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DWF Quarterly Safety Bulletin

18 May 2020
Welcome to the latest edition of DWF's Quarterly Safety Bulletin.  In this edition, we examine the latest safety news, including recent legislative changes across Queensland, New South Wales and Victoria.  We also look at the major changes occurring in the mining sector in Queensland and analyse some significant safety decisions.  
LEGISLATION UPDATE

New codes and regulations have been introduced across the east coast:

Queensland 


January saw three updated electrical safety codes of practice take effect in Queensland: (1) Electrical equipment rural industry; (2) Working near overhead and underground electric lines; and (3) Works. The codes incorporate a number of minor amendments that are aimed at improving accuracy, usability and readability. 

Queensland's resources sector also saw the commencement of the Coal Mining Safety and Health (Methane Monitoring and Ventilation Systems) Amendment Regulation 2019 (Qld) in January, which implemented new laws regarding the use of methane detectors.

New South Wales

The NSW Work Health and Safety (Mines and Petroleum Sites) Amendment Regulation 2019 (NSW) commenced on 1 February 2020. Among other things, it is intended to define certain events at mines as high potential incidents or dangerous incidents, and requires operators to ensure that persons are not exposed to more than 0.1mg/L¬3 of diesel particulate in the air, including sufficient ventilation in underground mines.

Victoria

Meanwhile, WorkSafe Victoria has released a new compliance code on Managing exposure to crystalline silica: Engineered stone and warned employers that the document could be used as evidence if an employee contracts silicosis. 

MAJOR CHANGES TO QUEENSLAND MINING SECTOR

Industrial Manslaughter

Proposed legislative amendments have been introduced in Queensland that propose to finally extend the offence of industrial manslaughter to the mining sector, bringing the sector into line with the remainder of the state's workplaces. The proposed amendments will also provide increased employment security for those in safety critical management roles, such as site senior executives, ventilation officers, underground or surface mine managers, by requiring that they must be employees of the operator. The Mineral and Energy Resources and Other Legislation Amendment Bill 2020 (Qld) is still yet to be passed by parliament. 

New Mining Regulator 

On 19 March 2020, Queensland Parliament passed the Resources Safety and Health Queensland Act 2020 (Qld) (RSHQ Act), establishing a new resources regulator, Resources Safety and Health Queensland (RSHQ). 

The RSHQ will be responsible for monitoring compliance across all Queensland mining sectors, including petroleum, gas, coal and metalliferous mining.  Under the RHSQ Act, the Office of the Work Health and Safety Prosecutor (WHS Prosecutor) will be utilised to prosecute safety and health offences in the mining sector. Only the WHS prosecutor will be able to prosecute serious offences, while other offences may be prosecuted by the WHS prosecutor or the chief executive officer of RSHQ.

For further information regarding the new mining regulator, please refer to our previous article.

RECENT SIGNIFICANT SAFETY DECISIONS

Spotless employer policies defeat huge workers’ compensation claim

An employee’s workers’ compensation claim has failed due to their employer’s implementation and enforcement of thorough equipment cleaning policies. 

In April 2012, a worker was struck by a flailing concrete pump hose that had been clogged by solidified concrete. The incident caused spinal issues, requiring a discectomy as well as ongoing psychological issues. The parties agreed to a damages quantification of $2.3 million.

The Victorian WorkCover Authority (VWA) alleged concrete supplier Boral was negligent in allowing the formation and build-up of solid concrete in its concrete agitators. However, Victorian County Court Judge Philip Ginnane held that Boral's policies and procedures defeated VWA's claim, stating 'the law of negligence does not mandate the removal or elimination of all risk'. Boral's washout protocol discharged its statutory OHS duties by ensuring that their agitators were properly cleaned before use, adequate systems were in place to prevent solid concrete from entering the hose, and all trucks were inspected before use. 
VWA v Boral Limited [2020] VCC 121 (31 March 2020)

Employee not unfairly dismissed despite inconsistent employer policies

While the Fair Work Commission (FWC) ultimately dismissed an unfair dismissal claim based on the employee's misconduct, it did note that inconsistent treatment of similar conduct by an employer 'is a factor weighing in favour of a finding of unfairness'.

The Huhtamaki employee was fired for serious misconduct when he veered off a pedestrian pathway into an area with heavy forklift and semi-trailer traffic to save time. Though the direction to stay on the pathway was the subject of a specific safety instruction, the employee claimed that the employer's approach to the direction was inconsistent, and that he had been cutting across the vehicle zone 'for as long as [he] can remember'. 

The FWC held that employers are entitled to become more rigorous in policy enforcement, particularly considering a near miss event that occurred two months prior to the misconduct and the employee's prior written warnings. 
Plesiotis v Huhtamaki Australia Pty Ltd T/A Huhtamaki [2020] FWC 120 

Medical examinations for older workers found to be discriminatory

The FWC has determined that a provision in a proposed enterprise agreement constituted unlawful discrimination, having required older employees to undergo more frequent medical examinations than their younger colleagues. 

Mulgoa Quarries Pty Ltd's enterprise agreement application directed medical examinations to be taken ‘at least every three years for employees aged 49 or under and yearly for employees aged 50 or over’. 

The Fair Work Act 2009 (Cth) prohibits discriminatory terms in enterprise agreements, including age discrimination.1
Re Mulgoa Quarries Pty Limited [2020] FWC 1063

Job completed, but WHS duties continued

Queensland’s Court of Appeal has convicted and fined a person conducting a business or undertaking (PCBU) for its ‘continuing offence’, overturning the District Court’s decision.

At a worksite in Brisbane’s Beenleigh, a block wall that had been constructed by Betterlay Brick and Block Laying (Betterlay) collapsed onto and pinned a subcontractor on a day Betterlay was not operating. An examination of the fallen wall revealed a lack of vertical steel reinforcements that should have been present. The PCBU was found to have breached its primary duty of care to other persons and was convicted of a category 3 WHS offence. 

The District Court had first overturned the conviction and $35,000 fine imposed by the Magistrate on the basis that the prosecution had not proved the relevant offending conduct occurred on the date of incident. 

However, the Court of Appeal found that ‘neither the words in s 33 nor s 19(2) give rise to any temporal limitation, express or implied, confining the duration of the duty to a particular time’. While the breach did occur at the time of the wall’s construction, it ‘continued and remained operative’ to the date of the incident five days later. 
Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52

SAFETY NEWS 

Trucking director first person prosecuted under new Heavy Vehicle National Law (HVNL) provisions

The new WHS-style ‘chain-of responsibility’ offence was brought against director Nathan James Godfrey in tandem with his Victorian company’s charges alleging fatigue management breaches.
The National Heavy Vehicle Regulator (NHVR) believes N Godfrey Haulage Pty Ltd failed to meet its primary safety duty, while Godfrey as an ‘officer’ failed to exercise due diligence to ensure the company complied with its duties. 

"We know that drivers are constantly put under pressure at the depot or the loading dock and we want to hold the people responsible accountable” NHVR statutory compliance executive director Ray Hassall said.

If you require further information or have any queries in relation to this Safety Bulletin, please contact a member of our Safety team.   

We would like to acknowledge the contribution of Lachlan Thomas to this Safety Bulletin.


Footnotes:
1 -   Fair Work Act 2009 (Cth), ss 194-195.

Further Reading

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