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Inside track: Work Health & Safety

22 January 2019

#Workplace Relations & Safety

Inside track: Work Health & Safety

In the media 

QLD Work Health & Safety officer allegedly threatened and abused by CFMMEU official during site entry
The ABCC alleges Mr Cummins and the CFMMEU contravened section 500 of the Fair Work Act by acting in an improper manner and hindering and obstructing a Queensland WHS Inspector from undertaking his lawful duties (15 January 2019).  More...  

Canberra's recycling plant shut down over lack of safety rails, pile of rubble blocking exit
An inspection of the Materials Recovery Facility in Hume finds electrical issues, problems with fuel and gas supply, and a lack of fire extinguishers (14 January 2019).  More... 

Working in heat: Not just an outdoor problem
Businesses all have duties under work health and safety laws to manage the risks of working in heat and protect worker health and safety (10 January 2019).  More... 

Court urges employers to take care of young workers
Workplace Health and Safety Queensland’s Tony James said employers must be aware that young workers will often take risks if they are anxious to please their bosses and they must be protected against this blind enthusiasm (10 January 2019).  More...  

Company charged over trench collapse deaths
A civil construction company has been charged by WorkSafe Victoria following the death of two workers after a trench collapsed in Ballarat in March 2018. Ballarat company Pipecon has been charged with two breaches of the Occupational Health and Safety Act (08 January 2019).  More...  

Workers warned of confined space killers
Minister for Better Regulation Matt Kean said SafeWork NSW is investigating a number of fatalities in 2018 involving working in confined spaces. SafeWork NSW recommends that, when required to work in a confined space, workers should regularly clean the air space, keep it well ventilated, and have an emergency plan (04 January 2019).  More...  

'Illegal' chemical stockpiles prompt WorkSafe review of penalties
The Victorian Government has asked WorkSafe to review whether tougher penalties are needed to crack down on people illegally storing chemicals, after the discovery of several stockpiles in Melbourne's northern suburbs this week. Victorian Attorney-General Jill Hennessy said penalties under the Dangerous Goods Act which can be up to $1 million for a corporation are lower than the penalties under the Occupational Health and Safety Act (01 January 2019).  More...  

Quarry fined following worker death
A quarry operator has been convicted and fined $230,000 after a dump truck driver died when his vehicle rolled on a stockpile in May, 2016. Keilor Melton Quarries Pty Ltd was sentenced after it was earlier found guilty of contravening section 26 of the OHS Act, by failing to ensure the workplace was safe and without risks to health and safety (20 January 2019).  More... 

Published - articles, papers, reports

Comparative performance monitoring report 20th edition Part 2 – Work health and safety compliance and enforcement activities
SafeWork Australia: 21 December 2018
Provides jurisdictional comparisons of aggregate data on workplace interventions, inspectors, notices and legal proceedings.  More... 

Safe Work Australia Fatality statistics
As of 20 December, there have been 118 Australian workers killed at work in 2018. The numbers and industries may vary from one report to the next, as Safe Work receives more detailed information. To check for updates and more details on fatalities since 2003, information can be found here

In practice and courts

ComCare: Work Health and Safety Amendment (Labelling Hazardous Chemicals) Regulations 2018
On 13 December 2018, amendments to the Work Health and Safety Regulations 2011 were made and give effect to the agreed Safe Work Australia policy in relation to labelling of hazardous chemicals. The amendments commence on 1 January 2019, and the first three measures sunset after five years to allow for a review of the measures (19 December 2018).  More...

National Inquiry into Sexual Harassment in Australian Workplaces
The focus of the national inquiry is on the nature and prevalence of sexual harassment in Australian workplaces, the drivers of this harassment and measures to address sexual harassment in Australian workplaces. To assist interested parties to develop submissions to the inquiry, the Australian Human Rights Commission has also prepared a Conversation toolkit. Submissions close on 31 January 2019.
The National Inquiry team will also be conducting public consultations in the following locations: Sydney and Albury-Wodonga – week commencing 11 February 2019.

New South Wales

Safework NSW: Audiometric testing exemption
SafeWork NSW has issued a further two year exemption for the audiometric testing requirements of clause 58(2) of the Work Health and Safety Regulation 2011 (10 January 2019).  More... 

Queensland

Fatal incident as bulldozer overturns into pit: Business Queensland
9 January 2019: Mines safety alert 362
Queensland Mines Safety Alert 362 relates to a fatal incident that occurred on 31 December 2018 during the operation of a bulldozer at an open-cut coal mine near Dysart in Central Queensland.
Industry: Coal mines; Exploration; Metalliferous mines; Subject Vehicle collision or failure.  More... 

Serious accident involving an articulated water cart: Business Queensland
7 January 2019: Mines safety alert 361
An articulated water cart ran away backwards down the face of a tailings dam wall, overturning at the bottom and pinning the operator in the cab. Industry: Coal mines; Exploration; Metalliferous mines Subject Vehicle collision or failure.  More...  

WorkCover Queensland: Esafe electrical, 9 January 2019 - Test before you touch
The start of the New Year is a good time to remind all electrical workers to always test before you touch. Treat every circuit or piece of electrical equipment as live until tested and proven not to be live.  More... 

