre-qualification on Victorian Government construction registers will still be required to meet safety and industrial relations management criteria but are no longer required to submit Victorian Code compliant Workplace Relations Management Plans and Health and Safety Management Plans. These plans must continue to be followed on current projects to the extent that they reflect legislative and contractual requirements. Further, the Victorian Code’s drug and alcohol testing and site security requirements no longer apply.
FAQs are accessible here.
The Victorian Labor Government will review WorkSafe Victoria and the Transport Accident Commission (TAC) ‘to identify opportunities to optimise the effectiveness, efficiency and value of these organisations to the Victorian community’. The review will be conducted by Mr James MacKenzie, who was chairman of WorkSafe Victoria and the TAC during the period 2000 to 2007. Mr MacKenzie is expected to report to the Government by the middle of this year.
A copy of the Victorian Government’s media release is accessible here.
South Australia’s Dangerous Substances (Dangerous Goods Transport) Regulations 2008 (SA) has been amended. In particular, changes have been made to provisions relating to the marking of dangerous goods (see regs 75-76, 79-81), ullage requirements extending to non-dangerous goods in certain circumstances (see regs 114-115), retention of documents by prime contractor (see reg 120) and towing a broken down dangerous goods vehicle (see reg 140).
A copy of the Dangerous Substances (Dangerous Goods Transport) Regulations 2008 (SA) is accessible here. This legislation should be read in conjunction with the National Transport Commission’s Australian Code for the Transport of Dangerous Goods by Road and Rail.
The Work Health and Safety (Prosecutions Under Repealed Act) Amendment Bill 2015 (SA) proposes to amend the Work Health and Safety Act 2012 (SA). The Bill was introduced into the House of Representatives and received its second reading speech on 11 February 2015.
The Bill proposes to insert new s25A (Prosecutions under Occupational health, Safety and Welfare Act 1986) to provide that the relevant Minister may, by instrument in writing, if he or she considers that it is in the interests of justice to do so, extend a time limit that applies under s. 58(6)(b) of the Occupational Health, Safety and Welfare Act 1986 (SA) (the repealed Act) in order to allow proceedings to be brought against a person for an offence against the repealed Act in a case where proceedings previously commenced, or purportedly commenced, against the person for the offence have been withdrawn, discharged, dismissed or otherwise brought to an end because the person who brought, who purported to bring, the proceedings was not authorised to do so under s. 58(7) of the repealed Act.
EnergySafety Western Australia has issued an Order, under the Energy Coordination Act 1994 (WA), requiring all owners and operators of electrical installations incorporating oil-insulated high-voltage combined-fuse switches manufactured by Long & Crawford Manchester (later rebadged GEC- Alsthom) to ensure the electrical installations including the switches are completely isolated from the electricity supply before anyone opens the lids of, or works on, the switches.
The Order has been made in response to a violent explosion at Morley Galleria Shopping Centre in Perth which killed two workers and seriously injured two others. The men were hit by a massive flash fire when they tried to isolate only one part of the switch box and it ignited inside a confined room.
The Electrical Trades Union WA has criticised the regulator for limiting the Order to the type of equipment involved in the incident, and argues that the Order should have been extended to all electrical equipment.
A copy of the Order is accessible here.
The Government has announced that Dangerous Goods Safety Act 2004 (WA) (DGS Act) and the incoming work health and safety Act (WHS Act) in Western Australia will remain separate. This is intended to avoid diluting the intent and achievements of the DGS Act and to confirm that all people who control or manage dangerous goods have a duty to prevent unreasonable harm to people, property or the environment, and this duty is not restricted to a workplace context. Additionally, the six dangerous goods regulations will be consolidated into one single regulation. These are two of the 16 recommendations that have resulted from a statutory review of the DGS Act.
A copy of the review is accessible here.
The Directors’ Liability Reform Bill makes amendments to limit and standardise provisions which impose personal criminal liability on directors for corporate offending. In so doing it fulfils Western Australia’s commitment to directors’ liability reform, which is a Council of Australian Governments (COAG) reform project which was included in the National Partnership Agreement to Deliver a Seamless National Economy.
