safety matters - oh&s in the workplace

SAFETY MATTERSWH&S IN THE WORKPLACE

Alana HeffernanPatrick Turner

18 June 2015

Safety Matters – WH&S In The Workplace 1

OUR HISTORY

Founded in 1919

Maurice Blackburn – distinguished lawyer and Labor member of Parliament

Dedicated to worker’s rights defense of underprivileged groups determined to make a genuine difference for people who

need help

Fight hard for best possible outcome

2Safety Matters – WH&S In The Workplace

OUR SERVICES

Employment & Industrial Law

WorkCover

Road Accident Injuries

Medical Negligence

Asbestos Diseases

Superannuation & Disability Insurance

Public Liability

Faulty Products

Comcare

Will Disputes


OUR OFFICE

Safety Matters – WH&S In The Workplace

4

OUTLINE OF TODAY’S PRESENTATION

Employer and employee obligations under the WHS Act (Qld)

Offences

Work Groups

Role and powers of HSRs and Health & Safety Committees

PINs

Discriminatory, coercive and misleading conduct

Negotiating WHS clauses in enterprise agreements

OHS from a Public Liability perspective


1. EMPLOYER AND EMPLOYEE OBLIGATIONS UNDER THE

WHS Act (Qld)


REGULATORY FRAMEWORK

National Model Act

─ adopted by all states except Victoria and Western Australia.

Queensland Legislation– Work Health and Safety Act 2011 (Qld)

– Work Health and Safety Regulation 2011 (Qld)

Institutions overseeing WHS across Australia

─ Comcare

─ State regulators (such as Workplace Health and Safety Queensland)

─ Fair Work Commission


WORK HEALTH AND SAFETY ACT 2011

Legislation concerned with removing risk and prevention

• Not concerned with injuries and compensation Concept of ‘Person Conducting a Business or Undertaking’ (PCBU)

(s20)

Most employers – companies, unincorporated associations, councils etc

Managers, designers, manufacturers, importers, suppliers, installers

(ss22-26)

Officers, workers ,other persons at a workplace have separate duties

(ss27-29)

Duties of a PCBU are linked to the carrying out of work


PCBU – PRIMARY DUTY OF CARE

So far as is reasonably practicable…

Ensure health and safety of workers while at work

Ensure others are not put at risk from work carried out (s19(1)-(2))

Ensure:

– provision and maintenance of a work environment without risks to health and safety, safe plant and structures, safe system of work;

– safe use, handling, storage of plant, structures and substances;

– provision of adequate facilities for welfare of workers; information, training, instruction or supervision necessary to protect all persons; and,

– monitor health of workers and conditions at workplace

In certain circumstances, must maintain accommodation premises

1. Provide information to employees (s 22(1)(c))

2. Employ or engage persons suitably qualified in relation to OHS (s 22(2))

3. Consult with employees (s 35)

Note: Reckless endangerment (s 32)


PCBU – OTHER DUTIES

PCBUs who manage or control workplaces, fixtures, fittings or plant, designers, manufacturers, importers, suppliers, installers all owe further duties beyond the primary duty (ss 20-26

Duties under WHS Regulation – all PCBUs and industry-specific

All PCBUs owe duties to:

– notify of ‘notifiable incident’ (death, serious injury/illness or a dangerous incident) and preserve incident sites (ss37-38)

– consult with workers (s 47)

All duty-holders owe a duty to:

– consult with all duty holders (s46)

Officers of a PCBU must exercise due diligence to ensure PCBU complies with duties

and obligations under WHS Act (s27)


REASONABLE PRACTICABILITY

‘Reasonably practicable’ (s18)

– Likelihood of the hazard or risk occurring;

– Degree of harm that might result from the hazard or risk;

– What person knows, or ought reasonably to know about the hazard or

the risk and ways of eliminating or reducing it;

– Availability and suitability of ways to eliminate or reduce risk;

– Cost of eliminating or reducing the risk.


