A heavy-duty trailer manufacturer has been convicted and ordered to pay more than $30,000 after a trailer fell while being lifted, narrowly missing three workers.
MaxiTRANS Australia Pty Ltd was sentenced in the Ballarat Magistrates’ Court on 18 January after pleading guilty to a charge under the Occupational Health and Safety Act for failing to maintain systems of work that are, as far as is reasonably practicable, safe and without risk to health.
The company was fined $25,000 and ordered to pay costs of $5,742.
The court heard that on 20 June 2018, three workers were using two cranes to lift a partially constructed trailer at its Wendouree premises. Workers usually did this by attaching chains to lifting lugs, which were fixed to the trailer using a magnetic drill.
However, on this date, the magnetic drills were being repaired. The court heard that workers instead looped a chain and hook around rails at the front and rear of the trailer, before lifting.
As a worker was placing a support stand beneath the raised trailer it fell – hitting the stand, rolling to the right and narrowly missing all three workers.
WorkSafe Executive Director of Health and Safety Narelle Beer said WorkSafe would not hesitate to prosecute employers who fail in their duty of care to maintain a working environment that is safe and without risks to health.
“This was a significant failure, which could easily have been catastrophic for the three workers involved,” Dr Beer said.
“The risks associated with working with cranes are well-known and there is no excuse for failing to ensure that safe systems are in place to protect workers.”
When using cranes, measures to manage the risks include:
Selecting the proper crane and lifting equipment for the task, size and weight of the load.
Ensuring cranes are maintained in accordance with the manufacturer’s specifications and requirements, and operated within their design parameters.
Checking that crane operators and persons connecting loads have the skills, training and licences to operate safely.
Creating and adhering to safe systems of work and ensuring all workers are properly trained and competent before commencing the task.
Considering environmental factors such as weather, ground bearing capacity, overhead and underground services such as powerlines and pipes/drains, and ensuring non-essential persons are excluded from the area of operation.
For construction work, ensuring a Safe Work Method Statement (SWMS) is created and adhered to.
Western Australia has released exposure drafts of regulations for the Work Health and Safety Act 2020, ahead of the commencement of major work health and safety (WHS) reforms in March 2022. The Act brings together work health and safety for general industry, mines and petroleum operations, all under a single WHS Act. Releasing the exposure drafts of the supporting regulations will provide an opportunity for all participants in Western Australian workplaces to prepare themselves to meet the requirements of the new Act and to improve safety in their workplaces.
The regulations will come into effect in March 2022; Industrial Relations Minister Stephen Dawson has encouraged the community to begin familiarising themselves with the regulatory requirements of the Work Health and Safety regime that will come into force in 2022. Drafting the WHS regulations for all three sectors, which are needed to allow the WHS Act to be proclaimed, was a complex process. In recognition of the importance of this legislation, the state government has allocated significant resources to the drafting process and partnered with peak employee and employer bodies to ensure a wide distribution of information about the WHS laws. This approach will complement promotional activities being undertaken by the Department of Mines, Industry Regulation and Safety to other important stakeholders, as well as a government-funded education and awareness campaign.
“Every Western Australian has the right to expect a safe workplace where at the end of their day’s work they can return home to their loved ones uninjured and healthy. I encourage everyone to take the opportunity to access the exposure draft regulations and to take the time that is available to prepare themselves,” Dawson said.
The exposure drafts of WHS regulations can be accessed below:
The Department of Mines, Industry Regulation and Safety will be running WHS update sessions during January and February. The sessions will be held in Perth metro and regional areas, with live streaming where possible. Webinar recordings and videos on WHS implementation are also available.
Have your workplace arrangements changed recently? It’s important to remember that COVID-19 risk management is an ongoing process, not a one-off. See our website for information on risk assessments, including how to review and monitor control measures and assess any new or changed risks.
