Case study of existing hazards in the new legislative context

Last month Joe Catanzariti of the Australian law firm, Clayton Utz, wrote a short article that links two OHS issues in a manner that others should follow.

Catanzariti made the jump from a prosecution under current New South Wales OHS legislation (according to many the most draconian in Australia) to identify how such a decision would be made under the harmonise OHS law system through the Work, Health and Safety Act.  The perspective needs to be applied more as it assists greatly in transitioning our understanding of “old” law to the new.

With permission of Catanzariti, below are some excerpts from his article about a prosecution in the Industrial Court of New South Wales:

The three contractors – Eagle Eye Traffic Services Aust Pty Ltd, Nace Civil Engineering Pty Limited, and Borthwick & Pengilly Asphalts Pty Ltd – were involved in a joint project to resurface a road that required work to be undertaken at night.  The employee was wearing reflective clothing, carrying a wand and two-way radio and the truck had reversing alarms and flashing lights.  General discussions had occurred between the subcontractors about the tasks that were going to take place on site.  However, a failure to identify the “obvious risk” of vehicle/mobile plant resulted in the fatal injury of the employee after he was struck by a reversing truck.  The Court found roadwork to be “inherently dangerous and sites must be rigorously assessed”……….

There will be a legislative requirement of duty-holders to consult, co-operate, and co-ordinate with each under the harmonised OHS Acts, commencing on 1 Jan 2012. Clause 45 of the model provision states:

“If more than one person has a duty in respect of the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.  Significant penalties have been attached to this obligation; $20 000 for an individual and $100, 000 for a body corporate.””

SafetyAtWorkBlog will always argue with someone who says that a work activity or work environment is “inherently dangerous” as this can take the urgency out of any control measures –  “How can we control it when it is inherently dangerous?” – but the Court in this case acknowledges that a high risk requires a rigorous assessment.

Most States in Australia have imposed an obligation to consult on OHS matters in their legislation over recent years but in many jurisdictions this obligation was not as “game changing ” as it was hoped to be.  Partly this was due to a strong misperception that consulting is done by consultants – consultants cost money – let’s not consult = save money.  (In other non-safety sectors, consulting has actually been structured to have no influence and to simply be a task to be performed and filed.) Those employers who took the time to read a little bit about OHS consulting received the benefit of drawing upon the expertise and experience of their workforce in coming up with OHS solutions.

The refreshing element of Catanzariti’s short article is that he provides a “before and after”.  The before is not a unique circumstance, road construction with multiple contractors is the norm but he illustrates the need to consult and manage safety in an integrated fashion as both good business sense and in anticipation of the legislative future that will require the application of this business sense.

We look forward to more case studies of what existing hazards will need to consider after 2012.

Kevin Jones