Q2 2014: The biggest safety stories from April to June

Proposed and actual major changes to the harmonised WHS Acts, as well as surprising developments in the non-harmonised states, dominated OHS Alert's pages in the second quarter of 2014. Check out this review of all the most important safety and workers' compensation news from the three months to 30 June.

Each brief summary contains a link to the original article (which could be contained within a set of news briefs), and below the round-up we've included a list of some of our most popular articles from April, May and June.

You can access all of our quarterly updates (going back to 2004) directly from our WHS Links page at any time. Add it to your favourites list!

Commonwealth/National

The Commonwealth, state and territory governments agreed at a COAG meeting to examine ways to reduce the "red tape" associated with the model WHS Act.

The process of finalising 12 draft model WHS Codes of Practice looked likely to stretch beyond two years, with Safe Work Australia members agreeing to review them again. (Nine of the draft Codes were later dumped in favour of guidance "packages".)

The National Commission of Audit recommended consolidating SWA, Comcare and other agencies into the Department of Employment, and abolishing the Asbestos Safety and Eradication Council. But the Government overlooked these recommendations in its subsequent budget, and the Employment Minister revealed that it would be more cost effective to maintain SWA in its current form.

The Federal Government proposed a new Code for the building and construction industry that included less-prescriptive safety and injury-rehabilitation provisions.

The Road Safety Remuneration Tribunal's first (and possibly last) remuneration order took effect on 1 May, while hundreds of truck drivers were caught drug-driving or illegally using their mobile phones during a multi-agency blitz in May and June.

SWA's first annual national statement on workplace bullying found workers whose jobs involved contact with the general public made the most bullying-related mental stress claims. A Fair Work Commission report found clerical and retail workers lodged the most applications for stop-bullying orders in the first three months of 2014.

Among a number of bullying-related decisions made in the second quarter of 2014, the FWC:

  • found a worker who was sacked after applying for stop-bullying orders was no longer eligible to apply, because his dismissal eliminated the risk of ongoing bullying;
  • rejected both an ill worker's bid for stop-bullying orders and her employer's counterclaim that the worker bullied a senior manager; and
  • rejected a worker's application because her manager's alleged bullying behaviour constituted reasonable management action.

A worker who claimed his psychiatric injury arose from being bullied by his supervisor was denied workers' compensation, after the AAT found the supervisor's actions "simply did not fit" the dictionary definition of bullying.

A solicitor who was sacked after he "misconducted himself" due to ill health was awarded more than $100,000 in the Federal Circuit Court, while an FWC full bench confirmed that it was reasonable for an employer to direct an injured worker to be assessed by a company-preferred doctor before returning to work.

In separate decisions, the FWC found a health and safety rep was fairly sacked for backdating a job hazard analysis, and found an experienced haul truck driver was rightly dismissed for ignoring a mine's major safety alarm.

SWA added 112 new chemicals to its Hazardous Substances Information System, while the winners of the ninth annual Safe Work Australia Awards were announced.

Australian Capital Territory

The ACT became the first jurisdiction to charge a company officer under the harmonised WHS laws, after a worker was electrocuted when the back of his truck touched powerlines.

WorkSafe warned that employers that failed to maintain their workers' comp policies were often handed the maximum penalty - of double the avoided premiums - after it recovered more than $26,000 from a health services company.

The Territory Government announced that from 1 July, workers would be required to undertake special asbestos awareness training before working with asbestos-containing materials.

A worker who was told by his foreman to perform manual tasks immediately after he aggravated an ankle injury was awarded $550,000 in damages.

New South Wales

New State Finance Minister Dominic Perrottet - who was appointed to the role in April - wound back the 2012 workers' comp amendments to ensure amputees and some other injured workers had access to medical aids and benefits until retirement age.

WorkCover announced that workers' comp premium rates would remain at January-to-June 2014 levels for 2014-15, but the State Government surprised employers by announcing, in its budget, that premiums would be cut by an average of five per cent on 1 July.

A parliamentary inquiry into WorkCover's notorious culture of bullying and "cover up" called for the introduction of special anti-bullying legislation to bridge the gap left by the WHS and Fair Work Acts. The Opposition vowed to push for the introduction of such laws, and to repeal the "harsh and unfair" 2012 workers' comp amendments if it won next year's State election.

The High Court found the 2012 workers' comp changes prevented a worker, who was injured in 2010, from pursuing lump sum compensation, because his whole person impairment was less than 10 per cent. The High Court also found that a NSW worker who was seriously injured at a private party at her employer's premises wasn't entitled to workers' compensation.

Draft harmonised WHS Regulations for the State's mining industry were released for consultation, with stakeholders asked to comment on clauses developed in light of New Zealand's Pike River Coal Mine disaster.

