Although we did not celebrate any milestones within the team
this month, we did seem to be working on a number of OHS matters.
This month we have decided to dedicate the entire newsletter to
health and safety in order to mark National Safe Work Australia
Week. Although compensated injury fatalities are down on previous
years, I am reminded of something a lecturer told me - the number
of recorded fatalities may not seem like many, unless one of those
fatalities is your loved one. 137 people across Australia went to
work and did not come home last year. It is a sobering thought.
Over 60 Victorian companies were prosecuted last year, with the
majority of those prosecutions resulting in a conviction and fine.
All of those companies are now listed on the WorkSafe Victoria
website. There are very obvious serious legal consequences for
breaching OHS legislation. We encourage you to read this newsletter
and consider where you could make improvements and, where
appropriate, seek guidance.
We would also like to mention the commencement of Cornwall
Stodart's E&IR team's breakfast HR Discussion Forums on
November 10. We had a great response from clients. Stay tuned for
our 2012 calendar of forums.
FWA finds compulsory drug and alcohol testing 'reasonable'
employer direction
The mandatory testing regime has been a contentious issue in the
Victorian building industry for some time, particularly because the
Victorian Building Industry Alcohol and Other Drugs Policy
(Policy), which was regularly attached to
Victorian building industry enterprise agreements, did not provide
explicitly for testing. The Construction, Forestry, Mining and
Energy Union (CFMEU) sought to challenge an
employer's mandatory testing regime as being inconsistent with the
Policy, which was founded on concepts of consultation and
cooperation.
However, a Fair Work Australia (FWA) full bench
has ruled that compulsory drug and alcohol testing can be a
reasonable employer instruction, notwithstanding that an employer's
policy or agreement is silent on the issue.
Background
In this case, Wagstaff Piling Pty Ltd
(Wagstaff) was subcontracted to Thiess Pty Ltd
(Thiess) to undertake work on the Tulla-Sydney
Alliance Project. Thiess had a comprehensive 'Fitness for Work'
policy, which included requirements for drug and alcohol testing
for both its own employees and the employees of its subcontractors.
It was also Thiess' policy to subject employees to random drug and
alcohol testing during a preannounced period each month. Wagstaff
was contractually obliged to facilitate participation by its
employees in this testing.
In May 2011, the CFMEU and at least one other union confirmed
that Wagstaff and various other subcontractors would not cooperate
with the announced testing for that month. Wagstaff agreements had
common provisions regarding drugs and alcohol, but did not require
random drug and alcohol testing of its employees. On referral of
the dispute to the Victorian Building Industry Disputes Panel
(Panel), the Panel concluded that the employees of
the subcontractors should not be subjected to involuntary random
testing, and made a recommendation that the random testing cease
for the employees of the subcontractors that were party to the
dispute. This decision was referred by Wagstaff to FWA for review.
At first instance, it was held that the drug and alcohol clause
in the Wagstaff agreement and their drug and alcohol policy did not
enable them to conduct voluntary or involuntary drug and alcohol
testing. The Commissioner stated that you cannot read an
entitlement into an agreement that is clearly not there.
Appeal
Not surprisingly, the decision was appealed. Wagstaff and Thiess
argued that the Commissioner erred by proceeding on the premise
that, as the Wagstaff agreement did not expressly or implicitly
entitle Wagstaff to conduct drug and alcohol testing, it could not
do it. Wagstaff submitted that compulsory drug and alcohol testing
represents a lawful and reasonable instruction and reflects the
occupational health, safety and welfare obligations imposed upon
both it and Thiess to take appropriate steps to protect employees
from safety risks.
The full bench agreed, stating that the agreement and Policy did
not operate to limit drug and alcohol testing, or for that matter,
other safety initiatives. Although it clearly endorsed a
cooperative and collective approach to the management of drug and
alcohol issues, it could not be read as prohibiting mandatory drug
and alcohol testing. Moreover, compulsory drug and alcohol testing
is, of itself, not so extraordinary that it could not be argued to
be a reasonable employer instruction.
For employers
This decision confirms what many employers would likely have
already thought about drug and alcohol testing. It is incumbent on
employers to manage the health and safety risks a drug or alcohol
affected employee might pose to safety. Accordingly, employers are
able to direct an employee to undergo testing. We recommend that
your drug and alcohol policy addresses the issue of testing.
The CFMEU has hinted that it will appeal the decision, and has
issued a circular in which it states its belief that the ruling by
FWA is wrong at law (see further,
http://www.cfmeuvic.com.au/downloads/ohs-alert/drug-testing-consultation-october-2011.pdf).
The union has suggested that this decision does not mean that
random drug and alcohol testing can be introduced without
consultation, which may be a breach of the consultation provisions
of the OHS Act.
For assistance in drafting a comprehensive drug and alcohol
policy, or to review your current policy, contact the E&IR
team.
Fraudulent workers' compensation claim lands worker nine month
jail term
A tip-off has led to the discovery and prosecution of a worker
fraudulently obtaining workers' compensation payments. The truck
driver had received $40,000 in workers' compensation benefits but
had continued to work for two years, earning $640 gross each
week.
Magistrate Wakeling said the offending conduct involved
significant dishonesty and undermined the integrity of the workers'
compensation scheme, especially because it relied on people
self-reporting on the level of their injury or illness.
The worker had submitted certificates of incapacity and received
direct payments. His doctor had no knowledge of his return to work,
believing the worker was undergoing re-training organised by his
claims agent.
