quarterly safety review 03-2016

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QUARTERLY SAFETY REVIEW 03-2016

Editorial

This is the third Quarterly Safety Review for 2016. It encompasses Safety Alerts 24-2016 to 36-2016, over the months of July 2016 to September 2016.

The Quarterly Safety Review is organised by jurisdiction, and subdivided by the topics of Legislative Updates, General News Updates and Case Summaries.

The Review is a summary of legislative changes and proposed legislative changes from the preceding quarterly period. It also summarises significant prosecutions which may

have set a precedent, and prosecutions of Directors and Officers. WSA also aim to highlight emerging national safety risks via general news updates.

This collective support material should make it easier for our Safety and HR Managers to report and update executive and board members on safety compliance and risks.

The following jurisdictions are covered in this Review (please select a jurisdiction to skip to it):

Commonwealth/National

New South Wales

Victoria

Queensland

South Australia

Western Australia

Australian Capital Territory

Tasmania

Northern Territory

For further information on the featured stories please select the connected hyperlink. This will direct you to the corresponding Safety Alert which can be accessed via the

WSA safety member home webpage: www.worksafe.com.au Kind Regards,

Kim Schekeloff Director Workplace Safety Australia Pty Ltd

http://www.worksafe.com.au/

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Commonwealth/ National

Legislative Updates

Marine Order 30 (Prevention of Collisions) Varied

Industries: Marine

Keywords: Marine Safety; Prevention of Collisions Convention; Vessel Safety; Collisions – Prevention

Of

Marine Order 30 (Prevention of collisions) 2016 (The Order) gives effect to the

Prevention of Collisions Convention, which sets out, for the prevention of collisions,

internationally agreed measures for the navigation, management and working of a

vessel, and the lights and signals to be provided and used on a vessel.

The Order provides for AMSA to approve the lights, shapes and sound signal appliances

on a vessel as being in compliance with the International Regulations for Preventing

Collisions at Sea, 1972 (the International Regulations). The Order requires that the

measures for prevention of collisions that are set out in the International Regulations

must be observed in the operation of a vessel.

The Order also specifies the traffic separation schemes and inshore traffic zones that

the IMO has adopted for the International Regulations. If a vessel cannot comply with

the International Regulations because of its special construction or purpose, AMSA may

make a determination about the closest possible compliance for the vessel with the

International Regulations.

Commencement: 1 August 2016

For further information see Safety Alert: 28-2016

Agvet Regs Amended

Industries: All Businesses that Manufacture, Import or Supply AGVET Chemicals

Keywords: Agricultural and Veterinary Chemicals Code; AGVET Chemicals – Labelling; AGVET

Chemicals – Storage and Handling

Regulation 19AE of the Agricultural and Veterinary Chemicals Code (Notifiable

Variations) Instrument 2016 allows for certain variations to the relevant particulars of

registered products, approved active constituents and approved labels to be made

through the process of notifiable variations. Through this process, holders can make

minor changes to the details of an approved active constituent, registered product or

approved labels by notice rather than by way of a new application. Multiple changes

can be made in one notification to the APVMA for a single fee using the APVMA online

services.

http://worksafe.com.au/online/file.php?fid=alerts/2016/OHS%20Alert%2028%20-%202016.pdf

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The instrument provides for additional variations that can now be dealt with by way of

notification rather than requiring a full application. These include:

A variation to the address of a site at which the approved active constituent is manufactured by the manufacturer if there is no physical change of location;

A variation to the name of any other registered products referred to within the instructions for use on the label (provided the referred to product has the same

APVMA distinguishing number). This item includes a variation of an approved label but only if a label for the chemical product as varied would not include any misleading or deceptive information about the use, safety, environmental impact

or efficacy of the chemical product; A variation to the instructions for storage and disposal of containers of products,

in line with the relevant requirements for the type of container as specified in the Agricultural Labelling Code or Veterinary Labelling Code made by the APVMA. But only if the variation will not result in other instructions for use being

modified or affected. This item includes a variation of an approved label but only if a label for the chemical product as varied would not include any misleading or

deceptive information about the use, safety, environmental impact or efficacy of the chemical product;

A variation to safety directions and first aid instructions appearing on a label to

reflect the current FAISD handbook. This item includes a variation of an approved label but only if a label for the chemical product as varied would not

include any misleading or deceptive information about the use, safety, environmental impact or efficacy of the chemical product;

A variation of the net contents of a veterinary product but only if:

o the variation will not result in the instructions for use, or disposal, of the product or containers for the product, being modified or affected; and

o the net contents is in the range recorded in the Register for the product.

This item includes a variation to the label but only if a label for the chemical product as

varied would not include any misleading or deceptive information about the use,

safety, environmental impact or efficacy of the chemical product.

Commencement: 26 July 2016


http://www.worksafe.com.au/online/file.php?fid=alerts/2016/OHS%20Alert%2029%20-%202016.pdf

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Changes to Rail Safety National Law Come Into Effect

Industries: Rail Transport

Keywords: Rail Safety; Authorised Officers – Powers; Railways – Works, Safety; Infringements -

Penalties

Amendments to the Rail Safety National Law (RSNL) include;

Reference to the Australian Quality Training Framework (AQTF) has been removed as it no longer applies nationally. There will not be any change to requirements and competency must still be assessed in accordance with the

Australian Qualifications Framework (AQF). A revised definition of the AQF has also been inserted to avoid the need for amendment if the name changes;

An authorised officer may secure a site for compliance and investigation purposes. The amendment clarifies that this may include rolling stock. Authorised officers will continue to secure sites or rolling stock using the non-

disturbance notice; When a rail infrastructure manager (RIM) receives notification of works on or

near a railway, they are now able to respond to the third party with written advice – where those works threaten or are likely to threaten the safety of the railway or its operational integrity. Failure of a third party to comply with this

written advice will not carry a penalty. The amendment seeks to encourage resolution of issues at a local level and will not impact on the power of the

National Rail Safety Regulator to intervene if requested; An amendment to section 33 and the insertion of new section 120A will clarify

that infringement fines will be paid to the ONRSR, and that ONRSR may receive

up to half of any penalty payable by a convicted person (at the direction of a court). Money received from infringement fines and penalties will be invested by

ONRSR into safety improvement initiatives. An amendment to section 218 clarifies that if there is a conflict in the periods

within which a prosecution may be commenced, it is the later period that applies;

An amendment of Regulation 57 gives the Regulator the ability to permit an

accredited operator to provide a written category A or B report later than 72 hours. It is not expected to be used often. An example may be where an

operator requests extension in preparation for a public holiday or shutdown period, because there will be limited staff to provide written reports. The Australian Transport Safety Bureau (ATSB) may still require a report within the

extended period under the Transport Safety Investigation Act 2003 (TSI Act).




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Offshore Marine Safety Regulation Updated

Industries: Maritime

Keywords: Offshore Facilities – Safety; Maritime Transport – Safety

The purpose of the Maritime Transport and Offshore Facilities Security Act 2003 (the

Act) is to safeguard against unlawful interference with maritime transport and offshore

oil and gas facilities. To achieve this purpose, the Act establishes a regulatory

framework and minimum security requirements for the Australian maritime industry by

imposing obligations on persons engaged in certain maritime-related activities.

Subsection 119(1) of the Act provides that regulations may be made, for the purposes

of safeguarding against unlawful interference with maritime transport or offshore

facilities, with respect to screening and clearing.

Subsection 209(1) of the Act provides that the Governor-General may make

regulations prescribing matters required or permitted by the Act to be prescribed, or

necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

The Act was recently amended to remove Australian ships used solely for inter-State

voyages from the definition of ‘regulated Australian ship’ in section 16 of the Act. A

regulated Australian ship is a ‘security regulated ship’ for the purposes of section 15 of

the Act, and must comply with the terms of the Act and the Maritime Transport and

Offshore Facilities Security Regulations 2003 (the Principal Regulations).

The purpose of the Maritime Transport and Offshore Facilities Security

Amendment (Inter-State Voyages) Regulation 2016 (the Regulation) is to amend the

Principal Regulations to:

Align the Principal Regulations with recent amendments to the Act; Remove the requirement for port facility operators’ maritime security plans to

specify measures and procedures for screening and clearing passengers and baggage boarding an Australian ship used on inter-State voyages in a low risk environment;

Make minor corrections to clarify certain provisions in the Principal Regulations.

The Regulation ensures that Australian ships used to carry passenger and vehicles on

inter-State voyages continue to be security regulated by prescribing them as regulated

Australian ships. It is in the public interest to continue the security regulation of these

ships due to the nature of their operations in transporting large numbers of passengers

and vehicles.

The Regulation also removes the obligation for port facility operators to set out

procedures for screening and clearing passengers and baggage boarding an Australian

ship used to carry passengers and vehicles on inter-State voyages in low risk

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environments in their maritime security plans. While procedures for detecting weapons

and prohibited items are still required, the amendment eases the regulatory burden

without increasing the risk of unlawful interference with maritime transport.

Allowing for alternatives to screening and clearing where there is no reduction in

security outcomes is consistent with the overall legislative framework, which requires

operators to assess their risk and determine the best method for addressing that risk in

the context of their operating environment.

If a cleared zone is established at a port facility in the future, for example in response

to an imminent or probable threat to the ship operator docking at that port facility, the

port facility operator will be required to conduct screening and clearing of passengers

and their baggage boarding Australian ships used to carry passengers and vehicles on

inter-State voyages.

Various subregulations in the Principal Regulations refer to ‘security regulated

passenger ships’. This phrase is not defined in either the Act or the Principal

Regulations and is potentially confusing. The Regulation replaces this phrase with

‘security regulated ships that are passenger ships’ to clarify to which ships these

provisions apply.



General News Updates

New Chemical Database Provides Easy Access to Chemical Information

A new, easy to search chemicals database is available on the Safe Work Australia website.

The Hazardous Chemical Information System (HCIS) provides information on chemicals that have been classified in accordance with the Globally Harmonized System of

Classification and Labelling of Chemicals (GHS).

The new database features classification and labelling information for over 4500 chemicals, including pictograms as well as a searchable database of workplace exposure standards.

HCIS replaces the previous Hazardous Substance Information System (HSIS) and will

make it easier for manufacturers, importers, suppliers and end-users of chemicals to meet the requirements of the GHS.

The GHS will become mandatory under the model work health and safety laws from 1 January 2017.


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Manufacturers, importers and suppliers of hazardous workplace chemicals are

responsible for ensuring that correct GHS labels and SDS are prepared for hazardous chemicals.

Users of workplace hazardous chemicals can keep using, handling and storing hazardous chemicals labelled in accordance with a previous labelling code if the

product was supplied before 1 January 2017.

From 1 January 2017, users should not accept new hazardous chemical products that are not GHS labelled, e.g. labelled in accordance with previous labelling codes.

More information about the Hazardous Chemical Information System and the GHS is available on the Safe Work Australia website.

Users of the database should note that the classifications and labelling information is provided as advice only.


New Comcare Compliance and Enforcement Policy

Comcare’s new Compliance and Enforcement Policy became effective on 1 July 2016.

The Policy addresses regulatory functions and powers under both the Work Health and

Safety Act 2011 and the Safety, Rehabilitation and Compensation Act 1988. The new

Policy:

• States Comcare’s vision as a regulatory agency;

• Articulates four focus areas to guide change into the future;

• Categorises Comcare’s compliance and enforcement activities into four main

streams;

• Adopts some terminology that may initially seem unfamiliar. Comcare has stated

that it will increasingly use terms and concepts from the Compliance and Enforcement Policy to frame Comcare’s compliance and enforcement activities.

Comcare has stated that the Compliance and Enforcement Policy will be supplemented

by Regulatory Guides, which will be published progressively to provide more detailed

policy guidance on regulatory topics.




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Border Protection Force Raids Target Asbestos Importation

On 21 July the Australian Border Force (ABF) executed several warrants in response to

recent detections of asbestos in building materials imported from China. The warrants,

relating to suspected illegal imports of building products containing asbestos, involved

Yuanda Australia.

ABF investigators seized digital and physical evidence, and notified the company that

all goods imported by the company and its affiliates will be held at the border until it is

confirmed the goods have been tested by a National Association of Testing Authorities

(NATA) accredited laboratory and no asbestos contamination is present.

In a press release following the raids, the ABF noted that it is the responsibility of

importers to ensure that their goods do not contain asbestos:

Yuanda Australia has been cooperative throughout this process and the ABF will

continue to engage with the company, its suppliers and customers to ensure all

products entering Australia comply with our strict import ban on asbestos.

Australia is one of a few countries that has a ban on asbestos imports. Since the

ABF was stood up on 1 July 2015, it has increased its operational focus on

preventing asbestos imports from entering Australia. This has resulted in an

increased number of detections and seizures of imports containing asbestos in

2015-16 compared to 2014-15.

These raids followed a meeting of the Heads of Workplace Safety Authorities Working

Group, where the ‘Rapid Response Protocol’ (RRP) was invoked. The RRP enables

information about an incident to be shared across relevant government agencies,

ensuring a nationally uniform response.

