Australia: Work Health & Safety - What's News - 9 May 2016

In the media

Death wall sign co in liquidation
Melbourne sign company Aussie Signs has gone into liquidation three years after a freak accident where the collapse of a wall carrying its signage killed three people. The industrial accident resulted in a lengthy court case, and the company was fined $250,000 earlier this year for pleading guilty to an occupational health and safety act breach (05 May 2016)  More...

National Inquiry Report released today
The Australian Human Rights Commission and the Attorney-General, Senator the Hon. George Brandis QC, today will launch the report into employment discrimination against older Australians and Australians with disability, Willing to Work (02 May 2016) More...

PBS truck and dogs gain national networks
The National Heavy Vehicle Regulator (NHVR) has released Australia's first gazette Notice for Performance Based Standards (PBS) truck and dog combinations.  Minister for Infrastructure and Transport Darren Chester said the national network was a major step forward for modern, safer vehicles which would no longer need to obtain permits to travel on gazetted networks (05 May 2016)  More...

For more information see the National class 2 PBS level 1 and 2A truck and dog trailer authorisation notice 2016 (no.1) (PDF, 711KB) and the supporting Information sheet - National class 2 PBS level 1 and 2A truck and dog trailer authorisation notice 2016 (PDF, 798KB) (05 May 2016)

Electrician's death leads to massive fine for contractor
A big Australian contractor faces fines of hundreds of thousands of dollars over the death of an electrical contractor in Jurien Bay two years ago. EnergySafety recently charged Mr Maxwell's employer, NSW-based contractor Downer EDI under WA's electricity safety regulations and alleges that Downer failed to ensure the proper protection of Mr Maxwell (05 May 2016)  More...

Construction unionists escape $272,500 fine
Justice Flick fined Mr Kong $27,500 and Mr Bragdon, who is no longer with the union, $20,000, and penalised the CFMEU $225,000 for the "abusive and misleading" conduct and for breaching industrial laws by failing to show right of entry permits (02 May 2016)  More...

Engine fire in FIFO plane caused by inadequate repairs, ATSB finds
Inadequate repairs and inspection protocols were responsible for an engine fire that left a plane carrying fly-in, fly-out (FIFO) workers trailing flames across the Perth sky in 2014, according to the national aviation safety watchdog (02 May 2016)  More...

Cotton On has paid out close to $250,000 to a former employee
Talty was granted the judgement after sustaining a traumatic head injury in a workplace accident at a Cotton On warehouse. While Cotton On admitted liability and negligence, it had disputed the nature and extent of the injuries (02 May 2016) More...

CBA adviser 'mis-sold' income protection insurance
A new financial planning scandal is hitting the Commonwealth Bank, with one of its advisers accused of mis-selling trauma insurance instead of income protection (28 April 2016)  More...

Company fined $450,000 after teenager dies in forklift rollover
A farming company was last week prosecuted and fined $450,000 following an incident in which a 15-year-old boy was killed after the forklift he was driving rolled and crushed him (28 April 2016).  More...

'Potentially deadly mould' in Royal Hobart Hospital demountables making workers sick
Construction workers have developed respiratory illnesses after being exposed to "potentially deadly mould" at the Royal Hobart Hospital, the State Opposition has alleged (26 April 2016)  More...

ADF personnel seek PTSD treatment in secrecy to avoid 'career suicide', members say
Australian Defence Force (ADF) personnel are being treated in secret for post-traumatic stress disorder (PTSD) and other mental health conditions to avoid jeopardising their careers, according to serving and former members (26 April 2016)  More...

Published – articles, papers, reports

Opinion: Is Mandatory Drug Testing the Way to Go?
Whilst issues associated with drugs and alcohol on building sites have been acknowledged for some time, media reports suggesting that as many as one in five construction workers on the Gold Coast were recently found to be affected by illegal drugs highlight and underscore the extent of the problem.

In light of this, it is not surprising that testing for impairment due to alcohol or illicit substance abuse has become a significant topic of debate (03 May 2016)  More...

In practice and courts

WorkCover Queensland: Lifter Borer Boom failure
The purpose of this safety alert is to highlight the importance of regular maintenance and inspection of lifter borers and the need to follow the manufacturer's operating instructions. Date issued: 22 April 2016  Read more

WorkSafe Victoria: Safety Soapbox 29 April 2016
The 88 Reported Incidents include: 1 fatality, 32 lacerations, 22 near misses, 10 unknowns, seven electric shocks, four punctures, two burns, and one each of amputation, allergic reaction, dizziness, concussion and bruising  More...

Cases

Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64
INDUSTRIAL LAW – first and second appellants entered construction site – whether they exercised, or were seeking to exercise, rights of entry – first and second appellants did not have any rights under State law which they were entitled to exercise – whether primary judge was correct in finding the first and second appellants contravened sections 497, 500 and 503 of the Fair Work Act 2009 (Cth) – first and second appellants did not hold a State entry permit – first and second appellants did not contravene sections 497, 500 or 503 of the FW Act – third appellant not vicariously liable pursuant to section 793 of the FW Act – appeal allowed – declarations and penalties made at first instance set aside – application at first instance dismissed – whether orders should prevent payment of penalties by a third party considered but not decided. More...

Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) [2016] FCA 430
TRADE PRACTICES – misleading or deceptive conduct – representations made by prospective employer (respondent) to induce applicant to enter into contract of employment – representations as to future matters being that profits and sales in 2013 financial year were likely to meet or exceed profits and sales in 2012 and 2011 financial years, and that it was likely that for twelve months after March 2013 respondent would remain as profitable as previous two years – further representation as to respondent's lack of knowledge of matters rendering predictions unlikely – whether representations made – whether representations in trade or commerce – consideration of relevance of non-disclosure to establishment of pleaded case – whether reasonable grounds for predictions as to future matters – consideration of whose grounds need be reasonable in the context of representations made by a corporation – whether representation as to state of respondent's knowledge misleading or deceptive – no reasonable grounds for predictive representations – predictions misleading – representation as to state of respondent's knowledge not misleading or deceptive – representations relied upon by applicant and induced entry into contract of employment – consideration of correct approach to calculation of damages given multiple hypotheticals

CONTRACTS – whether contract of employment entered into on 8 April 2013 included oral term that respondent would meet cost of applicant's motor vehicle lease in addition to salary set out in written contract – proper interpretation of clause entitling applicant to 2.5 per cent of net profit of respondent – contract of employment did not include putative oral term – interpretation of net profit clause that applicant entitled to proportion of profit in 2013 financial year corresponding with length of her service in that year. More...

Comcare v Airservices Australia [2016] FCA 418
INDUSTRIAL LAW – occupational health and safety – admitted contraventions of ss 16 and 17 of the Occupational Health and Safety Act 1991 (Cth) – quantity of pecuniary penalty – appropriate considerations – seriousness of breach – deterrence – mitigating factors. More...

Transport Industry – General Carriers Contract Determination [2016] NSWIRComm 3
CONTRACT DETERMINATION – application to vary – principles to be applied – relevance of wage fixation principles – fair and reasonable conditions – relevance of consent or non-opposition of respondents – consent to division of proceedings into two stages – first stage to deal with non-rates issues – whether coverage of determination should be extended – whether rescission of another determination should be ordered – whether second determination of continuing practical effect – whether "purpose" clause should be included – whether principal contractors should provide a copy of the determination to each contract carrier engaged – whether a cartage rate schedule should be provided before work commences - whether compensation should be paid for time lost during repainting of vehicle – whether work time should include mandatory short fatigue breaks and time lost due to accident or breakdown – whether principal contractors should be obliged to develop drug and alcohol policies or programs –records to be maintained by principal contractors – whether a deeming clause should be included if records are not kept.  More...

Worksafe Victoria decisions

Ducon Pty Ltd  094 425 868  29/04/2016
Crush injuries; Failure to conduct a risk/hazard assessment; Failure to provide a safe system of work; Failure to provide information, instruction, training or supervision; Occupational Health and Safety Act 2004  26(1); Melbourne Magistrates' Court More...

Legislation

Commonwealth

Schedule 20 — Maximum residue limits Variation Instrument No. APVMA 4, 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 (02 May 2016) More...

Vehicle Standard (Australian Design Rule 43/04 – Vehicle Configuration and Dimensions) 2006 Amendment 3
This instrument amends Vehicle Standard (Australian Design Rule 43/04 – Vehicle Configuration and Dimensions) 2006 to specify general configuration and dimensional requirements for all road vehicles (Tabled HR and Senate 02 May 2016) More...

Queensland

Subordinate legislation as made – 29 April 2016
No 40 Building and Other Legislation Amendment Regulation (No. 1) 2016
Building Act 1975; Sustainable Planning Act 2009 - The  objective  of  the Regulation  is  to  repeal   the  following mandatory parts (MP) of  the  Queensland Development Code (QDC): 

MP 5.1 – Workplaces, which addresses suitable standards of health and safety for employees at particular workplaces. Since its introduction, the requirements of MP 5.1 have been incorporated  within Queensland's work health and safety laws.

MP 5.8 - Workplaces involving spray painting , which sets minimum requirements to safeguard  people  from  illness  or  injury  from  spray  painting  using  hazardous substances. Similar to MP 5.1, the requirements of MP 5.8 have been incorporated within Queensland's work health and safety laws since their introduction.

Victoria

Proclamations

No.  66: Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015
Assent: 1/12/2015 SG (No. 373) 1/12/2015 p. 1; Commencement: Ss 1-6 on 02/05/2016: SG (No. 114) 26/4/2016 p. 1 Not yet in operation: Ss 1-6: on 02/05/2016: SG (No. 114) 26/4/2016 p. 1

Statutory Rules made

No. 32: Electricity Safety (Bushfire Mitigation) Amendment Regulations 2016

Date of Making: 26/04/2016 Commencement: 01/05/2016: reg. 3; Not yet in operation: Regs 1-10: on 01/05/2016: reg. 3

Access Victorian legislation here www.legislation.vic.gov.au

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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