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HJ & K Newsletter April 09

Up to date Industrial News

Client News April 2009

New South Wales

 ABATTOIR FINED $150K FOR FAILING TO REINFORCE OCCUPATIONAL HEALTH & SAFETY (“OH&S”) POLICIES
An employer has been fined $150,000 for failing reinforce its OH & S policies after a worker was seriously injured.
The worker crawled beneath the machine and removed the sliding strainer to clear it of grit. He noticed a piece of intestine was also blocking the drain and wrapped his hand around it in order to pull it clear.

The machine, however, was running at the time, and the worker's hand was drawn up through the drain and into the path of rotating screw flights, which severed his forearm just above the wrist.

The employer was subsequently charged with breaching s8(1) of the NSW Occupational Health and Safety Act 2000 for failing to ensure that the auger was adequately guarded against access to dangerous moving parts, and for failing to adequately document and enforce its system of work in respect of clearing blockages.

Breakdown in system of work
In the Industrial Court, Justice Conrad Staff noted that this was not a case where an employer had failed to ensure there was a safe system of work or to provide instruction and training.

The employer, he found, had an OHS policy manual that included a direction to contact maintenance personnel and to attach danger tags and isolate equipment before undertaking cleaning or repairs. It had also put all of its workers through a "comprehensive induction program".

However, the employer had failed to ensure that its OHS policies were regularly brought to the attention of employees and reinforced, Justice Staff found.

"Although the employer had, what on the face appeared to be well documented and comprehensive safety procedures, it is clear that there was a breakdown in the systems of work," he said.

Mitigating factors
In fining the employer $150,000 (after a 25 per cent discount for its early guilty plea) Justice Staff took into account the employer's cooperation with WorkCover; the procedures it put in place to prevent the incident happening again; its unblemished record in what was an inherently unsafe industry; and the compassion it showed the injured worker.

The penalty would have been greater, Justice Staff noted, if it wasn't for the assistance provided to the worker after the incident, including support provided to his girlfriend and a rehabilitation program.

Victoria

 WORKSAFE VIC'S 2009 TARGETED WORKPLACE SAFETY CAMPAIGNS BEGIN SOON
WorkSafe Victoria inspectors will be visiting workplaces and checking on the management of common safety issues in 2009.

Between February and June WorkSafe will be in Ararat, Footscray, Frankston/Cranbourne, Maryborough, Scoresby and Morwell.

WorkSafe executive director, John Merrit, said that based on experience, despite plenty of warning to employers, many failed to act on safety issues and consequently received safety improvement notices.

Some questions WorkSafe suggests employers to think about are:
•    What are the hazards in the workplace?
•    Is there a process by which the employer and employees consult on health and safety issues?
•    Is the workplace neat and tidy, clear of obstructions and fire hazards?
•    What has been done to reduce the risks of slips, trips and falls? Are staff wearing suitable footwear? Are steps well lit?
•    Are risks from falling from heights controlled?
•    Are physical barriers and guards in use to isolate people from mobile plant and machinery such as forklifts or other vehicles?
•    Are forklift drivers licensed?

NEW VICTORIAN PLANT FINED FOR SAFE SYSTEM DEFICIENCY
The owner of a new Victorian hot dip galvanising plant has been fined $25,000 for system deficiencies after a worker suffered burns to his forearm, neck and legs.

In February 2006 the worker was operating a galvanising carousel when he heard an explosion, before molten zinc was expelled from a bath and struck him. Other employees working in the area were also struck and received minor burns.

A subsequent investigation found that the system of work did not include visual or mechanical inspections to ensure that vaporising liquids, which could potentially cause an explosion, were absent or safely discharged.

The organisation was charged with breaching s21(1) and (2)(a) of the Victorian Occupational Health and Safety Act 2004, for failing to provide a safe working environment.

It pleaded guilty and was fined without conviction.

$175K FOR FORK DEATH, SPATE OF VICTORIAN ACCIDENTS "STEALING" QUALITY OF LIFE
Two Victorian workers were seriously injured in separate forklift accidents last week just days after a Melbourne employer was fined $175,000 over a 2005 forklift-related death.

