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Inside track: Work Health & Safety

24 November 2020

#Workplace Relations & Safety

Inside track: Work Health & Safety

In the media

WorkSafe’s failure to prosecute over power station death undermines confidence in safety: CFMEU
CFMEU Mining & Energy
WorkSafe Victoria’s decision not to prosecute over the death of Graeme Edwards at EnergyAustralia’s Yallourn power station two years ago is a denial of justice for Graeme and a blow to workers’ confidence in the safety laws meant to protect them, CFMEU Mining and Energy said (19 November 2020).  More...

ACT police threatened with fines over state of traffic offices
The Australian Federal Police is issued an improvement notice to fix building defects the work safety watchdog says endanger traffic officer's health and safety (18 November 2020).  More...

Record investment in safe workplaces
Record funding will be invested into enhancing safety and well-being in NSW workplaces, improving the physical and mental health of all workers in the state as part of the 2020-21 NSW Budget. The Budget will also continue funding the Centre for Work Health and Safety, which provides research on innovative methods to improve awareness and mitigation of workplace health and safety risks (18 November 2020).  More...

Supporting farmer safety across the state
The NSW Government has announced $3.3 million in funding to support safety on NSW farms.
Minister for Better Regulation and Innovation, said that farms continue to be one of NSW’s most dangerous workplaces and this funding will be used both to educate those in the agriculture sector and reduce high risk activities (18 November 2020).  More...

Firefighters compo expanded
The national government has agreed to all the recommendations of a review of workers compensation arrangements for firefighters employed under the Safety, Rehabilitation and Compensation Act 1988. See the Review of the Firefighter Provisions of the Safety, Rehabilitation and Compensation Act 1988 can be accessed here (16 November 2020).  More...

National snapshot: COVID-19-related workers compensation claims
Safe Work Australia has released a snapshot of COVID-19-related workers compensation claims up to 31 July 2020 that offers insight into areas such as mental health (16 November 2020).  More...

SIRA seeks feedback on COVID cost-sharing proposal
The NSW State Insurance Regulatory Authority (SIRA) is seeking feedback on plans to spread COVID-19 workers’ compensation costs across the state scheme amid concerns that they may become significant if claims volumes are high (16 November 2020).  More...
Note: SIRA is seeking feedback on the consultation paper on the proposal by December 18. More details are available here.

icare ‘working to address’ NIBA’s broker letter concerns
NSW state insurer icare says it is seeking to address concerns raised by the National Insurance Brokers Association (NIBA) over changes to letters of appointment used in the workers’ compensation scheme.
NIBA says the letters, which confirm an employer has appointed a broker as their authorised delegate, have introduced requirements that are too broad (16 November 2020).  More...

Recent asbestos-related fines highlight awareness importance
23–29 November is National Asbestos Awareness Week 2020; two recent Queensland asbestos-related removal and licensing prosecutions highlight its importance (11 November 2020).  More...

Royal Commission publishes report into natural disasters
Following the 2019–20 bushfires, the Royal Commission into National Natural Disaster Arrangements has published a 1000-page report with 80 recommendations (11 November 2020).  More...

Silica detector to protect NSW workers from dust diseases
The NSW Government is trialling a real-time silica detector that monitors silica dust levels in the air, to protect NSW workers from contracting dust diseases (11 November 2020).  More...

$150K fine follows machine crushing death of worker in 2017
A North Queensland company has been fined $150,000 for a 2017 incident in which a worker was crushed to death while trying to fix a cane haul-out vehicle (11 November 2020).  More...

SIRA proposes cost-sharing mechanism for COVID-19 workers' compensation claims
New South Wales’ statutory insurance regulator has launched a consultation around a proposed cost-sharing mechanism for COVID-19 workers’ compensation claims (11 November 2020).  More...

Gig economy at the heart of new project
Implementing practical measures to improve workplace health and safety for gig economy workers is at the centre of a new research driven project by the NSW Government (10 November 2020).  More...

