Q3 2015: What you should know from the last three months

This update outlines all the most important workplace safety and workers' compensation developments from July, August and September, including one of the highest safety fines in Australian history, and legislative changes in every jurisdiction.

Categorised by jurisdiction, 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 also compiled a list of some of our most popular stories from the July-to-September period.

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 for easy reference.

Commonwealth/National

The Australian Law Reform Commission called for comments on whether provisions of the model WHS Act (and other laws), which excluded the right to claim the privilege against self-incrimination and reversed the burden of proof, should be scrapped.

Senator Michaelia Cash replaced Eric Abetz as Employment Minister, with the latter using his final days in the role to add drug and alcohol testing requirements to the Commonwealth Building Code. In other construction news, the Senate rejected the Government's ABCC-restoration Bill.

A Bill facilitating the national introduction of electronic fatigue diaries in the heavy vehicle sector passed Queensland Parliament, while the Road Safety Remuneration Tribunal introduced a draft safety remuneration order containing a controversial cost model.

Safe Work Australia developed a new deemed diseases list (for workers' compensation purposes), and released a consultation paper examining whether to harmonise the country's explosives laws. Meanwhile, the Government launched a national plan to remove the riskiest asbestos-containing materials from the built environment, and ARPANSA's compliance powers were extended under a nuclear safety amendment Bill.

An employer was fined $330,000 over the deaths of two workers on the Stena Clyde offshore drilling unit, while the ADF was fined $220,000 over the death of a soldier in a training exercise, and two major employers became the second and third entities to be charged under the Commonwealth jurisdiction's mirror WHS Act.

The Fair Work Commission banned a manager from entering a building where two employees worked, in its first decision making both findings and orders under anti-bullying laws. In other decisions, the FWC found that "defriending" a worker on Facebook could constitute bullying, and accepted an employer's application for its workplace investigation documents not to be published in an ongoing anti-bullying case.

The FWC found an employer unlawfully sacked a worker without notice after misinterpreting a clause in the Fair Work Regulations relating to illness or injury absences extending beyond three months. The Commission also found a passenger in a work vehicle had the same statutory duty to observe safety signs as the driver, and his employer was right to discipline him for using his mobile phone at the time of a crash.

An FWC full bench upheld an employer's right to test workers' saliva and urine under its new drug testing regime, despite accepting a union's claim that urine tests could capture workers who weren't impaired.

A union and two officials, including one who pretended his name was Steve Irwin, were fined a total of $272,500 for entering and disrupting a construction site without the required PPE or WHS entry permits.

The Federal Court rejected a national employer's claim that the High Court's motel sex decision established a new inducement test that applied to all worker injuries, rather than just injuries sustained during an interval in an overall period of work.

Researchers warned that long working hours contributed to poor mental health and needed to be regulated, but the Productivity Commission's draft workplace relations report found that current restrictions were adequate.

Australian Capital Territory

A defunct employer was fined $1.1 million – the highest fine for a single safety offence in Australian history – after a delivery driver was electrocuted. The employer's project manager – the first person charged as an officer under Australia's harmonised WHS laws – was acquitted in a judgment examining the meaning of due diligence.

The Federal Government directed ACT doctors to use "fit notes" to help sick and injured workers return to work as soon as possible, in the first stage of a plan to implement the new certificates nationally under the Comcare scheme.

The ACT updated five of its WHS Codes of Practice to reflect recent Safe Work Australia amendments, and passed a red-tape reduction Bill that made technical changes to nearly 80 Acts and Regulations, including the WHS and workers' comp Acts.

The Government introduced the Building (Loose-fill Asbestos Eradication) Legislation Amendment Bill 2015 to facilitate the demolition and resale of hazardous "Mr Fluffy" properties.

New South Wales

The State Government introduced two workers' comp Bills to provide safe employers with premium discounts, restore a number of worker benefits that were scrapped in 2012, speed up the dust diseases claims process, and replace WorkCover with three separate agencies. The Bills quickly passed Parliament with amendments, and one of the changes – scrapping WorkCover – commenced on 1 September.

Seven of NSW's mirror WHS Codes of Practice were amended to reflect changes that Safe Work Australia made to the model versions of the documents early this year.

Two employers were fined a total of nearly $640,000 for breaching NSW's mirror WHS Act, after workers were killed in separate front-end loader and crane incidents. A Sydney company was fined $150,000 after one of its workers was fatally struck by a truck in a remote location.

Two companies successfully appealed against an order to pay $2.2 million in damages to a worker who slipped on a "higher than normal" step, after the Court of Appeal found there was no evidence on whether the step was slightly or significantly higher than normal.

The High Court found that a Fair Work Ombudsman intervention in favour of an injured worker didn't block the man from suing his former employer for damages under NSW workers' comp laws. Meanwhile, the Court of Appeal found in favour of an employer in a long-running workers' comp dispute involving a worker who was seriously injured at a party at the employer's premises.

