The safety clock is ticking
Welcome to the HWL Ebsworth National Safety Update.
This year we have witnessed each State and Territory introduce new safety laws and tougher penalties against companies and individuals. The ban on the use of engineered stone, updated workplace exposure standards for airborne contaminants and the new industrial manslaughter laws have commenced in most jurisdictions.
In addition, the Safety Regulators have increased the number of inspectors to investigate and prosecute breaches of the Work Health and Safety and Occupational Health and Safety laws.
In this update, we discuss some recent safety decisions from around Australia.
Western Australia
The first half of 2024 has seen a host of safety firsts in Western Australia. The first enforceable undertaking in lieu of a safety prosecution has been entered into, the first prosecutions of persons conducting a business or undertaking (PCBU) under the Work Health and Safety Act 2020 (WA) (WHS Act WA) have been launched and employers are getting a first look at how the new Workers Compensation and Injury Management Act 2023 (WA) (WCIM Act WA) operates in practice.
A large mining company, Fortescue Ltd, has entered into $1.47 million of enforceable undertakings with WorkSafe WA to avoid prosecution for 34 breaches of section 171 of the WHS Act WA. The charges related to a failure to report allegations of sexual harassment in the mining industry. In compliance with the enforceable undertaking, Fortescue Ltd has recently announced the launch of its ‘Lead Change Respect’ program that includes an online suite of useful psychosocial safety and sexual harassment resources for the mining industry.
We reported on some of the first prosecutions under the WHS Act WA here. In addition to those prosecutions, an individual has been prosecuted for removing asbestos without holding an asbestos removal licence. This prosecution by WorkSafe WA signals a continued focus by the regulator on asbestos regulation and safety, which is a hazard of particular importance in Western Australia. PCBUs who have asbestos (or suspected asbestos) in their workplaces should remain vigilant about the risks associated with disturbing asbestos and require contractors to provide a copy of their licence before removing any suspect product.
As noted here, the new WCIM Act WA came into operation from 1 July 2024. Importantly for work health and safety professionals, the WCIM Act WA precludes compensation for psychological and psychiatric injuries attributable to administrative action. However, ‘administrative action’ is limited to formal activities, such as discipline, stand down and performance appraisal. Work health and safety teams will need to take care to ensure that their investigations into safety incidents do not represent a safety hazard to workers that could give rise to workers compensation claims.
This article was written by Danielle Flint, Partner.
South Australia
South Australian employers are reminded that the industrial manslaughter provisions of the Work Health and Safety Act 2012 (SA) have commenced from 1 July 2024. This brings it in line with the Commonwealth public sector (which commenced at the same time), Australian Capital Territory, Northern Territory, Queensland, Victoria and Western Australia.
In the recent decision of Farrell v Combe Pearson Reynolds Pty Ltd (ABN 12 112 731 558), Jack Adcock Consulting Pty Ltd (ABN 61 617 620 121) [2024] SAET 30, on 14 May 2023 two engineering firms became the first in South Australia to be successfully prosecuted over an unsafe structural design, which led to two workers being injured when a roof structure collapsed.
The South Australian Employment Tribunal fined Combe Pearson Reynolds Pty Ltd (CPR) and Jack Adcock Consulting Pty Ltd (JAC) a combined $70,000 over the incident in Angaston in November 2021. The decision is the first successful design-related prosecution by SafeWork SA and acts as a cautionary note for the engineering industry about their work health and safety obligations.
On 12 November 2021, two apprentices had started fixing sheeting to a cantilevered roof over a spectator terrace when four of the seven columns holding up the structure collapsed. Both apprentices suffered minor injuries when they slid down the roof sheets. The construction was part of a redevelopment at Angaston Football Club.
A SafeWork SA investigation found the cause of the accident was a fault in the engineering design of the structure by CPR. Bolts stipulated in the design to hold down the base plates of the columns of the spectator terrace were inadequate and did not meet the National Construction Code. JAC failed to identify the fault during an independent compliance certification process.
SafeWork SA charged both firms under section 33 of the Work Health and Safety Act 2012 (SA) with failing to comply with their health and safety duty to provide a design that is safe for its intended use once built and also for the workers during the construction phase, pursuant to s22 of the Act.
Both companies pleaded guilty in the SA Employment Tribunal. CPR was convicted and fined $50,000 (but will pay $30,000 after discount) while JAC was convicted and fined $20,000 (but will pay $12,000 after discount).
In her judgement, Magistrate Eaton said:
‘Although human error was responsible for the fault in the original design drawing, it was the failure of the review processes that allowed that mistake to go undetected and result in the subsequent structural defect which caused the collapse.