The ABF noted:

Stopping dangerous goods, before or at the border, is a priority for the ABF. But

with ever-increasing volumes of goods crossing our border, it must balance this

enforcement role with facilitating legitimate trade.

Individuals can face fines of up to $180,000 or three times the value of the goods,

whichever is the greater for asbestos importation related offences and companies can

face fines up to $900,000.



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New Safe Work Australia Guide for Working With Trees

Safe Work Australia has published a new guide to help arborists, tree climbers,

horticulturalists, gardeners, tree workers, landscapers, builders, developers and others

involved in the amenity tree industry.

Tree trimming and removal work includes lopping, pruning, trimming, repairing,

maintaining and removing amenity trees as well as wood chipping and stump grinding

operations.

This work presents various hazards for workers, such as:

Slips, trips and falls;

Manual tasks like lifting and holding machinery; Punctures and cuts from branches;

Falling objects like branches or felled trees.

Injuries in this line of work can range from small cuts, to more serious trauma, and in

some cases, death.


New Safe Work Australia Report on Agricultural Safety

Safe Work Australia has released a new publication, Work Health and Safety in the

Agricultural Industry.

The report identifies key risks faced by workers in the agricultural industry and

provides statistics about injuries, fatalities and workers’ compensation, including how

the agricultural industry compares with other industries.

Key findings include:

The fatality rate in the agricultural industry is significantly higher than the all industry average, however, in line with the overall downward trend has fallen by 24% since 2003;

Around three quarters of fatalities in the agricultural industry involved vehicles and approximately a third of fatally injured workers were aged 65 and over.

The rate of serious workers’ compensation claims in the agricultural industry fell by 14% between 2000-01 and 2012-13;

Over 50% of serious workers’ compensation claims in the agricultural industry

resulted from body stressing injuries or being hit by moving objects.



http://safeworkaustralia.cmail2.com/t/j-l-khtuwy-ziliykkhl-e/

http://safeworkaustralia.cmail2.com/t/j-l-khtuwy-ziliykkhl-e/


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New South Wales

Legislative Updates

Planning Certificate Changes in NSW

Industries: Residential Construction; Local Government

Keywords: Asbestos; Dangerous Substances; Local Government Planning

The object of the Environmental Planning and Assessment Amendment (Loose-fill

Asbestos Insulation) Regulation 2016 is to require a planning certificate relating to land that includes residential premises listed on the register under Division 1A of Part 8 of the Home Building Act 1989 to include a statement that the premises are listed on that

register. That register lists residential premises that contain or have contained loose-fill asbestos insulation.

Commencement: 20 June 2016


Changes to NSW Radiation Regulation Effective in NSW

Industries: All Industries and Businesses that use Radioactive Substances

Keywords: Radiation Safety; Radioactive Substances; Gas Chromatography Detectors; Radiation

Safety – Warning Signs

The objects of Radiation Control Amendment (Exemptions and Fees) Regulation 2016

are:

To omit redundant exemptions from radiation management licensing requirements for certain sealed source devices (currently in Part 5 of Schedule 3 to the Radiation Control Regulation 2013) relating to gas chromatography

detectors (which are dealt with by item 7 of Part 2 of Schedule 3) and certain devices that contain a sealed radioactive source used only as a laboratory

reference source (which are dealt with by item 4 of Part 2 of Schedule 3); To omit an exemption from management licence requirements for certain

enclosed x-ray diffraction, absorption and fluorescence analysers that comply

with the requirements for enclosed units (while retaining the exemption from user licences for those analysers);

To update an existing exemption from radiation management and radiation user licensing requirements for radioactive substances in gas chromatography detectors so that it refers instead to radioactive substances used in an electron

capture detector or similar device used in gas chromatography, which is consistent with the terminology used in the National Directory for Radiation

Protection approved by the Health Ministers for the States, Territories and Commonwealth;

To provide that an existing obligation to display warning signs in the immediate vicinity of regulated material applies to material not specified in Part 4 of


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Schedule 3 (which deals with ionising radiation apparatus) rather than Part 5

(which is being repealed); To prescribe the fees applicable when the Environment Protection Authority or a

person authorised by the Authority serves a notice on a person to avoid or remedy contraventions of the Act, the Regulations or licensing or accreditation requirements or to avoid or remedy unnecessary exposure to or contamination

by radiation. Commencement: 24 June 2016



NSW to Get Revamped Resource Regulator

The NSW Department for Industry has announced an internal restructure to create a Resources Regulator to undertake compliance and enforcement of a broad range of

activities within the resources sector.

The new regulator provides a formal separation between the teams responsible for

regulatory oversight of the sector from those with an industry development focus. This provides for a very clear differentiation between the regulatory and development arms with the objective of increasing transparency and community confidence.

Mining is an essential industry for NSW, generating tens of thousands of jobs and

billions of dollars in royalties for the state. The State has an important role to support it and ensure that it continues to develop and grow, but within the parameters of an effective regulatory regime that protects the interests of those employed in the

industry, the community, the environment and the investors in the sector.

The new Resources Regulator will be headed up by Chief Compliance Officer Lee Shearer who will report directly to the Secretary of the Department of Industry Simon Smith. The Industry Development team will continue to report into the Deputy

Secretary of Resources of Energy, Kylie Hargreaves.

An advisory committee will also be established to oversee and advise on major enforcement actions, providing confirmation to the community that these matters are conducted under law and without fear or favour.

The Advisory Committee will be comprised of the Secretary of the Department of

Industry, the Chief Compliance Officer, the NSW Land & Water Commissioner, the General Counsel for the Department of Industry and an experienced independent former regulator.

Stakeholders who have an interest or obligations in relation to compliance and regulation of the mining sector will liaise with the same contacts within the Department,

but should be aware of the change of name and reporting lines.




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SafeWork NSW Warning on Crush Incidents

The risks of workers being hit or crushed when working on heavy vehicles and trailers

is the subject of a recent SafeWork NSW Alert.

According to the Alert workers frequently need to work on or under a heavy vehicle or

trailer to clean it, check for faults, or undertake servicing and repairs. The Alert follows

an incident in April 2016 when two workers were working on a truck that was parked

on an incline, with its front wheels on a set of portable vehicle ramps. The rear wheels

had not been chocked to prevent the truck from moving.

The truck was in gear and the handbrake applied, but both were rendered inoperable

when the tail-shaft was removed from the transfer case, which allowed the truck to roll

off the ramps. One worker was trapped, while the other suffered facial injuries when

hit by the tail-shaft. There have been other incidents involving heavy vehicles or

trailers hitting or crushing workers.

Some of the contributing factors to these type of incidents include:

Workers being under a heavy vehicle or trailer, or in its path;

Unsafe systems of work, such as poor traffic management; Failing to immobilise the vehicle; The handbrake of the vehicle not applied;

Components of the heavy vehicle or trailer not restrained or adequately supported;

Brakes malfunctioning; Not conducting a risk assessment.

SafeWork suggests the following:

Immobilising Heavy Vehicles

Before getting out of their vehicle, or working on or around a heavy vehicle, workers

need to ensure it is immobilised properly:

Switch off the motor and remove the key from the ignition to render it inoperable;

Apply the handbrake before getting out of the vehicle;

Use wheel chocks.

Install a handbrake warning systems to alert drivers when the handbrake has not been

applied – these can easily be retro-fitted.

Make sure drivers know what actions they are required to take to immobilise their

vehicle in the event of a breakdown – ie pull off the road where possible, turn on

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hazard lights, apply (or set) the hand brake, mark area with portable warning triangles

(or similar), use (or set) wheels chocks.

Workers should not carry out repairs on their vehicle unless they have received

appropriate training, and have the necessary tools and equipment.

In some cases, such as drive-line failure, it may be safer to tow the vehicle to a

workshop than attempt a roadside repair.

Working Under Heavy Vehicles and Trailers

Take the following precautions before working on a heavy vehicle or trailer that is at

risk of moving or dropping:

Never work underneath or near a vehicle that does not have a secondary

support/safety system in place, eg axle/jack stands, wheel chocks; Never work on a vehicle on uneven or sloping ground; Follow a safe system of work for raising or working under a vehicle;

Use a suitable jack or vehicle hoist when raising a vehicle – it is often a requirement of the manufacturer to have the handbrake off and the vehicle in

neutral, to protect mechanical components and enable brake adjustments and the like to be undertaken safely (the type of secondary support system you use and how you place them is critical);

Always use a secondary support system that meets manufacturing and safety requirements;

Ensure stands are on a hard, level surface and are correctly placed under suitable support points of the vehicle – any wheels remaining on the ground should be chocked;

Use vehicle hoists that have been installed in line with the manufacturer’s specifications;

Use props for additional vehicle support when removing heavy components Use a vehicle inspection pit where appropriate and when working in or near a

pit:

o restrict access to the area o cover the pit or use barriers to prevent someone falling in

o make sure the pit is clearly visible o provide a safe means of entry and exit

Risk Assessments Before commencing work, identify the hazards and assess the risks. Where

appropriate, establish an exclusion zone, use safe operating procedures and ensure

everyone is properly trained.



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Case Summaries

$75,000 Fine After Industry Accepted Procedure Leads to Fatality:

Inspector Nash v Macmahon Mining Services Pty Limited (re Junk)

On 16 March 2013, Mr Junk was fatally injured on a mine site near Cobar. He was

riding in a large steel bucket, known as a ‘kibble’. The kibble was being raised through

a platform. The aperture through which the kibble was to pass had a diameter of 1.68

metres. The kibble had a diameter of 1.61 metres. Mr Junk’s head was outside the

confines of the kibble as he was seeking to communicate with a worker and his head

was caught in the pinch point between the kibble and the platform as a result of which

he sustained his fatal injuries.

During the hearing it was acknowledged by witnesses that everyone knew that, when

travelling in a kibble, not to allow any parts of their body to protrude outside.

The Judge hearing this prosecution accepted the defendant’s submission that though

the risk existed and the occurrence of fatal injury was foreseeable, the probability of

such an incident was low. This is supported by industry history, the defendant’s

history, the issue of warning, common sense and the understanding by the workers of

warning. According to the Judge:

In Mr Junk’s case, it is heightened by the fact that he was a shift supervisor and

responsible for the supervision of the defendant’s ‘shift crew A’ on the project.

The mining method used in this case was used in mining elsewhere and the only

control for this risk was a ‘procedural control’.

The Court also heard that no engineer or government inspector or safety expert in the

industry, aware of the practice used in this case, had ever made any suggestion that

anything other than a warning of the nature given in this case was required. This

extended to overseas as well as Australian mines.

According to the Judge, measures were available to the defendant to minimise the risk.

Those measures comprised:

The use of mesh webbing;

Affixing a barrier to the kibble. The evidence did not develop whether this should have been anything different to the mesh webbing;

Providing a designated signalman;

Providing a specific signal identifying when workers were using the kibble as a means of conveyance;

Providing mandatory stop and hold points during raising and lowering of the kibble relative to the location of the pinch points;

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Providing a flashing warning light to alert workers about the movement of the

kibble through the kibble well; Providing an audible alarm to alert workers as to the movement of the kibble

through the kibble well; A documented safe work procedure that incorporated the measures referred to

above.

The Court imposed a fine of $75,000. It reasoned that it was not in doubt that the

defendant’s WHS processes were extensive:

Briefly, it may be noted that its approach to safety was project specific,

processes were supervised and monitored, processes were reviewed and

audited.

According to the Judge:

The defendant’s thinking that its warnings and common sense were good enough

to cover the risk in this case was well-founded in industry practice, in the lack of

any suggestion from anybody to the contrary, and in the understanding of the

workforce. In this regard, however, this thinking was deficient, but not for the

want of attention to safety. It was more in the nature of a want of imagination.

Risk exposing somebody to the possibility of serious injury or death is serious. In

the overall spectrum of grades of seriousness, however, I think this case falls at

the low end.

The Court determined that general deterrence needed to be factored in, particularly

bearing in mind that other facilities do utilise this system of mining and it is a high risk

industry. Fully enclosed conveyers are now used.



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$44,000 in Fines for Company and Director After Worker Impaled:

Inspector Mason v Graham Allen Chapman

The defendant company in these proceedings purchased the old Moree abattoir at

Gwydirville, Newell Highway, Moree. The Director of the defendant company was also

prosecuted as a result of an incident that occurred in September 2009 soon after the

premises had been purchased.

The premises was situated five kilometres south of Moree on the east side of the

Newell Highway. The size of the property was approximately 14 acres. It was

previously used as an abattoir but that enterprise was abandoned in approximately

1980. As at the date appearing in the charges (namely, 28 September 2009), there

were three buildings situated on the western side of the property, consisting of two

metal clad sheds and two large, two storey brick buildings which constituted the

disused abattoir. There were approximately 20 cool rooms on the site, with each cool

room containing two evaporator units. Each evaporator unit was suspended from the

ceiling of a cool room, secured by four bolts, two on either side of the unit.

