Australia: Labour, Employment and Workplace Safety Legal Insight

Last Updated: 20 February 2013
Article by John Makris, Erica Elliott, Alice DeBoos, Courtney Fleming and Matthew Sier

New Rail Safety Laws Commenced on 20 January 2013
New harmonised rail safety laws commenced on 20 January 2013.

The new legislation is intended to make rail safety laws easier to comply with and enforce by making most legislative requirements uniform across all jurisdictions.

The new laws:

  • require all rail transport holders to ensure, so far as is reasonably practicable, the safety of their railway operations
  • impose obligations on:
    • designers, manufacturers, suppliers, installers and erectors of rail infrastructure and/or rolling stock
    • freight loaders and unloaders
    • officers of duty-holders
    • rail safety workers.
  • impose tough new penalties for noncompliance, which can be fines of up to AUD3,000,000 for corporations and AUD300,000 and/or five years imprisonment for individuals
  • provide that work health and safety obligations continue to apply to railway operations and that both must be observed
  • require duty-holders to comply with work health and safety laws, if they are inconsistent with the rail safety laws
  • provide that compliance with a rail safety duty is not a defence to a prosecution under the work health and safety laws
  • permit the regulator to revoke or suspend rail accreditations in certain circumstances
  • require private sidings to be registered
  • require non-rail safety workers who undertake activities on or in relation to rolling stock (such as loaders and unloaders) to comply with the relevant rail transport operator's safety management system, which will entail consultation and system synchronicity between those operators and non-operators' safety management systems
  • allow rail transport operators to appeal against accreditation-related decisions, statutory notice recipients to appeal against the notices and persons told to stop work by the regulator to seek a review of that decision.

The laws retain the controversial powers of the regulator to require people to undergo drug and alcohol testing, which has long been the subject of keen union interest.

Rail safety legislation will continue to be enforced in NSW by the Independent Transport Safety Regulator, although it will now operate as a branch office of a new national regulator which will be based in Adelaide.

Earthmoving Machinery Operators Relieved of Duty to Retrofit Costly Fall and Rollover Protection
WorkCover has granted earthmoving equipment managers and controllers an exemption from the requirement to ensure that the equipment is not used unless it is fitted with rollover (ROPs) and falling object (FOPs) protection.

Pre-exemption, the Work Health and Safety Regulation 2011 provided that all operator-controlled plant used to:

  • excavate
  • load
  • transport
  • compact
  • spread

earth, overburden, rubble, spoil, aggregate or similar material could not be used unless it was fitted with ROPs and FOPs.

The requirement did not apply to tractors, industrial lift trucks and machinery that weighed less than 1,500kgs and was not designed for a seated operator.

The requirement sparked controversy, particularly because of the expense involved in retro-fitting protective structures to existing machinery.

WorkCover exempted operators and managers from the FOPs and ROPs requirement on 21 December 2011 and the dispensation remains in place until 31 December 2014.

Operators and managers are, however, still required to generally assess risks associated with mobile plant and to ensure, so far as is reasonably practicable, that a suitable combination of operator protective devices is provided, maintained and used.

Court Dismisses WorkCover Charges Signed by Solicitor Rather Than Inspector
The District Court has dismissed charges brought by WorkCover on the basis that proceedings under work health and safety legislation can only be commenced by documents signed by an inspector.

In May 2010, an in-house lawyer for WorkCover signed charges as the solicitor representing an inspector.

The Defendant subsequently sought to have the charges dismissed because the solicitor was not authorised by the occupational health and safety legislation to commence proceedings.

On 29 November 2012, the District Court dismissed the charges after finding that WorkCover inspectors have personal responsibility for instituting proceedings that they cannot delegate, even to solicitors acting on their behalf.

The Court also found that previous convictions based on defective charges should be quashed.

WorkCover has appealed the decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

K&L Gates has been awarded a 2012 EOWA Employer of Choice for Women citation acknowledging our commitment to workplace diversity.

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