Q1 2017: Must-see stories from the last three months

OHS Alert publishes the most comprehensive quarterly updates on WHS and workers' comp developments in Australia. This edition revisits all the major legislative developments and cases in every jurisdiction from January, February and March 2017.

Each brief summary includes a link to the original OHS Alert article (which could be contained within a set of news briefs), and we've added a list of some of our most-read stories from the first quarter of the year.

You can access all of our quarterly updates (going back to 2004) from our WHS Links page at any time.

Commonwealth/National

The Government introduced a Bill significantly curtailing and bringing forward the expiry of the exemption to the new Code for obtaining and performing Commonwealth-funded building work. The Bill passed the Senate unamended, and the ABCC released a two-step assessment process for determining whether an enterprise agreement complied with the Code, which contained new drug and alcohol testing rules.

The ASEA recommended that WHS regulators be required to penalise all supply chain parties involved in the illegal importation of asbestos, under strict liability laws, and told Senate Estimates that all workplace participants needed to be aware of WHS duties relating to imported products.

Australia's WHS ministers agreed to amend the model WHS Regulations to reduce the accepted levels of lead in fumes and workers' blood. Meanwhile, Standards Australia clarified that Standards "are, of themselves, considered to be voluntary documents", after receiving a series of safety-related enquiries on fall-arrest systems and anchor points.

The Federal Government triggered a 12-month transition period for phasing out six heavy vehicle safety Codes of Practice and replacing them with documents reflecting new chain-of-responsibility laws. It also vowed never to re-establish mandatory safe rates of pay for owner drivers, in its official, toned-down response to a controversial ombudsman inquiry.

A mirror Rail Safety National Law Bill passed Queensland Parliament, completing the national safety set.

The Federal Court found a company director was denied access to a building site for failing to provide an SWMS, and not because he refused to pay his union fees as claimed by the ABCC. The Court also rejected the ABCC's claim that union officials blocked a site for three days over "sham" safety concerns.

The Federal Court fined 19 workers $1000 each for unlawfully walking off a construction site after a meeting with union officials on alleged bullying and intimidation at the site. Meanwhile, the FWC upheld the bullying-related dismissal of a self-proclaimed "big fish" in a workplace that had been issued stop-bullying orders.

The FWC upheld a worker's final warning for refusing to undertake a third drug test after providing two suspicious urine samples, and found employers were entitled to DNA test samples. The FWC also upheld the dismissal of a worker for using his mobile phone while unloading fuel from a tanker.

A major employer was ordered to return an injured worker to his pre-injury role, after the FWC found the asserted inherent requirements of the role weren't essential features of his duties. Meanwhile, the FW Ombudsman launched proceedings against an employer – with a history of treating absent workers unfairly – for allegedly discriminating against a pregnant employee.

In an adverse action case, the Federal Circuit Court found a worker was sacked for being unable to fulfil the inherent requirements of her role, and not because she planned to seek stop-bullying orders in the FWC. The Court rejected another sacked worker's adverse action claim, after finding he unreasonably "shut down" all communication between himself and his employer during a two-month sickness absence.

An SWA report outlined three categories of WHS KPIs that supported officers' due diligence obligations. The agency also released: a podcast calling for OHS courses and training to be overhauled; its annual comparative report on safety authorities and workers' comp schemes; and its annual return-to-work survey report.

Australian Capital Territory

An employer that failed to act on reports of exclusion-zone breaches was found partly liable for a $925,000 injury, which was caused by a subcontracted excavator operator negligently using his mobile phone while operating the vehicle.

The Court of Appeal quashed a finding that a multi-jurisdictional employer was liable for a $726,000 injury damages bill under both of its workers' comp insurance policies.

The Territory Government introduced a Bill amending its "family violence and protection order schemes", which commence on 1 May and allow employers to apply for workplace protection orders relating to employees who are or are likely to be victims of personal violence.

New South Wales

The Court of Appeal quashed a world-first ruling (and $5 million damages award) that a worker's PTSD was a "bodily injury". The Court also upheld a major employer's appeal against a $3.9 million judgment for a labour-hire worker, who developed PTSD after a colleague attempted to murder him.

The Supreme Court ordered two employers to pay nearly $2 million to a worker who was injured after being paired with an older man who refused to perform his share of heavy work. Meanwhile, the WCC President upheld a $750,000 death-benefits award to the family of an injured worker who unintentionally consumed a lethal mix of medication and alcohol.

