Australia: Work Health & Safety - What's News - 12 April 2016

In the media

CFMEU in court for allegedly shutting Barangaroo site
The NSW Branch of the CFMEU and ten of its officials, including State Secretary Brian Parker, are facing court over allegations of unlawful industrial action orchestrated in support of a CFMEU delegate who pushed and verbally abused a Lend Lease worker (06 April 2016).  More...

ICA wants to challenge RSRT in the High Court
Contractors' lobby seeks cash to tackle 'safe rates' RSRO on constitutional grounds. Private contractor group Independent Contractors Australia aims to pit the Whitlam Government's Prices Justification Act 1973-1974, and the referendum rejecting federal control over pricing that led to it, against the Road Safety Remuneration Act in a High Court challenge (07 April 2016).  More...

Govt wants legislation to delay RSRO start
The transport industry has welcomed the news that the federal government will introduce legislation to delay the start of the Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (RSRO) to January next year (05 April 2016).  More...

Truckie acquitted over fatal far north Queensland crash that killed British tourist
Yesterday, a Supreme Court jury in Cairns found Carlos Mediero Martinez, 51, not guilty of dangerous operation of a vehicle causing death. The second trial led to a conviction, however, that was later overturned and a retrial ordered because the jury had been given transcripts it should not have been privy to (06 April 2016).  More...

SafeWork Australia: What makes well-designed government policy?
Safe Work Australia has collaborated with a range of Commonwealth agencies to develop a framework that embeds work health and safety considerations into the policy development cycle (31 March 2016).  More...  More....

SA: Unguarded machine costs Gambier Earth Movers $111,000
Gambier Earth Movers were found guilty of failing to comply with providing a primary duty of care and for failing to comply with their health and safety duty under the Work Health and Safety Act 2012 (SA), thereby exposing an individual to a risk of death or serious injury or illness. The initial fine of $185,000 was reduced in recognition of the employer's early guilty plea and the gesture of a partial reparation made to the injured worker (31 March 2016).   More...

Frankipile and Vibro-pile fines both increased to $750,000 after DPP appeal
Two companies were fined a total of $1.5 million in the Supreme Court last week over the death of a worker who fell 40 metres when a piling rig collapsed at a Melbourne construction site in 2011. A guilty verdict was found in 2015 with both businesses convicted and fined a combined total of $450,000, but following an appeal from the DPP, the Court of Appeal significantly increased the fine to $750,000 for each business (31 March 2016).  More...

CFMEU facing court over improper behaviour at Bendigo Theatre Project
The CFMEU and two of its officials, Nigel Davies and Alex Tadic, have been put before the Federal Court over allegations they contravened right-of-entry laws at a Bendigo construction site (30 March 2016).  More...

Campaign urges farmers to turn tables on deadly toll
Farmers are far more likely to die at work than any other Victorian worker.  That simple but shocking fact is at the heart of a compelling new public awareness campaign to be launched next week (29 March 2016).  More...

Comcare: Are you GHS ready
A new international system of chemical labelling and classification will be a focus of forums being held across Australia by federal work health and safety regulator Comcare (31 March 2016).  More...

Death of outback SA nurse prompts Royal Flying Doctor Service to review safety policies
The south-eastern section of the Royal Flying Doctor Service (RFDS) says it will review its own health and safety policies after the death of a nurse working alone in remote South Australia (30 March 2016).   More...

Chair collapse which injures teacher sparks legal action
A Western Australian shire is ordered to pay the Education Department almost $220,000 after a cheap self-assembled chair collapsed and injured a visiting teacher (30 March 2016).   More...  More...

Safe Work Australia partners with Good Design Australia to recognise best practice design
Safe Work Australia is partnering with Good Design Australia to present the Safe Work Australia Award for Good Design as part of the 2016 Good Design Awards (30 March 2016).  More...

Engineering firms fined $1.5m over worker's death at Southbank
Two national engineering companies have been fined $1.5 million for criminal safety violations after a worker fell 40 metres to his death in Melbourne's Southbank precinct (28 March 2016).  More...

Published – articles, papers, reports

WorkSafe Victoria Safety Soapbox 17 March 2016
See the issue hereSafety Soapbox 17 March 2016.

In practice and courts

Controversial RSRO changes stopped
The Road Safety Remuneration Tribunal was set to introduce mandatory minimum charges for transport contracts aimed at improving safety and therefore preventing heavy vehicle fatalities. Due to take effect on the April 4 2016, the changes would bring owner-drivers in line with the union award requirements and could see fines of $54,000 if drivers failed to comply (05 April 2016).   More... 

Two reviews of the Road Safety Remuneration System released and consultations to commence
The Department of Employment will be undertaking consultations with key industry participants and key stakeholders during April 2016 to discuss the findings of the reports and options for reform.  More...

