Andrew Douglas: All right, let’s go to our big case for the day.

Nina Hoang: Main topic.

Andrew Douglas: Yeah, Whakaari.

Nina Hoang: Which is a New Zealand case.

Andrew Douglas: Yeah, now look, we chose this New Zealand case after sort of some chatting because, I mean this is a terrible case. 22 people killed, 25 people seriously injured, volcanic eruptionNina Hoang: .

Nina Hoang: Yeah, it’s really awful.

Andrew Douglas: On an island that erupted in 2016 without death and-

Nina Hoang: Earlier than that-

Andrew Douglas: 1904 I think it was-

Nina Hoang: A lot of deaths, yeah.

Andrew Douglas: Yeah, but the issue is this. It was an inherently hazardous site.

Nina Hoang: Yeah, it was an active volcano and it’s always been an active volcano.

Andrew Douglas: Yeah. And you might think, well, you know, this is real once in a once in a lifetime sort of case. Well, let me just give you a couple of other examples, which are just the same. What about Outward Bound taking kids from schools to the beach where there are waves that, and undertows that could take kids and drown them. Exceptionally hazardous place.

What is the information you should have, as far as a risk assessment, and what are the controls that you should have in place?

Entering a new building site– which was a pre 1970 site in, around the Melbourne docks, it’s going to be filled with asbestos. What is the, you know, it’s an extraordinarily hazardous site. It’s just not obvious. It doesn’t go boom, but the risks are boom.

Nina Hoang: Yeah.

Andrew Douglas: And they can kill lots of people. So we talked about this ’cause they ended up getting about two or $3 million of fine and about $10 million of reparations, New Zealand dollars, against various entities. But what happened here is, the principal contractor required risk assessments to be undertaken by subcontractors. They didn’t really have one of their own.

Nina Hoang: Yeah, they had none.

Andrew Douglas: None of them were informed by vulcanologists. They were informed by various data they collected but not done well. So here we go. I’m going to go onto a site in around the docks in Melbourne, pre 1970s built. I’m starting to excavate. What would be the first thing I would do before I knock down or do something? I get a hygienist in.

Nina Hoang: Yeah.

Andrew Douglas: I would actually-

Nina Hoang: Do an audit.

Andrew Douglas: I’d do an audit. I’d do that because A, EPA would kill me if I didn’t. But because I recognise there is an inherent hazardous basis of the place that I’m entering. When I’m taking children on Outward Bound and I’m sticking them near the surf, what am I going to do? Well, I’d certainly check what the surf is going to be like. But I wouldn’t be allowing children, young children to be going into the surf without full supervision.

Nina Hoang: And proper controls.

Andrew Douglas: And proper controls. None of that happened here.

Nina Hoang: Yeah, so not only did they not have risk assessments, they didn’t even use them properly. Like what you said about checking the weather that day. There were warnings about it being dangerous that day and no one adhered to it at all.

Andrew Douglas: Yeah, so it is that sort of blindness that goes with risk is that you become, you know, we deal in agriculture. So farm risk is an ongoing issue for us, in the sense that people who grew up on farms, and they’re not complacent, they’re just desensitised to the nature of serious risks that exists. And so they do things like drive tractors on steep falls. They lift things up, they carry things, they do all sorts of things that in any factory you would not be allowed to do.

Nina Hoang: Yeah.

Andrew Douglas: But they do it and they do it because they’re desensitised to the risk-

Nina Hoang: Yeah, ’cause they’ve done it thousands of times and nothing’s ever happened.

Andrew Douglas: And Whakaari is a desensitisation issue. It is, “Oh look, it’ll probably blow one day, but not today.” And unfortunately it did blow today and it killed lots of people. And the lesson for all of us is if you have an inherently hazardous site or an inherently hazard activity, then the risk assessment must be formed by the relevant experts around that. It must have appropriate controls in place and it must be managed and monitored. There must be a system that has integrity around them.

Nina Hoang: Yeah.

Andrew Douglas: And if not, everyone in that organisation right up to the officers are going to be liable. And that’s what Whakaari is about.

Nina Hoang: And I think what’s really important is not just having it but making sure it’s regularly reviewed. ‘Cause I find with desensitisation, people just replicate the same risk assessments over and over again, and it could be five years down the track before someone looks at it again and says, “Oh, this has changed.”

Andrew Douglas: Yeah, no, no, I agree. All right, I’m a bit muted today with this . I’m not my usual excitable self. I haven’t sworn yet. Okay, well let’s go on.

Nina Hoang: Came pretty close.

