May 2018 – Newsletter

Updates so far for 2018!

What has been happening out there so far in 2018?

Thought that we would include some safety decisions for you to share with your team, so they all understand that it is everyone’s responsibility, not just the management team.

I always feel it is more “believable” what can and does happen when you have real scenarios to share.

Crane Driver Charged with Manslaughter, Principal Contractor and Sub-Contractor Charged with Category 1 Offence with ‘dog man’, site manager, site supervisor and safety officer also accused of reckless conduct!

The nine charges, which include a criminal count of manslaughter against a crane driver and workplace charges against company bosses, have been labelled an “extensive and unprecedented” response by ACT’s work safety watchdog. Herman Holtz, 62, was killed on August 4, 2016, after an incident involving a mobile crane on the University of Canberra Hospital construction site in Bruce.

The crane driver, who was moving an 11-tonne generator at the time of the incident, has been charged with Mr. Holtz’s manslaughter. WorkSafe ACT commissioner Greg Jones said the evidence suggested there were significant and systemic failures on the site, with workers’ safety not considered. “It is alleged that a number of people made several very poor decisions, repeatedly over a period of time, in undertaking that lift,” Mr Jones said. “The risks that were apparent and available to not only the people in the supervisory or a management role, but particularly those on-site. Mr Jones drew attention to the choice of mobile crane for the job and said a “strong regulatory response” was required.

“The evidence gathered under this investigation suggests that the risk of serious injury or death in what they were doing was obvious and clear. “However, despite the risks, they continued in their task which resulted in the mobile crane exceeding its design capabilities to such a degree that it overturned with tragic consequences.

Category-one offences, which are handed down for “reckless conduct” and are the highest possible charge under the Work Health and Safety Act, were laid on principal contractor Multiplex Constructions and sub-contractor RAR Cranes. The ‘dogman’ who was assisting the crane driver at the time of the accident as well as the site’s supervisor and safety officer, both of whom were employed by Multiplex, were also accused of reckless conduct.

Multiplex Constructions’ chief executive and RAR Cranes’ managing director were both slapped with category-two offences for failing to comply with health and safety standards, as was the site manager on the day, also employed by Multiplex. If found guilty of a category-one offence, individuals can face up to five years in prison, while corporations can be ordered to pay up to $3 million. Category-two offences can carry financial penalties worth hundreds of thousands of dollars, while a corporation can be hit with a $1.5 million fine.

First category 1 prosecution

  • Cudal Lime Products were fined $900,000 after it pleaded guilty to a Category 1 breach of the Work Health and Safety Act 2011 (NSW) in relation to its failure to follow its own safety management plans, and its desire to save costs on tradespeople and engineers.
  • The NSW District Court held that the decision to use an unqualified person to install a switchboard to save costs constituted recklessness and was an “act devoid of social utility”.
  • The unqualified employee that conducted the electrical work on the switchboard (who was also a member of the family that owned Cudal Lime Products) was also fined $48,000 after pleading guilty to breaching his duties as a ‘worker’ under section 28 of the Work Health and Safety Act 2011 (NSW).

Ref: Stephen James Orr v Simon Shannon  [2018] NSWDC 27.

Heavy fines for union officials who ignored safety warnings

  • The CFMEU and two officials have been given heavy penalties for breaching provisions of the Fair Work Act 2009 (Cth) by ignoring requests to stay off a pathway which was unsafe. The Federal Court held that the union officials abused their rights as entry permit holders.
  • The individuals were also found to have breached s 500 of the Fair Work Act 2009 (Cth) by placing themselves unsafely in the paths of concrete trucks and the plant thus obstructing a concrete pour; and for summoning a group of workers to unlawfully stop work for approximately 10 minutes.
  • The Court imposed respective penalties of $32,000 and $10,000 on the individuals and the union was ordered to pay $200,000 to “deter the organization from any repetition of such misconduct”.

 Ref: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case)  [2017] FCA 1555

Proposed changes to the Heavy Vehicle National Law

The Queensland government has recently introduced the Heavy Vehicle National Law and Other Legislation Amendment Bill 2018 which further builds on the reforms made to the Heavy Vehicle National Law (HVNL) in 2016.

The 2016 amendments (due to commence in late 2018, if not proclaimed earlier) introduces, among other things:

  • a ‘risk based’ primary duty of care on parties in the heavy vehicle road transport chain to ensure the safety of their ‘transport activities’; and
  • a requirement on ‘executive officers’ to exercise due diligence to ensure companies comply with the primary duty of care.The Explanatory Memorandum provides that “these amendments will improve safety by requiring that executive officers take positive steps to ensure their organisation meets its safety obligations under the HVNL”.
  • NB: The definition of ‘executive officer’ under the HVNL is broader than ‘officer’ under the Work Health and Safety Act 2011 (Qld), and includes any person who is concerned with or takes part in the management of a business. This means that the duty will apply to a broader level of senior management than the ‘officer’ duties under most general work health and safety laws
  • The 2018 Bill amends the 2016 reforms to the HVNL by expanding the scope of the new ‘executive officer’ duty, requiring that executive officers exercise due diligence to ensure not only that their organisation complies with its primary duty of care, but also that the organisation complies with other major safety duties imposed under the legislation.

Finally, I read a “snapshot” interview from Jan Marchant, the Head of Health & Safety at Vicinity Centres, one of Australia’s leading retail property groups about her experience in the health and safety sector.

I thought the below table she produced was worth sharing:

·                Traditional View          Safety Differently
 

People are seen as a risk to control

 

People are the solution

 

Safety is the absence of negatives Safety is the presence of positives
Guided by rules and compliance Guided by insight and context

 

The boss or safety manager gets to say what is safe Whoever is the expert gets to say what is safe
Governed by processes and bureaucracy Processes adjusted in cooperation with stakeholders

 

Interesting?

Hope it starts a discussion at your workplace.

Seeing safety differently is also part of the behaviour-based safety we have spoken about in previous newsletters.

Always happy to discuss further!

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