WORKERS’ DUTIES

Take reasonable care for your own health and safety (s28(a))

Take reasonable care of the health and safety of persons who may be affected by your acts or omissions at a workplace (s28(b))

Comply with reasonable instruction given by a PCBU to allow compliance with the WHS Act (s28(c))

Co-operate with any reasonable policy or procedure of PCBU relating to health or safety at the workplace that has been notified (s28(d))


2. Offences


OFFENCES – BREACH OF DUTY

3 Categories of criminal offences for breach of health and safety duties:

– Reckless conduct—category 1 (s31)

– Failure to comply with health and safety duty—category 2 (s32)

– Failure to comply with health and safety duty—category 3 (s33)

Exceptions– volunteers and unincorporated associations

DPP can initiate proceedings for Category 1 offences

WHSQ and all inspectors can initiate proceedings for all offences

A person can request WHSQ bring a prosecution for a Category 1 or 2 offence within 6-12 months of alleged contravention


PENALTIES

Serious Penalties:

Courts can also make: – adverse publicity orders (s236)– restoration orders (s237)– work health and safety project

orders (s238)

– court ordered work health and safety undertakings (s239)

– injunctions (s240)– training orders (s241)


Corporation Individual as PCBU or officer Individual as worker or other

Category 1 $3 million $600K, 5Y jail or both $300K, 5Y jail or both

Category 2 $1.5 million $300K $150K

Category 3 $500K $100K $50K

OTHER OFFENCES

WHS Act provides for many other offences, which have distinct penalties:

Incident notification (ss38-39)

Authorisations (ss41-45)

Consultation (ss46-47)

Establishment of Work Groups (ss52-57)

HSRs (ss61,70-74, 97,99)

Health & Safety Committees (ss75,79)

Discriminatory, coercive or misleading conduct (ss104-108)

WHS entry permit holders (ss118-151)

WHSQ and inspectors (ss155-190)


3. WORK GROUPS


EMPLOYEE REPRESENTATION

WHS based on cooperation and consultation between all those at work

Employee representation is important and is recognised as one of the

Objects of the WHS Act:

“…providing for fair and effective workplace representation,

consultation, cooperation and issue resolution in relation to work health

and safety”


WORK GROUPS

What are they?– Negotiated and agreed groups of workers– Share similar workplace health and safety interests and conditions

Can be made up of workers: – in one or more workplaces operated by a single employer; or– of multiple employers at one or more workplaces

There can be more than one Work Group in a workplace


ESTABLISHING A WORK GROUP

Employees can ask their employer for a Work Group to be established (s 50)

Purpose of the negotiations is to determine (s 52(3))─ number and composition of work groups to be represented by HSRs─ number of HSRs and deputy HSRs to be elected─ workplace(s) to which the work groups will apply ─ the businesses or undertakings to which the work groups will apply

In addition, note: Matters to be taken into account in negotiations (s 17 WHS Regulation)


MATTERS TO BE TAKEN INTO ACCOUNT (S17 – WHS REGULATION)

• (a) the number of workers;

• (b) their views;

• (c) nature of each type of work carried out;

• (d) number and grouping of workers who carry out the same/similar types of work;

• (e) areas/places where each type of work is carried out;

• (f) extent to which any worker must move from place to place while at work;

• (g) diversity of workers and their work;

• (h) nature of any hazards at the workplace(s);

• (i) nature of risks at the workplace(s);

• (j) nature of engagement of each worker;

• (k) pattern of work carried out by workers, i.e. full-time, part-time, casual or short-term;

• (l) times at which work is carried out;

• (m) arrangements at the workplace(s) relating to overtime or shift work.

Inspector can determine the particulars failing agreement (s 54 –WHS Act)


4.ROLE AND POWERS OF

HSRS AND HEALTH & SAFETY

COMMITTEES


POWERS OF HSRS

Purpose of HSRs powers are to (s 68(1)):– Represent the Work Group in relation to WHS– Monitor measures taken by PCBUs in compliance with WHS Act and

regulations– Investigate complaints from members of the Work Group– Inquire into anything which appears to be a risk to the health and safety

of the Work Group

WHS Act gives powers to HSRs but does not impose compulsory duties in their capacity as HSRs (s 68(4))


POWERS OF HSRS

HSR has the power to do any of the following (s68(2)):– Inspect any part of a workplace in which a member of the Work Group

works:• after giving reasonable notice; or • without notice immediately in the event of an incident or immediate

risk to health or safety– Accompany an inspector during a workplace inspection of the workplace

or part of the workplace of their Work Group– Request the establishment of Health and Safety Committee– Represent one or more members of the Work Group at interviews on

health or safety matters between that person and an inspector or PCBU– Seek the assistance of any person whenever necessary (subject to

restrictions on entry)


