Issue 1111
, Wednesday 27 May 2015
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In this issue
[1]
Transpacific Industry Pty Ltd faces paying
$363,000 for occupational health and safety (OHS) breaches plus costs in a
prosecution result Comcare has labelled a "first" on two fronts.
In a May 22 media statement,
Comcare said the penalty was the largest against an employer "as a
result of a single court proceeding" by the regulator. It was
"also the first time" multiple breaches of Commonwealth work
health and safety laws "have been found against an employer in regard
to an ongoing risk to health and safety", Comcare said.
Earlier on May 22, Federal
Court Justice Michael Barker held Transpacific liable for two civil
financial penalties after a fatal incident in Perth
in February 2011 and subsequent truck safety maintenance system
failures in April and May 2011. He said Comcare and
Transpacific had agreed on a declaration for two OHS breaches in each of
four time periods. But they disagreed on the range and number of penalties
that should be imposed. Comcare had sought four separate penalties at the
"upper end of the range". Conversely, Transpacific had contended
the "objective seriousness" of its offending should be considered
at the "lower end of the range" and that the financial penalty
imposed "should reflect that". Transpacific said its conduct on
Feb 28, April 2-19, April 21-May 8
and May 10-13, 2011, was "quite clearly" the same as it
failed to "do the same things". It had taken steps to prevent
further contraventions since the events subject to the proceedings.
Comcare lodged the single court proceeding
in December 2013, 22 months after a Transpacific Cleanaway
garbage truck collided with a Ford van then a Kia Rio wagon in Caversham (OHN 22/01/14). Wagon driver Mary
Louise Ross, 71, died as a result of injuries she sustained and van driver
Susan Michelle McMerrin was injured. Justice Barker said McMerrin
wasn't seriously injured but suffered ongoing neck pain. Transpacific owns
the Cleanaway business and the Iveco Acco truck that was serviced seven
days before the Feb 28, 2011, collision. The company admitted the
"substance" of Comcare's case but raised issues of fact. That was
after it initially filed and served a defence on Feb 21, 2014, in which it
denied alleged breaches of the OHS Act 1991. Three mediations in
April, September and November 2014 preceded an agreed
statement of facts between the company and Comcare. The statement said
Transpacific employee driver Aaron Meotti applied the truck's brakes after
a sedan travelling in front of him "swung around very quickly and,
without warning or indicating", veered to the left of the road to pass
the stationary Ford van. Meotti when he saw the van believed there was
insufficient room for him to pass the van safety on its left without
colliding with a light pole and a stabiliser post that supported a second
pole. He immediately applied the service brakes and the truck's four rear
wheels "locked up" and stopped rotating. The two front wheels did
not lock up and the truck skidded before colliding with the van's
right-hand rear corner and continued to skid into the lane of oncoming
traffic where it hit the front right-hand corner of Ross's wagon. The truck
skidded a total 60m before it hit the wagon.
Brake defects not identified
Justice Barker said Meotti was driving the truck
at 65-70kph on part of West Swan Road that had a 70kph speed limit. He was
driving the truck about two car lengths behind the sedan that was
travelling at about the same speed. Meotti was not charged with any offence
arising from the incident. Transpacific had Meotti assessed by a doctor
before giving him two weeks' leave from work. On his return it paired
Meotti with another driver for several days before he resumed normal
duties. Transpacific accepted the brake defects existed on Feb 28, 2011,
but submitted there was no evidence they were there when the truck was last
serviced on Feb 21, seven days earlier.
Roadworthy despite brake troubles
The company (above)
accepted three of its mechanics when separately servicing the truck
on April 1 and 20 and May 9, 2011, didn't identify or
rectify the brake defects. The three services were conducted on the truck
after WA transport department vehicle examiners on March 28
passed it as a roadworthy, "although it still had the brake
defects", after accident damage to its front was
repaired. Justice Barker said the examiners "did not report the
brake defects to Transpacific". On May 9, WA police informed
Comcare the truck's front brakes had been defective at the time of the
fatal incident. On May 13, Comcare issued an improvement notice
to Transpacific requiring it to ensure all brakes on its heavy vehicles
were serviced and operating in accordance with the manufacturer's
instructions. The next day a Transpacific mechanic identified and rectified
the brake defects on the truck Meotti had driven on Feb 28. After taking
all relevant factors into account, Justice Barker said he would order
Transpacific to pay a $181,500 fine for the Feb 28 breaches listed in
declaration 1 because they comprised "one course of conduct".
