Workplace Health & Safety Quarterly

In this issue

We look at the circumstances surrounding the prosecution of a business for using hazardous chemicals; the courts move to increase penalties for WHS breaches; a new monetary threshold for principal contractor duties in Victoria; and the growing use of enforceable undertakings as an alternative to prosecutions under model WHS laws.

Business fined for unsafe use of hazardous chemical

In brief: A couple running a hairdressing business in NSW have each been fined under that State's WHS Act for the unsafe use of chemical products. Associate Tarsha Gavin reports.

How does it affect you?

• Businesses need to know the nature of chemicals they import into Australia and that they use those supplies safely.
• Businesses that store or use hazardous chemicals need to ensure that they maintain safety information for those chemicals and train employees how to safely use the chemicals.

Background

The employees of a hairdressing business raised complaints about skin irritations and respiratory illnesses they suffered as a result of keratin hair straightening products they were required to use at the salon. WorkCover NSW investigated the complaints and found that two hair straightening products being used contained levels of carcinogenic formaldehyde that exceeded regulatory limits. Further, the packaging on one of the products was written in Arabic and failed to meet the necessary regulatory requirements for product packaging. A translation of the packaging revealed that the product was actually a fabric softener.

The decision

The defendants were prosecuted by WorkCover NSW for a failure to ensure that the chemicals were safe for use. The defendants pleaded guilty to the charges.

In considering the appropriate penalty, the court ruled that the defendants had failed to comply with a number of health and safety duties, by failing to:

• provide staff with any information or training on the products being used;
• provide safety data sheets;
• maintain a register of hazardous chemicals; and
• provide adequate personal protective equipment. Some dust masks were provided to employees. However, it was not established that the masks were effective in minimising harm from use of the products.

The defendants were fined $25,000 each.

Court significantly increases fine for health and safety breach

In brief: The Victorian County Court has increased the fine payable by an employer for breaches of the Victorian OHS Act. Associate Michael Whitbread reports.

How does it affect you?

• Courts are imposing tougher penalties on businesses that fail to provide workers with safe systems of work or the necessary information, instruction and training to prevent injuries.
• An employer's history of compliance with work health and safety laws will be relevant to determining the fine that will be imposed for breaches of the legislation.

Background

WorkSafe Victoria prosecuted Cube Logistics (Vic) Pty Limited and Pack-Tainers Pty Limited after a Cube Logistics driver was injured while making a delivery to Pack-Tainers' premises. The Cube Logistics driver was struck by a forklift that was owned and operated by Pack-Tainers while his truck was being unloaded. The driver sustained minor injuries to his head, shoulder and thigh.

WorkSafe Victoria charged Pack-Tainers and Cube Logistics for failing to provide and maintain a safe working environment.

Fines

Both Pack-Tainers and Cube Logistics pleaded guilty to the charges. They were fined $1,000 and $3,000 respectively. However, the Director of Public Prosecutions appealed Pack-Tainers' sentence. Pack-Tainers had been previously fined $22,000 for other safety breaches that had left an employee a paraplegic after being struck by a bale of wool. The Victorian County Court increased the fine on Pack-Tainers to $7,500 because it considered a fine of $1,000 to be too lenient in the circumstances.

Generally, courts will impose more significant sanctions on defendants who have previous convictions (particularly where the previous conviction related to a similar risk to health and safety).

New monetary threshold for Principal Contractor duties in Victoria – other states and territories to follow?

In brief: On 1 July 2014, the monetary value of construction projects to which the Victorian principal contractor duties apply increased to $350,000 or more. Lawyer Timothy Leschke reports on a change that took effect as one of a number of amendments to the Victorian safety regulations and may inform reviews around Australia into the model laws.

How does it affect you?

• Principal contractor safety duties in Victoria will now apply only to projects that cost $350,000 or more (up from $250,000).
• Victorian employers are no longer obliged to keep records of their employees' construction induction cards.
• The changes come about as other states are considering reforms to their work health and safety legislation.

The key changes

The Victorian Government introduced a number of changes to its safety regulations with effect from 1 July 2014.
The key amendments include:

• Principal contractor duties will now apply only to projects that cost $350,000 or more. For example, a health and safety coordination plan will now be required only for projects costing $350,000 or more.
• Victorian employers are no longer obliged to keep records of their employees' construction induction cards. However, since employers must not knowingly allow an unregistered employee to perform construction work, it would be best practice to keep these records anyway.
• Employers are no longer required to register plant with WorkSafe Victoria or recognise interstate plant registration.
• People who work with plant only for the purposes of testing, installing, commissioning, maintaining or preparing that plant are no longer required to hold a high risk work licence in relation to that work.
• WorkSafe Victoria may exempt people from holding high risk work licences and may consolidate Victorian licences with those held in other jurisdictions.

Impact on principal contractor duties in other states and territories?

Safe Work Australia has released an Issues Paper and Consultation Regulation Impact Statement to consult about how the model WHS laws could be improved. Feedback from state and territory governments was expected by 1 August 2014. It is likely that the above amendments will be considered within this review.

Northern Territory WorkSafe is also conducting a review into its model laws. One specific area of review is the cost threshold at which the principal contractor duties apply. Some options suggested by NT WorkSafe include having a monetary threshold of $500,000 or having an exclusion based on particular types of buildings (eg residential or single dwellings). Again, the increase in the Victorian threshold is likely to be considered.

Enforceable undertakings proving to be a popular alternative to prosecutions

In brief: A number of businesses have entered into enforceable undertakings under the model WHS laws. Law Graduate Kaelah Ford reports on three enforceable undertakings that were entered into as an alternative to prosecution.

How does it affect you?

• Enforceable undertakings are an alternative to being prosecuted for breaching WHS laws. They may be considered if there are remedial steps that a business can take to remedy the breach by improving safety in the workplace.
• Depending on the nature and extent of the alleged contravention, an enforceable undertaking may be an attractive alternative to prosecution since they may simply require a business to make improvements it would otherwise have to make to comply with its safety duties.

Case one: forklift injury

Building products distributor Dindas Australia Pty Ltd entered into an enforceable undertaking with Workplace Health and Safety Queensland (WHSQ), after a forklift entered a pedestrian zone and injured a worker. WHSQ alleged that Dindas had breached its duty to provide a safe working environment and to provide adequate facilities or training to protect workers from safety risks, including by failing to manage the risks associated with mobile plant colliding with people. As part of the enforceable undertaking, the employer committed to:

• installing additional safety features on its forklifts;
• relocating truck loading areas and driver safety zone shelters;
• fitting forklifts with camera technology;
• engaging a consultant to audit its WHS management system; and
• making a $10,000 donation to the Australian Red Cross.

Case two: potential asbestos exposure

Building and construction company J Hutchinson Pty Ltd entered into an enforceable undertaking with WHSQ after its workers were potentially exposed to asbestos fibres. WHSQ alleged that J Hutchinson had failed to implement adequate measures to prevent its workers from being exposed to asbestos fibres. The employer undertook to:

• develop an asbestos identification and management procedure;
• provide further training to all staff and contractors on the process required to safely remove asbestos containing materials; and
• donate $5,000 to the Asbestos Related Disease Support Society Qld Inc.

Case three: tyre explosion

Transport company DTC Pty Ltd entered into an enforceable undertaking after two employees were injured in a tyre explosion. WHSQ alleged that DTC had failed to provide workers with safe plant or develop adequate risk assessments or safe systems of work. As part of the undertaking, the employer committed to:

• purchasing new equipment;
• implementing an updated training program on safety risks; and
• donating $15,000 to the Westpac Rescue Helicopter Service.