Legislation and cases update - Q4 2013

In this article, OHS Alert revisits all the important work health and safety and workers' compensation legislation news from the final quarter of 2013. We also examine the most significant court and tribunal rulings and other developments in each jurisdiction.

Each brief summary includes a link to the original article (which might be contained within a larger set of news briefs), and we've added a list of our most popular stories from the October-to-December period.

You can access any of our quarterly updates (going back to 2004) directly from our WHS Links page at any time. Add it to your favourites list now for easy reference later.

Commonwealth/National

The High Court found a Commonwealth employee who was injured while having sex in her motel room on a work trip wasn't entitled to workers' compensation, effectively narrowing the application of the Hatzimanolis test for work-interval injuries.

The lawyer who led Comcare's successful appeal in the above case outlined the new four-step version of the Hatzimanolis test. Meanwhile, the Federal Court found - in a decision that was reserved pending the High Court's ruling in the sex case - that a worker injured during an eight-hour road trip to see a doctor was eligible for compensation.

Employment Minister Eric Abetz promised the Abbott Government would repeal laws that "overregulate our society", and cited as an example of WHS overregulation a suggestion - in the draft model bullying Code - that employers put up anti-bullying posters in lunchrooms.

Safe Work Australia confirmed it would dump the controversial draft model Code of Practice on preventing workplace bullying in favour of a guide. It subsequently published two workplace anti-bullying guides, two fatigue management guides and a revised version of the model Code of Practice on construction work.

The Fair Work Commission launched a dedicated webpage to help employers and workers navigate its new anti-bullying jurisdiction, which took effect on 1 January 2014.

The Australian Law Reform Commission was directed to identify laws that "unreasonably encroach upon traditional rights, freedoms and privileges", with the model WHS Act's provisions on discrimination and inspector powers likely to be scrutinised. Meanwhile, Safe Work Australia revealed it was assessing a Queensland plan to tighten right-of-entry rules for unions under the model WHS Act.

The Road Safety Remuneration Tribunal announced, in its first remuneration order, that employers would be required to prepare safety plans for long-distance truck drivers that addressed issues such as fatigue, fauna and the weather. The future of the Tribunal was thrown into doubt, however, with the Government establishing a review into its necessity.

The National Heavy Vehicle Regulator announced that the new Heavy Vehicle National Law would take effect on 10 February 2014, while the Federal Government introduced a Bill to restore the Australian Building and Construction Commission.

The six-year moratorium on employer applications for workers' compensation self-insurance under the Comcare scheme was lifted in December.

The Fair Work Commission found an employer was wrong to sack a worker who it believed was a "sophisticated predator" of the workers' comp system who was likely to deliberately injure himself.

An employer was ordered to pay $100,000 to a train driver with chronic post-traumatic stress disorder after it sacked him for refusing to undertake a competency assessment when he was ill.

An accountant who sexually harassed his former manager was ordered to pay her $476,000 in damages, after the Federal Court rejected his claim the incidents didn't occur in the workplace. Meanwhile, a worker who was sexually harassed by a manager before being sacked for complaining about it was awarded $100,000 in the Federal Circuit Court.

A Safe Work Australia study, aimed at developing more relevant safety lead and lag indicators, warned that lost-time injury rates didn't reflect the cost or severity of injuries. Another SWA report found that few employers in one of the manufacturing industry's most hazardous sub-sectors proactively sought ways to improve their safety systems.

Australian Capital Territory

A Bill establishing an Industrial Court to deal with work health and safety prosecutions and workers' comp claims of up to $250,000 passed through Parliament. ACT Chief Magistrate Lorraine Walker was subsequently appointed as the inaugural Industrial Court Magistrate.

A Government report found WorkSafe inspectors visited more than 2000 workplaces, issued hundreds of improvement and prohibition notices, and significantly increased their presence in some sectors in 2012-13.

WorkSafe proposed introducing mandatory asbestos-awareness training for workers in the construction industry and related sectors.

A worker who seriously injured his back pushing heavy trolleys across an unswept floor was awarded more than $1 million in damages, while an employer was ordered to pay $820,000 in damages to an injured subcontractor, after the Supreme Court found it failed to assess the size and weight of concrete blocks before directing the man to lift them.

A bus driver who suffered nervous shock from witnessing what he believed was the gory aftermath of a machine-gun massacre was awarded $546,000 in damages, after a judge found the Defence Force failed to clearly explain the scene was fabricated for a training exercise.

New South Wales

The average workers' comp premium rate was cut (for the second time in a matter of months) from 1.55 per cent of payroll to 1.47 per cent.

The State Government introduced a Bill to "place it beyond doubt" that the District Court had jurisdiction to hear OHS prosecutions, and that legal practitioners could sign safety summonses on behalf of WorkCover prosecutors, in an attempt to nullify two ongoing disputes that were holding up about 160 OHS prosecutions.

The above Bill subsequently passed through Parliament, but its reach and value appeared doubtful after the Attorney-General lost his appeal against the quashing of an employer's OHS charge, which had been instituted by a WorkCover solicitor without the authorisation of a prosecutor.