The District Court fined an employer $250,000 after a work experience student's hand was crushed in a machine. The Court also fined an employer $225,000 after a worker was fatally crushed by part of a 20-tonne truck, which had been propped on wooden blocks, and fined a company $220,000 (plus $82,000 in costs) for exclusion-zone breaches, after a driver sustained serious head injuries.

An employer was convicted and fined after its director identified a serious workplace safety risk, but left without ensuring the necessary controls were implemented. Another employer was fined after its "controlling mind" opted for an inferior method for supporting the walls of a trench, which collapsed on him and another worker.

In a rare case, a company's decision-making partner entered a $127,000 enforceable undertaking after a delivery driver was killed by mobile plant. Meanwhile, an employer committed nearly $1.2 million to an enforceable undertaking and additional safety rectifications after a worker became entangled in a machine's moving parts.

A major employer was ordered to pay a record $850,000 in fines and costs for failing to implement measures that would have prevented an intoxicated contractor from causing a major chemical spill. Another employer and its director were ordered to pay $188,000 in fines and costs for providing false asbestos-clearance certificates to a client and a regulator.

A parliamentary inquiry into the NSW workers' comp scheme made 26 recommendations, including that some injured workers be entitled to two lump sum payments and insurers be subjected to tighter surveillance guidelines. WIRO called for the Government to prioritise the recommended creation of a single independent tribunal for disputes, and abolish "secretive" merit reviews.

A coronial inquest into a fatal overhead-crane incident made three recommendations for safely operating cranes. An inquest into another fatality recommended a seven-part safe system of work for mobile plant like turf harvesters.

The IRC found that elected HSRs did not have an "overarching" right to decide which training course to attend under the model WHS Act, as claimed by a union and a misleading guide. In a separate case, the IRC stressed that a PCBU could not block union entry while conducting its own investigation into possible WHS breaches.

The Resources Regulator vowed to take enforcement action if any WHS breaches were identified in its investigation into NSW's first reported case of black lung disease in four decades. The regulator also called for mines to introduce remote-control technologies that take workers "out of the line of fire" of rock flows, in its final report on a fatality.

The emergency management provisions of the WHS (Mines and Petroleum Sites) Regulation commenced in February, while Parliament passed a Bill abolishing the Independent Transport Safety Regulator.

Northern Territory

A commission found that the Alice Springs Town Council was entitled to sack a worker who failed a cannabis test after a car crash, despite the fact that he wasn't at fault in the crash and wasn't given an opportunity to respond to the test results.

The Department of Health urged people with measles symptoms to stay away from work, after an infected person potentially exposed nearly 300 people to the disease, while WorkSafe warned that rooftop solar systems must be designed to withstand the Territory's extreme weather conditions, including cyclones.

Queensland

In an important decision under the model WHS laws, a court found that an employer's fatality-related fine should have been nearly three times higher than the one imposed, after examining cases from other harmonised jurisdictions.

Two company directors and their respective related businesses became the first entities charged with reckless conduct under the State WHS Act. Meanwhile, a sole trader was handed a record WHS fine for an individual, after an untrained worker was killed.

A local council was fined $170,000 after a roadworks employee was killed by reversing plant, while two employers were fined a total of $240,000 after an elderly woman and a young worker were killed in separate incidents.

Eighteen new infringement notice offences were added to the WHS Regulation, WHSQ clarified the "often misunderstood" definition of confined space in the harmonised WHS Act, and new road safety rules for quad bikes and utility off-road vehicles commenced.

Queensland's new Industrial Relations Act and anti-bullying jurisdiction commenced on 1 March, while the State Government warned that healthcare facilities would face increased scrutiny and high fines for infection-control breaches under proposed laws.

The mirror Rail Safety National Law (Queensland) Bill passed Parliament, completing the national rail safety set, while a parliamentary inquiry recommended that a Bill banning 100 per cent FIFO mines be passed with a range of amendments.

An ongoing inquiry found that the occupational disease black lung was never eradicated in Australia, and persisted because of "massive" regulatory failures.

In a "novel" judgment, three companies were found liable for a fatigued shift worker's commuting injuries and $1.25 million damages bill. Meanwhile, the Supreme Court granted a double amputee permission to sue nine employers for damages, five years after he sustained his catastrophic injuries in what should have been an exclusion zone.

A supermarket chain was ordered to pay more than $650,000 to a worker who injured his back after he and others were permitted to use a steel lever to move 1200kg pallets. Another supermarket chain defeated a damages claim, after a court found its manual handling systems were effective.

