A recent evaluation of the Incident Information Release (IIR) Pilot Program showed that 77% of businesses use SafeWork NSW IIRs to change safety behaviour and compliance in their workplaces.

The key findings of the evaluation were overwhelmingly positive, confirming that IIRs provide valuable information to workers, industry and the community.

When a serious workplace incident occurs, SafeWork NSW publish IIRs to inform industry about the incident and provide relevant WHS advice to help prevent similar incidents happening in the future.

Businesses have told us that they find IIRs useful for toolbox talks on construction sites and in workplace safety meetings. They put real life situations and incidents in front of workers, encourage education and shared learning, and can just help start safety conversations.

Several recommendations came out of the evaluation and will be implemented over the coming months. These centred around improvements in the level of detail and relevance of the IIR content and website, improvements in the process for generating IIRs and better ways to promote IIRs both within government and across industry.

IIRs will now be produced for all work-related fatalities and selected serious incidents.

To view current Incident Information Releases, visit SafeWork's website.

If you would like to subscribe to the IIR mailing list, please contact them here on this email.

A safety alert has been issued notifying businesses of fake respiratory equipment (RPE) entering the Australian market.

Rising demand for face masks has made it difficult for construction businesses and some other industries to access supplies of P2 disposable respirators, with the extra demand leading to fake equipment entering the Australian market.

Advice on spotting a fake and consumer protection information can be found on the safety alert.

SafeWork NSW has also issued a fact sheet on alcohol-based hand sanitisers to support businesses to manufacture these products safely.

A KN95 mask supplied with Australian Standard labelling

A KN95 mask supplied with documentation from an unaccredited testing laboratory and without product markings

Notice from Safework NSW

The NSW Government is introducing reforms to protect workers from silica dust exposure on 1 July 2020.

The reforms include:

• the workplace exposure standard (WES) for silica will be halved to 0.05mg/m3 (time-weighted average 8 hours)
• on-the-spot fines for uncontrolled dry-cutting of manufactured stone
• silicosis will be a notifiable condition. Medical practitioners will be required to notify NSW Health when a diagnosis of silicosis is made and NSW Health will share notifications with NSW workplace health regulators so they can investigate where exposure has occurred in order to protect workers
• penalties will apply to businesses that fail to notify SafeWork NSW of an adverse health monitoring (health screening) report.

There’s still time for manufactured stone businesses to access a $1000 safety rebate, with the scheme closing on 30 June 2020. See the full terms and conditions and application form here.

To learn more about how to protect workers from silica exposure, including upcoming industry events, resources, rebates or to book a workplace visit go to SafeWork NSW or call 13 10 50.

Media Release from the Minister Kevin Anderson, Minister for Better Regulation NSW Government.

The NSW Building Commissioner will now have boosted powers to stop defective buildings being sold to consumers, thanks to the passing of the Residential Apartment Buildings Bill 2020 in NSW Parliament today.

Minister for Better Regulation, Kevin Anderson said the Bill will arm the Building Commissioner with a suite of powers to ensure buildings are constructed to a high standard, with robust offences and heavy fines for those doing the wrong thing.

“The Building Commissioner is now equipped with the power to prevent occupation certificates or strata plan registrations before defective buildings can enter the market,” Mr Anderson said.

“This means we now have a clear pathway to lift the standards of construction and prevent consumers from purchasing a property riddled with problems down the track.”

The Bill comes shortly after the Design and Building Practitioners Bill 2019, which passed through the NSW Parliament yesterday. Together, these two bills provide the legislation needed to support the Government’s six-pillar Building Reform package, which will herald a new era in the building and construction sector.

“The Government is committed to rebuilding and restoring public confidence in the construction industry, and together these two Bills lay the foundations for the biggest shake-up of the building sector NSW has ever seen,” Mr Anderson said.

The NSW Building Commissioner, David Chandler, who will be driving implementation of both Bills, said this new legislation is the core of the Government’s six pillar work plan to reform the industry.

“Poor quality buildings and shoddy workmanship simply won’t fly anymore. We’ve got a robust plan in place to put the consumer first and improve transparency and accountability across the sector,” Mr Chandler said.

The new powers apply both to the construction of buildings going forward, but also to existing buildings built in the last ten years.