Fines imposed on two business owners for obstructing, intimidating and abusing WorkCover inspectors were more than doubled on appeal.

A company director who knew his workers deliberately inhaled chemical fumes to "get high", but failed to stop them or enforce PPE requirements, was fined $6500 after a worker died from exposure to solvents.

The NSW Police Force rejected claims that it should have provided an officer - who was recently medically discharged with permanent lung injuries - with a respirator or safety glasses while he worked in a drug vault, but was subsequently fined $350,000 after pleading guilty to exposing the officer and others to hazardous substances in the vault.

A support services provider that failed to assess whether a mentally ill client was violent was fined $115,000 for OHS breaches, after a worker was murdered by the client during an unauthorised home visit. Meanwhile, an employer was fined $160,000 after one of its supervisors - who misunderstood his safety role - lost his arm in a crane incident, which killed another worker and seriously injured three more.

A worker whose permanent injuries arose from taking medication - prescribed by an employer-appointed doctor - was awarded workers' compensation in the Court of Appeal, while the three adult children of a worker who died of a heart attack were awarded $145,000 each, after the WCC found the woman was overworked and received little support from her employer.

Truck inspectors were handed greater powers to deregister unsafe heavy vehicles and require trucking companies to provide details of their maintenance schemes. The Roads Minister subsequently threatened to ground a company's entire fleet, after one of its petrol tankers was involved in a double road fatality, and hundreds of defect notices were issued during inspections of its other vehicles.

An analysis of the NSW public sector found anti-bullying policies weren't eliminating the problem.

The winners of 2013 WorkCover NSW SafeWork Awards were announced.

Northern Territory

A preliminary review of the Workers Rehabilitation and Compensation Act flagged scrapping journey claims, shortening step-down periods and introducing presumptive compensation for firefighters who contracted certain types of cancer.

An employer that ignored a WorkSafe prohibition notice relating to the illegal storage and transportation of acetylene cylinders, and failed to learn from the December 2011 death of a worker in an explosion, was fined $5000 for breaching the Territory's mirror WHS Act.

A new nationally-accredited training course for dangerous goods driver's licence applicants was adopted in October.

A worker who claimed he injured his back while lifting 91kg concrete caps was denied damages, after the Supreme Court found his employer explicitly forbade such work.

Queensland

The State Government announced it would introduce a common law threshold of five per cent whole-person impairment to the Workers' Compensation and Rehabilitation Act 2003 to "protect businesses from outlandish claims and skyrocketing premiums", but promised to retain journey claims.

A host of transitional arrangements for Queensland's mirror WHS Regulation were extended by 12 months to January 2015, while eight model Codes of Practice - including those on hazardous chemicals, workplace plant and structure designs - took effect on 1 December.

The Government proposed amending the State's mirror WHS Act to require unions to give employers 24 hours' notice before entering sites for safety reasons, and said it would push for other states and territories to "get on board". The Attorney-General said workers would be encouraged to report safety concerns to regulators instead of unions, but inspector numbers wouldn't be increased to deal with the workload.

Employers were advised to prepare for the new Electrical Safety Regulation 2013 and amendments to the Electrical Safety Act 2002, which took effect on 1 January 2014.

In a safety performance report, the Mine Safety and Health Commissioner expressed concerns about the over-representation of contractors in fatality statistics, while his chief inspectors outlined four "underlying principles" for improving safety.

A school principal subjected a worker with a long history of depression to "oppressive" disciplinary action after he was accused of minor conduct breaches, contributing to the man's suicide, the Coroner found. Meanwhile, a coronial inquiry into the death of an inexperienced house-removal worker identified a "surprising" lack of safety regulations for the hazardous sector.

An employer that failed to provide the right tools for a basic maintenance task was ordered to pay an injured worker $552,000 in damages, while a worker who claimed his sexual harassment of a former female colleague amounted to nothing more than "risqué" banter was ordered to pay her $100,000 in damages.

An employer successfully appealed against a decision to award $245,000 in damages to a worker who injured his knee on a cupboard door handle, after the Court of Appeal found it couldn't have foreseen the seriousness of the incident. Meanwhile, an employer successfully appealed against a decision to award $369,000 to a worker who injured herself walking backwards during a training exercise.

The winners of the 2013 Queensland Safe Work Awards were announced in an October ceremony.

South Australia

South Australian Industrial Relations Minister John Rau announced that the State's "buggered" WorkCover scheme would be decommissioned and replaced by a new model, just days after a report showed WorkCover's unfunded liability topped $1.366 billion. (Rau subsequently released a policy statement for the new model, as reported by OHS Alert earlier today, 28 January 2014.)

A Bill aimed at downsizing the WorkCover board and putting it "on a proper commercial footing" passed through Parliament, while the Opposition warned the Government's Health Information Bill could restrict an employer's ability to conduct pre-employment medical examinations or workplace drug tests.

