New Rail Safety Laws Commenced on 20 January
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
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:
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
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.
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