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What to do when a notifiable incident occurs in your workplace

April 2019

You have a legal obligation under all health and safety legislation to report any serious injury or illness, death, or dangerous incident that occurs in your workplace. A dangerous incident (also called a notifiable near miss) is either an incident that causes immediate serious risks to someone’s health or safety, or exposure to a hazardous substance, e.g. asbestos or hazardous chemicals, which is likely to create a serious risk to someone’s health or safety in the future. Below we outline what steps you must take in the event of a notifiable incident. Step 1: Seek medical assistance When an incident results in a serious injury or illness, seek immediate medical attention for the affected person by: providing first aid; or dialling 000 to request an ambulance if necessary. Step 2: Take control of the incident site When any notifiable incident occurs, you must: arrange the rescue of any person still within the incident area (if it is safe to do so); make the area safe to prevent anyone else from being hurt or exposed to harm; and preserve the incident site, i.e. do not disturb the site where the incident occurred. Step 3: Report the incident internally You must report all incidents (regardless of severity, including near misses) internally immediately after they occur. Establish an internal notification procedure for this. Internal reporting of an incident helps to ensure that: your external notification obligations are met, using accurate information; assistance has been provided to site managers and employees; immediate safety is assured; the incident site has been properly preserved; legal advice can be sought; appropriate prevention activities are implemented; and internal investigation activities can begin. Step 4: Determine who will notify the health and safety regulator of the incident In many cases, there are several parties involved in a notifiable incident, or who are aware of the incident occurring. Each party who has some knowledge of the incident has a responsibility to ensure it is reported to the health and safety regulator. This does not mean that every party is required to complete a notification report, as long as there is agreement about who will report on behalf of others. Step 5: Notify your health and safety regulator of the incident Under the WHS Act, a person who conducts a business or undertaking (PCBU) must immediately notify the regulator of the incident. In Victoria, an employer or self-employed person must immediately notify the regulator once a notifiable incident has occurred. In WA, the person who should notify the regulator is either an employer or self-employed person, depending on whether the incident occurred at an employer’s business or at the business of a self-employed person. The following flowchart shows the process for notifying your regulator of an incident by phone: Written notification must either be provided on the health and safety regulator’s approved form or contain the details outlined in the form. Step 6: Make a record of the injury and incident Accident and injury compensation laws require injuries to be recorded. You can keep your register of incidents in: a diary; an exercise book; or an electronic file. Make sure all your workers know that every incident must be reported and documented in the register. Ideally, the injured or ill person’s supervisor or the trained first aid provider should enter the information in the register. Step 7: Notify your insurer If there is a serious injury from an incident, there is an obligation under workers’ compensation laws to notify the workers’ compensation insurer, usually within 48 hours of the incident. This applies to all jurisdictions. Learn more in the Health & Safety Handbook Chapters N1 Notification of Incidents and I1 Incident Reporting and Investigation in the Handbook cover everything you must know and do to meet your incident reporting obligations. If you’re not a subscriber, you can access this information for free with our free, no-obligation trial.


Your questions answered: Are workers allowed union representatives in disciplinary meetings?

April 2019

Q Do we have to allow workers access to union representation when disciplining them in relation to workplace safety? A Unions can act for their workers in disciplinary matters and in health and safety matters. If a worker wishes to have a union representa4tive at a performance meeting held by their supervisor, the union representative can attend the meeting, but only in the capacity of a support person. They are not allowed to be an advocate for the worker. Want to know more? You can find detailed information about what powers union members have in chapter U1 Unions in the Health & Safety Handbook.


Supermarket fined $600K after apprentice slips on sausage meat

April 2019

Even the smallest safety oversight can be disastrous. The butchers at an IGA store in New South Wales probably never thought that failing to spot a tiny slither of sausage mince hidden under a trolley in the meat room could lead to a $600,000 liability claim. In Paul v Ashcroft Supa IGA Orange Pty Ltd (2019) a worker sued the supermarket for breaching its duty of care in a 2012 incident when he was working there as an apprentice butcher. He was directed to link sausages on a tray on top of a wheeled trolley, before it rolled away from him. When he stepped to follow the trolley to try and prevent the sausages from falling on the floor, he slipped on a piece of flattened mince and fell backwards hitting a wall, injuring his back. The worker submitted that the employer was liable for the accident as it had failed to: Ensure that the trolley holding the tray of encased sausage meat was provided with a braking or locking mechanism. Ensure the floor was free of wet and slippery substances. Ensure that the floor was regularly inspected and cleaned. Ensure that the trolley holding the tray was not placed on a sloping area of floor. Provide a sufficiently high level of supervision in view of the plaintiff being a first year apprentice. Provide sufficient fixed work benches to ensure that no preparation work was undertaken using a wheeled trolley. Identify the hazards and risk of injury to which the plaintiff was exposed. The employer argued that the worker was 25% contributorily negligent as he had failed to look under the trolley before undertaking the task. NSW District Court Judge David Russell rejected this, finding that the worker was only 10% contributorily negligent. The worker explained in the hearing that he saw mince on the floor when he started his shift, but said one of the butchers cleaned the floor before he started linking the sausages. As he was an apprentice, he didn’t think that he was expected to check the work of the butcher and trusted that the area had been cleaned up properly. While Judge Russell did find that the employer wasn’t liable for the wheeled trolley not having a locking or braking mechanism, as there was no regulation or practice in the industry to use these, he said “The same cannot be said for the presence of slippery sausage mince on the floor underneath the trolley”. “Since the trolley was freely mobile, there was a need to clean underneath the trolley as well as the rest of the meat room floor. [The employer] through its employees failed to do that properly “[T]here was a piece of sausage mince on the floor for three and a half hours which had not been removed, and it should have been removed. There was … a common sense obligation on the part of [the employer] to take proper steps to clean slippery things off the floor,” he said. The employer was ordered to pay the worker $578,689.11 in damages, plus his legal costs. Have you identified every safety hazard in your organisation? Don’t wait until after a serious incident occurs. Take the correct steps now to ensure your work environment is 100% safe by reading the Health & Safety Handbook. Find out more.


Your questions answered: What is executive due diligence?

April 2019

Q I would like to understand what 'executive due diligence' means. Could you please provide me with a definition? A Due diligence relates to the duty of care owed by officers under work health and safety (WHS) laws. The reference to “executive due diligence” also relates to the duty of care owed by officers and senior managers under the Heavy Vehicle National Law (HVNL), particularly the concept of the Chain of Responsibility (CoR). Under the CoR, all persons responsible for activities that affect compliance with the HVNL are held liable for a failure to exercise that responsibility. The CoR regime imposes a due diligence obligation on executives to ensure that their entity complies with its responsibility – this being the safety of heavy transport activities related to their business. An executive is a company director or any person (by whatever title and whether or not the person is a director) who is concerned or takes part in the management of a corporation. This executive due diligence obligation takes its definition from the WHS laws and is set out in section 26D of the HVNL. In practical terms, it means taking all reasonable steps to implement and verify that systems are in place to control the risks arising from heavy transport activities. These steps commonly include: implementing a framework for CoR risk identification, assessment and mitigation; implementing a system to provide information, instruction, training and supervision to workers, customers and business partners (e.g. contractual counterparts and subcontractors) in relation to CoR compliance; and monitoring the implementation of the framework and systems in practice and addressing any issues of non-compliance. The consequences for failing to exercise executive due diligence include significant fines and jail sentences. You have the questions, the lawyers at Holding Redlich have the answers Get direct one-on-one access to them, for free, exclusively when you subscribe to the Health & Safety Handbook.


Your questions answered: Are there age restrictions on heavy lifting?

April 2019

Q We have young workers (aged 15 years and over) working with us. Are there any age restrictions relating to heavy lifting? Our 15-year-old workers could be lifting around 12kg. A Safe Work Australia’s model codes of practice have been developed in conjunction with the harmonisation of Australia’s work health and safety legislation. Safe Work Australia has developed the Code of Practice Hazardous Manual Tasks in relation to hazardous manual tasks in the workplace (https://www.safeworkaustralia.gov.au/doc/model-code-practice-hazardous-manual-tasks). This Model Code of Practice was approved in NSW and is hosted on the WorkCover NSW website (https://www.safework.nsw.gov.au/__data/assets/pdf_file/0020/50078/hazardous-manual-tasks-code-of-practice-0916.pdf). We recommend that you review the Code of Practice in relation to minimising the risk of hazardous manual handling tasks to your workers. The Code of Practice does not reference the age of workers and the respective weight lift limit. Therefore, we recommend that as a guide, you adhere to the restrictions under the National Code of Practice for Manual Handling (https://www.safeworkaustralia.gov.au/doc/national-code-practice-manual-handling-nohsc20051990-archived). Do you have workplace safety questions you need to answer? You can get them answered for free at the Health & Safety Helpdesk when you subscribe to the Health & Safety Handbook. Find out more.


Abattoir fined $95K for avoidable forklift injury

April 2019

One obvious workplace hazard many businesses are still failing to address is forklift safety. Last month, Victorian abattoir Midfield Meat International Pty Ltd was fined $95,000 after a fifth forklift accident in the state this year. In this incident, the forklift driver’s view was obscured by a bin he was transporting when he struck another worker and a company director who were standing in a ‘thoroughfare’ area in the centre of a yard. He only realised he had hit these people when another worker yelled out. The worker sustained two broken ribs, while the director escaped injury. But the outcome could have been much worse. “Already this year one worker has died and the courts have fined four companies in relation to serious forklift incidents prosecuted by WorkSafe,” WorkSafe Victoria Executive Director of Health and Safety Julie Nielsen said. While this company did have a traffic management system in place, it was out of date, and there were no exclusion zones or barriers set up to separate pedestrians from forklifts. The company pleaded guilty to breaching Victoria’s Occupational Health and Safety Act for failing to eliminate the risk of powered mobile machines colliding with pedestrians. As well as being fined, it was ordered to pay $4,000 prosecution costs. This is the fifth time this company has been convicted for violating health and safety law. Ms Nielsen said “In this case a worker could have been prevented from receiving debilitating injuries had an appropriate traffic management plan, which includes physical separation of forklifts and people, been in place”. “All workers should undertake appropriate training on the tasks and machinery they are to be involved with, failure to do so can result in severe consequences.” WorkSafe Victoria has reminded employers who use mobile machinery like forklifts that they must ensure: All workers receive appropriate induction and training on the work they are to be involved in, and that a register of training and induction is maintained on file. Signage is in place and barriers are erected where appropriate. Visibility issues are identified and controlled, particularly if lighting is poor. Machinery and vehicles are regularly inspected and maintained, by a suitably qualified person. A traffic management plan is in place for pedestrians and powered mobile plant and that it is reviewed and updated as appropriate. Pedestrians are separated from moving machinery and that an effective communication system between operators, transport contractors and ground staff is in place. Learn more in the Health & Safety Handbook The Handbook has an entire chapter dedicated to traffic management. It is just one of more than 70 chapters dedicated to all areas of workplace health and safety. Why not take our free, no-obligation trial and discover the essential information you could be missing?


Your questions answered: What obligations do we have to ensure our principal contractors are complying with safety recommendations from third-party audits?

April 2019

Q We engage principal contractors on our construction projects. We also engage a third party to conduct audits on each principal contractor once per year on each of their projects. We then coordinate the completion of any actions in response to the audit with the principal contractor. Do we need to get evidence of each closed action or is an email stating that action items are closed enough? We are based in WA. A In Western Australia, you have an obligation to ensure, so far as is practicable, that your employees, and any individuals accessing workplaces owned or controlled by your business are not exposed to hazards when in, or accessing, the workplace. Consequently, in order to reduce the risk of exposure to hazards, your business has a legal obligation to ensure that any action items raised in the external audit are sufficiently closed out. Written confirmation from the principal contractors that action items have been closed out may be sufficient to satisfy your obligation. However, your obligation is to ensure the reduction of hazards ‘as far as reasonably practicable’. Therefore, to ensure that you have sufficiently discharged that obligation, and as a more prudent course of action, we recommend that you obtain evidence from the principal contractors that each action item has been closed out, e.g. photographic evidence or site inspections. This will help your business to satisfy its obligation under health and safety legislation, and will help minimise any suggestions that you have not complied with your obligations. When you subscribe to the Health & Safety Handbook you get free one-on-one access to top workplace safety lawyers Find out more.


How to avoid legal risk when conducting complex bullying investigations

April 2019

Workplace bullying is an extreme form of misconduct and must be dealt with as such. It involves repeated acts or omissions that: are unreasonable; hurt, intimidate or humiliate the victim; and create a risk to health and safety. Any investigation into bullying requires great care. If you do not have an understanding of how the law affects investigations, there is an increased likelihood that a legal claim can be brought against you as a result of a poor investigatory process, particularly in complex cases. Once an allegation of bullying is made, you must undertake an investigation to determine whether: the conduct that is alleged to have occurred actually did occur; and the conduct is in fact bullying, or in any way contrary to the behaviour your organisation requires of your employees – this is usually described in code of conduct or workplace policies. While this appears to be a simple two-step process, it won’t always be the case. When might a bullying investigation become complex? Some bullying claims can be complex when they occur within a backdrop of unrelated issues such as performance management or poor health. For example, an employee may think performance management is retaliation for a bullying complaint they have made. Don’t make the mistake of carrying out an investigation to find facts of misconduct against the complainant (a common device to deal with difficult employees). The legal consequences for this can be dire. The Fair Work Commission has repeatedly found that such strategies defeat any disciplinary action taken and are in themselves adverse action by both the manager and the organisation. 11 steps to conducting a complex bullying investigation Before starting the investigation, you will need to define what the scope of the investigation will be. Take the following steps if you are investigating a bullying complaint that is complex: 1. Review the relevant policies and procedures to help you determine tests of good and bad behaviour, and develop a tick list of what to do to ensure procedural fairness. 2. Meet with the complainant and develop a document that accurately defines each alleged act of misconduct. Ensure you detail: the specifics of the conduct; when it happened; where it happened; and who was present. Note that these allegations cannot be vague or unclear as they will be put to the alleged bully so they can respond. Encourage the complainant to be as specific as possible. 3. Advise the complainant of their obligations of confidentiality and that a breach of that would be serious misconduct. 4. Have the complainant sign off on the complaint, agreeing that it is true and correct. 5. Review the complaint and identify all documents and witnesses that are relevant to the complaint. Ensure you receive the documents and have read them before you commence interviews. Draft precisely the key points of the issue and develop an evidential matrix. An evidential matrix is a table with the allegations and a space where each witness’s evidence and documentary evidence can be inserted against those allegations. This gives you a visual structure to review evidence and weigh its credibility. 6. Create a letter to the respondent (i.e. alleged bully) giving a direction of confidentiality and warning them that there must not be victimisation arising from the complaint. Victimisation, in this context, is treating someone unfairly as a result of making a complaint. 7. Create a letter for any potential witnesses imposing obligations of confidentiality. Limit enquiries of witnesses to specific facts relevant to them. For example, only ask questions relating to what they witnessed rather than what they think happened or have learned through gossip. 8. Speak to the respondent and identify relevant witnesses and documents. 9. Collate evidence, review it and determine what, if any, further evidence is required. Speak to more witnesses if necessary. 10. Return to the complainant to obtain their final comments, and put to them any factual discrepancies, providing them with an opportunity to explain. 11. Prepare your investigation report. What should your investigation report look like? Your investigation report must: stick to the scope of the investigation; identify the investigation process adopted; and refer to any relevant policies and procedures. It should be brief and stick with the facts. No speculation. It should make specific findings of fact in respect of the allegations. If it was part of the scope to determine if the behaviour breached policies and procedures or the law (e.g. bullying or discrimination), set out the legal and factual basis for such a determination. Finally, be mindful of the standard of proof for finding facts, which is the balance of probability, which means that any finding must have at least a 50% probability of being true. Never shape your investigation or the report to the organisation on leaders’ whims or desires. It creates legal risk for you under employment, safety and discrimination law; and it undermines the important governance role investigations play in workplace conflict. Want to know more? In The Anti-Bullying Guide we detail everything all employers need to know and do to tackle workplace bullying and avoid legal risks. Grab your copy today.


Your questions answered: How often must we inspect fire extinguishers?

April 2019

Q We operate two rock crushing and screening sites for clients in Western Australia and have a number of fire extinguishers on both sites. What is the requirement for inspecting these fire extinguishers? They are mainly dry chemical type and a couple of CO2. A Chapter F2 Fire Safety of the Health and Safety Handbook includes relevant information on the inspecting and testing of fire extinguishers. The Occupational Safety and Health Act 1982 (WA) (OHS) and Regulations in Western Australia do not specify a mandatory frequency of fire extinguisher inspections and maintenance. If there is a risk of fire in a workplace, the Regulations direct that a person who is the employer, the main contractor, a self-employed person or a person having control of the workplace must, as far as practicable, provide regularly maintained and efficient portable fire extinguishers to control any fire likely to arise from the work being done at the workplace (Reg 3.9(1) (a)). Australian Standard AS 1851-2005 states the best practice for maintaining fire protection systems and equipment is that extinguishers should be inspected every 6 months. While the standard is not mandatory for employers, compliance with the standard would satisfy the OSH regulator that you have complied with your OSH duty to provide regularly maintained and efficient portable fire extinguishers. Not a Handbook subscriber? You can try the Handbook for free with our no-obligation trial.