“These powers, coupled with the statutory duty of care that passed the Parliament, will give homeowners with existing defects in their building the ability to recover the cost of rectification from those who are responsible, ” Mr Chandler concluded.

The powers outlined in the Residential Apartment Buildings Bill will come into effect on 1 September 2020.

MEDIA: Chloe Stevenson 0409 746 294

The FIA have held recent discussions with SafeWork NSW regarding the timing of the release of the revised Formwork Code of Practice for NSW. Indications are that it is due out in the coming weeks and we are waiting for the Minister to approve the code first.

We will update you as soon as we know. In the meantime, please contact us if you have any questions.

FIA - Advocating on your behalf - Together We Are Stronger.

#formwork#formworksafety#construction#constructionsafety#buildingindustry#builder#safetyatwork#safetymatters#constructioncompany#constructionwork#rebar#constructionindustry#constructionsector#constructionprojects#constructionengineering#worksafe#building#concrete#concreteconstruction#worksafety

Recent legislative and case law developments have put the spotlight back on the now real consequences of failing to address known and foreseeable risks in the workplace. Whilst lots of attention has been placed on mitigating COVID-19 risks, workplaces need to make sure they don’t neglect other risks which can lead to significant consequences for their organisations and decision makers.

In this Insight, FIA Legal Partner, Kingston Reid, look at one recent case and legislative amendments which will mean that businesses will need to be proactive and methodical in identifying and addressing risks to avoid prosecution and the wider implications that come with that.

First Industrial Manslaughter Conviction – Brisbane Auto Recycling decision

On 11 June 2020, sentences were recorded against Brisbane Auto Recycling Pty Ltd (Brisbane Auto), and two of its directors, for an incident at the workplace resulting in the death of an employee. Brisbane Auto was an auto wrecking business in Rocklea, Queensland. The employee was struck by a reversing forklift whose operator was not licensed. The directors supervised the work activities at the workplace.

Following the incident, one director told a treating paramedic that the employee had fallen from a truck. Eight days later, on 25 May 2019, the employee died from the injuries he had sustained. The incident was captured on CCTV.

Brisbane Auto was charged with the offence of industrial manslaughter under section 34C of the Work Health and Safety Act 2011 (Qld) (WHS Act). The two directors were not charged with industrial manslaughter but rather category 1 breaches of the officers’ duty of due diligence.

All three defendants pleaded guilty at an early stage.

The maximum penalty in Queensland for an offence of industrial manslaughter committed by a body corporate is a $10 million fine. The maximum penalty for a category 1 offence by an officer is a $600,000 fine or 5 years imprisonment.

The Court imposed the following sentences:

1. Brisbane Auto – Conviction recorded and a $3 million fine
2. The directors – Convictions recorded and both sentenced to 10 months imprisonment, wholly suspended for an operational period of 20 months.

The Court noted that there were no safety systems in place at Brisbane Auto and the defendants knew of the potential consequences of the risk, which ultimately was catastrophic. There were steps available that could have been easily taken to lessen, minimise or remove the risk. These included a proper risk assessment of the task, measures to control the interaction between mobile plant and the workers, and proper supervision of the work. These steps were available but not taken.

The directors received suspended sentences in large part because of the risk of their deportation and the role they had as financial supporters of their respective families.

Workplace Manslaughter laws to commence in Victoria on 1 July 2020

Victorian businesses and officers will need to take notice of the Queensland decision as workplace manslaughter laws will commence in Victoria from 1 July 2020.

Under those provisions, the following persons can be found guilty of a workplace manslaughter offence:

1. Any person (other than an employee or volunteer) who owes a duty under Part 3 of the OHS Act. This means that any employer (whether incorporated or unincorporated) can be charged with workplace manslaughter.
2. An officer of a body corporate, unincorporated body, unincorporated association or partnership.

The offence is one of negligence (not recklessness) and requires the relevant persons to have a duty, and breach that duty which results in the death of a person.

When first enacted, the provisions provided for maximum penalties of a $16.5 million fine for a body corporate and up to 20 years imprisonment for an individual. However, in late May, the legislation was amended to increase the maximum penalty for individuals from 20 years to 25 years imprisonment.