The 2005 incident occurred when an employee was struck and killed by a forklift. A subsequent investigation found that walkways at the business's warehouse were frequently crossed by forklifts, and that driver visibility was often inhibited by the overloading of plant.

The employer pleaded guilty to OHS charges and was fined in the Victorian County Court. The employer was also fined in 2005 over another forklift-related incident.

In last week's incidents, a forklift driver at a metal fabrication business suffered leg injuries when he was either thrown or jumped from and was then crushed by an overturning forklift, and a pedestrian worker at a food processing plant suffered serious leg injuries when a forklift struck her.

Referring to the spate of incidents, WorkSafe Victoria executive director John Merrit said that if businesses didn't have safe systems in place, then incidents that "kill, maim and steal people's quality of life will continue to happen".

VICTORIA INTRODUCES OHS AMENDMENTS TO PROTECT PROACTIVE WORKERS
Victorian workers who are discriminated against for raising safety issues will be able to seek damages in the Magistrates Court under new amendments to the State OHS Act.

In his second reading speech earlier this month, Minister for WorkCover Tim Holding said that it was accepted that workplace health and safety relied on everyone playing a proactive role.

"This system is not premised on having WorkSafe inspectors on hand at every workplace, 24 hours a day," he said.

"Nor can employees be proactive about workplace health and safety in an environment where they risk any disadvantage for acting as or assisting employee representatives, for aiding or providing information to a WorkSafe inspector, or for speaking about their OHS concerns."

Under the Occupational Health and Safety Amendment (Employee Protection) Bill 2008, workers will have one year after becoming aware of alleged discrimination to apply to the Magistrates Court, where the employer will bear the onus of proof, consistent with existing current criminal provisions in the OHS Act.

Holding said the new provisions will also apply to third-party discrimination against employees of independent contractors.

"However a 'substantial reason' test will apply under the new civil arrangements rather than the stronger 'dominant reason' test for criminal cases," Holding said. "There is also provision for an individual to seek an injunction from the court to restrain proscribed conduct."

The Bill will also remove the prison penalty for criminal breaches of s76 (discrimination), bringing Victoria more into line with other jurisdictions.

If passed, the new arrangements will come into effect on 1 July next year.

VICTORIAN DIRECTOR FINED $100K OVER WORKER'S DEATH
The first Victorian director to be fined under the OHS Act 2004 has received the highest penalty ever handed down to an individual for a safety offence.

In 2006 an employee was instructed by the company director to put several drip trays under a pipe bending machine to catch leaking oil.

The worker died from head injuries while working near the machine after a co-worker inadvertently started it.

In the Victorian County Court, Judge Liz Gaynor heard that a laser light curtain, which would have prevented the machine starting while the worker was near it, was not correctly positioned.

There was also no system to ensure the machine could not be started if people were working near it, nor was there a system to warn workers near the machine that it might start.

Judge Gaynor said both the employer and its director were "utterly negligent" in failing to have appropriate safety systems in place.

The employer pleaded guilty to breaching s21(b) and (e) of the OHS Act, in failing to provide and maintain a safe working environment and provide information, instruction and training or supervision.

The director was charged and pleaded guilty under s26 of the Act, on the basis that he was in control of the workplace and had given instructions to the worker.

The employer and the director were fined $100,000 each.

WorkSafe executive director John Merritt said the case reinforced the need for company directors who had day-to-day responsibility for safety in the workplace to take active steps to ensure their workplaces were safe.

HOST EMPLOYER FINED $165K OVER DEATH OF "SKYLARKING" CONTRACTOR
An employer has been fined in the Federal Court over the death of a contractor who was crushed between a forklift and a pole after "horsing around" with the forklift operator.

He had climbed onto a forklift that was in operation, and put one hand on the operator's head and neck, and his other hand under the operator's leg. The forklift travelled in reverse, crushing the worker between a pole and the forklift.

