OH & S Update
• May 2006
THE IMPLIED OHS PROVISION
A landmark decision was handed down by the Supreme Court on 15 March 2006 when a worker was awarded $1.9 million in damages.
The decision of Justice Adams in Naidu v Group 4 Securitas Pty Ltd and Nationwide News Ltd underlines that Occupational Health and Safety is an implied provision in all employment contracts and therefore it is an employer’s responsibility to ensure the health and safety of employees while at work.
Background
Mr Naidu was employed by Group 4 Securitas Pty Ltd (“Group 4”) and was contracted to provide security services for Nationwide News Ltd (“Nationwide”) between 1992 and 1996.
Over the course of his employment he was supervised by Nationwide’s Mr Chaloner, and was subjected to what the court has described as “malicious treatment”. Mr Naidu was “continuously exposed to harassment, belittlement, abuse, racial intolerance, physical assault, sexual assault, humiliation, unreasonable pressure, unrealistic work loads and responsibilities” which ultimately led to a decline in health.
General complaints to Group 4 about Mr Chaloner’s behaviour were made however nothing regarding his conduct was divulged. Subsequently Group 4 requested Mr Naidu to put up with his difficult and demanding behaviour for the good of the contractual relationship between Group 4 and Nationwide.
The Decision
The Court found that Group 4 and Nationwide were jointly liable for Mr Naidu’s psychiatric illness. Specifically Group 4 had breached its contractual obligations and its duty of care.
Whilst Mr Chaloner’s behaviour was expressly prohibited by Nationwide, the bullying occurred in the course of the manager’s employment. As such, Nationwide was vicariously liable for the manager’s behaviour.
Implications
Occupational health and safety is a non-delegable duty that is implied into all employment contracts. Employers have an obligation to protect all employees from workplace vilification, threats of physical violence, and demeaning and abusive conduct.
In this instance, the awarding of exemplary damages made an example out of this particular case. Justice Adams sent a strong signal to employers which will hopefully deter future misconduct.
In essence, employers need to be proactive in ensuring that all staff understand their rights and obligations, to both themselves and their co-workers, under their workplace harassment and bullying policies.
OHS OBLIGATIONS EXTENDED FOLLOWING EMPLOYMENT TEST CASE
On 28 February 2006, the full bench of the Industrial Relations Commission of NSW handed down its judgment in the Secure Employment Test Case [2006].
Background
The case arose from an application by Unions NSW for a ‘test case standard’ relating to security of employment. A number of issues were raised, one of which discussed the occupational health and safety obligations applicable to employers who engage a labour hire business and/or who contract out work.
The use of labour hire arrangements has undeniably become a significant and growing part of the New South Wales labour market. Unions NSW provided evidence, which demonstrated that contractors and labour hire employees are exposed to greater risks to their health and safety in the workplace when compared with their co-workers who are direct employees of a host employer. It seems that labour hire employees are traditionally contracted to perform work as a result of increased workloads requiring short turnaround, which means host employers are either unable or unwilling to provide appropriate induction training/supervision.
Unions NSW application requested a variation of exemplar awards in relation to a host employers obligations for occupational health and safety of labour hire employees. In addition to this, Unions NSW also requested that host employers be obligated to provide occupational rehabilitation in the event of a workplace injury.
The Decision
The Commission acknowledged there was “a considerable level of misunderstanding and/or ignorance in the industry as to where the responsibility for protecting the health, safety and welfare of contractors and labour hire employees lies”. Subsequently the Commission agreed to adopt the format of the proposed award changes that will require employers to;
1. Consult with those employees about the workplace occupational health and safety consultative arrangements
2. Provide those employees with appropriate occupational health and safety induction training
3. Provide employees with appropriate personal protective equipment and/or clothing and all safe work method statements that they would otherwise supply to their own employees
4. Ensure employees are made aware of any risks identified in the workplace and the procedures to control those risks
With respect to occupational rehabilitation the Commission stated that whilst they believed the present system was inadequate, this particular proposal would create uncertainty. The proposition was considered “legally flawed” given there is already a legislative requirement for insurers to confer with employers and employees to develop rehabilitation and return to work plans.
Implications
The decision has effectively created a duplication of regulation of employers. Regulation will exist under the OHS legislation as well as the Industrial Relations Act 1996. An employer may face a criminal penalty under OHS legislation, civil penalty under the enforcement provisions of the Industrial Relations Act as well as the potential civil claims for personal injury.
The duplication of obligations may lead to confusion and a host employer should review their management procedure to ensure it is compliant.
A host employer will now not only need to ensure its OHS system satisfies the risk management requirements of the Act but also ensure that it addresses those safety requirements prescribed in relevant awards.
VIRGIN RETHINKS AN OHS DECISION
Following the threat of Federal Court Injunction, Virgin Blue has agreed to rethink its policy for wheelchair bound passengers.
Virgin had planned to introduce a detailed policy on special needs passengers, or "guests", to take effect on 1 June 2006. It was proposed that all wheelchair-bound passengers weighing more than 130kg would require a carer to accompany them.
Disability groups reacted strongly to the proposed policy slamming it as discriminatory cost cutting. Insult to injury was further added when Paralympics marathon medallist, Paul Nunnari, was advised by a Virgin Clerk that he would need to be accompanied by a carer.
Virgin has since stated that the new policy was not about the passengers but about injuries to cabin staff. It seems that a number of the staff had been injured pushing wheelchairs and that occupational health and safety concerns were a major factor in the policy.
The Human Rights and Equal Opportunity Commission pointed out that the policy was a first in the aviation industry and if occupational health and safety was proving to be a major issue Virgin should consider investing in a heavy-lifting device similar to that used by Qantas.
The controversy only reinforces that whilst occupational health and safety should be prioritised, workplace policies can not be at the expense of discrimination.
CONTACT GRECH PARTNERS
Occupational Health and Safety is an important factor in business success. Grech Partners will not only provide you with comprehensive advice but will assist you in implementing best practice policies. Should you require our legal expertise in this area please contact us on (02) 9851 2500.
This publication contains general information only. It is not provided as legal advice. Professional advice should be taken before any course of action is pursued, or any information herein relied upon.