Focus: Occupational Health & Safety
10 December 2013
In this issue: we look at the continuing debate on the merits of saliva versus urine drug testing; the introduction of on-the-spot fines for WHS breaches in the ACT; revised national codes of practice for the construction and stevedoring industries; the need to properly particularise an offence when prosecuting a WHS offence; changes to right-of-entry laws in Queensland; a case that highlights an employer's duty of care even where there are multiple entities with simultaneous control of a workplace; and the substantial changes to Queensland's workers' compensation scheme.
- Saliva or urine drug testing – the debate continues
- On-the-spot fines for WHS breaches in the ACT
- New codes of practice for construction and stevedoring
- Regulator must identify particular conduct breaching WHS obligations
- Queensland to change WHS right-of-entry laws
- WHS obligations where there are multiple duty holders
- Substantial changes to the Queensland workers' compensation scheme
In brief: The National Association of Testing Authorities has recently withdrawn accreditation for on-site saliva drug testing. Senior Associate Andrew Stirling and Law Graduate Timothy Leschke report.
How does it affect you?
- Employers should reconsider their drug testing policies and procedures in light of the withdrawal by the National Association of Testing Authorities (NATA) of its accreditation of saliva drug testing.
- A recent Fair Work Commission (FWC) finding that urine drug testing was unjust and unreasonable will need to be revisited.
In Endeavour Energy v CEPU & Ors,1 the FWC determined that if oral fluid testing for drugs is readily available, it would be unjust and unreasonable to impose urine testing. The decision relied upon the Australian Standard for oral fluids drug testing (AS 4760) and the purported significant improvements in devices for oral fluid testing in the workplace. (Please see our Focus: Occupational Health & Safety.)
Withdrawal of accreditation for saliva testing
NATA has now withdrawn accreditation for on-site saliva testing from AS 4760, citing significant technical issues, including there being:
- no clearly defined cut-off concentrations or acceptance criteria for verification for oral fluid devices, in contrast to that currently existing for urine devices; and
- no definitive criteria for what 'fit for purpose' means under AS 4760.
This withdrawal of accreditation for oral fluid devices casts doubt on their reliability, and on the decision in Endeavour Energy. It also supports the view expressed in Raymond Briggs v AWH Pty Ltd 2 (please see our Focus: Occupational Health & Safety) that it is reasonable to require an employee to provide a urine test.
Implications for employers
A workshop to discuss AS 4760 was convened by Standards Australia for mid December 2013. This may provide some sorely needed clarification and certainty.
In brief: The Australian Capital Territory has introduced on-the-spot fines for certain breaches of WHS laws, and other Australian jurisdictions are considering introducing similar regimes. Lawyers Dan McDonnell and Tarsha Gavin report.
How does it affect you?
- Persons conducting a business or undertaking (PCBUs) in the ACT may be liable to pay on-the-spot fines for certain breaches of WHS laws. Companies can be fined up to $3,600 and individuals up to $720.
- Given the positive reports coming out of the ACT, interest has developed in other jurisdictions in the introduction of similar measures.
On 1 July 2013, the ACT Government introduced laws allowing inspectors to issue on-the-spot fines for breaches of the ACT's WHS laws. On-the-spot fines of up to $3,600 for companies and up to $720 for individuals may now be imposed for various failures to comply with the laws, such as failing to notify WorkSafe ACT of notifiable incidents.
Interest from other regulators
The reform gives WorkSafe ACT inspectors an additional regulatory tool. Fines are used for dealing with less serious breaches of the law, where previously the only option available was to issue an improvement or prohibition notice, neither of which carries a financial penalty, or to prosecute the PCBU for the breach.
There has been a large increase this year in site visits by ACT inspectors, and in the number of prohibition, infringement and improvement notices issued. However, ACT Work Safety Commissioner Mark McCabe credits the introduction of on-the-spot fines as having the biggest impact on curbing unsafe work practices in that jurisdiction.
Mr McCabe has also reported considerable interest in on-the-spot fines from other Australian regulators, with the ACT model being considered for introduction elsewhere in Australia.