Husband and wife PCBUs who allowed hazardous chemicals to be used at their hairdressing salon were fined $25,000 each, after pleading guilty to breaching the State's mirror WHS Act.

A contractor was ordered to pay $1 million in damages to a worker injured in a fall, after the Court of Appeal found it took control of the relevant system of work and revised the SWMS just days before the incident. Meanwhile, an injured subcontractor's $650,000 damages bid was rejected, with a judge finding he should have refrained from performing an unsafe task.

The family of a murdered worker was awarded nearly $300,000 in workers' comp death benefits, while the wife of a worker who was killed in a vat of molten metal was awarded $320,000, after the WCC rejected an employer's claim that the man committed suicide.

The WCC President upheld a finding that a deceased worker's unhealthy sedentary lifestyle was linked to her job, and her children were entitled to $434,000 in workers' compensation. An Arbitrator awarded a deceased worker's family $465,000, after finding the man's 2011 cardiac arrest stemmed from a 1992 shoulder injury.

In a decision that examined NSW's new limited journey coverage, a teacher who tripped while rushing to work to cover an absence was awarded workers' compensation.

Northern Territory

The Motor Accidents (Compensation) Amendment Act 2014 received assent (and took effect on 1 July), aligning the Territory's motor accidents compensation scheme with the National Injury Insurance Scheme, and making it clear that workers injured in vehicle incidents on private roads must seek compensation under workers' comp laws.

The Territory Centre for Disease Control called for workers to stay away from work if they experienced measles symptoms, after a traveller was diagnosed with the highly contagious disease in Darwin.

Queensland

Major changes to the State's mirror WHS Act passed through Parliament in early April, without adopting any of the amendments recommended by a parliamentary committee just days before. Many of the changes, including new union entry and HSR rules, commenced on 16 May.

Queensland replaced its 2004 Code of Practice on preventing workplace harassment with Safe Work Australia's "less prescriptive" guides on preventing and responding to workplace bullying. It also adopted SWA's Code of Practice on first aid, and amended its Codes on noise, asbestos and foundries.

The State Government announced in its budget that it would create a "one-stop shop" for safety and workers' comp matters, and "improve" its current mine safety Acts, suggesting it had no immediate plans to introduce mirror WHS laws for the sector. The Mines Minister subsequently committed to harmonising the sector's safety laws "where possible".

The average workers' comp premium rate was slashed by 17 per cent (to 1.2% of payroll), making it the lowest in the country. WorkCover revealed that miners would benefit the most from the cuts, with an average rate reduction of 22.4 per cent.

The Court of Appeal confirmed that a hotel patron who was hit on the head during a violent work Christmas party was entitled to $1.4 million in damages. Meanwhile, a worker who crashed a 20-tonne crane while "wilfully" driving it on a public road was denied damages.

A worker was awarded $240,000 in damages for a psychological injury after being bullied by a new manager for just 11 days.

The lessee of a public swimming pool was fined for breaching the State's mirror WHS Act, in failing to ensure "fixtures" that he controlled were safe, after an umbrella was blown out of its bracket and fatally struck a primary school student.

A coronial inquiry into a motorist's death, involving a defective road train, found a group of related transport companies had "appalling" record-keeping processes and a "largely haphazard approach" to quality assurance.

Workplace Health and Safety announced that enforceable undertakings had contributed $24 million to OHS projects and other initiatives since they were introduced 10 years ago, with one employer contributing $120,000 to the pool in the first undertaking under the Work Health and Safety Act 2011.

South Australia

SafeWork SA launched a statutory review of the State's mirror WHS Act, which would focus on union officials' use of their new safety-entry rights. (Robin Stewart-Crompton was subsequently selected to conduct the review.)

The State Government announced that it would introduce a Return to Work and Recovery 2014 Bill to replace the Workers Rehabilitation and Compensation Act 1986, and implement it by the middle of next year.

The Greens, in May, reintroduced a Bill that provided volunteer firefighters with the same access to presumptive cancer compensation as career firefighters. The Bill passed through the Upper House in June.

A man who received incapacity payments for a work-related injury while secretly working at two service stations was sentenced to 12-months' jail (suspended) and ordered to repay WorkCover $24,000.

A worker successfully argued that his schizophrenia arose from a work-related hand injury, but was denied $1.6 million in damages, after a judge found his employer could not have foreseen he was susceptible to the condition.

The WCT rejected a worker's claim that his psychosis arose from working in an isolated location and having excessive safety responsibilities, while a worker who was suspended after he told his manager he had hepatitis was awarded compensation for a psychiatric injury.

An employer that knew one of its machines had a faulty safety switch months before a young worker's fingertips were amputated while using it, was fined $26,250 for OHSW breaches.

A SafeWork inspector warned that common misconceptions about working in confined spaces could result in serious injuries or death, while the regulator outlined a number of steps employers could take to prevent and respond to work-related violence.

