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following terms, without the prior written permission of Workplace Safety Australia. Paid subscribers of Workplace Safety Australia Pty Ltd who

receive this OHS Alert as part of their subscription may forward or copy this publication within their business or organisation only pursuant to the

terms of their subscription. Under no circumstances should this OHS Alert be distributed or copied to any person, or organisation, or any

other entity, outside of the subscriber organisation.

In This Alert…

Editorial

Legislative Changes and Proposed Legislative Changes…

o CTH WHS Regs Amended to Clarify Extra-Territorial Effect

o QLD Gas Safety Regs Updated

o NSW Licensing Changes Affect P2 Drivers

In Other News…

o TAS – Reminder on Changes to Dangerous Goods Rules

o QLD Theme Park Audit to be Completed by End of November

o WorkSafe WA Warning on Cyclone Preparedness

o WA Drug and Alcohol Testing for Rail Sector

o QLD Man Charged with Double Manslaughter After Workplace Deaths

o Part 132 Manual of Standards for Warbirds and Limited Category

Aircraft

o National Asbestos Awareness Week

o ICARE Foundation Launched in NSW

o Safety Alert from VIC – Temporary Site Structures

o NHVR Releases Podcasts to Assist ‘Making Modifications Safer’

o Radiation Health and Safety Advisory Council – Vacancies

Open for Comment…

In the Courts…

o Policy Ambiguous, Not Communicated and Not Enforced

o SafeWork SA v DiCesare

o WorkSafe VIC v Robot Trading Co

Note: Web hyperlinks are reproduced in their full text throughout Workplace Safety Australia’s Alerts. If you are reading an electronic copy of

this Alert, you should be able to access the pages and documents by clicking the links (holding “control” and left mouse clicking is the usual

way). However, some subscribers find that the links do not work effectively by simply clicking. If this is the case, simply highlight the link, copy

it, and ‘paste’ it into your web browser.

WORKPLACE SAFETY AUSTRALIA PTY LTD

Safety Alert: 45-2016 23 November 2016

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Editorial

In our ‘In the Court’s’ section in this week’s WHS Alert we look at two cases involving

forklifts. Sadly, even after hundreds of similar cases across decades, accidents are still happening regularly involving forklifts and other similar items of mobile plant.

In the major case, we report on (Safe Work (NSW) v Tamex Transport Services Pty Ltd) a worker who received serious head injuries when he was struck on the head by a storage

cage door that came loose when being removed from his truck.

The employer had a SWMS, but the Court concluded that the way it was worded meant that if it had actually been followed it would not have resulted in a safe work method. But leaving

aside that issue, the Court also concluded that the evidence showed that a number of the workers had not seen key workplace policies. A good number of them were kept in a lunch room into which workers (including the worker who had been injured) did not go. The

policies had not otherwise been brought to the workers’ attention.

To compound these problems, there was no supervision to ensure that the safe work methods recorded in policies and other documents were applied by workers in the workplace.

The case is also noteworthy for the company’s defence (among others) that it could rely on

the two workers’ experience. Both had forklift licenses and many years’ experience in the work. The words of the Judge will be familiar to all readers:

The defendant’s duty to ensure safety was non-delegable. The defendant could not simply rely on the common sense of the workers, the fact that they had obtained

forklift licences many years ago, or that there had been no accidents in the past. Regards,

Go back to ‘In this alert’

Kim Schekeloff

Director Workplace Safety Australia Pty Ltd

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Legislative Changes and Proposed Legislative Changes…

CTH WHS Regs Amended to Clarify Extra-Territorial Effect

Relevance: Commonwealth

Title of Instrument: Work Health and Safety Amendment Regulation 2016 (No. 2)

Amending: Work Health and Safety Regulations 2011

Commencement: 12 November 2016

Industries: All Industries and Businesses that Operate Outside of Australia

Keywords: WHS Regulations – Extra-Territorial Application

Amendment Regulation located here

Section 12F(3) of the Commonwealth Work Health and Safety Act extends the operation of offences under the Act extraterritorially. Because ‘this Act’ is defined to include the Regulations, offences against the Regulations are similarly extended extraterritorially,

unless a provision provides otherwise.

According to the government there was a lack of clarity regarding how certain Regulations apply outside Australia. It may not be reasonably practicable to comply with some

Regulations because:

They refer to (or make underlying assumptions about) Australian institutions,

conditions or technical standards (e.g. electrical networks, labelling requirements

for hazardous chemicals); and

Are expressed to apply absolutely and without qualification.

There may be some circumstances when the Australian-specific requirements — for example

relating to electrical networks — are not capable of application elsewhere. Some things may be beyond the duty holder’s control to do. For example it may not be reasonably practicable to provide foreign contractors with Australian-based ‘high risk work licences’, training or

medical examinations. This requirement is not consistent with a key objective of the Act, which is to only require persons conducting a business or undertaking to do what is

reasonably practicable, including what is within the duty holder’s control to do. The Work Health and Safety Amendment Regulation 2016 (No 2) clarifies this situation by

inserting new provisions into the Regulations, to clearly list the Regulations that apply outside Australia.

Regulations that are not listed in the Amendment Regulation do not apply outside Australia.

Importantly, the amendment does not affect the scope and application of the primary duty

under the Act—which is to do what is reasonably practicable to ensure the health and safety of workers, including those located outside Australia. This recognises that duty holders must do everything which is within their control to meet the requirements under the Act.

Go back to ‘In this alert’

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QLD Gas Safety Regs Updated

Relevance: Queensland

Title of Instrument: Petroleum and Gas (Production and Safety) Amendment Regulation

(No. 2) 2016

Amending: Petroleum and Gas (Production and Safety) Regulation 2004

Commencement: 11 November 2016

Industries: Gas Production and Supply

Keywords: Gas Safety; Fuel Gas – Supply; Gas Wells – Vertical Well Accuracy

Amendment Regulation located here

The policy objective of the Petroleum and Gas (Production and Safety) Amendment Regulation (No. 2) 2016 is to amend the Petroleum and Gas (Production and Safety)

Regulation 2004 to:

Adjust requirements for supplying fuel gas to better align with safety risks;

Reduce vertical well accuracy requirements; and

Update provisions which reference redundant and outdated documents. The

Petroleum and Gas (Production and Safety) Amendment Regulation (No. 2) 2016 also corrects a wrong section reference in the Petroleum and Gas (Production and

Safety) Regulation 2004.