In brief: Revised codes of practice for the construction and stevedoring industries will be approved shortly by Safe Work Australia. Lawyers Dan McDonnell and Trieste Corby consider the features of these proposed codes.
How does it affect you?
- Codes of Practice are intended to provide a practical guide to compliance with WHS laws.
- In a prosecution under WHS laws, evidence of non-compliance with a Code of Practice can be admissible as proof that a person conducting a business or undertaking (PCBU) has failed to do all that is reasonably practicable to comply with a duty.
To complement the model Work Health and Safety Act and Regulations (the Model Laws), Safe Work Australia (SWA) has progressively released model Codes of Practice (the Model Codes). SWA is proposing new Model Codes for the construction and stevedoring industries.
The Construction Code
The draft Model Code for construction work is a revision of the current code of practice for construction work. The key changes are:
- a new focus on safety on residential building sites. While the current version deals with safety in the context of non-residential construction and infrastructure, the Model Code extends these obligations to PCBUs on residential construction sites;
- the provision of further guidance on design duties; and
- greater explanation of safe work method statements required for high-risk work, and work health and safety management plans, all of which are required under the Model Laws.
The Stevedoring Code
The Model Code for stevedoring will replace the existing guidance material. The Model Code largely incorporates information from the guidance material, such as advice on evaluation of stevedoring hazards. However, the Model Code also contains guidance in relation to managing those hazards, and new information on risks associated specifically with mooring and unmooring. References to the International Labour Organisation's 'Code of Practice on Safety and Health in Ports' have also been removed.
In brief: The Queensland Court of Appeal recently quashed a WHS conviction following the regulator's failure to properly particularise the defendant's offence. Senior Associate Andrew Stirling and Law Graduate Timothy Leschke report.
How does it affect you?
- When prosecuting alleged offences under WHS laws, regulators must identify a particular measure that it would have been reasonably practicable for the employer to take to eliminate or minimise risks. This allows the employer to know the particular case they have to answer.
- This may require regulators to obtain more detailed evidence showing a contravention before prosecuting. Regulators may need to undertake more detailed investigations into suspected breaches and rely on expert evidence. As a result, employers may face a greater number of requests for documents and formal interviews.
In June 2007, an employee of NK Collins was killed while felling trees. The regulator prosecuted NK Collins under the Workplace Health and Safety Act 1995 (Qld) (now replaced by the Work Health and Safety Act 2011 (Qld)) for failing to ensure the health and safety of its workers. NK Collins was convicted.
The Queensland Court of Appeal ultimately quashed NK Collins' conviction, deciding that the regulator's failure to particularise the offence meant that the Industrial Magistrate had no jurisdiction to convict NK Collins.3
In applying the High Court decision in Kirk4 (please see our Client Update: High Court quashes employer's OHS conviction), the Court of Appeal concluded that the regulator must identify the measure or measures that the employer should have taken to ensure its workers' safety. The regulator's failure to do so meant the prosecution failed.
This decision indicates that the Kirk authority applies in Queensland (at least as regards the 1995 Act). However, the requirement on the regulator to particularise the offence is likely to be adopted for prosecutions under the current WHS Act in Queensland and elsewhere.
The first consequence of this decision is that regulators prosecuting offences will be required to identify the reasonably practicable measures that the employer should have implemented to comply with its WHS obligations. Employers will be entitled to know the full case against them, rather than being required to respond to generalised allegations of breach.
To provide these particulars, regulatory investigations into workplace incidents will probably be more extensive, to determine the relevant industry practice and any reasonably practicable measures the employer should have taken to eliminate or minimise risks. The regulators may also place a greater reliance on expert reports, SafeWork Australia's model codes of practice and/or applicable Australian Standards during this process.
Employers may be required to give regulators more detailed information during the investigation of potential offences (eg through greater requests for documents, or more persons being called to submit to formal interviews).
In brief: The Queensland Government is proposing to require unions to give employers 24 hours' notice before entering a worksite to investigate a WHS breach, which will limit the capacity for unions to use WHS laws as a means to disrupt worksites without notice. Senior Associate Andrew Stirling and Law Graduate Brent Reading report.