Tasmania

The State Government hinted that it would investigate ways to streamline its mirror WHS Act, describing the current legislation as lengthy, complicated and "little understood". It also proposed introducing mandatory jail terms for those who assaulted and injured police officers.

The Coroner found that a worker who neglected to perform a pre-start check of a dilapidated elevated work platform - because his desire to get on with the job "overtook him" - was one of three people whose actions contributed to the death of a diesel fitter.

A man who fractured his neck and spine while performing a job for a friend's company wasn't a "worker" and wasn't entitled to workers' compensation, a Tribunal found.

The family of a firefighter, who died from cancer just weeks before presumptive compensation laws commenced, was told by the WRCT that it would have to prove there was a link between the man's disease and his job to be eligible for workers' compensation.

Victoria

Victoria's Shadow WorkCover and IR Ministers revealed that Labor would be unlikely to introduce harmonised WHS laws if it won the November 2014 State election, defying many stakeholders' expectations.

Employers were advised that on 1 July, OHS amendments relating to construction-project safety plans and other matters would take effect, construction employers would have to comply with a new drug testing and security regime, and amalgamated workers' compensation laws would commence.

The average workers' comp premium rate was reduced by two per cent to 1.272 per cent of payroll - the first cut since mid-2012.

Victoria became the fifth jurisdiction to join the national rail safety regulatory regime, and also removed a requirement for crane operators to obtain a permit before travelling on about 700 of the State's roads.

The CFMEU's long-running dispute with construction company Grocon - over the appointment of health and safety officers - cost the union more than $2 million in fines and costs, after it was convicted of contempt of court in hindering access to Grocon sites in Melbourne.

A repeat OHS offender was convicted and fined $75,000 after a worker was seriously injured in an unguarded pit of hot liquid, taking the employer's total safety fines to $455,000 in just over a year.

An employer was fined $125,000 for traffic management breaches, after a worker was killed in a forklift incident, while another employer's forklift-related safety fine was increased by 650 per cent to $7000 after the DPP appealed.

A Coroner found that a business owner died from exposure to a chemical that had been linked to a host of worker deaths and banned in Europe. Another Coroner found an employer over-relied on administrative controls prior to the death of an experienced road-broom truck driver, who was crushed while working alone.

An employer committed to spending nearly $800,000 on OHS initiatives under an enforceable undertaking, after five safety incidents occurred at three of its sites in less than a year. Another employer committed to holding mock court proceedings to help managers understand their safety obligations, as part of a $150,000 undertaking it entered after a worker was injured while unloading a truck.

A Magistrate outlined what constituted a "substantial interruption" to a trip under the journey provisions of the workers' comp Act, in finding a CEO who injured his neck after playing golf on his trip home from an interstate work conference wasn't entitled to compensation.

Western Australia

In April, the Department of Mines and Petroleum revealed that the State Government planned to introduce harmonised WHS Bills for general industry and the resources sector by September, while WorkCover announced that the average premium rate would be cut (to 1.556% of payroll) for the second year in a row on 1 July.

By May, the Government appeared highly unlikely to introduce mirror WHS laws within the next few years, with the State budget reducing safety funding, and the Attorney-General boasting of the success of the current OSH Act.

WorkCover's final report on the workers' comp scheme made 171 recommendations, including that the current Act be replaced with a new statute, that doctors be required to specify what injured workers "can do", and that common law access be restricted.

The State Government directed the Law Reform Commission to assess the merits of an Opposition Bill that expanded asbestos victims' access to damages. Meanwhile, an employer was fined $5500 after becoming the first entity in the State to be prosecuted for failing to identify the presence and location of workplace asbestos.

The DMP agreed to determine whether to adopt a more flexible interpretation of the control and supervision provisions of the Mines Safety and Inspection Act 1994, while a report on the Dangerous Goods Safety Act 2004 proposed significantly increasing penalties to match those in the model WHS Act.

A road transport company was fined $31,000 for transporting dangerous substances such as chlorine without appropriate placarding or safety equipment, and a vegetable exporter was fined $33,000 after a worker was injured while climbing a machine to access a control panel, which was too high to reach.

A labour-hire company escaped a $710,000 damages bill, after the District Court found it had no control over an employee who allegedly caused another worker's injuries.

A worker who developed PTSD after stopping to help a mortally injured car crash victim during a work trip was denied workers' compensation, after a court found her employer didn't engage or encourage her to assist accident victims. Meanwhile, a judge confirmed that a worker was entitled to workers' compensation because her stress injury arose from a "surprise attack" performance meeting.

And make sure you didn't miss...

Some of OHS Alert's most-viewed articles during the April-to-June quarter include:

Did we miss anything? Send your comments or feedback on this article to the editor, Brad Hamilton, at brad@ohsalert.com.au.

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

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