Amendments to NSW WHS Act

Unlike Queensland and Victoria, NSW is not introducing industrial manslaughter provisions into its WHS legislation. Rather, the NSW Work Health and Safety Amendment (Review) Bill 2020 has been passed by parliament which clarifies that an offence of industrial manslaughter can be commenced under the Crimes Act.

The amendments also introduce the following changes:

• Increasing WHS fines. For example, the maximum fine for a category 1 WHS breach will jump from $3 million to $3,463,000. Maximum fines for category 2 and category 3 contraventions will go from $1.5 million to $1,731,500, and from $500,000 to $577,000, respectively,
• Making it easier to secure category 1 convictions (by expanding that category to include ‘gross negligence’ in addition to recklessness),
• Creating a new WHS offence relating to entering into, providing or benefiting from insurance and/or indemnity arrangements for the payment of WHS penalties, and
• Allowing inspectors to exercise their entry powers under s171 of the WHS Act for a period of 30 days.

The debate continues in WA

The Western Australian Parliament continues to debate the Work Health and Safety Bill 2019 which passed the Legislative Assembly (Lower House) on 20 February 2020.

Importantly, the Bill includes two separate offences for industrial manslaughter:

1. Industrial manslaughter – crime
   This provision contains the highest penalties for a work health safety offence with:
   •  an individual exposed to imprisonment for 20 years and a fine of $5,000,000; and
   •  a body corporate exposed to a fine of $10,000,000
2. Industrial manslaughter – simple offence
   This provision contains penalties for a work health safety offence with:
   •  an individual exposed to imprisonment for 10 years and a fine of $2,500,000; and
   •  a body corporate exposed to a fine of $5,000,000

What does the Queensland case and these legislative changes mean?

The Queensland decision and the amendments in Victoria and NSW (and the introduction of industrial manslaughter offences more generally in a number of jurisdictions), highlights the importance of organisations and their officers carefully scrutinising the adequacy of their existing safety management systems, reviewing those systems on a regular basis and ensuring that deficiencies are rectified as quickly as possible.

These developments also demonstrate that there are various options available to safety regulators to prosecute corporate officers for negligent or reckless conduct, including where it cannot be proved that an officer’s conduct caused a workplace death.

If you would like to discuss how these developments impact upon your business please do not hesitate to contact our team.

John Makris
Partner
+61 2 9169 8407
john.makris@kingstonreid.com

Michael Stutley
Partner
+61 8 6381 7060
michael.stutley@kingstonreid.com

Dominic Fleeton
Special Counsel
+61 3 9958 9616
dominic.fleeton@kingstonreid.com

Erica Elliott
Special Counsel
+61 2 9169 8409
erica.elliott@kingstonreid.com

Sevasti Xanthos
Lawyer
+61 3 9958 9609
sevasti.xanthos@kingstonreid.com

Kathleen Weston
Lawyer
+61 2 9169 8415
kathleen.weston@kingstonreid.com

NSW Building Commissioner, David Chandler discusses how rebuilding confidence in NSW construction will be underpinned by trustworthy data. Good certifiers and regulators will be depend on it.

"It's been a great time to be developing these capabilities and thinking of the new normal as we all face into a post COVID-19 industry. The industry is now witnessing how new ways of working are found to be very productive. We have had the opportunity to rethink our work flows, how we can become more proactive and measurably more effective. The conversation has turned to how new performance based dashboards can be deployed to inform consumers, industry and government in real time of how data is defining our future".

READ THE FULL ARTICLE

A coalition of Industry Associations and Trade Unions* have joined together to develop guidelines for managing the risks associated with COVID-19 on Western Australian construction sites. The guidelines are expected to be updated regularly and will be made widely available within the industry.

The building and construction industry employs over 120,000 people in Western Australia, and turns over around $33 billion each year.

As an essential service, the state’s building and construction industry has continued to operate during the pandemic, with appropriate physical distancing, hygiene and other controls in place to minimise the risk of transmission of the virus. To date, the industry has been successful, with no known cases of COVID-19 on construction sites.

12 industry associations and trade unions have agreed that maintaining up to date guidelines on how best to manage the health and safety risks from COVID-19 will support the industry’s continued safe operations, noting the need to manage these risks will be with communities and their industry for many months.