The prosecutions against the corporation and Mr Chapman arose following an incident

which occurred on 28 September 2009 at the premises.

The incident occurred during the course of the removal of an evaporator from a cool

room situated in the former abattoir building at the premises. The evaporator units

were being removed as part of an investigation into the suitability of converting the old

abattoir site into a mushroom farming project.

The company had engaged Mr Jason Smith, then aged 38, and Mr Stephen Peachey,

then aged 45, to provide contract labouring services, on a casual basis, for a short

engagement to assist with the removal of fixtures and fittings at the premises. The

work designated for Mr Smith and Mr Peachey included the removal of the evaporator

units from the cool rooms.

On 28 September 2009, Mr Chapman, Mr Smith and Mr Peachey (together with a Mr

Strang, who was involved in the mushroom farming project) were working at the

premises removing the evaporator units from the cool rooms.

Leading up to the incident on the day in question, one evaporator unit had been

lowered from the wall to the ground in a cool room known as 'Cool Room No 3' using

two block and tackle units secured to steel carcass rails attached to the roof of the cool

room. That task required at least two persons to undertake it. During the course of

removing that unit, a decision was taken to give some additional support to the

evaporators during the process of detaching them from the walls by the use of ‘acrow

props.

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Shortly after 3 pm, Mr Smith entered a cool room and, working alone, commenced

removing the evaporator unit. At the same time, Mr Strang and Mr Peachey were

removing shelving from another cool room located approximately 50 metres from

where Mr Smith was working.

At this time, Mr Chapman was absent from the premises obtaining caster wheels for a

trolley manufactured by Mr Strang upon which the evaporator units could be placed for

transport and removal after they were lowered from the wall using the block and tackle

units.

In order to remove the evaporator unit from the Cool Room in which he was working,

Mr Smith adopted a system whereby he positioned the two acrow props under, and at

each end, of the evaporator unit.

This system, together with the fact that Mr Smith was working alone, was not

consistent with the procedure which had earlier been used to remove the evaporator in

the other cool room, namely, the removal of the evaporator unit using the block and

tackle units.

That method was not used by Mr Smith due to his mistaken understanding that there

was no position in the room in which he was working to which he could attach the

block and tackle units.

After positioning the acrow pops under each end of the evaporator unit in Cool Room

No 2, Mr Smith then stood on a 1.8 metre step ladder and cut two attachment bolts on

one side of the evaporator using an oxy-acetylene cutting torch. After repositioning the

ladder so it was placed under the other end of the evaporator unit, Mr Smith cut one of

the remaining bolts using the same method. The other end of the evaporator unit

dropped because the acrow props were not sufficient to prevent its movement. When

the evaporator unit dropped, it knocked Mr Smith off the ladder and, pivoting on the

remaining bolt, trapped (by one corner) Mr Smith against the wall, piercing his chest

on the left side and exiting through his back.

As a result of the incident, Mr Smith suffered a penetrating chest injury, a punctured

lung, multiple fractured ribs and a brachial plexus injury. At the time of the incident Mr

Smith had been unemployed for some time, lived locally with his parents and was a

qualified carpenter.

The Judge hearing the prosecution (both the company and the director, Mr Chapman,

pleaded guilty) noted that neither Mr Chapman, Mr Strang, Mr Smith nor Mr Peachey

held any trade qualification or certificate of competency to permit them to undertake

rigging work. None of them had any experience in detaching and removing evaporator

units or performing similar work.

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The Judge also noted that the procedure adopted was devised in the absence of any

knowledge of the weight of the evaporator units. There was no evidence of any

external advice or assistance being obtained from an appropriately experienced,

trained and certified person in relation to the development of the work procedure.

The Judge also noted that the effect of the OHS Act (2000) was that the system

devised was ‘high risk’ and therefore required those who performed it to have relevant

certificates of competency (which certificates none of the workers at the premises

held): the system devised was, therefore, inherently defective.

This prosecution was made pursuant to section 10(1) of the 2000 Act which effectively

requires controllers of premises to ensure those premises are kept safe (the section

reads ‘a person who has control of premises used by people as a place of work must

ensure that the premises are safe and without risks to health’.)

According to the Court:

This matter concerns a failure to ensure that the premises, being used by people as a

place of work, were safe and without risks to health. In particular, the defendants

failed to ensure that the activities occurring at, or the systems used in conjunction

with, the premises did not result in the premises becoming unsafe. The measures

which would have obviated the risk, as described in the particulars, were as follows:

1. Ensuring the evaporator unit was securely rigged prior to its attachment points

being cut; 2. Ensuring that work done to detach and remove the evaporator unit took place

under the supervision of a person with adequate skills and qualifications as a rigger; and

3. Ensuring that work being done to detach and remove the evaporator unit was

halted until such time as there was a system in place that ensured the unit was adequately supported.

There was evidence before the Court that both the company (which was no longer

trading) and the Director (who was not working and had little apparent income) had a

diminished capacity to pay and the Judge took this into account in sentencing.

The company was fined $40,000 and the Director $4,000 and ordered to pay the

prosecutor’s costs.



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$750,000 Compensation Awarded to Estate of Employee Who Died of

Accidental Overdose: Colleen Jones by the Executor of her Estate Carol

Hewston v DHS - Ageing Disability & Home Care

The employee in this workers compensation proceeding, Colleen Jones, died at her

home on 14 August 2015. The NSW Coroner’s Report on Dispensing with an Inquest

ascribed the employee’s death to mixed drug toxicity by accidental overdose. Ms Jones

was employed by the Ageing Disability Home Care Service (the respondent) as a

Disability Support Worker. She had suffered an injury in the course of her employment

with the respondent on 16 January 2015 when she was assisting a client.

The parties to this proceeding agreed that the only issue in dispute is whether the

death of Ms Jones ‘resulted from’ the injury she suffered in the course of her

employment with the respondent on 16 January 2015.

The Coroner’s report (put into evidence before the Commission) stated (in part):

Post-mortem results show that Ms Jones had alcohol and a number of other

drugs present in the system at the time of death. These included diazepam

(Valium), codeine (found in Panadeine Forte), amitriptyline (Endep) and

oxycodone. Amitriptyline is known to have a toxic effect at certain doses if it is

combined with alcohol. The level of amitriptyline found in the system was within

the lethal range reported in a series of deaths due solely to that drug, and in this

case it was exacerbated by alcohol. It appears that Ms Jones died of mixed drug

toxicity. There are no suspicious circumstances

Counsel for the applicant submitted that, although Ms Jones had a history of needing

prescription medication prior to the subject injury, her level of pain increased after the

subject injury requiring a high level of pain relief with increased consumption of

Panadeine Forte. The inference should be drawn, argued Ms Jones’ lawyer, that the

subject injury led to an increase in pain which led, in turn, to an increase in the level of

medication so that when, combined with alcohol, the extent of medication consumed as

result of injury resulted in death.

The Commission heard evidence of a long history of anxiety and a number of medical

conditions.

The Commission found:

Weighing the evidence, I accept the notes of the psychologist, Ms McIver, made

in respect of the attendance on 13 August 2015, as establishing that Ms Jones’

mood was affected by the consequences of the subject injury and as weighing

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the balance in favour of the view that Ms Jones increased her consumption of

medication (and in particular amitriptyline) to help her to cope.

I am therefore satisfied on the balance of probabilities that, in the period

following her ceasing work after 11 August 2015, it is likely Ms Jones increased

her consumption of medication and in particular amitriptyline in an attempt to

improve her low mood but unintentionally leading to her death.

I find that Ms Jones died on 14 August 2015 as result of injury on 16 January

2015 in the course of her employment with the respondent.

The Commission awarded the estate of Ms Jones $750,000 as compensation.



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Victoria

Legislative Changes

Commercial Passenger Vehicle Safety Changes in Victoria

Industries: Road Transport; Taxi And Ride Sharing

Keywords: Road Safety; Ridesharing; Vehicle Passenger Safety

The Transport (Compliance and Miscellaneous) Amendment (Public Safety) Act 2016 provides for the repeal of section 159 of the Transport (Compliance and Miscellaneous)

Act 1983 in order to preserve the integrity and validity of the regulation of commercial passenger vehicles in the interests of public safety.

On 18 May 2016 the Victorian County Court handed down a Judgment that was portrayed in the media as a decision that legalised the operation of ridesharing services

in Victoria. According to the Victorian Minister for Transport:

The advice the government has received is that the implications are far more significant. It undermines the enforcement of requirements imposed on commercial passenger vehicle owners and drivers in the interests of public safety.

The most serious implication is that where drivers are an obvious threat to

passenger safety, for example, when an individual has a history of sexual assaults, the Taxi Services Commission will not be able to prevent them from driving a commercial passenger vehicle.

Part VI of the Transport (Compliance and Miscellaneous) Act 1983 defines a

commercial passenger vehicle as being any motor vehicle which is used, or intended to be used, for carrying passengers for hire and reward. Under the Transport (Compliance and Miscellaneous) Act, all commercial passenger vehicles are required to be licensed

and all drivers are required to be accredited.



Pharmacy Registration Exemption Changes in Victoria

Industries: Pharmacies

Keywords: Drug Safety; Pharmacies

The objective of Public Health and Wellbeing Amendment (Registered Premises)

Regulations 2016 is to amend the Public Health and Wellbeing Regulations 2009 to prescribe a class of business in respect of which premises are to be exempt from the requirement that they be registered in accordance with Division 4 of Part 6 of the

Public Health and Wellbeing Act 2008.


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In Regulation 4 of the Public Health and Wellbeing Regulations 2009 the amending

regulation has inserted the following definitions—

Schedule 3 poison has the same meaning as in the Drugs, Poisons and Controlled Substances Act 1981;

Schedule 4 poison has the same meaning as in the Drugs, Poisons and

Controlled Substances Act 1981.

In Regulation 15 of the Public Health and Wellbeing Regulations 2009, after paragraph (e) the following has been inserted

(ea) the practice of a person registered under the Health Practitioner Regulation National Law to practise in the pharmacy profession (other than as a

student) to the extent to which that practice involves the administration of a Schedule 3 poison or a Schedule 4 poison in accordance with

Regulations made under the Drugs, Poisons and Controlled Substances Act 1981.



Changes to Taxi Requirements in Victoria

Industries: Road Transport; Taxis

Keywords: Road Safety; Taxi Safety; Driver Standards; Driver Accreditation

The objectives of Transport (Buses, Taxi-Cabs and Other Commercial Passenger

Vehicles) Regulations 2016 are to prescribe measures intended to enhance passenger and driver safety, and the reliability and quality of commercial passenger vehicles and

bus services, including requirements for, or in relation to—

Driver accreditation, conduct and presentation;

The inspection of commercial passenger vehicles; Taxi-cab equipment, appearance and operation;

Hirings, the charging and payment of fares and charges and the operation of taximeters;

The conduct of passengers.





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New Dangerous Goods (HCDG) Regulations in Victoria

Industries: Any Industry Working with High Consequence Dangerous Goods

Keywords: High Consequence Dangerous Goods; HCDG; Explosives; Explosive Safety; Explosives –

Import and Export

The Dangerous Goods (HCDG) Regulations 2016 revoke and replace the Dangerous

Goods (HCDG) Regulations 2005.



Road Rule Changes in Victoria

Industries: Road Transport

Keywords: Road Safety; License Disqualification; Drink Driving

The objectives of Road Safety (Drivers) Amendment (Interstate Disqualification and

Other Matters) Regulations 2016 are to amend the Road Safety (Drivers) Regulations

2009:

1. To authorise the Corporation to issue a driver licence or learner permit to a person who would not otherwise be eligible due to a driving disqualification or

other sanction being imposed in another jurisdiction;

2. To authorise the Corporation to impose a reduced driver licence or learner

permit suspension in circumstances where it would normally not be permitted due to a driving disqualification or other sanction being imposed in another

jurisdiction;

3. To authorise the Corporation to impose conditions with respect to the driver licence or learner permit of a person referred to in paragraphs (1) and (2);

4. To clarify that persons convicted or found guilty of certain drink-driving offences may only be issued a driver licence or learner permit under section 31KA of the

Road Safety Act 1986;

5. To reduce the monthly cost recovery fee that is payable by persons required to install an approved alcohol interlock in a motor vehicle.





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Victorian Road Rules Amended to Allow Trial of Electrical Personal

Transporters


Keywords: Road Safety; Road Rules; Electric Personal Transporters

The objective of Road Safety Road Rules (Electric Personal Transporters Trial)

Amendment Rules 2016 is to amend the Road Safety Road Rules 2009 to make

provision for the use of electric personal transporters on a trial basis.




New Victorian Project Targets Respect for Women in Workplaces

Two AFL football clubs, a university and a community organisation are helping Victoria

set the standard for respect for women in the workplace under a new trial being funded

by the Victorian Government.

Minister for Women and the Prevention of Family Violence Fiona Richardson has

announced North Melbourne Football Club, Carlton Football Club, La Trobe University

and Connections Uniting Care had been chosen to take part in the new Workplace

Equality and Respect project. The pilot, funded with $900,000 from the Labor

Government, aims to help Victorian workplaces change their policies and practices to

prevent violence against women.