The worker was sentenced to nine months' imprisonment, sending a
strong deterrent message. The most common sentence imposed last
year for offences against the Accident Compensation Act
1985 was a conviction, fine and order to pay restitution. This
sentence highlights that the courts are taking this type of offence
seriously.
Model work health & safety harmonisation - are the model
laws stalling?
Once upon a time it was hoped that all states and territories
would harmonise health and safety laws in Australia, by
implementing the federal government's Model Work Health and Safety
Bill 2011 by 1 January 2012. However, with a number of
jurisdictions not having passed the model Act, it would seem the
January deadline will not be achieved.
The West Australian government has advised the federal
government that it will be unable to achieve the 1 January target
and has sought a reconsideration of the implementation date in
order to analyse the full impact of the laws. The Victorian
government has also advised that it does not have the information
necessary to fully assess the impacts of the laws, because the
harmonisation package as a whole has not yet been finalised. It has
commissioned WorkSafe Victoria to undertake an assessment of the
legislation.
South Australia, Tasmania and the Northern Territory have
introduced the model legislation into their respective parliaments
and assemblies, but it has not yet been passed. All have expressed
an intention to operate under the new legislation from 2012.
New South Wales, Queensland and the ACT have all passed the
harmonised legislation. Consequently from 1 January 2012, we may
see some of the country singing from the same hymn sheet.
Planking workers prosecuted
WorkSafe has prosecuted two Victorian factory workers for
planking. One worker was photographed planking across the tyres of
a forklift, while the other was photographed on top of a spray
booth - both were about four metres above the ground.
Both workers pleaded guilty, acknowledging their actions were
'stupid'. Neither worker wore safety harnesses or used any other
form of fall protection.
Despite the seriousness of their offending and the high risk of
serious injury or death involved, the two men were spared
conviction because of their exemplary references, lack of prior
offending and solid work history. Both men had lost their jobs as a
result of their stunt. The Magistrate imposed a fine of $1500 on
each worker.
For employers
This prosecution is uncharacteristic for two reasons - it
targeted the workers involved and is an example of WorkSafe
initiating a prosecution for breaches of OHS legislation in
circumstances where no injury has occurred.
Enforcement by WorkSafe is heavily weighted towards employer
prosecutions. Employers are responsible for monitoring/supervising
their employees. If an employee is observed as having a tendency to
skylark or otherwise behave carelessly, that of itself is a
workplace hazard, and employers are required to take appropriate
risk control measures.
Model Codes of Practice
Employers should note the closing of the consultation period of
Friday 16 December for a number of Codes of Practice,
including:
- Safe design of building and structures
- Excavation work
- Demolition work
- Spray painting and powder coating
- Abrasive blasting
- Welding and allied processes
- Safe access in tree trimming and arboriculture
- Preventing and managing fatigue in the workplace
- Preventing and responding to workplace bullying
The Codes of Practice, when finalised, will be admissible in
court as evidence of whether a duty under the Work Health and
Safety Act has been complied with. Moreover, the court may use the
Codes to determine what steps were reasonably practicable for a
business to take in relation to particular risks. Therefore, we
recommend that businesses take the time to review these drafts and
consider making comments before the deadline.
Employer suffers heavy fine for OHS breach despite no
injury
A Victorian bricklaying company has been fined $100,000 and
ordered to pay $4,000 in costs after pleading guilty to breaching
the Victorian OH&S laws. In this case it was found that over
6,000 bricks were stacked onto scaffolding, which is twice the safe
work limit, and were not evenly spaced.
Despite the fact that no one was injured, the court held that
this was a risk to the workers on-site and to the public.
The punishment was handed down by the Melbourne Magistrates
Court, and demonstrates that an injury does not have to occur
before a breach of the OH&S laws will result in a heavy
penalty.
Fair Work Australia finds a dismissal for a high BAC to be
unfair
Fair Work Australia (FWA) has reinstated an
employee and held his termination was unfair, despite the employee
returning a blood alcohol content (BAC) of 0.076
while at work and operating machinery.
The employee submitted that he had been drinking the night
before but did not believe he was under the influence of alcohol
when he got into his car, drove to work and commenced his
duties.
A random breath test was conducted where the employee submitted
that he agreed with the reading of 0.076 BAC taken by the employer.
Witnesses claimed the employee smelt of alcohol and was 'nervy'
when undergoing the drug and alcohol test.
Despite this, the Commissioner made due note of other factors
including that the employee was 55 years of age with few
qualifications, little education, lived in a regional area with low
employment opportunities and his 16 years of unblemished
service.
The Commissioner ruled that the employee's termination was
unfair and that he be reinstated with no loss in continuity of his
employment. However, no order was made with respect to lost
remuneration from the date of termination to the date of
reinstatement.
For employers
These decisions often seem contradictory with the employers'
duty to ensure a safe workplace. When employers take steps to
discipline an employee for breaches of their safety policies, the
employee must still be afforded procedural fairness. Termination
may not always be reasonable in the circumstances and employers
should seek advice if they are uncertain.
2010-11: A snapshot on safety
Throughout Australia:
- there were 137 work-related notified
fatalities (including bystanders) during the 2010-11 financial
year
- vehicle incidents caused 22 of the total
number of work-related fatalities
- the most common cause of work-related fatalities was being
hit by a falling object, accounting for
21 fatalities
- industries that accounted for the highest number of fatalities
were agriculture, forestry and fishing (37
fatalities), construction workplaces (30
fatalities), manufacturing workplaces (22
fatalities) and transport & storage workplaces
(14 fatalities)
- the highest number of worker fatalities were recorded in
Queensland, followed by New South Wales and
Victoria
- of the 137 work-related fatalities, 123 were
men.