Government response to Coroner’s recommendation
Thursday, 17 October 2019
In the interests of transparency and accountability, I would like to update the house on the government’s response to the State Coroner’s Finding of 1 November 2018, following the Inquest into the death of Mr Castillo-Riffo.
Mr Castillo-Riffo was fatally injured whilst performing patching work from an elevating work platform, or EWP, at the new Royal Adelaide Hospital construction site in November 2014.
The State Coroner made six recommendations following the Inquest. Of those recommendations, one, which appears at paragraph 38.7 of the State Coroner’s Finding, was directed to the Attorney-General. I will return to that recommendation later.
I have taken advice from SafeWork SA in respect of the other five recommendations, which appear at paragraphs 38.2 to 38.6 of the State Coroner’s Finding, and on 14 October 2019 I wrote to the Deputy State Coroner to provide a response those five recommendations on behalf of the government. I now address each recommendation in turn.
Paragraph 38.2 of the State Coroner’s Finding recommended that “the Elevating Work Platforms document dated September 2016 should be distributed on an annual basis electronically and in hard copy to all relevant building industry participants in South Australia. In addition, electronic links to the information sheet should be displayed permanently on SafeWork SA’s webpage and be kept current. The associated minimum standard of training document should be brought into line to include references to clear lines of sight.”
SafeWork SA has implemented this recommendation. The document referenced within the recommendation has been restored to SafeWork SA’s website. The document can be found on a dedicated page for the safe operation of elevating work platforms and will be displayed permanently and updated as necessary.
In addition, SafeWork SA has undertaken a recent audit of EWPs in South Australia, which concluded on 30 June 2019. SafeWork SA will soon be releasing the results of the audit in a report to the public. The report will be distributed to workplaces and industry groups together with an information sheet that addresses the key issues identified by the audit. That information sheet will also be provided to all persons and organisations on SafeWork SA’s emailing list, which comprises some 12,000 contacts. It is intended that inspectors will continue to distribute the information sheet on an annual basis to workers and PCBUs, that is, persons conducting a business or undertaking.
Paragraph 38.3 of the State Coroner’s Finding recommended that “the question of standardising scissor lift controls be given far greater impetus at a State and National level and that it be elevated to the Council of Australian Governments (COAG) for the commissioning of a project to pursue the standardisation of controls in scissor lifts.”
The government accepts this recommendation. The Treasurer will raise the question of standardising scissor lift controls with the relevant COAG Council. Further, SafeWork SA, as a member of Safe Work Australia, will seek permission from the Chair of Safe Work Australia to have this matter placed on its agenda for a future meeting. Safe Work Australia is the peak tripartite body responsible for the development of national policy relating to workplace safety and would be the appropriate body to commission a project to pursue the standardisation of controls in scissor lifts in conjunction with Standards Australia.
I am advised that work is currently being undertaken by the International Standards Organisation to develop an international standard for EWPs that relates to controls. Standards Australia, Australia’s peak national standards body, is a participating member of the committee which is responsible for developing these standards.
Paragraph 38.4 of the State Coroner’s Finding recommended that “until the implementation of a system of effective standardisation of scissor lift control configuration across the country, that scissor lifts not be operated unless there is a person on the ground operating as a spotter who is available at all times to take steps to activate the emergency lowering mechanism should that be necessary.”
The Work Health and Safety Act 2012 (the WHS Act) and the Work Health and Safety Regulations 2012 (the Regulations), assessed by reference to approved codes of practice, currently require the presence of ground support personnel trained in the activation of an EWP’s emergency lowering mechanism, if that is “reasonably practicable”, within the meaning of section 18 of the WHS Act, to ensure the health and safety of workers.
Transitional arrangements provided for in Schedule 6 section 23 of the WHS Act and regulation 739 of the Regulations preserve Australian Standard 1418.10 and Australian Standard 2550.10 as approved codes of practice under section 274 of the WHS Act.
Pursuant to section 275 of the WHS Act, an approved code of practice is admissible in legal proceedings as evidence of whether or not a duty or obligation under the WHS Act has been complied with.