It will be led by ‘Our Watch’ – the national advocate for change in the culture,

behaviour and attitudes that underpin violence against women and their children.

The four organisations will help finalise standards, to be released in May 2017 and

made available to all Victorian workplaces, to recognise and respond to family violence

and maintain respect for women. The new standards are intended to help workplaces:

Promote women’s participation and opportunities;

Challenge attitudes that support violence; Challenge gender stereotypes and roles;

Think critically about structures that might reinforce inequality.

Under the pilot, each organisation will assess their own performance and come up with

a series of actions and benchmarks to help them improve, including:

How workplaces might reinforce rigid stereotypes for both genders;

Whose voices are prioritised in decision making; How comfortable staff feel in raising any concerns;


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Recruitment policies;

Promoting women to leadership positions and supporting them once they are there;

Flexible workplace policies for both parents; How they measure their improvement.


Victoria Training of New Inspectors Completed

Seventeen recruits have completed an intensive training course and graduated as

Occupational Health and Safety and Return to Work inspectors. The new inspectors –

10 men and seven women – have backgrounds across health care, construction,

manufacturing, transport, agriculture and chemical engineering.

Three Return to Work inspectors will be based in Melbourne while 14 OHS Inspectors

will move into roles across Melbourne, Geelong and the Latrobe Valley.

WorkSafe inspectors make more 40,000 visits to Victorian workplaces each year.

Inspectors provide practical guidance on hazard identification and risk control, promote

consultation between employers and workers on health and safety matters and assist

businesses in complying with Victoria’s health and safety laws.

If it is found that a business has breached the 2004 OHS Act it may face prosecution

and heavy fines. In 2015/16, 108 businesses were ordered by the courts to pay fines

and costs totalling almost $5.56 million. Minister for Finance Robin Scott said the work

by inspectors was critical to reducing the number of workers injured in Victorian

workplaces:

The health and safety of Victorian workers is paramount. Victoria is proud to be

the safest state in Australia in which to work and the Government is committed

to ensuring WorkSafe has the resources it needs to keep Victorian workers safe.

We all need to prioritise workplace safety so everyone can get home to their

loved ones at the end of the day.

WorkSafe Chief Executive Clare Amies said the new inspectors had come from a

diverse range of industries and would bring their expertise to workplaces across the

state:

Our inspectors are WorkSafe’s critical frontline. We know that workplaces are changing

and new challenges are arising, so each and every inspector has an important role in

bolstering our reach and impact in workplaces across Victoria.




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Queensland

Legislative Updates

New Queensland Biosecurity Regulation

Industries: Food and Agriculture; Fertiliser – Production, Importation and Use

Keywords: Biosecurity; Food safety; Chemical Safety

The objective of Biosecurity Regulation 2016 is to provide technical details and

regulatory mechanisms for addressing biosecurity risks under the Biosecurity Act 2014 (the Biosecurity Act).

The Biosecurity Act provides the legislative framework for an effective biosecurity system in Queensland that will allow for preventative measures to be taken in response

to biosecurity threats, responding to new and emerging pests and diseases and creating mechanisms that will ensure the safety and quality of animal feed and fertilisers. The Biosecurity Act will also help align Queensland’s responses to biosecurity

risks with national and international obligations.

Biosecurity aims to reduce the risks posed by new and emerging animal and plant

pests, invasive plants and animals and chemical contaminants on the economy, environment, human health and social amenity. Biosecurity is integral to sustaining

Queensland’s prosperity, unique environment and lifestyle. A significant and serious outbreak of a plant, animal or marine pest could close major international markets,

cause serious economic loss to businesses and ruin Queensland’s reputation as a major supplier to overseas markets.

The Biosecurity Act will provide a single cohesive legislative framework for biosecurity in Queensland. The commencement of the Biosecurity Act will create a more effective biosecurity system in Queensland that helps to minimise biosecurity risks and better

facilitate a response to the impacts of those risks on the economy, environment, human health and public amenity. The provisions of the Biosecurity Act relating to

managing biosecurity emergencies and risks will allow for a more timely response to a biosecurity event.

The safety and quality of animal feed, fertilisers and other agricultural inputs may be managed under the Biosecurity Act as well as provide a capacity to manage risks

associated with biological, chemical and physical contaminants.

The purposes of the Biosecurity Act are to be achieved through a variety of regulatory

mechanisms including the imposition of a general biosecurity obligation on a person who deals with biosecurity matter, providing for flexible and timely ways of minimising

and mitigating biosecurity risks, providing for Codes of Practice relating to a person’s obligation under the Biosecurity Act and regulating activities involving biosecurity matter or a carrier.

The Regulation:

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Creates Codes of Practice for the Labelling of fertilisers and contaminants in

fertilisers and Feed for food producing animals;

Prescribes the maximum amount a local government may pay to the chief executive for services provided or to be provided by the chief executive or an invasive animal board for activities that help the local government perform their function under the

Act;

Provides for the number of directors, operational area for the Darling Downs-Moreton Rabbit Board and the part of the barrier fence for which the board is responsible;

Creates state-wide and intrastate prevention and control measures for a range of

pests and diseases that affect horticultural and agricultural production including bananas, sugar cane, nursery plants, potatoes and host species of cattle tick by

prescribing biosecurity zones and state wide regulatory restrictions;

Prescribes information that the receiver of special designated animals must give to the National Livestock Identification System administrator;

Sets maximum levels of contaminants in carriers;

Provides for prescribed distances between apiaries;

Creates restrictions on the use of diagnostic test kits and obligations in relation to category 3 and 7 restricted matter; and

Prescribes fees payable under the Biosecurity Act and the waiver of particular fees.



Rail Safety Changes in Queensland


Keywords: Rail Safety; Rail Safety – Fatigue

The Queensland rail industry continues to undergo significant growth, resulting in an

increasingly complex and competitive environment. These changes have resulted in rail transport operators advancing more cost efficient train crewing methods which may place increased safety risks on the rail network.

It is widely recognised that train driver fatigue is a significant risk associated with

undertaking rail operations. The new requirements in the Transport (Rail Safety) Regulation Amendment (No. 1) 2016 (Amendment Regulation) are considered a necessary and complementary risk mitigation control in conjunction with other fatigue

management measures.

The Amendment Regulation will require a rail transport operator’s fatigue management program to state the standard or alternative work hours and rest periods applying to the operator’s train drivers. The fatigue management program must also include

measures to monitor, record and ensure train drivers comply with the standard or alternative work hours and rest periods.





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Queensland Food Regulation Replaced

Industries Food; Food Packaging; Food Manufacturing

Keywords Food Safety; Food Labelling; Human Health - Obesity

Food Regulation 2016 replaces the 2006 Regulation, setting out the matters necessary

to support the Food Act.

The purposes of the Food Act are to ensure food for sale is safe and suitable for human

consumption, to prevent misleading conduct relating to the sale of food, and to apply

the Australia New Zealand Food Standards Code (the Food Standards Code). These

purposes are achieved primarily by providing for the licensing of particular food

businesses, through the development, implementation and audit of food safety

programs for high risk food businesses, and the monitoring and enforcement of

compliance with the Food Act and the Food Standards Code.

According to the Queensland Government, in 2015, overweight and obesity were

estimated to cost Queensland $1.72B in productivity losses and health system costs.

The loss of healthy life, that is, the disease burden, results in an additional cost of

$9.5B, bringing the total cost to $11.2B. This equates to nearly $5,000 for each

overweight or obese person in Queensland.

The Health Legislation Amendment Act 2016 amended the Food Act to provide for the

display of nutritional information for food. The menu labelling scheme in chapter 6A of

the Food Act requires certain food businesses that sell ready-to-eat food to display on

their menus, both in-store and where distributed electronically and in print, the

average kilojoule content of each standard food or drink item that they sell, and an

average energy intake statement for adults. The menu labelling scheme is designed to

assist consumers to make informed and healthier fast-food choices by providing them

with easily understood nutrition information at the point-of-sale, whether that is in a

queue in-store, at home ordering over the phone or internet, or when on-the-go and

ordering via a mobile application.

The Regulation sets out:

Items that may be sold by a food business without the business becoming a licensable food business;

Details of the licence to be displayed on mobile premises; Food businesses that are exempt from the requirement to have an accredited

food safety program and food businesses that must have an accredited food

safety program; contaminants and foods for the purposes of provisions requiring notice to be

given of isolation of contaminants, and; Fees for applications made by auditors under the Food Act.

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To implement the menu labelling scheme, part 4 of the Regulation prescribes the

operational details of the scheme for the purposes of chapter 6A of the Food Act.

In particular, the Regulation prescribes:

Ready-to-eat food that is prepackaged; How the average energy content of a standard food item must be worked out

the way to display nutritional information for a standard food item both for supermarkets and other standard food outlets;

The places for displaying nutritional information, including where the average energy intake statement for a standard food item must be displayed on menus,

at drive-through facilities and display cabinets; The average energy intake statement that must be displayed, and; Businesses that are required to display nutritional information and those that are

exempt from the scheme.



Child Employment Regulation Re-Made in Queensland

Industries: All Industries and Businesses That Utilize Child Labour

Keywords: Child Protection; Child Labour; Hours of Work – Children

In accordance with the 10 year ‘sunset provisions’ of the Queensland Statutory

Instruments Act 1992 the Child Employment Regulation 2006 (‘CE Regulation 2006’)

expired on 1 September 2016. The objectives of the CE Act and the CE Regulation

2006 were to safeguard children (up to the age of 18 years) working in Queensland by

ensuring that work does not interfere with a child’s compulsory schooling (up to the

age of 16 years or completion of year 10) and by preventing children performing work

that may be harmful to their health or safety or physical, mental, moral or social

development.

While the CE Act sets out the scope for and administration of the regulation of work

performed by children, Child Employment Regulation 2016 prescribes what the

particular limitations on work and protections of children are to be including:

The types of work prohibited; Minimum age of work;

Limits on working hours; and Specific obligations of employers.

Commencement: 1 September 2016




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Queensland Uber Friendly Regulations Introduced

Industries: Road Transport; Taxis and Hire Passenger Vehicles

Keywords: Road Transport; Passenger Safety; Hire Vehicles; Uber; Taxis

On 11 August 2016, the Queensland Government announced reforms to the regulation

of personalised transport services in Queensland, including taxi, limousine and booked

hire services. The purpose of the Transport and Other Legislation (Hire Services)

Amendment Regulation 2016 is to implement the first stage of the government’s

announced reform program. The objectives of the amendments are to:

Strengthen safety requirements for hire services; Encourage competition and customer choice in the booked hire services market;

Establish minimum consumer protections relating to fares payable for hire services; and

Provide a more equitable regulatory framework for drivers and operators of all hire services. Achievement of policy objectives strengthen safety requirements

Commencement: 1 November 2016


New Smoke Alarm Requirement in Queensland

Industries: All Industries That Utilize Gene Technology

Keywords: Biosecurity; Gene Technology

The objective of the Fire and Emergency Services (Domestic Smoke Alarms)

Amendment Act 2016 is to improve personal safety in domestic dwellings by requiring

the installation of photoelectric smoke alarms in all dwellings thereby reducing the loss

of life or injury. The reason for the amendments is to ensure that residents in a

domestic dwelling are alerted to the presence of a fire.

A working smoke alarm significantly increases their chances of escape. Smoke alarms

provide critical early warning of the presence of a fire. Evidence exists to indicate that

the type, positioning and interconnectedness of smoke alarms is crucial in ensuring

how effective smoke alarms are in alerting persons to the presence of a fire. On 23

August 2011, a house fire at Slacks Creek, Queensland claimed the lives of 11 people

making it the greatest loss of life in a domestic house fire in Australian history.

Following a coronial inquest, on 28 November 2014 the State Coroner made two broad

recommendations:

That legislative amendments be made to mandate the installation of

photoelectric and interconnected smoke alarms in every bedroom, between areas containing bedrooms and the rest of the dwelling, in any hallway servicing bedrooms and in any other storey of a domestic dwelling. For new residences,

the Coroner recommended that the smoke alarms be hard-wired, while in


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existing residences, smoke alarms may be hard-wired or powered by a 10-year

lithium battery; That Queensland Fire and Emergency Services (QFES) conduct enhanced

awareness campaigns including promoting the development of practised escape plans. These measures are supported by QFES as providing best practice in the use of smoke alarms. Evidence exists to suggest that each component of these

revised smoke alarm provisions will reduce the risk of harm to residents in a house fire.

Commencement: 1 January 2017



Further Notice of Clarification – Queensland WHS Act Changes

In our recent Quarterly Review 02- 2016 a previous clarification in relation to Changes

to Queensland Electrical Safety and WHS Acts was not inserted.

Please find the clarification which appeared in Alert 43- 2015.

