Kim McLagan: Monnette, now we’re onto our main topic, and the role of supervisors in ensuring a safe workplace. So when it comes to workplace safety, supervision is really where it’s all won or lost. The law puts the primary duty on the employer, but in reality, it’s the duty that, that duty gets delivered through the supervisors. And a business can have a beautiful safety system on paper, but it’s really down to the supervisor to put that into practice.

Monnette Samo: That’s right.

Kim McLagan: On a day-to-day basis on the ground. And so a supervisor must make sure that people, and this is what the legislation says, a supervisor have to have the information, instruction, training in supervision that they can do the job safely.

And that means ensuring workers are competent for the task, that they understand exactly what they have to do, the safe way of doing it, and that they are genuinely following that safe procedure. And the supervisor’s level of oversight also has to match the risk and the person.

So if you’ve got a young or new person to a role doing a fairly high-risk job, they require really close monitoring, as opposed to a senior supervisor who’s doing a routine task. But the other thing I’d stress is that training someone doesn’t just discharge that duty.

The supervisor’s job is ongoing. They need to verify competence with all of the staff, correct any unsafe procedures when they see them being undertaken, and actively listen and respond when an employee raises any concerns.

Monnette Samo: Raises an issue, yeah.

Kim McLagan: So supervisors also need to know that safety isn’t just a company responsibility. They can be held personally liable as managers/officers with due diligence. But it is the responsibility of the business to ensure that supervisors is genuinely engaged, because they are the most risk-effective control that a business has.

So a supervisor who’s stretched too far or too thin or is unsupported, they really are the company’s biggest risk exposure, as demonstrated by this case of SafeWork New South Wales against Capital Lines and Signs. Do you want to talk us through the facts of that one?

Monnette Samo: Yeah, so this is horrific. There was a 20-year-old traffic management employee and she was doing work that she shouldn’t have been. And at that time of doing that work, she wasn’t wearing PPE. Her supervisor was away, not recognizing she wasn’t meant to do the work, wearing PPE, and he was actually on his phone at the time.

Kim McLagan: But he was in fairly close proximity to them. He could see what was going on, but-

Monnette Samo: Was a little bit distracted.

Kim McLagan: A bit distracted. Yeah, exactly.

Monnette Samo: And so her coworker accidentally pressed or activated this button, which then sprayed all this hot bitumen and got her over the body.

Kim McLagan: Yeah.

Monnette Samo: And so see the company was convicted and fined $120,000 for that, but the judge wasn’t so kind to the supervisor.

Kim McLagan: No.

Monnette Samo: So he copped it quite extensively.

Kim McLagan: He did a bit, didn’t he? So he said there was a total lack of supervision by the supervisor. He was critical of the supervisor for not enforcing this young lass to wear PPE, for allowing her to do a job that she really shouldn’t have been doing at all.

Monnette Samo: Yeah.

Kim McLagan: And he also didn’t, so the company didn’t have a bad safety system, but he didn’t ensure that work was being carried out in accordance with the SWMS.

Monnette Samo: In accordance, yeah.

Kim McLagan: So, yeah, he cost his employer dearly. I wonder if he’s still there.

Monnette Samo: Yeah, that’s so sad.

Kim McLagan: So I’m going to take a breath and you can read the case study for us.

Monnette Samo: Yeah, will do.

Kim McLagan: It’s a good one today.

Monnette Samo: It’s long.

Kim McLagan: Yeah, it is long.

Monnette Samo: Let’s see how we go. So Gaz felt he did things the right way, straight down the line with everyone. He had been the foreman of the loadout area in BrillBricks for 12 years. BrillBricks produced more than 100,000 bricks each week through its kilns.

Once manufactured and dried, the bricks were stacked onto metal-strapped pallets of 500 bricks and then either loaded directly onto waiting trucks or stored in the warehouse. The loadout area contained a flex packer fed by a conveyor belt and a pallet wrapper.

Wrapped pallets were collected by one of four forklifts that operated continuously lifting and transporting pallets to waiting trucks or the warehouse as required. There were detailed policies governing traffic management, contractor obligations, isolation requirements within the loadout area, and a designated exclusion zone.

BrillBricks struggled to recruit workers because it was located in rural Victoria. As a result, it relied heavily on labour hire employees supplied through FruitzofLabour, a local labour hire business. Under the labour hire agreement between BrillBricks and FruitzofLabour, the latter was responsible for the induction and safe conduct of labour hire employees working on the BrillBricks site. Gaz was dismissive and disinterested in the labour hire employees.

He did not trust or like them. The labour hire workers repeatedly complained to the director of FruitzofLabour, Peter Pear, that Gaz was abrasive and rude and made it clear that their only obligation according to Gaz was to do the job. No phones, no discussions, and no distractions. Ivan Mankind was an employee of FruitzofLabour.

He had worked at BrillBricks for 29 weeks and was being paid the award rate rather than the rate prescribed by the BrillBricks Enterprise Agreement. Frustrated by both Gaz’s behaviour and the lower wages received by labour hire employees performing the same work as BrillBricks employees, Ivan complained to Gaz’s manager, Claire. Ivan said he should be paid the same wage as BrillBricks employees and that someone needed to put a stop to Gaz’s conduct, which he described as bullying.