World first real-time silica detector helps clear the air
The NSW Government has launched a trial of world-first technology to accurately monitor silica dust levels in the air that has the potential to protect NSW’s workers from contracting the deadly lung disease silicosis (10 November 2020).  More...

Opportunity for small and regional unaccredited builders to have their say about the WHS accreditation scheme
The FSC is committed to a safer Australian building and construction industry. Small to medium sized construction companies, and regional construction companies are an important part of the FSC’s Work Health and Safety Accreditation Scheme (the Scheme), with 75 per cent of Scheme accredited companies being classified as small or medium in size and 40 per cent of OFSC audits being conducted in regional areas in the last three years (09 November 2020).  More...

NSW regulator brings hazardous chemicals under fire
The New South Wales Resources Regulator is working with mine operators to better manage chemical risks on sites under new work health and safety laws (09 November 2020).  More...

New campaign to reduce risky electrical work
Ensuring electricians are operating safely will form a vital part of a new NSW Government compliance campaign targeting electrical safety issues on construction sites. For the rest of 2020, Safework NSW inspectors will be conducting drop-in inspections across a range of sites to check they have the right controls in place to manage electrical risks (09 November 2020).  More...

COVID-19 update – OFSC resuming victorian audits
The Victorian Premier, Daniel Andrews, has announced an easing of restrictions across Victoria, with the latest of those due to commence from 8 November 2020. From this time, Victorians are able to undertake intrastate travel, with no restriction on the number of workers on building sites, the number of sites attended, or any requirement for a permit to travel for work.  More...

WorkSafe will examine Ambulance Victoria bullying and harassment
WorkSafe Victoria will examine if employees of Ambulance Victoria are at risk after widespread claims of bullying, sexual harassment and abuse within the service. Professionals Australia and the Victorian Ambulance Union have called on the state's health and safety regulator to pursue claims of "bullying and harassment of staff by senior managers" (08 November 2020).  More...

Published – articles, papers, reports

Review of the Firefighter Provisions of the Safety, Rehabilitation and Compensation Act 1988
Attorney-Generals’ Department: November 2020.
The purpose of this review (the review)was to examine the scientific evidence to determine if additional diseases should be included on the list of prescribed diseases, whether the qualifying periods remain appropriate or should be reduced and if the firefighter provisions should be extended to include volunteer firefighters.  More...

Model WHS Act cross-comparison table
Safe Work Australia: 09 November 2020.
The model WHS Act cross-comparison table summarises the similarities and differences between the model WHS Act and the WHS Acts of the jurisdictions that have adopted the model WHS Act.  More...

Safe Work Australia fatality statistics
As at 5 November, there have been 140 Australian workers killed at work in 2020. 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, go to the Safe Work Australia Work-related fatalities webpage).

In practice and courts

Comcare: Emerging evidence alerts
An alert highlighting the latest research on the health benefits of work, recovery at work, return to work, and work health and safety issues.  More...

GHS 7 transition – updates to the model WHS Regulations amendment
Safe Work Australia has updated the model Work Health and Safety Regulations (Hazardous Chemicals) Amendment 2020 and explanatory statement for the transition to GHS 7. Australia will begin a two-year transition to GHS 7 from 1 January 2021. The versions published on 5 November 2020 should be used in place of the original published on 28 August 2020 in all cases. These updated amendments will be inserted into the model WHS Regulations from 1 January 2021.  More...

Safe Work Australia: Guidance to help businesses navigate the transition to GHS 7.
Australia will begin a two-year transition to the Globally Harmonized System of Classification and Labelling of Chemicals Revision 7 (GHS 7) on 1 January 2021. Safe Work Australia has published a dedicated GHS 7 web page and suite of information sheets. These information sheets provide details about classification and labelling requirements for workplace hazardous chemicals, and the duties of manufacturers, importers, suppliers and end users.  More...

Product Safety: Make sure your quad bikes meet the new safety standard
If you sell quad bikes in Australia, you will soon need to make sure your quad bikes meet certain requirements of the US or EU quad bike standards and have additional information on them to comply with the new safety standard. Reminder: Operator protection devices and minimum stability requirements will be mandatory from October 2021.  More...

