Issue 1239
, Wednesday 14 February 2018
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In this issue
[1]
WA District Court Judge Audrey Braddock has
entered a $1.389 damages verdict for a former steel reinforcement factory
worker after he sustained a back injury at work in May 2013.
Before assessing damages for Best Bar Pty Ltd's
former employee John Elliot Warn, now aged 36, Judge Braddock
heard he'd undergone three significant spinal surgeries after he was injured.
Warn didn't strike the judge as a man generally
given to complaining. He was made redundant a year after his last operation
in May 2015, when he was still undergoing a staged return to
full, but alternative, duties. At the trial "he continued to suffer
significant residual disability and pain and had not obtained any other
employment".
Best Bar asserted Warn had been instructed in
using a Robo 45 machine, that the task was simple, not dangerous or
physically onerous and required no warnings to be given.
But Judge Braddock agreed with Warn that Best
Bar had breached its common law duty of care. She was satisfied it failed
to assess the safety risks and/or warn him of the risks involved in a task
that involved him physically lifting steel bars out of a machine. The judge
also found Best Bar "failed to give appropriate instructions and
training in light of those risks and/or provide other lifting assistance
whether mechanical or human".
In finding Best Bar liable, Judge Braddock
said the danger of back injuries resulting from lifting heavy items was
"so notorious" she believed "no expert evidence is required
to establish that there is a foreseeable danger in doing so".
"Repeated actions are likely in a factory
processing large orders for reinforcing bars which are to be bent. Turning
with the bars also increases an obvious risk of injury."
In 2013 Warn worked on machines that cut or bent
steel reinforcing rods in various shapes and sizes at Best Bar's factory in
Rockingham, south-west of Perth. Warn claimed he was bending
"short" steel bars on the Robo 45 from the start of his morning
shift on May 20 for some time when he sustained the back injury.
Judge Braddock accepted Warn bent 13-19 bundles of
four or five "short" steel bars, at least 1.6m in length, before
the incident. He repeatedly lifted "numbers of bars" manually out
of the machine before turning to put them on a trolley.
In amended negligence particulars Warn claimed he
worked 1.5-2 hours on the short bars before smoko on May 20. He
said the bars were not round so had to be lined up. "Nothing
happened" and he didn't have any pain "until he felt a sharp
pinching" when lifting five bars, weighing 12-15kg.
Judge Braddock said it was "no answer"
to say Warn was "a big strong man, and that the bars were relatively
light".
"This was an industrial process, using a
powerful and sophisticated machine, with established and detailed operating
instructions, which, if applied, would have reduced the risks of
injury."
Judge Braddock found there was a foreseeable risk
of injury in the system of work Warn adopted.
Robo 45
standard method 'circumvented'
How Warn used the Robo 45 on May 20 was
"contrary to the machine's standard operating
instructions", Judge Braddock (above)
said.
From Warn's evidence he "circumvented" the
standard method where "kickers" or "arms" automatically
raised the steel bars and rolled or slid them towards the operator. The
bars then "went into a holding gallery" or the operator placed
them on a trolley at waist height.
Instead, Warn used what he called the "short
bar method", where he was left to manually lift the bars.
Judge Braddock said the fact Warn didn't think he
was doing anything untoward "points strongly to this operation being a
known and accepted practice".
No evidence on Best Bar's 'actual knowledge'
Robo 45 (above)
was designed to do the heavy work of bending bars of varying sizes, in an
automated and controlled fashion, without the operator being required to
manhandle heavy bars.
There was no direct evidence as to Best Bar's
"actual knowledge" about what Warn was doing and whether it had
given any instructions about Robo 45's "non-standard" use, the
judge said. Nor was there direct evidence on whether anyone had assessed
it.
Judge Braddock said one would expect training for
such work would include the "full spectrum of work to be
performed". Evidence showed Warn was given on-the-job training when he
started work with Best Bar. "There is nothing wrong with training of
this kind, so long as it covers all practical aspects and variants of the
work."
Judge considers
'failure to call OHS officer'
Best Bar's defence position was there was no
evidence the method Warn adopted was unsafe or a risk to a Robo 45
operator, Judge Braddock said. It didn't assert Warn was working
contrary to specific instructions or that his negligence contributed to the
incident, she said.