Risk management is a proactive process that helps you respond to change and facilitate continuous improvement in your business. It should be planned, systematic and cover all reasonably foreseeable hazards and associated risks.
A risk assessment involves considering what could happen if someone is exposed to a hazard (for example, COVID-19) and the likelihood of it happening. A risk assessment can help you to determine:
what action you should take to control the risk, and
how urgently the action needs to be taken.
The exposure of your workers and/or customers/clients to COVID-19 is a foreseeable risk that must be assessed and managed in the context of your operating environment.
A risk assessment will assist to:
identify which workers are at risk of exposure
determine what sources and processes are causing the risk
identify if and what kind of control measures should be implemented, and
A risk assessment can be undertaken with varying degrees of detail depending on the type of hazard and the information, data and resources that you have available. It can be as simple as a discussion with your workers or involve specific risk analysis tools and techniques developed for specific risks or recommended by safety professionals. For some complex situations, expert or specialist advice may be useful when conducting a risk assessment.
When should I do a risk assessment?
Managing work health and safety risks is an ongoing process that needs attention over time, but particularly when any changes affect your work activities.
All currently operating businesses must assess the risks associated with exposure to COVID-19 and implement control measures to manage those risks. They must also assess any other new or changed risks arising from COVID-19, for example, customer aggression, high work demand or working in isolation.
You must also undertake a risk assessment with response to risks to any vulnerable workers working in your business. Risk needs to be assessed and mitigated with consideration of the characteristics of the worker, the workplace and the work. This includes ensuring vulnerable people are redeployed to roles that don’t involve physical contact with customers, where possible. Where risk cannot be appropriately mitigated, employers and workers should consider alternate arrangements to accommodate a workplace absence. For more, go the Vulnerable workers information.
Other examples of when businesses must undertake a risk assessment with respect to COVID-19, include where a business:
changes work practices, procedures or the work environment
recommences operations following a shut down
increases operations following a period of reduced operations
introduces workers back into the workplace following the cessation of working from home or stand-down arrangements
is responding to workplace incidents (e.g. where a worker has tested positive to COVID-19)
is responding to concerns raised by workers, health and safety representatives, or others at the workplace
Risk assessments should be reviewed periodically as the operating environment changes (for example, in response to changes in COVID-19 cases or changes to public health orders) or when new information on workplace risks becomes available. This should include the periodic review of control measures implemented to ensure their ongoing appropriateness and effectiveness based on the latest information.
A safe and healthy workplace does not happen by chance or guesswork. You have to think about what could go wrong at your workplace and what the consequences could be. Then you must do whatever you can (in other words, whatever is ‘reasonably practicable’) to eliminate or minimise health and safety risks arising from your business or undertaking.
This process is known as risk management and involves the four steps (see Figure 1 below):
Assess risks, if necessary—understand the nature of the harm that could be caused by the hazard, how serious the harm could be and the likelihood of it happening. This step may not be necessary if you are dealing with a known risk with known controls.
Control risks – implement the most effective control measure that is reasonably practicable in the circumstances and ensure it remains effective over time.
This process will be implemented in different ways depending on the size and nature of your business. Larger businesses and those in sectors where workers are exposed to more or higher risks are likely to need more complex, sophisticated risk management processes.
Consultation with workers and their health and safety representatives is required at each step of the risk management process. By drawing on the experience, knowledge and ideas of your workers, you are more likely to identify all hazards and choose effective control measures.
Figure 1. The risk management process
Where do I go to find information about risks and control measures?
General risks – Safe Work Australia’s website has information on known risksfor some industries and activities. Your industry association, jurisdictional WHS regulator and health department are also good sources of information.
Business specific risks – You and your workers know your business better than anyone. Working in consultation with your workers you can identify risks specific to your business and ways these can be addressed. If you need help with this you can call your WHS regulator for advice. For example, the Italian deli owner who knows they have a queue for their specialty bread every Saturday morning could allow customers to call ahead and have a loaf put aside for them to avoid the early morning queue.
