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UpdatesDec 17, 2017

The cases that changed us – for the better

Courts and regulators were working hard in 2017 to implement and enforce changes to improve worker safety.

By Michael Selinger

Courts and regulators were working hard in 2017 to implement and enforce changes to improve worker safety.

In this bulletin, we consider how the health and safety law landscape changed in 2017 and what your organisation can expect in 2018.

The prosecutions

Australia’s safety regulators focused on 7 key risk areas when bringing enforcement proceedings this year. In particular:

Plant and machinery

Victoria led the way with prosecutions over unsafe systems of work relating to plant and equipment. Three significant cases involved prosecutions of a bakery, an abattoir and manufacturer of steel products. In each of the cases, the Courts found that there had either been:

Fines ranged from $25,000 to $80,000.

The respective cases were: WorkSafe Victoria v Pinnacle Bakery & Integrated Ingredients Pty Ltd [23 February 2017] WorkSafe Victoria v Wodonga Rendering Pty Ltd [25 October 2017] Worksafe Victoria v Kingspan Environmental Pty Ltd [8 June 2017].

Working from height

Working from height was one of the most litigated risk areas in 2017 – reflecting a new recognition by regulators that this risk area is of significant concern.

Five significant prosecutions involved prosecutions of a scaffolding company, a residential builder, a roofer, an arborist, and (perhaps ironically), a business that installed, maintained and inspected working at height fall arrest anchorage systems. The failures identified in these matters included:

Fines ranged from $15,000 to $150,000.

Directors were also fined, including one penalty of $25,000.

The respective cases were: WorkSafe QLD v Skyhook Roof Access Systems Pty Ltd [8 September 2017] Worksafe v Pro Guardrail Pty Ltd [20 April 2017] Worksafe Victoria v Aveo Homes Pty Ltd [20 September 2017] SafeWork NSW v Travis Brown [24 November 2017] SafeWork NSW v Tolputt [1 September 2017].

Excavation and earthworks

A number of prosecutions concerning excavation work were successful during the year – with a building company and a crane company the subject of two of them.

In one case a structure collapsed during demolition, injuring workers, and in the other case a trench that had not been properly supported collapsed on workers, causing them injury. The seriousness of these incidents was reflected in the penalties.

Fines ranged from $90,000 to $120,000.

The respective cases were: SafeWork NSW v Hydro Clean (Griffith) Pty Ltd [22 September 2017] SafeWork NSW v Bustin’ Free Earthworks Pty Ltd [2 February 2017].

Asbestos

There was a lot of activity in the area of asbestos this year with regulators, particularly in the ACT and NSW, focusing on the challenges posed by the use of ‘fluffy’ asbestos-containing material in home insulation.

Significant media attention on the Perth Children’s Hospital, which was found to have ceiling panels containing asbestos, prompted all regulators to be on high alert for similar potential incidents in their own jurisdictions.

The Queensland Department of Transport and Main Roads was prosecuted and fined $175,000 when it allowed its workers to use power drills to repair an old bridge that contained asbestos.

The bridge, which was not recorded as having any asbestos, was being repaired in the absence of any systems of processes to deal with the potential risk of asbestos exposure.

The case was: Worksafe QLD v Queensland Department of Transport and Main Roads [24 July 2017].

Unsafe equipment

In a significant case in Victoria, the regulator successfully appealed a penalty of $40,000 as being manifestly inadequate in relation to an excavator being overloaded and almost killing two people. The penalty was increased to $175,000.

In another Victorian decision, a crane collapsed when moving an empty 40-foot shipping container, narrowly missing a nearby worker.

The respective cases were: DPP v Stadelmann Enterprises [28 July 2017]; WorkSafe Victoria v Stadelmann Enterprises Pty Ltd [24 April 2017] Worksafe Victoria v L. Arthur Pty Ltd [15 August 2017].

Hazardous substances

The dangers of hazardous and flammable substances also was an area of focus for prosecutions this year. In Victoria, a significant prosecution resulting in a penalty of $30,000 came after two workers were rendered unconscious after entering a confined space that had a harmful level of contaminate vapour.

No job safety analysis had been performed although the source of the hazardous fumes were known before the work was performed.

In a NSW case, a penalty of $60,000 and an order to pay $31,000 in costs to the prosecutor was imposed on a company that failed to put in place safe systems of work to deal with decanting all-purpose thinners.

The company ignored the well-known risk of the volatility of the thinners and did not provide any training or information to its workers to control the risk.

The respective cases were: Worksafe Victoria v Industrial Lining Pty Limited [25 August 2017] SafeWork NSW v Auschem (NSW) Pty Ltd [27 November 2017].

Inadequate risk assessments

There was also a strong focus on the importance of effective risk assessments of work processes. Courts imposed fines of between $40,000 and $150,000 in three significant cases for a failure to ensure proper risk assessments were undertaken.

In one NSW case, because the arborist had not properly assessed the risks, simple mechanical devices to help workers avoid injury while working on an obviously fragile tree were not deployed.

In another NSW case, the Court heard that the director of a road works company had modified a vehicle’s water tank to allow it to hold kerosene but had failed to perform a risk assessment to eliminate the risk of an explosion, which ultimately occurred.

And in Victoria, a tree removal company failed to include in its safe work method statement the risk posed by nearby power lines. The power lines were left live and during the works, a tree collapsed on the power line and electrocuted a worker.

The respective cases were: SafeWork NSW v Grant [9 May 2017] SafeWork NSW v CRS NSW Pty Ltd [3 November 2017)] Worksafe Victoria v Redback Tree Services Pty Ltd [3 November 2017].

Making sure they never happen again

In all, there has been an increase number of prosecutions throughout Australia with particular focus on the risks of injury outlined in this bulletin.

Going forward, your business can expect that the regulators will continue to focus on these areas due to the frequency of incidents.

Also, you can expect that the courts will continue to impose significant fines and, in some cases, look at personal liability of directors.

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