Australia: Work Health & Safety - What's News - 5 August 2014

In the media

BHP ordered to pay record compensation for Newcastle steelworks asbestos case
BHP Billiton has been ordered to make a record $2.2 million payout to a man who was exposed to asbestos. The damages awarded are the highest ever awarded [by the tribunal] in NSW and it's the first time BHP has been ordered by the Dust Diseases Tribunal to pay compensation to a former employee who was exposed to asbestos as their Newcastle steelworks (31 July 2014). More...

Paspaley Pearling charged by work safety watchdog over pearl diver Jarrod Hampton's death
A two-year investigation into the death of a pearl diver off Western Australia's Kimberley coast has culminated in a criminal charge against the company, Paspaley Pearling (31 July 2014). More...

Air transport industry reviews safety procedures after MH17
Air transport leaders have been meeting in Canada to review air safety since the shooting down of MH17. The industry wants better intelligence sharing between governments so airlines can make accurate and timely decisions about which routes are safe to fly (30 July 2014). More...

Mr Fluffy asbestos: Commonwealth ignored advice to shut down company in 1960s
The Commonwealth was warned to shut down the Mr Fluffy asbestos insulation company in 1968, but it continued to operate for another decade, documents have revealed. A report from the occupational health department recommended the federal government shut down Mr Fluffy because "safety measures employed were against best public health practice" (31 July 2014). More...

Company directors push for stronger protections from legal action
Australia's corporate boardrooms are pushing for greater protection from investor lawsuits and criminal prosecution. Most issues concerning directors' liability are not in that legislation, they're at the state government level - things dealing with environmental law, occupational health and safety (31 August 2014). More...

Orica fined $768,000 over chemical spills and safety breaches in NSW
The chemical company Orica has been fined $768,000 over a series of chemical spills and safety breaches at two of its sites in New South Wales (28 July 2014). More...

Latest statistics show quad bike deaths may be dropping
There's a hope the rate of deaths from farm accidents involving four wheel motorbikes, known as ATV's, or quad bikes, may be starting to decline (25 July 2014). More...

Federal Court decision on damages means sexual harassment litigation 'more likely'
Employees are more likely to litigate over sexual harassment at work and be in line for bigger damages awards, following a landmark decision. Typically courts have awarded general damages of $12,000 to $20,000, which was much lower than damages for similar cases such as workplace bullying (23 July 2014). More...

Farmers making safety a priority
Almost 9,500 NSW farmers have invested in safety improvements through a WorkCover NSW program that aims to improve safety and productivity in the sheep and beef cattle farming industry. This program was undertaken following 5,465 injuries and illnesses, including seven fatalities within the industry over the three years to July 2012 (25 July 2014). More...

Driller left wheelchair-bound by incorrect drilling techniques
Ineffective risk management programs have been blamed for a drill rig accident which left a 26-year old man with permanent spinal injuries (25 July 2014). More...

Blood borne virus consultation
The Pharmacy Board of Australia (PBA), with the 13 other national boards of the Australian Health Practitioner Regulation Agency (AHPRA) is consulting on draft guidance for health practitioners infected with a blood-borne virus. The AHPRA said a number of national boards had received feedback from employers, practitioners, members of the public and board members that there was a need for this (24 July 2014). More...

The health dangers of fracking exposed
With massive reservoirs of oil and gas trapped in the rocks, the oil industry is eager to get fracking, and governments around the world are being pressured to allow it to go ahead without the permission of the owners of the land. US evidence shows related deaths, a soaring fatality rate and widespread over-exposure to lung wrecking, cancer-causing dust, has raised seriously unhealthy questions Hazards July 2014 Chemicals, dust and deaths and the new rush for oil and gas.

Charges laid in relation to ACT workplace fatality
Charges of Reckless Conduct, a Category One offence, have been laid under the Work Health and Safety Act 2011, against a company and a worker in relation to maintenance of a concrete boom, which was undertaken in NSW. These are the first such charges under the WHS legislation anywhere in Australia (23 July 2014). More... More...

SafeWork SA: Prevention is better than prosecution
Prosecutions arising from unsafe work practices have been handed down by the Industrial Court. Bellard Proprietary Limited pleaded guilty of failing to maintain a safe workplace and has been fined $100,000 over a teenager's fall down a lift shaft on his first day of work (23 July 2014). More...

Published – articles, papers, reports

OSH Legal resources Handbook
Asia Monitor Resource Centre (July 2014)
A guide to occupational injuries and disease in Asia, supplemented with case studies, it aims to be a hands-on manual and provide an overview of the working of the law and its implementation. Country reports from 10 countries are included: from South Asia, Bangladesh, Pakistan and India; from East Asia: China, Japan, and Hong Kong; and from Southeast Asia: Cambodia, Indonesia, the Philippines and Thailand. More...