He also explained that none of the FruitzofLabour employees knew or understood BrillBricks’s safety rules. That afternoon, Yvonne, a labour hire employee, was crossing the loadout area at Gaz’s direction to conduct an inventory check of orange bricks. As she turned the corner of a row of stacked pallets, she was struck and seriously injured by a forklift travelling forward with raised tines toward a truck approximately 15 meters away. The forklift driver could not see Yvonne.

He knew he was not supposed to drive forward except within the designated turning circle near the truck, but it was the quickest and easiest way to operate. He also believed the area should have been free of pedestrians. Ivan was incensed. Yvonne was a friend. In his view, Gaz’s direction had breached safety procedures and contributed to the incident. Ivan approached Gaz angry and distressed and complained that Gaz’s direction to Yvonne had caused her injuries, highlighted the lack of safety on the site, and reflected Gaz’s poor behavior. Gaz laughed, told Ivan to back off and get back to work, and then walked away.

Gaz then called his manager Claire and told her that Ivan was a problem, was causing dissension among workers, and was incompetent. Gaz said, “He needs to go, now.” Claire spoke to Peter Pear and instructed him to remove Ivan from the site and not allow him to return. Peter complained with the request.

Kim McLagan: Complied.

Monnette Samo: Oh, I’m sorry, complied with the request. However, because FruitzofLabour had no other client requiring labour at the time, Peter terminated Ivan’s employment. Okay, wow, that was long.

Kim McLagan: That was long.

Monnette Samo: And BrillBricks is a tongue twister.

Kim McLagan: BrillBricks is a tongue twister.

Monnette Samo: Andrew!

Kim McLagan: I’m sure he did that on purpose.

Monnette Samo: Oh, goodness. Testing me out.

Kim McLagan: Okay, so could BrillBricks delegate responsibility for the safety of FruitzofLabour employees to FruitzofLabour under safety law? And so the answer is no. So as the operator of the site, BrillBricks controlled and supervised the workplace and therefore owed duties to all workers on the site, including its labour hire employees.

Monnette Samo: Yeah.

Kim McLagan: So while FruitzofLabour also had duties under safety legislation, those duties did not remove or replace BrillBrick’s obligations, and so both organizations could be liable for failures under workplace safety.

Monnette Samo: Yeah. All right, so second question. Who would be liable under safety law for Yvonne’s injury? Potentially both FruitzofLabour and BrillBricks as well as the individuals within those organisations.

Kim McLagan: Yeah, so FruitzofLabour and its director Peter Pear would be liable for failing to ensure the labour hire employees were properly inducted and informed about the workplace hazards. But BrillBricks may also be liable because it controlled the workplace and the work systems.

Gaz and Claire could also face personal liability if they knew the labour hire employees had not been properly inducted and were aware of the risks in the loadout area, but failed to take any reasonable steps to address those. And also given the known absence of proper induction, supervision safety systems in a high-risk area involving forklifts and pedestrians, there’s a strong argument that BrillBricks, Gaz, and Claire engaged in conduct amounting to reckless endangerment by exposing workers to a serious risk of injury or death.

Monnette Samo: So were there any other breaches of safety law?

Kim McLagan: Yes.

Monnette Samo: Really?

Kim McLagan: Again, strong argument that BrillBricks, Gaz, and Claire breached safety law by treating Ivan adversely because he’d raised health and safety concerns. And so safety legislation generally protects workers from discrimination, victimization, and adverse treatment because they’ve raised safety complaints, reported a hazard, or exercised rights under safety law. So Ivan’s removal from the site immediately after raising the safety concerns would constitute prohibited discriminatory conduct.

Monnette Samo: Mm.

Kim McLagan: Okay.

Monnette Samo: Is there a general protections risk for BrillBricks and FruitzofLabour? And if so, why?

Kim McLagan: Yeah, definitely, because Ivan exercised his workplace right. He made a complaint about the workplace safety, about bullying, about the terms and conditions of employment because he wasn’t paid the same, and obviously his entitlement to equal pay.

So the decision to remove him immediately after he made those complaints would strongly suggest that adverse action was taken against him because he had made those complaints. And so each of BrillBricks, Gaz, and Claire could be named respondents in his general protections claim.

Also, FruitzofLabour, as Ivan’s employer, may also face general protections claim because it terminated his employment. On the facts, there’s not really any evidence that Peter Pear knew about his complaints or anything like that. So they may get off, but it really would just depend on the evidence at the time.

Monnette Samo: Mm.

Kim McLagan: Okay. And our final question, is there an argument for Same Job Same Pay for FruitzofLabour employees? And yes, there absolutely is. So the facts suggest that FruitzofLabour employees were performing the same work as BrillBricks employees, and therefore they should have been paid the same under BillBrick’s Enterprise Agreement.

Monnette Samo: Mm-hm.

Kim McLagan: And I think that is it for us this week.

Monnette Samo: Nice.

Kim McLagan: So nice doing it with you again, Monnette.

Monnette Samo: Always a pleasure, Kim.

Kim McLagan: We’ll see everyone again-

Monnette Samo: I feel cross-eyed with that case study and the reading.

Kim McLagan: You did very well.

Monnette Samo: All right, thanks.

Kim McLagan: See you next time.

Monnette Samo: Bye.