Supplying Fuel Gas Section 92 of the Petroleum and Gas (Production and Safety) Regulation 2004 sets out safety requirements for fuel gas network operators before they supply fuel gas to a gas

system for the first time. In the case of liquefied petroleum gas (LPG) supply, the requirements also apply whenever a different person (eg a new supplier) first supplies the

gas (e.g. retail churn).

The safety requirements include ensuring that a test point is installed; fuel gas is supplied at the correct pressure; and the gas system is checked for any significant gas leak by a licensed gasfitter undertaking a pressure test in accordance with Australian/New Zealand

Standard 5601 Gas Installations 2013 (AS/NZS 5601). The application of these requirements to the LPG retail churn scenario is inconsistent with requirements for natural

gas, for LPG suppliers in other jurisdictions and for LPG cylinder exchange where the supplier does not change. These requirements have been assessed as onerous for low risk scenarios in which the gas supply is not interrupted but the cylinder exchange is undertaken by a new

supplier. The prescribed method for checking gas systems for significant gas leaks was also assessed. This assessment was done in view of other methods demonstrating they can

achieve the intended safety outcome associated with undertaking checks for gas leaks. The Petroleum and Gas (Production and Safety) Amendment Regulation (No. 2) 2016

therefore amends section 92 of the Petroleum and Gas (Production and Safety) Regulation 2004 to simplify regulatory obligations for fuel gas network operators to be proportionate

to the level of risk. The amendments also remove unnecessary requirements that would increase compliance costs and possibly affect consumer choice of the LPG supplier.

The amendments provide more flexibility to fuel gas network operators for checking for leaks in gas systems by allowing them to develop an alternative method under their safety

management system. The relevant safety management system for the fuel gas delivery

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network could detail how such a gas leak check is validated and how it is to be conducted. If the fuel gas network operator elects to take this approach, amendments to section 88 of the Petroleum and Gas (Production and Safety) Regulation 2004 require records to be kept

about the method used to check the gas system and the result of the gas leak check. The option for checking a gas system by undertaking a pressure test in accordance with AS/NZS

5601 continues. The Petroleum and Gas (Production and Safety) Amendment Regulation (No. 2) 2016 also

amends section 92 of the Petroleum and Gas (Production and Safety) Regulation 2004 to ensure consistency of requirements for routine LPG cylinder exchanges (no interruption to

supply) regardless of whether or not the supplier changes (retailer churn). Prior to the amendments, if an LPG supplier provided LPG to a customer the requirements for the test point, fuel gas pressure confirmation and the leakage test did not apply for a routine cylinder

exchange. However, these requirements did apply to a cylinder exchange where the customer elected to change from Supplier A to Supplier B. The amendment to section 92 of

the Petroleum and Gas (Production and Safety) Regulation 2004 allows an LPG supplier to undertake cylinder exchange in either of the above scenarios with no obligation to meet the test point, fuel gas pressure and leakage check requirements. However, the requirements

remain in place for situations where there is an interruption to supply and the gas system stops being pressurised (for example, a cylinder has been removed for a purpose other than

exchanging the cylinder).

Vertical Well Survey Accuracy The Petroleum and Gas (Production and Safety) Regulation 2004 requires certain wells and bores that intersect a coal seam to have a downhole survey that meets certain levels of

accuracy. The downhole survey requirements aim to ensure sufficient information is recorded so that the estimated location of the intersection of the prescribed well or bore

with the coal seam can easily be determined at a later date. The current downhole vertical well survey accuracy requirement is set at plus or minus one degree in azimuth.

In 2013, the Queensland Government directed the Queensland Competition Authority to conduct a review into the regulation of the coal seam gas industry. In response to a

stakeholder submission, the January 2014 final report recommended that ‘the Petroleum and Gas Regulation 2004 be amended to provide for an appropriate accuracy requirement (plus or minus two degrees in azimuth) for surveying vertical wells with fewer than six

degrees in inclination, subject to there being no safety-related concerns.’

The Amendment Regulation therefore amends section 57 of the Petroleum and Gas (Production and Safety) Regulation 2004 to reduce the downhole survey accuracy requirement for vertical wells (drilled less than six degrees in inclination) from plus or minus

one degree to plus or minus two degrees in azimuth. The change accommodates standard industry downhole survey measurement techniques and does not adversely affect safety

outcomes. References to Outdated Documents

Section 8 of the Petroleum and Gas (Production and Safety) Regulation 2004 prescribes the quality for fuel gas that is supplied to consumers. Section 8(1)(a) of the Petroleum and Gas

(Production and Safety) Regulation 2004 provides for the quality of LPG for use as an engine fuel (autogas) and references a document published in 2000 by the Australian Liquefied Petroleum Gas Association. This provision is redundant as the Commonwealth Government

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sets the quality of fuel for engine use in the Fuel Standard (Autogas) Determination 2003 made under the Fuel Quality Standards Act 2000 (Cth). Section 8(1)(b) of the Petroleum and Gas (Production and Safety) Regulation 2004 provides for the quality of LPG for heating

use and references a document published in 2000 by the Australian Liquefied Petroleum Gas Association. The successor of Australian Liquefied Petroleum Gas Association, Gas

Energy Australia has advised that the document referenced in section 8(1)(b) of the Petroleum and Gas (Production and Safety) Regulation 2004 has been withdrawn and is no longer supported. An alternative provision is required to prescribe the quality of LPG for

heating purposes.

Go back to ‘In this alert’

NSW Licensing Changes Affect P2 Drivers

Relevance: NSW

Title of Instrument: Road Transport Legislation Amendment (Mobile Phones—P2

Licences) Regulation 2016

Amending: Road Transport (Driver Licensing) Regulation 2008

Commencement: 1 December 2016

Industries: All Industries Where Road Vehicles are Used

Keywords: Road Safety

Amending Regulation located here

The objects of the Road Transport Legislation Amendment (Mobile Phones—P2 Licences) Regulation 2016 are to amend the Road Rules 2014 to extend the restriction on drivers who are holders of learner or provisional P1 licences from using a mobile phone while driving a

vehicle (whether or not the mobile phone is held by the driver) to include drivers who are holders of provisional P2 licences, and to make consequential amendments to the Road

Transport (Driver Licensing) Regulation 2008.

