Update on Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon

Sam Witton writes:

At the resumption of proceedings (previously reported on here) on Friday 9 April 2010, the submission in reply of the prosecutor, WorkCover NSW, that appeared to garner the most interest from the bench was the proposition that section 170 of the Industrial Relations Act 1996 (NSW) (IR Act) would, even if the charges against Mr Chevalley and Mr Grugeon were incorrectly pleaded, allow the IRC the power to amend the charge at any stage of the proceedings “in the interest of justice” which would, necessarily, include the interests of the community.

It was submitted that the reason why the prosecution against Kirk failed was because the case proceeded to conviction before the errors in the charge were realised. Had the charge been amended at some stage prior to conviction, the prosecution would have succeeded.

In addition, it was submitted by the prosecution that section 16 of the Criminal Procedure Act 1986 (NSW) (CP Act) sets out the legislative scheme to ensure that charges are not deemed invalid for want of matters to be proved or implied. It may well be the case therefore that the IRC will find a way through cases that have commenced by using its powers under the IR Act and the CP Act to allow charges to be amended and for the charged to be informed of the measures they could have taken at any stage up to the conviction of the defendant.

Submissions in reply were adjourned until 26 May 2010.


First cabs off the rank: Appeals flowing from Kirk

Sam Witton writes:

Following the High Court decision of Kirk[1] handed down in early February, the return from the Easter break has witnessed hearings in the first of the cases seeking to redraw the accepted lines of occupational health and safety prosecutions in NSW.

Inspector Hamilton v John Holland Pty Ltd

On Tuesday 6 April 2010, the full bench of the NSW Industrial Relations Commission (IRC) sat to hear Inspector Hamilton v John Holland Pty Ltd. The case arises from John Holland’s involvement with the collapse of the Lane Cove tunnel on Sydney’s M2.

Tuesday’s hearing is the latest in a long running battle for the construction group. In a previous outing, John Holland (JH) argued before the High Court that the NSW IRC did not have jurisdiction on the grounds that JH had become a non-Commonwealth licensee[2] in the period after the alleged breach of the Occupational Health and Safety Act 2000 (NSW) (NSW OHS Act). The High Court ruled that for breaches committed by JH prior to it becoming a non-Commonwealth licensee the NSW IRC did indeed have jurisdiction.[3]

JH’s Senior Counsel, Garry Hatcher made submissions in the IRC this week that the charge against JH fails to meet the requirements set down by the High Court in Kirk in that the essential legal elements of the charge do not specify the measures that could have been taken by JH to ensure that they did not contravene the NSW OHS Act. In failing to include the measures that JH should have taken within the charge, Hatcher SC submitted that it was not possible for JH to plead to the charge as it did not have the requisite information to enable it to defend the charge.

Measures that the prosecutor WorkCover NSW stated should have been taken by JH had been included in the particulars of the charge.

Senior Counsel for the prosecutor, WorkCover NSW, John Agius submitted that the Kirk decision should be read as requiring the measures that the defendant could have taken to avoid a breach of the NSW OHS Act as being within the “statement of offence” taken as a whole. It was wrong, Agius SC submitted, to draw an artificial line between the charging provision and the particulars of the charge. The artificial line would have the charging provision sitting “above the line” with the particulars of the charge “below the line”. Agius SC submitted that so long as the measures that the defendant could have taken were contained within the particulars, the statement of the offences met the requirements laid down by the High Court in Kirk: that is, to identify the act or omission of the defendant and the measures that should have been taken but which were not taken by the defendant. Agius SC submitted that the statement of offence against JH exemplified the position that was to be taken post Kirk.

The bench has reserved its decision.

Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon

Perhaps more interestingly, on Thursday 8 April 2010, the full bench was summoned again to hear Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon. The defendants, directors of Hunter Quarries, submitted that the charges laid against them under section 26 of the NSW OHS Act failed to engage the jurisdiction of the NSW IRC in so far as the charge against them failed to specify the measures that could have been taken to avoid a breach of the NSW OHS Act. It was insufficient, Arthur Moses SC submitted, for the prosecution to be able to deem the contravention of the NSW OHS Act against the directors (as section 26 of the NSW OHS Act operates) unless the charge against the directors specified the measures that they could have taken in their capacity as directors to prevent the contravention of the NSW OHS Act.

The Court is due to resume on 9 April 2010 for submissions from the prosecutor in reply.