Andrew Douglas: I’m come, I’m close. Now let’s go onto our problem, which I put in two words, which I know Nina can’t say.

Nina Hoang: Oh gosh. This is actually bullying when it’s repeated.

Nina Hoang: Bigmore Secondary College’s (BSC) Beach Campus, sat on the edge of a tidal swamp and old limestone cliffs. The back oval had the dramatic backdrop of 120-meter-high limestone cliff, the base of which was washed by incoming tides.

The purpose of the Beach Campus was to allow children to embrace an outward-bound curriculum, work as teams and engage in life skills.

BeachTough Pty Ltd (BT) had been engaged to undertake littoral strip reloading, sand and pebbles placed at eroded base of the cliff, reinforced grid rap and bolting techniques to stabilise and prevent rockfall on the cliff. BSC had engaged them after a Geotech report said there was a high risk of cliff wall collapse and rockfalls from the aged and eroded cliff face because of the spreading tidal swamp.

BT employees were members of the AWU. The teachers were members of the IEU. Both the AWU and IEU arrived after giving 24 hours notice, written notice of their intention to enter the site because of dangerous conditions on site. When they arrived, Bill Sanders, the Head Teacher, asked them to sign in and be inducted.

He required them to be escorted around the site pursuant to the policy of BSC. They refused. They went to walk past him. And he asked, “What do you want to inspect?” They said, “The swamp and the cliffs.”

Bill became concerned as the areas were roped off. He said, “You must not enter those sites. They are high risk sites.” The officials ignored him, went to the cliffs, pushing past him. They poked about and soil loosened from above and shale came down, missing the officials.

BT escorted them off site and immediately lodged applications in the Fair Work Commission, with BSC, seeking to ban the officials from site as some of the shale struck cars and narrowly missed employees. BT subsequently erected signs and temporary wire fence to prevent people from accessing the cliff area. Point Leo, what?

Andrew Douglas: Ornithological.

Nina Hoang: Oh, what is that?

Andrew Douglas: It’s bird watchers.

Nina Hoang: Oh. Had a licence to enter BSC to study the mating habits of Sooty Oyster Catchers.

Is that a real bird?

Andrew Douglas: It’s a real bird.

Nina Hoang: Okay. I don’t know why you know that.

A rare coastal bird that mated in the cliffs.

You Googled it. Oh my gosh. Oh wait, sorry.

On 12th of January 24, one week after the Union imbroglio, they arrived, pushed back the temporary fencing, and clambered up the wire rap on the base of the cliff to a large limestone crest where they set up a blind for photography. Prior to entering the site, they had provided Bill with a rough risk assessment. He had told them not to climb on the cliff and honouring his instruction, they stayed at the base of the cliff.

As the four men collected stones to complete the blind, one slipped, and slid bottom first down the base of the cliff. Seconds later there was a terrible shudder. What ensued was a five-meter section of the entire cliff face detaching, collapsing and falling, killing all four men.

Wow, that’s very, very morbid.

Andrew Douglas: It’s morbid, yeah, I know it was good start but it got dark didn’t I? I must have been starting to get sick at that stage.

So did the Union Officials enter illegally, and if so, is there a risk their permit would be suspended? So no, they actually entered legally ’cause they’d made, they gave the notice, but failing to actually follow basic safety rules when they were coming about the safety issue, puts them right in the middle of that case we spoke about earlier today. So they would be in strife.

Nina Hoang: What’s it a breach of? Is it a breach of their right of entry then? If they’re not complying with, oh no safety obligationsNina Hoang: Yeah.

Andrew Douglas: Yeah, so it’s their permit obligations require them to act in a lawful manner. And when you create safety obligations, and here there are clear safety risks that existed, they came to inspect them, then they ignored all the safety risks, particularly about going to site. Then they poked around and-

Nina Hoang: And caused other people’s fear of risk.

Andrew Douglas: Yeah, so I think they’d be, they’d have-

Nina Hoang: They’d be fired.

Andrew Douglas: Yeah, yeah, yeah.

Nina Hoang: And then their permit would be suspended.

Andrew Douglas: Was the BSC demands reasonable when the Union Officials sought to enter the site? So that was Bill. And Bill said, “Look, I need you, I need to sign in.”

Nina Hoang: Yep, that’s reasonable.

Andrew Douglas: Fine, “I need you to be escorted ’cause parts of the site are quite risky and you’re not to go past the roped area because it’s there to prevent it.” I think they’re all reasonable, yeah. In fact, I think they’re almost inadequate. So they’re reasonable. He could have asked a great deal more, given the hazardous nature of where they were.

