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Two workers fined $75K each over duck farm death

July 2019

WorkSafe Victoria has fined a business trustee and a sole trader $75,000 each for health and safety breaches that resulted in the death of another worker at a rural duck farm. The sole trader had engaged the worker to help him install roof mounted winches to lift feeder and drinker lines in a duck breeding shed. They used a front-end loader for the task. The worker was standing inside in the loader bucket with tools and equipment preparing the motor for the fitting when the sole trader leant into the cabin and raised the bucket about four metres so the worker could reach the roof. The worker fell forward out of the bucket and hit the ground. Before assisting the worker, the sole trader entered the cabin of the front-end loader, reversed it and lowered the bucket to the ground. Only afterwards did he call out to another worker outside the shed, who then called for an ambulance. The sole trader then called the business trustee, who was interstate at the time, before calling 000 himself. The worker died at the scene. An autopsy revealed his death was caused by head injuries. He had also sustained multiple fractures to his skull and facial bones, neck, back, ribs and left arm. Both the business trustee and the sole trader pleaded guilty to breaching section 21 of Victoria’s Occupational Health and Safety Act 2004 for failing to provide, as reasonably practicable, a working environment that is safe and without risks to health. WorkSafe investigators found that neither the business nor the sole trader had a health and safety policy or documented procedures to carry out the installation task safely. No operation is too small to ignore health and safety Make sure you are up to scratch on all of your obligations by reading the Health & Safety Handbook. You can try the Handbook for free if you aren’t already a subscriber. Find out more.


Your questions answered: What manual handling training do disability support workers need?

July 2019

Q Please could you tell me the basic requirements needed for disability support workers to commence working with us in in regards to manual handling training with customers? Our organisation is based in Queensland. A From a work health and safety perspective, under the applicable harmonised work, health and safety legislation, a person conducting a business or undertaking has a general duty to ensure, so far as reasonably practicable, the health and safety of workers and other persons in the workplace. This includes ensuring, so far as reasonably practicable: the provision and maintenance of a work environment without risks to health and safety; and the provision and maintenance of safe plant and structures; and the provision and maintenance of safe systems of work; and the safe use, handling and storage of plant, structures and substances; and the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. Codes of practice provide practical guidance on how a duty holder may comply with their health and safety duties.  We also note that from 1 July 2018 persons conducting a business or undertaking are required to comply with an approved code of practice under the Work Health and Safety Act 2011. Alternatively duty holders can follow another method, such as a technical or an industry standard, to manage hazards and risks, as long as it provides an equivalent or higher standard of work health and safety to the standard required in the code. The Hazardous Manual Tasks Code of Practice 2011 is an approved code of practice which deals with the risks of manual tasks, such as manual handling.  A copy of the code is accessible here.  This may assist you with your duties in respect of manual handling for workers. There may also be separate obligations for your business as a disability service provider, in particular under the National Disability Insurance Scheme. It is beyond the scope of the Helpdesk service to provide advice regarding your obligations under the NDIS. However, we note there is an NDIS code of practice for service providers, a copy of which is accessible here. Get comprehensive answers to your health and safety questions From the lawyers at the Health & Safety Helpdesk. Learn more.