WORKPLACE INSPECTIONS

Inspections can take various forms, including:– regular inspections of the workplace or particular activities of processes;– specific inspections arising from complaints or concerns by members of

the Work Group;– inspections before and following substantial change to the workplace,

e.g. to plant or work processes; and– Inspections after an incident or injury

The nature and extent of the inspections needed may depend on circumstances including the frequency of injuries in that area or if likelihood of injuries


AMWU V VISY (NO 3) [2013] FCA 525

Delegate and HSR Mr Zwart was suspended and given a warning after tagging out a forklift because he could not hear the reversing warning beeper

AMWU brought a general protections claim claiming that the suspension and warning was because Mr Zwart exercised workplace rights

One of the workplace rights relied on was the right under s 58 of OHS Act to inspect “any part of a workplace at which a member of the designated workgroup works”

Visy argued that there was no power to inspect the forklift only the workplace “at which” not “on which”, “in which” or “with which” they work


AMWU V VISY (NO 3) [2013] FCA 525

Justice Murphy rejected Visy’s argument stating that it had “no merit”

Not consistent with the objects of the OHS Act

Would lead to absurd results

“For example, acceptance of the respondents’ construction would mean that a health and safety representative could inspect the floor on which an employee stood but not a piece of dangerous plant standing on the floor and used in the work. “ Murphy J at [137]

“Workplace” includes movable plant and equipment at the workplace.


POWERS OF HSRS

If after consulting with an employer a health and safety issue is not resolved a HSR may:– Issue a PIN (s 90(2))– Can no longer direct that work cease

An HSR may also deal with a health and safety issue by:– Seeking the assistance of another person (for example an appropriately

qualified union official);– Following an issue resolution procedure; or– Seeking the assistance of an inspector if the issue is not resolved

through the resolution procedure

HSRs are entitled to accompany inspectors during inspections (s 58(1))


NEWMAN GOVERNMENT - REDUCED POWERS OF HSR

Removal of s85 – HSR can no longer direct member of Work Group to cease work

HSR’s assistant must provide at least 24 hours notice (but less than 14 days) to PCBUs and persons with management or control of the workplace during usual hours

PCBU may refuse entry to assistant on ‘reasonable grounds’ where notice/information not given

Work Health and Safety and Other Legislation Amendment Bill 2015 - currently in committee but will likely be passed

These powers likely to be restored


HEALTH AND SAFETY COMMITTEES

Purpose and benefits

─ Facilitate regular meetings between parties for the planning and development of policies and procedures

─ Vehicle for the exchange of ideas

─ Bring together employees’ knowledge and experience of jobs and tasks and the employers’ perspective of the workplace and business requirements


ESTABLISHMENT AND COMPOSITION

Timeline for establishment (s75(1))─ PCBU has two months from the time on the request of a HSR or 5 or

more workers

─ May also do so at their own initiative

Constitution of HSC (s76)─ Workers not nominated by PCBU must make up at least half the

membership

Relevant HSRs automatically included─ Must be consultation on the remaining membership (s 49)

─ Employer representatives should be persons involved at senior management levels able to make decisions about health and safety


FUNCTIONS OF HSC

Facilitate cooperation between employers and employees in instigating, developing and carrying out measures designed to ensure the health and safety of workers at work

Assist in developing health and safety standards, rules and procedures to be followed out or complied with at the workplace

Other functions as determined and agreed by the HSC and the PCBU


OTHER IMPORTANT INFORMATION

HSCs must meet at least every three months (s 78(a))

─ at any other reasonable time if at least half of the members request it

HSCs can determine their own procedures for the organisation and conducting of its meetings (s 72(5))

There are no additional duties imposed by the WHS Act on workers who are members of HSCs

PCBUs must allow committee members time as reasonably necessary to attend meetings, carry out functions and pay them.

Also must allow access to information re. hazards, health and safety of workers to HSC but require consent for information that identifies a worker or could lead to identification of worker – this is to change.

Should not be used for the resolution of health and safety disputes


4. PROVISIONAL IMPROVEMENT NOTICES


PROVISIONAL IMPROVEMENT NOTICES (PINS)

A PIN is a written direction requiring a person to remedy a breach or likely breach of the WHS Act or Regulations.