A Greens amendment aimed at ensuring volunteers were covered by the Government's presumptive workers' comp Bill for firefighters with cancer was defeated. (The Bill subsequently passed through Parliament with limited coverage for Country Fire Service volunteers.)

The Government suspended three WHS Codes of Practice, relating to construction work, for fear that complying with them would push up the cost of houses, even though it ridiculed an employer group for making an identical claim in 2012.

Employers were advised that transitional arrangements for 10 areas of the State's mirror WHS Regulations expired at the end of 2013, while miners were urged to prepare for the model WHS Regulations for mining, which took effect on 1 January 2014.

An employer that failed to inspect the structural integrity of new concrete stairs at a building site was fined $100,000, after a staircase collapsed onto and injured a worker. Meanwhile, an employer whose failure to guard a pinch point resulted in an amputation became one of the first companies to receive the new maximum 40 per cent discount on safety fines.

A coronial inquiry into the drowning deaths of two workers - employed on an unstable fishing vessel - highlighted the risks of modifying plant without having the changes approved or inspected.

A major employer wrongly determined that suitable employment options under return-to-work plans should be limited to "productive 'normal' positions", rather than a collection of duties sourced from various roles, the WCT ruled in a workers' comp dispute.

The winners of the 2013 South Australian Safe Work Awards were announced.

Tasmania

A worker at BHP Billiton's Bell Bay manganese smelter failed to convince a commission that his positive workplace drug test - which led to his dismissal - was "exacerbated" by the surge of adrenalin he experienced while fighting a fire on a front-end loader.

The mother of a catastrophically injured worker, who was assessed as having a 70 per cent whole person impairment after being diagnosed as being in a permanent "vegetative state", was awarded nearly $290,000 in workers' compensation on behalf of her daughter.

The winners of the 2013 WorkSafe Tasmania Awards were announced, including an employer that eliminated two significant risks by redesigning equipment in consultation with workers.

Victoria

A Bill combining the State's two accident compensation Acts, and giving employers a new avenue to seek a review of their workers' comp premium rates, passed through Parliament.

A new Code of Practice on the storage and handling of dangerous goods took effect in October.

A coronial inquiry into the 2007 Kerang disaster - where a prime mover collided with a train at a level crossing, killing 11 train passengers and injuring 23 others - recommended that heavy vehicle operators be required to inspect brake pads weekly. The National Heavy Vehicle Regulator said it would assess the Coroner's 25 recommendations.

The High Court found WorkCover medical panels weren't required to adhere to the same "standard of reasons" as a judge in a trial, or "opine on the correctness of other opinions" in their assessments of injuries for workers' comp disputes.

The Supreme Court ruled that a WorkCover medical panel fell into error when it found a worker's fantasies about murdering colleagues had nothing to do with his work-related adjustment disorder.

A study found Victorian workers who obtained medical certificates for mental health issues were nearly always certified as totally unfit for work, suggesting GPs didn't believe employers could accommodate their condition.

One of the State's most hazardous sectors - public hospitals and health services - had a culture of accepting safety risks, while WorkSafe had done little to tackle the industry's high injury rate, the Auditor-General found.

An employer that relied on an administrative control requiring workers to "tag out" a hydraulic ram before entering the ram area was fined $90,000, after a worker was struck and injured by the machine. Meanwhile, an employer and one of its supervisors were fined a total of $102,000 for OHS breaches, after a worker was permanently injured in a tree-removal incident.

The winners of the 25th annual Victorian WorkSafe Awards were announced.

Western Australia

The Department of Mines and Petroleum (DMP) proposed doubling maximum fines (from $500,000 to $1 million in some cases) for breaches of dangerous goods laws and other legislation to reflect "community expectations".

The DMP also outlined the times of day and night shifts when mine workers were most likely to sustain fatal injuries.

Unions called for the State Government to stop "bludging" and introduce a mirror WHS Act, after a Safe Work Australia comparative report found the State's recent safety improvements were "paltry" compared to other jurisdictions.

A WorkCover discussion paper flagged changing the definition of "worker" - for workers' comp purposes - to explicitly exclude independent contractors, and allowing incapacitated workers to accrue leave entitlements.

A Bill providing presumptive workers' compensation to members or officers of a "permanent fire brigade" who contracted one of 12 types of cancer took effect in November.

Two major mining employers were ordered to pay a total of $363,000 in safety fines and costs, after a maintenance supervisor was fatally struck by a tool that sprung from an overinflated vehicle tyre.

A magistrate found an employer could have prevented the death of a worker by investing $1000 in height-safety gear, and fined it $65,000 for OSH breaches. Meanwhile, three employers in a joint venture that failed to barricade or mark a shaft were fined a total of $75,000, after a worker fell nearly eight metres down the shaft and sustained serious injuries.

The yellow paint on a workplace trip hazard was chipped and faded, but was yellow enough to be "obvious to a reasonable person", a judge found in rejecting a workers' comp indemnity claim.

The winners of the 2013 Western Australian Work Safety Awards were announced.

And make sure you didn't miss...

Some of OHS Alert's most-viewed articles during the October-to-December 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.

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