The Directors' Liability Reform Bill 2015 (Cth) proposes to amend the legislation listed below. The Bill was introduced into the Legislative Council and received its second reading speech on 25 February 2015.
- Dangerous Goods Safety Act 2004
- Mines Safety and Inspection Act 1994
- Mining Act 1978
According to the explanatory memorandum, the objectives of the Bill are to remove the imposition of personal criminal liability on directors for corporate fault and replace them with the standard provisions in ss44C (Officer liability for corporate offence: onus on prosecution to prove reasonable steps not taken) or 44E (Officer liability for corporate offence: onus on officer to prove reasonable steps taken) of the Criminal Code Act Compilation Act 1913 (WA).
As of 30 March 2015, the fatigue management provisions of the Heavy Vehicle National Law (Tas) are in effect. The changes include the introduction of the national driver’s work diary, new record keeping requirements and different work and rest times. In addition, liability for fatigue-related offences will be extended to additional parties in the Chain of Responsibility.
More information about the heavy vehicle reforms is accessible here.
As of 1 January 2015, the management, control and removal of asbestos in the workplace is governed by the Work Health and Safety Regulation 2011 (ACT) and two supporting Codes of Practice. The ACT has largely adopted the model laws on asbestos, meaning that the management of asbestos in ACT workplaces will largely be harmonised with that of other model jurisdictions, but with some differences.
A copy to the How to Safely Remove Asbestos Code of Practice is accessible here.
A copy of the How to Manage and Control Asbestos in the Workplace Code of Practice is accessible
The Northern Territory's mirror Rail Safety (National Uniform Legislation) Regulations have been amended so that an authorised person who requires a worker to provide a blood sample for a drug test must arrange for the worker to be taken to a hospital or health centre for the sample to be taken by a health practitioner.
The Regulations have also been amended to require the health practitioner to divide such a sample into three equal portions, and provide two portions to the relevant authorised person. The third portion must be provided to the worker or stored on the worker's behalf.
The amending Regulations commenced on 18 March 2015.
For more information see the Rail Safety (National Uniform Legislation) Amendment Regulations 2015.
In July 2013, a ferry master was sacked after returning a positive drug test for marijuana following an incident where the ferry collided with a wharf on the Parramatta River.
In April 2014, the Fair Work Commission ordered his reinstatement finding that while there was a valid reason to terminate, his dismissal was unfair due to other factors, including a lack of evidence of impairment and poor future employment prospects.
The Fair Work Commission full bench overturned the reinstatement finding that the ‘core issue’ was the worker’s disobedience of the policy and the lack of impairment or absence of a link between the drug use and the incident were not relevant factors.
On appeal, the full Federal Court confirmed the decision finding that the employer was entitled to terminate the worker for deliberately disobeying its zero-tolerance drug and alcohol policy, despite there being no evidence that his drug-taking caused the incident.
A copy of this case, Toms v Harbour City Ferries Pty Limited  FCAFC 35, is accessible here.
In March 2014, a shift supervisor shut off a valve in order to train an operator at a liquefied natural gas and liquefied petroleum gas plant.
Closing the valve resulted in the plant becoming “highly unstable”, as it caused a pressure increase and high temperatures that could have caused a “catastrophic explosion”.
In order to stabilise the plant, gases were automatically burnt off and released into the atmosphere (flaring) which caused a fireball and huge clouds of black smoke.
The employer terminated the supervisor’s employment following an investigation that found that he had failed to call his managers for help and did not follow automatic shutdown responses allowing the plant to operate unsafely for four hours demonstrating "a complete lack of operational awareness" that could have resulted in a “catastrophic outcome”.
The supervisor made an application to the Fair Work Commission (FWC), claiming that there was no valid reason for his dismissal as he had managed to restabilise the plant and had applied the appropriate operating procedure.
The FWC rejected the application finding that there was a valid reason for the dismissal; namely that the supervisor had:
- destabilised the plant to conduct training “ contrary to the employer’s training practices”;
- failed to respond appropriately to the incident; and
- failed to report the severity of the incident;
in an environment with the potential for a “catastrophic explosion”.