Go back to ‘In this alert’

In Other News…

TAS – Reminder on Changes to Dangerous Goods Rules

From 1 December 2016, minor amendments will be introduced into the Dangerous Goods

(Road and Rail Transport) Regulations 2010. These will adopt:

Two amendment packages developed by the National Transport Commission. These

include changes to the Australian Dangerous Goods Code; A small number of issues about transporting explosives that will narrow the scope

of licensing requirements, therefore reducing regulatory burden; and Clarify anomalies in referencing the Australian Explosives Code.

There should be no practical or operational change required by transport operators as a result of these amendments.

Both the driver and vehicle must be licensed by WorkSafe Tasmania when the quantities of dangerous goods transported by road exceed:

500 litres or kilograms for a container;

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3,000 litres for an IBC (Intermediate Bulk Container), not filled or emptied on the vehicle;

Risk category 2 or 3 load for Class 1 (explosives).

To be eligible to apply for a licence, you must:

Meet specified medical criteria and training standards; Have a good driving record for the 5 years before you apply.

WorkSafe will not grant you a licence if:

You have been found guilty by a court in Australia of an offence that makes you unsuitable to be the driver of a vehicle transporting dangerous goods;

Your driver’s licence has been cancelled or suspended on a ground that makes you

unsuitable to be the driver of a vehicle transporting dangerous goods; You are subject to a court order prohibiting you from being involved in transporting

dangerous goods by road.

Go back to ‘In this alert’

QLD Theme Park Audit to be Completed by End of November

The Queensland State Government’s safety audits of Queensland theme parks are on track to be completed by the end of the November according to Queensland Industrial Relations

Minister Grace Grace. As part of the audit, workplace safety investigators have completed a full audit of amusement rides at Movie World:

The amusement ride audits at Movie World have been completed, with all 16 rides cleared. Our inspectors found Movie World has robust systems in place with regards

to the training of operators, the maintenance of plant and all areas that formed part of the audit process. I want to thank Movie World management for their cooperating fully with our auditors as they carried out this important work.

The safety audits are ongoing at Dreamworld and White Water World, and

inspectors have now commenced audits at Wet’n’Wild. From next week, safety inspectors will move on to Sea World, Aussie World and Australia Zoo for the next phase of the audits. We expect all theme park audits to be complete by the end of

November.

Go back to ‘In this alert’

WorkSafe WA Warning on Cyclone Preparedness

Since WA is now well into cyclone season, businesses throughout the North-West of the State have been reminded to ensure that contingency plans have been established and are

in operation. According to WorkSafe Acting Executive Director Chris Kirwin it is crucial that everyone on sea and on land knew what to do when there was a cyclone in the area:

Under workplace safety and health laws, employers must have adequate plans in

place and provide adequate training to protect workers in the event of a cyclone. Bureau of Meteorology has forecast an above-average number of tropical cyclones

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in the waters off the North-West coast this season. But it only takes one cyclone to cause significant damage and suffering, as demonstrated by the tragic circumstances surrounding Cyclone George in 2007. It’s extremely important that

everyone in a workplace – regardless of their employer – knows exactly what he or she needs to do in the event of a cyclone threat. This is particularly important on

sites with employees of several companies where coordinated plans must be in place.

A WorkSafe construction inspector will be visiting the Pilbara region in the near future, and he will be checking that cyclone contingency plans are in place on the

construction sites he visits, an added incentive to ensure that preparations have been made.

The Alert notes that fishing vessels need to keep a list of sheltered anchorages and have information on how to use them, along with a specific action plan for each vessel depending

on the distance from the cyclone and safe havens. For the fishing, charter and recreational sectors, the Department of Transport has cyclone

contingency plans for regional boat harbours at Point Samson (Johns Creek), Onslow (Beadon Creek), Exmouth, Carnarvon, Coral Bay and Denham.

Further information on cyclone contingency plans can be obtained by telephoning WorkSafe

on 1300 307877, or on WorkSafes’ website here. Information on Department of Transport plans can be obtained by telephoning the department on 9435 7524 or on the website here.

Go back to ‘In this alert’

WA Drug and Alcohol Testing for Rail Sector

ONRSR is rolling out a drug and alcohol testing program in Western Australia. The program aims to improve safety through deterrence, while monitoring compliance with

the Rail Safety National Law.

Important information for WA operators can be found in a fact sheet that can be found here, and slides from November’s ONRSR drug & alcohol testing program presentation can be downloaded here.

During the program, ONRSR-appointed Medvet Science Pty Ltd testers will arrive

unannounced at sites and test workers for drugs and alcohol. There are a number of offences in relation to the D&A testing program:

Presence of drugs or alcohol;

If a RSW refuses a test; If a RSW does not follow the direction of an authorised person.

The maximum penalty for these offences is $10,000.

Go back to ‘In this alert’

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QLD Man Charged with Double Manslaughter After Workplace Deaths

The ABC reports that Claudio D’Alessandro has been charged with two counts of

manslaughter in the Brisbane Magistrates Court on Wednesday.

The charged follow an incident in October 2016 when two workers – Ashley Pengana Morris and Humberto Ferraira Leite – were crushed to death under a concrete slab while working on the Eagle Farm racecourse redevelopment.

A Queensland Ambulance Service officer who attended at the scene at the time reported:

It looks like they were undertaking some large construction work involving some

large cement slabs. As a result of one of the slabs being moved, it's crushed the two gentlemen who were down in a hole at the time. We sent one of our staff down into where the two workers were to identify [them] and to see if we could render

any aid. Unfortunately, they were both deceased at that time – so very unfortunate and very distressing for the officers concerned.

A police affidavit presented to the Brisbane Magistrate’s court stated that the two workers were working in a pit under D’Alessandro's instructions trying to lower the concrete walls

when they began to collapse:

At about 3:40pm, D’Alessandro was in charge of two workers in the pit and to manually assist the correct positioning of the fourth wall as it was lowered into position. The only means of entrance and egress was a steel ladder to the top of

one of the walls (panel 2).

