OCCUPATIONAL HEALTH & SAFETY
Draft ACT Work Safety Regulation – Employers Could Be Fined Up To $50 000 For Failing to Consult With Employees
Under the new Work Safety Regulation 2009 (the Regulations), which has been released by ACT Minister for Industrial Relations, John Hargreaves, employers in the ACT could be fined up to $50,000 for failing to consult with employees, including those who are not directly under their employment, about safety.

The exposure draft of the Regulations has been released for consultation and they will underpin the Work Safety Act 2008, which comes into effect in October 2009.

Under the new Regulations, employer’s have a responsibility to consult with all workers, including independent contractors, outworkers, labour hire workers, trainees, students and volunteers. 

The definition of an “employer” for consultation purposes is “…a person directly involved in engaging or directing a worker to carry out work for a business or undertaking.” 

For an employer to escape being fined, it must:

(a) Share information with workers about the OHS matter;
(b) Give workers a reasonable opportunity to contribute information;
(c) Allow workers a reasonable opportunity to express their views; and
(d) Consider the works’ views.

The Work Arrangements Guide, which was released with the exposure draft, states that employers must consult with workers “…on a regular basis as part of a risk management process.”  It is not a one-off activity.

The Regulations stipulate that all workers must be a part of a consultation unit, which provides more flexibility and practicability for employers and workers for the consultation process.  If there are a large number of workers in a workplace, two or more consultation units will be required and there is a maximum penalty of $5,000 for an individual and $25,000 for a corporation who fails to establish multiple consultation units if required.

The Regulations provide that where a worker is incapacitated for seven days or more as a result of an incident at work, this will be consider a “serious event” and must be reported to the relevant authority within seven days.  If an incident results in death, this must be reported within 48 hours.  The Regulations also require employers to keep records and acknowledgements of notifications.

The Regulations will introduce the National Standard for Licensing of Persons Performing High Risk Work.  This will allow for licenses issued in other states to be recognized.

Under the Regulations, managing risks relating to manual tasks will be consistent with both the National Standard for Manual tasks and the process for managing all other work safety risks.

Employer Receives Substantial Fine for Second Occupational Health and Safety Offence
A South Australian employer has received a substantial fine from the AIRC after a work incident left a machine operator with permanent loss of use of his dominant right hand, ongoing pain and depression.

In September 2006 a machine operator attempted to remove twisted paper from a running machine when his right hand became trapped between two rollers, crushing his right hand and leaving him with a degloving injury.

The company, Paperline Australia Pty Ltd, was charged with breaching section 19 of the Occupational Health, Safety and Welfare Act 1986 (SA) for failing to adequately guard the printing machine and provide safe systems of work.  The employer pleaded guilty.

This was the employer’s second offence for a similar injury, for which it was convicted and fined $5,000 in July 2006.

Industrial Magistrate Richard Hardy (IM Hardy) stated that the employer “…has learned nothing from the previous conviction…I think, therefore, that a substantial penalty is called for.”

During the hearing, IM Hardy heard evidence that the injured worker had been removing twisted paper from the running machine daily for the past 11 years.  A warning sign had been placed on the machine instructing workers not to engage in this practice however, the procedure was common practice and the warning was never enforced.  Also, recommendations which were made to mitigate risks following risk assessments were never acted on.

IM Hardy fined the employer $35,000, which was reduced by 25 percent to $26,250 due to the employer’s contrition and early plea.  In awarding the fine, IM Hardy noted that following the incident the employer spent approximately $35,000 installing comprehensive guarding, wire mesh protection and infra-red light curtains on the machine to prevent an incident occurring again. 

Comments
This case reinforces that employers must enforce safe working practices in the workplace.  A warning sign is not sufficient to escape conviction under Occupational Health and Safety laws and could result in a substantial fine to the company and possibly a conviction for a company director.

For assistance in drafting appropriate and effective health and safety procedures in your workplace, please contact Workplace Law.