In the Federal Court, Justice Geoffrey Flick heard that the worker had, on three other occasions, engaged in similar behaviour in the months before the incident, including disconnecting the power of a moving forklift and applying the handbrake of a moving forklift.

Justice Flick noted that this was not the first forklift accident or death at the warehouse, with incidents in 2002 and 2003.

He found that the worker was provided with "what can only be described as minimal instructions" for safety.

The worker had completed an OHS induction questionnaire, and received "induction training" and further training before commencing, which included verbal instruction "to keep out of the way of moving machinery" and other verbal instructions as to safety rules, emergency procedures, lifting, administration matters and site amenities.

He had also watched an instruction video, and received a certificate acknowledging that he had read an induction manual and completed a questionnaire.

Justice Flick heard that the employer's supervisors and team leaders had not received any specific training as to the performance of their duties, nor had they been given instructions that "skylarking" behaviour should not occur within the vicinity of forklifts.

Since the incident, the employer has implemented a system to monitor the performance of supervisors and team leaders. It has also put in place traffic barriers to separate moving forklifts from pedestrians, and reinforced the message that "horseplay" and inappropriate behaviour in and around forklifts was unacceptable.

The Federal Court declared that the organisation contravened s16 of the Occupational Health and Safety Act 1991 by failing to take all reasonably practicable steps to ensure the health and safety of its employees and contractors.

CARPAL TUNNEL COMMON IN CONSTRUCTION, OFFICE WORKERS SAFE: STUDY
Employees in the construction industry or in any job requiring "forceful upper extremity work" are more likely than others to suffer from carpal tunnel syndrome (CTS), a study has found, with computer work being one of the lowest risk occupations for developing the condition.

The cross-sectional study examined the prevalence of CTS and median neuropathy (a nerve condition that often leads to CTS) in more than 1100 US workers, including carpenters, sheet metal workers, engineers, hospital support staff and computer workers.

Respondents underwent a physical examination and a nerve conduction study, and completed a questionnaire on neck and arm symptoms, their medical history and work experience.

The researchers found that 131 (12.2 per cent) of the respondents showed signs of median neuropathy, with 18 meeting the "case definition" of CTS.

And the majority of these, they said, were employed in occupations requiring:
•    the use of vibrating hand tools;
•    a regular twisting motion of the forearm;
•    the use of the fingers or thumb as a pressing tool;
•    the use of fingers in a pinch grip; and
•    forceful gripping.
"Construction workers had the highest prevalence of CTS in our study, whereas... computer, clerical and laboratory workers had the lowest," the researchers said.

Gender differences
The researchers found that no one sex was more likely to have median neuropathy or suffer CTS than the other.

Previous studies have found that women were at a higher risk of suffering from CTS than men, they said, but this could be due to the fact that women were more likely than men to report the symptoms.

In the current study, there was a greater prevalence of CTS in men than women, but this was "predominantly due to the greater number of men in physically demanding occupations", they said.

Queensland

COMPANY FINED $35K OVER VISITOR INJURY
A manufacturing company has been fined $35,000 after a teenage visitor was injured while helping his father unload a truck.

The load fell on the teenager causing crush injuries and fractures to his pelvis and right ankle.

The employer pleaded guilty in the Industrial Magistrates Court to breaching s24 of the Workplace Health and Safety Act 1995 (Qld).

The Court found the company had no systems for loading and unloading trucks, and that although there was a policy that friends and family of workers should not attend the workplace, this still occurred.

In handing down a fine, Industrial Magistrate Kay Ryan took into account the company's good safety record and its cooperation with investigations.
She ordered the company to pay professional and court costs of $2,721.85. No conviction was recorded.

These articles have been taken and adapted from OHS Alert and Workplace Express newsletters.
These notes are for general information purposes only and should not be relied upon as an alternative to obtaining legal advice. HJ&K Industrial Consultants Pty Ltd disclaim any liability to anyone who acts in reliance, either wholly or partly on the contents of these notes.

For further information or advice please contact our office on (03) 8615 4200.

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