It has been another month filled with lots of interesting case law.
The key lesson for employers is to ensure you have adequate safety protocols in place and that these are adhered to.
As we have seen in many recent cases, good employers who have the right steps in place will be looked upon favourably by the Courts and Commissions and can defend claims against them.
In our September update we cover:
- Pandemic leave
- Industrial manslaughter nabs its first individual victim in Queensland
- Importance of SWMS
- The essentials of complying with safety policies
- Overseas workers covered by Australian Workers Compensation laws
- Costly guarding fails
- Some lessons from case law
- Useful links
Pandemic leave
The Federal Government has announced that the $1500 Pandemic Leave Disaster Payment is now available for both Victoria and Tasmania.
This Disaster Payment is for any worker required to self-isolate due to coronavirus and does not have any of the following entitlements:
- Personal leave;
- JobKeeper payments; or
- JobSeeker payments.
South Australia has announced a similar scheme where any worker required to quarantine will be eligible for a $1500 payment. Any South Australian workers in an “identified COVID-19 cluster” will also receive $300 to cover the period between undertaking a test and receiving a result.
The purpose of these disaster payments is to incentivise workers to not attend work if they are presenting any symptoms.
Industrial manslaughter nabs its first individual victim in Queensland
In a first, WorkSafe QLD has laid individual charges against an individual for their direct role in a worker’s death.
The Director had overloaded the forklift, leading to the forklift flipping resulting in a portable generator dropping and crushing the worker. See our detailed analysis on the case here.
This is an important case for all employers as it demonstrates that Regulators will not hesitate to hold officers personally liable if they are not doing all that is reasonably practicable to prevent workplace fatalities.
Importance of SWMS
Once again case law demonstrates the necessity of implementing SWMS and complying with them.
In WorkSafe Victoria v G & I Developments Pty Ltd, an employer was fined $30,000 when they authorised for an employee and subcontractor to manoeuvre a large concrete pump between a tree and overhead powerlines, resulting in the subcontractor suffering an electrical shock. The main reason for the fine was the lack of SWMS for the high-risk activity.
In Work Health and Safety Prosecutor QLD v Henri Van Baak Constructions Pty Ltd, the employer had safety protocols in place, including a detailed SWMS, when they engaged a contractor to install scaffolding around the worksite. The safety documentation was not enough when a subcontractor ended up falling 3.1 metres from a temporary work platform which did not have scaffolding installed. Failure to double check that the safety protocols were being adhered to cost the employer $50,000.
This is a lesson for employers that even the best safety systems will not protect you, if you are not ensuring compliance by your workers.
The essentials of complying with safety policies
The Appeal in BlueScope Steel Limited v Trevor Knowles [2020] FWCFB 3439 is an example of another win for employers who do the right thing.
A dismissal, found to be unfair by Commission Riordan, was overturned by the Full Bench of the Fair Work Commission (Full Bench), when the Full bench determined that the polices Mr Knowles didn’t comply with were reasonable, designed to prevent serious risk and were known by Mr Knowles. As a result the Full bench formed the view he was guilty of gross safety breaches which amounted to serious misconduct. See our detailed analysis on the case here.
Cases like this demonstrate that not only must businesses have thorough safety policies in place, they must also ensure their employees know the polices and are aware that failure ot comply with the policies could lead to disciplinary consequences. Then, if employees fail to follow the policies any unfair dismissal claim is defensible.
Overseas workers covered by Australian Workers Compensation laws
A recent case in NSW has confirmed that Australian workers compensation laws will extend to employees who are currently working overseas, if there is a sufficient nexus between the employee’s work and Australia. See Helicopter Aerial Surveys Pty Limited v Duff [2020] NSWWCCPD 50.
Employers need to be mindful of the work, health and safety risks if you have employees based overseas, especially given the significant COVID-19 risks in many other countries. Employers should ensure they have undertaken reasonable risk assessments to limit any exposure, otherwise they risk workers compensation claims and breaches under safety law.
Costly guarding fails
Bullock MFG Pty Ltd has had to shell out almost $700,000 ($200,000 in legal costs and fines and $500,000 to rectify the factory issues) after failing to provide proper guarding on its metal press.
A young labour hire company worker was directed to operate the machine without sufficient knowledge of how to set the machine up properly, he also had not been trained on how to use the metal press. As a result, the worker did not identify the faulty guarding, leading to the amputation of three fingers when his hand accidentally accessed the gaps of the machine. The Court particularly blasted the employer’s lack of training provision, safe work procedures, supervision, and maintenance records.
This case shows that once again employers must do all that is reasonably practicable to protect their employees; had there been adequate training and safe work procedures in place, the faulty guarding would have been identified as a significant injury risk and fixed.
Some lessons from case law
The month of August has also produced some interesting cases. Here’s a quick summary of lessons from this month:
- Risk of falls from height are a known risk, untrained and inexperienced workers should not be directed to complete such tasks. This employer learnt a costly lesson being fined $400,000 in Safework NSW v Landmark Roofing Pty Ltd (No. 2) [2020] NSWDC 420
- Employers should ascertain of employees have allergies so the risk can be managed. A failure to inquire and take appropriate management action can result in safety breaches. See this case where a worker died from a bee sting
- During the pandemic a deliberate cough into a health care or other worker constitutes serious misconduct as it is a gross breach of safety as seen in Hooshmand v Cater Care Australia Operations Pty Ltd [2020] FWC 4371
- Safety risks to non-employee third parties, such as minors, also constitute breach of safety obligations. See Petz v Jamieson Sales and Service Pty Ltd [2020] FWC4451 where employee was terminated after taking a Facebook photo of his son sitting unrestrained in the employer’s forklift
- Many employers in Queensland and Western Australia are being fined for failing to comply with the Chain of Responsibility fatigue regulations, requiring employers to ensure that there are scheduled breaks and drivers are not driving beyond what is safe.
Useful links
- SafeWork Be Upstanding Toolkit – address issues with prolonged sitting
- SafeWork Case Studies of OHS duties during COVID
- SafeWork Transitioning Back to Usual Workplaces checklist
- WorkSafe Victoria’s WorkWell Toolkit
- SafeWork Australia National guide for safe workplaces – COVID-19
- WorkSafe Victoria’s guide for ensuring the safety of dangerous goods during a shutdown due to coronavirus
