Australia: Work Health and Safety News - 6 March 2018

Last Updated: 10 March 2018
Article by Charles Power, Benjamin Marshall, Stephen Trew, Michael Selinger and Rachel Drew

Most Read Contributor in Australia, August 2018

In the media

Mango grower fined $35,000 after workers suffer electric shock
A Gilbert River mango grower has been fined $35,000 for a 2015 incident where two of his pickers suffered an electrical shock, after pleading guilty to exposing his workers to a risk of death or serious injury under the Electrical Safety Act 2002. The court ruled that even though he used a number of subcontractors for picking and packing, he retained primary electrical safety duty for all workers on the Gilbert River Mango Plantation (01 March 2018). More...

NSW watchdog delivers landmark prosecution
The death of a woman in her shower caused by an electrical fault at a nearby quarry outside of Orange in 2014 has today resulted in a landmark work health and safety prosecution brought by the NSW Government's Resources Regulator (26 February 2018). More...

Safe Work to work on workplace safety
Safe Work Australia (SWA) has launched a review of the nation's model Work Health and Safety (WHS) laws. The Agency has produced a discussion paper on the key issues with invitations for readers to share their views and experiences (27 February 2018). More...
The review will be evidence-based and will propose actions that may be taken by WHS Ministers to improve the model WHS laws, or identify areas of the model WHS laws that require further assessment and analysis following the review," SWA said. Written submissions are due by 13 April and the discussion paper can be accessed at this PS News link.

Company fined $500,000 after worker crushed
Specialised Concrete Pumping Victoria Pty Ltd pleaded guilty to one charge of failing to provide and maintain safe systems of work and one charge of failing to provide information, instruction, training or supervision under the Occupational Health and Safety Act 2004. The company was convicted and fined $250,000 for each charge (23 February 2018). More...

NSW cancels out fatal truck crash falls in other states
The Bureau of Infrastructure, Transport and Regional Economics' (BITRE) latest Fatal heavy vehicle crashes Australia quarterly bulletin shows fatal crashes involving heavy trucks rose 2.4 per cent is 2017, from 164 to 168, and fell by an average of 1.9 per cent a year for the preceding three years (20 February 2018). More...

Charges laid after painter's death
A construction company has been charged following the death of a painter at a building site at Merricks North in 2017. VCON Pty Ltd will face three charges of breaching the Occupational Health and Safety Act for failing to control the risk of a fall from height (15 February 2018). More...

Published – articles, papers, reports

Safe Work Australia Fatality statistics
As at 23 February, there have been 18 Australian workers killed at work in 2018. More...

NHVR: On the Road, Issue 27, 26 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. More...

In practice and courts

AMSA: Crewing requirements for grandfathered passenger vessels
Exemption 28 has been extended from 1 January 2018 until 30 June 2018. Until 30 June 2018, the owners of grandfathered passenger vessels (Class 1) can choose whether to comply with the number of crew required in NSCV Part E (number of crew) or the grandfathered crewing requirements that applied to the vessel on 30 June 2013. More...

New South Wales

SafeWork NSW: Hot work
Safety Alert | 02/03/2018 - This safety alert reminds people of the precautions required when carrying out hot work in the workplace, for example grinding, welding, oxy cutting or other processes which produce a flame or other ignition source. More...

Queensland

WorkCover Queensland: Generator fuel explosion in back of truck
In February 2018, two workers received severe burns to their legs, upper body and face when fuel ignited in the back of a truck. Transporting fuel, or equipment that carries fuel, poses additional risks that the PCBU must manage and control (22 February 2018). More...

WorkCover Queensland: Young worker injured by nail gun
An apprentice was injured by a nail, fired from a nail gun by another worker, which went through the piece of timber he was holding and into his chest. All workers who use any type of nail gun should be trained in how to use it safely (20 February 2018). More...

WorkCover Queensland: Vehicle stabilisers and outriggers
In Queensland sometime last month, a truck fitted with a vehicle loading crane was driven along a road with its stabiliser extended. The stabiliser struck a parked vehicle and a worker standing behind this vehicle was crushed and killed. This Alert provides detailed information on how to prevent similar incidents occurring (22 February 2018). 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...

Victoria

Safety Soapbox - February 2018
This is a timely reminder because at the end of September 2017 the Victorian Government significantly increased penalties for duty-holders who fail to notify WorkSafe of an incident, or don't preserve a site after a serious incident. Access the February 23 edition of Safety Soapbox here.

