July was a busy month full of interesting cases with lessons to learn. This month the safety space focuses on COVID legislative changes, falls from height, the risks of ignoring small risks and general mistakes to avoid.
What’s new in Victoria?
The Victorian industrial manslaughter legislation officially came into effect from 1 July 2020. Any employer, self-employed individual or officers whose actions negligently cause the death of worker can be charged by WorkSafe. Employers can be penalised up to $17 million and individuals risk up to 25 years’ imprisonment.
New regulations require all employers to immediately notify WorkSafe, as they would any serious incident, if they become aware that one of their employees or an independent contractor is positively infected with COVID-19. Failure to notify constitutes a breach of the work, health and safety laws and can result in fines of up to $198,264 for companies and $39,652 for individuals. These regulations will only apply for 12 months.
New Paid Pandemic Leave hits the Health Sector
On 8 July 2020, the Fair Work Commission varied the Aged Care, Health Professionals and Nurses Awards to introduce paid pandemic leave for all employees including regular and systematic casuals. It was hoped this would reduce these employees feeling compelled to attend work whilst unwell. This is a temporary variation and will only apply for three months. Employees will only be able to access this leave if they are unable to work remotely, run out of paid personal leave and they are directed to self-isolate due to COVID-19. Any employee who makes a successful workers’ compensation claim because of a COVID-19 infection will become ineligible.
Shining the Spotlight on Falls from Height
Once again falls from height is a hot topic in the safety space. Given the high-risk nature of the work it is no surprise that the Regulators are so keen to prosecute such breaches. An employer was recently severely punished for their “hands off” approach to fall protection. With a Court finding in SafeWork NSW v Master Electrical Services that verbal instructions were insufficient controls. In a unique case, in SafeWork NSW v Can Do Projects Pty Ltd a PCBU was actually fined for installing a safety measure against falls. The PCBU had taken it upon themselves to install guard rails around a window, even though they had been warned not to start the task yet. The PCBU’s worker fell through a void without fall protection resulting in a severe injury. It was found that the PCBU should have waited until the fall protection was in place before installing the guard rails.
In order to reduce falls from height, SafeWork SA has launched another audit of mobile elevating work platform across the state over the next three months. Businesses will be inspected to ensure that there are proper risk assessments and controls in place.
Small Risks result in Large Fines
Last month saw a lot of employers learn the hard way that ‘reasonable practicability’ requires controls for even the smallest work, health and safety risks. In Keilor Melton Quarries v The Queen, the Court determined that the test is not what control is necessary but what controls are capable of being done. Therefore, controls are required unless there is no possibility of the risk ever eventuating. In Ciolpan v Swan Transit Services, this mistake cost the employer over a million dollars in damages. As their bus driver was permanently injured when his seat “bottomed out” on an uneven road. The employer had taught the worker how to adjust the seat for comfort but failed to mention the risk of bottoming out if there was no resistance as it was a small risk. In El Hallak v Sydney Trains it was determined that employers are negligent if they fail to implement control measures even if the risk is very small, this is because they must account for a worker’s inattention or inadvertence. In this case it was a requirement to fill a hole in the floor which could have led to injury if a worker stepped in the hole.
When the employee is in the wrong
An important lesson that came out in July, is that misbehaving employees will not absolve employers of their safety obligations. In fact, whether the accident caused the accident is irrelevant in the consideration of whether an employer failed in their work, health and safety responsibilities. In McDonald v Bell, an argument that the injury was a result of a rogue employee who knowingly exposed himself to the risk failed. The Court found that reasonable practicability required employers to pre-emptively take steps to protect “the careless, the inattentive, the tired, the clumsy and unskilful, and any workers ready to take risks.” Similarly, in Ajia v TJ & RF Fordham Pty Ltd an employer was vicariously liable and fined $662,000 for the skylarking and horseplay of one of it’s supervisors, when a ‘bear hug’ fall led to an ongoing disability.
Contractor Management Liability
Once again, we have been reminded of the importance of contractor management, specifically the requirement that principal contractors must ensure that their subcontractors have SWMS in place for any high-risk work. In WorkSafe v Seascape Constructions Pty Ltd the principal contractor was deemed responsible and fine $850,000 when a carpentry subcontractor fell 3.1 metres to their death while laying floor sheets next to an unprotected edge. Avoid the peddlers of nonsense who say principals do not have safety liability for subcontractors, the principal is always liable unless and until, the principal can prove the subcontractors can do everything reasonably practicable to provide a safe place of work for its employees and others it interacts with.
Silly Mistakes to Avoid
Finally let us take a look at the silly mistakes that employers have made over the past month. In CFMMEU v Melbourne Precast Concrete Nominees Pty Ltd, the employer made an employee redundant after they had made complaints and enquiries to WorkSafe Victoria and after the employee held meetings with other employees about the risks of bushfire smoke. This was one of the rare cases where there was clearly adverse action as employee had been exercising his workplace rights as a Health and Safety Representative. In another case, an individual was fined $4000 for purposefully refusing to hand over documents and information, thereby hindering an active NT WorkSafe investigation. Finally in WorkSafe v Austin Health, an employer was fined $30,000 for advising an employee, a nurse, of a threat but not the extent or details of the threat. This resulted in a physical assault of the employee by a patient who had paranoid delusions that the nurse was trying to kill him.
Don’t forget to connect to the Friday Workplace Briefing, a complementary weekly webinar by FCW Lawyers that starts at 10.30am, every Friday for thirty minutes. The Friday Weekly Brief is on emerging issues in the Workplace like COVID-19 and frequently has expert guests.