National Safety Newsletter – May 2024

30 May 2024

Welcome to the HWL Ebsworth National Safety Newsletter. In this update, we discuss the following:

  • Recent WHS decisions on worker’s exposure to respirable crystalline silica;
  • WHS reckless prosecution from workplace exposure to cobalt dust;
  • TAS WHS mining company conviction;
  • Proposed changes to industrial manslaughter laws in QLD;
  • Significant WHS prosecutions in WA;
  • ACT increases WHS penalties; and
  • WHS culture amendments and leading safety indicators.

Engineered stone forthcoming ban

On 10 May 2024, the Work Health and Safety (WHS) Ministers of the Commonwealth, and each State and Territory of Australia, met and determined to continue with the proposed ban on the use of engineered stone.

The model WHS Regulations will be amended to give effect to the prohibition on the use of engineered stone, to protect workers from silicosis, which is a deadly lung disease caused by exposure to respirable crystalline silica (RCS).

The decisions of the Ministers now pave the way for each State and Territory to adopt the amendments to their respective WHS laws to give effect to the prohibition from 1 July 2024.

Some jurisdictions will have a transition period which will be published by each safety regulator in Australia.

In NSW, the use, supply and manufacture of engineered stone benchtops, panels and slabs will be prohibited from 1 July 2024. There will be a transitional period for contracts for the installation of engineered stone benchtops, panels and slabs entered into on or before 31 December 2023, if the installation is completed by 31 December 2024.

The Safety Regulators have advised that activities undertaken during this period must be appropriately controlled and will be subject to stronger WHS regulations for high-risk crystalline processes.

To assess the status of the proposed bans in your home state or territory, contact your local safety specialist, listed in our incident response contact card here.

WHS decision on worker’s exposure to respirable crystalline silica

The NSW District Court, on 17 May 2024, convicted and fined Edstein Creative Pty Ltd the amount of $500,000 before reducing the penalty to $375,000 to reflect the early plea of guilty, where a worker was exposed to RCS for the period of 1 January 2012 to 1 November 2018, in the Newcastle and Hunter regions of NSW.

The company provided a range of stone products which were installed in residential and commercial buildings, where approximately 80% of the work involved the use of engineered stone products, including Caesarstone.

The worker, engaged by the company, would attend to a number of customers and install precut manufactured stone benchtops, mainly in residential premises. If the benchtop did not fit, then trimming, cutting or cutting holes for sinks and taps was required. The usual tool to use when cutting the benchtop was for a co-worker to hold a vacuum to capture the dust. Any residual dust would be collected by the vacuum or dustpan and brush. The workers were exposed to RCS during the work.

The silica content of the manufactured stone is usually approximately 90% compared to 3% in natural marble and 30% in granite.

The use of hand tools to saw, trim or shape slabs of fabricated manufactured stone products can generate various amounts of RCS in the breathing zone of the worker. The worker suffers from engineered stone silicosis.

The Court determined that the offence is objectively serious, as the risk to the workers existed over six years, despite the company’s knowledge of the risks and the availability of measures to address the risk were neither expensive nor difficult to implement.

The company was convicted and fined for breaching the duty imposed by section 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act NSW), to ensure the health and safety of workers, where a risk of serious illness was present.

WHS reckless prosecution from exposure to cobalt dust

In another WHS dust prosecution, an industrial chemical manufacturer entered a plea of guilty to reckless conduct in a breach of the WHS Act NSW in exposing two workers to cobalt dust from 2014 to 2019. One worker developed occupational asthma following testing which also identified supranormal levels of cobalt in his bloodstream.

The manufacturer failed to take corrective actions to address the findings in its risk assessment in 2014 and failed to take immediate corrective action that was identified in a report received in August 2019.

On 1 May 2024, before the District Court in Sydney, the manufacturer was convicted and fined the amount of $1.2 million.

TAS mining company convicted on WHS incident

In January 2020, a worker was operating a loader (bogger) in the underground operations of the Henty Gold Mine on the west coast of Tasmania, when the drive he was working in above an old mining area, collapsed, causing fatal injuries.

The operator of the Henty Gold Mine was charged with breaching the Work Health and Safety Act 2012 (TAS) in failing to ensure the health and safety of its worker. The Court held that the company had failed to properly assess the risk of the drive collapsing by not considering and confirming the overall stability of the area and the type of fill used in the old mining area.

On 30 April 2024, the Burnie Magistrates Court convicted the company and imposed a fine of $150,000, in finding that the company was safety conscious and generally had appropriate systems in place to ensure the health and safety of its workers.