In our story titled ‘More WHS Changes commence in Queensland’ in Alert 41 we noted that one of the recent changes made to the Queensland WHS Act by the Work Health

and Safety and Other Legislation Amendment Act 2015 was to reinstate a requirement from the repealed Workplace Health and Safety Act 1995 for the regulator to be notified of workplace injuries that result in a worker being off work for more than four

days. This was a proposed change that was not actually passed by parliament as part of the suite of changes made in that Amendment Act and the law will not therefore

change in this respect.


More Power to Hospitals to Help Manage Abusive Patients

Queensland Health will trial duress alarms and body cameras, and consider banning repeat violent visitors from some hospitals under new plans to tackle violence against health workers. Minister for Health and Ambulance Services Cameron Dick said the

Queensland Health Occupational Violence Taskforce, chaired by former Community Safety Director-General Jim McGowan, had set forward a broad range of long-term measures to help improve staff safety.

Mr Dick said the report made a number of recommendations that looked at long-term

change:

There’s a range of structural measures we need to look at for the long term and

there are measures we can look at immediately. Our hospitals don't cause this violence and this report shows they won't be able to fix it alone.



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Mr Dick said Queensland Health would look at a range of measures already being

trialled in a number of hospitals to see if they would work statewide and trials of voice-activated duress alarms and body cameras would be accelerated.

Queensland Health will also look at the feasibility of banning violent family and friends from attending a health precinct unless they were a patient.

Main recommendations of the Queensland Health Occupational Violence Taskforce

report were addressing issues including:

Review of security arrangements across all Queensland Health hospitals;

Investigating the suitability and effectiveness of using personal duress alarms; A review of security guard powers and other security service arrangements,

including staffing levels functions and training;

Developing dedicated strategies to reduce occupational violence in high risk areas, including emergency departments, mental health services, and services in

isolated and remote communities, and; That staff remain the focus of any post-incident review of occupational violence

incidents in health facilities.

Mr Dick said a dedicated Occupational Violence Implementation Oversight Committee would be established to oversee development of new initiatives. Metro North Hospital and Health Service Chief Executive, Ken Whelan, would head the new committee.

Queensland Health has already launched a public awareness campaign to help combat levels of violence against healthcare workers.

Mr Dick said an effective approach to combating violence against healthcare workers would require significant public support:

It’s up to us, as a community, to play that essential role in keeping our healthcare workers safe. They deserve our respect and gratitude for the important work they do.

‘I encourage the community to get behind our healthcare workers and support zero tolerance for this type of anti-social behaviour.



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Warning from Queensland After Miner Struck by Rockfall at a

Development Rock Face

The Queensland Department of Natural Resources and Mines has issued an alert after

an underground operator was struck by rocks that fell from a rock face while preparing

to charge lifter holes approximately 475m below the surface at a metalliferous mine.

The worker sustained serious injuries including a broken collar bone, broken ribs and

facial lacerations. The face was 6m high and 5.3m wide. The rocks fell from a height of

approximately 5m and included a large rock weighing approximately 650kg. According

to the Department the rockfall had the potential to have resulted in a fatality.

Rock falls occur due to inherent fractures or weaknesses in the rock, changes in rock

mass conditions, stress redistribution, or as a result of drill and blast damage, some of

which may not be recognised in the face and therefore may not be properly controlled

or managed. The stress regime would likely have been a time-dependent post-

excavation stress re-distribution.

The Department made the following comments about this particular incident:

A Normet charging vehicle was being used to charge the face.; The hazard was a rock fall from unsupported ground in the face, backs or

shoulder between the last effective row of bolts/surface support: o causing serious or fatal injuries to operators working in close proximity to

the face, and; o with potential to cause unplanned initiation of explosives from impact;

The rock type was predominantly arenite schist with some pyrrhotite and

chalcopyrite, with calcite veining and chloritic foliations; The development was an incline heading where the shoulder of the face arched

over into the back. It was not highly fractured or faulted and the rock mass conditions appeared good. Post the rockfall two distinct failure planes could be seen; these may not have been recognisable prior to the rockfall. There were

two drill holes in the location from where the rocks fell, one which could not be cleaned past approx. 0.5m during charging. This may have indicated a failure

zone / crack behind the face; The face was not meshed or supported. Meshing the face would likely have

prevented this incident. Even if the mesh would not have held such a rockfall it

would have controlled and delayed the manner in which it fell. There was no other development or stoping in proximity to the face;

There were rattle marks from mechanical scaling on the face, including a rattle mark on the main large rock that fell. The rock large rock measuring

approximately 1.5m x 1 m and varied in thickness up to 0.4m; The rockfall pulled a ‘J’ hook off a nonel detonator and a rock landed on top of

the detonator cord and a box of powergel;

When inserting lifter tubes or cleaning and charging lifters, operators are in a bent over head down position at the face. This results in them having limited

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ability to retreat from the face, minimal vision of the face and backs and

exposure to the maximum fall distance of rocks.

The Department made the following recommendations. Although noting that the

investigation into this incident is still ongoing, sites should review their risk

assessments, associated procedures and standard work instructions for working in

close proximity to development faces, taking into consideration:

Use of face support to prevent rocks from falling or control the manner in which they fall;

Visual assessment may not identify a potential for a rock fall; Blocked holes may indicate broken / cracked ground that has the potential to

fail.

To minimise the risk of detonating cord being impacted and inadvertently initiated by falling rock, the tie in should only be completed after all blast holes

have been charged.


Case Summaries

$450,000+ for Poor Debriefing and Follow Up Following Assault:

Greenway v The Corporation of the Synod of the Diocese of Brisbane

The plaintiff in this proceeding – a Ms Greenway – was a carer working for Anglicare in

Queensland. She was assaulted by a client when at work in 2013.

Ms Greenway’s assailant was then 15 years old and had been assessed by the

Department as having complex support needs. He was placed at the residence under a

Services Agreement between Anglicare and the Department of Communities, Child

Safety and Disability Services.

The questions for the court to answer in this proceeding were:

1. Did Anglicare breach its duty of care to Ms Greenway? 2. If so, did that breach of duty cause her injury?

3. If so, what damages should be awarded?

The answer to the first two questions were ‘yes’.

Ms Greenway argued that, in relation to the first question, Anglicare had been

negligent by:

1. Failing to prevent the incident; 2. Failing to adequately respond after the first telephone call; and

3. Failing to adequately respond after the second telephone call.


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In finding that Anglicare was negligent, the Court noted that an employer does not

breach a duty to take precautions against a risk of injury to a worker unless:

1. The risk was foreseeable (that is, a risk the employer knew or ought reasonably to have known); and,

2. The risk was not insignificant; and

3. In the circumstances, a reasonable person in the employer’s position would have taken the precautions.

The Judge hearing the proceeding found that Anglicare knew of the young person’s

history. It knew of his propensity for threatening behaviour and violent conduct. It had

been advised of his prior assault of a residential worker. He was on bail at the time for

a number of offences, including common assault.

The real issue for the Court to determine was, according to the Judge, whether a

reasonable person in Anglicare’s position would have taken precautions to prevent the

injury. In deciding that issue, the court should consider, among other relevant things:

1. The probability the injury would occur if care were not taken; 2. The likely seriousness of the injury; and

3. The burden of taking precautions to avoid the risk of injury

Ms Greenway argued that Anglicare had a number of things it could have done to meet

its duty of care including not taking the young person as a client to start with, or

providing two carers to be on duty during the time of the incident, or providing her

with better training. The Court viewed the facts of the placement and rejected each of

these arguments.

However, Ms Greenway also argued that there should have been a ‘more appropriate’

response to the two phone calls she had made to her supervisor, which had effectively

put Anglicare on notice of the possible harm she might suffer.

The Court described the circumstances of each call in the following way:

The first [phone call] occurred when the young person was in the staff room.

There was clearly an incident in progress. Mr Mafulu could hear there was a

commotion and Ms Greenway told him the young person was in the staff room.

She also told him she wanted to get off the phone so she could deal with the

situation. She said she would call him back.

Even though the young person had a history of assault, Ms Greenway was

trained and appeared to be handling the situation appropriately. It was

reasonable for Mr Mafulu to wait before responding.

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The second call was after Ms Greenway had disarmed the young person and he

was sufficiently calm for her to conduct a Life Space Interview with him. This is

when Ms Greenway reported the violent incident to Mr Mafulu. What she told Mr

Mafulu should have put him on alert about Ms Greenway’s welfare. She had

disarmed a young person who had become so agitated that he kicked out a

window, armed himself with a large shard of glass, threatened self-harm and

threatened to harm others, Ms Greenway being the only person in his vicinity. It

was a dangerous situation which could have ended in serious physical harm.

Even accepting he had calmed down, it was a frightening episode that was

unexpected. Anglicare conceded the circumstances of the incident could

traumatise anyone exposed to it.

Mr Mafulu’s response was criticized by the Court. It noted:

Mr Mafulu was aware of the following matters:

(i) Ms Greenway was alone in the house with a young person with complex

support needs and a history of violence, including against a youth worker when he stole a car to visit someone;

(ii) He had forced his way into the secure staff room and taken the car keys

and was agitated and upset about not being able to visit his friend; (iii) He had kicked and broken the window to his bedroom, so the house was

not secure; (iv) He had assaulted Ms Greenway, although she was not physically injured;

(v) He had threatened self-harm; (vi) He had spoken in a threatening manner to Ms Greenway while armed with

a large shard of glass from the window he had just kicked out;

(vii) Although she had disarmed him and he had calmed down, when Mr Mafulu spoke to Ms Greenway she was alone in the house with the young person,

the house was still not secure and there was broken glass in his bedroom.

According to the Judge:

… Mr Mafulu’s sole enquiry was inadequate. That is particularly so, when viewed

in the context of his other statements to her: that he was not going to come

over because she had de-escalated the situation and she had to establish her

authority in the house; and that there was no need to call the police. Acting only

on a brief response to a single enquiry in those circumstances placed inordinate

responsibility on an employee who had just experienced a traumatic incident.

According to the reasonable employer in Anglicare’s position would have taken the

following precautions:

Established guidelines for on call Team Leaders to support workers caring alone for young people with complex or extreme support needs; and

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Trained on call Team Leaders in how to assess a worker’s welfare in the

aftermath of a crisis, considering emotional and psychological issues as well as physical safety.

Neither of these things was done. And, according to the Judge, there was no evidence

to suggest those precautions would have presented an unreasonable burden on

Anglicare, ‘when balanced against the probability and magnitude of the risk of a worker

sustaining an injury when caring for a troubled young person alone.’

In other words, Anglicare was negligent.

The Court also found that Ms Greenway’s injury – PTSD – was effectivity caused by the

incident. The Court also noted:

Ms Greenway competently de-escalated a crisis situation in which she or the

young person or both of them might have been physically injured. However, she

said she did not feel calm and was scared that he would become violent again.

This conflicts with a statement in an incident report which Ms Greenway signed.

The Anglicare staff member who filled out the form did so while he was

debriefing her about the incident. She signed it at the end of their conversation.

The conversation occurred when she attended for training. The employee took

her aside because she did not appear well enough to do the training. Ms

Greenway says she was suffering from a panic attack. Under cross-examination

about that form, she maintained her evidence that she did not feel calm in the

moment. Given her uncontested evidence about her state of mind at the time of

the conversation and when she signed the form, I accept her evidence about

how she felt on the night is a truthful account.

Anglicare argued that this was evidence that ‘the damage had already been done’ to

Ms Greenaway, and that even if Mr Mafulu had visited after the incident, Ms Greenway

would have said she was ok and denied any offer of assistance. The Court said this was

‘mere speculation.’ This was especially the case if Anglicare had adopted the approach

the Judge had said was appropriate – of a proper debriefing. In such a case, an

appropriately trained ‘debriefer’ would have been able to determine that Ms Greenway

had suffered trauma.

Ms Greenway was awarded a total amount of $ 454,935.68.



38


South Australia

Legislative Updates

Changes to National Rail Safety Laws


Keywords Rail Safety; Authorised Officers – Powers; Penalties

The Rail Safety National Law (South Australia) (Miscellaneous No 2) Amendment Act

2016, amends the Rail Safety National Law. The Law is contained in a schedule to the Rail Safety National Law (South Australia) Act 2012.

In December 2009, the Council of Australian Governments agreed to implement national rail safety reform, that created a single rail safety regulator, and to develop a

rail safety national law, which a rail regulator would administer. The national rail reform aims are to:

Support a seamless national rail transport system; Not reduce existing levels of rail safety; Streamline regulatory arrangements and reduce the compliance burden for

business; and Improve national productivity and reduce transport costs generally.

The Rail Safety National Law commenced operation on 20 January 2013. The Office of the National Rail Safety Regulator was established as a body corporate under the Law, with its scope now also enacted through legislation in all jurisdictions, except

Queensland, which has recently committed to adopting the Law.

The National Transport Commission, together with jurisdictions and the regulator,

developed the Law and are also responsible for identifying legislative amendments. Ministers of the Transport and Infrastructure Council are responsible for approving the

Law and its amendments. This Amendment Act was approved by the Council on 6 November 2015.

