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Focus: Safety at Work – April 2009

In this issue: In our quarterly Focus:Safety at Work, we look at the second report on harmonisation of occupational health and safety laws in Australia, the dangers for employers even if an occupational health and safety risk is not located on work premises, risk assessment and the Beaconsfield Gold Mine disaster, the section 28(a) defence in NSW, and the high penalties attracted by a failure to manage well-known risks to safety at work.

Update on harmonisation of OHS law

In brief: The second report on harmonisation of occupational health and safety laws in Australia has been tabled at the Federal Workplace Relations Minister's Council. The second1 and the first report2 together total over 600 pages and contain 220 recommendations. Senior Associate Ric Morgan reports.

How does it affect you?

  • As an employer, an owner or controller of premises where people work, or a director or person involved in the management of a corporation, the following recommendations will be relevant to you:
    • Primary occupational health and safety (OHS) duties would be imposed on persons conducting a business or undertaking, rather than on the employer.
    • Directors and officers would have a positive duty to ensure that their company complies with OHS law.
    • The NSW model of a reversed onus of proof would not be adopted – prosecutors must prove any breach.
    • Union rights to prosecute for OHS breaches would not be adopted.
Background

The Federal Parliament commissioned a panel to report to the Workplace Relations Minister's Council on the harmonisation of Australia's multi-jurisdictional OHS law. The panel's two reports together outline the scope of OHS duties, and recommend optimal structure and content for a model harmonised OHS law.

While the analysis is comprehensive and the recommendations extensive, the proposals take an essentially conservative approach to changing OHS Law.

From employer to business or undertaking

In order to capture a diverse range of working arrangements, the reports recommend that primary duties are imposed on persons conducting a business or undertaking, rather than on employers. The duties will be owed to workers (rather than employees) and to the general public.

This is a sensible shift that recognises the changes that have taken place in the organisation of work. It is not, however, a radical departure from the current arrangements in many states.

Directors' and officers' duties

The reports have recommended that the responsibilities associated with directors and officers be modified extensively. The recommendations leave behind both the deemed liability approach of the Occupational Health and Safety Act 2000 (NSW) (the NSW Act) and the attribution of liability to officers under the Occupational Health and Safety Act 2004 (Vic).

In their place it is recommended that a positive duty is imposed on directors to exercise due diligence to ensure that their company complies with OHS law.

The key elements of due diligence mean that directors and officers must ensure that their company has, and uses, resources to identify and eliminate or control hazards or risks, and that they:

  • are up to date with OHS law and compliance requirements;
  • understand the operations of the company and the risks associated with those operations;
  • verify that the risks and hazards are controlled; and
  • receive information on hazards, risks and incidents, and respond to it in a timely way.
Unions, OHS and consultation

While the right of unions to bring prosecutions will not continue if the recommendations are adopted, the authorised OHS representatives of unions will have a right of entry to workplaces. This would be in addition to the union's rights of entry under the new Fair Work Act 2009 (Cth).

The requirements for consultation in the workplace are likely to be increased – there will be a positive duty to consult. Notably, the recommendations require the compulsory use of an OHS committee in any workplace with more 20 workers. This reduces an employer's ability to use alternative consultation mechanisms that do not involve a committee.

The right to prosecute and the onus of proof

The NSW model of allowing unions to bring prosecutions for breaches of OHS law has been rejected. The alternative model from Victoria has been recommended. This, while allowing only the state to prosecute, provides a mechanism for interested parties to challenge any decision not to prosecute.

In a further move away from the current NSW model, the recommendations mean that the prosecutor must prove the offence beyond reasonable doubt. No longer will defendants be required to prove that they had no control or used all due diligence to prevent the offence. This recommendation has been portrayed as a watering down of safety obligations by the union movement.

Where to from here?

On the whole the panel's reports have been received positively. We understand that work on the next stage – drafting of model laws – has commenced. Nonetheless, harmonisation has a difficult road ahead. Implementation in each state and territory requires each jurisdiction's consent and so presents significant challenges.

There has already been vocal opposition from unions in NSW. Even with model laws implemented, true harmonisation faces further obstacles in the area of enforcement policy and in regulation. This is most problematic in the regulation of specific risk areas, which, if the recommendations are followed, will be a matter for each jurisdiction to implement independently.

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Employer liable for off-site risk

In brief: Employers can be in breach of occupational health and safety legislation even if the risk is not located on work property.3 Graduate Suzie Fraser reports.

How does it affect you?