A copy of this case, Greene v Wesfarmers Kleenheat Gas Pty Ltd  FWC 256, is accessible here.
On 29 January 2015, the Fair Work Commission suspended a union official’s right-of-entry permit for a period of 12 months for making a false declaration in his application in 2013.
He declared that he had never been convicted of an offence relating to dishonesty of the use of violence, despite the fact that he had been convicted of recklessly causing injury and criminal damage in Victoria in 2003, and for theft in 2007.
Fair Work Building and Construction (FWBC) have also commenced proceedings against the same union official and the CFMEU, for alleged breaches of the Fair Work Act in at Sydney’s Barangaroo construction site.
It is alleged that the union official breached Barangaroo’s safety rules by directing workers to stop work to attend a safety meeting and by walking around the site unaccompanied by a project representative.
The union official faces a maximum penalty of $10,200, while the CFMEU could be fined up to
$51,000 per entity.
A copy of the order suspending the right-of-entry permit is accessible here.
In October 2011, a Linfox Australia Pty Ltd (Linfox) contractor was driving a forklift to unload Ikea cardboard pallets from within a shipping container. A Linfox employee who was standing inside the shipping container was struck by the forklift, which crushed his head between the forklift load and a wall. He suffered multiple facial fractures, a jaw bone fracture, severe facial lacerations, teeth damage and other injuries.
Comcare launched proceedings against Linfox, and in an agreed statement of facts Linfox admitted that it breached the now-repealed Occupational Health and Safety Act 1991 (Cth) in failing to:
- conduct an adequate hazard identification or risk assessment of the task of unloading Ikea cardboard pallets from shipping containers;
- develop a specific operating procedure for the task;
- prohibit pedestrian employees and operational forklifts from being in or entering shipping containers at the same time;
- provide an appropriate forklift for the task (the guard on the mast of the relevant forklift was too high);
- inform its employees that there were special dangers and risks associated with unloading Ikea cardboard pallets from shipping containers, which differed from the dangers and risks associated with other work performed by Linfox;
- train employees in the task; and
- properly supervise employees in a manner that enabled them to perform the task safely.
In a submission to the Federal Court, Comcare said the parties had agreed that the penalty imposed "ought to be within the range of $60,000 to $90,000" out of the maximum available fine of $242,000.
The Federal Court fined Linfox at the upper limit of a penalty range recommended by Comcare (ie
$90,000). Its reasons included that Linfox failed to address a reasonably foreseeable and easy to fix risk of injury to employees who were in close proximity to operating forklifts, and failed to address that risk for six weeks before the incident occurred.
A copy of this case, Comcare v Linfox Australia Pty Ltd  FCA 61, is accessible here.
In November 2011, a contractor managed to avoid injury after cutting into a live steam line with an angle grinder while replacing a defective valve at the Kooragang Island chemical plant.
Orica Pty Ltd were charged with breaching the now-repealed OHS Act (NSW), in failing to ensure that the contractors on site, employed by Downer Australia Ltd, were not exposed to an uncontrolled release of high-pressure steam.
As required by Orica, the contractors had completed a job safety and environment analysis (JSEA) and provided it to the shutdown coordinator to receive a work permit. The JSEA identified the relevant hazard and appropriate PPE and clarified that workers should consider all pipes to be under high pressure until proven otherwise.
At the time of the incident the contractor was complying with the JSEA, that provided that workers should cut a small nick into the pipe in a position away from the body to allow the "harmless escape" of hazardous material when cutting pipes to guard against the possibility of human error.
While the shutdown coordinator had failed to accurately identify the circuits in this instance to isolate the pipe from the live steam where the work was to be performed, the Court found that he was able to correct his error in a very short period of time.
The NSW District Court dismissed the charges finding that “the work practices and controls instituted by [Orica] were adequate to ensure that the release of the high-pressure steam was controlled to a sufficient extent both in quantity and direction away from [the fitter's] body, and its release did not expose him or the other two men to the risk of being burnt”.
A copy of this case, WorkCover v Orica Pty Ltd  NSWDC 7, is accessible here.
In August 2010, a miner was seriously injured when a large slab of coal fell from the exposed roof under which he was working and struck him in the lower back.