The pit was only slightly larger than the box made by the walls and the workers had no means of escape other than the ladder. Panel 2 began to fall forward and the two workers managed to scale the ladder on that wall and ride down and jumped

onto its back as it fell.

The failure of this wall caused another wall (panel 1) to immediately fall forward as it was no longer supported. The two workers were unable to escape the second wall falling and were crushed to death in between the two panels.

The ABC reported that the police prosecutor gave details to the court of Mr D’Allessandro’s

work system in attempting to correct the placing of the panels on a concrete pad:

A series of timber and plastic packers were utilised on top of the gravel base in an

attempt to overcome the inaccuracies on the concrete levelling pad. The system in fact had no bracing integrity and was not designed or adopted by an engineer in

any manner whatsoever.

Mr D’Alessandro was granted bail but was required to surrender his passport and must

report to police twice a week as part of his bail conditions. The matter will be back in court in December.

Go back to ‘In this alert’

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Part 132 Manual of Standards for Warbirds and Limited Category Aircraft

The Part 132 Manual of Standards Instrument 2016 has been approved and will come into

effect along with the Civil Aviation Legislation Amendment (Part 132) Regulation 2016 on 28 January 2017.

Together the Part 132 Regulation and Manual of Standards (MOS), which regulate warbirds and limited category aircraft, set out:

The conditions under which various limited category aircraft operations may be

conducted;

The responsibilities of people and organisations involved in limited category aircraft

operations;

The offences that relate to breaching the conditions for limited category aircraft operations.

The Part 132 Regulation and MOS preserve requirements that existed under previous

Regulations (262AN and 262AM of the Civil Aviation Regulations 1988), but contain some important administrative and safety enhancements. Part 132 introduces new permissions for air racing and glider towing by limited category aircraft and provides authorisation for

personal flights. Warbirds currently operating on an experimental certificate will transition to a limited category certificate.

The new rules also provide more flexibility and clarity around recreational use and

operational limits for limited category aircraft. Transition to the new rules is required by 28 July 2017.

More information can be accessed here.

Go back to ‘In this alert’

National Asbestos Awareness Week

National Asbestos Awareness Week is 21–25 November and aims to raise awareness of

asbestos, and where asbestos materials could be found within your work or home space. According to Dr Paul Taylor, Director of Occupational Hygiene at Safe Work Australia:

Being asbestos aware is critical to complying with your duties under the model WHS Regulations. Identifying asbestos and managing the risks of exposure in the

workplace will ensure that workers – and others including workers’ families – are protected from the adverse effects of asbestos exposure.

Dr Taylor said that if you are not sure whether something is an asbestos containing material, assume it is until you have it confirmed by an expert and if it needs to be removed, engage

a licensed asbestos removalist.

Dr Taylor also emphasised the importance of keeping an asbestos register for your workplace:

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You must keep it up to date and store it in an accessible place. Make sure your workers look at the register before working on anything that might contain asbestos.

A number of activities will be held across the country to raise awareness of asbestos safety. To find out more, visit the Asbestos Safety and Eradication Agency website here.

Go back to ‘In this alert’

ICARE Foundation Launched in NSW

The NSW Government today launched the icare foundation, a new initiative aimed at

prevent injury and improve the wellbeing of people injured at work or on the road. The Foundation will invest $100 million over 5 years focusing on new research, family support

programs, and better partnerships with businesses and community organisations. NSW Minister for Finance, Services and Property Dominic Perrottet said the launch reflected icare’s mission to provide the best care to some of society’s most vulnerable people:

Without the right care, recovery can be a long, dark road for the seriously injured, their families and the whole community. The icare foundation will work to ensure

the care we provide helps to overcome those challenges, offering hope for a fulfilling future. Whether it is funding new research for innovative treatments,

support programs for families caring for injured people, or improving access to innovative recovery programs in regional areas, this initiative will mean better care and support for injured people in NSW.

While icare is responsible for administering compensation and care schemes for people injured at work or on NSW’s roads, the Foundation will specifically work with partners to

prevent injury through targeted education programs, while also investing in initiatives to overcome key issues that can hamper recovery for the most severely injured.

The Foundation’s initial projects include;

Expanding the Australian Paralympic Committee Speakers Program, providing more businesses with workplace safety and injury prevention training from Paralympians;

Partnering with Spinal Cord Injuries Australia (SCIA) to bring SCIA’s NeuroMoves

program to seriously injured people in regional areas, starting with Lismore;

Partnering with the Mental Health Commission to raise awareness of mental health

issues and provide more support, particularly to people in small businesses;

Partnering with Carers NSW to deliver individualised carer support programs for

families and carers of people who have sustained serious injuries.

The Foundation will be chaired by icare Board Non-Executive Director Elizabeth Carr.

Go back to ‘In this alert’

Safety Alert from VIC – Temporary Site Structures

A recent Alert from WorkSafe Victoria warns of the danger to workers and the public from poorly designed, constructed or maintained temporary structures on construction sites.

Recent Victorian incidents involving the failure of temporary site structures include:

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A 30m long hoarding inside a shopping mall that collapsed, injuring five passing shoppers;

A large timber and corrugated sheet awning that detached from site sheds and blew

into a busy street;

A large section of reinforced plywood hoarding that detached from its bracings, fell

and struck a passing pedestrian;

A perimeter hoarding that collapsed during high winds, breaking the arm of a

pedestrian.

The Alert notes that the windiest time of year in Victoria is typically early Spring, with wind gusts regularly exceeding 120km/h. Temporary site structures should be able to

resist these and other serious weather conditions. Structural failures of poorly designed, constructed or maintained temporary site structures have the potential to cause death or serious injury to workers and the public.

Temporary site structures include (but are not limited to): site sheds, temporary awnings,

hoardings, site fences, temporary covered walkways and signage. They do not include temporary works such as scaffolding, formwork/falsework or props and bracing which

have their own design requirements that must be followed.

The full Alert, which includes tips on approaching the problem, can be accessed here.

Go back to ‘In this alert’

NHVR Releases Podcasts to Assist ‘Making Modifications Safer’

The NHVR has released the first suite of heavy vehicle standards audio podcasts to assist with making modifications safer. NHVR Director Safety, Daniel Elkins said the podcasts

outline minimum design, construction, installation and performance requirements for modifying heavy vehicles outside the manufacturer’s specifications:

These podcasts cover five common modifications including recent changes to the heavy vehicle safety standards, driving lamps, semitrailer rear bumpers, couplings

and backlit badges. By providing different ways to access the latest information about vehicle safety standards and modifications we are aiming to improve industry’s knowledge to promote compliance.

