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Occupational Health and Safety obligations in the workplace

Do you know your Occupational Health and Safety (OHS) obligations about workplace safety training? Any idea what ignorance of OHS training obligations could cost you? And what it might cost employees, perhaps serious injury or even their lives? Here are the crucial OHS clauses.

Employees have a legal right to be sufficiently trained to undertake their role and to a safe workplace. Employers, business owners, managers, and company directors who fail to ensure that employees are sufficiently trained and have a safe workplace, can be personally liable for fines and damages claims exceeding $250,000.

When people go to work, their family expect that they will return home safely at the end of the day. However, the reality is that employees face health and safety hazards in their daily employment that expose them to the risk of illness or injury. The hazards may be present in the physical environment, may be from the material and equipment used, or may be in the work activity itself.

The Occupational Health and Safety Act 2000 (OHS Act) aims to eliminate or minimise the risk of injury and illness from hazards in the workplace. Employers and business owners have an obligation pursuant to the OHS Act and common law to ensure that people are not exposed to risks to their health and safety at their workplace. In summary, employers must provide safe premises, safe machinery and substance, safe systems of work, informative instruction, training and supervision, and a suitable working environment and facilities.
Company directors, managers and supervisors should note that pursuant to the OHS Act the responsibility to provide a safe workplace and provide proper training and supervision extends to managers and supervisors who are directly responsible for occupational health and safety within areas of their control.

Many company directors are not aware of the day-to-day management of a business, but this is not a defence. A company director may be liable for conventions of the OHS Act unless they can demonstrate that they were not in a position to influence the conduct of the corporation, or they had used due diligence. The extent of training an employee is required to undertake before performing his or her duties will depend upon the workplace. For example, apprentices or employees in what is deemed a hazardous industry will require specific training or licences.

As an employer, you have both a legal obligation and a moral obligation of good practice when training your staff. You’re legally obliged to provide a healthy and safe training environment; ensure staff don’t experience discrimination or harassment during training; provide adequate supervision during training; inform employees of their rights and responsibilities during training; and ensure that appropriate insurance policies for employees to undertake specialist training are in place.

It is good practice to create a training agreement that is signed by both the employer and employee to ensure that all parties understand what they expect from one another. Employers must also observe their usual duties and statutory obligations throughout training, such as privacy, occupational health and safety, duty to pay appropriate remuneration, anti-discrimination policies, and workers compensation.

A further requirement of employers is to provide training to all employees who could be exposed to hazardous substances at work. The amount of training and what is covered in it, should be appropriate to the level of risk to health. To ensure that employees are not exposed, it is essential that records are kept of all training. The records should include the names of employees receiving training, an outline of the course and details of the training providers. These records must be kept for a period of five years.

For further information employers should visit the Australian Safety Compensation Council website at ascc.gov.au and or Comcare at comcare.gov.au.

Safety Training Options

It’s essential that employers, business owners, managers and company directors familiarise themselves with the company’s policies and procedures, and with the health and safety training courses available to them. As an employer, it is crucial that the training product is suitable to your staff and your business. There are many types of training, both formal and informal.

Formal training consists of four types: licences or certificate courses, accredited and approved courses, short courses, and vocational and professional courses. These are provided by employee organisations, unions, health and safety organisations, TAFE colleges, and private occupational health and safety consultants. For further assistance, your state’s WorkCover authority can provide details on the training course appropriate to your business.

In order to ensure that informal training is effective, the supervisor or manager needs to undertake training to develop the skills to train others in the workplace. It is also essential that business owners identify experienced staff members who are able to provide mentoring to junior staff through their experience in their position.

No matter how large or small your business is, everybody needs some training in health and safety matters and the policies and procedures of your particular business.

The employees’ training starts with induction training. The employer is responsible for ensuring that a new employee is given induction training and has the skills and knowledge to work safely. The induction training should include information such as:

* hazards at work
* how to interpret safety signs and information
* fire and emergency procedures
* first aid procedures
* reporting procedures
* dealing with specific equipment
* how to get involved in health and safety

In most workplaces, the owner, supervisor, or experienced worker will provide this training. It is essential that the induction training is properly recorded and that all records are kept. The records should include the name of the person who received the induction and health and safety training, dates and times of when the training took place, specific details of what occurred during the training, how long the training session lasted, and how the training was assessed.

Safety Training Analysis

After the induction of the employee, it’s essential to plan and continue to train. Training needs analysis to ensure it is relevant to the job and to the changing needs of the workplace. We suggest conducting a health and safety training needs analysis to ensure your employees are receiving the type of training they need. Training analysis involves analysing all aspects of the work, including the work environment, the actual jobs people do, and the skills and knowledge of each person at work. Once this information is collected you can start to plan what training your organisation needs.

When planning the training analysis, we suggest you:
* analyse the workplace
* assess the current approach to health and safety at work
* analyse the specific jobs
* forecast any possible job changes
* delegate responsibilities to the appropriate supervisors and managers
* create responsibilities of supervisors
* create a handling system for health and safety procedures

To minimise their risk of liability, it’s essential that employers, business owners, managers, supervisors and company directors are aware of their legal obligations to provide a safe workplace to ensure that employees are given ongoing training.