A company supervisor had inspected the worksite before the task was undertaken and identified the risk of the roof failing, but failed to inform anyone.
The Department of Trade and Investment (regulator) charged the company with breaching s8(1) of the now-repealed Occupational Health and Safety Act 2000 (NSW) (OHS Act (NSW)) alleging, among other things, failure to conduct an adequate inspection and risk assessment and failure to provide adequate instruction, information and training to the worker.
The company claimed that it had a “golden rule” to never enter under unsupported roof and that the worker’s decision to ignore this rule was “aberrant behaviour” such that it lacked control and it was not reasonably practicable for it to comply with the provision.
The NSW District Court held the company guilty, finding that workers were required to place parts of their bodies under the exposed roof to complete the works and the company was aware of the fact and foresaw the risk of injury.
The Court found that the supervisor’s “risk assessment was flawed fundamentally because having assessed, he did not convey the revealed risk to those who were going to do the task” and inferred that “[h]ad a proper risk assessment been carried out…control measures would have been implemented” and that the “risk would have been minimised even if not necessarily eliminated”.
A copy of this case, Inspector Nash v Bulga Underground Operations Pty Ltd (re Newstead)  NSWDC 6, is accessible here.
In November 2013, a trainee plant operator sustained fatal injuries at an open-cut coal mine when her Landcruiser collided with a 351-tonne dump truck during night shift.
A NSW Mine Safety investigation found that she had driven onto the haul road, past a give way sign, into the path of the dump truck on the truck driver’s blind side and had either failed to see the truck or had “misinterpreted the road environment”.
The investigation found that "[t]here was an over-reliance on administrative controls to manage heavy and light vehicle interactions” and that a number of risk factors specific to night shift contributed to the incident that were not considered by the company:
- the size of the signs at the intersection did not comply with best practice;
- the top half of the truck "did not have lights and had only minimal retro-reflective taping applied";
- the worker’s visibility may have been affected by background lighting near the intersection;
- rain puddles could have reflected lights from vehicles and the mine distracting the worker’s vision; and
- "[t]here were no proximity or collision avoidance systems installed on the truck or Landcruiser to warn the operators of the presence of the other vehicle".
A copy of NSW Mine Safety’s investigation report is accessible here.
In March 2013, a worker was injured when he was struck by a load of timber after cutting the straps that were securing the load.
WorkCover NSW alleged the employer, Hume Doors & Timber (Aust) Pty Ltd, breached s19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act (NSW)) in failing to ensure the health and safety of workers.
Following the incident, the employer spent approximately $5200 making improvements to its traffic management plan and entered an enforceable undertaking in lieu of prosecution.
The enforceable undertaking includes a number of commitments to an estimated value of $385,000, including:
- introducing initiatives to improve the literacy and numeracy of staff with English as a second language;
- providing a GPS vehicle tracking system, a load restraint refresher course and WHS training;
- developing a best-practice machine guarding manual in consultation with the Timber Trade Industry Association;
- making information regarding safety more accessible by introducing noticeboards and providing updates and resources on their website;
- providing work experience to local high school students and job seekers to gain experience in the logistics and manufacturing industry; and
- promoting workplace health and safety by holding a community safety day in partnership with the Cronulla Sharks NRL team.
A copy of the enforceable undertaking is accessible here.
On 1 March 2012, a section of a new high voltage electricity transmission tower was being lifted by a crane, when the auxiliary winch inadvertently went into free fall and the load fell, striking a worker below. The worker died as a result of the injuries sustained when the load fell on him.
An investigation into the incident by the Office of Fair and Safe Work Queensland (OFSWQ) revealed, among other matters, that the lock out bar (to prevent the inadvertent activation of the free fall feature of the crane) had been incorrectly installed, that multiple inspections of the crane had not identified the incorrect installation of the lock out bar, and that the lock out should have been a keyed lock out as recommended by the Qld Mobile Crane Code of Practice.
