Feb 12

Accidents Happen – Work Health and Safety

Accidents Happen – Work Health and Safety

Every person in business ought to know – and we are sure that most do – the basics about work health and safety (WH&S) laws in Australia, including that:

  • Each State and Territory has laws:
    • imposing responsibility, liability and exposure to prosecution (civil and criminal; corporate and personal) on employers, contractors, workers and others connected to the risk of work injury;
    • imposing an obligation on all who engage workers to insure against work injury, usually as part of a “no fault” statutory insurance scheme;
  • Most of the WH&S laws impose a general obligation to “ensure safety” and then put “meat” around this “bare bones” obligation with detailed regulations and codes of practice;
  • Failure to “ensure safety” exposes the business, and directors and management personally, to very severe consequences, including massive fines, prison in extreme cases, and adverse publicity.

There are (literally) many thousands of pages of WH&S legislation, regulations and codes of practice across the country.  The various jurisdictions have broadly similar laws but there are also (occasionally) significant differences.  Then, in certain industries, there are thousands more pages of targeted WH&S laws; for example, in the transport industry, there is separate chain of responsibility legislation, dangerous goods regulation and fatigue management laws.  Similarly, the construction and mining industries have to deal with additional laws, for example, requiring site-specific safety management plans on mine sites.
How does someone running a national company in Australia comply with all the various WH&S regimes in place across our eight States and Territories?  Answer: in truth, they probably don’t.  National employers could perhaps be forgiven – but, of course, they won’t be – for throwing their hands in the air in frustration at the complexity of it.
This complexity was improved significantly at the beginning of 2012 when nationally harmonised WH&S laws came into effect.  However, even now, there are more than 1,406 pages in the WH&S legislation, regulations and codes.  These numbers do not include industry specific regulations.
So, can WH&S compliance be summarised in 2-page article?  No, but there is space here to point readers in the right direction … This firm has assisted many clients with pre- and post- incident advice and we have identified two consistent themes, particularly when post-incident advice in this area, as follows:
(1) a safety culture; and

(2) the benefit of hindsight.
In regard to safety culture, one of our practitioners recently handled a case where a claw hammer was being used to pull a nail from wood.  Tragically, in this case, the nail flicked into the young worker’s eye and he lost vision in it, permanently. He was in his early 20s at the time.
All personnel on site had been issued with PPE, including safety goggles, and all had received induction training in which the use of goggles had been mandated.  However, the evidence gathered during the post-incident investigation showed that people on-site rarely wore the goggles.  It could be demonstrated that the site supervisor (forgive a horrible pun) had been turning a blind eye to poor safety practices.
Similarly, in a warehousing case that one of our practitioners was involved in several years ago, sheet metal was stored in racks to roof-height.  A worker injured himself when he fell from the racks holding a piece of sheet metal.  The injured worker had climbed approximately one metre up the racks to pull down the sheet for a customer.  He lost balance, fell, and the sheet fell on him and severed part of his hand.
The company had a forklift on-site and a system for the safe removal of the metal sheets.  If the forklift and system had been used clearly the incident would not have occurred.  Of course, the incident did occur, and the evidence gathered by the prosecuting authority showed that on-site staff regularly reached high above their heads and/or climbed racks to pull down the metal sheets, rather than use the system that had been prescribed.  The evidence showed that the on-site supervisor regularly permitted workers to take “short cuts”, including climbing the racks and not using the available Kevlar safety gloves.
Both the employer company as well as the on-site (employee) supervisor were prosecuted and convicted of WH&S contraventions.  We know from talking to the supervisor years after the event that he still suffers from feelings of guilt, including nightmares.
In regard to hindsight, in most cases, post-incident, when the regulator is investigating and prosecuting it is relatively easy to think of things that could have prevented the incident; often inexpensive things.
Take Comcare v Linfox [2010] FCA 793 as an example. In this case, a fork truck driver was carrying a 32-ton container approximately 8 metres in the air when it collided with a stationary stack of containers, causing the truck to flip forward onto its roof, and trapping the driver in the cabin.  The driver severely damaged both his legs and left forearm.
In this case, the fork truck was old and not fitted with a speed-limiting device or speedometer.  Also, it had no device for measuring the weight of objects carried, or tilt-warning devices.  It was found that congestion and speed were the major causes of the incident.  Both were obvious hazards, which had been identified in earlier safety reviews performed by Linfox, and are common to incidents involving forklifts and fork trucks that happen all too frequently.  Wider marked carriageways and a speed-limiting device, which could have been retro-fitted, would have prevented the incident.  Neither would have been particularly expensive.  Linfox consented to orders imposing penalties and costs of $175,000.
Finally, a case where the facts speak for themselves: Inspector Vierow v Rail Infrastructure Corporation.  In this case: maintenance work was being performed on a live railway line close to an adjacent live line; trains using the line could travel at speeds of up to 75kph; the work system did not require train drivers to be advised that work was being performed on the line and did not require the workers to be informed of the times that trains may be present in the work area; there was no requirement for a person to be allocated the task of a lookout; the working area was not required to be clearly marked to give passing trains advance warning of the workers; and there was no system of direct contact with the nearest signal box so as to be informed that a train was approaching.
A worker was hit by a train and killed.  Clearly, just a little fore-thought could have saved his life.

So, how does the employer create a safety culture and gain the benefit of hindsight pre-incident?  Answer: spend some time and money on the following:

  • Obtain professional advice and act on the recommendations provided;
  • Conduct formal safety training of workers, particularly all those on safety committees;
  • Conduct regular meetings with workers at which “war stories” are told of crushed limbs, cracked skulls and disfigurement;
  • Conduct regular safety audits, involving trained and experienced workers, to identify risks;
  • Inform workers of risks and reward them for thinking of cost-effective methods to eliminate or reduce the risks;
  • Ensure that safety is taken seriously, e.g. by implementing spot-checks and remuneration-based consequences;
  • Finally, document everything. Unless it is in writing, when an accident happens, you will not have the evidence needed to help you effectively.