How does it affect you?
- The Work Health and Safety Act 2011 (Qld) allows for union officials (holding a relevant permit) to enter a workplace to investigate a suspected breach of the Act. Currently, the union official need only give a person conducting a business or undertaking (PCBU) notice of entry after entering the workplace.
- Under the proposed changes, union officials will have to provide at least 24 hours' written notice to a PCBU before they can enter a worksite. This amendment would align Queensland's WHS right-of-entry laws with the right-of-entry laws for other matters under the Fair Work Act 2009 (Cth).
In brief: The NSW Industrial Relations Commission has confirmed that any number of entities can simultaneously have the degree of control over a workplace or work activity that is necessary to owe a duty under the general duty provisions in WHS legislation. Lawyers Dan McDonnell and Emily Harvey report.
How does it affect you?
- A person conducting a business or undertaking (PCBU) is not absolved of their duty to ensure a safe working environment because another entity also has a duty.
MVM Rail Pty Ltd (MVM) was contracted to provide labour for upgrade works on the Main North Line railway in NSW. MVM employed Mr O'Sullivan as a supervisor. However, Mr O'Sullivan decided he was not assuming this supervisory role while working as part of the labour crew for the track work.
During the installation of a section of railways lines, some of the panels became misaligned. Mr O'Sullivan was asked for his opinion about resolving the issue and, although he offered a suggestion, removed himself from the decision-making process.
As the panels were being moved, a number of line rails suddenly sprang free and struck a number of workers, fatally injuring one worker and seriously injuring others.
MVM was charged with breaching subsections 8(1) and (2) of the Occupational Health and Safety Act 2000 (NSW) (the OHS Act) by failing to ensure the health and safety of its employees and subcontractors. The charge specifically alleged that, as Mr O'Sullivan did not take an active role in the decision-making process and did not conduct a risk assessment in relation to the work proposed to resolve the misalignment issue, MVM had failed to provide its employees and subcontractors with adequate supervision.
MVM was convicted and fined $160,0005. The Commission found that the responsibilities of an employer were not diminished because the employer was a labour hire firm with no direct management or control. It was reasonably foreseeable that MVM's failure to provide adequate supervision of its employees and subcontractors would expose those workers to risk. In the circumstances, MVM should have ensured Mr O'Sullivan understood his role as a supervisor, including his responsibility for conducting risk assessments of on-site activities.
The Commission noted that other contractors were directly responsible for the works on-site and had responsibilities to conduct risk assessments. Boom Logistics Ltd and Taylor Railtrack Pty Limited were both charged with a breach of the OHS Act through failing to ensure that workers were not exposed to risks to health and safety. They were fined $100,000 and $200,000 respectively.
In brief: The Queensland workers' compensation scheme has been significantly amended. Senior Associate Andrew Stirling and Law Graduate Timothy Leschke report on the key changes.
How does it affect you?
- Injured workers must have more than a five per cent permanent impairment before they may make a common law damages claim against their employer.
- For a psychiatric or psychological injury to be compensable, employment must be the major significant contributing factor to the injury.
- Employers can request prospective workers to disclose pre-existing injuries that could reasonably be aggravated by the prospective employment. If this request is not complied with, or false or misleading information is supplied, the prospective worker will not be entitled to compensation or damages for aggravation of the non-disclosed injury.
- Employers can apply to obtain a prospective worker's claims history, with his or her consent.
- Endeavour Energy v CEPU & Ors  FWA 1809 (26 March 2012) upheld by the Full Bench  FWAFB 4998 (14 August 2012).
- Raymond Briggs v AWH Pty Ltd  FWC 2017 (9 April 2013) upheld by the Full Bench  FWCFB 3316 (5 June 2013).
- NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland & Anor  QCA 179 (12 July 2013).
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
- Inspector Christensen v MVM Rail Pty Ltd  NSWIRComm 89.
- Simon DewberryPartner,
Ph: +61 3 9613 8110
- Peter ArthurSenior Employment Counsel,
Ph: +61 2 9230 4728
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