I accept that both had review procedures in place, but in the case of CPR they were not followed and in the case of JAC they were inadequate.’
This article was written by Chris Morey, Special Counsel.
Queensland
On 14 June 2024 Narellan Pools Pty Ltd (the Defendant) was convicted of industrial manslaughter. This marks the third industrial manslaughter conviction in Queensland since the introduction of the provisions in 2017, following the decisions in R v Brisbane Auto Recycling Pty Ltd & Ors in 2020 and R v Jeffrey Owen in 2022.
The Defendant was involved in the manufacturing, distribution and sale of in ground fiberglass pools. As a part of its operation the Defendant moved cast fiberglass swimming pools from one part of site to another, utilising a 12-tonne mobile crane.
On the day of the incident on 19 August 2021 the yard foreman was acting as the dogger for the crane driver, who was moving a precast pool weighing approximately 650 kilograms. The foreman had been holding the tether line by which the pool was being lifted and walking alongside the crane. Owing to the speed at which the crane was being driven the pool was swinging side to side. The crane struck the foreman, knocking him to the ground, driving over him and reversing back over.
The Defendant pleaded guilty on the basis that they did not have:
- a traffic management system;
- a safe work method statement or documented safe operating procedure for the operation of the crane;
- procedures in place for exclusion zones or safety envelopes; and
- training for dogmen at the site.
It was noted that the defendant company had some safety policies and engaged consultancy firms suitably qualified to provide reports and identify risks. However, the obvious risk leading to the incident was not identified anywhere prior to the accident in question. Further, another dogger had taken issue with the crane driver regarding the driver operating the crane too fast and his manner of driving had previously been raised with the facility manager.
Everson DCJ observed that: ‘Not only was this risk not identified beforehand but the crane driver was clearly operating the crane in a dangerous manner well before the incident occurred and steps had not been taken by employees of the defendant, who had a responsibility to do so, to prevent this continuing.’
His Honour distinguished this case from R v Brisbane Auto Recycling Pty Ltd & Ors, noting ‘On the facts before me, the defendant has not engaged in a cowboy operation like this or in anything like this level of egregious conduct.’
It was held that given the ‘flagrant’ breaches of its obligations pursuant to the Work Health and Safety Act 2011 (Qld) and general considerations of deterrence, a substantial fine of was warranted. The Defendant was therefore convicted and fined $1.5 million, and a conviction was recorded.
The conviction of Narellan Pools Pty Ltd serves as a reminder for employers to carefully consider and mitigate the risks posed to persons. The Work Health and Safety prosecutor will critically look to a defendant’s knowledge of the risk or what the defendant ought to have known, in addition to the measures implemented to minimise or eliminate the risk.
This article was written by Thea Price, Partner and Claire Stevens, Solicitor.
Victoria
In a significant Victorian prosecution, the County Court of Victoria has fined, with conviction, rubber manufacturing and distribution company The Elastomers Pty Ltd (Company) for its contravention of sections 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (Vic). The Company plead guilty to one charge of failing to provide and maintain a safe working environment for employees by failing to provide or maintain plant that was safe and without risks to health, resulting in the death of an employee in 2021.
Although the occurrence of death or serious injury is not an element of the offences charged, the Court noted that an accused is to be sentenced according to the gravity of the offending. On this basis the Court found that the moral culpability of the Company was high given its failure to consider whether workers accessing plant colloquially known as the ‘Wig Wag’ had been provided the highest level of protection.
At the time of the incident, two workers were tasked with operating an item of plant known as the Akron Line 2 (Line 2) which was split over two levels. On the ground floor level, Line 2 contained an alcove housing the Wig Wag which was composed of two mechanised panels that reciprocated from left to right laying finished rubber product into an open topped container that sat on top of a scissor lift in the alcove.
On 21 May 2021, the ground level operator accessed the ‘danger zone’ within the Wig Wag, presumably to clear rubber product which had jammed the machine. Upon entering, the worker interrupted the light curtain and stopped the operations of the machine. The upper-level operator could not see the worker in the danger zone, nor had he been instructed to check the danger zone prior to restarting operations. The upper-level operator restarted the Wig Wag.
The Wig Wag started reciprocating and struck the worker in the head. Paramedics attended the scene, but tragically the worker died at the scene.
The Court highlighted the gravity of the offending in sentencing the Company and took into account a victim impact statement provided by the deceased worker’s son. It was ultimately found that the Company had failed to turn its mind to providing the operators of the Wig Wag with the highest level of protection available. The Court was critical of submissions made by the Company relying on the fact that there has been no ‘near misses’ and reiterated that an employer is expected to be proactive in addressing potential safety risks. The Court also had regard to the fact that the incident was an entirely foreseeable tragedy given that it was clear the risks were present for a considerable period, and it was very likely that serious injury could occur.