Each Stage of a Task, Including Those Which Secure Safety, Must Be Performed Safely
The New South Wales Industrial Relations Court has noted that a system of work must consider the safety of a worker at every stage of a task.  In Inspector Mayell v Ivanovski and Global Crown Constructions Pty Limited [2009] NSWIRComm 49, a worker fell to his death while walking along brittle skyline panels of a roof to secure his safety harness.

In the Industrial Court, Justice Frank Marks was told that the principal contractor had supplied the worker with a Safe Work Method Statement (the Statement), which the worker agreed to and signed.  However, the Statement did not adequately address the risks associated with working on brittle and fragile roofing.  This risk was mentioned in the Statement under the heading “additional health and safety risks”, with the control listed as “taking extra caution while on the roof, walking on screw lines, individual fall arrest systems”.

In this particular case, the principal contractor was well aware of the brittle panels on the roof but did not implement adequate control measures preventing the risk of workers stepping on the panels or falling through the roof (measures such as walkways, or roof boards).  Additionally, at the beginning of each day, workers were required to traverse the brittle roof (without safety equipment) to set up their safety harnesses.

In making his decision regarding penalty, Justice Marks took into account the employer’s and its director’s financial situation, their early plea of guilty to the offence, their remorse and contrition regarding the incident and their cooperation with WorkCover.

The employer was fined $75,000 and the director $1,000.

Obstructing or Impeding Union Officials Is A Criminal Offence
A Safety Manager, Mr Michael Dalzell, of a site has been found guilty of obstructing and impeding two union officials who had attended the site to conduct a safety audit.  See Michael Dalzell v Andrew James Ferguson [2009] NSWIRComm 81.

Two officials of the Construction, Forestry, Mining and Energy Union (the CFMEU) attended a building site to conduct a safety audit.  There are conflicting versions of what took place.  On Mr Dalzell’s account, he attended the site and found one of the union officials at the main gate.  He alleged that when he attempted to pass the union official, Mr Quirk, he swore at him and said “the Union is going to crush you…” Mr Dalzell claims that he ignored Mr Quirk and went to the site office where he saw Mr Whitehead, another union official.  Mr Dalzell claims that he requested Mr Whitehead’s right of entry, which he refused to produce.  It is alleged that Mr Quirk then “shoulder charged” the Safety Manager who then telephoned police.  An hour and a half later two representatives from WorkCover arrived at the site with four union officials.  An inspection was conducted and seven improvements notices were issued.

Mr Quirk and Mr Whitehead alleged that Mr Dalzell asked them both to leave the site and then proceeded to hose both of them.  It was alleged that Mr Dalzell shouted abuse at them to leave the site, which they did. 

The matter was heard in the Chief Industrial Magistrates Court and the union officials stated that both men had attended the site for the purpose of conducting a safety inspection under section 77 of the Occupational Health and Safety Act 2000 (NSW) (the OHS Act).  Mr Dalzell, under section 136(1)(a) of the OHS Act (which states that there is a potential defence where the Defendant genuinely and reasonably believes that a union official was at the premises for a purpose other than referred to in section 77 of the OHS Act), stated that he did not believe that the two men were at the site for the “…bona fide purpose of conducting a site safety inspection.”  Mr Dalzell believed they had attended the site to “i) for the purpose of causing him harm and damage; ii) Mr Quirk had come to the site with Mr Whitehead for the purpose of unlawfully soliciting bribes; iii) there were in fact no safety problems on site.”  The Chief Industrial Magistrate rejected each of Mr Dalzell’s allegations. Mr Dalzell was convicted and fined $6,500.

Mr Michael Dalzell appealed to the NSW Industrial Relations Commission (the IRC). 

