Category: Duty of Care

OHS uniformity is looking unlikely

Michael Tooma, a lawyer with Australian law firm Deacons, has stated

“Despite the enthusiastic manner in which the harmonisation agenda has been pursued, and the appearance of progress in that regard, it is likely that the quest for uniformity in OHS laws across Australia will remain elusive.”

His reasons for this statement in a recent edition of Safety Solutions magazine (August/September 2008) are

  • The National OHS Review was set up to develop model legislation for implementation in each State jurisdiction;
  • Duty of Care is absolute in two States, Queensland and New South Wales;
  • “Reasonable practicable” is not applied in each State to the same extent;
  • The New South Wales right for unions to undertake prosecutions for OHS breaches;
  • Not each State has a legal forum dedicated to handling OHS prosecutions;
  • The level of enforcement of OHS law is inconsistent between States; and
  • The level of maximum penalty available.

Tooma is worth listening to for lots of reasons but principally he seems to be less wrapped up in political baggage compared with other OHS legal commentators.

Tooma seems to favour an industrial or OHS court because of the substantial jurisprudence that has been achieved through the New South Wales Industrial Commission.  I support the expansion of this type of court as NSW decisions, regardless of legislative differences, can be particularly useful is clarifying the most suitable OHS interventiosn for particular hazards.

He also says that enforcement must be consistent.  This is true or else, if given the chance, an employer could undertake certain hazardous tasks in the jurisdiction where enforcement or prosecution is less effective and active.

This relates, in a way, to Tooma’s last point on penalties.  An OHS offence in Victoria could lead to jail but in Tasmania, not.  A monetary fine of over $1 million could apply in some States with only $180,000 in another.

It seems that the fantasy of one OHS law for Australia will remain a fantasy.  The trick will be whether, after months of government review and hundreds of submissions, there will be sufficient consistency across the States.  The likelihood is that we will be slightly better off but still with State variations.  We have a little less red tape but red tape nonetheless. 

My question will be, was it worth it?

Could sexual abuse by priests be a breach of OHS law?

In early July 2008, serious accusations about the management of sexual abuse claims by the Australian Catholic Church came to the public attention.  Considerable debate on this current round is available in the Australian media but the ABC show Lateline started the running on the matter.  A useful starting point is an ABC news report on the initial claims.

This week I was conducting some OHS update sessions for a client in which I outlined that one of the objectives of Victoria’s OHS legislation is to

“protect the public from the health and safety risks of business activities”.

And there is a legislative obligation on employers to

“not recklessly endanger a person at a workplace”.

There is a further obligation on employees, in relation to workplace safety and the safety of the public to

“take reasonable care for self and others”.

I put the question to readers – could the sexual misconduct of priests be a potential breach of OHS law?

Speeding in roadside worksites

I have a confessions to make.  I stick to the speed limit and in over 25 years of driving cars and riding motorcycles, I have never had a speeding ticket.  That may make me sound like a grumpy old fart but I can’t see how it can be worth putting yourself and others at risk for little return….

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Two avoidable electrical fatalities

In February 2000, McDonald’s Australia Limited was fined $120,000 in the Industrial Relations Commission in Sydney and the lessor of the Wollongong restaurant, McDonald’s Properties (Australia) Pty. Ltd, was fined $150,000. Lyndhurst Trading Co Pty. Ltd, leased the restaurant and owned and operated the clamshell grills which electrocuted 19-year old, and was fined $40,000. 

According to a report by Jennie Mansfield, senior associate with Blake Dawson Waldron in October 2000

Michael Johnston was a 19 year old employee of Lyndhurst Pty Limited (the employer), a franchisee operating a McDonald’s restaurant in Wollongong on the South Coast of New South Wales. Johnston … was fatally electrocuted while cleaning behind a clamshell grill – standard equipment in McDonald’s restaurants.

Since installation, the grill had been pulled away from the wall every night for cleaning, and over time the cable attaching it to the power outlet contractors and fast food had become abraded. There was no accessible isolation switch in place and Johnston was electrocuted when he touched the exposed inner core of the cable while the power was still connected.

I was reminded of Michael Johnston’s death when I was told of a successful prosecution in New South Wales on 2 June 2008.

A Salamander Bay resort hotel has been fined $150,000 and its three directors $12,000 each following the electrocution of a 13-year-old boy at the hotel’s pool in December 2002.

The local boy and a friend were playing in the Salamander Shores Hotel pool without the permission of the staff when a tennis ball was thrown outside the pool fence.

The 13-year-old received an electric shock when climbing back over the pool fence to retrieve the ball, and died later of his injuries.

A WorkCover investigation concluded that the boy had stood on a corroded section of pipe carrying electrical wiring, which collapsed and cut through the insulation. 

Both situations involve a lack of adequate maintenance and equipment checking. Two deaths because of the invisible, but foreseeable, hazard of electricity and inadequate management.

Michael Johnstone had been a McDonald’s employee for 2 weeks. The 13-year-old was simply playing with a mate.

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