It is not compulsory to use a specific form to issue a PIN, however, there are general requirements for form and content (ss 91 and 92).

Prior to issuing a PIN HSR must consult with person about remedying breach or likely breach of the matters or activities causing the breach of likely breach (s 90(3)).


PROVISIONAL IMPROVEMENT NOTICES (PINS)

HSR cannot issue a PIN if:– The HSR has not:

• Completed the training required by the Regulations; or• Completed training under corresponding WHS laws (i.e. in another

State that also has uniform WHS laws) (s 90(4).– An inspector has already issued, or decided not to issue, a PIN (s

90(5)).


WHEN CAN A PIN BE ISSUED?

After consultation a PIN can be issued if:– The HSR believed on reasonable grounds that a person is contravening

a provision of the WHS Act or the regulations; or– Has contravened a provision in circumstances that make it likely that the

contravention will continue or be repeated.

Examples of contraventions that may continue to be repeated include:– Excessive noise levels in the workplace;– Ongoing exposure to dangerous chemicals;– Unguarded machines; or– Lack of consultation with employees or HSRs about safety matters.


CONSULTATION

Workplace Health and Safety Queensland will consider that consultation has occurred prior to the issue of a PIN if the HSR has:

• verbally or in writing provided information to the person about the contravention and ways to remedy the contravention or likely contravention or the things or operations causing the contravention or likely contravention

• allowed the person an opportunity to express their views and to contribute within a reasonable time to remedy the alleged contravention or resolve the matters or activities causing the alleged contravention

• taken into account the view of the person before issuing the PIN• advised the person of the outcome of consultation in a timely

manner.


WHO CAN A PIN BE ISSUED TO? A PIN can be issued to any person.

NB: any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent

authority, is conduct also engaged in by the body corporate.” (s 244)

There is no express limit about the conduct complained of being at the workplace, i.e., PINs could be issued to persons such as the designer of a plant, buildings or structures.

However, HSR’s powers are limited to matters relating to the workers in the work group (see s 68). Therefore, would not be able to raise matters about general public safety.


INFORMATION ON A PIN A provisional improvement notice must:

– be in writing (s 91);– state the representative's belief on which the issue of the notice is

based and the grounds for that belief (s 92(a)); and – specify the provision of this Act or the regulations that the representative

considers has been or is likely to be contravened (s 92(b)); – briefly state how the provision is being contravened (s 92(c)); and – specify a day before which the person is required to remedy the

contravention or likely contravention (must be at least 8 days after issuing of PIN) (s 92(d)).

PIN can also give directions about fixing the problems, but not required to do so (s 93).

Separate PINs should be completed for each contravention otherwise PIN may be open to challenge


INFORMATION ON A PIN

In Chysostomou v VWA [2014] VCAT 176 the applicant had lodged a PIN in relation to Train Operating Standards that allow the operation of trains:– “with failed or inoperative train headlights during the hours of daylight

and darkness for a period of up to 22 hours thus decreasing the visibility of trains approaching unprotected pedestrian crossings, level crossings, platforms or person(s) conducting works on or near the rail line” and

– “with cracked or smashed Driver windscreens for a period of up to 22 hours on the Driver’s side or for an indefinite period of time if the windscreen is smashed or cracked on the off side of the windscreen”

Senior Member Davis ordered the applicant to provide more particulars about why it is alleged that the system of work complained of is unsafe and the reasons it is unsafe.


AMENDMENTS TO PIN

HSRs may make minor amendments to a PIN after it has been issued (s 94).

The changes must be restricted to “minor” changes:

(a) for clarification; or

(b) to correct errors or references; or

(c) to reflect changes of address or other circumstances.

A PIN can also be cancelled by the HSR, by giving written notice to the recipient (s 96).


WHAT HAPPENS AFTER A PIN IS ISSUED?

A person who has been issued with a PIN must, as soon as practicable, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice (s 97). NB – this is a civil remedy provision

A person issued with a PIN must comply with it within the specified time frame or dispute the PIN by calling an inspector (s 99).

It is an offence not to comply with a PIN in the time specified in circumstances where an inspector has not been called.

If disputing a PIN, recipient must seek a review from the regulator within 7 days (s 100).


