Occupational Health and Safety

Conducting risk assessments: Clearly define task and consider all possible hazards: Inspector John Sibilant Royal Automotive Club of Australia Incorporating Imperial Services Club Ltd (No 2) [2008] NSWIRComm 167
An employer must clearly define tasks and take into account all possible hazards and employee ‘foibles’ which go beyond the expected risks when conducting risk assessments. Read more.

Indemnity clauses will not cover independent acts of negligence in OH&S by principal contractors: Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114
The Court of Appeal of the Supreme Court of NSW has recently held that:

• a head contractor owes a non-delegable duty to its employees to provide a safe system of work, and
• an indemnity clause in a subcontract will not cover liability of a principal contractor under the Occupational Health and Safety Act 2000 (NSW) where such liability arose out of the principal contractor’s own independent act of negligence and not the performance by the subcontractor of its contractual obligations.

Read more.

“Place of work” under the OH&S Act (NSW) has been clarified to include immediate environs: Inspector Morgenthal v Visy Paper Pty Ltd [2008] NSWIRComm 211
The New South Wales Industrial Court has recently held that “place of work” under the Occupational Health and Safety Act 2000 (NSW) extends to cover the immediate environs which may be affected by the conduct of work at premises used as workplaces. Read more.

Occupational Health and Safety Amendment (Major Hazard Facilities) Regulation 2008(NSW)
New legislative requirements dealing with hazard identification and risk assessment in relation to major hazard facilities have come into force. These requirements may apply to more than 30 facilities in New South Wales. Read more.

Work Safety Act 2008 (ACT): Commences 1 July 2009
The ACT Parliament has recently passed the Work Safety Act 2008 (ACT) to wholly replace the Occupational Health and Safety Act 1989 (ACT). This new Act is to come into force from 1 July 2009 and widens the scope of the duties and persons covered as compared with its predecessor. Read more.

Diemould Tooling Services Pty Limited v Oaten; Santos Limited v Markos [2008] SASC 197
Section 19(1) of the Occupational Health, Safety and Welfare Act 1986 creates a single offence and pleading multiple breaches does not offend the rule against duplicity. Read more.

Security of Payments Legislation

Perform (NSW) Pty Ltd v Mev-Aus P/L & Anor [2008] NSWSC 701
Section 13(4) of the Building and Construction Industry Security of Payment Act 1999 (NSW) does not allow for reasons to be incorporated into a payment schedule by reference. Read more.

Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248
The Federal Court of Australia recently considered whether there was a valid basis for a claim for summary judgment in the absence of a valid payment claim. The court also considered the formal requirements of payment claims and payment schedules. Read more.

Peter’s of Kensington v Seersucker Pty Limited [2008] NSWSC 897
The New South Wales Supreme Court considered the following in relation to the Building and Construction Industry Security of Payment Act 1999 (NSW): (i) what constitutes a construction contract within the meaning of the Act and (ii) what level of detail must a payment claim have for it to comply with section 13 of the Act. Read more.