Safe Work Australia Strategic Plan 2013-2016
The Safe Work Australia Act 2008 requires that Safe Work Australia prepare a strategic plan at least once every three years (25 July 2014). More...

Safe Work Australia Operational Plan 2013-2014
Safe Work Australia is required to prepare an operational plan for each financial year. The plans include the activities that are to be undertaken by Safe Work Australia in performing its functions (25 July 2014). More...

In practice and courts

New Comcare CEO and SRCC Chair announced
On Tuesday 22 July, the Coalition Government announced the appointment of Ms Jennifer Taylor as the next Chief Executive Officer of Comcare and Mr Barry Sherriff as the next Chair of the Safety, Rehabilitation and Compensation Commission (SRCC) (28 July 2014). More...

Global Worker watch online: worker fatalities and injuries
A new online mapping project at the University of Texas School of Public Health, the Global Worker Watch is a living map of worker fatalities and catastrophes from around the globe. The Global Worker Watch site also offers visitors its data in the raw as well as a gallery of recent and historical photos of workers from around the world (22 July 2014).

VWA: Safety Alert: Danger of freestanding masonry walls
Advice for employers (and others) on managing risks associated with freestanding masonry walls on construction sites. Unstable or inadequately braced masonry walls expose workers and members of the public to a risk of death or serious injury (July 2014). More...

VWA: new Guide for Employers: preventing and responding to work related violence
A new guide can be accessed from the Occupational Violence topic information page on the VWA website. In addition to this new guide, older guidance on client initiated and external violence and additional information 'for organisations where jobs that require face-to-face contact place workers at risk of exposure to occupational violence' is available from this page (July 2014).

VIC: Safety Soapbox (24 July 2014)
The last edition with the leading article written by Construction Manager on what to expect from Workplace Inspection Reports. There were 43 incidents were notified to the VWA for the period July 3 – 16 2014. More...

QLD Workplace Health and Safety: Incident Alerts after two fatalities in one week, Workplace Health and Safety Queensland issued two alerts following fatal incidents with required regulation and safety measures require. One worker died after falling into a two metre deep trench which collapsed while being excavated to replace a sewer line and the second Incident Alert where a worker died after falling 5.3 metres from a roof of an industrial shed to the concrete floor below. More... More...

Australian Safety standards

DR AS 1735.1:2014
Lifts, escalators and moving walks - Part 1: General requirements
Standards Australia

DR AS/NZS 1158.4:2014
Lighting for roads and public spaces - Part 4: Lighting of pedestrian crossings
Standards Australia

Public Comment

Attorney-General's Department Consultation: toxic chemicals of security concern
Australian businesses are invited to give views on options to reduce the risk of toxic chemicals being used in terrorist attacks in Australia. Submissions in response to the Regulation Impact Statement are available at: The RIS is relevant to importers, distributors, transporters, universities, hospitals, local councils, farmers, pest controllers, hardware stores and any other business that manufactures, handles or uses any of the 84 toxic chemicals of security concern. Submissions close on27 August 2014.


Accord Australasia Limited and Director, Chemicals Notification and Assessment Scheme [2014] AATA 504
Imposition of conditions of use - Whether Respondent has power to impose condition of use - Whether reasonable for the Respondent to find that, when used in cosmetics, these chemicals may pose an unreasonable risk to health, safety and the environment - Chemicals pose an unacceptable risk to human health and/or the environment - Appropriate to limit the use of the chemicals to concentrations known to be safe - Setting of volume limits not justified - Definitive data required to justify the application of specific conditions - Decision under review varied - Additional conditions removed - Further assessment of the chemicals recommended. More...

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
ADMINISTRATIVE LAW – Civil Aviation Safety Authority – whether the Administrative Appeals Tribunal was bound to apply the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 – whether the Tribunal erred in not requiring compliance with the rule in Browne v Dunn (1894) 6 R 67 – whether notice was given in any event satisfying the rule in Brown v Dunn and affording the appellant procedural fairness. EVIDENCE – rules of evidence may provide guidance to administrative tribunal – Administrative Appeals Tribunal not bound by the rules of evidence Held: Appeal dismissed with costs. More...

