Australia: Work Health and Safety News – 20 February 2018

Last Updated: 27 February 2018
Article by Charles Power, Benjamin Marshall, Stephen Trew, Michael Selinger and Rachel Drew

Most Read Contributor in Australia, August 2018

In the media

11 falls prompts warning about working safely at heights
WorkSafe has warned there will be consequences for not managing the risk associated with working at heights on construction sites following two serious incidents in less than two weeks. A total of 11 serious falls have been reported to WorkSafe since 1 January 2018 (14 February 2018). More...

Regulator accepts WHS undertaking from DFSI
The NSW Resources Regulator has accepted an undertaking from the NSW Department of Finance, Services and Innovation (DFSI) that will improve work health and safety standards in the stonemasonry industry. As part of the undertaking, DFSI have committed to a range of actions with a financial commitment of at least $498,500. This is in addition to an estimated $500,000 already spent on works carried out at the site following the incidents (13 February 2018). More...

Crane fails and sends 32-tonne concrete structure crashing
WorkSafe is making inquiries into a serious incident in which a precast concrete structure weighing 32 tonnes fell while being lifted by two cranes at a factory in Dandenong on Tuesday. The serious nature of the incident has prompted WorkSafe Executive Director of Health and Safety, Marnie Williams, to issue a warning to employers about the importance of crane safety (09 February 2018). More...

Company fined $200,000 after death of employee in kiln explosion
An environmental services company has been fined $200,000 after pleading guilty in the Gladstone Magistrates Court today to breaching the Work Health and Safety Act 2011 following the death of worker Mark Chapelhow in 2015 (09 February 2018). More...

Mobsters' mate votes for exploitation of most vulnerable
Minister for Industrial Relations Natalie Hutchins slammed the Opposition for voting against the Labour Hire Licensing Bill 2017, which will introduce a universal licensing scheme to protect labour hire workers. Under the new scheme, labour hire services may only be provided by organisations that hold a licence and be listed on a publicly accessible register. To obtain a licence, providers will be required to pass "a fit and proper person test" and show compliance with workplace laws, labour hire laws, and minimum accommodation standards (08 February 2018). More...

Coroner blames Darwin deckhand's death on unsafe working conditions
The NT coroner slams safety standards in the commercial shipping industry, saying he believes dangerous working conditions directly lead to the death of a deckhand in Darwin last year and does not think change in the industry would be "generational" (08 February 2018) More...

Car repairer fined $40,000 after crush injury
A Dandenong automotive repair centre has been convicted and fined $40,000 after a man was crushed when a car fell off an incorrectly operated hoist. Birch Automotive Pty Ltd pleaded guilty to two charges associated with failing to provide a safe system of work (07 February 2018). More...

Company fined $25,000 for unsafe scaffolding
A Ballarat construction company has been convicted and fined $25,000 for ignoring WorkSafe directions to fix unsafe scaffolding at a Mount Clear worksite. Myrti Pty Ltd was found guilty in the Ballarat Magistrates' Court of two offences relating to a failure to provide a safe workplace and a failure to comply with a WorkSafe prohibition notice (06 February 2018). More...

Be fire-safety aware: Campaign commences for residents of apartment buildings with cladding
The campaign informs those who own, live or work in affected buildings of the actions the NSW Government is taking to ensure their safety, and the steps occupants can take to ensure they have the information and expert advice they need to make sure their building is safe, according to Taskforce Chair Martin Hoffman (06 February 2018). More...

North Sydney company fined over Strathfield man's workplace fatality
A North Sydney company has been fined $240,000 after a boilermaker died following an incident at a Botany industrial site, Minister for Better Regulation Matt Kean said. Broadspectrum (Australia) Pty Ltd pleaded guilty to failing to ensure the health and safety of a 66-year-old Strathfield subcontractor who sustained fatal injuries while handling steel pipe (06 February 2018). More...

Published – articles, papers, reports

Safe Work Australia Fatality statistics
As at 2 February, there have been 12 Australian workers killed at work in 2018. More...

NHVR: On the Road, Issue 27, 12 February 2018
On the Road provides important information on the heavy vehicle industry, including the latest NHVR news and events, relevant law and policy changes, and resources to help industry members comply with the HVNL.

Office of the Federal Safety Commissioner: July to December 2016 Biannual Data Analysis Report
The report provides an overview and analysis of data collected from companies accredited under the Australian Government building and construction WHS Accreditation Scheme (the Scheme). This period saw no fatalities on Scheme projects and the lowest number of notices issued to accredited companies in the history of the Scheme. The report can be found on the Biannual Report Data Analysis page along with the previous reporting period's analysis reports (15 February 2018).