The occupational health and safety (OHS) officer
to whom Warn reported his injury on May 20 was not called to give
evidence. Nor was another employee who saw Warn after the incident.
Best Bar's "failure" to do so
led Judge Braddock to "more readily" accept Warn's evidence
about the common use of Robo 45 as he described.
She concluded the OHS officer and the employee
"could not have assisted the defence of [Warn's negligence]
claim" if called.
If it were known certain steel bars would be
lifted manually, which she found was the case, reasonable care would have
included assessing when the 'manual lifting' method was to be used.
It would have assessed how great a weight an
operator might safely lift and identified weight limits based on bars'
dimensions and numbers.
And it would have considered whether there was
"a simple way to obviate dangers, perhaps by using the kicker
differently" or having another device to lift bars or an offsider
available where the method was used.
"None of those steps would be particularly
difficult or expensive," Judge Braddock said.
There was "no evidence" Best Bar had
considered those issues. The witnesses who "might have spoken" of
the parameters or instruction given, particularly the OHS officer, were not
called.
Worker unaware
of congenital vulnerabilities
Back injuries could be anything from a mild,
short-lived muscular strain to seriously debilitating structural damage to
the spine, Judge Braddock said.
"Reasonable care calls for at the bare
minimum an assessment of a risk to limit the chance of the occurrence and
the extent of any injury."
In Warn's case, medical evidence in court made it
clear his spine had "two unusual vulnerabilities, of which he was unaware",
even after the incident occurred. He suffered a disc protrusion.
Judge Braddock said Warn "was unaware of his
back's structure and there can be no suggestion that he was taking
unjustifiable risks with it".
The two problems made Warn's injury and treatment
"more significant and painful". Neurosurgeon Dr Michael Kern,
called as a witness for Warn, said his underlying condition was
asymptomatic.
However, Warn was more prone to developing an
injury with significant physical work due to the condition. Without
the May 20 incident Kern said Warn would likely have remained
asymptomatic.
Judge Braddock said she would hear from the
parties on any consequential orders. (Warn
v Best Bar Pty Ltd [2018], WADC 17,
02/02/2018)
[2]
The Senate Education and Employment References
Committee will inquire into offshore petroleum industry workers' work
health and safety (WHS) despite a Federal Government senator telling the
Upper House an inquiry wasn't needed.
On February 8, Vic ALP Senator Gavin
Marshall successfully moved
that the ctee conduct the inquiry and report by August 14.
Marshall chairs the ctee.
Just before the Senate agreed to refer the matter
to the ctee to conduct the inquiry,
Liberal Qld Senator James McGrath said the govt didn't support the
move because it was "unnecessary". Australia's offshore petroleum
industry was "one of the safest in the world, with some of the lowest
injury rates", McGrath said (see
below).
However, the Senate agreed the ctee should inquire
into the "scope and need for amending and updating any legislative
inconsistencies in the relevant WHS scheme", including any provisions
that need to be updated.
"Appropriate consistency" should be
provided between the federal Offshore Petroleum and Greenhouse Gas Storage
(OPGGS) Act 2006 and the WHS Act 2011, the inquiry terms
of reference said.
Regulators'
collaboration to be examined
Specifically, the ctee (above) is expected to inquire into
legislative changes required to the OPGGS Act to provide for
"appropriate consistency" with the model WHS laws, as revised
in June 2011. And it will explore the need for any legislative
changes that recognise "work is undertaken in remote locations".
The ctee will examine the National Offshore
Petroleum Safety and Environmental Management Authority's (NOPSEMA) and
equivalent state and territory regulators' "effectiveness" in
promoting the WHS of people engaged in the industry's operations.
It will assess NOPSEMA's accountability framework
for WHS matters and whether it needs to be strengthened, as well as its
board's role and structure.
The ctee is expected to report on options for
improving the effectiveness of NOPSEMA and its board's stakeholder
engagement.
