As businesses begin to head back to the new ‘normal’ in a COVID-19 world, the month of May was filled with return to work precautions and new legislative changes including an expansion of industrial manslaughter in QLD. This month, Unions continue to try to assert their power, reckless conduct charges are ramping up and there is a focus on interesting lessons from case law.
Safely returning back to work
The National Cabinet has positioned SafeWork Australia as the “centralised information hub” for COVID-19 precautions. With emergency plans, information guides, risk assessments and relevant case studies to assist in a safe return to work. The Northern Territory Government has also created checklists for businesses and iCare NSW has produced a COVID-19 Recovery Employer Toolkit, to facilitate an easier transition back to work.
As many have begun stockpiling hand sanitizers in preparation for a return to work, WorkSafe Victoria have issued a new guide around proper storage of alcohol based hand sanitisers given the fire hazard risks. To assist employers source appropriate personal protective equipment which is in short supply, the Tasmanian Government has created a PPE supply register.
While the majority of the country puts in steps to return back to work, Premier Daniel Andrews has announced that companies can be fined up to $100,000 if they direct employees to physically attend work if it is possible for them to work remotely.
What’s going on with Unions?
In the Union space, after the Cedar Meats outbreak, the ACTU have been advocating for social distancing rules and controls to become mandated by work health and safety law. Also interestingly, the CFMMEU has instigated Federal Circuit Court proceedings against Canberra Contractors Pty Ltd alleging breaches of s 502 of the FWA as officers of the company refused to cooperate with union officials who were investigating safety concerns. It is alleged that the officers deliberately obstructed the Union’s access to documents related to the WHS breaches. The matter has been set down to be heard on 17 August 2020, so what will happen remains to be seen
NSW announce exposure restrictions
NSW have announced plans to reduce the workplace exposure standard for respirable coal dust to 1.5mg per cubic metre from 1 February 2021. This is supported by the lower exposure threshold for silica of 0.05mg per cubic metre which is mandatory from 1 July 2020.
ACT labour hire scheme passed
The ACT’s labour-hire licensing scheme has officially passed and will take effect from 1 January 2021, with a 6-month transition period. The scheme requires licences for all labour-hire providers which will only be provided if they can demonstrate active compliance with workplace laws and pass the ‘suitable person’ test.
Industrial Manslaughter Changes in QLD
Big changes are coming to QLD after the Mineral and Energy Resources and Other Legislation Amendment Bill 2020 has passed. Not only does this Bill extend coverage of the industrial manslaughter offence to the resources sector, it also significantly increases the penalties attached to the offence – with individuals receiving up to 20 years’ imprisonment and companies being fined up to $13.3 million. Uniquely, the new Bill mandates that all ‘critical safety roles’ must be employees of the mine operators, as a protection mechanism for any whistle-blowers to raise safety issues without fearing for their jobs. See FCW’s Industrial Manslaughter table which summarises all the jurisdictions.
Reckless Conduct sentences
Just weeks after the decision in the ACT, another crane driver has been convicted of reckless conduct. This case involved a crane used to lift plaster to the first floor of a construction building. There was a safety system on the crane which stopped all movement if it reached 75% of its capacity. Mr Gault the crane driver chose to manually override the safety system and while the crane was lifting plaster, the boom failed due to the weight of the load. Resulting in a 1.9 tonne load of plaster falling directly onto another employee. The company was charged with general duties breaches, while Mr Gault was charged with reckless conduct. The company was fined $50,000 and Mr Gault was sentenced to 6 months in jail, though the sentence was suspended. If this case was heard in Victoria, NSW, Qld or SA there is no doubt the fine would be significantly higher and the driver would be in jail.
Some lessons from case law
The month of May has seen a wide array of different cases coming out of the safety space. Here’s a quick summary of some things to note:
- Employers must implement sufficient controls even if the risk of injury is small – this mistake cost the employer $2 million in damages in Allied Pumps Pty Ltd v Hooker
- You can’t plead the contract – safety obligations can extend past what responsibilities are specifically quoted in a contract see SafeWork NSW v NSW Bricklaying Pty Ltd
- Having policies and procedures in place is not enough, they must actually work, and employees must actually be complying with them to use them as a defence. Especially in relation to remote work, see Coronial Finding into Death of Richard Neil Gaudion
- You cannot terminate for safety breaches if the employee is not informed of the errors of that process during refresher training, as this is seen as the employer condoning that behaviour. See Knowes v BlueScope Steel Limited
- Fall protection is essential anytime employees are working from height, otherwise risk costly prosecutions. See WorkSafe v Solar 2.0 Pty Ltd and WorkCover Victoria v Chloch Homes & Developments Pty Ltd where FCW Lawyers achieved a great outcome in the appeal to the Melbourne County Court.
List of useful resources
- SafeWork Australia COVID-19 Checklist
- National Cabinet’s 10 COVID-19 Safe Workplace Principles
- NCCC’s COVIDSafe Plan
- FCW COVIDSafe Plan Template
- Australian Health Protection Principal Committee Hierarchy of Controls for COVID-19
- SafeWork guide on setting up a workstation at home
- SafeWork guide on cleaning your workplace
- National Cabinet’s Principles for COVID-19 Public Transport Operations