In practice and courts

New Safety Standards

AS/NZS 60065:2018
Audio, video and similar electronic apparatus - Safety requirements (IEC 60065:2014 (ED. 8.0) MOD) Standards Australia.

AS/NZS 62368.1:2018
Audio/video, information and communication technology equipment - Safety requirements (IEC 62368-1:2014 (ED. 2.0) MOD) Standards Australia.

NTC: Updated load restraint guide now available
Drivers, operators and other participants in the transport chain of responsibility will be able to access an improved Load Restraint Guide and a complementary guide specifically for light vehicles on the National Transport Commission (NTC) website from today (05 February 2018). More...

Victoria

Labour licensing laws pass in Victoria
The Victorian Labour Hire Licensing Bill 2017 makes it unlawful to provide labour-hire services without a licence, or host labour-hire workers from an unlicensed provider. Bodies corporate or their officers must pass a "fit and proper person" test, which they will fail if, within the preceding five years, they have been found by a court to have contravened a workplace law, including the Victorian OHS Act and the Commonwealth SRC and Fair Work Acts.

Safety Soapbox - February 2018
Access the February 9 edition of Safety Soapbox here - the list of reported incidents can be downloaded from the page.

WorkSafe Victoria: Prevention of falls compliance codes now available for public comment
The proposed prevention of falls compliance codes that align with the Occupational Health and Safety Regulations 2017 are now available for public comment. Employers, employees, interested parties and members of the public are invited to submit feedback from Thursday 1 February until close of business on Tuesday 28 February 2018. More...

WorkSafe Victoria: Compliance codes review
Comments are now invited on the following two proposed compliance codes (proposed codes) that align to the Occupational Health and Safety Regulations 2017 (OHS Regulations):
Prevention of falls in general construction and Prevention of falls in housing construction
The proposed codes include changes to streamline content and bring then into line with the OHS Regulations. A summary of changes to the two proposed codes can be found here. Submissions will be accepted from 1 February 2018 to close of business 28 February 2018.

New South Wales

SafeWork NSW: Horse safety workshops
To register for a workshop, contact the local SafeWork office or email. The timetable of events is listed here (February 2018).

SafeWork NSW: Audiometric testing exemption
SafeWork NSW has issued a further one year exemption for the audiometric testing requirements of clause 58(2) of the Work Health and Safety Regulation 2017 (the Reg). The new exemption will apply for the period 1 January 2018 – 31 December 2018. The exemption has been granted because a national review of the model WHS legislation is due to commence in February 2018, which could result in changes to the WHS Act and/or WHS Reg – including Clause 58 Audiometric testing. More...

Queensland

WorkCover Queensland: Worker burned in pump room explosion
Workplace Health and Safety Queensland this week issued an eSafe Incident Alert after a worker was burned in pump room explosion at a waste treatment plant at the Townsville golf club. The alert provides advice on how to prevent such incidents. In 2005 a worker was killed after an explosion in a kiln (07 February 2018). More...

WorkCover Queensland: New snorkelling and diving Code of Practice
A new code of practice is in effect for Queensland tourism operators. The Recreational Diving, Recreational Technical Diving and Snorkelling Code of Practice 2018 includes safety measures requiring: automatic external defibrillators on reef tourist vessels; systems in place to identify at-risk snorkelers prior to them entering the water; floatation devices to be used by at-risk snorkelers and at-risk snorkelers to swim in a buddy pair (07 February 2018). More... More...

Spotter struck in face by winch cable | Business Queensland
09 February 2018 | Petroleum and gas safety alert 80
Spotter struck in face by winch cable. Industry: Petroleum and gas Subject Equipment failure or modifications. More...

WorkCover Queensland: Regulation of the labour hire industry in Queensland
Queensland will establish a mandatory labour hire licensing scheme from 16 April 2018 to protect labour hire workers and safeguard labour hire providers that are ethical and responsible. Find out more, read the frequently asked questions, or register for updates on the development of the scheme and subordinate legislation. More...

Cases

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15
INDUSTRIAL LAW – appeal from a judgment of the Federal Court of Australia where certain findings of fact were made by the trial judge in relation to the conduct of a permit holder – where the trial judge found that the permit holder did not "act in an improper manner" within the meaning of s500 of the Fair Work Act 2009 (Cth) – whether the trial judge erred at law by failing to find that the permit holder had acted in an improper manner. Building Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) Sch 2 cl 19. Occupational Health and Safety Act 2004 (Vic).