How NOPSEMA collaborates and the status of its
"working relationships" with other WHS regulators and bodies,
including Safe Work Australia, will be probed. As will the challenges in
"attracting and retaining health and safety representatives" and
the adequacy of legislative protections afforded to them for performing
their functions.
The ctee's inquiry will examine factors
significantly impacting the WHS of workers in the industry, including
federal, state and territory govt policies.
The ctee has also been asked to inquire into
"relevant parallels or strategies in an international context".
Organisations and individuals are invited
to make submissions to the inquiry, with a closing date yet to be advised.
Regime 'applies
duties of care in more detail'
McGrath (above)
said NOPSEMA regulated health and safety in the industry in its role as
Aust's independent, expertise-based regulator.
Early last year the govt appointed three new board
members from industry, academia and govt to provide advice and
recommendations to NOPSEMA (OHN
05/04/17).
"While broadly consistent with the national
WHS Act", the regulatory regime had additional specific requirements
to deal with high-hazard, high-risk offshore activities, he said. It
"applies duties of care to a more specific set of persons in more
detail".
Marshall responded that the govt should support
the inquiry "to reaffirm those claims".
[3]
On press day (February 14), NT WorkSafe said it
had accepted Downer EDI Mining Pty Ltd's legally binding agreement as an
alternative to prosecuting the company over a 2015 incident in which two
workers lost consciousness.
WorkSafe said the workers were "allegedly
being exposed to a toxic environment".
WorkSafe executive director Stephen Gelding said
the company had not been charged with a Category 1 offence, which enabled
it to "propose an enforceable undertaking".
As part of the undertaking Downer EDI Mining would
"develop health and safety resources for workers and the NT resources
industry", Gelding said.
On press day the regulator said Downer EDI Mining
had committed to spend $136,000 on "outcomes that improve the health
and safety of the NT resources industry and benefit the wider
community".
Promised actions include the company developing
and implementing: a digital pre-task assessment training package for
workers; an e-health campaign on healthy lifestyle, healthy heart, prostate
cancer and mental health for the industry; and a digital personal safety
message campaign for industry.
Downer EDI Mining has also committed to present to
industry "findings of the incident and activities committed to under
the enforceable undertaking". It would support NT mining conferences
and forums, and donate $20,000 to Care Flight NT.
WorkSafe said if a company did not comply with an
accepted enforceable undertaking, the regulator could apply for a court
order to enforce compliance and impose financial penalties, and start
"prosecution for the original alleged contravention".
[4]
A multinational corporation's
"extensive" health and safety system "overlooked" a
corroded outdoor steel storage rack at Botany Industrial Park (BIP) that
collapsed, causing a subcontractor to fall and suffer fatal injuries.
NSW District Court Judge William Kearns has
convicted and fined Broadspectrum (Australia) Pty Ltd $240,000 over the
incident. He also ordered Broadspectrum (formerly Transfield Services
(Aust) Pty Ltd) to pay an agreed $51,000 for the prosecutor's costs.
Broadspectrum pleaded guilty to a charge brought
under 32 of the NSW Work Health and Safety Act 2011 that alleged it failed
to comply with its s19(2) duty at BIP on January 29, 2015.
Transfield had contracted NWEC Pty Ltd to provide
tradespeople as required. At BIP, NWEC engaged subcontractor John Yoon
through his own company, Indong Pty Ltd, as one of five workers assigned to
perform required maintenance services at the park.
Inductions
conducted for multiple hazards
Yoon (above)
was also assigned to work at a Transfield alliance compound within BIP that
comprised a workshop and open yard area used to store equipment and
engineering consumables.
Transfield directed Yoon's pipe work on a
day-to-day basis, Judge Kearns said. Yoon used his skills as a
pipefitter and boilermaker at the site.
Judge Kearns said the rack collapsed due to
corroded base support beams at its structure's anchorage points.
That "placed the structure in danger of total
collapse. Insufficient drainage holes had been provided in the base frame
of the rack".
Before the collapse "no steps had been
taken" to deal with the rack's corroded condition, Judge Kearns
said. "The frame had not been galvanised, painted or otherwise
corrosion-protected."