A review of case law provides insight into the types of offences and common failures of employers and supervisors that have resulted in penalty fines and awards of over $200,000.

A 20-year-old apprentice shopfitter died at a kitchen cabinet factory in Brookvale after he slipped on laminate sheeting and 200-300 kilograms of board fell on top of him, crushing him to death. The apprentice received no formal induction or manual handling training. The court deemed that the employer failed to maintain a safe workplace or provide information, instruction, training and supervision. The business owner was fined $65,000. Justice Michael Walton said: “The failure to provide training was all the more significant having regard to the tender years of the deceased and his position as an apprentice.”

A university student died instantly when he touched an exposed wire while cleaning a stove at a McDonald’s restaurant. Justice Michael Walton fined McDonalds Australia $120,000 and McDonalds Property Australia $150,000. Justice Walton stated: “The existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence.” Again, the employer failed to provide proper induction training and supervision.

A factory-hand employed for less than two weeks was crushed to death in a moulding machine at a factory in Revesby. The company, Fining Foamex Polystyrene, was fined $208,000. The company had inadequate employee training and supervision.

A 19-year-old jackaroo was killed at a Haddon Rig property when he was crushed between an auger and a filo door frame. The company pleaded guilty for failing to provide a safe system of work for those operating augers at the farm and to adequately supervise, instruct and train them. Justice Conrad Staff fined the company $78,000 and its managing director George Sadlier Falkiner $6,500. Justice Staff said: “Employers had an increased responsibility to train young and inexperienced workers, particularly in occupational health and safety.”

Another matter involved a service station attendant who was awarded more than $109,000 after an armed robbery at a service station. The employee relied on the allegation that the security system in place was ineffective or inadequate, and that the employer failed to provide adequate training.

Consider this. The Full Bench provided an indication as to the scope of training required in the matter of Genner Constructions v WorkCover Authority of NSW (Inspector Guillarte): “While the lack of documented procedures will not always indicate a deficiency in the training provided by an employer it may, in some cases, constitute an indication that the training was less comprehensive or systematic than was required.

“Where a worker may be required to autonomously adopt alternative work procedures in response to changing circumstance and those alterations may present serious risks to that worker or others, it would be prudent, at the very least, to ensure that “on the job” training was formalised and documented with a view to ensuring a comprehensive coverage of all facets of the work and full appreciation of any safety risks by the employee concerned.”

—Matthew Hourn is partner at Clinch Neville Long lawyers (www.clinchnevillelong.com.au).

Legal Tips for Your Employees

If you are the sort of employer who likes to guide your staff from time to time on how to improve themselves and if you have exhausted your diatribes on issues such as safety, working as a team, and not putting fag butts out the window, then law is the subject for you.

Here are 10 legal things that your employees need to know:
1. Do not write down insults in emails. It’s too easy to prove if the company and you are sued for defamation.
2. Illegal downloads (music, pornography etc.) do not disappear when you press the delete button.
3. Don’t take the client list or reveal our secrets when you leave or we will sue your pants off.
4. Emails can be binding legal contracts. Don’t unwittingly commit the company.
5. Court cases waste time and money and take the focus off business, do don’t get us involved in disputes.
6. If we get into legal proceedings because of you, even if you are in the right we are likely to settle the proceedings before we get anywhere near court having incurred a great deal of expense and time lost. In that event we will hate you forever.
7. In every major court case now there is a “smoking gun” email. Don’t let it be yours.
8. One man’s humour is another woman’s harassment and ticket to a payout.
9. If the company gets sued for your negligence, then we can sue you too.
10. We are responsible for every act you do as an employee. So watch it.

Having a list will help your employee avoid behaviour that causes knee-jerk reactions people regret later. Also, having a numbering system will allow you to go immediately into a ballistic rage without having to stop and explain which aspect of your employee’s conduct has offended you. This is especially useful for high blood pressure sufferers.

—Paul Brennan is a lawyer practising in Queensland and has just released an e-book and audio CD called The 10 Greatest Legal Mistakes in Business….and how to avoid them. Published at www.brennanlaw.com.au/publications.html

Occupational Health and Safety Responsibility

You might have sought the best workplace health and safety advice, documented your systems, provided effective personal protection equipment, and ensured that everyone in your business is clear on workplace practices—but what happens if employees ignore the rules? Many managers believe that once they have done the obvious, they are in the clear. But in the eyes of the law it’s not enough. You are also responsible for making sure employees follow the practices.

Imagine you have a strict no-alcohol policy but one of your salespeople goes to lunch with a prospective client and surrenders to some wine while clinching the deal. This is a fairly common occurrence. But if, for example, she returns to the office tipsy and falls, only to be attended by your qualified staff first aid person—who happens to be male—this scenario could turn into a mess.

She could allege that her office situation was unsafe and argue that the male first-aid officer, who loosened her blouse, subjected her to inappropriate attention. (Are you aware that if you employ members of both sexes, you must have both male and female first-aid officers?) None of it would have happened if she’d been sober, but management becomes responsible for her situation.

Whatever accident or perceived insult happens, you will pay. The question is how much, and the better you can show how well you have foreseen the possibility of a workplace drama and guarded against it, the less you will pay.

Source: SafetyQuip (www.safetyquip.com.au)

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