That was 75% of the maximum $242,000 penalty. Similarly, he was satisfied
Transpacific's breaches in May, April and May after the
fatal incident that were listed in declarations 2-4 were "one
continuing contravention". He accepted there was a "systematic
servicing problem in this regard,as there were three separate mechanics on
three separate occasions who failed to identify any
faults". Justice Barker accepted Comcare's submission there was a
"less than adequate supervision system in place". He did not
believe it necessary for each mechanic to be constantly supervised but the
circumstances of the case suggested the system of supervision was
"inadequate". Justice Barker said he would impose a further
$181,500 fine for the breaches in declarations 2-4 "given the
continuing seriousness of the contraventions". He invited Comcare to
confer with Transpacific to submit a minute on final orders "that
reflect the court's findings". (Comcare
v Transpacific Industries Pty Ltd [2015],FCA 500, 22/05/2015)
·
Outside court in
the May 22 statement (above), Comcare CEO Jennifer Taylor said the Transpacific case "highlighted" the need for employers to
provide robust safety systems, particularly for heavy vehicles. It
"showed ongoing, systematic failures in safety practices", Taylor
said. "It's also a reminder that in such cases, Comcare will not just
consider the final result. We will examine every opportunity a company has
had to fix these issues, and we will take appropriate enforcement
action."
[2]
Plans to expand the national workplace safety
regulator's role were a "disaster waiting to happen" in light of
its "demonstrated inability to regulate safety in the
workplaces", a lawyers' association claims. The Australian Lawyers
Alliance (ALA) used a recent prosecution against construction
giant John Holland (JH), which Comcare oversees, as evidence of the
federal safety regulator's "series of failures" (OHN
25/3/15). ALA national president Andrew Stone
said JH had breached occupational health and safety (OHS) laws several
times before the successful prosecution. He said the company was fined
$110,000 after a worker suffered a head laceration when a bridge
at the Brisbane Airport Link site collapsed. Some months earlier, a worker
died when he was crushed to death at the same worksite in an incident still
being pursued by the federal safety regular. "There are too many cases
like this which clearly show Comcare has a patchy record on workplace
safety enforcement and oversight," Stone said. "This court ruling
shows that the Comcare scheme has put workers' lives at risk by failing to
enforce OHS regulations in the limited number of workplaces for which it
has responsibility. In the case, it was noted that JH had breached the
OHS Act 1991 Act a number of times already. "It must be asked: where
was Comcare in preventing these breaches?" Stone said.
"If Comcare is struggling to adequately regulate worker
safety across only 33 companies, why on earth would you put more
workers from across the country at risk by allowing employers to leave
well-funded and well-administered state-based schemes to join Comcare's
poorly functioning regulatory arrangements?". A spokesperson for
employment minister Senator Eric Abetz told OHN the ALA had an "unfortunate
history of defending the rorts and loopholes that currently exist in the
Comcare scheme". "The very fact that a prosecution was taken and
successful shows that Comcare is an effective and active regulator,"
he said. "(The ALA) is putting the interests of those who would
benefit from the current flaws in the scheme at the expense of taxpayers
who fund the scheme." Stone said Comcare reported 13 workplace
fatalities within its mandate in its 2014 annual report.
The Australian Council of Trade Unions (ACTU), at
its annual congress in Melbourne, attacked the Comcare reforms urging the
Federal Govt to dump its legislation. It pushed for stronger OHS laws to
fine or jail directors for safety breaches to ensure companies could not
restructure to avoid penalties for negligent conduct.