Judge Kearns considered the company's
"extensive" approach to safety. Broadspectrum resources business
division executive manager, health safety and environment (HSE) Glen
Cowling affirmed evidence of it in an affidavit. Broadspectrum's evidence
on its health and safety system was unchallenged.
The company employed more than 14,500 people in
Australia, including 60 at BIP, when the incident occurred. Its health and
safety system applied over the large workforce.
Judge Kearns summarised the system as including
mandatory safety rules; induction of all workers and others entering the
site; a HSE management system; and HSE made subject to internal and
external audits, daily to annually.
There were ongoing risk assessments; risk
management including workplace inspection checklists, job starts, workplace
inspections and job safety observations; and programs encouraging
leadership in safety.
Yoon had participated in 10 specific inductions
before the incident. Multiple inductions were conducted "because of
the diversity of work and the multiplicity of hazards and risks".
On Jan 28 and 29, 2015 (the day of the fatal incident) Yoon had taken
part in a job safety & environment analysis information session
"covering the task allocated to him".
Judge Kearns said Broadspectrum's approach to
safety was extensive. It could be described as conscientious and diligent.
The case "is one of a good system, but one
which overlooked an item it should have picked up". "The risk was
a serious one", but in a case where Broadspectrum had taken extensive
steps "in its attempts to comply with its health and safety
duty".
After the incident the company issued an alert to
all its operations, held site briefings with employees and contractors,
conducted 1,871 reviews of racking over 198 sites and introduced new
methods and systems.
Judge Kearns took into account the company's prior
conviction in 2005 for an offence in 2002. The incident in that case
involved serious burns.
The prior record "needs to be understood
against a background of the defendant's size and area of operations, much
of which involves hazardous work. It is one conviction only over a period
that goes back at least to 1993", Judge Kearns said. (SafeWork NSW v Broadspectrum
(Australia) Pty Ltd [2018), NSWDC 7,
02/02/2018)
[5]
A Qld magistrate has fined Veolia $200,000 and
recorded no conviction after it pleaded guilty to a Workplace Health and
Safety (WHS) Qld charge following a fatal explosion in a gas kiln in 2015.
Gladstone site project manager Mark Chapelhow died
on October 27, 2015, after the explosion.
WHS Qld said
an unnamed environmental services company (Veolia) was prosecuted for
failing to engage competent persons to design and install a gas system in
the kiln; failing to engage competent persons to ensure operation and
maintenance of the kiln were safe; and failing to provide adequate training
to workers operating the kiln by gas.
The regulator said Gladstone Magistrate Melanie Ho
noted there'd been "a serious breach of the [WHS] Act with
catastrophic consequences".
Magistrate Ho considered the company's early
guilty plea, co-operation during the WHS Qld investigation and good safety
record before the incident.
She also considered safety improvements the environmental
services company had made, including stopping a 'drying out' process
"which on this occasion cost a young father his life".
WHS Qld referred to Magistrate Ho's summary that
said Chapelhow was "at no fault at all during the failed process, but
the 31-year old suffered the most catastrophic of consequences leaving
behind a young family".
"Following multiple issues with the electric
kiln, the company was running behind in contract requirements and had to
seek an extension to provide the first batch of blocks," WHS Qld said.
The company then instructed Chapelhow to switch
over from electric to gas firing, the regulator said.
"Chapelhow was provided with instructions on
temperature and timing for the new process. However, no information was
provided confirming how the gas came to be used in the kiln."
Company
'remains committed to H&S'
WHS Qld (above)
said there were "no procedures, policies or safety information
regarding the use of the kiln. No professionals were engaged to convert the
electric kiln to gas. Management made no further queries regarding the kiln
conversion".
The regulator said Chapelhow died two weeks after
he was instructed to convert the kiln to gas.
"Investigations confirm the kiln was running
on gas when the flame extinguished, gas continued to build up for an
unknown amount of time before Mr Chapelhow attempted to relight it,
resulting in an explosion."
WHS Qld said "expert evidence found
significant issues with the kiln configuration and operation, it was in
very poor condition and had been converted using methods inconsistent with
Australian Standards".
In a holding statement, Veolia Australia and New
Zealand affirmed it had entered a guilty plea.
