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DWF Safety Bulletin

07 December 2021

Welcome to the latest edition of DWF's Safety Bulletin whereby we examine the latest safety news from the last quarter including recent legislative changes and significant safety decisions.

News 

Government-mandated vaccines rolling out

Public health orders and emergency declarations continuously being released in each State and Territory are mandating COVID-19 vaccinations in some industries. In many of these cases, workers must have already received their first dose by October and their second dose by November. Currently affected industries include aged care and health facilities; and in Victoria, the construction and education industries. 

For specific advice on whether vaccine mandates or exceptions will apply, government or otherwise, please contact the authors.


First industrial manslaughter prosecution under Queensland Electrical Safety legislation

In August 2021, Queensland Work Health and Safety Prosecutor Aaron Guilfoyle charged Queensland Sugar Company, MSF Sugar, with industrial manslaughter in what will be Queensland's first prosecution for industrial manslaughter under the Electrical Safety Act 2002 (Qld) since the legislation was introduced in 2017. 

The charge is in relation to the death of MSF worker Mr Brett Quin who was fatally electrocuted when a crane Mr Quinn was undertaking work on, came in contact with, or in close proximity to, overhead power lines in July 2019. The maximum penalty carries a $10 million fine for a body corporate, or a maximum sentence of 20 years' imprisonment for an individual. 

The prosecution have also additionally charged MSF Sugar with a category 2 offence, alleging MSF Sugar contravened an electrical safety duty by exposing "multiple workers" to a risk of serious injury or death.

The matter is currently before the courts, with the status of the proceedings to be provided as it progresses. 


Legislation Update

Federal Government passes Sex Discrimination Bill

The Australian Government's Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was passed by both Houses on 2 September 2021, giving effect to recommendations provided by Sex Discrimination Commissioner Kate Jenkins' "Respect@Work" National Inquiry Report. 

Amending both the Fair Work Act 2009 (Cth) and Sex Discrimination Act 1984 (Cth), some of the introduced changes include:

  • new powers for the Fair Work Commission to issue anti-harassment orders similar to anti-bullying orders; 
  • expressly defining workplace sexual harassment as serious misconduct justifying summary dismissal under section 387 of the Fair Work Act 2009 (Cth); and
  • broadening the definition of 'harassment on the ground of sex' in addition to sexual harassment under the Sex Discrimination Act 1984 (Cth).

The start date of the Fair Work Commission's additional power has been, however, delayed in order to allow for the Fair Work Commission to adequately prepare for the new regime. 

A recommendation of Respect@Work that was not adopted was implementing a positive duty on employers to take reasonable measures to eliminate sexual discrimination. The Federal Industrial Relations Minister Michaelia Cash instead noted that, as sexual harassment is a safety issue, workplace safety laws already impose such duties on employers. 

See Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth)


Victorian Government passes OHS Amendments 

The Occupational Health and Safety and Other Legislation Amendment Bill 2021 (the Victorian Bill) passed Victorian Parliament in September, varying the Occupational Health and Safety Act 2004 (Vic) (the Victorian Act) and other legislation. The amendments allow for a suite of reforms likely to strengthen the Victorian workplace safety regime. 

Analogous with aspects of the harmonised Work Health and Safety legislation in place in other Australian jurisdictions, the new laws introduce: 

  • increased powers for Health and Safety Representatives (HSRs) and Authorised Representatives of Registered Employee Organisations (Authorised Representatives) to take photographs, videos, measurements or sketches when investigating suspected safety breaches and exercising a right of entry permits;
  • extended definitions of 'Employer' and 'Employee' to ensure Labour Hire Workers are also considered employees of the host under the Victorian Act and have the benefit of increased rights and safety protections; and
  • prohibiting contractual arrangements which include provisions indemnifying or insuring a person against the payment of monetary penalties for work health and safety breaches. 

With the aim of improving efficiency and enforcement, the Victorian Bill also enables WorkSafe Investigators to issue notices and reports electronically. 

For more information in relation to the amendments, please refer to our previous article

See Occupational Health and Safety and Other Legislation Amendment Act 2021 (Vic)


ACT Parliament passes WHS amendments

The ACT Parliament passed the Work Health and Safety Amendment Bill 2021 (ACT) repealing the industrial manslaughter provisions of the Crimes Act 1900 (ACT), and inserting the offence into the Work Health and Safety Act 2011 (ACT). 