Claustrophobic staff can be told to work in confined spaces: FWC

July 2019

A worker who developed severe claustrophobia after becoming trapped in an elevator can be required to continue working in confined spaces, the Fair Work Commission (FWC) has ruled. In 2002, a trade assistant for KONE Elevators Pty Ltd became trapped in an elevator lift car when the power ceased. There was no possible emergency exit. The worker said that he developed severe claustrophobia over several years and in 2006, the employer transferred him from the elevator repair team to the escalator repair team. However, last year, KONE decided to re-allocate the worker to the elevator team. The worker opposed this and was stood down by the employer until he submitted medical evidence of his claustrophobia. The worker later provided a letter from his doctor stating:
“[The worker] is completely able to perform standard critical functional job demands such as:- Frequent work in confined spaces ---- as long as those confined spaces relate to escalators and travelators It is my belief that [the worker] can perform all work and duties associated with escalators and travelators and this includes working in confined spaces that relate to escalators and travelators only. It is my belief that [the worker] can perform all work and duties associated with lifts, except any work that involves being in confined and enclosed lift environments, that could be detrimental to his health and any of his co-workers who happened to be with him at the time.”
KONE then gave him a return to work (RTW) plan. The worker rejected this, as it described his medical condition as ‘non-work related’ and stated that his return to work was on ‘restricted duties’, which he believed was inappropriate as he had been performing escalator work, not elevator work, for about 13 years. He applied to the FWC to deal with the dispute. In the hearing, Commissioner Jennifer Hunt found that performing elevator work was an inherent requirement of the worker’s job, but that the employer “with some modification of its crews” could “reasonably accommodate” his condition. “In determining this dispute, I agree that KONE can state that [the worker] is required to perform all of the work it reasonably requires of him, but in consideration of his very lengthy service, and 13 years without servicing elevators, it is open to KONE to, at least at six-monthly intervals, determine whether it might be able to reasonably accommodate [the worker’s] condition whilst affording him restricted duties,” she said. “It would, in my view, form part of the Commission’s consideration in an unfair dismissal application if [the worker] was dismissed.” How would you approach a similar issue in your workplace? If a worker can no longer perform the inherent requirements of their job due to a medical condition, you must act very carefully. Any wrong move could leave you liable to a discrimination claim. You can learn how to avoid this by reading chapter D5 Discrimination in the Health & Safety Handbook. Find out more.


Your questions answered: What are the health and safety requirements for a small business?

July 2019

Q Could you please advise what the requirements for a small business are in relation to the need for health & safety policies?  Which policies should we have in place for our staff? A Generally, most workplaces should at least have the following policies in place: workplace health and safety policy; drug and alcohol policy; workplace bullying, discrimination and harassment policies; and smoke-free workplace policy. In addition, workplaces should have the following health and safety procedures: safety planning and objectives procedures; communication and consultation procedure; hazards identification procedure; risk assessment procedure; risk control procedures; performance monitoring and review procedures; and safety management procedure. Depending on the nature of your business, it may also be important to include additional policies or procedures, such as those relating to fatigue management, machinery operation and incident investigation. We would recommend that you review Chapter H4 of the Health & Safety Handbook for more information on the types of policies and procedures that may be applicable to your particular business.


Random audit leads to worker’s high blood pressure injury

July 2019

A worker who suffered a high blood pressure injury after being audited twice in one day has successfully claimed for workers’ compensation. The South Australian Employment Tribunal found the employer, Moran Earthworks, liable for the worker’s aortic dissection injury when another group of auditors arrived to conduct a second unexpected audit just 15 minutes after the first one concluded. The worker claimed he was concerned that something was identified at the first audit which he was not told about, but was being followed up in the second audit. During the second inspection, the worker said he was bombarded with questions and felt intimidated, which put him under a lot of stress. Fifteen minutes after the inspectors left, the worker’s heart rate increased and he felt hot and sweated profusely. Five minutes later he developed what he thought was a severe headache. His vision became blurred and he felt dizzy. Another worker then came over to see if he was ok. His mouth started drooping and he was unable to speak clearly. An ambulance was called and he attended hospital where he was diagnosed with a dissecting aortic aneurysm which required open-heart surgery. When the worker made a workers’ compensation claim, the employer denied liability, arguing that his employment did not contribute to the injury because of the time which passed between the second audit and his symptoms, as well as the fact that the worker had a pre-existing condition of a severely degenerate aorta which was likely to split. However, in the hearing, Deputy President Magistrate Stuart Cole found that a causative link between the second audit and the injury was probable. “[I]f the second audit elevated his blood pressure leading to the dissection, then that event would satisfy both the test of the injury arising out of employment, and the alternative test of the injury arising in the course of employment and employment contributed to the injury,” Deputy President Magistrate Cole said. “I find that the worker’s response to the second audit elevated his blood pressure, and that within a period of 15 to 20 minutes of that audit he was manifesting the signs and symptoms of aortic dissection, which was the subsequently diagnosed injury.” Deputy President Magistrate Cole found that the worker’s injury arose out of his employment and that he was entitled to compensation under the South Australian Return to Work Act 2014. Do you know the workers’ compensation laws that apply in your state? Find out by reading chapter W1 Workers’ Compensation in the Health & Safety Handbook. It is available on a free, no-obligation trial if you aren’t already a subscriber.


Your questions answered: What are our obligations relating to having a fire alarm system?