"At this very difficult time, our thoughts
are with Mark's family and loved ones," Veolia executive GM –
refractories & energy Grant Winn said as the company's spokesperson.
"Veolia remains committed to a no compromises
approach towards the health and safety of our employees and the communities
where we operate," the statement said.
The company would not provide further comment at
this time.
[6]
The Fair Work Commission has found BlueScope Steel
(AIS) Pty Ltd had a valid reason to summarily dismiss a senior employee who
had worked for the company and its predecessors since 1992.
Commissioner Bernie Riordan found gas regulator
and level 5 operator Walter Troiano was in the habit of leaving his shift
early. The cmr held that was "serious misconduct" which put his
co-workers at risk and Troiano's termination was "not harsh, unjust or
unreasonable".
Troiano, employed just under manager level at Port
Kembla Steelworks' coke plant 1, was sacked on June 18, 2017,
because of "inappropriate and socially unacceptable behaviour and
unacceptable timekeeping".
On July 18, 2017, the Australian
Workers' Union, NSW Branch, lodged an unfair dismissal application on
Troiano's behalf. He represented himself during the proceedings in
Wollongong.
Troiano's role at the coke plant was split between
providing annual leave relief for the regulators and undertaking
maintenance activities in the gallery, a restricted space beneath the
battery areas. The regulators worked 12-hour shifts on a 24/7 roster and
did a "hand over with their replacement at the end of every
shift", Cmr Riordan said. The parties agreed the coke Plant was a hot
and dirty place to work. Troiano's alleged "inappropriate and socially
unacceptable behaviour" referred to an allegation Troiano
on June 5, 2017, had defecated in the BlueScope shower.
Troiano denied the allegation. During
investigation of the incident, as a "sackable" health and safety
issue, BlueScope coal plant 1 operations manager Victoria Collins reviewed
Troiano's gate logs from January 1 to June 7, 2017,
which revealed an attendance pattern that raised serious concerns. The gate
log, which shows times and gate locations where employees swipe their cards
on entering and leaving, indicated Troiano had left early more than 20
times without notifying anyone.
Accounting for
all personnel on-site critical
Records (above)
showed Troiano only sought permission on three occasions to leave before
the end of his shift.
Before the cmn, Troiano argued the culture of the
coke plant was for employees' timekeeping to be "treated in a flexible
manner".
BlueScope submitted Troiano's timekeeping was
"poor". Collins testified Troiano had not followed BlueScope's
guidelines when leaving work early.
She referred to a 2014 BlueScope staff notice
which said: "Leaving site without notifying the team leader does not
comply with the intent of the [work health and safety] legislation, where
we are required to comply with the company's safe systems of work which
includes … accounting for all personnel on their site."
Cmr Riordan found Troiano's time sheets clearly
showed a trend he would either leave the steelworks mid-shift or leave
early whenever he was not working as a regulator.
The cmr did not accept leaving, "on what
could almost be described as a regular or systematic basis" that was
neither work related nor urgent personal matters, could be condoned or
regarded as reasonable.
"If there was an evacuation because of an
emergency and Troiano could not be found, his fellow workmates would have
placed themselves in danger to look for him when he had either gone home
early or was off-site dealing with personal issues," he said.
"When working in a hazardous location such as
coke plant 1, the failure to follow important procedures which have a
direct link to safety is, in my view, reprehensible."
Summary
dismissal 'proportionate penalty'
Cmr Riordan
(above) said for a senior and experienced employee, Troiano's
timekeeping was "appalling" and he was satisfied his summary
dismissal was an "appropriate and proportionate penalty for his
conduct".
"Not only is such behaviour fraudulent, but
it creates serious safety issues for Troiano's work colleagues who were
unaware of his non-attendance," he said.
"In a hazardous work location like the coke
plant, I find [Troiano's] actions in deliberately contravening the 'leaving
work early policy' falls within the boundaries of serious misconduct."
(Walter Troiano v
BlueScope Steel (AIS) Pty Ltd [2018], FWC 439,
08/02/2018)
[7]
The National Transport Commission (NTC) has released
an improved Load
Restraint Guide and, for the first time, a companion guide
specifically designed for light vehicles under 4.5 tonnes.