The Court imposed a fine of $450,000 with conviction, taking into account the objective gravity of the offence, the Company’s moral culpability, it’s efforts to address the risk post incident and the Company’s guilty plea.
The Court noted that but for the plea of guilty it would have imposed a fine of $650,000 with conviction.
This article was written by Tony Lawrence, Partner and Mark Muntz, Solicitor.
Australian Capital Territory
It is now almost 12 months since the ACT’s new Managing Psychosocial Hazards at Work Code of Practice (Managing Psychosocial Hazards Code) took effect, maintaining the strong focus in this jurisdiction on managing psychological health in the workplace.
The Managing Psychosocial Hazards Code sets out the interrelationship between the duties in the Work Health and Safety Act 2011 (ACT) and psychosocial hazards, and the process of identifying, assessing and controlling psychosocial hazards in the workplace.
Further reform is also on the horizon, with the Sexual and Gender-Based Harassment Code of Practice (Sexual and Gender-Based Harassment Code) to take effect on 11 November 2024.
The Sexual and Gender-Based Harassment Code is based on the nationally agreed model code of practice and complements the recent amendments to the Sex Discrimination Act 1984 (Cth) to introduce a positive duty to prevent and eliminate sexual harassment and sex discrimination in the workplace.
The ACT Government has stated the Sexual and Gender-Based Harassment Code is intended to build on the guidance contained in the Managing Psychosocial Hazards Code, and assists PCBU’s to meet their WHS obligations in gender-specific circumstances.
The Sexual and Gender-Based Harassment Code addresses a range of harassment and behaviours based on gender and sex that create a risk of harm at work, including sexual harassment and hostile work environments on the grounds of sex.
To meet their duties, a PCBU must eliminate or minimise the risk of sexual and gender-based harassment so far as is reasonably practicable by applying a risk management process.
This article was written by Alison Spivey, Partner and Harriet Boothman, Senior Associate.
New South Wales
In a further Safework NSW dust prosecution, on the 24 June 2024, the NSW Court of Criminal Appeal found that Safework commenced their Work Health and Safety, section 19(1) and 32, prosecution proceedings, outside the two-year limitation period and ordered the summons to be dismissed.
The appeal decision of Prime Marble & Granite Pty Ltd v Safework NSW determined that Safework NSW had reasonable grounds, as of 30 August 2017, for a belief that one or more individuals were being exposed to a risk of death or serious injury, by exposure to Respirable Crystaline Silica (RCS) dust, at the work premises.
On the 30 August 2017, a Safework NSW Inspector attended the work premises of Prime Marble & Granite Pty Ltd (Prime Marble) at Greenacre in Sydney to measure worker exposure to RCS dust, as part of the Safework Silica Project.
Prime Marble conducts a business of cutting, shaping, grinding, and polishing engineered and natural stone at its work premises at Greenacre.
Safework undertook personal monitoring of six of the workers, who conducted work on engineered and natural stone at the premises. The results recorded exposures to airborne RCS of five of those workers on that day, of between 2.1 and 7.5 times higher, than the Australian Workplace Exposure Standard, at that time.
The Inspector, by his report dated November 2017, formed the view that Prime Marble was in breach of the WHS Regulations by exposing workers to RCS above the applicable exposure standard of 0.1mg per cubic metre. The Inspector recommended that Prime Marble undertake health monitoring of its workers.
On 20 April 2018, Safework issued Prime Marble with an improvement notice setting out a contravention of section 19 of the WHS Act of NSW regarding ongoing work with engineered and natural stone, directing compliance with health monitoring as mandated by the WHS Regulations.
In May and June of 2020, two workers of Prime Marble, who had worked on cutting, grinding and shaping marble, granite and manufactured stone products, died from dust diseases.
On 30 March 2023, Safework commenced the section 19 and 32 prosecution proceedings regarding one worker for a period of 2015 to 2018 and the other worker for the period of 2012 to 2018.
In the defence of the prosecutions, Prime Marble argued that Safework was aware of the offence in 2017 and that is when the two-year limitation period commenced.
The Court of Criminal Appeal determined that section 32 of the WHS Act is directed to the risk to health and safety and is not dependent upon the manifestation of that risk.
The WHS Act states that the statutory time limit commences within two years after the ‘offence first comes to the notice of the Regulator.’
As Safework had reasonable grounds to believe the workers were exposed to a risk of death or serious injury, by exposure to RCS dust, as at 30 August 2017, the two year limitation period commenced at that point.
As the summons were commenced on 30 March 2023, the court ordered that the summons in both matters be dismissed.
This article was written by Greg McCann, Partner.