The unexpected – Some risks you might not be able to predict but you can pick them up by monitoring the work environment and checking in with your workers. For example, the local café offering home delivery during COVID-19 might suddenly find the demand is much higher than before but keeping up with this demand gives the chef a sore back. The café in consultation with their staff might put in anti-fatigue mats or re-task staff who used to wait tables to assist the chef.
How do I know what is ‘reasonably practicable’?
Deciding what is reasonably practicable to protect workers or other persons from harm requires taking into account and weighing up all relevant matters, including (but not limited to):
Likelihood of the hazard or risk occurring – the greater the likelihood of a risk occurring, the greater the significance of this factor when weighing up all matters and determining what is reasonably practicable
Degree of harm that might result from the hazard or risk– the greater the degree of harm that might result from the hazard, the more significant this factor will be when weighing up all matters to determine what is reasonably practicable. Where the degree of harm that might result from the risk or hazard is high, a control measure may be reasonably practicable even if the likelihood of the hazard or risk occurring is low.
Knowledge about the hazard or risk, and ways of minimising or eliminating the risk – this must take into account what the duty holder actually knows and what a reasonable person in the duty holder’s position would reasonably be expected to know
Availability and suitability of ways to eliminate or minimise the risk – requires consideration of what is available and suitable for the elimination or minimisation of risk, and
Costs associated with the available ways of eliminating or minimising the risk – after assessing the extent of the risk and the available ways of eliminating or minimising the risk, consideration can be given to whether the cost of implementing a control measure is grossly disproportionate to the risk.
The highest level of protection that is reasonably practicable in the circumstances should be provided to eliminate or minimise the hazard or risk.
What do the ‘costs’ associated with eliminating or minimising a risk include?
The costs of implementing a particular control measure may include (but are not limited to) matters such as:
costs of purchase, installation, maintenance and operation of the control measure
any impact on productivity as a result of the introduction of the control measure, such as reductions in output and or increases in work hours.
When considering costs you should also take account of any savings that may result from reductions in incidents, injuries, illnesses and staff turnover, as well as improvements in staff productivity.
How do I determine whether the costs of eliminating or minimising a particular risk are ‘reasonably practicable’?
To determine whether expenditure to eliminate or minimise a risk is ‘reasonably practicable’ in the circumstances, you must consider:
the likelihood and degree of harm of the hazard or risk,
the reduction in the likelihood and/or degree of harm that will result if the control measure is adopted, and
the available ways of eliminating or minimising the risk.
The more likely the hazard or risk, or the greater the harm that may result from it, the less weight should be given to the costs of eliminating the hazard or risk.
Where there are several options for eliminating or minimising a risk and they would achieve the same level or reduction in the likelihood or degree of harm, a duty holder may choose to apply one or more of the less costly options. However, choosing a low-cost option that provides less protection, simply because it is cheaper, is unlikely to be considered ‘reasonably practicable’.
Importantly, the question of what is reasonably practicable in a particular circumstance is determined objectively, not by reference to your capacity to pay or other individual circumstances.
If you cannot afford to implement a control measure that, based on the risk assessment and weighing up of the factors listed above, is necessary to eliminate or minimise the risk, you should not engage in the activity that gives rise to that risk.
How do I know if the costs of eliminating or minimising a risk are ‘grossly disproportionate’?
To determine whether the costs of eliminating or minimising a risk are ‘grossly disproportionate’ you must balance the likelihood of the risk occurring and degree of harm that might result, with the cost of the control measure.
It may not be necessary to implement costly control measures to eliminate or minimise a risk that has a low likelihood of occurring and would cause minor harm. However, it may be reasonable to apply less expensive controls to further lower the likelihood of the risk.
What do I do if I find the costs associated with eliminating or minimising a risk are ‘grossly disproportionate’?