The Court of Appeal found an employer did not have a duty to protect the psychological health of a worker from investigation letters blaming her for a physical altercation. Meanwhile, a tribunal found an employer was vicariously liable for a sexual assault on a worker, and ordered it to pay part of her $313,000 damages award.

A Federal Court full bench upheld a major employer's implied right, under Queensland's coal mining health and safety laws, to compel an injured worker to see a company-nominated doctor, and sack him for refusing to do so.

South Australia

The Industrial Relations Court averted an avalanche of quashed convictions, in rejecting a charged employer's claim that all WHS prosecutions launched over a three-year period were invalid due to lack of ministerial oversight.

An employer entered a WHS enforceable undertaking worth nearly $1 million after a worker was killed on an elevated work platform, but regulatory action taken against two major companies after the incident was withdrawn.

Work capacity certificates, also known as fit notes, became mandatory, with ReturnToWork refusing to accept the old WorkCover medical certificate for work-injured patients from 1 January.

The State Government announced plans to ban the use of firefighting foams containing the hazardous substances PFOS and PFOA, with the Environment Protection Authority set to consult with industry on the best way to implement the ban.

The SAET found there was an "unbroken chain of causation" between a worker being posted to a remote location, contracting whooping cough and suffering a debilitating stroke. In another case, the SAET awarded compensation to a worker who was injured in an employer-provided cabin while preparing to go to dinner, but stressed that the cabin wasn't his place of employment.

A tribunal found that a worker's compensable depressive disorder, which resulted from a workplace investigation, was a significant contributing cause of his subsequent heart attack. Meanwhile, a worker whose brain was pierced by a pool cue during a game with his supervisor was denied compensation, after a tribunal found he hadn't been obligated to socialise with the supervisor.

The SAET allowed an injured worker to combine his various degrees of impairment resulting from being over-prescribed opioid medication after back surgery, taking his whole person impairment to 70 per cent.

The Government called for more employers to consult SafeWork's free education service (without fear of incriminating themselves), claiming that 98 per cent of the 500-plus businesses that had done so since it was established last year found it "very useful".

Tasmania

The State Government amended its Dangerous Goods (Road and Rail Transport) Regulations 2010 to reflect United Nations' recommendations for the transport of classified goods, remove labelling requirements made redundant by the GHS and address other issues. Meanwhile, WorkSafe announced that as in other jurisdictions, certain agricultural and veterinary chemicals would be exempt from the GHS until the end of 2017.

The Government attributed a major asbestos scare on the Royal Hobart Hospital redevelopment project to an "administrative error" that led to a work area being incorrectly assessed as asbestos-free.

A tribunal found that the provision of new medical certificates for injured workers did not automatically terminate the effect of preceding certificates.

In a case reiterating the need for employers to provide sufficient evidentiary material in workers' comp disputes, the WRCT found that a business failed to establish a reasonably arguable case against a health and safety officer's claim that his psychiatric injury arose from discrimination and a verbal assault.

Victoria

The State Government introduced a 30-page OHS and workers' comp Amendment Bill making the failure to preserve a serious incident site an indictable offence with high fines, and extending limitation periods for safety prosecutions.

The Government flagged laws creating an OHS-style duty for businesses to minimise risks of harm to human health and the environment. It also introduced an Amendment Bill to close the gaps in safety duties and sanctions identified by a review of recent marine court cases and safety incidents.

A Bill expanding the recall actions available under the State's electrical and gas safety Acts passed Parliament, while the Government amended its dangerous goods Regulations to ensure consistency with transport laws, and introduced legislation banning the production and sale of synthetic cannabinoids.

Two employers were fined a total of $144,000, after a backpacker worker was scalped and an inexperienced employee suffered serious burns in an explosion, while WorkSafe reported that 2016 was the State's worst year for work fatalities in nearly a decade.

An employer that previously claimed it should have been charged under road rules – with low maximum fines – instead of OHS laws after a fatality, unsuccessfully argued in the Court of Appeal that its OHS charges were invalid in failing to outline the "necessity" of providing safety instructions to workers.

The County Court fined an employer for failing to ensure an SWMS addressed a fatality-causing task – the performance of which was "at the outer level of foreseeability" by the employer. Meanwhile, a coronial inquiry warned against developing a cavalier approach to safety over time, after a blasting fatality.

An employer was fined for failing to instruct personnel on the risks associated with a maintenance task, while a red back spider victim was fined for over-claiming treatment travel costs, and a bakery was fined for requiring an untrained worker to manually operate a faulty machine, which led to three of his fingertips being amputated.