The new offence under the Work Health and Safety Act 2011 (ACT) imposes a significant increase to the maximum penalties. Officers and PCBUs that are individuals found guilty of the offence, face up to 20 years imprisonment, and bodies corporate are subject to fines of up to $16.2 million. This is an increase of more than 1,000%, given the maximum fine imposed for the offence under the Crimes Act 1900 (ACT) was $1.62 million. 

See Work Health and Safety Amendment Act 2021 (ACT)


Case Law Update

To forego the jab, or be an officer of the peace? Queensland Industrial Relations Commission dismiss Queensland Police Employees mandatory in vaccination challenge

A group of Queensland police officers and service employees sought to have the Commissioner of Police's directions mandating all staff (unless exempted) to receive their first dose of a COVID-19 vaccine by 4 October 2021 deemed inconsistent with the State's Public Services Administration Act, and of no effect. 

The applicants argued that the vaccines were experimental, untested, and unsafe. They further argued that as vaccination did not prevent the risk of transmission or infection of COVID-19, that they should not have been mandated by the Commissioner. These were rejected by the respondent's specialist, who opined "that the COVID-19 vaccines are not experimental and have passed examination by licensing bodies", and further that "the vaccines do not remain part of a clinical trial. They have been approved and registered for use.

The applicants sought to overturn the directions on the following grounds: 

  1. The Commissioner failed to consult with employees before making the direction, in breach of the relevant awards (ground 1). 
  2. The Commissioner failed to consult with employees before making the direction, in breach of the Work Health and Safety Act 2011 (Qld) (ground 2). 
  3. There was no power in the Commissioner to make the direction without seeking a variation of the relevant award or the relevant certified agreement (ground 3). 

Ultimately the appeals were dismissed on all grounds. For more information in relation to this case, please refer to our previous article

See Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 (22 October 2021)


NSW Supreme Court upholds public health orders

The Supreme Court of New South Wales heard a number of workers in October 2020, who had made the choice to remain unvaccinated, challenging the validity of public health orders (the Orders) under section 7(2) of the Public Health Act 2010 (NSW) issued by the NSW Health Minister Brad Hazzard. The Orders imposed requirements for workers in the health, aged care, education and construction industries, and additionally workers residing within Local Government Areas of concern, to be vaccinated against COVID-19 within various timeframes. 

The joint proceedings were brought against the NSW Health Minister, the Chief Medical Officer, Dr Kerry Chant, and the State of NSW. Justice Beech-Jones dismissed the arguments of all the plaintiffs, who contended that the effect of the Orders mandating vaccinations amounted to a violation of a person's "right" or "freedom" to their own bodily integrity. Mainly, the plaintiffs contended that the construction of section 7(2) of the Public Health Act 2010 (NSW) (the PHA) did not authorise orders and directions which interfere with such rights, pursuant to the "principle of legality". 

In his judgment, Justice Beech-Jones observed that the Orders did not violate the right to bodily integrity, as the Orders did not authorise the involuntary vaccination of anyone. He also remarked that the reading of section 7(2) does not preclude limitations on the freedom of movement, instead concluding that "curtailing the free movement of persons including their movement to and at work are the very type of restrictions the Public Health Act clearly authorises" [at 9]. 

Justice Beech-Jones noted public health orders at severe risk of being deemed unreasonable and invalid, would be those that interfere with the freedom of movement, are unrelated to the public safety and differentiate between individuals arbitrarily (i.e. on the basis of race, gender or political opinion). In determining the legal validity of the Orders, Justice Beech considered that the differential treatment of persons on the basis of their vaccination status is consistent with the objects of the PHA, and not arbitrary. 

Interestingly, Justice Beech-Jones also referenced the dissenting judgment of the Fair Work Commission's Deputy President Lyndall Dean in Kimber v Sapphire Coast Community Aged Care [2021] FWCB 6015 (or more information about this case, please refer to our previous article). In that particular case, the majority of the Full Bench of the Fair Work Commission denied Ms Kimber permission to appeal, who was an aged care receptionist who refused the influenza vaccination due to her belief she had a previous allergic reaction. The rejection followed a previous ruling by Commissioner McKenna which had held that the applicant was not unfairly dismissed. 

Justice Beech-Jones remarked that it was apparent one of the group of plaintiffs (the Henry group) heavily relied on the opinions of Deputy President Dean and passages of her dissenting judgment as a foundational basis for their arguments.

In particular, her views that vaccine mandates in various COVID-19 public health orders amounted to a form of coercion in violation of a person's right to bodily integrity and assertions about the efficacy and safety of COVID-19 vaccines. 