MATES In Construction CEO and coalition chairman, Brad Geatches, said that while we’ve all been encouraged by the low number of COVID-19 cases in WA recently, publishing this guideline will help reinforce that the threat is still very real.

“The Federal Government’s new roadmap shows that physical distancing, hygiene and other COVIDSafe measures will need to continue to be observed on sites for some time.”

“Our industry is large and diverse, so we decided it was important to capture the better practice COVID-19 risk management methods developed so far by the industry in one widely accessible guideline,” Mr Geatches detailed.

“There’s a lot of information out there from Governments and Industry organisations, and it is regularly changing, so we decided having a consolidated guideline endorsed by a wide cross-section of unions and employer organisations would assist our industry address the safety concerns of COVID for workers, their families and the WA public generally.”

The guidelines address social distancing on-site, hygiene, mental health and how to manage a range of possible COVID-19 related scenarios that could arise on a construction site.

View a copy of the guidelines

*Participating Industry Associations and Trade Unions include: CFMEU Construction & General Division WA; Civil Contractors Federation WA; Construction Contractors Association of WA; Construction Training Fund; Electrical Trades Union – Electrical, Energy & Services Division, WA Branch; Master Painters & Decorators Australia; Master Plumbers and Gasfitters Association WA; MATES in Construction; National Electrical & Communications Association WA; National Fire Industry Association; Plumbing and Pipe Trades Employees Union; and ReddiFund.

Original article from Build Australia.

The FIA, in conjunction with a number of other industry associations, supports the NSW Government to bring forward debate on new legislation that lifts building standards and enshrines a duty of care for the construction of new buildings an urgent priority.

We too 'support steps the NSW Government is taking to leverage construction as a way of creating jobs to support the state’s economic recovery in the wake of the Covid-19 pandemic'. The FIA is also working, on behalf of its members, with the NSW Building Commissioner and his team on lifting building standards in the wake of the Shergold-Weir report.

Article from Build Australia below.

The Australian Institute of Architects is calling on the NSW Government to bring forward debate on new legislation that lifts building standards and enshrines a duty of care for the construction of new buildings an urgent priority.

NSW Chapter President Kathlyn Loseby said fast-tracking of new construction projects to stimulate the economy must be paired with measures that increase consumer protection by legislating better safeguards.

“The Institute strongly supports steps the NSW Government is taking to leverage construction as a way of creating jobs to support the state’s economic recovery in the wake of the Covid-19 pandemic,” Ms Loseby said.

“However, in turbocharging the construction industry we can’t afford to create a legacy of poor quality buildings.

NSW Building Commissioner David Chandler OAM has emphasised that for every $1 saved by cutting corners during construction, the subsequent rectification costs to building owners is as high as $10.

“The NSW Government’s Design and Building Practitioners Bill 2019 (DBP Bill) is a critical part of the state’s response to lifting building standards in the wake of the Shergold-Weir report.

Ms Loseby said without passage of this legislation, the funding and fast-tracking of projects, including Class 3 apartments, will mean more new buildings that are plagued by the same construction quality issues.

“The DBP Bill is supported by both major parties and passing it needs to be a top priority for the NSW Government.”

With Covid-19 restrictions easing, the NSW Government is now looking to reinstate more parliamentary sitting days, which would enable the DBP Bill to be debated.

“The stark reality is that we can’t afford to wait until a mooted return to sittings in September.”

“This legislation is fundamental to restoring consumer confidence and avoiding further costs being placed on the public purse from shoddy construction work.

Ms Loseby reiterated that stimulating construction activity and lifting standards must go hand in hand.

“One of the strongest features of this new legislation is that the new duty of care applies from the date the legislation is passed, with full retrospectivity from that time,” she said.

“This means better quality construction work will be required from all parties in the building chain from the day the bill is passed. This is imperative to positively change the construction process and is not something that can be delayed.”

Original article from Build Australia.

"A dramatic fall in builders quote figures...","Margins being cut..." "Subcontractor rates have plummeted..."

What are the implications for the Formwork Industry?
How is your business affected?

Let the FIA know.

We are seeing a number of projects going ahead with a number of companies willing to sacrifice profit margins in order to keep their businesses open. What does this mean for the industry? Who will survive and how to we keep workers employed in the sector and safety levels uncompromised?

READ THE FULL ARTICLE IN BUILD AUSTRALIA