The Court of Appeal found an injured worker who claimed lump sum compensation in 2010 was blocked, by 2012 amendments to the workers' comp scheme, from seeking a second lump sum payment. The WCC President found workers couldn't aggregate impairments arising from separate injuries to meet the definition of "seriously injured worker".

The Court of Appeal found that damages awarded to the family of a mesothelioma victim couldn't be reduced by compensation already paid to the widow, while the WCC awarded a deceased worker's estate $480,000 after finding the man's illegal drug use didn't contribute to the incident that killed him.

A worker was awarded more than $170,000 in damages after a court found her employer breached disability discrimination laws in managing her "illness" instead of her disability, and failing to make reasonable adjustments to her role.

A coronial inquiry into a 2012 crane fire and collapse made a number of recommendations on fire control and tower crane maintenance, while a WorkCover-funded $1.3 million study of quad bike stability rejected "active riding" as a reliable rollover-prevention strategy.

Northern Territory

The High Court rejected a major employer's appeal against a Northern Territory worker's mesothelioma award after finding the man sustained material damage to his mesothelial cells well before common law access was removed from the Territory workers' comp Act in 1987.

The Territory's second and final workers' compensation overhaul Bill – introduced under a plan to implement all 58 recommendations of a 2014 review – passed Parliament (and commenced on 1 October).

WorkSafe proposed amending the Territory's mirror WHS Act to reduce union-entry and HSR powers, despite acknowledging there was "little if any" evidence of these powers being abused.

The Supreme Court applied the "eggshell psyche principle" in quashing an earlier decision to deny an injured worker compensation because her perceptions of bullying weren't reasonable.

Queensland

The State Government introduced a Bill restoring common law access to all injured workers, allowing those affected by the 2013 common law changes to seek additional payments, and providing presumptive compensation to firefighters. The plan hit a stumbling block, with a parliamentary committee unable to agree on whether to recommend the passage of the Bill, but it passed with amendments in September.

Members of a parliamentary committee inquiry failed to reach agreement on the viability of major aspects of the Work Health and Safety and Other Legislation Amendment Bill, including provisions that restored HSR and right-of-entry powers.

The State Government promised to introduce domestic violence leave, tackle workplace bullying and adopt all recommendations of an independent review of sexual harassment and bullying among firefighters. It also overhauled its safety and workers' comp agencies for the second time in a year, renaming the overarching body and transferring it to Treasury.

The Heavy Vehicle National Law Amendment Bill 2015 passed Queensland Parliament, allowing the National Heavy Vehicle Regulator to start approving electronic fatigue diaries in participating jurisdictions, and increasing some penalties by more than 200 per cent.

In separate inquiries, the Coroner:

  • found an employer's failure to ensure its safety documents covered all of its operations, and not just its "main game", contributed to a young worker's death;
  • slammed a company director for his poor knowledge of electrical safety requirements, and a safety inspector for failing to shut down a construction site's power source, after a worker was electrocuted;
  • recommended that employers provide better support to employees with health problems, after a worker accidentally overdosed on painkillers and died; and
  • made 15 recommendations relating to nine quad bike deaths, including that Safe Work Australia push for a star safety rating system for the vehicles.

A manager who injured his back in his home bathroom while "hurrying" to answer his work phone was awarded workers' compensation, after a commission found he met the inducement test clarified in the High Court motel sex case. Meanwhile, a worker who was injured while cleaning a work vehicle at home was denied workers' compensation, after a judge found he wasn't induced or encouraged to perform the task on his day off.

A worker who was assaulted at a work Christmas party was denied damages, after the Court of Appeal confirmed that the duty holder couldn't have foreseen that a group of boisterous drinkers would become violent. In another case, the IRC found that a worker who sustained permanent head injuries in a workplace fight wasn't entitled to compensation because he could have avoided the altercation.

South Australia

A worker who claimed he was falsely accused of a safety breach was granted permission, in the Industrial Relations Court, to pursue compensation from three companies under the discriminatory-conduct provisions of the State's mirror WHS Act.

The employer of a worker whose thumb was partially amputated entered the first enforceable undertaking accepted under the South Australian WHS Act.

An employer was fined less than three per cent of the maximum WHS penalty for a finger amputation, after a judge found it sought to improve safety through a "legislative compliance audit" before the incident, and had since taken significant steps to eliminate risks.

A worker's damages for schizophrenia and diabetes arising from a minor work-related hand injury were increased from $18,000 to more than $1.3 million, after he appealed to a full Supreme Court.

A tribunal upheld a worker's stress claim after finding his gross negligence, which exposed a colleague to the risk of death, didn't meet the definition of wilful misconduct under workers' comp laws. Meanwhile, a commission upheld a worker's unfair dismissal claim after finding his employer knew he was struggling with stress and should have given him more than 24 hours to defend allegations of serious misconduct.

A WCT full bench upheld a ruling that an employer acted reasonably in transferring a sick worker to a role that better accommodated her frequent sick leave, while a WCT Deputy President slammed an employer for failing to meet with a psychologically injured worker or help him return him to work.

