An active year for workplace safety

By Michael Selinger on December 22nd, 2016
  1. Work Health & Safety Act
  2. Due Diligence

Safety Firewall Protection Security Insurance Concept

As the year draws to a close, there is an opportunity to reflect on safety issues that have caught our attention in 2016.

The move towards a fully harmonised safety regime across the country still seems a long way off. While Western Australia tabled a Bill in 2015 that contained the core provisions of the model WHS Act and sought public consultation this year, the process has since stalled.

It does not seem that there will be any significant changes to that legislation next year. Victoria, also remains steadfast in maintaining its current laws despite there being some talk of a move the harmonised model.

There has been a trend towards harmonisation through in the logistics industry. This results from the Heavy Vehicle National Law (HVNL) aligning itself with health and safety. These changes will mean executive officers are subject to a new primary duty of due diligence (rather than reasonable steps) to ensure that corporations comply with their Chain of Responsibility (CoR) duties.

The extension of the new executive officer primary due diligence obligation to other safety provisions under the HVNL (beyond the core CoR mass, dimension, load restraint, speed and fatigue management provisions) is currently being considered. We also witnessed the demise of the Road Safety Remuneration Tribunal and its safety-related orders.

There has been an increase in the number of prosecutions commenced in 2016 compared to 2015 as well as an increase in the level of fines. There have also been charges brought under the WHS Act for the first time, including a charge relating to a breach of section 46 of the WHS Act, being the obligation to consult, co-operate and co-ordinate with other PCBUs.

In that case, an organisation that employed and placed apprentices had not consulted with the host employer about the safety systems on site. We also saw the NSW Mining Safety regulator prosecuting a business and two individuals for Category 1 offences, being the most serious with the potential of custodial sentences for the individuals.

The NSW Court of Criminal Appeal also stepped in to emphasise the importance of ensuring the safety of young workers, in a decision where the Court unanimously overturned the trial judge’s decision to dismiss the charge against a company who caused injury to a work experience student, instead substituting it with a penalty of $240,000.

Impeccable safety record

In another decision, a different court considered that, while it had to impose an appropriate penalty for the objective seriousness of the offence, the penalty would be “significantly mitigated” by factors such as the business’ commitment to work health & safety. The Court found that the “impeccable safety record” of a business was a “good example to other PCBU’s performing high risk construction work” and took into account “compelling” subjective factors presented by the business to the Court in ultimately reducing the severity of the penalty it imposed.

In terms of safety issues, unsafe plant continued to feature highly, most recently with the tragedy at Dreamworld. Falls from heights, workplace bullying and transport-related incidents also were prominent.

Organisations also continued to face significant challenges in managing ill and injured employees in the workplace, including workers with mental health conditions. The Globally Harmonised System (GHS) of classification and labelling of chemicals is being introduced and organisations are also on high alert for the unwanted introduction of asbestos-containing products into their workplaces, such as what happened at the Children’s Hospital in Perth.

And finally, the Australian Building and Construction Commission (ABCC) is on its way back, which will have implications for the construction industry, including the use of right of entry for safety reasons.

In all, 2016 has been a very active year for safety, including a number of key legislative changes, increasing trends in prosecutions and fines as well as a greater focus for most organisations on identifying and removing key risks.

Thank you for taking the time to read the Health & Safety Bulletins this year and I trust that you have a safe and enjoyable break over the holiday period. Looking forward to keeping you up to date in 2017.

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