Both decisions will be eagerly awaited as the NSW IRC grapples to redefine the way in which charges brought by WorkCover NSW are drafted and attempts to apply the statement of principle enunciated in Kirk into a practical application in the NSW IRC.

[1] Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1.

[2] See section 5 of the Occupational Health and Safety Act 1991 (Cth).

[3] See John Holland Pty Ltd v Inspector Nathan Hamilton [2009] HCA 46.

WorkCover NSW Safety Workshops

Elizabeth Wells writes:

During the months of May and June WorkCover New South Wales will be running free safety workshops on a variety of topics throughout New South Wales.

The workshops will canvass issues including manual handling, the delivery of goods safely, workers compensation and workplace safety essentials. The workshops are set down to run for a few hours in locations from Coogee to Coonabarabran and are targeted at small to medium businesses.

The workshops may be used to gain a new understanding on certain topics or to refresh and update your existing knowledge on a topic.

Registrations and more details can be found by clicking on this link to the WorkCover NSW website.

Safety Alert for Wineries

Alena Titterton writes:

In the wake of the tragic fatalities in the Hunter Valley wine region which occurred on January 17 2008, the WorkCover Authority of New South Wales has issued a safety alert for fire and explosion risks at wineries.

The Safety Alert highlights the need for risk assessments to be carried out that identify the hazards associated with winery operations. As the activities of wineries necessitate the storage of flammable liquids, they are highly hazardous workplaces. In such circumstances, care must be taken with likely ignition sources such as welding, grinding and other hot work, which could cause flammable vapours to ignite.

The WorkCover Safety Alert provides the following useful tips for minimising the risk of fire and explosion. As part of the risk management plan for the workplace, all wineries should ensure that:

  • flammable liquids are stored in compliant containers and facilities according to AS 1940:2004;
  • flammable liquids storage areas are clearly marked with warnings and signs (Hazchem) and containers and tanks are clearly and correctly labelled;
  • adequate natural cross flow ventilation is maintained in buildings that involve storage or processing of flammable liquids;
  • any hot work and smoking restriction zones are clearly identified, sign posted and strictly enforced, including zones restricting mechanical grinding and cutting and other ignition sources. See AS 2430.3.3:2004;
  • hot work such as welding or oxy-cutting, is done according to AS1674.1:1997 which lists comprehensive fire and explosion precautions;
  • flammable or toxic materials have been properly removed before work is carried out on an empty container or vessel;
  • all decanting of flammable liquids is carried out in a well ventilated area;
  • transferring of flammable liquids from storage to the point of use is carried out to avoid spillage;
  • the area around storage and processing is kept free of materials that burn;
  • fire safety equipment is provided and maintained, eg alarm systems, fire extinguishers, hydrants and hoses and fire blankets; and
  • workers are instructed and trained in the storage and handling of dangerous goods, the emergency plan and the use of safety equipment.

To read the Safety Alert, please click here.

Air Safety: Responding to Toxic Flight Incidents

Alena Titterton writes:

Aviation safety has been put in the spotlight this week by Sydney Morning Herald revelations regarding incidents of fumes on aircraft flight decks at Qantas.

According to SMH, Qantas was issued with an improvement notice by WorkCover NSW in relation to two incidents, one on 28 July 2007, when the crew on a Qantas flight from Los Angeles to Auckland became aware of an odour on the flight deck. A Qantas flight engineer suffered watery eyes and laboured breathing after inhaling toxic fumes which resulted in a week away from work.

These recent aviation safety incidents highlight the importance of managing safety in design of aircraft. It has been reported that the issue arises as a result of a design flaw in jet aircraft which involves bleeding warm air off engines and pumping it straight into the cabin of the jet without any filtration. If the engine has an oil leak, the warm air that enters the cabin is laced with tricresyl phosphate, carcinogens and organophosphates. These chemicals are known to attack the nervous system and can result in brain damage.

This is not however, a new safety issue for the aviation industry in Australia or internationally. The Commonwealth of Australia’s Senate Rural and Regional Affairs and Transport References Committee undertook an inquiry into the Air Safety and Cabin Air Quality in the Bae 146 Aircraft in October 2000 (the Senate Report). The Senate Report can be found here. The Senate Report stated that:

“Although the incidence of reports of fumes affecting BAe 146 flight and cabin crews has reduced in the last three years, there appears to be no real possibility of such occurrences being eradicated totally as long as air is brought into the jet aircraft by bleeding air from its engines.” (Ch 6, para 6.3 of the Senate Report).

