Grech Partner Solicitors

ARE YOU ADEQUATELY TRAINING NEW EMPLOYEES?

The importance of properly inducting, supervising and training young workers has been highlighted following a recent decision handed down by the Industrial Relations Commission (IRC) on the 20th February 2006.

Hunter Galvanizing Pty Ltd and its director have been fined a total of $107,000 after pleading guilty to breaches under the Occupational Health and Safety Act 2000.

Facts

Two workers, aged 17 and 20, were seriously injured on 24 March 2004 when a one tonne steel headframe they were loading fell 2.3 metres from its supporting cradles and struck them.

Arriving at 7am for their first day of work the two young men were given a 30 minute induction before being instructed to load a head frame with metal bars. The supervisor in charge not only failed to provide adequate information in relation to the safe method of loading the head-frame, he also failed to provide adequate supervision when he directed three employees near-by to “keep an eye on…” them.

Decision

IRC Justice Backman stated that given the youth and lack of experience of both workers it was of utmost importance that they were properly instructed and closely supervised while performing the task. Due to inadequate and minimal supervision Justice Backman concluded that the risk was reasonably foreseeable. Furthermore it was stated that the obviousness and forseeability of the risk contributed to the overall seriousness of the offence.

Hunter Galvanizing Pty Ltd was fined $100,000, and director, Kerry Bartholomew, $7,000, after pleading guilty to breaches.

The near-fatal incident which led to this prosecution is a clear example of what can occur when employers fail in their obligations to properly instruct, supervise and train young workers.

DESIGN ISSUES ILLUSTRATE THE IMPORTANCE OF RISK ASSESSMENT

The Australian Safety and Compensation Council (ASCC) released the report “Design Issues In Work Related Serious Injuries” earlier this year. The Report considered the contribution of design issues to the occurrence of work-related injury and fatality in Australia.

Particular focus was given to procurement practices and the importance of gaining a proper understanding of the risks involved in a specific task. Whilst risk assessment is something that should be ubiquitous in workplaces, it is often overlooked, especially in smaller workplaces. The report illustrated that whilst design issues clearly contributed to injury often the person was unaware of the initial problem.

The Occupational Health & Safety Regulation 2001 requires employers to conduct a risk assessment for all items of plant and equipment. Essentially each assessment must be “task specific” and requires adequate supervision and training. As the following cases illustrate, failure to do this is a basis upon which an employer can be convicted of breaching their general duty.

WorkCover v Boral Construction Ltd

Boral Construction was prosecuted for failing to ensure the health and safety of one of its employees when a road-roller slipped off a ramp and crushed the driver.

Evidence in court revealed that the employee was not wearing a seatbelt at the time and this seemed to be the immediate cause of his tragic death. It was argued that the defendant had a policy in place that required the wearing of the seatbelt and it was unfortunate that the policy was not adhered to.

The court recognised Boral Constructions had an adequate system of work in place in which employees had been trained . Had those two matters been the only basis for the charge the company may have been acquitted.

However, further evidence established that no explicit risk assessment had been undertaken until after the accident. The risk assessment identified a design issue and recommended that certain changes were required in order to minimise perceived risks e.g using specific traction materials on the ramp. As a result Boral Constructions was fined $200,000 by the NSW Industrial Relations Commission.

Inspector Seneviratne v Caltex Petroleum Distributors Pty Ltd

Following an explosion that badly injured an employee, Caltex Petroleum was charged for failing to provide and maintain a safe system of work.

The Commission noted the Defendant Company’s general commitment to occupational health and safety however the offence related specifically to the transfer of fuel from underground tanks.

It was held that Caltex had not performed a risk assessment of the task, which would have warned an employee of the potential dangers.

Further to this the Commission stated that other major corporations, such as Sydney Airports, Qantas and Kels might have also been held liable for their involvement. Again while each company had rigorous occupational, health and safety guidelines, there was “no co-ordinated approach which ensured a risk assessment was carried out and reflected in a planned safe, work method”. The Commission further stated that “corporate co-ordination” is in the public’s interest.

The Commission felt the gravity of the offence required a level of deterrence to be factored into consideration and Caltex Petroleum was fined $240,000.

Fraser v Sakani Pty Ltd trading as DHN Hair Beauty Nails

Design issues aside this case is another example of the need for ‘task specific’ risk assessments. Considered the first successful prosecution for occupational overuse this case remains relevant to all workers that perform duties which have the potential to cause, or aggravate Occupational Overuse Syndrome (OOS), or Repetitive Strain Injury (RSI).

A hair stylist of Dapto NSW, suffered back strain triggered through prolonged brushing of clients' hair, and two nail technicians suffered back, neck and arm pain while applying and shaping artificial nails.

The employer admitted failing to conduct risk assessments for employees working in its hairdressing salons, and failing to ensure that employees took sufficient rest breaks to avoid the risk of repetitive strain injury.

WorkCover senior inspector Colin Fraser told the court that although the injuries occurred between October 1998 and May 1999, he had brought the issue of manual handling to the employer's attention in July 1996 during a blitz of 40 salons in the Illawarra.

Chief Industrial Magistrate George Miller said that given the considerable time and effort spent by the employer in designing its salons and accounting for each minute of employees' time, it was surprising that attention was not paid to the risk of repetitive strain injury. The magistrate subsequently fined the Illawarra hairdresser a total of $16,000.

Reassessing Your Workplace

Most workplaces have few serious incidents, so experience might lead management to perceive a very low risk in any single task. What must be remembered is that the overall probability of injury may be considerable if that task is performed hundreds or thousands of times.

The above cases send a clear message to employers that whilst they may have an occupational health & safety system in place, it is still necessary to subject each task to a risk assessment.

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.