Nina Hoang: But I think if he asked for it to just be escorted around the high risk, that’s fine. Can he still ask for them to be escorted anywhere on the site, even if it’s not a risk area?

Andrew Douglas: No, I don’t think so.

Nina Hoang: Yeah. So that’s the clarification.

Andrew Douglas: Yeah, okay.

Nina Hoang: Yeah.

Andrew Douglas: Were there any breaches of safety law and if so, by who? What would be the likely prosecution? Can I just say there are so many breaches of safety that sit in this, but the school is the one that’s at the highest risk.

Nina Hoang: Yeah.

Andrew Douglas: They’ve already seen some rockfalls that they-

Nina Hoang: They know it’s high risk.

Andrew Douglas: They originally had it roped off, they then put a mobile fence around, which doesn’t-

Nina Hoang: Temporary control.

Andrew Douglas: Yeah, which is a temporary control. And merely directing someone not to climb up the wall, doesn’t change the risk of falls. So I would’ve thought that-

Nina Hoang: They endorsed them going past that temporary fence as well?

Andrew Douglas: They did, so I would’ve thought that the school, and particularly Bill in this case, I dunno what, we don’t really know what Bill’s role is, but Bill would certainly be a Section 25 breach and it could be a reckless endangerment breach.

Nina Hoang: Yeah, I think so.

Andrew Douglas: It’s not quite enough to get over the right, over the barrier for industrial manslaughter. So it’s a breach. But you’d have to demonstrate that it’s so negligent. I think it’d be difficult. Whereas it’s not going to be hard to show he had a subjective knowledge of risk of injury

Nina Hoang: And he was indifferent to it.

Andrew Douglas: And he was indifferent to it.

So I think that Bill’s trotting off to, could be trotting off to jail with this one.

Nina Hoang: Yeah.

Andrew Douglas: And so can the school.

Nina Hoang: I think the association as well.

Andrew Douglas: Yeah, I, well except-

Nina Hoang: Does that have to be employees, even if they were just like volunteers with it. The fact that they sent people off to do this stuff and it doesn’t seem like there was a proper risk assessment, knowing the risk. I feel like there is a risk there too.

Andrew Douglas: There’s a small risk, I think. But I don’t think the regulators were too excited about prosecuting a birdwatching-

Nina Hoang: But it is a breach.

Andrew Douglas: It is a breach. Okay, let’s go to the next question.

Nina Hoang: I think that’s it.

Andrew Douglas: That’s it, that’s all the questions for this week. We didn’t have a quick one this week?

Nina Hoang: No, now, just the workers’ comp.

Andrew Douglas: Okay. Let’s go, okay, All Pain No Gain. So look we, on Wednesday the 1st of May, Kim will be presenting. I think I am too.

Nina Hoang: Yes.

Andrew Douglas: Pretty interesting at the moment where we’re seeing the use of psychological hazards as being one of the major drivers behind workers’ comp claim. I think, and Nina, you and I, and Kim, what we’re seeing is, what the data suggests that it is bad breaches of psychological hazards that are most often successful. So they are the bullying, sexual harassment type of ones. I’m sure we’ll see a growth in the non agrarian ones.

Nina Hoang: Okay.

Andrew Douglas: But at the moment, there’s actually some very simple answers to fix the high level risk. And I think that’s part of what we want to chat to you about, in the premium period, in end of March.

So we also want to talk to you about how do you manage this in Victoria’s existing case estimates so that you do get a proper runoff as you’re coming into January, February, March. And we’ll talk more about how that actually works so that you can do your own calculation around it and understand it.

And Kim will give you some pointers on where to go and what to do about it. And I’ll do my usual stuff, which is talking about actually how to prevent claims.

And last, there’ll be inherent requirements discussions, particularly around mental health issues that Kim will talk about.

Nina Hoang: Which we’re seeing pop up. I think that’s probably the most common fitness for duty matters that we’re seeing across all sites.

Andrew Douglas: And it’s the most complex. It’s very hard.

Nina Hoang: Yeah.

Andrew Douglas: So look, we’re putting that together. We really look forward to seeing you.

Nina Hoang: Yeah.

Andrew Douglas: That’d be good.

Nina Hoang: Send an email to admin to RSVP. We’ve already had a few people.

Andrew Douglas: Yeah, can you give us a thumbs up ’cause I’m, I don’t really want to be here. I’m feeling sick, so see you later.

Nina Hoang: Thanks guys, bye.

Andrew Douglas: Bye-Bye.