The Queensland Coroner said that the relevant Australian Standards (AS 2550.1 and 2550.5, and AS
1418.1 and 1418.5) are silent on the issue of free fall functions and how they can or should be locked out, and recommended that Australian Standards for mobile cranes be amended to regulate free fall functions. Further, the Coroner recommended that CraneSafe review its inspection program include inspections and testing of free fall functions in cranes.
A copy of the Coroner’s findings of inquest is accessible here.
In May 2011, Frankipile Australia Pty Ltd (Frankipile) was preparing foundations for a building at a construction site and engaged affiliated company Vibro-Pile (Aust) Pty Ltd (Vibro-Pile) to operate the piling rig. A Frankipile employee was working at the top of the rig when the mast snapped, causing him to fall 40 metres to his death.
The County Court heard that the Vibro-Pile employee who was directed to prepare the piling rig for work was unfamiliar with the rig’s controls, and had never installed or been trained in how to install the leader extension which had to be fitted to the mast. Further, he’d reported these issues to his supervisor, but the preparation work continued, and 10 of the 16 bolts needed to secure the leader extension to the rig were not fitted.
Frankipile and Vibro-Pile were both convicted at trial of breaching the Occupational Health and Safety Act 2004 (Vic) in failing to provide safe systems of work or properly train and supervise workers. They were fined $350,000 and $100,000 respectively.
This decision has not been published online at the time of publishing this Briefing Update.
In October 2008, a TCB Trans Pty Ltd (TCB Trans) employee was using the crane truck to move steel coils at a construction site when the crane lifted and tilted towards the adjacent semi-trailer, crushing him between the two vehicles.
TCB Trans pleaded guilty to breaching the Occupational Health and Safety Act 2004 (Vic) in failing to provide a safe working environment, and was fined $100,000 in the Melbourne Magistrates Court.
This decision has not been published online at the time of publishing this Briefing Update.
In July 2012, a Blue Lake Milling Pty Ltd (Blue Lake Milling) casual cleaner reached into the steaming valve of a processing plant to clean it when his right arm was grabbed and dislocated from the shoulder socket by the valve’s moving arms. He broke three major arm bones, and his right index finger and two sections of his forearm were de-gloved. He subsequently underwent eight operations, and his index finger was amputated.
After an investigation by SafeWork SA, Blue Lake Milling was charged with an offence against
section 19(1) of the now-repealed Occupational Health, Safety and Welfare Act 1986 (SA). Blue Lake Milling pleaded guilty to not providing and maintaining, so far as was reasonably practicable, plant in a safe condition due to not adequately guarding the hazardous moving parts of the steaming valve by, for example, fitting an interlock device to the cover of the valve unit which would have eliminated or
greatly reduced the risk of injury.
The South Australian Magistrates Court heard that the cleaner was working alone, the emergency stop button was two metres away from the valve, and the valve’s cover was fixed with two "simple clamps" that could be removed without any tools. The Court found that Blue Lake Milling had only performed an undocumented informal risk assessment of the plant, and didn’t have any written standard
operating procedures for the weekly shutdown cleaning. Further, the risk of injury posed by the unsafe plant was probably even greater than the injuries sustained in this incident.
The South Australian Magistrates Court fined Blue Lake Milling $120,000 which was reduced to
$78,000 because of Blue Lake Milling’s early guilty plea, cooperation and contrition.
A copy of this case, Perry v Blue Lake Milling Pty Ltd  SAIRC 45, is accessible here.
In October 2011, a contractor attended the premises of Metwest Steel Pty Ltd (Metwest) to repair a crane, and stood on a scissor-lift platform (which was raised to about six metres) to access the crane’s control box. At the same time, another crane being operated by a Metwest employee collided with the stationary crane, which moved and struck the scissor-lift, causing the contractor to fall about six metres and suffer complete paraplegia.
The court heard that anti-collision devices were fitted at a cost of $2,000 after this incident. As such, it would have been possible and not overly expensive to have had these devices fitted earlier which would have prevented the permanent injury that was caused.
Metwest pleaded guilty to breaching the Occupational Safety and Health Act 1984 (WA) in failing to provide a safe workplace for the contractor, and causing him serious harm through that failure, and was fined $75,000 in the Fremantle Magistrates Court.
This decision has not been published online at the time of publishing this Briefing Update.