Where the cost of implementing control measures is grossly disproportionate to the risk, implementation may not be reasonably practicable and is therefore not required. The duty holder must then use a less expensive way to minimise the likelihood or degree of harm.
Engineering company Andrew Buchanan Engineering Ltd has been fined $300,000, following an incident in which a worker was fatally crushed at a Leitchville factory in Victoria in 2017. The company was sentenced without conviction after pleading guilty to two charges of failing to ensure, so far as was reasonably practicable, that the workplace under its management and control was safe and without risks to health.
The company was engaged to oversee the dismantling and packing of equipment at a decommissioned cheese factory, for relocation to New Zealand, when the incident occurred. However, there was no representative from Andrew Buchanan Engineering on site when a condenser weighing 770 kg was moved into a closed-top shipping container with a crane in December 2017.
Two workers were inside the container, preparing to remove skates from underneath the condenser, when it fell off a jack and crushed them. A 59-year-old man died at the scene, while another man was seriously injured. An investigation by WorkSafe Victoria revealed that there were reasonably practicable measures available that could have reduced or eliminated the risks associated with the task, including using an open-top or flat rack shipping container. The company also failed to ensure that the workers packing the equipment were appropriately supervised.
WorkSafe Victoria Executive Director of Health and Safety Dr Narelle Beer said it is crucial for duty holders to ensure proper plans are in place before high-risk work commences. “Workers must be provided with clear instructions on how to perform tasks safely, especially when working with heavy machinery. WorkSafe will not hesitate to prosecute duty holders who fail to do all that is reasonably practicable to protect health and safety in workplaces under their management or control,” said Dr Beer.
A-1 Engineering Pty Ltd has also been charged and will appear in the Bendigo County Court for an application on 2 February 2022.
To manage risks, WorkSafe Victoria urges duty holders to ensure that work involving lifting or suspending loads is thoroughly planned, to identify designated lifting areas, landing areas and load travel corridors. Duty holders should also ensure that the appropriate shipping container configuration is chosen for the specific piece of equipment being loaded or unloaded, and that an appropriate mechanical aid is selected to lift or move heavy machinery in a controlled manner. Workers must also receive the necessary instruction, training and supervision to enable them to perform high-risk tasks safely.
Regular access to elevated points on buildings or structures to perform routine maintenance or other tasks is not uncommon. In these situations, a fixed ladder integrated into or onto a structure is often used and it’s not unusual for a cage to be installed around the ladder in the mistaken thinking this will mitigate the risk of injury should a worker fall while climbing. But a fixed ladder with a cage is not a fall arrest system. In fact, as of 19 November 2018, the United States’ Occupational Safety and Health Administration (OSHA) has taken the formal stance that cages are not considered compliant fall protection on newly installed ladders.
Research into the effectiveness of fixed ladder cages has shown that they do not provide sufficient protection from falls. This research prompted OSHA to provide new parameters that are intended to improve protection from falls at height, provide greater flexibility and ease of use for workers, and make decisions around compliance and suitable solutions easier to navigate. These OSHA General Industry regulations were updated to reflect the changing understanding of and attitude towards the safety of fixed ladder cages and ladder climbing in general. What this change effectively means is any fixed ladders that need to be installed, repaired or replaced must be done so in accordance with the new Standard. Installing a certified ladder safety system that includes vertical lifelines or overhead self-retracting lifelines (SRLs) are both options thatprovide safe and effective means of access, and are easy to install as part of a new build or as a retrofit to existing ladders.
In 1996, OSHA 1910.21 defined a cage as “an enclosure that is fastened to the side rails of the fixed ladder or to the structure to encircle the climbing space of the ladder for the safety of the person who must climb the ladder”. On the other hand, it defined a ladder safety device as a device “designed to eliminate or reduce the possibility of accidental falls”. The difference in these definitions shows the way both safety devices were viewed at the time those regulations were implemented. Ladder safety devices were specifically intended to prevent or arrest falls, whereas cages were intended to improve safety without any specific explanation as to how they would do so.