Cockburn v The Trust Company Ltd (No 2) [2014] NSWDC 119
Verdict and judgment in favour of the plaintiff in the sum of $402,973.25 against the second defendant. TORTS - Negligence - driver-contractor injured when foot went through hole in grate - duty of care - adverse inference insufficient to establish liability of first defendant - second defendant occupier of roadway sufficient to establish duty of care - leasehold arrangements - used area in course of business - action and words of forklift driver working on second defendant's premises - admission made with authority - no contributory negligence on part of plaintiff - unexpected problem - hole in surface otherwise sealed and even - causation - hole there long enough to establish case in negligence - damages - non economic loss - poor prognosis for recovery - extensive impact of plaintiff's life - 30% of a most extreme case - proof of negligence - credibility of evidence - plaintiff a witness of truth - surveillance film consistent with medical evidence, good work history and plaintiff working despite pain. More...

Dunning v BHP Billiton Limited [2014] NSWDDT 3
There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57. Dust diseases; mesothelioma; hether hierarchical approach, giving priority to documents, to resolution of factual issues dictated by authority; approach to the assessment of witnesses; whether plaintiff was exposed to asbestos; whether evidence may given by non-expert identifying asbestos; whether injury to plaintiff employee foreseeable; state of knowledge, actual and constructive, in 1979 of defendant concerning health risks associated with exposure to asbestos; identity of person within corporate defendant who had actual knowledge of health risks from exposure to asbestos and whether defendant could dictate identity of that person; whether on foreseeability of injury defendant could rely on NHMRC standard to the exclusion of all other learning; whether defendant could rely on advice that might have been given by a reasonably competent occupational hygienist in 1979; whether defendant breached duty of care to plaintiff; whether on breach of duty defendant could rely on NHMRC standard; whether reasonable practical alternatives were available in blast furnace; whether plaintiff's injury caused by defendant's negligence (consideration of the cumulative effect mechanism of causation of mesothelioma); whether defendant in breach of s41 of Factories, Shops and Industries Act 1962; on damages, whether plaintiff being in remission Malec v Hutton discount should be made for possibility that mesothelioma may not recur; whether plaintiff's damages should exclude aggravation or exacerbation of his depressive condition resulting from the litigation. More...

Baker v Prescare (Corinda) [2014] QDC 159
Employment - negligence or breach of contract - whether unsafe system of work or inadequate training, instruction or warnings - pre-existing constitutional defects in plaintiff's shoulders - whether any knowledge possessed by defendant of defects - quantum (in absence of much substantive evidence). More...




G20 (Safety and Security) Complementary Act 2014

Legislative Instruments

CASA 158/14 - Direction — number of cabin attendants in Boeing 737-800 series aircraft (Qantas Airways Limited)
This instrument allows Qantas Airways Limited to operate an Australian registered Boeing 737-800 series aircraft engaged in regular public transport, or charter, operations if it carries one cabin attendant for every 50 passenger seats or part of that number (30 July 2014). More...

Food Standards (Proposal P1017 – Criteria for Listeria monocytogenes – Microbiological Limits for Foods) Variation
The Board of Food Standards Australia New Zealand gives notice of the making of this variation under section 92 of the Food Standards Australia New Zealand Act 1991 (29 July 2014). More...

Food Standards (Proposal P1014 – Primary Production & Processing Standard for Meat & Meat Products) Variation
This instrument amends the Food Standards in the Australia New Zealand Food Standards Code. State and Territory laws govern the slaughter and processing of animals for human consumption, including of animals in the wild, and the preparation, packing, transportation or storage of meat or meat products. These laws require persons involved in such activities to comply with the listed Australian Standards (29 July 2014). More...

Australia New Zealand Food Standards Code — Standard 1.4.2 — Maximum Residue Limits Amendment Instrument No. APVMA 7, 2014
This instrument amends the Australia New Zealand Food Standards Code - Standard 1.4.2 - Maximum Residue Limits (Australia Only) to include or change maximum residue limits pertaining to agricultural and veterinary chemical products (28 July 2014). More...

Work Health and Safety Exemptions (Diving by members of the Australian Defence Force) (July 2014)
This instrument grants an exemption from compliance with sub-regulations 171(a) and 174(a) of the Work Health and Safety Regulations 2011 to two classes of persons, namely, members of the Australian Defence Force ('the ADF') who carry out, or supervise general diving work ('ADF divers' and 'ADF dive supervisors' respectively) (22 July 2014). More...

New South Wales

Proclamations commencing Acts
Road Transport Amendment (Licence Disqualification on Conviction) Act 2013 No 57 (2014-479) — published LW 25 July 2014.

Regulations and other miscellaneous instruments

Road Transport (Driver Licensing) Amendment (High Performance Vehicle Scheme) Regulation 2014 (2014-465) — published LW 25 July 2014.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Michael Selinger
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