26 May 2014
Care and common-sense in safety in the workplace
A business that cares about safety will assess risks with all tasks it requires its workers to perform, establish a safe system of work, regularly train and instruct workers as to that system and then audit and enforce compliance with its systems. Such an approach should ensure workplace safety.
But occasionally workers may be hasty, careless or inadvertent. Or, as is often the case, the business may not perfectly document all of its efforts to ensure safety. In such cases, would the business be liable for breaching the Work Health and Safety Act 2011? In the days before the reasonably practicable test, the answer may have always been yes.
Two decisions earlier this year demonstrate that the duty to ensure safety, so far as is reasonably practicable, will be more likely to be met by business if it can demonstrate a strong safety culture. Courts are more concerned that steps are actually being taken to ensure safety than having nicely documented systems (even if such documentation provides great evidence for the defence).
WorkCover (Inspector Battye) v Patrick Container Ports Pty Limited
On 17 February 2014, the District Court dismissed charges against Patrick Containers following the death of one of its employees, Mr May. Mr May died whilst changing the tyre on a Hyster YardMaster Reach Stacker.
Mr May had extensive experience in his job. He was trained that the air pressure in the tyres on a Hyster YardMaster Reach Stacker needs to be fully released before changing due to the risk of explosion. Mr May's supervisor had trained him on safely changing tyres, observed and audited his compliance with the safe work method.
WorkCover alleged Patrick Containers did not comply with its primary duty to ensure safety by not having a formally documented risk assessment or documented formal training. In this case, the District Court found the requirement to document risk assessment and training to be "irrelevant" and "idle". The risk had been assessed and Mr May instructed, trained and audited to ensure his compliance. As a sign of common-sense, the Court said:
No injury I could conceive would be caused by a failure to document or write down. Failures to inform, to bring to the attention of, or to train, may create a risk of injury, not a failure to document.
WorkCover also alleged that Mr May should have been supervised at all times. It was found to be impracticable to continuously supervise Mr May when performing a task within his duty, skill and ability.
A determining factor in this case may have been that Mr May was impaired at the time of the accident due to drugs. An act or omission causes an event if it is the substantial or significant cause of that event. In this case, the failures alleged were not the cause of the accident but Mr May's condition.
Perry v Exactmix Pty Ltd  SAIRC 7
On 6 March 2014, the Magistrate's Court of South Australia dismissed charges against an employer following a crush injury to an employee.
The employer had equipment known as a crusher that would crush rocks. When rocks got stuck in the jaws of the crusher, the employee used manual means to seek to dislodge the blockage. In that process, the employee's hand was crushed.
In this matter all employees testified to a safety culture against shortcuts. The employer's motto was "take time, take charge". Each employee knew that if a crusher was blocked, a supervisor was to be contacted. Employees had been previously counselled about using a crow bar to manually remove rocks from the crusher. There were mechanical means available to safely clear a blockage, such as a mobile excavator.
The Court looked favourably on the business. The business had weekly safety meetings, documented safe operating procedures and had a positive safety culture. It did not train or endorse its employees to clear blockages by manual means. When manual means was used in the past, it immediately prohibited the practice. In the circumstances of an employee deliberating ignoring his employer's instructions, the Court could not find beyond reasonable doubt that the employer failed to take all reasonable steps to ensure safety.
When an employer can demonstrate a safe system of work, training and instruction backed by auditing, then a prosecution may struggle to make good its charges.
The Patrick Containers decision provides valuable insight for NSW employers as to how the District Court is likely to assess charges brought against employers; with much common-sense. Both Patrick Containers and Exactmix demonstrate that a strong safety culture will assist businesses meet its statutory duty. Documenting your systems is recommended but in the event of a lack of record, reality will prevail.
Both decisions also strike a balance between the duties imposed on the business and the worker, with businesses not liable for the worker's own conduct contrary to safe work requirements. Workers, under section 28 of the WHS Act must take reasonable care for their own and other's safety.
A strong safety culture can also have other benefits. Big congratulations to our client, Zetco Valves, for winning the NSW and National safety award for safest small business. Well done.
Author: James Mattson