South Australia, as host jurisdiction, is responsible for the passage of the Law and any amendment Act through the South Australian Parliament. Once commenced in South

Australia, each participating jurisdiction has an Application Act that automatically adopts the Law and subsequent amendments into its own legislation.

During its first two years of operation, the regulator has successfully discharged its obligations under the Law including facilitating the safe operation of rail transport in Australia by providing a scheme for national accreditation of rail transport operators

and promoting the provision of national policies, procedures and guidance to industry, further progress in the consolidation of national rail safety data information and

education and training for safe railway operations.

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This Act constitutes the second amendment package to be considered by Parliament.

The first amendment package commenced on 1 July 2015.

This Act is an amendment package which is administrative in nature and will improve operation of the Rail Safety National Law (South Australia) Act by:

Clarifying that infringement penalties and court imposed penalties can be paid into the regulator’s fund. This amendment provides clarity to the existing provision and is not a policy change;

Maintaining currency with relevant national systems for the delivery and assessment of competencies relevant to rail safety workers and providing for flexibility to recognise these different systems if changes are made in the future. This follows an

amendment to the Commonwealth National Vocational Education and Training Regulator Act 2011, that makes the current Rail Safety National Law reference to the Australian Quality Training Framework redundant;

Allowing an authorised officer to secure the perimeter of any site for compliance and investigative purposes, but not explicitly to restricting access to rolling stock (a vehicle that operates on or uses a railway) separate to securing a site. This

amendment will clarify that rolling stock may also be secured; Requiring a third party to notify a rail infrastructure manager before carrying out

any work near a railway that threatens, or is likely to threaten, the safety of the

railway or the operational integrity of the railway. However, there is currently no requirement for a third party provider to comply with a reasonable direction given by

a rail infrastructure manager. This amendment will help to allow a rail infrastructure manager to resolve matters at the local level by giving written advice to the third party as necessary to ensure safety. Section 199 of the Rail Safety National Law

(South Australia) Act already provides the ability for the regulator to intervene, if circumstances require;

Resolving the ambiguity as to which period of time the regulator has to commence

prosecution; and Allowing a court to make an order directing a convicted person to pay (not

exceeding one-half) of any fine to the regulator.

Commencement: The Act has received Assent and is awaiting to be Proclaimed


Return to Work Changes in South Australia for Volunteer Firefighters

Industries: Volunteer Firefighting

Keywords Injured Workers – Return to Work; Definitions; Volunteer Firefighters - Definition

The Return to Work Variation Regulations 2016 makes amendments to Regulation 69

(Volunteers (Schedule 1 of Act)) of the Return to Work Variation Regulations 2016,

including to insert Regulation 69(1)(d) to provide, for the purposes of clause 1(3) of

Schedule 1 (Presumptive employment) of the Return to Work Act 2014, activities that

are prescribed as a class of work in relation to volunteer fire-fighters.





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Changes to the Harbours and Navigation Regulations

Industries: Maritime

Keywords Maritime Safety; Vessel Safety; Authorised Persons; Vessels – Safe Operation Of

Harbours and Navigation Variation Regulations 2016:

Introduce a new regulation 11(6) to provide that the Harbours and Navigation

Regulations 2006 do not apply in relation to an authorised person operating a vessel if the authorised person is acting in the course of official duties and in the

circumstances, the authorised person is taking reasonable care; Introduce a new regulation 165(4) to provide that regulation 165(3) does not

apply in relation to a vessel being operated by an authorised person if the

authorised person is acting in the course of official duties and in the circumstances, the authorised person is taking reasonable care;

Make various amendments to clause 1 (Identification of restricted areas) in Part 1 (Identification of restricted areas) of Schedule 5 (Restricted areas).




SafeWork SA Reminder on Chemical GHS

Work health and safety (WHS) legislation has introduced into Australia a new system of

chemical classification and hazard communication called the Globally Harmonised

System of Classification and Labelling of Chemicals (GHS). This system will replace

current systems used for classifying workplace chemicals and will standardise

information on labels and Safety Data Sheets.

Workplaces in states that have not adopted the model WHS legislation will still be

affected by the introduction of the GHS as labels and Safety Data Sheets are written to

the new format and interstate and overseas customers demand the requirements of

the GHS are complied with.

The GHS is a single internationally agreed system of chemical classification and hazard

communication through labelling and SDS. The GHS is published by the United Nations

and includes harmonised criteria for the classification of physical hazards, health

hazards and environmental hazards.

For modifications to the requirements of the GHS, refer to Schedule 6 of the SA WHS

Regulations.

As in all jurisdictions, the international system will be mandatory in South Australia

from 1 January 2017. SafeWork executive director Marie Boland noted:


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The new chemical labelling system will make it easier for people to identify what

the chemical is, how to store it and how to respond in case of exposure.


Case Summaries

$220,000 After Employee Crushed to Death: Kay v Inco Ships Pty Ltd

This prosecution arose from the death of Aries Nemiada while he performed

maintenance work on a barge managed by Inco on 15 September 2012.

Mr Nemiada was then a 37-year-old married father of two. He was an experienced and

qualified deck mechanic of ocean going vessels.

Inco is owned by Peter Cadwallader. The business of Inco is to provide specialist vessel

management services, aimed at ensuring efficient and safe management of a range of

industrial vessels including bulk carriers, tankers, self-discharging vessels and

container ships. At the time of the offence Inco managed a number of vessels and had

approximately 400 employees. In recent years Inco has managed from four and up to

fifteen vessels. Inco’s Managing Director Andrew Dally attended each day of the trial

and the sentencing hearing.

In 2007 Inco was contracted by CSL to take over the management of the newly

constructed and uniquely configured iron ore loading barge. The barge was normally

moored at sea off Whyalla to assist loading bulk carriers with its system of large

conveyors and telescopic loading boom. In 2010 Inco took contractual control of the

barge’s safety management system, although it previously held statutory safety

responsibilities. Inco’s management contract of the barge was concluded in January

2015.

Aries Nemiada was working inside of the out-loading boom on the FOTB for the

purpose of maintaining the telescopic out-loading boom conveyor, in particular by

inspecting and cleaning the shuttle tail pulley of the conveyor.

He was killed when the conveyor was retracted into the boom, whilst the employee was

located within the hazardous area inside the boom, crushing him between the

structural beams of the boom and the components of the conveyor.

It was argued by the prosecution that the defendant failed to provide and maintain

plant in a safe condition, so far as was reasonably practicable, in that it failed to

prevent or minimise access to the hazardous area within the boom, by affixing distance

guards (such as are described in AS 1755 Conveyors – Safety Requirements) in the

form of a fence or interlocked gate located at access points to the hazardous area


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within the boom, such that the conveyor is stopped or prevented from operating or

moving if the gates are opened, and no persons can be within the hazardous area of

the boom whilst the conveyor is in operation or being moved.

It was alleged that the defendant failed, so far as was reasonably practicable, to

provide and maintain safe systems of work in that it failed to:

Undertake any, or any adequate, hazard identification and risk assessment

process, such as a systematic and documented Job Safety Analysis, specifically in relation to the task;

Provide and maintain a documented and specific safe work method statement for the tasks which included requirements to:

o Electrically isolate the conveyor prior to any access to the hazardous area inside of the boom;

o Use a work permit system with a Lock-out Tag- out isolation procedure to ensure the conveyor remains isolated throughout the duration of any

required access inside the boom or on the moving parts of the conveyor.

It was also argued that the defendant failed to provide the employee with adequate

information, instruction, supervision and training, so far as was reasonably practicable,

in that it:

Failed to adequately inform, instruct, train and supervise the employee

regarding the need to use a work permit system and Lock-out Tag-out isolation procedure prior to obtaining access to the boom and the conveyor to perform the task, by the providing and maintaining a safe work procedure specific to the

task, such as was described above, and ensuring the employee understood its requirements.

Finally it was argued that the company failed to adequately inform, instruct, and train

the supervisor of the employee, Efren Sy, regarding the need to use a work permit

system and Lock-out Tag-out isolation procedure prior to obtaining access to the boom

and the conveyor to perform the task, by the providing and maintaining a safe work

procedure specific to the task, such as is described in above, and ensuring that the

supervisor understood its requirements.

A major question for the Court was whether the incident was ‘reasonably foreseeable’.

The Court concluded the accident was far from being ‘far fetched or fanciful’ and the

company was guilty of the offence charged.

The Court was also critical of the company’s failure to accept responsibility for its

failures:

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At no stage prior to my finding of guilt has Inco acknowledged or accepted any

legal responsibility for breaching its legal obligations to ensure workplace safety.

Its defence to the charge centred on blaming the dead victim for the incident. It

incorrectly contended Mr Nemiada acted so irrationally by entering the boom to

observe the correct alignment of the pulley drum that his actions could not be

foreseen. By doing so Inco demonstrated a significant lack of understanding of

its previous work arrangements together with a lack of insight and awareness of

its own failings. Inco must now surely appreciate that its refusal to accept legal

responsibility for the offence was misconceived, with likely hurtful consequences

to the victim’s family, friends and colleagues. I expect Inco to now address this

error with Mr Nemiada’s family. I accept however that Inco very much regretted

the incident, but that is a very long way from contrition.

The maximum monetary penalty at the time of the offence was a fine of $300,000.

Having regard to the whole of the circumstances the Judge imposed a fine on Inco of

$200,000. An additional penalty of $20,000 was imposed as compensation to be paid

to the family.



44


Western Australia


Rail Operators Targeted in WA Dangerous Goods Audit

Rail operators transporting dangerous goods in Western Australia are the focus of an

inspection program by Dangerous Goods officers from the WA Department of Mines

and Petroleum. The program was launched to coincide with Rail Safety Week, a

national event highlighting rail safety issues.

Dangerous Goods Team Leader Erin James said the inspection program was an

opportunity to provide important safety information regarding dangerous goods

transport and handling:

This is an opportunity to remind operators about having the correct fire

protection, safety equipment and current documents and reference materials –

such as emergency procedure guides. The other important focus is around

documenting training and maintenance records.

Ms James said a widely reported incident late last year where a freight train carrying

sulphuric acid derailed near Julia Creek in Queensland provided an important reminder

for rail operators:

In that particular case, some of the tanks ruptured and none of the work crew

on the train had access to necessary safety equipment including respiratory

protection masks they were able to make their way to safety, unaffected by the

sulphuric acid. However, the incident does provide an important reminder to rail

operators to prioritise dangerous goods safety and ensure chemicals are

transported safely, and be aware of how you would respond in the event of an

emergency.



45


Worksafe WA Warning After Asbestos Found in Children’s Hospital

In July 2016 asbestos was found in composite roof panels at the new Perth Children’s

Hospital. The roof panels were imported from China and classified as ‘asbestos free’,

but testing by a National Association of Testing Authorities (NATA) accredited

laboratory in Australia found they contained chrysotile (white) asbestos, states a recent

WorkSafe WA media release. Asbestos has also been found in a range of imported

building products across Australia, including fibre cement boards, expanded

polystyrene panels and gaskets.

All forms of asbestos containing materials have been prohibited imports in Australia

since 31 December 2003. Some countries still manufacture building products that

contain asbestos, and classify the goods as “asbestos free” even though they contain a

small proportion of asbestos. Certification provided to importers from overseas

manufacturers that goods are asbestos free has sometimes been proven incorrect or

unreliable.

According to Work Safe, importers from countries that still manufacture asbestos-

containing goods should be aware of the different definitions and standards applied to

asbestos in the country of origin. Importers should:

Obtain product testing results from the overseas manufacturer or supplier that

the goods do not contain any amount of asbestos (testing should be carried out at an accredited laboratory equivalent to NATA).

Arrange for an independent test of the building product before it is initially shipped to Australia. NATA accredited laboratories in Australia and international

equivalent laboratories are listed on the NATA website. Multiple shipments of the

same building product will require additional random testing to check that the

goods remain asbestos free.



46


Australian Capital Territory

Legislative Updates

Asbestos Related Workers Comp Changes Commence in the ACT

Industries: All Industries; All Businesses

Keywords: Workers Compensation; Mesothelioma; Asbestosis; No-Fault Statutory Lump Sum Payment

The Workers Compensation Amendment Bill 2016, which includes important

amendments to the Workers Compensation Act 1951 and the Workers Compensation Regulation 2002. It has been a source of concern to this government that, although the ACT private sector workers compensation regulation includes asbestosis and

mesothelioma as diseases related to employment, the Workers Compensation Act omits asbestos-caused diseases from the schedule in which compensation payable for

permanent injuries is specified. This means that, although the regulation recognises these as work-related diseases, workers suffering from these diseases do not qualify for lump-sum compensation for permanent impairment.

Without access to the lump sum payment, the benefits available to workers suffering

asbestos-related diseases are limited under the current statutory scheme to medical and income support. Given these limitations, affected individuals have tended to pursue common law action through the courts to seek compensation. This can be a

protracted, expensive and uncertain process and is especially difficult for claimants suffering from a terminal illness.

