Australia: Health and Safety Frequency – June 2017

Welcome to Health and Safety Frequency, where we touch on legal developments in Australian health and safety from the last three months and give you some more personal insights into what we and our clients are up to in the health and safety space.

In this issue we cover:

1. Top Trends in the last quarter

2. Safety decisions

3. Legislative and other updates

4. A spotlight on psychological health developments

5. Three Questions With Alistair Milne

1. Top Trends in the last quarter

Record penalties
The series of “record” penalties has continued, with: 

• the New South Wales District Court imposing a record penalty under the Work Health and Safety Act 2011 (NSW) of $1 million in Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92.
• the Queensland Department of Natural Resources and Mines securing the highest penalty ever imposed (and a conviction recorded) for an offence against the Coal Mining Safety and Health Act 1999 (Qld).

Officer accountability
The moves to make officers of organisations responsible for ensuring health and safety also continue. The Transport, Infrastructure and Planning Ministers from the Commonwealth, States and Territories, New Zealand and the Australian Local Government Association have endorsed changes to the Heavy Vehicle National Law that give effect to the policy on executive officer liability, specifically requiring that executive officers take positive steps to ensure their organisation meets its key safety obligations.

2. Safety decisions

Requirement for an entry permit upheld
The requirement of a union official to hold a federal right of entry permit under the Fair Work Act when entering a site as an assistant to a health and safety representative under the Victorian OHS Act has been confirmed by the Full Court of the Federal Court in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89. The harmonised jurisdictions have similar provisions to the Victorian OHS Act, so the decision is likely to have broader implications beyond Victoria. However, the fight might not be over with the CFMEU saying it is considering whether it will appeal the Full Court’s decision to the High Court and WorkSafe Victoria saying it is also considering its options in relation to the decision. More details here.

Strict compliance with the letter of the law for ROE notices
A decision which points to strict compliance with right of entry notice requirements was handed down with a finding that union officials not including their middle names on the notice made it invalid. Ramsay & Anor v Menso & Anor [2017] FCCA 1416.

Obstruction of a permit holder
In a further right of entry case, a construction site manager has been fined $1,000 (from a maximum penalty of $10,800) for obstructing an entry permit holder. The penalty was imposed notwithstanding the Notice of Entry was not particularised and “obvious difficulties with” the CFMEU’s evidence on the reasons for having a reasonable suspicion there was a contravention of the WHS Act (as is required to have a valid right of entry). Construction, Forestry, Mining and Energy Union v Class 1 Form Pty Ltd & Ors [2017] FCCA 696.

Discrimination prohibition
The prohibition against discrimination in the Victorian OHS Act (which are similar to the provisions in the model WHS legislation) have been interpreted by the Victorian Supreme Court with a finding that where an employer is charged with discriminating against employees for raising a health and safety concern, there is no onus upon the prosecutor to prove that issues were raised by the employee on reasonable grounds. Rather, all that must be proven is that the employee raised the issue or concern about health and safety. DPP v Acme Storage Pty Ltd (a Pseudonym) [2017] VSCA 90 – more details here.

Meaning of duty to other persons clarified
The full South Australian Industrial Court has held the proper meaning of s19(2) of the WHS Act is to protect members of the public from work performed as opposed to being limited to the exact time when work was performed. Boland v Safe is Safe Pty Ltd & Munro [2017] SAIRC 17. The case arose from the certification of an amusement device with the certifier unsuccessfully arguing that the health and safety duty imposed by s 19(2) of the WHS Act only exists whilst work is being carried out by the relevant business or undertaking and that it does not extend to the consequences or product of work, after the work has been carried out or completed.

3. Legislative and other updates

Update to Victorian regulations
Victoria has amended its OHS Regulations and its Equipment Public Safety Regulations. The majority of the amendments commenced on 18 June 2017. These changes are in addition to those proposed by the WorkSafe Legislation Amendment Bill 2017.

Non-conforming building products
Queensland has proposed the introduction of “chain of responsibility” legislation to impose obligations through the supply chain in relation to non-conforming building products. The legislation responds to recent high profile cases where (among other things) asbestos and non-conforming building cladding has entered the Australian market: Building and Construction Legislation (Non-conforming Building Products—Chain of Responsibility and Other Matters) Amendment Bill 2017.

