The development of Australia’s new Work Health and Safety laws relies on potential prosecutions and Court rulings to clarify various elements and definitions. Some labour lawyers have forecast this clarification to take several years however last week The Warrnambool Standard reported on a decision by the Victorian Civil and Administrative Tribunal (VCAT) that provides a worrying clarification on the contentious definition of “as far as is reasonably practicable” from outside the anticipated Court structure.
WorkSafe Victoria placed an improvement notice on a woodchipper owned by the Warrnambool City Council following an incident in September 2011 where a worker, David Johnstone, had both hands removed by the blades of the woodchipper. The improvement notice stated that additional guarding in the form of a “bump bar” be installed on woodchippers. The Council requested a review of the notices through WorkSafe’s review processes. The directions stood and the Council appealed to VCAT, as per the normal process. VCAT found that the engineering controls demanded by WorkSafe were not required as the administrative controls advocated by the Council were found to have “reduced risk “so far as is reasonably practicable”.
The VCAT decision is concerning because it seems to conflict with the application of the Hierarchy of Controls for risk in which machine guarding, an engineering control, is considered a more effective control measure that administrative controls such as those favoured by the Council
“… to ensure two workers were always present when the chipper went back into operation — one responsible for operating the controls and the other putting branches into the feed-in chute.”
Administrative controls are not always in place or can be misunderstood where engineering controls are often fixed items that are mechanically controlled and therefore less prone to malfunction, without interference.
According to the regional newspaper, WorkSafe
“..urged VCAT to affirm the notice, saying it was appropriate. The cost to fit the bar was estimated at between $1100 and $3300. WorkCover said the retro-fitting of a safety bar might not remove all risks associated with the machine, but could provide a further safeguard for operators. It told VCAT that bump-bars were available and in use and were now a standard feature on some new machines.”
“While use of chippers is integral to amenity tree work, they present a constant hazard when in operation, with the potential for serious injury or death if operators become entangled or if material is thrown back during feeding.
To reduce the risk of injury or death:
- guard the chipper’s drives and v-belts to prevent entanglement
- make sure the chipper has a functional braking system
- clearly mark controls and describe their function
- ensure that controls are readily accessible so that the chipper can be shut down instantly if a problem occurs
- ensure that the chipper has an emergency stop button.”
It would seem to be that a viable argument that the local council was not following the established safety advice of the OHS regulator at the time of the Johnstone’s injuries, was operating from a deficient state of knowledge, was using “unsafe” plant and were not applying a “safe system of work”.
Council Minutes for 17 November 2008 record that six staff undertook training in “Woodchipper Operation & Safety” in September and October 2008 so someone in Council determined there was a risk in using such machines and that training was required. It seems extraordinary that the Council Minutes of the first meeting after Johnstone’s horrific injuries record no mention of the incident although Councillor Hulin raised “the issue of occupational health and safety” on page 188. With the increasing legislative attention to positive safety duties of executives and the need to due diligence on workplace safety, it is unlikely that such an oversight would be tolerated in 2012.
This last point seems to be taken up by the David Johnstone’s lawyers. A 23 July 2012 article in The Warrnambool Standard is reporting that Johnstone is considering seeking compensation from the Council in a civil law action. Solicitor Gary Foster told the paper:
““While there has been a public outpouring of goodwill for David from not only the council, but also the broader community since the tragedy, the fact is that if such a system of work which the council now regards as proper was already in place back in September, David almost certainly would not have lost both of his hands and had his life tipped upside down.” (emphasis added]
Although Foster’s comment relates to the Council’s introduction of an administrative control, overseas safety guidance from the US and UK dated prior to the September 2011 support the use of engineering controls.
VCAT’s decision should concern safety professionals and lawyers in that
- it ignores the existing local and international knowledge on safety devices in relation to woodchippers;
- it prefers control options of a lesser reliability than the currently available engineering measures;
- it argued against the advice of the OHS regulator who should be seen as the subject matter expert for this work process and plant use.
But of broader concern is that VCAT’s decision questions the authority of WorkSafe Victoria and establishes a level of safety compliance that, although “safe as far as reasonably practicable”, remains a less reliable risk control measure than the engineering solutions currently available and increasingly becoming standard safety equipment on woodchippers.
VCAT, apparently, processes dozens of appeals of WorkSafe determinations every year so there may be a safety knowledge base available in the tribunal but in the case of the Warrnambool City Council woodchipper, VCAT’s decision is curious and could set a precedent if WorkSafe does not pursue the matter further.