Asbestos disease claims are often managed by the default insurance fund due to the fact that historically the terms of the ACT insurance policies provided coverage for

injuries that occurred during a fixed period of time. With long latency claims such as asbestos-related diseases, the date of the injury is the date the worker first became

aware of the injury and seeks medical treatment or passes away.

Asbestos-related diseases tend to manifest long after the time in which the exposure

occurred and when the insurance policy may have been in place. This means that an insurance policy will only respond to injuries or diseases which manifest during the

policy period, leaving injured workers suffering from an asbestos disease and their employers uninsured for workers compensation purposes. This is due to unintended historical legislative consequences that have risen over many years.

With mortality rates from asbestos-related diseases expected to peak between now and 2020, this Bill will remove obstacles for workers and their families receiving timely,

fair and adequate compensation




47


Emergency Services Laws Assented to in the ACT

Industries: Emergency Services

Keywords: Emergency Services; Emergency Services – Management; Bushfires; Fire Bans

The ACT’s Emergencies Amendment Act 2016 makes a number of amendments to the

membership and role of the ACT Bushfire Council, a statutory body with the function of advising the minister and commissioner about bushfires. The amendment strengthens

the membership of the council by requiring the minister to appoint representatives of the interests of rural lessees, the community and the community's interests in relation to the environment to the council. Term limits for members will also be introduced, in

line with ACT Government practice for advisory bodies. The amendment Act also amends the consultation role of the council in relation to ESA appointments. These

changes remove any potential for conflicts of interests among council members, and better reflect the council’s role as an advisory body.

In relation to restricting high-risk activities during total fire bans, the amendment Act creates a new offence of undertaking a high-risk activity in the open during a total fire ban period. It is already an offence to light a fire during a total fire ban, but the Act

does not specifically address activities that do not themselves necessarily involve the use of fire but which may cause a fire to ignite when undertaken in an open area. This

is in contrast to the position adopted in most other jurisdictions.

High-risk activities have been defined to include welding, grinding, soldering and gas

cutting. These activities have regularly been responsible for grass and bushfire ignitions and have been assessed to be of the highest risk for the ACT. The amendment

Act also creates the power for additional high-risk activities to be prescribed by regulation.

Increase of penalties for lighting a fire during a total fire ban

Given that the risks associated with lighting a fire during a total fire ban may be considerably higher than lighting a fire during other periods, it is appropriate that the penalty for lighting a fire during a total fire ban be at the higher end of the range of

penalties applying to bushfire-related offences. Increasing the maximum penalty will assist ongoing ACT Government deterrence efforts against people who jeopardise

community safety by deliberately lighting fires to threaten life, property or the environment.

Provisions proposing to give the Chief Officer of the Rural Fire Service, RFS, powers in relation to fire prevention of premises

The Emergencies Act defines premises very broadly and includes any land, structure or vehicle or any part of any area of land, a structure or a vehicle. Currently the Chief

Officer of the RFS has no power to act to address a risk to public safety or to the safety of people who are or are likely to be at the premises, even in the rural area, where the Chief Officer of the RFS is responsible for fire preparedness and fire response. This

amendment ensures that the Chief Officer of the RFS is able to fulfil their statutory

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responsibilities for ensuring fire preparedness and response in the rural area by acting

to address a risk to public safety in premises.

Permissions to interfere with fire appliances

Section 190 of the Emergencies act creates a number of offences relating to interfering

with fire appliances, hydrants or alarms. The offences reflect the significant danger posed by persons interfering with these devices so as to prevent their effective

operation. However, it is sometimes necessary for people to interfere with these appliances, such as for maintenance work on the appliances themselves. The Emergencies Act currently allows member of ACT Fire & Rescue, a member of the RFS

or a police officer to give permission to interfere with an appliance. This amendment extends the power to give permission to do other acts that would otherwise be an

offence under the section, such as isolating a fire alarm to prevent maintenance works triggering the alarm.

An all-hazards approach to emergency planning and response

This amendment ensures that ACT fire agencies can better protect our city from the

threat posed by fire whether the threat is fire from the fire itself or the consequences of it. Currently these fire agencies can only use those powers in response to the actual

fire itself.

The amendment Act also provides for consistent immunities for all members of the

emergency services, including the SES and the Ambulance Service, under all ACT law. Emergency service members, when acting to protect and preserve life, property and

the environment, may commit an offence under other ACT law. This could include, for example, felling a protected tree or damaging a protected heritage building. For this reason, relevant law contains an exemption for actions undertaken by certain members

of an emergency service in an emergency.

Simplifying responsibility for fire control

The responsibility for fire control in the bushfire abatement zone was one of the

matters raised in the review. The review proposed that a single service be given specific responsibility for fire control and planning in the bushfire abatement zone,

noting that this will not alter the existing response arrangements, which are that the first response to all grass fires and bushfires in the ACT will be by the nearest available, most appropriate resource, irrespective of jurisdiction or service. These

amendments clarify and only relate to initial command and control arrangements.

Clarifying responsibility for operational planning

The Emergencies Act currently assigns responsibility for advice on fire-related planning

and development issues to either the Chief Officer of the RFS or the Chief Officer of ACT Fire & Rescue on a geographic basis. This approach created the risk that, by having two separate entities providing formal advice depending on where the building

is located, any advice provided by the two chief officers may be inconsistent. While the

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obligation on each chief officer to consult with their counterpart in relation to the

bushfire abatement zone and the rural area reduced this risk, it did not eliminate it.

It is of vital importance from a public safety perspective that there is a coordinated and consistent approach to emergency planning and advice. To achieve this, and to ensure that the ACT community receives the highest quality and consistent advice, this Bill

amends the functions of ACT Fire & Rescue and the Rural Fire Service in relation to operational planning for fire so that the commissioner is given explicit responsibility for

planning and development advice functions.

The preparation of planning and development advice will continue to be undertaken by

members of ACT Fire & Rescue and the Rural Fire Service with the applicable skills, qualifications and expertise. The commissioner would act upon this advice and the

recommendation from the respective chief officer in providing a planning and development approval.

The power of the Chief Officer of the ACT Ambulance Service to establish, amend, suspend or withdraw an ambulance officer’s scope of practice

An officer’s scope of practice may be amended or suspended where a member of the Ambulance Service returns from a period of extended leave. During their clinical

revalidation, the authority to practise for that member may be amended from independent to supervised practice for a period of three months to ensure that the member’s clinical skills and knowledge are up to date.

An officer’s scope of practice may also be suspended or amended where an adverse

clinical incident, patient death, has occurred and the Ambulance Service needs to undertake a robust quality review of the case. During this period, the member’s authority to practise may, with due consideration, be amended or withdrawn.

Amending or suspending a member's scope of practice is not a disciplinary measure, and is solely concerned with enhancing public safety by ensuring that the Chief Officer

is satisfied that a member of the Ambulance Service has the necessary skills and abilities to safely and properly provide clinical care to the community.

Establishing the ACT Ambulance Service quality assurance committee

The amendments allow ambulance officers to freely discuss the circumstances surrounding a negative patient outcome without fear that admissions made to the committee will be disclosed to a court or other investigating body, systemic

weaknesses will be able to be identified and protocols developed to avoid reoccurrences. This will benefit the broader community by supporting the provision of

the highest quality ambulance services.




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Motorcycle Parking Changes in the ACT

Industries: Any Industry or Business That Utilises Road Transportation

Keywords: Road Safety; Road Transportation; Motorcycle Safety

The ACT Government has reviewed parking arrangements for motorbikes in the ACT. As an outcome, this Regulation amendment has been prepared to allow more than one

motorbike to park in a single metered and ticket parking bay. The amendments to the Road Transport (Safety and Traffic Management) Regulation 2000 allow for better

utilisation of parking resources by providing greater availability of parking for motorbikes and freeing up more parking spaces for cars.

Road Transport (Safety and Traffic Management) Amendment Regulation (2016) (No 1) amends the Road Transport (Safety and Traffic Management) Regulation 2000 and the

Road Transport (Offences) Regulation 2005. Sections 44(2) and 49(3) of the Road Transport (Safety and Traffic Management) Regulation regulate parking in a metered parking space and ticket parking space respectively. These sections state that a driver

must not park their vehicle in a metered or ticket parking space if another vehicle is parked in the space. These provisions prevent the parking of more than one motorbike

in a metered or ticket parking space.

The amending Regulation, in clauses 5 and 7, amends sections 44 and 49 of the Road

Transport (Safety and Traffic Management) Regulation to exempt motorbike riders from the rule prohibiting a vehicle from parking in a space if another vehicle is already

parked there. The amending Regulation, in clauses 6 and 8, also inserts new sections 44AA and 49AAA to allow for up to three motorbikes to be parked in a space. Clauses 6 and 8 create new offences of parking a motorbike in a metered or ticketed parking

space if there are more than 2 bikes already parked in the space.

These clauses also require any motorbikes parking in a space where another bike is

already parked to park in a way that does not unreasonably obstruct the path of the other motorbike out of the space.

The amendments set a maximum limit of three motorbikes to park in a single metered and ticket bay to minimise the potential impacts and impediments to safety of other

riders and motorists that could be caused if a greater number of motorbikes attempted to park in one bay.

Further, section 6(1) of the Road Transport (Safety and Traffic Management) Regulation incorporates the Australian Road Rules (ARR) into ACT law. Section 6(2)

states that the ARR have effect subject to the Regulation. Part 2.2 of the Road Transport (Safety and Traffic Management) Regulation sets out how the ARR are

incorporated. This part contains provisions that define terms for application of the ARR in the ACT, permit things to be done in the ACT otherwise prohibited by the ARR or to exempt persons in the ACT from complying with the ARR.

Rule 189 of the ARR prohibits double parking. The rule provides that a driver of a car

or motorbike must not stop if the vehicle is between a vehicle that is parked on a road and the centre of the road. Clause 4 of the amending Regulation inserts a new section

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13BA into the Road Transport (Safety and Traffic Management) Regulation 2000 to

allow for the double parking of motorbikes, provided that the motorbikes are parked in the same parking bay and will therefore not be impeding the flow of traffic.

Part 1.13 of schedule 1 of the Road Transport (Offences) Regulation 2005 prescribes offence and infringement penalties for road transport offences. Clause 9 of the Bill

inserts new items 25A and 25B into part 1.13 of schedule 1 to prescribe offence and infringement penalties for parking offences relating to metered spaces.

Clause 10 of the Bill inserts new items 36A and 36B to do the same for parking offences relating to ticket spaces. These new items relate to the new offences inserted

by clauses 6 and 8 as outline above. The prescribed amount for the offence penalty is 20 penalty points and the infringement penalty is $102, consistent with other similar

offences of this nature.



Smoking Changes in ACT


Keywords: Dangerous Substances; Cancer; Smoking; E-Cigarette Restrictions

The Smoke-Free Legislation Amendment Act 2016 aims to protect the health of the public from the potential harms associated with personal vaporisers. Personal vaporisers are in some circles referred to as electronic cigarettes (e-cigarettes) and

also include devices such as e-cigars, e-pipes, vape pens, hookah pens and e-hookahs. The measures outlined in this Act are designed to prevent the widespread uptake of

personal vaporisers in the community, including by non-smokers and children, whilst still allowing adults to purchase personal vaporisers from licensed tobacco sellers.

The measures also protect against the renormalisation of smoking in the community and reduce the risk of personal vaporisers acting as a gateway to tobacco. Personal

vaporisers are devices designed to produce a vapour that the user inhales. Many devices use an electric element to heat liquid to produce vapour and are used in a manner that simulates smoking, however there are a wide variety of products that

differ in their design, operation and appearance. Some devices look like tobacco products, such as cigarettes or pipes, whereas some resemble everyday items such as

lipsticks and pens, and others are not designed to resemble a specific product.

This Act uses the term ‘personal vaporiser’ in order to encompass the breadth of

devices currently on the market, and allow flexibility to include devices that may emerge in the future as the technology and market evolve. The term does not focus on

a specific device and is hence more inclusive than a term such as ‘e-cigarettes’.

This Act will introduce restrictions on personal vaporiser sales and promotion in the

ACT, commensurate with existing restrictions on tobacco and herbal products. It will also prohibit the use of personal vaporisers in legislated smoke-free areas, including all

enclosed public places (for example, shopping centres, cinemas, office buildings, buses,


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taxis, restaurants, pubs and clubs), outdoor eating or drinking places, underage music

functions and in cars when children are present.

This Act amends the Tobacco Act 1927 to regulate the sale and promotion of personal vaporisers in the same way as tobacco and herbal products and apply the same offences for non-compliance. It also amends the Smoke-Free Public Places Act 2003

and Smoking in Cars with Children (Prohibition) Act 2011 to prohibit the use of personal vaporisers in legislated smoke-free areas and apply the same offences for

non-compliance. In addition, this Act makes minor changes to the Smoke-Free Public Places Act 2003 to clarify the application of existing smoke-free laws at outdoor eating and drinking places.