Black lung
The Inquiry into the re-identification of Coal Workers' Pneumoconiosis in Queensland has handed down its final report – “Black Lung, White Lies”. The Worker’s Compensation and Rehabilitation (Coal Workers’ Pneumoconiosis) and Other Legislation Amendment Bill 2017 legislatively implements a number of the recommendations emerging from the Inquiry and aims to strengthen existing protections for workers diagnosed with CWP through the workers compensation system. Notably, the Bill introduces a new medical examination process for former coal workers who suspect they have a coal mine dust disease and an additional lump sum compensation entitlement for workers with pneumoconiosis.

Industrial manslaughter offences
Queensland announced that it will seek to introduce the new offence of “negligence causing death” following an interim recommendation from the Best Practice Review of Workplace Health and Safety. A similar proposal has been made in Western Australia with the introduction of a Private Members Bill to amend the Criminal Code to introduce the offence of industrial manslaughter. The proposed new laws in Queensland include a proposal to target the building industry in particular. What is suggested is that Qld Building and Construction Commission licensees will have a positive duty to notify the QBCC in the event not only of a death or serious injury on a building site, but ‘about activity on site that could be a work health and safety issue’. The threat is that the QBCC licence can be suspended or cancelled.

National safety laws
A reminder that changes to the National Rail Safety Laws commence on 1 July 2017 – with the most significant reform being the commencement of additional fatigue management requirements in Queensland.

4. A spotlight on psychological health developments

RUOK and icare launched a world first study into psychological safety in the workplace. Key findings of the report include:

• Frontline lower income-earning staff feel less safe and permitted to take risks at work than higher income-earning employees.
• 38 per cent of men strongly agreed or agreed that it was safe to take risks at work, which was significantly higher than the 29 per cent of women who strongly agreed or agreed.
• Younger workers found it significantly more difficult to ask for help at work than their older colleagues.
• Respondents aged 25-34 were the most concerned about mistakes being held against them, and respondents aged 45 and over were significantly less concerned.

The UN Human Rights Council released a Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The report reaches a number of conclusions including that “the urgent need for a shift in approach [to mental health] should prioritize policy innovation at the population level, targeting social determinants and abandon the predominant medical model that seeks to cure individuals by targeting ‘disorders’”.

The results of a three year study conducted by the Mental Health Commission of Canada (MHCC) on the implementation of the National Standard of Canada for Psychological Health and Safety in the Workplace (Standard) have been published. The findings identify key practices, barriers and facilitators to implementation for improving workplace psychological health. The top three actions undertaken by the organisations studied were:

• implementing respectful workplace policies and educating employees;
• providing employee assistance programs and other services addressing mental health; and
• enhancing mental health knowledge and awareness among employees.

5. Three questions with Alastair Milne

Each quarter we interview someone within Herbert Smith Freehills, one of our clients, the regulator or an expert about their views on health and safety. This month we ask Alastair Milne, most recently Regional Operational Excellence Manager - Asia Pacific & Caspian at Nalco Champion, an Ecolab company about his health and safety journey.

Q1 Why health and safety?
There are many answers to this question. The key ones are:

• The noble purpose of helping people protect themselves and others.
• The value of doing the right thing.
• The challenge of listening to your conscience, being compelled to speak up and take action.

The mission is universal, nobody wants to get hurt, our colleagues, families, friends, neighbours, society in general (Homer Simpson, Inspector Clouseau, Wiley Coyote aside). This gives opportunity everywhere, every day to show we care. I hear my children in the street with their friends, calling out for cars because they care. I've had (and been on the receiving end) of tricky driving conversations with my wife, because we both care.

Safety is universal. As safety professionals, we have candid conversations with leaders, because we care.

The potential to influence in a positive manner by changing our focus from what we can't to what we can do. There's more in our sphere of control than we realise, and switching from a lagging to leading indicators focus is a great life lesson.

Q2 What do you see as the biggest current challenge to health and safety?
Turning lessons shared into lessons truly learned. Groupthink can be dangerous when reviewing lessons, resulting in a disproportionate focus on safety trivia, distracting us from the key risks and critical controls. Safety issues and actions which are trivial, general and unspecific are easy for us as individuals to hide from and dodge commitment. There's a great opportunity to challenge us all to demonstrate a personal commitment and follow through.

Q3 If you could change one thing about the way health and safety is perceived or practiced, what would it be?
When its perceived health and safety professionals are policeman it only harms our reputation and does not deliver sustainable culture change. When we partner (and hence collaborate with) the business and those at risk, we are much more likely to produce good safety outcomes and sustainable culture change.

To view a full list of Workplace Health and Safety Latest Thinking click here.

Please contact our Safety Team in Australia if you require further information: