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Occupational, Health and Safety review

Being up-to-date with occupational, health and safety (OHS) obligations is a must for all business owners, company directors, managers and supervisors. As the Federal Government begins a review of Australia’s OHS legislation, we tell you everything you need to know about OHS and keeping staff safe.

Under OHS legislation you are obliged to provide:
• Safe premises
• Safe machinery and substances
• Safe systems of work
• Information, instructions, training and supervision
• A suitable working environment and facilities.

If you do not comply with these requirements you can be prosecuted and fined.

The reality is, however, that more than 120,000 workers compensation claims are made each year, with more than 200 fatalities reported per year resulting from work-related injuries. This is totally unacceptable. When an employee goes to work, their family expects that they will return home safely at the end of the day.
Although some employers believe that the current OHS obligations are both time consuming and costly, they are however essential.
The Federal Government announced on 4 April 2008, that a panel will be convened to undertake a national review into OHS laws. The Government believes that by harmonising OHS laws they will cut the red tape, boost business efficiency and provide greater certainty and protection for everyone in the workplace
The review panel responsible for reporting to work place relations minister counsel, conducts a review in two stages. The first stage is to report to the work place relations minister counsel on 31 October this year and provide recommendations in the following areas:
• Duties of care, including the identification of duty holders and the scope and limits of duty, and
• The nature and structure of offences, including defences.
Stage 2 recommendations are due on 30 January 2009 and the panel must make recommendations on the content of a model OHS Act, on the following areas:
• Scope and coverage, including definitions
• Workplace-based consultation, participation and representation provisions, including the appointment, powers and functions of health and safety representatives and/or committees
• enforcement and compliance, including the role and powers of OHS inspectors, and the application of enforcement tools including codes of practice
• regulation making powers and administrative processes, including mechanisms for improving cross-jurisdictional cooperation and dispute resolution
• permits and licensing arrangements for high risk work and the use of certain plant and hazardous substances
• the role of OHS regulatory agencies in providing education, advice and assistance to duty holders, and
• other matters the review panel identifies as being important to health and safety that should be addressed in a model OHS Act.

Current OHS Legislation

Currently in New South Wales, the Occupational Health and Safety Act 2000 (OHS Act 2000) aims to eliminate or minimise the risk of injury and illness from hazards in the workplace. Employers and business owners have an obligation under the OHS Act and common law, to ensure that people are not exposed to risks to their health and safety at their workplace.
At the minimum, section 8(1) of the Act stipulates that employers must provide safe premises, safe machinery and substance, safe systems of work, informative instruction, training and supervision, and suitable working environment and facilities. The obligations extend to people other than workers, who may be present at the workplace, including contractors.
The burden is extended on company directors, managers and supervisors by section 26 of the Act, who too must ensure a safe workplace and supervision to areas within their direct control.
In reality, many company directors are not aware of the day-to-day management of a business, but this is not a defence. A company director will 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. 
Currently, the Australian Safety and Compensation Council (ASCC) is responsible for dealing with OHS at a national level. Performance is measured through the National OHS Strategy 2002-2012.
The five priorities identified by the National Strategy to achieve short and long-term OHS improvement and to nurture longer term cultural change are to:
– reduce the impact of risks at work
– improve the capacity of business operators and workers to manage OHS effectively
– prevent occupational disease more effectively
– eliminate hazards at the design stage; and
– strengthen the capacity of government to influence OHS outcomes.

Implementation of a national OHS model, we hope will lessen the burden on employers and provide a safe workplace. However, in the meantime, employers must take note that they have a legal obligation and a moral obligation of good practice when providing guidance to employees with respect to safety in the workplace. You are legally obliged to provide a healthy and safe environment and encourage staff to be aware and maintain safe practice within the workplace.  It is good practice to create policies and procedures and it is essential that employers, business owners, managers and company directors familiarise themselves with the company’s policies and procedures.

Good OHS Practice

WorkCover has identified that an essential practice to develop and maintain a safe working environment is to encourage both those at a senior level as well as employees to partake in training programs, both formally and informally. These programs are available through employee organisations, unions, health and safety organisations, TAFE colleges and private occupational health and safety consultants. To ensure the training effectiveness, the skills should then be utilised in the workplace and those at a management level should endeavor to train staff. 
No matter how large or small your business, everybody needs some training in health and safety matters and the policies and procedures of your particular business. The employee’s training should start 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, and
• 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. 

Assessing OHS Training Needs

To minimise their risk of liability, it is 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. Training needs analysis to ensure it is relevant to the job and to the changing needs of the workplace. WorkCover suggests conducting a health and safety training needs analysis to ensure that the right type of training is being provided.
In your analysis of the workplace, you should consider the following:
• 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 appropriate supervisors or managers,
• Create responsibilities of supervisors, and
• Create a handling system for health and safety procedures.

It should be noted that the obligations discussed above extend to employees too. Under the OHS Act, a worker must take reasonable care for the health and safety of co-workers who may be affected by their actions and are obligated to cooperate with their employer in performing tasks that they require in order to ensure a safe workplace. The scope of the responsibility on the employee includes ensuring that their actions do not pose a risk to other employees, that they use and maintain machinery and/or equipment properly and ensure that work areas are free from hazards known to them. It is essential that employees notify supervisors of potential risks and adhere to instructions on the prescribed safety equipment and following health and safety instructions. Often, employees are required to sign off on a company OHS policy and procedures manual which clearly explains to the employee or the contractor their obligations and rights, signing off to commit to the system.


OHS Case Study

While most companies are very conscious of their obligations, a review of case law provides insight into the common failures of employers and supervisors that have resulted in penalty fines and awards of more than $200,000. 
A 21 year-old employee of KFC, while cleaning cooking equipment was severely burned which left her with extensive medical expenses and period of inability to work. The employee queried her manager on how to correctly dispose of hot oil and was not given proper instruction. Due to her inexperience and lack of instruction it caused an explosion and led to severe burns to her body. Her employer had accepted the blame for the accident, the reason for its occurrence being the failure of its safety, health and welfare program. KFC was fined $20,000.

A 22 year-old forklift operator was cleaning an agitator in an industrial mixer used in the processing of concrete. The machine was unsafe in that the guard had earlier been removed. The worker (who had not cleaned out the machine before), reached into the machine to remove a piece of concrete with his hands and became entrapped, so severely that a surgical team had to amputate his arm at the shoulder to effect a rescue.
Justice Fisher, in his judgment stated: “It seems doubtful, on evidence, that effective training was given to employees about safe working. The management claimed training was given. The evidence which I accept, strongly suggests that the injured employee had not been appropriately trained on the operation of the GRC machine. Though he may have been asked on occasions to assist in some work, or in the vicinity of the machine.” The court ordered damages of $65,000 to the company and $20,000 to the manager separately. 

OHS Contact List

• WorkCover (www.workcover.nsw.gov.au)
• Australian Safety and Compensation Council (www.ascc.gov.au)
• Employee organisations and unions
• Australian Government Workplace Authority (Phone: 1300 363 264)
• NSW Office of Industrial Relations (www.industrialrelations.nsw.gov.au)


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