NTC: Australian Code for the Transport of Dangerous Goods by Road and Rail (Edition 7.7)
The Code can be used from 1 October 2020 and is compulsory from 1 October 2021. Until then, either the Code edition 7.6 or the Code edition 7.7 can be used. The Code is an important technical resource to help Australia’s transport and logistics industry to operate safely when carrying dangerous goods.  More...

Asbestos Awareness Week November 23 – 29 2020
If a building (workplaces, offices, hospitals, homes, etc) was built or renovated prior to 1990, there is a good chance it has some asbestos. The theme for 2020 is ‘Asbestos lurks in more places than you’d think’ and will be supplemented with the sub-theme ‘before you start, be aware’. A campaign pack has been developed which provides a range of template materials, social tiles and graphics for organisations and individuals to use.

NSW

WCC: On Appeal Issue 11: November 2020
18 November 2020 - Issue 11 – 2020 is a summary of October 2020 Presidential and Court of Appeal decisions.  More...

WCC: Legal Bulletin No. 70 - 13 November 2020
13 November 2020 - Legal bulletin No.70 issued 13 November 2020 is now available

WCC: Towards the PIC - Edition 5 November 2020
12 Nov 2020 - Towards the PIC Edition 5 - November 2020 has been released. This edition includes details on: - Reference Groups Established for Ongoing Stakeholder Engagement - Speaking Engagements with the Legal Profession - New Frequently Asked Questions.  More...

Centre for WHS: Real-time silica detection – commencing December 2020
The research will identify existing technology or create new technology that can be used in the design and build of a RCS detection device. Phase two will now focus on expediting the larger monitor to market: Commercialisation of fixed and transportable unit Completion date: December 2021: Delivery of a market ready, transportable real time RCS detection unit and accessories. See more here, here and here.

Centre for WHS: The ageing demographic of the Australian workforce: Prevention of work health and safety harm
The Centre for WHS is interested in research that will provide greater understanding of how to prevent psychological and physical harm among older worker. Applications for the EOI close 28 Janurary 2021.  More...

SIRA consultation: Regulatory requirements for workplace rehabilitation service provision in NSW personal injury schemes
This consultation is seeking input from stakeholders on the NSW policy and framework underpinning the approval, engagement and performance of workplace rehabilitation providers. Consultation period: 08/10/2020 9 to 20/11/2020.  More...

SafeWork NSW: General diving work – qualifications
The newly issued an exemption for the general diving work qualifications requirements of clause 171(1) of the Work Health and Safety Regulation 2017. This exemption is granted until 31 December 2022. People who are qualified under AS 4005.2 – 2000 will need to complete three additional units of competency by 31 December 2022 to be legally qualified to undertake general diving work in NSW.

NSW resources regulator: Four mining compliance priorities
The Resources Regulator has published its July - December 2020 Compliance priorities document which sets out the key compliance priorities for the next six months. Publishing this document serves to increase transparency, community and industry confidence in regulatory activities and increase levels of voluntary compliance.
Between July and December this year the Regulator aims to complete four compliance priorities targeting: Respirable dust (revision to the exposure standards); Progressive rehabilitation; Subsidence management and Non-reporting of incidents.

icare extends current arrangements with providers
Deeds with workplace rehabilitation, medico-legal and investigation providers to deliver services to icare Workers Insurance will be extended to 30 June 2021.  More...

Queensland

WorkSafe Qld: Worker injured in side-by-side vehicle rollover
In September 2020, a worker was seriously injured when the side-by-side vehicle he was using at an industrial workplace overturned. Operating side-by-side vehicles can pose a number of risks to drivers and passengers (18 November 2020).  More...

WorkSafe Qld: Mobile concrete placing boom stability
The purpose of this safety alert is to highlight the need to follow the manufacturer's operating instructions, provide safety guidance for workers, owners and employers (17 November 2020).  More...