[3]
UnionsWA has accused the State Government of
disguising the state's "worsening number and rate of mining
fatalities" after the govt claimed mine deaths had stabilised over the
past three years.
The war of words broke out in response to UnionsWA
calls for a royal commission to investigate the state's work-related death
rate, including those in the mining sector. It follows the death of a
mining worker at a Pilbara operation earlier this month. The union said the
state's third mine fatality this year at the Aditya Birla Minerals Nifty
copper mine in the Pilbara underscored the need for an independent inquiry.
A sink hole prompted the copper mine's closure last year, with the govt
placing a prohibition notice on the mine, which was lifted in July.
UnionsWA secretary Meredith Hammat said it was unclear whether the death
was linked to the sinkhole. She said the WA Department of Mines and
Petroleum (DMP) reviewed the mine following the sinkhole incident before
reopening the site. The dept also investigated the subsequent workplace
fatality. She pressed for a "proper objective" examination of the
mine and believed the dept would be "compromised" in its ability
to carry out a thorough investigation. "The departmental investigation
into the Nifty Copper mine is fundamentally flawed, it should not be
allowed to investigate itself in that matter," Hammat told OHN. "A royal
commission should investigate ensuring that relevant occupation health and
safety entities enjoy an adequate level of independence from undue
influence." Minister for Mines and Petroleum Bill Marmion said in a
statement three experienced inspectors determined the death was not related
to the 2014 sinkhole. He rebuffed union claims there had been a recent
spike in mining death numbers. "Aside from fatality free 2012, mine
site deaths have been static at three per year since 2010," he said.
He said deaths rates in mining had halved during the past decade given the
workforce's expansion. "There were four deaths in 2004 and three in
2014 but the number of people working on mine sites doubled during that
time," he said. Hammat dismissed the govt figures, claiming they
relied on a calendar rather than a financial year."The recent statement
by minister Marmion sought to disguise the worsening number and rate of
mine fatalities, which UnionsWA has shown is at five deaths in the year
to May 2015, and four the year prior to that, periods when the
mine workforce has declined," she told OHN. She said recently Safe Work
Australia showed the WA work-related death rate from 2012 to 2013 rose from
1.85 to 2.2 per 100,000 employees, with the Australian-wide rate declining
from 1.98 to 1.64 over the same period. "These figures are among a
number of reasons why UnionsWA has called for a royal commission into work
fatalities, including those in mines," she said. Hammat raised the
spectre of WA failing to harmonise its work health and safety laws through
delays and inadequate fines. "At present the maximum fine provided for
is $200,000, which is clearly inadequate," she said. "Under
economic pressure, workplace management too often seeks to cut corners on
health and safety."
[4]
The Vic Government will tackle the growing problem
of violence against hospital staff with a $20m hospital service violence
prevention fund (OHN
19/12/14). Vic health minister Jill Hennessy told the
Public Accounts and Estimates Committee
on May 13 service operators could make applications to receive
funds for occupational health and safety innovations. However, she could
not "pretend that the hospital violence prevention fund in and of
itself is going to eradicate this very, very difficult issue of
occupational violence and aggression". "We will also provide $20m
for capital infrastructure to our health services to make them safer for
staff, patients and visitors," she said. Hennessy said the Vic
Auditor-General report tabled earlier this month "alluded to the scale
of the problem". She said a culture of expected stoicism within the
profession meant the problem was under-reported. "It is not
acceptable, and it has incredibly awful impacts not only on people's
physical wellbeing but also on their mental wellbeing," she said.
Clinical oversight, stronger leadership, supervision and training were
vital in protecting employee wellbeing, Hennessy said.
[5]
Truck drivers and family members demonstrated
outside Coles' headquarters last week (May 21) amid claims of unsafe work
practices jeopardising transport workers' health and safety. The Transport
Workers Union (TWU) claimed the retailer's practices placed pressure on
truck drivers to "drive faster, for longer with over-loaded
vehicles in a stressed and tired state". The TWU said an average of
330 lives were lost each year in truck-related crashes and many thousands
more were injured. It said truck drivers were 15 times more likely to die
than any other profession.