July 2019

Q We are a small sales company with offices throughout Australia. Our head office in NSW has both office space and a warehouse. What are our obligations in relation to having a fire alarm system in place? A Under health and safety legislation, employers have an obligation to ensure, as far as reasonably practicable, the health and safety of their employees and not expose them to risks.  Failure to implement appropriate fire alarm systems could result in serious breaches of these health and safety obligations. To ensure that employers are meeting their fire safety obligations, they should: manage fire and explosion risks in their workplace by eliminating or minimising the risks as far as reasonably practicable; introduce, maintain and know how to use appropriate firefighting equipment; develop and maintain an effective emergency plan; develop and maintain effective evacuation procedures; and understand incident notification procedures and how to implement them when required. As part of this, employers should have in place an appropriate fire alarm system to reduce the risk to health and safety of their employees.  For more information on fire safety, please see Chapter F2 of the Health & Safety Handbook. In addition to an employer’s obligation under health and safety law, compliance with the NCC Building Code of Australia requires smoke detection systems to be implemented in all class 5 - 8 buildings. Notably, these classes include office buildings and buildings used for activities such as storage, production or repair. Any such smoke detection systems must comply with Australian Standard 1670 (fire detection, warning, control and intercom systems).  This Australian Standard can be purchased here.


After-hours sexual harassment was work related, Supreme Court Judge finds

July 2019

A process worker at a food packaging company has fought for four years to claim compensation for workplace sexual harassment, and her battle is not over yet. In September 2015, the Simplot Australia employee filed a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for anxiety and depression she suffered caused by sexual harassment, bullying and threats she had endured by two supervisors. Among other things, she alleged that the supervisors had: made repeated requests for her private details; made unwelcome advances, including asking to marry her; touched her inappropriately; followed her when she left work; called her derogatory names and bullied her; threatened to kidnap her; and sexually assaulted her. The worker alleged the sexual assault took place at a train station when one of the supervisors came up behind her and kissed her on the lips. She said “leave me alone”. He said “I like you. I want to give you a kiss”. She then pushed him to get away. Her bag fell to the ground and she picked it up and ran away, getting onto a nearby bus to escape him. However, Simplot rejected her workers’ compensation claim, denying that any of these events had taken place. When the worker appealed, Magistrate Philip Ginnane said he was satisfied that the supervisor had made “unwelcomed advances” at the train station, but was not satisfied that the other incidents had occurred. He found that the worker did have “feelings of sadness and upset”, but she had not suffered a psychiatric injury and was not satisfied that “work conduct was a cause of an injury”. Magistrate Ginnane dismissed the appeal. The worker appealed again, and in the Victorian Supreme Court decision this month, Justice Melinda Richards found that Magistrate Ginnane “did not apply the correct test in finding that the train station incident was not work related”. “Having found one significant incident proved, the Magistrate should have considered whether [the worker] suffered the claimed injury, whether the train station incident was a cause of that injury and, if so, whether the injury arose out of her employment,” Justice Richards said. “Instead of that analysis, there was only the bare finding that the train station incident was not work-related. The statutory test, which requires a causal connection between injury and employment, was not applied. “Had the correct test been applied, it was open to the Magistrate to find that any injury resulting from the train station incident arose out of [the worker’s] employment, despite having occurred outside the workplace and after work hours. “The evidence was that [the worker] knew [the supervisor] only as her workplace supervisor; there was no private element to their relationship. “The incident took place at the Ascot Vale train station, close to the workplace, immediately after the conclusion of a shift, on [the worker’s] way home from work. She telephoned a co-worker immediately after the incident, rather than calling her partner or someone from outside the workplace. “Following the incident, [the worker] continued to work at Simplot in [the supervisor’s] presence and under his supervision. These are all indications that the train station incident had its origin in the employment.” Justice Richards also found that Magistrate Ginnane had disregarded “considerable evidence” that the worker was suffering from anxiety and depression following the incident. “A magistrate is not bound to dismiss a medical opinion merely because the history of events that informed the opinion is not proved in full at the hearing,” she said. “Where, as here, medical reports have been tendered without their authors being cross-examined, those reports form part of the evidence that must be evaluated, in particular in determining questions of injury and cause. “All of the medical evidence must be considered in order to determine ‘what was the burden of all the evidence in the case?’” Justice Richards allowed the appeal and remitted the case for rehearing by a different magistrate. Are you equipped to manage sexual harassment in your workplace? Find out by reading chapter H2 Harassment in the Health & Safety Handbook. If you’re not a subscriber, you can get access to this information on a free, no-obligation trial.


