Workers also have duties under the WHSA

In a recent tragic incident a worker was fatally injured when a co-worker drove with his raised forklift into the other worker.

The company had a system in place to ensure that workers were competent to operate and not just holding a ‘ticket’. Training included ensuring traveling with the forklift raised no higher than 30cm. The worker had completed a Competency to Operate (CTO) training and was warned on previous occasions as to this dangerous act.

Companies need to ensure that workers are competent to operate plant and need to set and uphold standards of operation. Even to the point of enforcement and where required as a last option dismissal. Workers need to be told that they have this duty and that the Company is not always in the wrong.

Consultation, Cooperation and Coordination

Changes to the WHS Legislation with the Harmonised law appears to be lending more weight to the need for the PCBU to consult, cooperate and coordinate their activities with other PCBUs who have a WHS duty in relation to the same matter, following a recent conviction over a failure to apply WHS Act s46. Consider Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 where the South Australian Industrial Relations Court have fined a not-for-profit organisation $12,000 for failing to comply with this duty.

There are statements from this case that both parties should not assume that there is a clear understanding of the hazards and who is responsible, if there is no consultation, cooperation and coordination.

Have you identified where more than 1 person has a duty in relation to the same matter and has each person with the duty, so far as is reasonably practicable, consulted, cooperated and coordinated activities with all other persons who have a duty in relation to the same matter? Do you have other PCBU’s interacting in your workplace with your workers? Have you met with this PCBU to discuss the work on site other than receipting the contract, insurances and the obligatory site induction with sign off of the SWMS/JSA?

Are your SOP’s still current?

Any document that is developed as part of a safety management system should be reviewed to ensure that is remains consistent with the legislative requirements. Standard Operating Procedures (SOP’s) should be reviewed at least annually to ensure they accurately reflect the task as it is undertaken, and that it identifies and manages all foreseeable risks associated with the task. If the equipment or the work environment where the SOP is undertaken changes, new plant is introduced, or legislation changes occur relating to the task, then the SOP must be reviewed as soon as possible after the change has occurred. Review your documents regularly to keep them accurate and relevant for your staff.

Incident Notification – a near miss carries the same weight as an injury!

Incident notifications to the Regulator are required for a number of notifiable situations being the death of a person, a serious injury or illness of a person; or a dangerous incident. Dangerous incidents are prescribed events that expose a worker or any other person to a serious risk to a person’s health or safety. No actual injury need occur. These near miss situations must be reported.

Under the new Work Health and Safety Act, it is no longer necessary for a person to be killed to receive exposure to the maximum penalty available.  A Category 1 offence (criminal offence with the maximum penalties) occurs when a duty holder, without reasonable excuse, engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness. Hence, no injury has to have occurred!!

Do you know when you must prepare a Safe Work Method Statement?

Persons who are to complete a number of activities that relate to high risk construction work, must develop a Safe Work Method Statement (SWMS). Refer  WHS Regs s291

The SWMS must state:

  • the hazards relating to the high risk construction work and risks to health and safety associated with those hazards; and
  • describe the measures to be implemented to control the risks; and
  • describe how the control measures are to be implemented, monitored and reviewed.

The document must be prepared taking into account all relevant matters including:

  • circumstances at the workplace that may affect the way in which the high risk construction work is carried out; and
  • if the high risk construction work is carried out in connection with a construction project—the WHS management plan that has been prepared for the workplace; and
  • be set out and expressed in a way that is readily accessible and understandable to persons who use it.

Was your workplace built before 2004? Do you have an Asbestos Management Register Plan?

If the workplace is a building that was constructed after 31 December 2003; and no asbestos has been identified at the workplace; and no asbestos is likely to be present at the workplace from time to time, there is no need to have a register. Buildings that fall outside this requirement must still either state the location, type, condition of the asbestos or state that no asbestos or ACM is identified at the workplace.

Do you know your duty of disclosure if you are selling second-hand plant?

