OH & S Update

• December 2005

BUILDING & CONSTRUCTION INDUSTRY

The Commonwealth Parliament passed the Building and Construction Industry Improvement Act 2005 (the Act) on the 7th September 2005. The Act is a response to the Cole Royal Commission, which aims to introduce a robust enforcement regime to combat the industry’s lawlessness and improve current patterns of conduct.

The Act effectively increases workplace safety by taking intervention to a new level. Investigative powers granted by the Act are particularly onerous and heavy penalties apply.

Australian Building & Construction Commissioner

The Act established the Office of the Australian Building and Construction Commissioner (ABCC) which is an independent statutory agency, responsible for investigating, enforcing and prosecuting any potential breaches of the Act.

Fully operational as of 1 October 2005, the ABCC has been granted powers to conduct investigations. Inspectors will monitor both metropolitan and regional building sites throughout Australia to ensure compliance with federal workplace laws. In addition to this the Commissioner will be able to give written notice requiring production of documents, information, and attendance of a person to answer questions.

The powers are particularly wide in scope and heavy penalties will be imposed. The Act increases maximum fines for offences similar to offences under previous legislation from $33,000 to $110,000 for a corporation, and from $6,600 to $22,000 for a non-corporation. In addition to this the penalty for a breach of the provisions requiring compliance with a notice from the Commissioner is 6 months jail.

Federal Safety Commissioner

In order to improve OH & S the Act also sets out the functions, duties and powers of the Federal Safety Commissioner (FSC).

The FSC will assist in implementing a new code on OH&S and industrial and construction practices, which will supersede and expand upon the 1999 National Code of Practice for the Construction Industry. In particular, the FSC ensures that contractors who want to work on Australian Government projects make OH&S a key factor in the way they go about their business.

The new legislation effectively adds to the National Construction Standard produced by the National Occupational Health & Safety Committee (NOHSC) in April, earlier this year.

Implications

The application of the Act is wide, covering all activities within the building and construction industry. Employers will need to revise all areas of workplace safety to ensure they comply and that information regarding OH & S procedures is readily available.

DRIVER FATIGUE REGULATION

In June, earlier this year, the government announced the Occupational Health & Safety Amendment (Long Distance Driver Fatigue) Regulation 2005 (the regulation) which will commence on 1 March 2006.

The regulation states all employers must prepare a ‘Driver Fatigue Management Plan’ (DFMP) for each employee who transports freight long distance. The regulation is specific to transport freight by heavy truck (GVM 4.5 tonnes+) which travels more than 500km in one journey.

The regulation effectively makes it an offence for an employer to permit an employee to transport freight long distance unless there is a DFMP. Failure to comply with the new regulations may impose fines of up to $27,500.

Who owes a duty?

The regulation imposes obligations on:

  • Employers of truck drivers
  • Head Contractors who engage self-employed drivers; and
  • Consignors and Consignees of goods that are being transported

Driver Fatigue Management Plan

The DFMP must target and address the risks associated with fatigue inherent in transporting freight over long distances where it is practicable to do so.

The regulations are considered fairly onerous because responsibility falls not only onto employers or head contractors, but also onto the clients and customers of long-distance freight haulage business.

Implications

The implications for employers in the trucking industry are that they will be required to:

  • develop fatigue management plans to comply with legislation;
  • review contracts for the transportation of freight over long distances to eliminate risk of fatigue which their drivers may be exposed to; and
  • provide further education and training to employees regarding driver fatigue.

MANUFACTURING & DESIGN

A recent decision in the Industrial Relations Commission of NSW demonstrates how broad and far-reaching obligations of designers, manufacturers and suppliers can be. In addition to this the case reinforced that interstate manufacturers are bound by NSW legislation.

Obligations

OH & S legislation extends to businesses that ‘design, manufacture or supply’ any plant, machinery, equipment, appliances or substances’ and imposes obligations on them to:

  • Ensure that machinery and equipment is safe;
  • Ensure that machinery and equipment is without risk to health when used properly; and
  • Provide for, or arrange the provision of, adequate information about machinery and equipment to persons to whom it is to be supplied

Facts

Lyco Industries Pty Ltd is a manufacturer based in Victoria that sells its products to an agricultural equipment supply depot in NSW.

In May 1999 an inexperienced casual employee was fatally injured whilst operating a Lyco Industries post driving machine. There were two people operating the machine but no eyewitness to the event. The Commission concluded the machine was unsafe because its guarding had been bent, making it possible for someone else besides the operator to come into contact with the falling hydraulic hammer. In addition to this the Commission found the instruction manual was confusing in relation to guarding, and was written with only the operator safety in mind and not the safety of others.

The defence for Lyco Industries highlighted that the fatality was not definitely caused by the machine, and the machine had left Lyco Industries undamaged. In addition to this Lyco Industries argued that the NSW courts had no jurisdiction over a Victorian manufacturer. However the Commission was not swayed and found Lyco Industries liable.

Implications

The Lyco Industries case highlights that designers, manufacturers and suppliers need to be particularly careful and should:

  • Conduct regular audits of the design from the point of view of persons who will not only use them but also come into contact with them
  • Review and update instruction manuals, ensuring it covers those who not only operate the machine but others that may come into contact with it.
  • Ensure businesses that supply or distribute your products are checking for damage that might occur in transit; and
  • Be aware of OH & S legislation in all jurisdictions where their products are supplied.

FIREWORKS PROSECUTION

On 8 December 2005, the Chief Industrial Magistrate’s Court in Newcastle handed down a 12-month jail sentence, for aiding and abetting the illegal possession and sale of display fireworks.

On the 27 December 2002, a man lost his thumb, index finger, middle finger and part of his ring finger, on his left hand when a mortar shell he had illegally purchased from the offenders store, exploded. A similar incident then occurred on the 5 January 2003.

This is the first time that someone in NSW has received a jail sentence for fireworks offences under dangerous goods legislation. In addition to this the WorkCover prosecution assisted in closing down a major NSW supplier of illegal fireworks before the holiday season.

Essentially this case serves as a significant factor in helping to ensure members of the public are not injured through irresponsible use of fireworks, and a timely reminder that you can never be too careful during the festive season.

This publication contains general information only. It is not provided as legal advice. Professional advice should be taken before any course of action is pursued, or any information herein relied upon.