An employer that left a psychologically vulnerable worker under the supervision of an abrasive manager was ordered to pay the worker more than $625,000 in damages. Meanwhile, damages awarded to a worker, whose injuries were caused by her employer's OHS breaches, were increased on appeal, but not to $1.46 million as the worker claimed they should be.

An injured worker was granted permission, on appeal, to sue an allegedly defective ladder's manufacturer, which owned the company that engaged him to perform height work. Meanwhile, WorkSafe warned employers to avoid engaging a company accused of charging clients for asbestos tests that were never conducted.

The Government announced that paramedics would be put through virtual-reality anti-violence training designed by experts in hostage and crisis negotiation, and released more than $7 million in its second round of funding for the health services violence-prevention program.

Western Australia

Labor won the State election on the back of a party platform supporting union-led prosecutions and 20-year jail terms for recklessness under the incoming WHS laws. The new Premier appointed two Ministers to oversee the draft mirror WHS Acts for general industry and the resources sector, but was forced to shuffle his cabinet after discovering the Mines and Petroleum Minister had a family member in the oil and gas industry.

The outgoing State Government increased fines for failing to safely handle or dispose of asbestos10-fold, in an effort to curb mesothelioma rates, and extended presumptive workers' comp entitlements for both current and former firefighters with cancer.

Western Australia postponed planned amendments to its dangerous goods transport Regulations in light of the State election, while WorkSafe outlined the circumstances in which State-based chemical manufacturers, importers and suppliers must comply with the Globally Harmonised System of Classification and Labelling of Chemicals.

WorkSafe and EnergySafety called for comments on proposed amendments to the State OSH and electricity licensing Regulations.

A worker was ordered to pay more than $21,500 in OSH fines and costs, after a moment of carelessness led to him reversing a car over a manager and killing him. Another worker was fined $11,000, plus nearly $2000 in costs, for killing a colleague with a raised forklift attachment.

Three employers were fined a total of $185,000 after: a teenage worker's fingers were amputated in a mobile shredder; a worker sustained serious crush injuries in an ore grinder; and a ruptured tank spilled two million litres of sulphuric acid slurry at a mine, temporarily trapping three employees in a control room.

A principal contractor that was previously convicted and fined over a worker's three-metre fall was ordered to pay 40 per cent of the man's common law damages, after the District Court found it failed to "retain and exercise a supervisory power".

The District Court found that a worker, who ignored his training and incorrectly lowered a loading platform for 18 months before falling onto a concrete floor, was "wholly responsible" for his injuries. Meanwhile, a nurse was denied compensation for golden staph on appeal, after a court found she failed to establish the "significant unlikelihood" of being exposed to the disease outside of work.

A DMP audit found that few mining companies properly consulted with workers on mental wellbeing strategies. Meanwhile, the regulator appointed its first ever mental health and wellbeing inspector of mines, and released a special safety bulletin outlining 11 warning signs of workers at risk of suicide.

The DMP developed a hazard register – based on fatality investigations and coronial inquiries – to help mining operators identify potentially fatal hazards and understand how they affect different occupation groups.

And make sure you didn't miss...

OHS Alert's most-viewed articles in January, February and March included:

Send your comments or feedback on this article to the editor Brad Hamilton.

Remember, all of our quarterly updates, dating back to 2004, are available on our WHS Links page.

Did you miss...

How to reverse widespread EAP resistance

Workers often see referrals to employee assistance programs as "cloaking punishment", but establishing workplace EAP committees that liaise with vendors can help eradicate pushback, a human resources management expert says. more

Fatal risk in CBD high-rise foreseeable but not addressed

A second duty holder has been fined over the death of an 80-year-old workplace visitor in a disused stairwell that posed an obvious risk of falling or entrapment, while a business has been fined over a fatality that followed its failure to identify the qualifications and competencies required for high-risk tasks. more

WHS regulator targets smoking; WHS Code adopted; more

  • WHS regulator to enforce anti-smoking clauses;
  • Regulator sends exclusion-zone warning with animated recreation;
  • New WHS Code of Practice adopted by Tas; and
  • Body-worn cameras adopted permanently for NT inspectors. more

Duties breached through supply and segregation flaws

An upstream duty holder has been prosecuted and fined for providing plant with a manual that was missing safety instructions for inspection and cleaning tasks. Another duty holder has been fined for failing to provide a demarcated safety zone for delivery drivers, which led to a double amputation. more

Jurisdiction
AustMap Tasmania Victoria South Australia New South Wales Australian Capital Territory Queensland the Northern Territitory Western Australia National / Commonwealth