As a seller of second hand plant you must ensure that, so far as is reasonably practicable, that any faults in the plant have been identified. The seller must then ensure that the person to whom the plant is supplied is given written notice:

(a) of the condition of the plant; and
(b) of any faults identified under subsection (1); and
(c) if appropriate, that the plant should not be used until the faults are rectified.

This requirement does not apply to plant to be used for scrap or spare parts. In this instance the supplier of plant to be used for scrap or spare parts must, before the plant is supplied, inform the person to whom the plant is supplied, either in writing or by marking the plant, that the plant is being supplied for scrap or spare parts and that the plant in its current form is not to be used as plant.

Recent Prosecutions

Prosecutions are an essential part of the Department’s role as a regulator and assist in prevention by deterring others from committing workplace health and safety offences. Workplace Health and Safety Queensland aims to ensure prosecution activity is strategically targeted for maximum impact and is supported by evidence based research to help target identified areas of concern.

Year Total No. of Prosecutions Completed % Successful Prosecutions Fine$ Costs$
2006-07 126 81% 2,952,950    232,722.00
2007-08 105 83% 2,788,700 84,193.25
2008-09 146 90% 3,312,750    282,281.23
2009-10 117 89% 3,918,350    414,347.54
2010-11 99 83% 2,819,900    257,874.10
2011-12* 98 73.4% 2,924,400 236,830.68
2012-13** 105 63% 2,328,500 221,395.95
2013-14*** 40 67.5% 1,722,500 80,864

* These figures include three (3) prosecutions conducted by Workplace Health and Safety Queensland’s Legal and Prosecution Services under the Electrical Safety Act 2003.

** These figures include six (6) prosecutions conducted by Workplace Health and Safety Queensland’s Legal and Prosecution Services under the Electrical Safety Act 2003.

*** These figures were for the 2013-2014 financial year to date as at 31/03/2014.  The figures include two (2) prosecutions conducted by Workplace Health and Safety Queensland’s Legal and Prosecution Services under the Electrical Safety Act 2003.

 

Finalised prosecutions

The following list shows Workplace Health and Safety finalised prosecutions for the period 1 January 2014 – 30 March 2014.

Name of Defendant Section of Act or Regulation Fine
1 Marglen Pty Ltd s.32 WHSA 2011– Duty 21(2) $120,000
2 N.K. Collins Industries Pty Ltd s.28(2) WHS Act 1995 $50,000
3 Spencer, Hugh John s.32 WHSA– Duty 27(1) Defendant placed on 12 month good behaviour bond with a surety of $10,000
4 T & S Trees Pty Ltd s.32 WHSA 2011- Duty 19(1) $45,000.00 fine plus court ordered undertaking for 12 months with a surety of $10,000
5 Teys Australia Biloela Pty Ltd s.28(1) WHS Act 1995 $15,000
6 Thomson, Ian Craig s.32 WHSA 2011– Duty 21(2) $10,000
7 Torrisi, John Joseph s.32 WHSA 2011– Duty 19(1) Defendant placed on 12 month ordered undertaking with a surety of $20,000
8 Victus International Pty Ltd s.32 WHSA 2011– Duty 19(1) $27,500

Recent Incident Alert! Brace yourself..

A school had an occurrence recently which they deemed as a notifiable dangerous incident  ( WHS ACT 2011 section  37 – A serious risk to a person’s health and safety emanating from the release from height of any plant, substance or thing ….) which they reported to Worksafe Queensland.  A bracing arm in a shade structure fell to the ground from a height of about two metres pivoting around an end that was still attached to a post.  Fortunately, the incident happened at a time when students were in class.  On investigation, the nut securing the bolt to the post and arm was missing.  This event is not a “one off” as we are aware of at least one other incident at one of our school clients where a brace fell and struck a student.  A review of both incidents indicates the possibility that in certain situations the wind across tight shade sails can make the whole structure vibrate and this vibration can in turn loosen fixings.

Action:

1. Ensure lock tight nuts are fitted throughout the structure and each nut is torque sealed to make inspection easy.
2. Ensure that the integrity of fittings on shade structures is included in your playground equipment checklist.
3. Ensure your playground equipment inspections are being completed weekly and recorded.

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