The release of the podcasts follow the first meeting of the NHVR Technical Working Group

to accelerate the deployment of safety technologies and systems. Mr Elkins said the NHVR Technical Working Group will utilise the expertise of the heavy

vehicle industry in understanding how best to provide information and delivery of vehicle safety information to industry:

The group is a cooperative partnership with technical experts from across the heavy vehicle industry that will assist in the delivery of our broader safety strategy. We

will engage with manufacturers and industry to support and encourage voluntary uptake of safety initiatives and these podcasts are one way to support the delivery

of our safety message.

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The NHVR is responsible for issuing exemptions to vehicle standards and the approval of complex modifications. Guidance on undertaking modifications is available through the NHVR Code of Practice for the Approval of Heavy Vehicle Modifications.

To listen to the podcasts, visit www.nhvr.gov.au/podcasts.

Go back to ‘In this alert’

Radiation Health and Safety Advisory Council – Vacancies

The current term of two Council members of the Radiation Health and Safety Advisory

Council expire on 31 March 2017. The Council requires a diverse membership to reflect the statutory responsibilities of the Council. The Council has the following functions:

To identify emerging issues relating to radiation protection and nuclear safety and to advise the CEO on them;

To examine matters of major concern to the community in relation to radiation

protection and nuclear safety and to advise the CEO on them;

To advise the CEO on the adoption of recommendations, Policies, Codes and

Standards in relation to radiation protection and nuclear safety;

To advise the CEO, at the CEO's request, on other matters relating to radiation

protection and nuclear safety;

to advise the CEO on such other matters relating to radiation protection and nuclear

safety as the Council considers appropriate;

To report to the CEO on matters relating to radiation protection and nuclear safety.

Submissions should be made by suitably qualified people with an understanding of radiation

issues and who have backgrounds in related areas including:

Community advocacy

Engineering

Environmental assessment

Epidemiology

Health economics

Industrial or safety related regulation

Law

Medical practice

Mining

Nuclear safety and security

Public health

Risk management

Sciences

Waste management

Expressions of interest, including a current resume, should be sent to:

council@arpansa.gov.au. The closing date for applications is Friday 9 December 2016. More information can be found here.

Go back to ‘In this alert’

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Open for Comment…

NSW Review of WHS Act Consultation Now Open

The Better Regulation Division is conducting the first statutory review of the Work Health

and Safety Act 2011. The purpose of the review is to ensure the policy objectives of the Act remain valid and the NSW-specific provisions are operating effectively.

As there is a national review of the harmonised laws scheduled for 2018, this review will focus on the NSW-specific objectives and provisions in the Act and the Work Health and

Safety Regulation 2011. The review also provides an opportunity to consider the pre-WHS legislation Codes of Practice as they will not be considered in any other planned reviews.

The Model WHS Act and Regulations permit very limited departures from the national scheme. Permitted variations can be made where allowed, and in accordance with,

jurisdictional notes. Jurisdictional notes can be found in the model Act and Regulations at www.safeworkaustralia.gov.au. These allow Commonwealth, State and Territory WHS

regulators to address local matters and ensure the provisions work, such as by referencing the relevant courts in each jurisdiction. Provisions that are the same in all jurisdictions are subject to regular reviews via the national processes.

An examination of the model laws was recently conducted during 2014/2015, and

amendments arising from that work are still in progress. There will also be a comprehensive review of the model laws during 2018. With this understanding of the national processes and framework, it makes sense for the NSW review to be confined to matters covered by

the jurisdictional notes, along with other provisions that are specific to NSW. These are called ’NSW-specific provisions’ in this discussion paper.

However, if interested parties are interested in making submissions on ‘non-NSW-specific provisions’ (ie general provisions of the system) these will still be considered.

The discussion paper can be accessed here.

Submit your feedback by 20 December 2016. There are three ways to provide feedback via the online feedback form that can be accessed here.

Or:

By Email to: legislationreview@safework.nsw.gov.au.

By Post to:

BRD Team Coordinator – Legislation Coordination

Locked Bag 2906 Lisarow NSW 2252.

CASA Review of Part 90 of the CASR

CASA has advised that CD 1613CS – Proposed amendments to the Part 90 MOS and Part 90 of CASR is now available for comment.

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Part 90 of the Civil Aviation Safety Regulations 1998 (CASR) sets out aircraft airworthiness requirements to supplement the existing design standards, known as the type certification requirements. This Part applies to aircraft issued with a certificate of airworthiness.

Part 90 became effective in December 2010. CASA has now conducted a post

implementation review (Standards Development project CS 14/09) in conjunction with the Certification and Manufacturing Standards Sub-committee. In announcing the Review, CASA noted that it was aware of some omissions and unintended consequences associated with

the implementation of Part 90 of CASR, both in the Regulations and the associated Part 90 Manual of Standards (MOS). CASA has proposed amendments to Part 90 of CASR (Annex

A) and the Part 90 MOS (Annex B). More information, including on how to make a submission can be found here. Submissions

must be made by 5 December 2016.

SA Seeking Feedback on Harmonised Laws

SafeWork SA is seeking feedback as part of the three-year review into the nationally harmonised work health and safety laws, which came into effect in South Australia from 1 January 2013.

South Australia’s work health and safety laws closely align with the national model laws

currently in operation in New South Wales, Queensland, Tasmania, the Australian Capital Territory, Northern Territory and the Commonwealth. Commenting on the review, SafeWork SA Executive Director, Ms Marie Boland noted:

The harmonised laws aim to provide workers with the same standard of health and

safety protection regardless of whether they work here in South Australia or interstate and regardless of the work they do. They also aim to provide consistent obligations on employers and businesses, especially those that operate across State

or Territory borders. The three-year review is a requirement of the Act and will predominantly focus on the operation of the South Australian provisions that differ

from the model laws developed by Safe Work Australia. The review will examine the impact of these provisions and help ensure the continued

effectiveness of the state’s work health and safety laws. According to Ms Boland:

When the original work health and safety legislation was considered by the South

Australian Parliament, some amendments were made which were not consistent with the model laws operating in other States and Territories. The focus of this review is on those amendments but we’re also interested to hear from employers,

unions, workers and business operators about any aspects of the harmonised laws.