On appeal, the full bench of the IRC found no error in the Chief Industrial Magistrates decision and noted that the Chief Industrial Magistrate was satisfied that Mr Dalzell was “…activated by a determination to stop…” the inspection by the union officials by “…whatever method he could find…”

The appeal was dismissed and the conviction and fine of $6,500 upheld.  Mr Dalzell was also ordered to pay the union’s costs.

Comments
This case confirms that it is a criminal offence to obstruct or impede union officials.  However, employer’s have the right to request that the union official produce a valid entry permit before allowing them access into the workplace.  If a union official does not produce a valid entry permit, an employer is entitled to request that they leave and return with a valid permit.

When allowing union officials into the workplace, employers should set down the ground rules clearly.  For example, union officials should not be allowed “free reign” over employee records or walking around the workplace.  To find out your rights when dealing with union officials, please contact Workplace Law.

WORKERS COMPENSATION
 How to Determine an Injured Self-Employed Worker’s Ability to Earn
In a recent appeal before the NSW Workers Compensation Commission (WCC), Deputy President Bill Roche (DP Roche) ruled that there are two tests that can be used to determine a worker’s earning ability.

In Nohra v Sydney Plastering and Construction Pty Ltd [2009] NSWWCCPD 48, Mr Nohra, who was the director and employee of the Company, injured himself during the course of employment when he jumped from scaffolding to the ground and injured his right knee.  Mr Nohra settled a claim for lump sum payments in respect of 7% loss of efficient use of each leg at or above the knee. 

Mr Nohra claimed that prior to injury, he was earning $1,107 per week and after returning to suitable duties, which were supervisory in nature, this dropped to $460 per week as he claimed he could only work 20 hours per week. 

The Respondent, insured by GIO, submitted that the sum of $460 per week did not fairly represent Mr Nohra’s ability to earn and claimed that he was fit to work full time on supervisory duties. 

At first instance, the Arbitrator awarded Mr Nohra weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 (NSW) (WC Act) in the sum of $885.66 per week from 3 July 2001 (date of injury) to 3 January 2002 (date he returned to work) and $24 per week pursuant to section 40 of the WC Act from 6 December 2005 to date and continuing.

Mr Nohra appealed against the award of weekly compensation for the period 6 December 2005 to date and continuing in the sum of $24 per week.

The key issue in the appeal was determining the proper method to adopt in calculating post-injury earnings, or the injured worker’s ability to earn, in circumstances where the injured worker is also a director of the respondent employer. 

DP Roche stated that there are two different methods that can be used to calculate post-injury earnings:

1) Determine the net remuneration being received by the worker for their labour by examining business accounts and making all proper allowances for overhead expenses, cost of materials and other labour.
2) Calculate the worth of the worker’s labour to the business, but without reference to the business accounts.  This could be done by:

a. determining the cost to the business of employing someone to do the worker’s job;
b. subtracting from the cost of employing an unimpaired worker the cost of supplementing the reduced efforts of the injured worker so as to produce for the business the services of one fully capable worker; or
c. determining what the injured worker would be paid if they were employed somewhere else. 

In the present case, DP Roche commented that it was “…inherently extremely unlikely” that Mr Nohra’s labour was only worth $460 per week, as he claimed.  DP Roche stated that the amount “…takes no account of his knowledge, experience, effort and capacity as the managing director and supervisor of [the company], all of which have a significant impact on the [company’s] profitability and the assessment of the value of [the worker’s] labour”. 

Mr Nohra’s appeal was allowed and DP Roche remitted the matter back to another Arbitrator to determine Mr Nohra’s fitness for work and earning ability.  

Comments
This case provides insurers with some guidance on how to calculate a self-employed injured worker’s ability to earn.  

For more information on how to calculate an injured worker’s post-injury earnings, or any other workers compensation matter, please contact Workplace Law. 