WorkSafe Qld: Dead trees and working solo remotely are a dangerous mix
The person conducting the business or undertaking must manage risks associated with vegetation burns. Risk management starts with a commitment to health and safety from those who manage the business. Managing work health and safety risks is an ongoing process and involves four steps (13 November 2020).  More...

WorkSafe Qld: Worker seriously injured after fall from roof
The worker was employed by a contractor engaged to replace roof sheeting. In managing the risk of falls, the WHS Regulation requires specific control measures to be implemented, where it is reasonably practicable to do so (12 November 2020).  More...

WorkSafe Qld: Worker injured after angle grinder ‘kick back’
Work health and Safety (WHS) legislation imposes duties on designers, manufacturers, importers and suppliers to ensure plant such as multi-cutters and angle grinders are, so far as is reasonably practicable, without risk to health and safety. Managing WHS risks is an ongoing process. Risk management involves four steps (09 November 2020).  More...

Excavator access ladder causes foot injury | Business Queensland
06 November 2020 | Document number: 382
Coal Mine Worker's foot trapped in Excavator Access Ladder
Industry: Coal mines, Metalliferous mines
Subject Equipment failure or modifications, Infrastructure failure or damage, Plant failure or damage.  More...

Victoria

WorkSafe Victoria publications
Safety Soapbox November 2020 – 18 November 2020

Independent review of Dangerous Goods Act and Regulations: Submissions sought
The Review is considering contemporary issues and challenges in the management of dangerous goods including emerging risks and issues and their impact on the safety of people and property. The Terms of Reference, the Consultation Paper and the list of questions can be downloaded from this page of the Engage Victoria website. The closing date for submissions is 30 November, 2020. 

ESV: Licensing lineworkers and CPD for electrical workers
ESV will license lineworkers from 1 January 2021. As part of the development of the new licensing regime, ESV has released a regulatory impact statement and the associated regulations for consultation.
Information on making a submission as part of the consultation process on either licensing or CPD, may be found here. We will be accepting submissions until September 25.

ESV: New standards for LPG cylinder valves and AS/NZS 5601
On 1 October 2020, Standards Australia published updated gasfitting standards compromising of:
Amendment 4 to AS/NZS 5601.1 Gas Installations – Part 1: General installations (AS/NZS 5601.1), and 
Revision of AS/NZS 5601.2 Gas Installations – Part 2: LP Gas installations in caravans and boats for non-propulsive purposes (AS/NZS 5601.2). ESV and the VBA are hosting free webinars from 17 November to 1 December covering the above changes (11 November 2020).  More...

Cases

DJVD and Comcare (Compensation) [2020] AATA 4614
COMPENSATION – determination to cease liability for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant continues to suffer the effects of the compensable injuries – injury affecting cervical spine – major depressive disorder – whether applicant’s physical symptoms a result of underlying degenerative change – whether applicant’s psychiatric condition continues to be contributed to, to a significant degree, by her employment – decision under review set aside and substituted.
Safety, Rehabilitation and Compensation Act 1988 (Cth).

The Executor of the Estate of the Late DMLC and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 4588
COMPENSATION – compensation for injuries resulting in death – prescribed child – meaning of receiving full-time education – significance of formal education status – where Ms A has a medical condition which prevents enrollment in a full-time course load – where Ms A enrolled in only subject in the relevant period – history of Ms A’s engagement in course work – where Ms A engaged in full-time education within the limitations of her medical condition – where Ms A engaged in no other activities than her education – decision set aside and remitted.
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) ss 4, 17.

Gauld v Woodall-Duckham Ltd & Ors [2020] NSWDDT 10
PROCEDURE − case arising out of asbestos exposure during employment many decades ago − stale statement of claim − whether court should exercise its power to extend time for service − legal representatives experienced difficulty in ascertaining the relevant workers compensation insurer due to passage of time − no deliberate decision by plaintiff or legal representatives to delay service of originating process − whether there would be prejudice to the estate of the deceased plaintiff if the extension of time is not granted − whether there would be prejudice to the defendant if application is granted.

