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DWF Safety Bulletin

06 August 2021

Welcome to the latest edition of DWF's Safety Bulletin. In this edition, we examine the latest safety news including recent legislative changes and significant safety decisions across Queensland, Victoria, New South Wales and the ACT.

News

Sexual harassment in the limelight
Various parliaments are introducing new laws following the Respect@Work enquiry, including South Australia and the Commonwealth. See our previous DWF article for more on this.


 
New on-the-spot fines for WorkSafe Victoria
The Victorian safety regulator can now issue infringement notices for breaches of the OHS Act and Regulations, including:
  • a person undertaking work without a required license, registration, qualification, experience or supervision
  • the use of equipment or substances that are not licensed or registered as required
  • failing to meet various duties relating to the removal and storage of asbestos
  • failure to keep various required records

The maximum infringement fines available are $1,817.40 for corporations and $363.48 for individuals.


Legislation Update

NSW manslaughter bill introduced
Industrial manslaughter continues to pervade state parliamentary debate, with NSW's Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021 leaving Tasmania as the only State/Territory parliament yet to consider the offence.

The offence would apply to both PCBUs and Senior Officers when they are 'negligent or reckless' about causing the death of a person 'at a workplace'. Penalties range up to 25 years' imprisonment for individuals and fines of $10,200,000 for corporations.  


 
ACT manslaughter fines surge
Previously in the Territory's Crimes Act, industrial manslaughter is now set to be introduced into the Work Health and Safety Act 2011 (ACT) under the Work Health and Safety Amendment Bill 2021. The previous maximum available fine of $1,620,000 for corporations has been dramatically increased to $16,500,000. Individuals continue to face up to 20 years' imprisonment.



Queensland Scaffolding Code amended
Queensland has released a new Scaffolding Code of Practice 2021 to reflect industry development since the previous code. Among the new requirements are more engineering checks, two means of access/egress for large structures, smaller steps between landings, and non-destructive testing of suspended scaffold components.



Victorian Bill to ban insuring against safety fines
In a national first, the Occupational Health and Safety and Other Legislation Amendment Bill 2021 will prohibit insurers from paying penalties imposed upon corporations. The Bill will also provide additional labour hire protections and facilitate the issuance of enforcement notices via electronic means.

Ban on insurance
Any arrangement purporting to insure or indemnify a person for their liability to pay a pecuniary penalty under safety laws will be void. If a person has, enters or offers to enter such an arrangement, they may receive penalties of up to $50,000 for individuals and $250,000 for companies. Safety laws include the Occupational Health and Safety Act 2004 ('OHS Act'), the Occupational Health and Safety Regulations 2017, the Equipment (Public Safety) Act 1994, the Equipment (Public Safety) Regulations 2017, and the Dangerous Goods Act 1985.

Labour hire
The OHS Act will deem a person ('host employer') to be a worker's employer where a provider of labour hire services supplies the worker to, recruits the worker for, or places the worker with that person. All persons with a duty in relation to the same worker (including the host employer and provider of labour hire services) must, so far as is reasonably practicable, consult, cooperate and coordinate activities with each other. Failure to do so attracts penalties of up to $30,000 for individuals and $150,000 for companies.

Other changes
Various communication enabled and required under safety laws can now be validly made when electronically communicated (email, text, etc.) to any employee, agent or officer of the relevant body corporate. This includes:

  • Provisional improvement Notices (PINs) issued by Health and Safety Representatives (HSRs) and/or affirmed by inspectors
  • Compulsory entry reports by inspectors exercising rights of entry
  • Infringement notices issued by inspectors


Recent Significant Safety Decisions

$200k compensation for workplace poster sexual harassment
Demonstrating a recent increase in penalties awarded in the various anti-discrimination and human rights tribunals, two companies have been ordered to pay $100,000 each to a worker depicted in an offensive workplace poster.

In 2015, a customer liaison officer for Sydney Water Corporation was photographed by the workplace health service provider Vitality Works Australia Pty Ltd for use in promotional material.

A few months later, a poster was released featuring the worker pointing to the slogan 'Feel great – lubricate'. Vitality Works contended that this was not intended to convey a sexual meaning, it was referring to the education program teaching workers that moving joints lubricates them. The liaison officer, who was the only female worker in her team, felt humiliated and demeaned as a 'sex object' by the poster and resultant comments from colleagues. She subsequently developed a psychological condition preventing her from working.

Two members of NSW's Civil and Administrative Tribunal Administrative and Equal Opportunity Division twice awarded the worker the maximum amount of damages available under the Anti-Discrimination Act 1977 (NSW).

See Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 (30 April 2021)



Building Code Ban on Commonwealth projects
In a national first, a one-month exclusion from tendering for Commonwealth-funded building work has been imposed on a Queensland construction company for a 'WHS contravention', following an incident where a mobile concrete pump truck collapsed while operating on the Toowoomba Second Range Crossing project. See full DWF article for more.



Appeal overturns Antarctic helicopter pilot case
At trial before a Magistrate in December 2019, the Commonwealth was found guilty of a category 2 WHS offence for exposing their pilots who landed on the Antarctic ice shelf to the risk of death or serious injury after a helicopter pilot engaged by the Commonwealth died from hypothermia in 2016.

On appeal, Justice Elkaim of the ACT Supreme Court disagreed with Magistrate Theakston's finding as to reasonable practicability. Further, it was not established that the Commonwealth had reasonable resources to employ a person to monitor and interpret satellite imagery for each flight. The Commonwealth's appeal was upheld.

See May v Helicopter Resources; Commonwealth of Australia v May [2021] ACTSC 116 (10 June 2021)



Tank isolation failure costs employer $500k fine
In December 2017 at DIC Australia's manufacturing premises, one worker was killed and two received serious injuries in an ink holding tank.

While Craig Tanner, a subcontracted cleaner, was working inside the ink tank, its agitator blade activated and crushed his legs against the tank's wall. Two more workers entered the ink tank to rescue Tanner, however both were likewise struck by the blade and sustained leg and foot injuries. Nearby workers realised the tank's power was still on and contacted a site electrician to isolate the plant. Mr Tanner was unable to be saved by attending paramedics.

NSW District Court Judge David Russell heard that DIC did not provide any information to the relevant subcontractors on the electrical configuration of the ink tank. Workers were therefore unaware that the tank did not have an accessible isolation switch or that an electrician was required for its isolation.

Reasonably practicable measures that DIC should have taken included enforcing safe work procedures and JSAs for the cleaning of tanks, a lock-out-tag-out system, and a system of approval prior to the work.

After pleading guilty to a category 2 charge, DIC was fined $450,000 excluding costs.

See SafeWork NSW v DIC Australia Pty Limited [2021] NSWDC 143 (30 April 2021)



Daydream employer discharges safe dwelling duties despite employee's drunken misadventure
Despite ruling that an employer was not responsible for an employee's drunken hotel urination, Queensland Supreme Court Justice Graeme Crow has reinforced that employers' safety duties do extend to accommodation facilities organised by them.

In November 2016, two employees of CCIG Investments Pty Ltd were sharing a studio apartment in a staff village on Daydream Island. One of the workers was woken early in the morning to his intoxicated colleague standing over his bed and urinating on his face. The employee developed PTSD, anxiety and depression from the incident.

The night before, the worker had been drinking at the staff bar after his shift. The victim claimed that the high level of intoxication was due to the employer's failure to enforce alcohol and behaviour policies.

His Honour agreed that an employer's duty of care did extend to controlling the risk of injury from an 'unpleasant personal interaction' in the employees' residence. However, the employee failed to point to any specific instructions or behaviour which could have prevented the incident. There was an insufficient nexus between the employment and the assault to establish the employer's vicarious liability. Justice Crow dismissed the case.

See Schokman v CCIG Investments Pty Ltd [2021] QSC 120 (27 May 2021)



Structure designer fined $100,000 for failing to address identified safety concern
In 2015, engineering, structural and civil design company ADG Engineers (Aust) Pty Ltd designed a horizontal steel support beam and rebate area for travelators at a supermarket. When two individuals working on the supermarket upgrade were on the travelator after its installation, a steel beam failed and the travelator dropped sharply. One individual was thrown from the travelator, sustaining minor physical injuries and subsequent psychological injuries.

An investigation into the incident revealed that ADG had designed the steel beam under the assumption that it would only support one travelator. This was despite the task requiring them to design the beam to partially support a second travelator.

A few weeks after the beam was bolted into place, the principal contractor asked ADG to inspect the beam and connections, noting the structure appeared 'a bit light'. ADG undertook an inspection but provided the principal contractor with no subsequent advice or actions.

ADG pleaded guilty to a category 2 charge of the 'upstream' duty of ensuring designs to be without risks to the health and safety of persons. ADG was fined $100,000 in the Ipswich Magistrate Court with the risk's obvious foreseeability aggravating its penalty.  

See Office of the Work Health and Safety Prosecutor's media release.



Director jailed for shed fatality  
A company's director has been sentenced to two years and two months imprisonment following a fatal fall. Director Mark Thomas Withers' minimum eight months of jail time is Australia's longest period of imprisonment for a workplace health and safety offence. See our full DWF article for more information.

If you require further information or have any queries in relation to this Safety Bulletin, please contact the Head of our Employment, Safety & Regulatory team, Matthew Smith.

Further Reading