Justice Beech-Jones reiterated that the Fair Work Commission is not the appropriate mechanism for "political pamphlets", and that it is not the function of the Fair Work Commission to determine the legal validity of making public health orders under the PHA, that role instead being for the courts to discharge.

Justice Beech-Jones delivered his judgment via livestream with an audience of more than 40,000 tuning in, further reiterating the intense public interest the subject matter has garnered.  

See Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (15 October 2021)


Adverse action penalties remind employers of workers' rights to refuse unsafe tasks 

Federal Court Circuit Judge Amanda Tonkin has recently reminded employers and managers of workers' rights to refuse carrying out tasks they reasonably consider to be unsafe, in accepting an ex-employee's adverse action claim. 

In April 2020, Pacific Scaffolding, through its sole director Malcolm Lightfoot, directed worker Michael McNamara to collect a 10 metre long steel beam from the Port of Brisbane and drive it to a client's nearby premises. After collecting the beam alone, Mr McNamara arrived at the client's site and observed access to be steep and narrow. Mr McNamara called his supervisor to attend the site and the two men completed the difficult, 2.5 hour unloading. 

Two months later, Mr Lightfoot directed Mr McNamara to complete a similar delivery to the same client's premises. Mr McNamara's supervisor was on leave at the time, so Mr McNamara requested Mr Lightfoot to help with the loading and unloading of the delivery. Mr Lightfoot declined to attend the Port of Brisbane to help with the loading and the job was not completed. 

Mr Lightfoot was upset with Mr McNamara's unwillingness to perform the delivery and after a heated 20 minute discussion where he suggested some hasty workarounds, fired him. After Mr Lightfoot discussed the situation with other managers, Mr McNamara was offered but did not accept re-employment on the condition that he accept a formal written warning and being placed on a 6 month probationary period. 

Workers in Australia have the right to cease or refuse to carry out work where they have a reasonable concern for exposing themselves to a serious risk to health or safety (see, e.g., Work Health and Safety Act 2011 (Qld) s 84). 

Pacific Scaffolding submitted to the Court that the requested task was not reasonably considered dangerous. In relation to the loading of the beam, it was submitted that Mr McNamara had undertaken that task in April alone 'without any hazard, danger or incident'. The employer further submitted that Mr McNamara chose not to complete the job simply 'because he did not want to do it', such that there was no workplace right exercised. Mr McNamara had been assigned the task in the previous week and did not refuse the task or request anybody's help until the day of the order. 

The Court heard that Mr Lightfoot had not been to the client's premises previously, so could not legitimately determine the safety of the procedure. Further, Mr McNamara was inexperienced in driving, loading and unloading trucks, and was concerned that the truck may slip on the premises' slope and the proximity of overhead power lines.

It was held that Mr McNamara's safety concerns were reasonable, and he was adversely affected in his employment for exercising this workplace right. 

Mr McNamara was awarded over $20,000 in compensation, including $5,000 for the hurt, distress and humiliation caused by the incident. 

Pacific Scaffolding was also penalised $6,600 for its adverse action, while Mr Lightfoot was penalised $1,320. 

See McNamara v Era Pacific Pty Ltd [2021] FCCA 1689 (23 July 2021)


Department of Defence's training misses the mark - fined $1 million

The Department of Defence has received the highest ever fine under the federal Work Health and Safety Act, after a young Private was fatally injured during a live-fire exercise. 

In May 2017, Defence had organised a live-fire urban operations drill at a mock village in the Mount Bundley Training Area, south-east of Darwin. During the exercise, 25 year old Private Jason Walter Challis took up position in an unmarked exclusion zone behind a building's plywood wall. Two soldiers fired at a dummy inside the building, which was in line with Private Challis' position. Tragically, the Private was shot in the head and knee and was unable to survive his injuries. 

Three category 2 charges were laid against Defence in May 2019 for an unsafe work environment, unsafe system of work, and inadequate training. Each charge carries a maximum penalty of $1.5 million. 

The prosecutor, Comcare, noted that a similar fatal incident had occurred in South Australia in 2009, which produced a number of safety recommendations. Despite these recommendations providing clear and inexpensive control methods against the risk of fatalities during live-fire exercises, Defence did not adopt the recommendations during the 2017 incident. 

Defence pleaded guilty to one category 2 charge of failing to provide safe systems of work. It accepted that it had failed to provide adequate risk assessments, training, briefings, and clearly marked dangerous spaces at the mock village.  

Defence was fined $1 million, passing the previous Commonwealth record safety fine of $650,000 relating to a 2013 chemical fire incident. 