Section 5.14 of Australian Standard 2550.10 concerns assistance from ground support personnel and relevantly provides as follows:
- Prior to operation, a system of communication shall be established between people working on the platform and nominated support personnel.
- Arrangements shall be made for rescue in the following events:
(a) failure of the elevating mechanism;
(b) Disabling injury or sickness of the operator;
(c) the mobile elevating work platform coming into contact with the overhead powerlines; and
(d) the operator being suspended in a safety harness after being expelled from the mobile elevating work platform.
- Ground personnel shall be trained in the use of emergency retrieval systems.
PCBUs should refer to Australian Standard 2550.10 and Australian Standard 1418.10 to determine whether they are compliant with their duties under the WHS Act and Regulations.
It is for duty holders to determine what is reasonably practicable to ensure health and safety of workers in the particular circumstances. This includes taking into account and weighing up all relevant matters, including those in section 18 of the WHS Act, which are:
- The likelihood of the hazard or the risk concerned occurring;
- The degree of harm that might result from the hazard or risk;
- What the person concerned knows, or ought reasonably to know, about the hazard or the risk and ways of eliminating or minimising the risk;
- The availability and suitability of ways to eliminate or minimise the risk; and
- After assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
EWPs are used in many workplaces, in diverse circumstances, and across a wide variety of industries, including construction, manufacturing, energy, mining, communications, emergency services and the retail industry, as well as in supermarkets. Stakeholders have expressed the view that requiring a spotter to be available at all times when an EWP is in operation would have a cost impact on business that, in some circumstances, would be relatively expensive compared with other ways of minimising the risk to workers’ health and safety, and that the cost involved would also be grossly disproportionate to that risk in some cases.
Also, stakeholders have expressed the view that the mandatory use of a spotter in each and every situation is inflexible and has the potential to create other problems. For example:
- The presence of a spotter may detract from the need to adequately identify hazards as the PCBU and/or EWP operator may perceive that the risk to safety should be managed by the spotter rather than by proper planning and machine selection;
- The requirement for a spotter to be present at all times could lead to workers using means other than EWPs, such as a ladder or scaffolding, to access higher areas in circumstances where an EWP would be safer and more suitable for the task;
- The mandatory use of spotters may divert resources from other, more effective measures to mitigate risks and improve work health and safety; and
- In situations where a spotter will be exposed to serious risks to their own safety in order to perform that role, the use of a spotter may be inappropriate.
The experience in other jurisdictions is that the presence of a designated spotter on the ground does not ensure that the operator of an EWP will be safe from crush injury. I have had regard to reports of incidents involving EWPs interstate, including the Investigation Report prepared by the New South Wales Mine Safety Investigation Unit regarding the death of Mark Daniel Galton at Boggabri Coal Mine on 21 May 2014.
- Mr Galton was working as a rigger and died when his head and neck were crushed between a mobile EWP and the underside of a large steel beam. At the time of the incident, Mr Galton was relocating the platform of the EWP to ground level and he was alone in the platform.
- Mr Galton had a designated spotter on the ground and had also asked a leading hand rigger on a nearby level to observe him during the movement of the platform over a walkway.
- The leading hand rigger called out to Mr Galton when he saw there was a gap of about 5cm between Mr Galton’s head and the steel beam above. Mr Galton stopped the platform and verbally acknowledged the warning.
- Neither Mr Galton’s designated spotter nor the leading hand rigger saw the actual incident. The leading hand rigger’s next observation was that Mr Galton was trapped between the frame above the platform control console and the overhead beam. The leading hand rigger then initiated an emergency response.
The Investigation Report highlighted the importance of having an effective risk management program in place in such circumstances and emphasised that a combination of measures to minimise risk ought to be used if no single measure is sufficient for that purpose.
The government considers that the existing risk-based approach is preferable to requiring ground support personnel to be available in all circumstances, including in those circumstances where that would not be reasonably practicable. The government therefore does not accept the recommendation.