A consultation paper has been developed which provides an overview of the current laws to

help people prepare their submissions. Consultation on South Australia’s work health and safety laws will run until 5pm on Wednesday 30 November 2016. The consultation paper can be accessed here.

Submissions in writing are welcome by email titled WHS Review to:

webmaster.safework@sa.gov.au.

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Or by post to:

WHS Act Review SafeWork SA Policy and Governance Team GPO Box 465

ADELAIDE SA 5001

Draft Standards Open for Comment

A number of draft Standards are open for comment. They include:

Draft Standard Comments due by

AS/NZS 1680.2.4 Interior lighting Part 2.3: Industrial tasks and processes

23 November 2016

AS 1603.3 Automatic fire detection and alarm systems

25 November 2016

AS ISO 10377 Consumer product safety – Guidelines for suppliers

30 November 2016

AS 2419.1 Fire hydrant installations 8 December 2016

AS 2359.1:2015 Amd 1 Powered industrial trucks – general requirements

30 December 2016

AS/NZS 5033:2014 Amd 1 Installation and safety requirements for photovoltaic (PV) arrays

30 December 2016

AS/NZS 1680.4 Interior lighting Part 4: Maintenance of electric lighting systems

16 January 2016

A full list of Standards under review, along with a link to the draft Standards and a link for

making comments to the above draft Standards can be accessed here.

Dangerous Substances and Explosives Laws Review in SA

South Australia’s work health and safety agency is encouraging industry and the people

working with explosives and dangerous substances to contribute to reshaping the state’s laws which were written in the 1930s and 1970s.

According to SafeWork SA Executive Director, Ms Marie Boland modernising and simplifying these laws and how they are administered, while maintaining safety standards that protect

workers and the public, is the aim of this review:

We’re seeking contributions from industry, the business sector and unions as well as workers so that we can implement contemporary dangerous substances and explosives laws. The Dangerous Substances Act 1979 and the Explosives Act 1936 regulate the safe handling

and management of these products in South Australia by competent people with a legitimate purpose. SafeWork SA administers both of these Acts with the review set to look at existing

laws, including licensing requirements and processes. It aims to deliver high safety standards while removing unnecessary red tape.

A modern regulatory framework needs to clearly assign accountability for the safe management of dangerous substances and explosives.

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A consultation paper has been developed which provides an overview of the current laws with a summary of key issues and anomalies for comment. “There are questions throughout the paper aimed at capturing the experience of people managing and working with

dangerous substances and explosives, but we’re also interested to hear about any aspects that could be improved. Consultation on South Australia’s dangerous substances and

explosives laws finishes at 5pm on Friday 25 November 2016. A link to the consultation paper (which includes information about how to make a

submission) can be accessed here.

New NTC Consultation on Compliance and Enforcement Powers in HVNL

Investigation and enforcement by authorised officers are essential elements in controlling or regulating activities and ensuring compliance with the HVNL. This is achieved by authorised officers detecting breaches, bringing them to the attention of the alleged

offender, requiring corrective or preventative action, applying penalties and providing deterrence.

Compliance with the HVNL and, where compliance fails, enforcement of those laws by authorised officers under the HVNL is important for reasons of the safety of all road users,

fairness, protection of the road network and the health and wellbeing of the community.

In June 2016, Australian transport ministers requested that the National Transport Commission undertake a review of all investigative and enforcement powers in Chapters 9 and 10 of the Heavy Vehicle National Law (HVNL), and their application by enforcement

agencies. The review will identify potential regulatory or operational reforms to reduce complexity and improve effectiveness.

This review is driven by road transport and enforcement agencies’ concerns about the complexity of the HVNL investigative and enforcement powers, especially in relation to the

additional information-gathering power proposed as part of the Chain of Responsibility Reforms approved by ministers in November 2015. These are found in the Heavy Vehicle

National Law and Other Legislation Amendment Bill 2016 (Qld). The purpose of this review is to ensure agencies enforcing the HVNL have sufficient and

appropriate investigative and enforcement powers, including sanctions, to achieve the objects of the law, while maintaining appropriate safeguards.

The NTC has released a discussion paper for public comment. The paper is open for public consultation until 4pm, Friday, December 9 2016.

Following receipt of stakeholder submissions, the NTC will prepare a policy paper with

recommendations for transport ministers’ consideration in May 2017. The discussion paper can be accessed here.

Submissions should be made through the NTC’s submission portal here.

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Current APVMA Open Consultations

The following APVMA consultations are currently open for comment. Further details can be

found in the links attached.

Proposal not to place glyphosate under formal reconsideration Following a comprehensive scientific assessment process, the APVMA has published a proposed regulatory decision report for glyphosate, concluding that glyphosate does not

pose a cancer risk to humans. The decision can be accessed here.

Concerns were raised about human exposure to glyphosate following its re-classification as ‘probably carcinogenic to humans’ by the International Agency for Research on Cancer

(IARC) in 2015. The APVMA commissioned a review of the IARC monograph by the Department of Health,

and also evaluated a number of recent international assessments of glyphosate conducted by international bodies and regulatory agencies.

This consultation is open to 30 December 2016. The APVMA is able to consider comments relating to the scientific justification for the proposed regulatory position on glyphosate.

For more information see APVMA’s glyphosate web page here.

ARPANSA Consultation on Radioactive Waste Storage & Disposal Facilities – Regulatory Guide and Information for Stakeholders

There are a number of principles, concepts and processes that apply to the storage, disposal

and management of radioactive waste. These are found in two ARPANSA documents that complement each other and outline ARPANSA’s role and functions for regulation and

assessment. They are:

Regulatory Guide: How to Apply for a Licence for a Radioactive Waste Storage or

Disposal Facility;

Radioactive Waste Storage & Disposal Facilities - Information for Stakeholders

The intention being that a new proposed regulatory guide would replace the existing guide.

The draft documents and further details on how to make a submission can be found here. The consultation period ends on 9 December 2016.