See Comcare media release – Defence fined $1 million over live-fire fatality


Safety controls insufficient for vulnerable guest

A company and its director have received fines totalling $730,000 following the death of a client with multiple sclerosis who was unable to use the safety mechanisms of a hyperbaric chamber. 

Oxymed Pty Ltd and its director operated a Victorian facility in which clients could be administered with high concentrations of oxygen in hyperbaric chambers. The chambers had an emergency button and communication systems to be used by clients if they experienced issues.

In April 2016, Oxymed provided its services to a client with multiple sclerosis, who was unable to adjust his oxygen mask or use the inbuilt safety systems. The client was found unconscious in his chamber, and died a few days later in hospital. 

Despite safety systems being in place that may have been appropriate for able-bodied clientele, the DPP alleged the defendants failed to conduct a risk assessment for each person receiving the treatment, and failed to adequately provide supervision and training of staff. 

The company and its director were found in breach of their duties under the Victorian OHS Act, and fined $550,000 and $176,750 respectively. 

See WorkSafe Victoria media release - Hyperbaric company and director fined $726,750


Safety laws no different for casual arrangements or octogenarian directors

A factory owner and its 82 year old director have been fined a total of $375,000 after the fatality of a retiree lending assistance. 

E&O Lagondar Nominees Pty Ltd (E&O), with married directors Emil and Olga Lagondar, had sold its Melbourne factory, occupied by manufacturer Frontier Industries Pty Ltd, in March 2019. As part of its obligations as seller, the company was preparing the premises for sale, including removing steel beams below the roof truss line.

To assist with the preparations, Mr Lagondar accepted the informal help of his retired friend and former Frontier Industries employee, Roger Dalta. 

On 15 April 2019, while inside a makeshift stillage resting on forklift tines, Mr Dalta was raised 4.5 metres to oxy-cut the beams. The stillage overbalanced, and Mr Dalta suffered fatal head injuries from his collision with the concrete floor below. 

E&O and its director pleaded guilty to breaching Victoria's OHS Act, but Mr Lagondar submitted that his sentence should be mitigated due to his advanced age, the lack of a need for deterrence, and his lack of practical work experience over the previous 20 years. 

However, Judge Trapnell of the Victorian County Court rejected the validity of these submissions. Instead, Judge Trapnell opined that company directors have duties to take reasonable care that their company does not breach the OSH Act, under section 144(1), no matter their age or experience. Judge Trapnell criticised Mr Lagondar, having noted that if he "felt [he] could no longer perform [his] duties as a director, [he] should have handed over the reins to someone else." 

On the topic of deterrence, Judge Trapnell stated "a strong message needs to be sent" that if persons do not meet their directors' duties, particularly in cases, "as was the case here, where the risk of catastrophic injury or death is high, constant, and readily foreseeable," that they will receive a high penalty. 

Mr Langondar's penalty was reduced from $190,000 to $125,000 for his guilty plea and E&O's was reduced from $380,000 to $250,000.

See DPP v E. & O. Lagondar Nominees and Lagondar [2021] VCC 1024 (29 July 2021)


CFMMEU and officials "knew that they were risking contravening", fined for entry breaches

In line with recent right of entry cases, the CFMMEU and eight of its officials have been fined for not showing federal entry permits upon entering site due to safety concerns. 

In mid 2018, the officials entered the Toowoomba Second Range Crossing project and refused to show their federal Fair Work permits to the site's occupier. Justice Rangiah of the Federal Court accepted that, at the time, the officials held the belief that showing such a permit was not required when entering sites in response to safety concerns under Queensland's WHS Act section 81(3). 

At the time of the entries, the Union was defending a similar position taken in the Bruce Highway Caloundra to Sunshine Upgrade Case [2019] FCA 1737, which ultimately did not result in the Union's favour.

Justice Rangiah held that the officials, at the time of their entries, knew or should have known that their understanding of section 81(3) was "far from certain", considering federal permits were held to be required in Victoria's Powell case in 2017 ([2017] FCAFC 89; [2017] HCATrans 239). 

The Court did not go so far as to accept the ABCC's submission that the contraventions were "deliberate and calculated", however did accept that the Union was fully aware of the risk of refusing to produce entry permits.

The CFMMEU was fined $75,000 and the officials were fined a total of $46,000. 

See Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Toowoomba Bypass Case) [2021] FCA 1128 (17 September 2021)

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 Ashleigh O'Connor (Solicitor) and Lachlan Thomas (Graduate) to this Safety Bulletin.

Further Reading