It appears from the recent news coverage that the design flaws which contributed to cases of “aerotoxic syndrome” and toxic fume incidents in the Bae 146 Aircraft have been replicated in Boeing 747, 757 and 767 planes.

The recent toxic fume inhallation incidents provide an opportunity to renew the call to the Civil Aviation Safety Authority (CASA) to re-assess and monitor the issue of aerotoxic syndrome” and toxic fume inhallation under existing civil aviation regulations, as recommended by the Senate Report. Specifically, CASA and the aviation industry should consider whether current reporting requirements in respect of the operation of jet aircraft, specifically related to the effect of cabin and cockpit air quality, are adequate. CASA and the aviation industry in general should address the need for the following in relation to all jet aircraft which were identified by the Senate Report in relation to Bae 146 Aircraft (see Ch 6, para 6.33 of the Senate Report):

  1. a specific national standard for checking and monitoring the engine seals and air quality in all passenger jet aircraft;
  2. maintenance procedures, including specific maintenance procedures for ageing aircraft;
  3. specific, appropriate maintenance and operational procedures for jet aircraft which pay particular attention to the need to ensure that aircraft are maintained and serviced for a minimum operating time to ensure that faults resulting in oil leaks, fumes or smoke are repaired;
  4. the design of incident reports so as to reflect the history of the cabin air problem that was been encountered on the BAe 146 and has been encountered on other jet aircraft;
  5. sources of contamination in the cabin and cockpit environment in jet aircraft to be identified and further evaluated using appropriate sampling and analytical technology for the contaminants which, for example, might result from the burning of fuel and lubricating oil used in jet aircraft engines; and
  6. the need for companies operating jet aircraft in Australia to provide CASA with specific reports on the results of monitoring these matters within an appropriate timeframe, quarterly or bi-annually, in order that CASA can assess the operations of the aircraft.

Clearly, bleeding warm air off engines and pumping it into jet cabins without filtration is a foreseeable risk to the health and safety of both airline employees and non-employees travelling on the aircraft. The issue has to be managed from the design of aircraft through to maintenance, monitoring and reporting. A co-ordinated approach involving CASA as the aviation safety regulator, Boeing and other jet manufacturers, and airlines such as Qantas is required if this serious safety issue is to be resolved.

Charges Against Company Directors Dismissed in Two Cases in the Industrial Court of New South Wales

Katherine Morris and Simone Alphonse write:

In two recent cases, the Industrial Court of New South Wales has dismissed charges against directors for breaches of the Occupational Health and Safety Act 2000 (NSW). In one case, the directors successfully established the defence of not being in a position to influence the conduct of the corporation. In the other case, the Court exercised its discretion under the Crimes (Sentencing Procedure) Act 1999 (NSW) after finding that the director put in place a comprehensive safety plan and took all steps as he saw necessary to ensure that safety matters were properly addressed.

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WorkCover Continues Crackdown on Forklift Safety

Scarlet Reid & Alena Titterton write:

Whilst many companies have utilised forklifts for a number of years, forklifts continue to be the subject of numerous industrial accidents – including fatalities.

The most common scenarios where forklift incidents result in injury or fatality involve:

  • forklifts overturning;
  • bystanders being struck by forklifts; and
  • falls from forklifts.

WorkCover NSW is cracking down on forklift safety and is currently investigating various incidents involving the unsafe use of forklifts in NSW.

In WorkCover’s view, all forklift incidents can and should be prevented. The Chief Executive Officer, of WorkCover NSW, Jon Blackwell, confirmed this view recently when he stated:

“Incidents involving forklifts can be prevented when everyone involved in the workplace cooperates to ensure that the appropriate safety controls are adhered to.”

We recommend taking 5 simple steps to reduce the risk of forklift accidents:

  1. Never leave keys in ignition.
  2. Ensure pathways of travel are clearly marked.
  3. Monitor speed limits and penalise speeding drivers.
  4. Ensure forklifts are only operated by correctly certified operators.
  5. Ensure floors and surfaces where forklifts operate are in good condition.

The risk arising from the use of forklifts can be greatly reduced by following the steps listed above. Organisations should also ensure that they have appropriate safety management systems in place which document safe operating procedures for forklifts. These procedures should include: forklift operation; maintenance; traffic management; contractor management; training; and supervision.

Please contact us should you require assistance in managing your workplace health and safety obligations in relation to forklifts.