Workplace Exposure Standard Evaluation by Safe Work Australia

Safe Work Australia has announced it will evaluate the workplace exposure standards for more than 600 chemicals to ensure worker health and safety in Australia is comparable with

latest evidence and international best practice. Exposure standards are specified in the model Work Health and Safety Regulations as

mandatory legal limits to assist in protecting the health of workers and minimise exposure to airborne contaminants in the workplace.

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Exposure standards aim to minimise the risk of adverse health effects by establishing precise targets for businesses to follow.

Safe Work Australia has engaged Golder Associates Pty Ltd to undertake an evaluation of Australia’s list of 644 workplace exposure standards, including a review of current scientific

data for each chemical. The evaluation follows a public consultation process held by Safe Work Australia late last

year, examining the role and use of exposure standards and how they could be effectively reviewed and maintained. This process noted that many of Australia’s workplace exposure

standards are out of date and there was support for mandating a smaller number of exposure standards on the basis of risk. In addition, many submissions suggested the need to streamline the list of exposure standards and to update the standards to reflect current

knowledge of health effects.

Public consultation sessions will also be held and members of the public are invited to subscribe to the ‘Chemical exposure standards’ mailing list on the Safe Work Australia website here.

For more information visit the Workplace Exposure Standards page on the Safe Work

Australia website here.

If you have any questions about the assessment and evaluation of workplace exposure standards, please email WES@swa.gov.au.

Review of International Atomic Energy Agency (IAEA) Drafts

ARPANSA coordinates the Australia’s comment on documents as they are developed and provides feedback on behalf of Australia to the IAEA through Safety Standards Committee members to the International Atomic Energy Agency.

Comments on drafts are requested in relation to:

Relevance and usefulness – Are the stated objectives appropriate, and are they met

by the document?

Scope and completeness – Is the stated scope appropriate, and is it adequately covered by the document?

Quality and clarity – Do the requirements/guidance in the document represent the current consensus among specialists in the field, and are they expressed clearly and coherently?

All comments should be submitted using the ‘Member State Comments template’ (see

below). Comments should refer to the relevant paragraph number in the document being reviewed, and when appropriate, should propose alternative text.

IAEA drafts that are currently under review are: DS488 – Design of the Reactor Core for Nuclear Power Plants – closing Date: 8

December 2016; DS482 – Design of Reactor Containment Structure and Systems for Nuclear Power

Plants – closing Date: 6 January 2017;

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DS493 – Format and Content of the Package Design Safety Report (PDSR) for the Transport of Radioactive Material – closing Date: 11 March 2017.

Full details, including on how to make a submission can be found here.

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In the Courts…

Policy Ambiguous, Not Communicated and Not Enforced

Safe Work (NSW) v Tamex Transport Services Pty Ltd NSW District Court November 2016

Extract from Judgment and commentary – The link to the transcript can be found

at the end of summary Mr Lever was employed by Parry Bros Pty Ltd (Parry Bros) as a truck driver. On 28 February

2014, he drove a semi-trailer (the truck) to the defendant’s Beresfield Depot (the depot) to deliver freight, arriving at about 3.30am.

In the years leading up to February 2014, Mr Lever and Mr Mackersey had developed a usual practice for unloading the truck. Mr Lever parked the truck outside the shed in an

area where there was a painted rectangle on the pavement. The painted rectangle was intended to indicate where trucks, of the size of the truck, were to park for unloading. After

parking the truck Mr Lever would attend to completing paperwork including filling in his National Driver Work Diary (logbook), while seated in the cabin of the truck. While he was doing this, Mr Mackersey would commence unloading the goose by unclipping and pulling

aside the curtain, loosening the straps and removing the load containment gates. Mr Lever would then alight from the truck, put his personal items into his car and then assist in the

unloading process by unclipping and pulling aside the curtain, loosening the straps and removing the load containment gates towards the rear of the trailer.

At this time Mr Mackersey would use the forklift to unload pallets and cages from the trailer. If necessary, Mr Lever would pull the straps out of the way to allow the pallets or cages to

be removed by the forklift. After the pallets and cages were unloaded and at various times during the unloading process, both men would replace the load containment gates, close

the curtain and clip it back into place. Mr Lever would then move the truck to an allocated parking space in the yard.

The incident was captured by the CCTV system at the depot.

The footage depicts the unloading process described above. At the beginning of the footage the unloading of the middle section of the truck has commenced. The footage covers a time period of about 1 minute and 41 seconds before Mr Lever is struck by the door.

Mr Lever was struggling to undo a strap at the rear of the trailer when Mr Mackersey

removed a cage from the mezzanine level with the forklift from a position about 3m in from the back of the trailer. As the forklift reversed away from the truck with the cage on its

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tines, the door became dislodged and fell to the right towards the rear of the trailer. As the door fell it struck Mr Lever on the head, while he was bending over trying to loosen the strap at the rear of the trailer. Mr Lever was knocked to the ground and appeared to be

unconscious.

At the time when Mr Mackersey loaded the cage on the forklift, Mr Lever was within 1-2 m of the operating forklift and he remained within that proximity at the time he was struck by the door.

Mr Lever suffered serious head injuries.

The company in these proceedings pleaded not guilty to the offences.

The Court heard that on 28 May 2013 there had been a draft Safe Work Method Statement

released to all the defendant’s regional managers, the operations managers and the directors of the defendant relating to the loading and unloading of vehicles by forklifts (the

May 2013 SWMS). The May 2013 SWMS identified the risk of personal injury to workers caused by being struck by a forklift or being hit by falling objects during the loading or unloading process. According to the Judge:

The risk identified in the May 2013 SWMS was indistinguishable from the pleaded

risk.

The defendant ought to have known about the risk of death or serious injury to

workers as a result of being struck by a forklift from a time much earlier than 28 May 2013. That risk was obvious. Further, there were documents available within

the transport industry that alluded to that risk. In November 2010, the LUEZ Guidelines were published by Safety Assist, a transport industry body funded by

WorkSafe Victoria. The LUEZ Guidelines recognised the risk of fatality and a high potential for severe injury resulting from the interaction of forklifts and pedestrians; most commonly truck drivers standing too close to the unloading and loading of

their trucks. Mr Dee and other managers of the defendant had received the LUEZ Guidelines at an external training course that they attended. Mr Dee gave evidence

that he was given a copy of the LUEZ Guidelines on more than one occasion.