INSPECTORS AND PINS

If called the inspector may perform any functions or exercise powers under the WHS Act that they consider reasonably necessary in the circumstances.

Inspector must enquire into the circumstances relating to the issuing of the PIN with the HSR who issued it and why the PIN has been disputed (s 101).

The inspector will then do one of the following:– Affirm the PIN– Affirm the PIN with modifications– Cancel the PIN (s 102).

After making their decision the inspector will issue a written notice to the HSR setting our the basis for the inspector’s decision (s 102).


MISTAKES IN PINS

A PIN will be invalid if it does not contain the matters in s 91 and 92.

A PIN is not invalid merely because of:– A formal defect or irregularity; or– A failure to us the correct name of the person as long as the notice

sufficiently identifies the person (s 98).

If a defect or irregularity, when viewed objectively, could mislead the person receiving the PIN then the PIN will be invalid. For example if:– the PIN is illegible or capable of multiple meanings– if the date for compliance is not clear; or – if the wrong section of the Act or regulations are named and therefore is

misleading about the corrective action required.


DIRECTIONS FOR WORK TO CEASE

A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard (s 84).

No longer an express right for HSRs to direct the cessation of work in Queensland.

Employer may direct employees to suitable alternative work (s 87).


REVIEWING DECISIONS – INTERNAL REVIEW

Section 223 and schedule 2A sets out the decisions that are reviewable under the WHS Act.

Reviewable decisions include a decision under s 102 to affirm (with or without modifications) or cancel a provisional improvement notice.

Applications for IR must be made with 14 days and made in the form approved by the regulator (s 224).

If an IR application is made the authority must make a decision to affirm or vary the reviewable decision or set aside the reviewable decision and substitute it with another decision within 14 days of receipt of the application (s 226).

NB: the 14 days ceases to run if the IR requires further information (s 226).


REVIEWING DECISIONS – QCAT

A person can apply to QCAT for review of a reviewable decision or a Internal Review decision made by the regulator.

Some decisions are reviewable in the QIRC, however, decisions with respect to PINs are only reviewable by QCAT (see schedule 2A of WHS Act).

Applications to QCAT are dealt with under the QCAT Act. No time limit for application in WHS Act, so 28 days applies.

QCAT then holds a de novo hearing where it may affirm, vary or set aside the decision under review based on the evidence before it (s 20 of QCAT Act).


5. DISCRIMINATORY, COERCIVE AND MISLEADING

CONDUCT


DISCRIMINATORY CONDUCT

It is an offence under the WHS Act to engage in “discriminatory” conduct (s 104).

The discriminatory must be the dominant reason for the conduct (s 105).

Unlike other provisions of the WHS Act, a person alleging a contravention of this provision can initiate civil proceedings in the Magistrates Court.


WHAT IS DISCRIMINATION? – S 105 Similar, though broader, than adverse action.

A person engages in “discriminatory conduct” if the person:– dismisses a worker; or– terminates a contract for services with a worker; or– puts a worker to his or her detriment in the engagement of the worker;

or– alters the position of a worker to the worker’s detriment; or– refuses or fails to offer to engage a prospective worker; or– treats a prospective worker less favourably than another prospective

worker would be treated in offering terms of engagement; or– the person terminates a commercial arrangement with another person;

or– the person refuses or fails to enter into a commercial arrangement with

another person.


PROHIBITED REASON – S 106 Also broad, but only relates to health and safety matters.

A person engaging in any of the following is a prohibited reason:– is, has been or proposes to be a health and safety representative or a

member of a health and safety committee; or– undertakes, has undertaken or proposes to undertake another role

under this Act; or– exercises a power or performs a function or has exercised a power or

performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee; or

– exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way; or

– performs, has performed or proposes to perform a function under this Act or performs, has performed or


WHAT IS A PROHIBITED REASON?...– proposes to perform a function under this Act in a particular way; or– refrains from, has refrained from or proposes to refrain from exercising a

power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way; or

– assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act; or

– raises or has raised or proposes to raise an issue or concern about work health and safety with—

• the person conducting a business or undertaking; or• an inspector; or• a WHS entry permit holder; or• a health and safety representative; or• a member of a health and safety committee; or


WHAT IS A PROHIBITED REASON?...• another worker; or• any other person who has a duty under this Act in relation to the

matter; or• any other person exercising a power or performing a function under

this Act; or– is involved in, has been involved in or proposes to be involved in

resolving a work health and safety issue under this Act; or– is taking action, has taken action or proposes to take action to seek

compliance by any person with any duty– or obligation under this Act.