Workers' comp disputes began transitioning from the Workers Compensation Tribunal to the new Employment Tribunal on 1 July, while ReturnToWork SA reported an improved funding ratio of 114.3 per cent and $370 million in net assets.

The meaning of "construction project" in the State's mirror WHS Regulations was amended to exclude projects costing less than $450,000, while a number of WHS Codes of Practice were amended to reflect recent technical changes to the national model versions of the Codes.

Tasmania

The State Government proposed amending its workers' comp Act to prohibit employer self-insurance, and to scrap or simplify provisions requiring employers to have injury management programs and return-to-work plans for injured workers.

The Government vowed to maintain strong health and safety laws under COAG's ongoing red-tape reduction plan for the national model WHS laws.

The WRCT found a man who was killed in a workplace incident wasn't a "worker" under workers' comp laws because he was "actively conducting" his own business at the time of his death.

The Coroner warned that fatalities were "very likely" when people worked beneath vehicles that weren't properly supported, following two almost identical deaths in the State in less than a year.

Victoria

The State Government announced plans to develop and add a clause for family violence leave to all public sector enterprise agreements, and vowed to improve the mental health of paramedics, after a coronial report found the sector's suicide rate was four times higher than the all-worker average.

The Resources Legislation Amendment Bill 2015 received assent, implementing a recommendation from the Hazelwood Coal Mine fire inquiry that work plans for mines be risk-based and address fire prevention, mitigation and suppression.

The life of Victoria's Dangerous Goods (HCDG) Regulations 2005 was extended by 12 months, until August 2016, to give WorkSafe time to assess a proposed national framework and develop mirror regulations.

An inquiry into allegations of bullying against State Small Business Minister Adem Somyurek, who resigned in July, examined the merits of referring the matter to police for prosecution under "Brodie's law", or to WorkSafe for investigation under the OHS Act.

The Court of Appeal slammed an employer for its "cavalier disregard" for safety and its "disdainful" response to an improvement notice, in rejecting its appeal against a $375,000 fine. In another case, the same Court of Appeal bench found an employer should have been fined more than $250,000 over a fatality, but declined to intervene and increase the penalty because of errors in the DPP's case.

A worker whose unwanted pregnancy went undiagnosed after six employment-related medical examinations was denied damages for injuries resulting from giving birth and raising the child.

A judge found an employer breached manual handling regulations by allowing psychiatric patients to have access to a jug of water that could be used as a weapon and force workers to become involved in a "physical intervention".

A WorkSafe psychiatrist who benefited financially from lying about an injured worker's mental health, to prolong her stay in hospital, successfully appealed against his suspended prison sentence, but was ordered to perform 350 hours of community work instead. Meanwhile, a WorkSafe dentist was placed on a diversion program after fraudulently obtaining nearly $13,000 through a misleading invoice.

WorkSafe appointed a new health and safety executive director, replaced its ousted chairperson, and reported a record-high return-to-work rate of 80.61 per cent.

Western Australia

A consultation RIS found the proposed harmonised WHS Bill for the State resources sector was unlikely to impose significant costs on employers, and included five changes that could improve safety standards. Meanwhile, a ministerial advisory panel raised concerns over the sluggish development of the State's mirror WHS Act for general industry.

The State Government announced that it was banning electrical work on energised installations in response to the Morley Galleria Shopping Centre double fatality and the death of a teenage worker in a roof space.

Western Australia became the seventh jurisdiction to join the national rail safety regime after its mirror Rail Safety National Law (WA) Bill 2014 received assent, and published the world's first Code of Practice on safe autonomous mining. It also established a free drug and alcohol helpline for FIFO workers.

In an important ruling on common law time limits in Western Australia, a full Federal Court found an injured worker was entitled to pursue his $20 million damages claim despite launching the claim before receiving written permission from the Workers Compensation Commission.

An apprentice who was engulfed in flames at a work party successfully sued his employer, with the District Court finding it breached the OSH Act in allowing intoxicated workers to "do what they wanted" and play with flammable liquids at the party.

The Court of Appeal clarified the workers' compensation state-of-connection test in finding that a worker who was injured on Christmas Island should be compensated in NSW, where his employer's head office was located. Meanwhile, a worker who was diagnosed with PTSD after being abused by intoxicated patrons was awarded workers' compensation, despite an arbitrator finding some of her medical claims weren't true.

An employer that failed to prohibit the use of an overhead crane near a scissor lift was fined $180,000, after the machines collided and seriously injured two workers.

WorkSafe issued a traffic-management warning following a spate of workplace injuries and deaths linked to the interaction of vehicles and pedestrians, while the State Mines Minister called for employers to use the findings of recent fatality and injury reviews "to develop more comprehensive hazard profiles".

And make sure you didn't miss...

Some of OHS Alert's most-viewed articles during the third quarter of 2015 included:

Did we miss anything? Send your comments or feedback on this article to the editor Brad Hamilton.

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