  • Employers should consider the scope of an employee's work and whether it exposes them to risks outside work premises.
  • To avoid liability, risk assessment must be undertaken and strategies and procedures must be implemented to minimise or eliminate the risks identified.
Background

ISS Property Pty Ltd (ISS) employed Ms Godic as a cleaner in an Adelaide office. Her duties included collecting rubbish and taking it to a rubbish compactor located in the basement of the office building, ie outside the office premises. The compactor was not owned by ISS but had been used by it for many years. On 7 April 2006, Ms Godic was operating the compactor when her right hand became trapped between the edge of the compactor and the retracting packing arm. Unable to reach the emergency stop button, Ms Godic was stuck for 10 minutes and sustained a crush injury to her fingers requiring surgery.

Ms Godic's usual duties did not involve operating the compactor; she was relieving another cleaner who had gone on leave. She had been shown the requirements of the job – including how to operate the compactor – six months earlier.

ISS was charged with breaching section 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA) (the SA Act).

The decision

ISS pleaded guilty to one count of breaching s19(1) of the SA Act and was fined $12,251. The Magistrates Court found that ISS should have, but did not:

  • conduct hazard identification and risk assessment with respect to the use of the compactor;
  • develop and implement a safe operating procedure for the use of the compactor; and
  • adequately instruct Ms Godic in the safe operating procedure of the compactor.

This obligation arose despite the fact that the compactor was not owned by ISS or on its property.

The Magistrates Court also noted that ISS had changed its operating processes after the incident so that the disposal of rubbish using the compactor was no longer necessary. This eliminated the risk of a similar incident taking place.

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Beaconsfield – the importance of risk assessment

In brief: The importance of a comprehensive and systematic risk assessment of workplace hazards underscores the recent findings of the Tasmanian Coroner relating to the Beaconsfield Gold Mine disaster, which resulted in the underground death of Mr Larry Knight, and the entrapment of Mr Todd Russell and Mr Brant Webb. Lawyer Gill Barker reports.

How does it affect you?

  • Employers must ensure that they develop and implement a comprehensive, rigorous and systematic risk assessment strategy for their workplace. This applies to all industries, not only the mining sector.
  • Risk assessments are living documents that must be regularly updated to reflect new information about the workplace.
  • Expert advice relating to a company's risk assessment strategy should be properly documented and analysed to ensure that it is properly understood, tested and implemented.
Findings

The Coroner found that:

  • the 25 April 2006 rock falls were induced by the activities at the mine and were not a natural phenomenon;
  • having regard to a serious rock fall in October 2005, the company knew that:
    • seismic activity was being generated by its mining activities, particularly at lower levels, such as that at which the three employees were working at the time of the incident; and
    • the rock mass comprising the mine was fragmented.

Following the October 2005 rock fall, the company closed part of the mine for the purpose of developing and implementing a risk assessment strategy. Normal mining operations resumed in January 2006 once the mining method was modified to reflect industry best practice and the ground support system had been upgraded.

The Coroner was satisfied that the company could not have reasonably predicted that a seismic event of a particular magnitude would occur on 25 April 2006 or reasonably predicted the source of the event. However, the company failed to provide suitable and sufficient ground support at the mine to protect against the occurrence of any seismic event on any day in circumstances where the company knew that the rock mass that was being mined was fragmented.

Rather, the Coroner found that:

  • the October 2005 rock falls put the company on notice that it could expect further mine-induced seismic activity in the future and that such activity represented a real risk to the safety of workers at the mine;
  • such notice obliged the company to implement a systematic and rigorous risk assessment process before mining resumed in January 2006;
  • while the company sought advice about a risk assessment strategy following the October 2005 rock falls, that advice was not properly analysed or documented; and
  • the company was advised by an expert that its risk assessment strategy was deficient, at which time it should have reassessed the strategy.

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'Reasonably practicable' defence considered

In brief: A recent decision of the Full Bench of the NSW Industrial Court4 looked at the s28(a) defence under the NSW Act – that it was not reasonably practicable for the employer to prevent the injury in question. Graduate Matt Baillie reports.

How does it affect you?

  • The employer's defence that it is not reasonably practicable to safeguard against unforeseeable risks only applies if the risk itself is unforeseeable, rather than the precise way the accident occurred.
  • Employers must ensure that risk management systems are effectively fail-safe to avoid prosecution for OH & S breaches.
Background

GRD Minproc (GRD) was the main contractor for a construction site. In one room on the site, there were several large holes in the floor, leading to an underground room below it. On the recommendation of the Site Safety Committee, these holes were covered with metal mesh with a gauge of 100mm x 100mm, and secured by steel bars and ties. The covers were closely inspected on installation, and the company claimed that it carried out visual inspections of the covers at the beginning of each work day.