Federal Court of Australia stays commencement of the Contractor Driver Minimum Payments RSRO
On 1 April 2016 the Federal Court of Australia ordered that the Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 be stayed until further order of the Federal Court (03 April 2016).  More...

Decision on the draft variation to the Contractor Driver Minimum Payments RSRO 2016 published
The Road Safety Remuneration Tribunal (the Tribunal) has decided not to vary the Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (2016 RSRO). The effective date of the 2016 RSRO therefore is 4 April 2016.  More...

Comcare Alert 17: Angle Grinders
This alert highlight the risks associated with removing guards and using incorrect discs on angle grinders (08 April 2016).   More...

FWC: New & updated approved forms published
Fair Work Commission President, Justice Ross, has approved a new form for New Approaches, and an update to the application form for right of entry. The forms came into effect on 1 April 2016 (06 April 2016).   More...

Every Commonwealth WHS code revoked, remade
The 23 WHS codes of practice operating in the Commonwealth jurisdiction, which were revoked and remade on Wednesday, commence today. While the content of most codes remain unchanged, 17 include technical amendments.  More...

NSW Parliament: Inquiries receiving submissions
Inquiry into Driverless Vehicles and Road Safety, closes 11 April.

Workcover Queensland: Onsite traffic management self-assessment tool
Workplace Health and Safety Queensland has published a self-assessment tool that enables businesses to review the effectiveness of their onsite traffic management practices. The easy to use tool is designed to prompt ideas for traffic management improvements by facilitating consultation between site management, safety advisors, and health and safety representative (23 March 2016).

Department of Mines safety alerts

No 325: Contract coal mine worker suffers cardiac arrest
Fitness for duty; Human factors (02 April 2016).

No 153: Handling and management of surface trailing cables (update to Safety Bulletin 6)
Falling material or objects; Infrastructure failure or damage; Plant failure or damage; Coal mines (29 March 2016).

No 323: Worker injured by a discharging fire suppression cylinder
Blasts; Equipment failure or modifications; Flying material or objects; Gases; Pressure storage or release; Coal mines; Metalliferous mines; Petroleum and gas (29 March 2016).

National Code of Practice for Precast Tilt-Up and Concrete Elements in Building Construction
SafeWork Australia: 31 March 2016
The National Code provides practical guidance for employers and employees on ways to effectively manage the risks associated with using tilt-up and precast concrete elements in building construction.  More...

New Safety Standards

AS/NZS 60079.10.2:2016
Explosive atmospheres - Classification of areas - Explosive dust atmospheres.  Standards Australia AS/NZS 60079.10.2:2016.

AS/NZS 60079.29.2:2016
Explosive atmospheres - Gas detectors - Selection, installation, use and maintenance of detectors for flammable gases and oxygen Standards Australia AS/NZS 60079.29.2:2016.

Cases

Garriock v Football Federation Australia [2016] NSWCATAD 63
EQUAL OPPORTUNITY — indirect discrimination —on the grounds of a person's "responsibilities as a carer" — meaning of "condition or requirement" — identification of base group —was the base group required to comply with the condition or requirement.   More...

Fire Brigade Employees' Union v Fire and Rescue NSW re Senior Firefighter Loy [2016] NSWIRComm 1012
Firefighter – Fitness for duty – medical condition - firefighter permanently unfit for duty.  More...

CFMEU v BM Alliance Coal Operations Pty Ltd [2016] QSC 069
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – CONDUCT OF MINING OPERATIONS – MINE SAFETY – PARTICULAR CASES – where the Site Senior Executive (SSE) at a mine initiated a process to change the criteria for assessment for drug testing of workers – where a vote was put to the workers on the new criteria – where 45.66% of those eligible to vote voted in favour of the new criteria while 37.49% voted against – where s 42(7) of the Coal Mining Safety and Health Regulation 2001 (the Regulation) required the SSE to make "a reasonable attempt to establish the criteria for the assessment in agreement with a majority of workers at the mine" – where s 42(7A) of the Regulation provided that "[i]f the majority of workers at the mine disagree with the criteria for the assessment under subsection (7), the criteria for assessment stated in a recognised standard apply until an agreement is reached" – where the applicant sought a declaration that the new criteria for assessment were not lawfully established and that those contained in a recognised standard continued to apply – whether a majority of workers at the mine "disagreed" with the new criteria.  More...

Boorer v Brisbane City Council [2016] QIRC 035
INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - electrician called out for work in bad weather - fallen electrical wires at Council Depot - applicant said he could not access the site - could also not undertake any electrical work because of risks involved - applicant failed to advise supervisors of actual situation at Depot - electrical damage at site not rectified until workers attended the site two days later - Council alleged breaches of policy by applicant and serious hazard on site negligently left unresolved - application dismissed.  More...

DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
CRIMINAL LAW – Appeal – Conviction – Occupational health and safety – Duty to ensure safe workplace 'so far as reasonably practicable' – Duty to provide safe system of work – Duty to provide necessary induction, training, supervision – Collapse of pile-driving machine – Procedures for erection of machine not followed – Risk of collapse – Whether identified measures would have eliminated or reduced risk – Whether measures reasonably practicable – Whether duties of induction/training/supervision subject to 'reasonable practicability' qualification – Causation – Death of worker – Whether proof of causal connection required – Verdicts not unsafe – Leave to appeal refused – Occupational Health and Safety Act 2004 ss 20, 21, 23, 33(2).  CRIMINAL LAW – Occupational health and safety – Risk-based offences – Objective gravity – Occurrence of death or injury irrelevant to criminal liability – Little relevance to offence gravity – Directly relevant to impact on victims – Sentencing Act 1991 s 3. Sentence appeal – Vibro-Pile.  CRIMINAL LAW – Appeal – Sentence – Occupational health and safety – Failure to ensure safe system of work – Failure to provide necessary induction, training and supervision – Conviction after trial – Aggregate fine of $100,000 – Whether manifestly inadequate – Serious breaches – Significant safety risk – General deterrence – Victim's family affected as 'direct result' – Fine inadequate – Appeal allowed – Resentenced to fines of $250,000 (Charge 3) and $500,000 (Charge 4) – Occupational Health and Safety Act 2004 s 21, Sentencing Act 1991 s 3. Sentence appeal – Frankipile.  More...

Worksafe Victoria decisions

Orrcon Distribution Pty Ltd 006 702 067 30/03/2016
Crush injuries; Failure to provide information, instruction, training or supervision; Labour hire; Failure to provide a safe working environment Occupational Health and Safety Act 2004 21(1)&(2)(e) ; County Court.

Fountain Downs Pty Ltd 006 578 650 29/03/2016
Failure to provide a safe system of work; Falls/work at height offences; Failure to provide a safe working environment Occupational Health and Safety Act 2004 21(1)&(2)(a) ; Magistrates' Court.

Rowland & Associates Pty Ltd 077 566 324 29/03/2016
Supplier - offences by; Unguarded plant Occupational Health and Safety Act 2004 30(1)(a) ; Magistrates' Court.  More...

Legislation

Commonwealth

Marine Order 57 (Helicopter operations) 2016
AMSA MO 2016/3 Orders/Marine
07/04/2016 - This order provides for safe vessel helicopter operations, which includes the transfer of persons between a vessel and a helicopter and the loading or unloading of a vessel by helicopter.  More...

Civil Aviation Legislation Amendment (Part 101) Regulation 2016
SLI No. 27, 2016 - This Regulation amends the Civil Aviation Safety Regulations 1998, Civil Aviation (Fees) Regulations 1995, Civil Aviation Regulations 1988 and Transport Safety Investigation Act 2003 to align with International Civil Aviation Organization (ICAO) terminology, in particular by replacing the term 'unmanned aerial vehicle' (UAV) with 'remotely piloted aircraft' (RPA) (29 March 2016).  More...

Australia New Zealand Food Standards Code — Schedule 20 — Maximum residue limits Variation Instrument No. APVMA 3, 2016
This instrument amends the Australia New Zealand Food Standards Code - Schedule 20 - Maximum Residue Limits (Australia Only) to include or change maximum residue limits pertaining to agricultural and veterinary chemical products (05 April 2016).  More...

New South Wales

Regulations and other miscellaneous instruments

Passenger Transport Amendment (Driver Indemnification) Regulation 2016 (2016-166) — published LW 1 April 2016.

Queensland

Subordinate legislation as made

No 28 Disability Services Amendment Regulation (No. 1) 2016 – 01 April 2016 - Disability Services Act 2006.

No 29 Proclamation commencing certain provisions - 01 April 2016 - Work Health and Safety and Other Legislation Amendment Act 2015 - Part 2 of the Act amends the Electrical Safety Act 2002 to reinstate the Commissioner for Electrical Safety and re-establishes the Electrical Safety Education Committee and the Electrical Equipment Committee and is to commence on a day fixed by proclamation. Part 2 of the Act is to commence on 8 April 2016.

No 30 Queensland Building and Construction Commission Amendment Regulation (No. 1) 2016 – 01 April 2016 - Queensland Building and Construction Commission Act 1991 – to Clarifying that Builder – Low Rise and Builder – Medium Rise licensees cannot undertake higher risk fire protection work. 

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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Authors
Michael Selinger
 
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