Your questions answered: What are our obligations regarding disposal of syringes?

July 2019

Q I represent an organisation that works in the public sector. Are there standards, legislation and/or protocols to follow regarding the possibility of needing to provide syringe disposal in our public toilets for our potential clients and clients who may need to dispose of a syringe? A The issue of disposal of syringes is only covered by work health and safety laws in so far as it relates to first aid. See, for example, the First Aid Code of Practice published by Safe Work Australia. You should seek specific advice from your local environmental protection agency, which has jurisdiction on the collection and removal of waste, including needles and syringes. In some cases, certain organisations – for example, public hospitals – have specific obligations imposed on them regarding disposal of syringes. Free, unlimited health and safety law support is always at hand When you subscribe to the Health & Safety Handbook.


SafeWork SA prosecutes bully under harmonised WHS legislation

July 2019

Jeffrey Mark Rowe is the first person in South Australia to be fined and prosecuted for a Category 1 offence under section 31 of the nationally harmonised Work Health and Safety Act 2012 (WHS Act). The 47-year-old supervisor pleaded guilty to reckless conduct by exposing an 18-year-old electrical apprentice to a risk of death or serious injury when he was squirted with lighter fuel and set alight in a lunchtime ‘workplace prank’ on a construction site. Mr Rowe took part in the prank with another supervisor, 28-year-old Luke Daniel Chenoweth. Mr Chenoweth, who faces court next month, has been charged with allegedly squirting a flammable liquid onto the apprentice’s boot, pants and shirt, then using a cigarette lighter to ignite the liquid on the apprentice’s boot and shirt and chasing him around the lunchroom while threatening to light his pants. Mr Rowe was convicted for failing to take steps to stop Mr Chenoweth from engaging in the bullying activity and failing to take steps to extinguish the flames on the apprentice’s shirt. He was also convicted for joining in the bullying by squirting more lighter fuel on the apprentice’s shirt while it was burning. Luckily, the apprentice did not sustain any serious injuries. Mr Rowe was fined $12,000, plus court costs, prosecution costs and a victims of crime levy. The fine was reduced from $20,000 as he provided an early guilty plea. The employer, Tad-Mar Electrical Pty Ltd, also faces prosecution over the incident. SafeWork SA Executive Director Martyn Campbell said that Mr Rowe’s sentence should send a clear message to all businesses that the bullying of any worker will not be tolerated. “The health and safety of young workers is critical. This includes protecting them from psychological harm as well as physical harm,” Mr Campbell said. “The behaviour of this supervisor was atrocious. In his supervisory role, there is an expectation he would immediately put a stop to this type of harmful action and certainly not engage in it himself. “This case reinforces the importance of having a process in place to ensure bullying does not occur in the workplace. This should include the training of workers in how to manage any instances of bullying and reassurances that reporting such behaviour can occur confidentially and without fear of repercussions. “I hope this sentence serves as a warning to all people in leadership positions that SafeWork SA will enforce individual actions where leaders don’t follow their statutory duty of care for workers in their charge". How would you prevent such an incident from occurring in your workplace? If you’re not sure, you need to read the Health & Safety Handbook. Written by the health and safety lawyers at Holding Redlich, the Handbook contains the vital information you need to protect your business from the legal ramifications of incidents like these.


Your questions answered: What are the requirements for tractor-mounted forklifts?

July 2019

Q What are the requirements for tractor-mounted forklifts? Q: We have the following questions about the tractor-mounted forklifts used on our vineyards (they are never used on public roads): 1. Do operators need a forklift license? 2. What standard (if any) do they fall under? A Workers who operate forklifts are considered to be undertaking high-risk work that requires a work licence. This includes tractor-mounted forklifts, whether or not they are used on public roads. You should ensure that you request proof that the worker holds the appropriate licence before engaging them. This licence is issued by the health and safety regulator and replaces former certificates of competency. Please note that a licence is granted for a limited period and must be renewed within that period if the worker wishes to remain licensed. Don’t leave workplace safety questions left unanswered Talk the lawyers at the Health & Safety Helpdesk first. Find out more.


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