Breaking wind is not bullying rules Supreme Court judge

April 2019

A Melbourne engineer who sued his former employer $1.8 million for a supervisor’s serial flatulence has lost his appeal case in the Victorian Supreme Court. In the original case last year, the former worker at Construction Engineering claimed that three of the workers in the company had a “conspiracy” between them to marginalise him and terminate his employment, resulting in him suffering from a number of psychiatric and physical injuries, including fibromyalgia and irritable bowel syndrome. He alleged that his supervisor would regularly “lift his bum and fart” on him or at him, progressing to a point where he would do it every day. At one point the worker pushed back at the supervisor by spraying him with deodorant and calling him “Mr Stinky”. The worker also alleged that in the five to six weeks up to his redundancy, his supervisor abused him five times over the telephone, shouting at him telling him that he had “f---ed up”, he was “not worth [his salary]”, he was not worth s---” and that he “kept f---ing up”. The supervisor denied yelling, screaming or swearing at the worker and denied deliberately or repeatedly passing wind close to him in order to cause him distress or discomfort. However, a co-worker who gave evidence at the trial said “I do recall obviously times when [the worker] got quite offended by some of the stuff that went on”. “Obviously there were incidences where [the supervisor] had a propensity to walk over to the printer, which was next to me and I think [the worker] sat behind where the printer was and [the supervisor] would flatulate [sic], he would fart you know and that would happen quite frequently,” he said. “Now I – I mean I would laugh it off or you know walk out or whatever. But I knew that [the worker] took quite offence to it and I – to be honest at the time I didn’t understand, but then obviously realising it was [the worker] being [of] German descent, whereas us Australians are sort of brought up you sort of accept it or think oh it’s just – that’s what happens. But [the worker] was always quite often offended when that happened.” Judge said “cultural difference” caused the worker to be offended Justice Rita Zammit said “What is striking in this passage is the emphasis [the co-worker] placed on [the worker’s] offence at [the supervisor’s] flatulence — an offence that has its origins in cultural difference — rather than the sort of fear, distress, humiliation or victimisation that one would ordinarily expect in a bullying scenario”. “Even if [the supervisor] did do what [the worker] alleged, it would not necessarily amount to bullying. “It is difficult to see how [the supervisor’s] conduct could have intimidated or caused distress to [the worker]. “[He] was able to spray [the supervisor] with deodorant and give him the nickname ‘Mr Stinky’,” she said. Domestic issues and redundancy caused the worker’s problems While the supervisor acknowledged that he was frustrated with the worker’s performance, Justice Zammit found that the worker had no evidence to support the claim he had been bullied by the supervisor on the telephone. She noted that a number of other employees at the company were also made redundant at the same time and said “It is likely that the real cause of [the worker’s] mental state today was a combination of domestic stressors and, most significantly, the stress of losing his job”. “[A]ssuming [the supervisor] did not abuse [the worker] over the telephone, the combined effect of [the worker’s] temperament, domestic stress and the loss of his job would, on the balance of probabilities, have led to anxiety and a depressive condition “It is in a sense tragic that [the worker’s] redundancy appears to lie at the heart of his problems. It seems, regrettably, to have generated a misplaced sense of unfairness at the loss of his job,” she said. Next stop is the High Court In the appeal hearing, Victorian Court of Appeal Justices Phillip Priest and David Beach found that Justice Zammit had “determined that [the worker’s] evidence was coloured by [his] lack of objectivity” and that she relied on his “unreasonable and relentless attempts to prove a conspiracy against him”. “The judge’s patience and forbearance are evident,” they said. The worker, who has not worked since he was retrenched from this position in 2009, was refused leave to appeal and ordered to pay the employer’s defence costs. After the ruling was delivered, he told the judges “I’m taking it to the High Court”. Learn more in the Health & Safety Handbook It is best to resolve workplace issues before they reach court. In the following Handbook chapters we show you how to address subjects raised in this article: B1 Bullying M3 Mental Health P1 Performance Management S4 Stress Not already a subscriber? Why not take our free, no-obligation trial today? Find out more.


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