NB: maximum penalty is 1000 penalty units. Can also seek compensatory and general damages.


COERCION, ETC – S108 Similar to coercion provisions in the FW Act, however, with the addition of

“inducement”. A person must not organise or take, or threaten to organise or take, any

action against another person with intent to coerce or induce the other person, or a third person—– to exercise or not to exercise a power, or to propose to exercise or not

to exercise a power, under this Act; or– to perform or not to perform a function, or to propose to perform or not

to perform a function, under this Act; or– to exercise or not to exercise a power or perform a function, or to

propose to exercise or not to exercise a power or perform a function, in a particular way; or

– to refrain from seeking, or continuing to undertake, a role under this Act.

Can also initiate civil proceedings to address the conduct.


MISREPRESENTATIONS – S109 A person must not knowingly or recklessly make a false or misleading

representation to another person about that other person’s—– rights or obligations under this Act; or– ability to initiate, or participate in, a process or proceedings under this

Act; or– ability to make a complaint or inquiry to a person or body empowered

under this Act to seek compliance with this Act.

NB: person must have been expected to rely on representation.

No access to civil proceedings.


CRIMINAL PROCEEDINGS A person who engages in discriminatory or coercive conduct can be the

subject of criminal proceedings (s 110).

If a person is convicted of engaging in discriminatory or coercive conduct, can be ordered to (s 111): – pay compensation; and/or– Reinstate the worker; or– Employ the worker.

NB: “a legal burden of proof”. This requires the defendant to establish the exception or defence on the balance of probabilities. Once this is done, the prosecution must refute the exception or defence beyond reasonable doubt.


CIVIL PROCEEDINGS Can initiate proceedings for discrimination or coercion/inducement in the

Magistrates Court (s 112(2)).

Must be affected by the alleged conduct, or be authorised to represent the affected person (i.e. a Union) (s 113).

Can seek:– Injunctive relief;– For discriminatory conduct – compensation;– For discriminatory conduct – reinstatement or re-employment;– For either action – any other order the Court considers appropriate.

Above not to be considered as restrictive on Court’s powers (s 112(5)).

Time limit for proceedings is 1 year (s 113).


CIVIL PROCEEDINGS… Reverse onus of proof – prohibited reason presumed to be the substantial

reason for the conduct unless the defendant proves otherwise (s 113).

It is a defence to a proceeding if the defendant proves that—– the conduct was reasonable in the circumstances; and– a substantial reason for the conduct was to comply with the

requirements of this Act or a corresponding WHS law.

NB: “a legal burden of proof”. This requires the defendant to establish the exception or defence on the balance of probabilities. Once this is done, the prosecution must refute the exception or defence beyond reasonable doubt.

Cannot seek compensation in civil proceedings if also receiving compensation in criminal proceedings (s 114).


CIVIL PROCEEDINGS… Prohibited from multiple actions ( s 115).

Would not be able to initiate proceedings under WHS Act if also initiated proceedings under Fair Work, Industrial Relations or Anti-Discrimination legislation for the same matter.

Cannot recover compensation if recovered compensation under any other Commonwealth or State law with respect to the same matter (may be an issue with workers’ compensation)

Cannot commence or continue proceedings if failed in a proceeding under another Act, in relation to the same matter (except workers’ compensation claims).

Magistrates Court is a costs jurisdiction.


6. NEGOTIATING WHS CLAUSES IN ENTERPRISE

AGREEMENTS


WHY PUT WHS CLAUSES IN EAs?

Difficulties with obtaining enforcement of WHS Act

Employees/Unions cannot sue for breach of WHS Act (except discrimination and coercion)

Broad remedies available for contraventions of EAs under the FW Act

No compensation available in FWC bullying jurisdiction.


POTENTIAL PITFALLS

As with any EA clause the exact wording is important.