Bauer Media Pty Ltd v Khedrlarian [2020] NSWCA 288
TORTS — negligence — breach of duty — provision of safe system of work — precautions against workplace injury — adequacy of particularisation of precautions — evidence of whether precautions would obviate risk.

SafeWork NSW v ll Pastaio Pty Ltd [2020] NSWDC 677
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 – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – worker’s arm entangled in moving parts of mixing machine – safety interlock deliberately bypassed – failure to use appropriate guarding and safety mechanisms – absence of adequate risk assessment – failure to review and consult relevant machine operation manuals – failure to provide sufficient information, instruction and training to workers on machinery and safety guards – absence of adequate supervision.

Jerak v Dr Lazarus & Ors [2020] VSC 729
JUDICIAL REVIEW – workers compensation – medical panel – 0 per cent whole person impairment assessed by the panel – Dr Lazarus member of panel and previously engaged to examine the plaintiff – breach of s 537(8) of Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) due to failure to preserve impartiality and independence – breach of s 537(8) is not cured by s 540 – jurisdictional error – opinion set aside – remitted to differently constituted panel – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 – Masters v McCubbery & Others [1995] VICSC 209; [1996] 1 VR 635 – Ryan v The Grange at Wadonga Pty Ltd & Ors [2015] VSCA 17 – WIRC Act s 56, 311, 312, 537, 540 – Accident Compensation (General Amendment) Act (No 64 ) 1989 – Accident Compensation (Workcover) Act (No 67) 1992 s 63(5).
PROCEDURAL FAIRNESS - application of AMA guides – Chapter 2 & 8 – no failure to resolve disparity as to underlying cause of eye injury – medical panel acted in accordance with the guides and its obligation of procedural fairness – HJ Heinz & Anor v Kotzman & Ors [2009] VSC 311– American Medical Association guides to the evaluation of permanent impairment (Fourth Edition).

Dourley v Australian Urethane & Styrene [2020] VMC 26
– workers compensation – accepted lumbar spine injury – termination of weekly payments of compensation beyond 130 weeks – no current work capacity – current work capacity - suitable employment – alleged failure to make reasonable efforts to return to work - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss. 3, 10(b), 111-116, 163(1), 266(1). 

Prosecution Result Summaries and Enforceable Undertakings
Tyan Construction Pty Ltd
Ringwood Magistrates’ Court - Occupational Health and Safety Act 2004 Section 26(1)
Outcome12 November 2020.

Legislation

CASA ADCX 013/20 - Repeal of Airworthiness Directives AD/BAe 146/42 Amdt 1, AD/BAe 146/92, AD/BAe 146/110, AD/BAe 146/114, and AD/BAe 146/130
19/11/2020 - This instrument repeals five Civil Aviation Safety Authority airworthiness directives (ADs) that are no longer required. The ADs relate to inspection and rectification or maintenance of specified aircraft or aeronautical products.

NSW

Bills revised following amendment in Committee – 20 November 2020
Bushfires Legislation Amendment Bill 2020
Mandatory Disease Testing Bill 2020

Bills passed by both Houses of Parliament
Bushfires Legislation Amendment Bill 2020

Queensland

Subordinate Legislation as made - reminder
Transport Legislation (COVID-19 Emergency Response) Regulation (No 2) 2020 (Qld)
This Regulation is made under the COVID-19 Emergency Response Act 2020, Rail Safety National Law (Queensland) Act 2017, Transport Infrastructure Act 1994, Transport Operations (Marine Safety) Act 1994. The policy objectives of the Regulation are to provide financial relief to commercial operators in state-managed boat harbours and provide a framework that will enable exemptions from requirements about certain marine authorities. The Regulation will also extend the expiry of a transitional regulation that preserves certain Queensland-specific definitions under national rail safety legislation. The Regulation will expire on 31 December 2020.

Victoria
Date of commencement: 12 November 2020
Road Safety and Other Legislation Amendment Act 2020 (Vic)
Sections 1-13 of this Act came in by forced commencement on 12 November 2020 s. 2(2)
Act Number: 6/2020
Victorian legislation can be accessed here.

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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