t is widely recognised that employers throughout Australia have an absolute duty to ensure the health, welfare and safety of everyone at their workplaces — be they employees, outside contractors or visitors.
This duty includes a duty to monitor and supervise workplace participants to ensure they carry out their on-site functions in a safe manner.
Employers must also ensure that those charged with providing this supervision have adequate skills, qualifications and experience to ensure that workplace participants perform their work in a safe manner.
In determining the level and type of supervision that is required, an employer must have regard to and consider the competence, experience and age of the person requiring supervision.
Decisions handed down in OHS prosecution cases make it clear that employers must be especially vigilant when supervising young employees.
At the same time, employees also have a duty to reasonable care for the health and safety of people who are at the workplace. They must also co-operate with their employer to enable it to meet its statutory OHS obligations.
However, this obligation on employees does not absolve an employer from its absolute duty to safeguard the health, welfare and safety of workplace participants.
As frustrating as it may seem, the courts have indicated that employers owe this duty: “not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable” (WorkCover Authority of NSW (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at page 99).
Supervisory duty examined
The extent of this supervisory duty was recently examined in the case of Inspector Michael Dall v GPCC Pty Ltd; Inspector Michael Dall v JML Group Pty Ltd [2007] NSWIRComm 103.
In this case, GPCC was engaged by JML Group to install pre-cast concrete panels on a construction site. Anthony Roth commenced employment with GPCC on 19 April 2004.
During a WorkCover site inspection on that day, the WorkCover inspector observed Roth working without his safety harness. The inspector advised Roth and JML site staff that fall protection was to be maintained at all times, including the wearing of safety harnesses and that barricading was to be put in place.
This barricading was installed and the JML site supervisor directed Roth to wear his safety harness at all times whilst working at heights. Roth objected to wearing the harness but acknowledged that he understood the instructions he had been given.
The next day, JML’s site supervisor supervised and monitored compliance by Roth and his co-workers, and specifically told them to wear safety harnesses when working at heights.
This monitoring and supervision was provided constantly throughout the day, except when the supervisor took toilet breaks and for a short period of time on about six or seven occasions when the supervisor had to sign off for deliveries. Roth wore his safety harness all day, whilst under supervision.
However, he removed the harness when the JML site supervisor left the area at about 3pm to attend to the loading of a concrete panel. Shortly after this, another WorkCover inspector observed Roth working at a height of 20m without his safety harness. As a result, WorkCover prosecuted both GPCC and JML for breaching their respective duties under the NSW OHS Act. GPCC entered a plea of guilty early in the proceedings and JML entered a plea of guilty shortly before the allocated hearing date.
When interviewed by WorkCover, Roth said he had removed his safety harness because he felt safer working without it. He said he was scared that if he wore it the lanyard would get caught on the starter bar and other things on the ground. He admitted however, that he had not expressed these concerns to JML’s site supervisor.
Justice Marks in hearing the plea said that the cause of the risk was “the blatant failure of Roth to comply with instructions which had been explicitly and specifically given to him by a WorkCover Authority inspector and by the [JML] site supervisor” and by Roth’s “aberrant, deliberate and irresponsible conduct in removing his harness.”
His Honour said that given Roth’s resistance to wearing the safety harness on the day before the incident, the level of supervision which was provided to him the following day had been inadequate.
His Honour said: “[t]he only means of preventing that breach would have been constant supervision” and in failing to provide that level of supervision both JML and GPCC seriously breached their respective duties under the OHS Act.
Given it was Roth’s misconduct that had triggered the breaches, his Honour indicated that it was regrettable that Roth had not also been prosecuted over the incident. His Honour remarked that prosecuting “an employee in circumstances of this kind might arguably assist in deterring employees from deliberately and knowingly putting their employers and others in breach of the Act.”
His Honour was also critical of the WorkCover authority, indicating that: “the prosecution of employees such as Roth would also avoid any cynical suggestion that the WorkCover Authority of New South Wales is only interested in proceedings against entities that have the ability to pay a monetary penalty and costs, including a moiety [share] of the monetary penalty, which, in [his] experience, is inevitably sought in every prosecution instituted by the Authority.” His Honour indicated that he took into account the culpability of Roth in considering the objective seriousness of the offence.
After applying a discount for its late plea of guilty, Justice Marks fined JML $45,000. He fined GPCC $50,000 after taking into account its early plea of guilty, its prior conviction, its dire financial circumstances and the likelihood that it would be placed into administration.
Whilst this case was decided in NSW, employers in all Australian States and Territories have a duty to supervise workplace participants.
This case demonstrates the extensive lengths to which a business may be required to go in order to fulfil its duties under OHS laws.
It is imperative that all workplace participants (whether employed by the employer or not), are provided with adequate instructions, information and training to perform their work in a safe manner.
In addition, businesses must ensure that all workplace participants are appropriately supervised to ensure they comply with those instructions.
If a workplace participant has indicated or shown by his/her past conduct that they may not comply, further supervision and monitoring of that person will be required to ensure compliance.
It is important that any failure by a workplace participant to comply with instructions and directions given in relation to safety issues is disciplined by the employer. In this way, it is hoped that compliance by the employee can be secured and an employer’s OHS duties will be met.
*Kelly Godfrey is a Senior Associate with Australian Business Lawyers, kelly.godfrey@ablawyers.com.au.