Disclosure in the NSW Workers Compensation Commission
Workplace Law has recently acted in a matter which shows the benefit of the procedural requirements of the NSW Workers Compensation Commission (the Commission).  Relevantly, Rule 10.3(1) of the Commission states that a party to proceedings must lodge and serve with their application or reply “all information and documents on which the party proposes to rely and that are in the possession or control of the party …”

Background
The worker made a claim in the Commission for permanent impairment, weekly compensation and medical expenses.  The parties attended a teleconference in accordance with the Commission’s timetable.  Attempts to settle the matter at the teleconference were unsuccessful.

In the weeks after the teleconference the worker served an Application to Admit Late Documents - which included a further statement by the worker.  In this further statement the worker included post injury employment details which were not disclosed in:

1 the application for internal review made to the employer; or
2 in the ARD filed with the Commission – details were omitted from both the Wages Schedule and the worker’s statement; or
3 the teleconference to the Respondent’s solicitor or to the Arbitrator.

The Respondent objected to the late documents and sought to have the ARD struck out due to the misleading nature of the ARD, it did not disclose his post injury employment, and the worker’s non-compliance with the Commission Rules to ensure that the ARD contained all relevant information and supporting documentation.  The non-disclosure by the worker did not allow his true position in relation to his work history or ability to work to be available to the Respondent.  In addition, the Respondent was prejudiced by the late notification of employment details from the worker in that it was not able to further investigate the new evidence.

The worker’s Counsel sought to proceed with all the claims, arguing that the Applicant could ‘fix’ the missing information prior to the Arbitration.

The Issue
The issue to be determined by the Commission was whether the claim for weekly compensation and medical expenses should be struck out.

The Result
Arbitrator O’Moore found that in accordance with Rule 10.3, the worker has the obligation of establishing his entitlement to weekly compensation and medical expenses, the nature of the entitlement, the degree of incapacity, the nature of the duties he can and cannot perform and what actual work has been undertaken.

Arbitrator O’Moore agreed with our submission that the information before the Commission was unsatisfactory, with new material (post injury employment duties and earnings) being lodged two months after the worker filed his ARD – the time full disclosure by the worker was required under Rule 10 – and a month after the teleconference.

Arbitrator O’Moore explained that while full and frank disclosure of all information is a standard obligation in the Commission, it is also not the role of the Commission to “have to patch together imprecise of periodically disclosed information on earnings …”

The worker was found to have failed to comply with Commission Rules in relation to filing all relevant information on which he intends to rely, as part of the ARD, and as a result his claims for weekly compensation and medical expenses were struck out.

Lessons to Learn
In the above example, the non-disclosure by the worker of the true position in relation to his employment prevented both the Respondent and the Commission from understanding the true position of his current ability as well as capacity for work.

The application of Rule 10(3) is clear – all documents relevant to a matter and which are to be relied on must be lodged with the ARD and/or Reply.  Non-compliance with this Rule may result in prejudice to the other party and, as in occurred in the case above, part of / the entire matter being struck out.

JOKE OF THE MONTH
A truck driver who had been delivering radioactive waste for the local reactor begins to feel sick after a few years on the job.  He decided to seek compensation for his ailment.  Upon his arrival at the workers' compensation department, he is interviewed by an assessor:

Assessor:  I see you work with radio-active materials and wish to claim compensation.

Trucker:  Yeah, I feel really sick.

Assessor:  Alright then, does your employer take measures to protect you from radiation poisoning?

Trucker:  Yeah, he gives me a lead suit to wear on the job.

Assessor:  And what about the cabin in which you drive?

Trucker:  Oh yeah.  That's lead lined, all lead lined.

Assessor:  What about the waste itself?  Where is that kept?

Trucker:  Oh, the stuff is held in a lead container, all lead.

Assessor:  Let me see if I get this straight.  You wear a lead suit, sit in a lead-lined cabin and the radio-active waste is kept in a lead container.

Trucker:  Yeah, that's right.  All lead.

Assessor:  Then I can't see how you could claim against him for radiation poisoning.

Trucker:  I'm not. I'm claiming for lead poisoning.