In the course of SafeWork SA’s recent audit of EWPs, inspectors assessed PCBUs by reference to the existing legislative framework and approved codes of practice and issued several improvement and prohibition notices to PCBUs, including five in the manufacturing industry for a lack of training and/or instruction in the operation of emergency descent controls and rescue procedures.
SafeWork SA will be developing educational material about the provisions of the approved codes of practice for industry and will also be undertaking a follow-up audit in January 2020 with a focus on assistance from support personnel.
Paragraph 38.5 of the State Coroner’s Finding recommended that “SafeWork SA consider whether the balance in the WHS Act and Regulations between safety being managed by risk assessment as opposed to express mandatory rules about what must occur in particular circumstances should be shifted in favour of more express mandatory rules and take that matter up with SafeWork Australia for consideration.”
The government accepted this recommendation and gave consideration to the finding. SafeWork SA has considered the issue and advised the current legal framework is appropriately balanced. The Government has accepted SafeWork SA’s advice.
South Australia’s work health and safety laws consist of a combination of risk management and mandatory rules. The appropriate work health and safety action in each case may differ depending on the particular circumstances and it is not always preferable to mandate that the same action must be taken in all cases. Risk management ensures that duty holders are required to do what is what is reasonably practicable to ensure health and safety in each particular circumstance.
The WHS Act and Regulations are aligned with those in New South Wales, Queensland, Tasmania and the Australian Capital Territory, the Northern Territory and the Commonwealth, who have all adopted the same national model laws. The development of the model work health and safety laws was the product of a lengthy and comprehensive process, including review by an independent expert panel which undertook extensive public consultations.
More recently, in 2018, a review of the model work health and safety laws found that there is overwhelming support for the three-tiered framework of the model WHS laws, which comprise the model WHS Act, model Regulations and model Codes.
I am advised that work is currently progressing at a national level to provide more guidance to duty holders about their obligations in relation to the inspection, testing and maintenance of EWPs. In October 2018, Heads of Workplace Safety Authorities (HWSA) endorsed the Inspecting and maintaining Mobile Elevating Work Platforms Guide, which was referred to Safe Work Australia to consider whether it should be adopted as national guidance in July 2019.
I am further advised that members of Safe Work Australia gave majority support for developing national guidance on mobile elevating work platforms and agreed an approach to progress the development of the guide prepared by the HWSA within its existing scope (inspection and maintenance) and also agreed to prioritise the development of additional guidance on operations and controls once the first guide is published.
Paragraph 38.6 of the State Coroner’s Finding recommended “that SafeWork SA should investigate, consider and report upon the world’s best practice engineering solutions to protect workers against the risk of crushing due to overhead surfaces, including the availability and design of secondary protective systems including operator protective alarms and operator protective structures and the options for reform to require that all scissor lifts in use in South Australia have a secondary protection system.”
The government agrees that the development of engineering solutions including secondary protection systems to minimise the risks of crushing hazards and other hazards, such as electrocution and falls, ought to be investigated. SafeWork SA does not have the capacity to undertake an international review of this type, but will request that Safe Work Australia investigate this matter.
Paragraph 38.7 of the State Coroner’s Finding recommended that “the Government provide, through the Legal Services Commission, funding to enable families to be legally represented in inquests, for deaths in custody, and generally.”
This recommendation was directed to the Attorney-General, who provided a response to the Deputy State Coroner on 9 August 2019. The Attorney-General’s response indicated that the government does not accept the recommendation.
It would not be in the broader public interest for every family in every inquest to be provided with publically funded legal representation. There would be a significant cost to taxpayers in doing so, without a demonstrated need or benefit in every case. The Legal Services Commission, of course, remains able to continue to consider individual applications for legal aid, including for coronial representation on a case by case basis.
Further, it is not apparent how that recommendation might have prevented or reduced the likelihood of the recurrence of circumstances similar to those surrounding the death of Mr Castillo-Riffo.
I will provide further information to honourable members about the progress of the implementation of the recommendations that have been accepted and other important work in this area as it becomes available.