Cases

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122
INDUSTRIAL LAW – alleged contraventions of ss 497 and 500 of the Fair Work Act 2009 (Cth) at a building site in Bendigo by officers of the CFMEU – whether there is evidence to support findings of the alleged contraventions – whether the CFMEU is liable for any contraventions committed by its officers pursuant to ss 550 or 793 of the Fair Work Act 2009 (Cth) or pursuant to principles of common law vicarious liability.
Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) Sch 2, cl 19; Evidence Act 1995 (Cth) s 140(2)(c); Fair Work Act 2009 (Cth) ss 12, 478, 484, 487, 489, 489(2), 494, 494(3), 497, 500, 512, 539(2), 546, 550, 550(1)(c), 793, 793(1), 793(2), Pt 3-4; Fair Work Regulations 2009 (Cth) reg 3.25, Item 2; Occupational Health and Safety Act 2004 (Vic) ss 58, 58(1)(f), 70, 70(1), 83, 87, 87(2), 88, 89.

Inspector Nash v Perilya Broken Hill Limited [2018] NSWDC 28
CRIMINAL LAW – PROSECUTION – WORK HEALTH AND SAFETY Duty of person conducting business or undertaking – duty in the case of careless or disobedient worker – whether there was a risk – whether risk foreseeable – whether duty to minimise risk arose where it could be eliminated – whether a risk analysis should have been undertaken and form thereof Fall down mine shaft – fall from bucket of a loader when working at height – whether breach of duty where worker was in bucket of loader contrary to employer's policy Breach of duty – whether system for use of personal protective equipment (PPE) was appropriate – whether correct PPE used - whether PPE used was defective – whether JSA defective – appropriate procedures and content for JSA – whether defendant's policy and prohibiting use of bucket of loader should have been in writing - whether defendant provided adequate information, training and instruction – whether defendant provided adequate supervision Mistake of fact – defendant's belief that no one would use the bucket of the loader as a work platform and that nobody was required to work at heights – whether mistake of fact available to defendant – whether defendant's belief reasonably held.

Inspector Nash v Perilya Limited [2018] NSWDC 29
CRIMINAL LAW – PROSECUTION – WORK HEALTH AND SAFETY PCBU – subsidiary company owner and operator of mine – whether parent company with 100% shareholding in subsidiary company also owner and operator of mine.

Safe Work NSW v Universal Property Group Pty Ltd [2018] NSWDC 19
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury. SENTENCE – mitigating factors – aggravating factors – penalty – circumstances – objective seriousness – specific deterrence – general deterrence SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition. COSTS – prosecution costs.

Safe Work NSW v Modern Touch Marble and Granite Pty Ltd; Safe Work NSW v Johnne Khouri [2018] NSWDC 20
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition COSTS – prosecution costs.

DPP v Specialised Concrete Pumping Victoria Pty Ltd [2018] VCC 105
Occupational Health & Safety Act 2004 - The corporate entity, Specialised Concrete Pumping Victoria Pty Ltd (SCPV) has pleaded guilty to two charges under the Occupational Health and Safety Act 2004 of:
(1) failing to provide and maintain systems of work; and
(2) failing to provide information, instruction, training and supervision.
in respect of Charge 1 you are convicted and fined $250,000;
in respect of Charge 2 you are convicted and fined $250,000.

Worksafe Victoria Prosecution Result Summaries & Enforceable Undertakings

Martyn Nicholls Electrics Pty Ltd 120 490 128 22/02/2018
Electric shock; Failure to provide information, instruction, training or supervision; Inexperienced employee. Occupational Health and Safety Act 2004 21(1)&(2)(e); Sale Magistrates.

Phelpsys Constructions Pty Ltd 601 655 869 21/02/2018
Fatality; Plant Occupational Health and Safety Act 2004 26(1); Melbourne County.

Michael O'Sullivan 21/02/2018
Electric shock; Employees - offences by; Inexperienced employee. Occupational Health and Safety Act 2004 25(1)(b); Sale Magistrates.

Legislation

Queensland

Subordinate legislation as made – 23 February 2018
No 18: Transport Legislation (Dangerous Goods) Amendment Regulation 2018
Amendment of sch 1 (Infringement notice offences and fines for nominated laws
The policy objective of the Regulation is to adopt the 4th package of nationally-agreed amendments to the Model Subordinate Instrument on the Transport of Dangerous Goods by Road or Rail. The amendments will reduce the regulatory burden on the industry by providing the basis for nationally consistent legislation regarding the transport of dangerous goods by road or rail. The amendment Regulation implements these changes through amendments to the Transport Infrastructure (Dangerous Goods by Rail) Regulation 2008, the Transport Operations (Road Use Management – Dangerous Goods) Regulation 2008, and the State Penalties Enforcement Regulation 2014.

Victoria

Acts

Road Safety Amendment (Automated Vehicles) Act 2018
Act Number: 8/2018 Date of assent: 27 February 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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