Measures in the Act apply to all personal vaporisers, regardless of whether or not they

contain nicotine. It should be noted that the sale and possession of personal vaporisers that contain nicotine is currently illegal without approval under the Medicines, Poisons and Therapeutic Goods Act 2008. To date, no approval has been granted for the supply

of nicotine for use in personal vaporisers. In specific circumstances, it may be lawful for individuals to import personal vaporisers and/or liquid nicotine for personal

therapeutic use via the Therapeutic Goods Administration’s Personal Importation Scheme.

This Act utilises the existing regulatory framework for tobacco control to facilitate compliance and enforcement with the measures, avoiding the need to establish a

separate licensing system. Costs for inspection and enforcement are expected to be minimal, and will be met within existing resources.



ACT Personal Violence Act


Keywords: Workplace Violence

The Personal Violence Act 2016 establishes a system of protection for those who fear

or experience personal violence (other than from a family member) or workplace

violence.

The Act creates a single point of legislation that deals with protection orders and

workplace orders, to replace the system established in the Domestic Violence and

Protection Order Act 2008, which is to be repealed by the Family Violence Act 2016.

Commencement: 1 May 2017




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Discrimination Act changes in the ACT


Keywords: Discrimination; Discrimination – Definitions; Discrimination – Vilification; Victimisation

The Discrimination Amendment Act 2016 implement’s a first stage of reforms to the

Discrimination Act 1991 following recommendations made by the ACT Law Reform

Advisory Council to:

Improve its objects; Allow people to make complaints of both direct and indirect discrimination and

on more than one ground;

Refine the range and scope of protected attributes in line with developments in discrimination law nationally and internationally and include new protected

attributes; Revise the application of vilification provisions in the Act to expand the list of

attributes for which protections against vilification apply to include disability;

Strengthen protections against victimisation; and Amend procedures for dealing with and redressing complaints to better support

complainants.

The Act amends the objects of the Discrimination Act to explicitly refer to the right to

equality and non-discrimination in the Human Rights Act. The objects are refocused

into high level aims of eliminating discrimination to the greatest extent possible and in

all forms; specific references to gender equality and sexual harassment in particular

are removed.

Commencement: Half sections by 24 August 2016; All by 3 April 2017


New Code of Practice to Deal With ‘Domestic Squalor and Hoarding’

Industries: Local Government

Keywords: Public Health Management; Hoarding and Domestic Squalor

The ACT Public Health Amendment Bill 2016 proposes to amend the Public Health

Act 1997 to implement measures designed to reduce administrative complexity and

streamline regulatory processes in dealing with an alleged insanitary condition.

Specifically, the Bill seeks to make the following amendments to the Public Health Act:

• Allow the Minister to determine a Code of Practice setting out guidelines for the

Chief Health Officer (CHO) about the public health management of insanitary conditions caused by hoarding and domestic squalor;

• Improve administrative mechanisms for the submission and implementation of an abatement order, as granted by the ACT Magistrates Court; and

• Corrects an oversight in the structuring of an offence provision for causing or suffering an insanitary condition.


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This Bill fundamentally seeks to better address the serious public health risks

associated with a reoccurring insanitary condition and in doing so, seeks to minimise

possible health impacts to any person living in or adjacent to the insanitary condition

as well as safeguard property and privacy rights of affected neighbouring residents.

The Bill also seeks to improve regulatory transparency in the public health

management of instances concerning hoarding, hoarding-like behaviours and domestic

squalor through the determination of a Ministerial Code of Practice.

A Code of Practice that gives consideration to the public health and social complexities

of compulsive hoarding-like behaviours would provide guidance to the CHO about the

complex management of certain insanitary conditions. This would provide greater

regulatory transparency, community awareness and certainty around the ACT

Government’s approach to the public health management of insanitary conditions

associated with hoarding-like behaviour or domestic squalor.



ACT Removes Requirement for Passenger Vehicle ID Card Display

Industries: Public Vehicle Transport; Taxis; Uber

Keywords Road Safety; Passenger Safety; Driver Identification Cards

The Road Transport (Public Passenger Services) Amendment Regulation 2016 amends

the Road Transport (Public Passenger Services) Regulation 2002 (the Public Passenger

Services Regulation).

It amends section 307 the Public Passenger Services Regulation. That section obliges

the driver of a public passenger vehicle, while driving their vehicle for hire or reward,

to display their driver authority card so that the card can reasonably be read by a

passenger. This obligation ensures that a passenger is able to identify the driver of the

vehicle to be satisfied that the driver is authorised to drive a public passenger vehicle

or should there be a need to report the conduct of the driver to a police officer or the

Road Transport Authority.

The obligation is imposed on drivers of all public passenger vehicles (other than a

restricted hire car). Public passenger vehicles are public buses, taxis, rideshare vehicles,

hire cars or demand responsive service vehicles.

This amendment removes the obligation for the driver to display their driver authority

card where the driver is an affiliated driver for a transport booking service, and the

transport booking service gives the hirer sufficient information, including photo

identification, for the hirer to identify the driver before the hiring begins.


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The amendment recognises that a transport booking service may provide the name

and photo of the driver to the passenger via the booking process, for example through

a mobile phone application. In those circumstances where the passenger already has

access to identification information there is no additional safety benefit from requiring

the driver to verify their identity using a card. This amendment removes the

unnecessary requirement to display a driver authority card in those circumstances.



Technical and Definitional Changes to ACT WHS Regulation

Industries: All Industries and Businesses – But Particularly Construction

Keywords WHS Regulations; Definitions; HSRs – Training; Asbestos – Removal – Notification

The Work Health and Safety Amendment Regulation 2016 (No 1) amends the Work

Health and Safety Regulation 2011. The amendments are of a technical nature and

address inadvertent errors and clarify policy intent. The work health and safety

regulation forms part of a system of nationally harmonised work health and safety

laws.

The Regulation is made under clause 276 of Schedule 3 to the Work Health and Safety

Act 2011 and cover a range of matters relating to work health and safety, including:

Representation and participation (Chapter 2); General risk and workplace management (Chapter 3); Hazardous work involving noise, hazardous manual tasks, confined spaces, falls,

work requiring a high risk work licence, demolition work, electrical safety and energised electrical work and diving work (Chapter 4);

Plant and structures (Chapter 5); Construction work (Chapter 6); Asbestos (Chapter 8); and

General (Chapter 11).





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Case Summaries

No Evidence to Show Fine After Fall Was Excessive Says Appeal Court: B

& J Finnigan Pty Ltd v Worksafe ACT

This proceeding was an appeal from a decision of the ACT Chief Magistrate that was

given on 2 November 2015. It arose from a workplace accident in which a young man,

Mr Thomas McCoy, then aged 19, suffered orthopaedic injuries when he fell about 3.1

metres.

Her Honour imposed a fine of $140,000 on the company. In this proceeding, the

company argued that the fine was ‘manifestly excessive.’

The Appeal Court described the lower Court Judge’s approach to sentencing:

Her Honour, in her decision, noted and took into significant account the fact that there

was an early plea of guilty and that the appellant company provided assistance to the

investigation. In addition, her Honour noted that the conduct of Mr and Mrs Finnigan,

who are the principals of the company, following the accident was exemplary and

included, for example, their visiting Mr McCoy in hospital, their taking him back to work

after about six or eight weeks, and the fact that they have generally looked after his

interests and also improving the general safety environment in which their employees

work.

Her Honour also noted that the company is a relatively small company employing 12

staff, the majority of which seem to be apprentices. That fact reveals two results; one

in favour of the company and one against. In favour is that the company is providing

employment to young people in the community who wish to be apprenticed in the

electrical industry. The downside is that when young people are employed, there is a

very significant obligation to provide a safe working environment. That would not

include, as happened in this case, not only a deficient safety system but also leaving

the employees alone as occurred when Mr Finnigan left the work place on other

business.

The Appeal Court concluded that there was insufficient evidence to show the fine was

too high. It summarized:

… it seems to me that where it is sought to show a fine is manifestly excessive there

must be clear evidence of an excess over an appropriate range such that the court will

almost automatically say that fine is simply too much.

The appeal was dismissed.

For further information see Safety Alerts: 34-2016


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Tasmania

Legislative Updates

Road Rules Amended in Tasmania


Keywords: Road Safety; Road Rules; Tram Safety; Bicycle Safety; Seatbelts

The Road Amendment Rules 2016 amend the Road Rules 2009 by incorporating a

further round of, nationally agreed, changes to the Australian Road Rules. More specifically, the amendments –

Provide that the riders of animals, bicycles and postal vehicles may disregard one-way signs, keep left signs and keep right signs in a wider range of circumstances;

Update provisions relating to drivers who are near stopped trams (being provisions

that, though irrelevant to Tasmania, keep the State's Road Rules nationally consistent and inform Tasmanians travelling to jurisdictions that do have trams);

Provide that cyclists are only required to be astride their bicycle seats, not be

constantly seated thereon; Provide that, in certain circumstances, the Australian Road Rules prohibition on

teenage and adult cyclists riding on footpaths (not presently upheld in Tasmania)

does not apply to cyclists with medical conditions or to their cycling companions, nor does it apply to cyclists who are with cyclists under 12 years old;

Provide that, if faced with a green bicycle crossing light at an intersection or other

place on a road, cyclists may proceed against a red or yellow traffic light; Allow, on conditions, for some flexibility in respect of seatbelt, child restraint and

seating position requirements for young children with disabilities and medical conditions;

Make further allowance for young children to travel in the front row of motor

vehicles having more than one row of seats; Provide that vehicle manufacturers' integrated booster seats and cushions are

approved forms of booster seating, child harness and child restraint;

Clarify that, in certain circumstances, young children may be transported in category 2 or 3 seats (known as dickie seats) as defined in the Australian Government's Standards Bulletin VSB 5A (these being among the few kinds of seats that may be

retrospectively fitted to vehicles); Provide that, in certain circumstances, persons pushing motor bikes need not wear

helmets;

Provide that, in certain circumstances, riders of moving motor bikes are not required to sit astride their seats or keep both feet on the footrests;

Clarify which vehicles may stop in loading zones;

Consequentially insert new definitions; and Make other miscellaneous amendments and effect minor statute law revision.




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Northern Territory


NT WorkSafe Releases Guides on Traffic Management

Releasing several guides on safe traffic management, NT Worksafe has noted that

where there are vehicles like cars, trucks or forklifts at your workplace there is a risk that they will collide with people.

You must manage the risk of vehicles colliding with people at your workplace. There are a number of ways of doing this depending on the size of your workplace, the kinds

of vehicles being used and how often vehicle and pedestrians interact.

You should start by identifying the hazards and the potential points of collision between people and vehicles. You can do this by considering the flows of traffic and people, and by asking your workers and health and safety representatives about any problems they

encounter at the workplace. You must then put in place control measures to eliminate or minimise the risks so far as is reasonably practicable. A number of control measures

are generally needed to control the risks effectively.

Further information can be found in the general guide for workplace traffic

management, and the specific guides for traffic management on warehouses, construction workplaces, shopping centres and events, and in the checklists.


Case Summaries

Northline Unit Trust Enforceable Undertaking

NT WorkSafe has accepted an enforceable undertaking by the Trustee for the Northline Unit Trust (Northline), over an incident in April 2014, when a customer was severely injured by falling freight while a truck was being unloaded at the Gunbalanya service

station.

It is alleged Northline failed to comply with health and safety duties under Section 32 of the Work Health Safety (National Uniform Legislation) Act.

Northline has committed to spend a minimum of $160,000 improving its health and safety standards, and delivering health and safety initiatives to the heavy vehicle

transport industry, and the wider West Arnhem community.

These activities are:

Engagement of an independent WHS consultant to conduct a major review and upgrade of safety management systems for the Darwin depot and surrounding

remote delivery locations as a pilot case. This will be rolled out nationally following Northern Territory implementation;


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Undertaking an external audit of Northline's Darwin safety management system

to verify compliance with AS/NZS4801.2001; Introduction of new learning and development programs for staff;

Implementation of a formal external program to verify competency of forklift and heavy vehicle drivers;

Investigation and communication of best practice options for braking systems,

external vehicle cameras and side under run protection to the industry to educate operators about advancements in heavy vehicle safety systems;

Development and delivery of a Remote Community Heavy Vehicle Awareness Campaign, designed to improve community awareness and safety understanding of heavy vehicles and loading zones used by operators.

The enforceable undertaking is a legally-binding agreement between NT Worksafe and Northline, undertaken as an alternative to prosecution over the incident.

Executive Director of NT Worksafe, Stephen Gelding said the undertaking offered significant and ongoing commitments to achieve improved work health and safety outcomes and compliance beyond what is required by the law:

The WHS undertaking offers a similar deterrent to a successful legal proceeding and

will result in a tangible improvement to safety in the workplace, the heavy vehicle industry and in the West Arnhem community. NT WorkSafe is monitoring the enforceable undertaking to ensure the activities are implemented and will continue to

do so until the undertaking is completely discharged.



quarterly safety review 03-2016

Documents