Victoria

Work Safe Victoria Alert: Chemical waste and dangerous goods
An alert about storing chemical waste that may be dangerous goods, and when occupiers of premises must notify WorkSafe (8 January 2019).  More... 

Work Safe Victoria: Occupational violence and aggression incident and prosecution in healthcare
An alert about providing information, instruction and training for the prevention of occupational violence and aggression (OVA) (16 January 2019).  More...

Cases

Benjamin Kreger v SafeWork NSW [2019] NSWIRComm 1002
PROCEDURE – Civil – application for review of provisional improvement notice – whether application made out of time – whether order made by Commission in other proceedings later found to be a nullity can be relied on to permit filing of application. 

SafeWork NSW v Confeta Pty Limited; SafeWork NSW v Cleo Antoniou [2018] NSWDC 392
CRIMINAL LAW – Prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – Objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty.
SENTENCING PRINCIPLES – Totality – remorse – contrition – appropriate penalty.
COSTS – Prosecution costs.
SENTENCE – Director failing to exercise due diligence – whether appropriate to sentence by way of bond or training order – director must ensure that those under him or her were carrying out their duties properly – director did not know of two prior similar incidents – director did not know that there were no written safety documents – appropriate to record a conviction and impose a fine.  

SafeWork NSW v Shaun David Scott Mehan [2018] NSWDC 391
CRIMINAL LAW – Prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – Objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty.
SENTENCING PRINCIPLES – Totality – remorse – contrition – appropriate penalty.
COSTS – Prosecution costs.

SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
CRIMINAL LAW – Prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – Objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty.
SENTENCING PRINCIPLES – Totality – remorse – contrition – appropriate penalty.
COSTS – Prosecution costs.
OTHER – Fall from height – need for risk assessment – need for edge prevention system – prevalence of prosecutions for falls from height – importance of general deterrence.

SafeWork NSW v Williams Pressing and Packaging Services Pty Limited [2018] NSWDC 409
CRIMINAL LAW – Prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – Objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty.
SENTENCING PRINCIPLES – Totality – remorse – contrition – parity – appropriate penalty.
COSTS - Prosecution costs.
OTHER – Collision between forklift and worker – need for training and supervision – need to consult with company supplying workers to factory.

SafeWork NSW v The Austral Brick Co Pty Limited [2018] NSWDC 387
CRIME – Prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker.
CRIMINAL PROCEDURE – Pleadings – particularisation – case shift – danger of prejudice to defendant.
WORK HEALTH AND SAFETY – Whether pleaded measures reasonably practicable – whether reliance on specialist contractor reasonable – whether cessation of work reasonably practicable – safety management system – objective knowledge of defendant.
OTHER – Work at heights – brittle asbestos roof – specialist contractor engaged to undertake repairs – worker fell through roof – safety mesh – catch platform – job safety environmental analysis.

SafeWork NSW v Meixing Jiang [2018] NSWDC 400
CRIMINAL LAW – Prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – Objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty.
SENTENCING PRINCIPLES – Totality – remorse – contrition – appropriate penalty.
COSTS – Prosecution costs.
OTHER – Fall from height – need for risk assessment – need to communicate with workers whose language is not English.

Metricon Homes Pty Ltd v O'Grady (VWA) (No 2) [2018] VSC 816
SENTENCING – Appeal from conviction under s 21(1) Occupational Health and Safety Act 2004 (Vic) dismissed – whether error in sentencing at first instance – whether re-sentencing required – gravity of breach – extent of departure from statutory duty – extent of risk of injury – relevance of injury to victim – Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82; [2012] 35 VR 399 – DPP v Frewstal Pty Ltd [2015] VSCA 266 (24 September 2015) – DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 (24 March 2016).

Legislation

Commonwealth

Work Health and Safety Amendment (Labelling of Hazardous Chemicals) Regulations 2018
14/12/2018 -These regulations amend the Work Health and Safety Regulations 2011 to provide for transitional arrangements for the Globally Harmonised System of Classification and Labelling of Chemicals (GHS) to clarify that it is not necessary for GHS labels to include duplicate label elements required by other labelling laws, to exempt certain veterinary chemicals from GHS requirements that are already subject to other labelling regimes, and to make minor updates and corrections of a technical nature to align with the model Work Health and Safety laws.
The Regulations will commence on 1 January 2019
Note: 1 January 2019 onwards: the Regulations implement transitional measures prospectively.

Queensland

Subordinate legislation as made –14 December 2018
No 216: Work Health and Safety and Other Legislation Amendment Regulation 2018 (Qld)
This Regulation is made under the Electrical Safety Act 2002 and the Work Health and Safety Act 2011. The objective of the Regulation is to make minor regulatory amendments to subordinate legislation under the Electrical Safety Regulation 2013 and the Work Health and Safety Regulation 2011. The Regulation was notified on 14 December 2018, with parts 1 and 3 (other than sections 10 and 16) commencing on the date of notification, part 2, section 16 commencing on 1 January 2019 and section 10 commencing on 1 February 2019.

Contacts:
Melbourne
Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

Benjamin Marshall, Partner
T: +61 3 9321 9864
E: ben.marshall@holdingredlich.com

Sydney
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com

Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
Erachel.drew@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. 

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