[6]
The Fair Work Commission (FWC) has amended forms
for work health and safety and right of entry permits.
The FWC said the changes, which came into effect on May 22, will
streamline processes to speed up permit applications.
[7]
Mental health group beyondblue warned heavy
workloads and a lack of disclosure had compromised doctor and medical
students' health and wellbeing. Beyondblue chairman Jeff Kennett said
in a May 25 statement medical professionals were "overworked,
stressed, depressed, dependent on alcohol or other substances and are at
risk of suicide". He noted this week's Four Corner's program on ABC TV, which
investigated the pressure Australian doctors faced in the workplace. It
followed the" sudden deaths of four young doctors this year and
reports of improper working conditions, sexual harassment and bullying
within the health system", Kennett said. In 2013, beyondblue conducted
a survey of doctors' and medical students' mental health and found they
suffered higher rates of suicidal thoughts and psychological distress than
the general community. "Too many doctors are working in a culture and
environment where they are scared to tell anyone about their mental health
and hide problems rather than seek the care and support they would demand
for their patients," Kennett said. He blamed mandatory reporting laws
for having an "unintended effect of harming patients by making doctors
too scared to seek help for their conditions". Kennett said WA amended
its laws so doctors were exempted from mandatory reporting, sparking a rush
of doctors travelling to WA for treatment. A steering group comprising
representatives from beyondblue, the Australian Medical Association and the
Australian Medical Students' Association will "develop, support and
promote practical solutions and advice to leaders within Victorian
hospitals so that they can create change".
[8]
The Australian Tax Office (ATO) has defended a new
program aimed at tackling rising sickie rates, in which staff would receive
regular emailed updates about their recent absenteeism record and how it
compares to their colleagues. The ATO plans to trial the scheme given the
agency is among the worst government sector performers in absence rates.
ATO workers on average failed to show up to work for more than three weeks
a year in the 2013-14 financial year. The Australian Services Union
taxation officers' branch attributed high sick leave rates to an "insufficient
regard for the individual needs of employees". An ATO spokesperson
told OHN the
program, which is currently in pilot phase, was one of "many
opportunities being explored ... to better understand unscheduled
absences". "Like most best practice human resources initiatives,
we are leveraging off research, and thoroughly testing ideas prior to
considering whether they have broader application in the work
context," she said. The spokesperson said the program would
"strengthen our rehabilitation and return-to-work approaches and
practices to better support our employees with an injury or illness".
It would also "enhance our internal capability, systems and
infrastructure to make it easier for our staff to monitor and manage their
attendance", she said. "Our intention is to keep our people
engaged and productive at work, provide appropriate support during
unscheduled absences, and achieve a safe, sustainable and timely return to
work from illness or injury."
[9]
Nearly a third of workers have admitted using
drugs at work and most said they had been drunk on the job, a British
survey reveals. Health and safety law consultancy Protecting.co.uk surveyed
more than 2,600 workers in office, factory, retail and the public sectors
and found 28% admitted using drugs at work. Some 5% of factory workers said
they had operated machinery after using drugs, 85% were drunk at work in
the last year; and 31% said they had been drunk at work at least once a
week. Office workers were more likely to be inebriated at work, while
workers were more inclined to stay sober in retail or customer service
professions. None of the 40 people who listed their jobs as drivers
reported drinking or drug-taking. The survey showed respondents believed
drinking to be harmless and drug taking the equivalent of having a
cigarette. Some said the practice relieved tension while others blamed
boredom for their habit. Protecting.co.uk claimed lunchtime drinking was
among the biggest causes of workplace incidents. It urged managers to
communicate to employees and enforce drug and alcohol policies. It said
businesses could offer assistance to employees with drug and alcohol
problems.
[10]
Editor:
Annie Lawson Email:
annie.lawson@thomsonreuters.comJournalist:
Helen Jones Managing
Editor: Peter Schwab Product
Code: 504061111
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