Any clause should be clear in imposing obligations on the employer as opposed to a series of “hortatory” or “aspirational” statements. See Reeves v MaxiTRANS Australia Pty Ltd [2009] FCA 970; (2009) 188 IR 297

If the clause is ambiguous or confusing it may not be enforceable. See National Tertiary Education Union v La Trobe University [2014] FCA 1330


WHS CLAUSES IN AGREEMENTS

64

2.2 OUR RESPONSIBILITIES TO YOU

2.2.1 To abide by the requirements of our policies and procedures as varied from time to time.

2.2.2 To abide by the requirements of relevant legislation and laws that apply to the employment relationship including: (a) industrial relations; (b) Anti-discrimination; (c) Superannuation; (d) Long service leave (e) Occupational health and safety; (f) Workers’ compensation; (g) Repatriation and return Soldiers; (h) Taxation; and (g) Privacy.


PUBLIC LIABILITY CLAIMS What about?

– A subcontractor or independent contractor– An employee working for a host employer– An employee working on a large site managed by a principal

What duties are owed if, any?


RELEVANT LEGISLATION Civil Liability Act (Qld) 2003

Personal Injuries Proceedings Act (Qld) 2002

General common law duties

Obligations and duties under the contract of service


IS THERE A DUTY OF CARE OWED? Host employer arrangement – yes generally.

An employment-like relationship could give rise to a similar high duty of care to that of employer-employee relationship: Stevens v Brodribb Sawmilling – control test

Principal – independent contractor – depends on the facts of the case – a duty does not automatically arise


CASE STUDY TNT Australia Pty Ltd v Christie [2003] NSWCA 47

Facts: P employed by employment agency, Manpower. P worked at brewery operated by TNT. P injured when a forklift malfunctioned and moved backwards over his foot.

Held: TNT and the P were in a position analogous to that of employer and employee, giving rise to a non-delegable duty of care upon TNT. In finding Manpower also liable, that an employer who operates a labour hire business does not abdicate its non-delegable duty simply because its employees are sent to work for a client.


DUTY OF CARE: EXTENT The duty of care does not require that the host company/principal contractor

to – provide training to sub-contractors in the safe methods of performing the

subcontractor's specialised work

A principal contractor can engage a competent and independent contractor to perform the work and rely on their skill

A principal contractors and are unlikely to possess detailed knowledge of safe work methods across the spectrum of trades involved in construction work

If a principal contractor fails to engage a competent contractor they too may be negligent for the failure of the contractor to perform some type of work


CASE STUDY In April 2003, a labour-hire employee working for Roche Mining Pty Limited

fell approximately 2.5m while climbing into a Caterpillar 785B dump truck.

He suffered serious injuries to his pelvis, lower back and hips.

The worker claimed damages for his injuries against Roche, which was in charge of the running of the Coal Mine he was working on and owned the plant and equipment used at the mine.

He alleged that Roche failed to provide him with a safe system of work, requiring that the Cat be parked in a way that increased the risk of its operator falling, and failed to provide a safe means of accessing the cabin of the truck.


CASE STUDY (CONT.) Roche argued the worker was a ‘highly qualified' and ‘experienced driver' of

specialised equipment and did not require any instruction, supervision, training or control.

Roche also contended that the worker had contributed to the fall, by failing to maintain ‘three points of contact' while ascending the ladder.

Held that the relationship between Roche and the worker, while not being employer and employee, was ‘significantly closer' than that between a principal and independent contractor and they were liable


GENERAL PRINCIPLES Civil Liability Act

– S 9(1) – A person does not breach a duty to take precautions against a risk of harm unless:

• Risk was foreseeable (knew or ought to have known of risk) • Risk was not insignificant and• A reasonable person in the circumstances would have taken the

precautions – S 9(2) – in deciding whether reasonable person would have taken the

risk court will look at:• Probability harm would occur if care not taken – s 9(2)(a);• Likely seriousness of the harm – s 9(2)(b);• Burden of taking precautions – s 9(2)(c); and• Social utility of activity creating risk of harm – s 9(2)(d).


GENERAL PRINCIPLES

– Section 10• The fact that a risk if harm could have been avoided by doing

something in a different way does not of itself give rise to/affect liability for the way the thing was done and

• The subsequent taking of action that would have avoided a risk if done earlier does not give rise to/affect liability in relation to the risk and does not of itself constitute an admission of liability

The risk of harm is one made in prospect and not retrospect. Hindsight has no part to play


QUESTIONS?

Alison Barrett, Principal Ph: 07 3016 0333 Email: [email protected]


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