These changes to the OSHA regulations have not necessarily been immediately reflected in other international standards and codes, but this change does represent a broader shift in how we look at the associated risks of ladder climbing. There is an existing assumption around safety at heights that if a caged ladder ‘complies’ with the relevant building codes, and if an employee were to then slip and fall from the ‘compliant’ ladder, the employer or building owner would be safe from any litigation. But this is not the case. It is the responsibility of the building designer, owner and employer to provide a safe work environment. This means ensuring that whatever means of access, the most suitable safety solution is applied. Should an incident occur, investigators and the court system will refer to best practice protocols to assess whether the system met the needs as determined by risk assessment.
Fall Arrest Solutions
For a person climbing a ladder, there are two systems that will genuinely provide fall protection:
A self-retracting lifeline (SRL) that is fixed to a suitable anchorage point at the top of the structure and connected to the operator’s harness. OR
A guided fall arrest system (vertical lifeline) that is permanently fixed to the ladder.
Installing an SRL to the top of a ladder typically provides an easy solution, but it is not always practical considering the constant exposure to the elements and need for a rated anchor point. Hence the design of a good fall arrest system must take into account some basics of modern fall protection thinking:
The system must be easy to use. If it is not, the level of compliance may be lower than expected.
The system must limit the forces that will be applied to the person in the event of a fall to less than 6 kN — the less force the better.
The system must not drag on the person as they climb, otherwise it makes climbing all the more difficult, increasing the risk of fatigue.
A fall arrest system must be a system of components that enable the line of the system to follow the building or structure that it is connected to.
A good system will provide ‘continuous connection’ from the moment the person leaves the ground. This will enable the person to climb to wherever the job is, carry out the task and return, without disconnecting from the system.
There is still an argument for maintaining ladders in combination with an approved fall arrest system, particularly in circumstances where climbing may occur in a highly exposed environment where a cage may provide a level of physical and psychological comfort which can be very important to the climber. However, a cage around a ladder is not going to prevent an unconscious person from falling, whereas a fall arrest system will capture the user within a short distance. A caged ladder must not be mistaken for a ladder with an integral fall arrest system. Only a ladder (caged or otherwise) fitted with a fall arrest system will provide long-term safe access for workers in a way that will minimise the risks involved in climbing.
However, there are some obvious risks in the use of ladder cages as a primary safety method; for example, the potential for head-strike during a fall, loss of consciousness and creation of an extremely difficult rescue scenario for first responders. There are also cases of gruesome entanglements where falling workers tear off body parts during a rapid, uncontrolled descent. These kinds of risks are addressed when vertical lifelines are installed as safety systems. When applying the Fall Protection Hierarchy of Controls, it clearly identifies that a fixed ladder is not the ideal means of access if the work area requires frequent attention. In such circumstances, engineering out the risk by removing the need to access the area by moving essential plant and machinery to a more accessible position or the use of passive or collective systems (eg, stairs and walkways) are more appropriate, if possible.
Ultimately, as workplaces have changed, the understanding of hazards has also increased and subsequently the development of solutions and technology to manage those risks has evolved. Adopting best practice is always the most effective means of maintaining the health and safety of a workforce, and the use of cages does not reflect best practice. OSHA’s shift represents a positive step in reinforcing higher standards of safety and helps identify existing gaps in our current methodologies. Best practice includes the use of methods and techniques that best display thorough and effective safety management protocols, and looking at systems design, user profile, frequency of use and testing and certification as indicators of suitability.
*Scott Barber is a professional marketer, copywriter and safety specialist with over 20 years’ experience designing, driving and facilitating communication and education as a fundamental engagement tool. Specialising in safety and rescue, both operationally and as a consultant, he uses his experience across multiple industries to deliver solutions targeting specific stakeholders using communication as the critical driver for change.