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) (FW Act), ss346(b), 347, 348 – where an officer of an industrial association identified deficiencies in the facilities for workers at a workplace – where workers, following a meeting with officers of the industrial association, took industrial action when the employer did not improve the facilities at the workplace – whether the identification of deficiencies is to be understood as a request to improve the facilities – whether the failure by the employer to accede to the request of the industrial association amounted to engaging in industrial activity under ss347(b)(iv) or 347(b)(v) for the purposes of ss346(b) and 348 – whether refusal of an industrial claim can be said to be a refusal to "represent or advance the views, claims or interests" of the industrial association for the purposes of s347(b)(v) – refusal of a claim is an action of a different character to refusing to "represent or advance the views, claims or interests" of the industrial association – consideration of preferred construction of s347(b)(iv) of the FW Act – where context and purpose of provision suggest that ss347(b)(i)–(v) directed at the protection of freedom of association – reference to "lawful request ... or requirement" to be read as request or requirement to associate in or with the industrial association – an industrial request made by an industrial association to an employer lacks the necessary nexus to freedom of association to fall within the scope of s 347(b)(iv) – contrary view in Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758 and Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 not plainly wrong, single judge bound to follow – elements of ss 346(b) and 348 made out against officers – liability of industrial association established via s793.
STATUTORY INTERPRETATION – Acts Interpretation Act 1901 (Cth) s15AB – the circumstances in which reference may be made to extrinsic materials, including an explanatory memorandum.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 197
INDUSTRIAL LAW – appeal from a judgment of the Federal Court of Australia where certain findings of fact were made by the trial judge in relation to the conduct of a permit holder – where the trial judge found that the permit holder did not "act in an improper manner" within the meaning of s500 of the Fair Work Act 2009 (Cth) – whether the trial judge erred at law by failing to find that the permit holder had acted in an improper manner.
Building Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) Sch 2 cl 19. Federal Court of Australia Act 1976 (Cth) ss4, 24(1). Occupational Health and Safety Act 2004 (Vic).

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42
INDUSTRIAL LAW – exercise of State or Territory OHS rights without an entry permit – permit holder hindering or obstructing or otherwise acting in an improper manner – adverse action – coercive conduct – where subcontractor had a "workplace right" to initiate a process of bargaining for a new enterprise agreement – where union engaged in campaign to secure site allowances in enterprise agreements – accessorial liability – whether an individual can be an accessory to the conduct of a union which arose by reason of the individual's conduct being deemed to be the conduct of the union – whether union can be deemed to have contravened a provision of the Fair Work Act 2009 (Cth) which the union itself could not have contravened – whether defect in or absence of a Notice of Employee Representational Rights precludes the existence of a "workplace right" to initiate a process of bargaining for a new enterprise agreement – whether applicant must prove that coercive conduct was taken in personal capacity or on own behalf.
PRACTICE AND PROCEDURE – privilege against self- incrimination – where Respondents reserve right to claim privilege – split hearing – where protracted adjournment after election to allow for the filing of evidence.

Worksafe Victoria Prosecution Result Summaries & Enforceable Undertakings

RTL Mining and Earthworks Pty Ltd 152 855 135 08/02/2018
Confined spaces; Failure to provide a safe system of work; Falls/work at height offences; Mines; Failure to provide a safe working environment - Occupational Health and Safety Act 2004 21(1)&(2)(a); Latrobe Valley Magistrates' Court.

Kintetsu World Express 051 932 097 08/02/2018
Forklifts; Traffic management - Occupational Health and Safety Act 2004 21(1)&(2)(e); Broadmeadows Magistrates' Court.

Paul Jason Weiser 06/02/2018
Fraud Accident Compensation Act 1985; Workplace Injury Rehabilitation and Compensation Act 2013 248; 581(1); Melbourne County.

Legislation

Commonwealth

Fair Work Amendment (Improving National Employment Standards) Bill 2018
Registered 05/02/2018 - The Bill amends the Fair Work Act 2009 to enable an employee who is a survivor of family and domestic violence to take up to 10 days paid family and domestic violence leave per calendar year or 2 days of unpaid family and domestic violence leave for each permissible occasion. This is achieved by adding family and domestic violence leave to the National Employment Standards.

Victoria

Bills

Labour Hire Licensing Bill 2017
Council - 2nd reading (passed Assembly) 08 February 2018.

Bills Introduced and Second Read in the first House – week ending 09 February
Electricity Safety Amendment (Electrical Equipment Safety Scheme) Bill 2018 Assembly - 2nd reading: 07 February 2018.

Queensland

Subordinate Legislation as made
No 5 Safety in Recreational Water Activities (Codes of Practice) Amendment Notice 2018 – 06/02/2018.

Bills Re-Introduced into Parliament – 15 February 2018
Heavy Vehicle National Law and Other Legislation Amendment Bill 2018

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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