Industrial manslaughter – proposed changes in QLD

The QLD Government has introduced a Bill to amend the industrial manslaughter laws in the Work Health and Safety Act 2011 (QLD).

The proposed changes to industrial manslaughter expand the duty of a person conducting a business or undertaking (PCBU) or senior officer to protect not only workers, but also individuals. In addition, if, on a prosecution for industrial manslaughter, there is insufficient evidence to prove the offence, the amendments allow for an alternative verdict of a category one or two offence, if that offence is established on the evidence. The existing penalties of 20 years imprisonment for industrial manslaughter remain unchanged.

In addition, the WHS category one offence of negligent conduct is expanded to include reckless conduct. The changes also allow for an alternative verdict from a category one offence to a category two offence.

The Bill also amends the Safety in Recreational Water Activities Act 2011 and the Electrical Safety Act 2002 and Regulations of QLD.

WA update

The first prosecutions under the Work Health and Safety Act 2020 (WA) (WHS Act WA) have been initiated by WorkSafe WA. Commencing operation on 31 March 2022, it is now two years since the WHS Act WA came into effect. We expect to see more prosecutions being initiated as the reduced two year (down from three years) limitation period on prosecutions approaches for alleged breaches occurring since that date.

The first WA prosecutions are of an engineered wood product manufacturer, a haulage and crushing contractor and a mine operator, each as a separate PCBU. The two incidents that resulted in these prosecutions occurred in April 2022, demonstrating that WorkSafe WA may leave the filing of the prosecution notice to the end of the limitation period and that, not hearing from WorkSafe WA until the end of the limitation period is no guarantee that a prosecution will not be initiated.

One of the prosecutions arose from the PCBU in question allegedly failing in its duty while in control of plant and causing serious harm to an individual whose arm was dragged into an unguarded section of a conveyor belt. The other prosecution arose from two PCBUs allegedly failing to ensure the health and safety of a worker and, by that failure, causing serious harm to an employee who suffered a crush injury whilst clearing an obstruction from near an unguarded roller. If the PCBUs involved plead guilty to the charges, or are found guilty of the charges, the maximum penalty for each category four offence will be up to $3.5 million for each PCBU.

The level of these prosecutions reflects the seriousness with which WorkSafe WA is approaching workplace injuries and dangerous situations resulting from breaches of the WHS Act WA. In its media release regarding the prosecutions, WorkSafe WA has warned that breaches of the WHS Act WA that result in serious injury or death may result in individual prison terms and has encouraged PCBUs to be proactive in managing risks.

ACT increases WHS penalties and directs psychosocial risk controls

Worksafe ACT has further clarified the duty to manage psychosocial risks in conjunction with the general risk management provisions of the WHS Regulations. Worksafe has noted that a PCBU must implement the control measures that arise from their psychosocial risk assessment.

The penalties set out in the Work Health and Safety Act 2011 (ACT), have recently increased, where the maximum penalty for a corporate PCBU for Industrial Manslaughter is now $18 million, for an offence of reckless or negligent conduct is now $10 million for a corporation and officers now face a maximum penalty of 10 years imprisonment and a fine of over $2 million.

The penalty increases are consistent with Safework Australia and are setting the standards for each safety regulator around Australia.

Leading safety indicators and WHS culture

In our February 2024 Safety Newsletter, we discussed the new provision in the WHS Act NSW of an alleged failure of a PCBU to take reasonable precautions, to provide adequate management or supervision and a failure to convey relevant information to relevant persons in the PCBU.

The WHS Act NSW has also been amended to ensure that if a corporate culture exists that has been directed, encouraged or tolerated, that leads to the commission of a WHS offence, the PCBU will carry the onus to prove that it took reasonable precautions to prevent the conduct of the offence.

In simple terms, if the safety culture of your business allows a variance to a safe system of work, which is unsafe, then evidence of the safety culture will be used to prove a WHS offence.

To manage this onerous obligation, it is recommended that your safety management system includes regular reporting on leading indicators of safety at the workplace.

In 2017, a SafeWork Australia report recommended that reliance on one dimensional metrics, such as lagging indicators of safety, will not measure or point to success. It is only through the proactive or leading indicators of safety being implemented, that a safety management system will operate effectively and support the officers due diligence obligations.

Implementing the right measures of lagging and leading indicators of safety will balance the safety culture of your business and go a long way to ensuring compliance with the directors and officers due diligence obligations.

This newsletter was written by Greg McCann, Partner and Danielle Flint, Special Counsel.

Danielle Flint

Special Counsel | Perth

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