The guides, providing practical advice on how to
safely transport loads, are available for downloading from the NTC website.
NTC chief executive Paul Retter said: "The Load Restraint Guide for
light vehicles presents advice specific [for] light vehicle drivers – such
as tradies, couriers or for the everyday driver taking a load to the
rubbish tip – to make it easier for them to ensure their loads are
restrained safely."
He said the Load
Restraint Guide, aimed at drivers, operators and other
participants in the transport chain of responsibility, was "an
invaluable resource" to ensure loads were correctly restrained to
prevent incidents that could cause death or injury.
"We encourage everyone who is involved in
restraining loads to read the guide and keep it handy as a reference,"
Retter said.
The guide includes information on understanding
load characteristics for choosing suitable vehicles plus equipment and
restraint systems that meet legally required performance standards.
"If you're involved in packing, loading,
moving or unloading any type of vehicle, you are responsible for complying
with load restraint laws," Retter said.
"Restraining your load is not complex, but it
does require training and knowledge.
"This guide will help you to know how to
restrain your load safely through practical guidance material, including
diagrams, in a user-friendly style allowing you to find the information you
need quickly."
[8]
A Fair Work Commission (FWC) full bench has
remitted for redetermination a yard hand's claim he was unfairly dismissed
for serious misconduct.
His former employer contended the worker's
misconduct included but was "not limited to language, intimidation,
bullying and serious safety breaches".
After considering Steric Solutions Pty Ltd's
appeal against Commissioner Leigh Johns' decision it had unfairly
dismissed Minas Trialonas on unproven safety grounds, Deputy Presidents
Anne Gooley and Peter Anderson and Cmr Anna Booth quashed his decision.
They also quashed Cmr Johns' January 24 order to award
Trialonas $25,765.
The full bench was satisfied there was an arguable
case Steric had been denied procedural fairness when Cmr Johns failed
to give it the opportunity to test Trialonas's evidence on all issues
relevant to merit.
On December 6, 2016, Steric's business
owner Leanne Docherty sacked Trialonas after an argument over machinery
obstructing a pathway, when he called her a "backstabbing
c...t".
Cmr Johns found no evidence to justify any
safety concerns, making the dismissal unfair.
But on appeal, the full bench found Steric was
denied procedural fairness when Cmr Johns permitted Trialonas to give
evidence about his dismissal at a preliminary hearing to establish the
identity of his employer, when Steric was not on notice.
As part of his decision to name Steric as
Trialonas's employer, Cmr Johns found Leanne Docherty had sacked
Trialonas but had then reinstated him.
He concluded she sacked him again three days later
on her uncle James Docherty's direction because James was a
part-owner of her only client – not because of safety issues.
The FWC full bench concluded Steric had been
denied procedural fairness, particularly in relation to Cmr Johns'
dismissal reasons.
The DPs and cmr took into account Cmr Johns
had refused Leanne Docherty the opportunity in a second hearing to give
additional evidence about Trialonas's alleged safety breaches.
They agreed Steric was not advised that evidence
given in the first hearing would be relied on in the second. Nor was Steric
advised it could cross-examine Trialonas "about the totality of
evidence he had given at the first hearing".
DPs Gooley and Anderson and Cmr Booth allowed
Steric's appeal. But unable to conclude the denial of procedural fairness
had impacted the hearing outcome, they remitted the matter to a different
cmr to re-determine. (Steric
Solutions Pty Ltd v Minas Trialonas [2018], FWCFB 479,
24/01/2018; Trialonas v Steric [2017], FWC 5068,
29/09/2017)
[9]
March
8: 2018 national major hazard facilities forum,
SafeWork NSW, Sydney. Go to www.safework.nsw.gov.au/news.
April
18: North Qld injury prevention and return to work conference,
WorkSafe Qld, Townsville. Registrations open in early 2018. Go to www.worksafe.qld.gov.au/nq-conference.
[10]
Managing
Editor: Helen Jones. Email:helen.jones@tr.com and phone (02) 8587
7683. Journalist:Eva
Wiland.
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