At a time prior to 28 May 2013, there was available for download a template for a

SWMS relating to the loading and unloading of freight vehicles by forklifts. Such a template was downloaded by a local manager in order to draft the 28 May 2013

SWMS.

The Judge noted that the defendant did not actually foresee the ‘precise risk’ that manifested in the incident – being the dislodgement of the door that fell and struck Mr Lever. But the

Judge stated:

Nevertheless, I am satisfied that the precise risk was reasonably foreseeable for the following reasons.

There were instances of the cage doors falling off that were witnessed by the workers. Mr Lever gave evidence of cage doors becoming dislodged in transit and

finding them lying on the deck of the trailer. On other occasions the cage doors

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were dislodged whilst the cage was being unloaded by a forklift and the cage door fell on the floor in his vicinity. Mr Mackersey gave evidence of a cage door becoming dislodged during unloading and falling on the deck of a trailer. Mr Dee gave

evidence that Mr Rowden told him during the course of his investigation that there had been instances of the cage doors falling off.

Neither Mr Lever or Mr Mackersey reported the incidents of the cage doors falling off during the unloading process. They were required to do so by the defendant’s

policies that it contended were implemented from March 2010 onwards.

The Court heard that Mr Lever and other staff were not aware of some company policies –

such as the reporting of near misses. A group of such politcies were kept in a ‘compliance folder’ in a company lunchroom, but Mr Lever (and some other staff) had never gone into the lunch room and had not otherwise been told about the policies.

It was also clear from the evidence that Mr Lever had never been made aware of the

exclusion zone policy in the May 2013 SWMS. According to the Judge the pedestrian exclusion zone provided for in the 2010 SWMS was

not reasonably practicable ‘because on its natural and ordinary meaning it did not create an exclusion zone that was capable of eliminating or minimising the pleaded risk’: the policy,

in other words, was unclear. Even if the policy had been clear, however, it had not been communicated properly to

workers and it was not enforced.

The Judge also rejected the defendant’s argument that it should have been able to rely on the workers’ experience:

The defendant’s duty to ensure safety was non-delegable. The defendant could not simply rely on the common sense of the workers, the fact that they had obtained

forklift licences many years ago, or that there had been no accidents in the past.

The company was found guilty – and will be sentenced in the coming months.

The full transcript of the Court’s Judgment can be found here.

Go back to ‘In this alert’

SafeWork SA v DiCesare

SA Industrial Court

A recent decision made by the Industrial Court acts as a strong deterrent to anyone using intimidating or improper behaviour to hinder SafeWork SA’s work health and safety (WHS)

inspectors, whilst executing their regulatory duties. The South Australian Industrial Court convicted Gepps Cross based businessman Mr Angelo

DiCesare under section 190 of the Work Health and Safety Act 2012 (SA) for attempting to intimidate a SafeWork SA inspector, imposing a fine of $5,000 plus court costs. On 4 June

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2015 Mr DiCesare used offensive and aggressive behaviour towards a SafeWork SA inspector who was visiting his earthmoving equipment maintenance and service business premises in response to a reported complaint about a number of matters including

unguarded plant, workplace overcrowding and a lack of work health and safety induction.

When considering the question of a conviction, Presiding Magistrate Lieschke stated that the inspector’s position and role when visiting the defendant's business was comparable to that of a police officer, and the court should not afford any lesser level of disapproval of

offensive behaviour towards a WHS inspector:

She (the inspector) was acting as a public officer, conducting her duty to assist in

maintaining compliance standards of workplace health and safety in furtherance of the public interest of avoiding, wherever reasonably practicable, personal injury to

employees and others who may be impacted by a business's operations. This is the very important context of the inspector's activities. Intimidating such a public officer performing this important work is not acceptable … by anybody.

SafeWork SA confirms that the inspector was following procedure, and reminds business owners not to view work health safety compliance as an intrusion or something that can be

opposed or dismissed. Commenting on the prosecution, SafeWork SA Executive Director, Ms Marie Boland noted:

The inspector was investigating a complaint and protecting the identity of the complainant and should not have been the subject of aggressive or offensive

behaviour. Our inspectors play a very important role in ensuring the health and safety of workers; they are performing a significant public service, and in this case a number of Prohibition and Improvement Notices were subsequently issued to the

business owner.

Go back to ‘In this alert’

WorkSafe VIC v Robot Trading Co

Magistrates’ Court

Robot Trading Co Pty Ltd is a company that operates a number of building supply warehouses and retail sales outlets in Victoria.

On 11 April 2013, a customer attended the offenders store and purchased a pack of steel roofing. The customer was directed to move the truck outside the warehouse for the sheets

to be loaded. The customer was standing in the tray of his truck while a forklift was in the process of loading the roofing sheets into his truck.

The company had failure to ensure that the risks associated with the interaction between forklifts and pedestrians in the loading process outside the warehouse had been reduced as

far as reasonable practicable. The health and safety risks, to which persons other than employees were exposed, was the risk of serious injury by being hit by mobile plant or its load at the workplace.

According to the Court it was reasonably practicable for Robot Trading to have reduced the

risk to health and safety by designating a driver exclusion zone with physical barriers as a

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truck loading zone outside the warehouse and designating a driver safety zone with physical barriers. On 11 April 2013, the roofing sheets fell from the forklift and onto the customer’s leg causing injury.

The company pleaded guilty and was without conviction sentenced to pay a fine of

$90,000.00. Yours Faithfully,

Workplace Safety Australia Pty Ltd

Important Note The information contained in this Safety Alert is in general terms only and does not constitute legal advice or other professional advice. The information contained in this safety alert should not be relied upon and is no

substitute for seeking legal or other professional advice as appropriate to any facts, circumstances and materials that might be necessary for you to provide to a professional advisor. While all reasonable care is taken in

producing Safety Alerts, Workplace Safety Australia, its Consultants, Lawyers and all others involved in providing this Safety alert all expressly disclaim all and any liability for the results of any actions or failure to act taken on the basis of this Safety Alert, and for any error or omission arising there from. The information contained therein does not necessarily reflect the views of the management of Workplace Safety Australia. Should you wish to discuss this further, please contact Workplace Safety Australia on 02 9387 1248

DISCLAIMER PRIVATE AND CONFIDENTIAL

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