Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...Fatigue has been identified as a workplace risk that needs to be managed like other workplace safety risks.
The SafeWork Australia Guide for Managing the Risk of Fatigue at Work (the Guide) defines fatigue as “a state of mental and/or physical exhaustion which reduces a person’s ability to perform work safely and effectively.” The Guide also identifies that some of the factors which may contribute to and increase the risk of fatigue include work schedules, job demands and environmental conditions.
These three factors were central to a worker’s claim for injury in Naivalu v Ready Workforce (a Division of Chandler Macleod Pty Limited) [2018] NSWWCC28.
The worker was a labour hire employee who was hired as a farm hand at a chicken farm. On his way driving home from work, the worker fell asleep at the wheel, crashing his car as it went around a bend. The worker sustained a severe crush injury to his right arm and required amputation of his forearm.
The worker lodged a worker’s compensation journey claim and liability was disputed by the insurer.
The worker claimed that prior to the incident, he was put under increased pressure from the leading hand at the chicken farm because there were fewer employees to share the workload and he was asked to do certain jobs because of his build and stature. The worker stated that he could not complain because he was worried that if he did so, he would be moved to another farm.
On the day of the incident, the worker was required to work in a chicken shed on a hot day with no ventilation and was required to use a shovel to level out the dirt. The worker claimed that as a result of his activities, he was tired and fell asleep while driving.
The employer argued that there was no evidence that the worker had complained about being tired from his duties on the day and that it was a generally quiet period on the farm. The employer also suggested that the employee’s fatigue may have been the consequence of a second job he held picking fruit after work at the farm.
The NSW Workers Compensation Commission was satisfied that the worker’s fatigue was related to his employment – the worker was required to carry out strenuous manual labour without mechanical assistance in hot conditions. There was no evidence that the worker performed fruit picking duties in the lead up to the incident.
The Commission accepted that there was a “real and substantial connection” between the worker’s employment and the accident causing injury in accordance with the journey provisions of the Workers Compensation Act 1987 (NSW). Accordingly, the injury was compensable and the worker was awarded weekly compensation and medical expenses.
Lessons for employers
Employees who are experiencing fatigue pose a work health safety risk to themselves and to others in the workplace. Employers should regularly assess the tasks required to be completed by employees and be aware that certain tasks and other factors may cause employees to experience fatigue. Employers should then take steps to remove the risk of fatigue for example through, job/task rotation, rest breaks and sufficient time allocation for tasks.
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