One of the roofing subcontractor's employees, Mr Sadik, was carrying a large sheet of roofing when he placed his foot on a mesh cover and it came loose and slipped. Mr Sadik fell more than 4 metres down through the floor and broke his arm. On later inspection, it turned out that many of the covers were not properly secured, and the ties appeared to have been cut. Subsequently, GRD welded the covers down so they did not slip and could not be left open.

At first instance, the judge found that GRD had breached its duties under the Act because it had failed to take a number of measures that would have prevented the risk of accident, including properly securing the covers and warning people of the risks of the covers slipping. GRD claimed the defence under s28(a) that because of all the precautions it took, it was not reasonably practicable for it to have prevented the accident from happening. The judge rejected this argument.

The appeal

The Full Bench of the NSW Industrial Court upheld the $90,000 fine imposed at first instance.

While it was unclear how the mesh cover came loose (GRD alleged that this had been deliberately cut, although the Industrial Court found this unlikely), the Full Bench held it was not necessary to foresee the precise way in which the accident occurred. What was important was that there was an identifiable risk of someone falling through the holes and that GRD failed to take adequate measures to eliminate this risk. GRD could not rely on the imperfect measures that it did take to prevent the risk as a basis for a defence that it did everything reasonably practicable if the risk itself was knowable and foreseeable.

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Well-known risk not addressed

In brief: Employers and controllers of work premises should ensure well-known risks to occupational heath and safety are managed or face severe penalties. Lawyer Andrew Stirling reports on a recent NSW occupational health and safety case.5

How does it affect you?

  • Tough penalties will be imposed where a breach involves a failure to develop a system to minimise risks that are well known in a particular industry or workplace.
  • Codes of practice may assist in identifying steps to eliminate or reduce risks.
Background

Bilfinger Berger Services – Roads Pty Limited (Bilfinger) was contracted by Bitupave Limited (trading as Boral Asphalt) to provide traffic management services at a site at which Boral Asphalt was performing road repairs and maintenance. A crew was assigned to perform duties under this engagement, including Mr Christian, who worked as a traffic controller.

Two trucks were used to transport traffic signs and other equipment required to perform the traffic management services. Driver visibility out of the back of the trucks was severely limited because of the signs and equipment they carried.

On 13 October 2005, a member of the traffic management crew reversed one of the trucks through the site. After reversing the truck for about 50 metres, the employee was conscious of the truck lifting. Someone yelled at him to stop the truck, which he did. Mr Christian died as a result of being hit by the truck.

Bilfinger and Boral Asphalt were both prosecuted for breaching s10 of the NSW Act, which requires a company in control of a workplace to ensure it is safe for both employees and non-employees. Both parties pleaded guilty.

The decision

The Commission was required to determine the appropriate penalty for Bilfinger and Boral Asphalt, and took the following factors into account:

  • Reversing a truck with limited rear vision in a busy construction site carries an obvious risk to safety at any work site. Since the potential consequences are very serious (as demonstrated by the fatality), this risk should have been identified by a risk assessment and then eliminated by introducing an appropriate system.
  • WorkCover's Moving Plant on Construction Sites Code of Practice dealt with the potential risk of reversing vehicles on a construction site. The Code of Practice was well known to both defendants. The Code of Practice gave specific recommendations about the means by which that risk could be eliminated.
  • Although both Bilfinger and Boral Asphalt had safety management plans, neither of these plans included a system for reversing vehicles. In fact, Bilfinger's traffic control plan did not cover the possible interaction of mobile plant and pedestrians at all.
  • No risk assessment had been conducted with regard to moving vehicles with restricted rear vision, so no safety measures had been implemented to limit the risks associated with this.

The Commission also had regard to the 'comprehensive and effective' extensive steps taken by both parties to improve the safety of their worksites post-incident. The improvements included:

  • improving safety management systems, including by implementing a procedure for reversing vehicles;
  • equipping vehicles with reversing cameras; and
  • re-inducting employees in the new systems.

Bilfinger was fined $123,000. Boral Asphalt was fined $214,500. Convictions were recorded for both defendants.

Footnotes
  1. National Review into Model Occupational Health and Safety Laws, Second Report to Workplace Relations Minister's Council, 30 January 2009. 
  2. National Review into Model Occupational Health and Safety Laws, First Report to the Workplace Relations Minister's Council, 31 October 2008. 
  3. Paparella v ISS Property Services Pty Ltd [2009] SAIRC 6.
  4. GRP Minproc Ltd v Impector and Richard Mulder [2009] NSW IRComm 24.
  5. Inspector Robert Mayell v Bilfinger Berger Services – Roads Pty Ltd (formerly known as Abi Road Maintenance Pty Limited) [2009] NSWIRComm 10.

Published 6 April 2009

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